Citation Nr: 1302801 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-23 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the character of the appellant's active duty is a bar to VA benefits, except for health care and related benefits under Chapter 17 of title 38 United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The appellant had active service from July 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, finding that the Veteran's discharge was under other than honorable conditions and thus was a bar to VA benefits under 38 U.S.C. § 3.12(d)(4). . The appellant testified at a hearing before the undersigned Veterans Law Judge at the RO in Seattle, Washington in July 2012. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDING OF FACT The appellant's discharge from active military service under other than honorable conditions for the period of active duty July 19, 1966, to January 31, 1969, is considered dishonorable. CONCLUSION OF LAW The character of the appellant's discharge for his period of active duty from July 1966 to January 1969 is a bar to VA benefits, except for under Chapter 17 of 38 U.S.C. 38 U.S.C.A. §§ 101(2), 5303 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(d), 3.3, 3.4, 3.5, 3.12(d), 3.301, 3.354 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist appellants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Where the issue involves the character of an appellant's discharge, proper notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The RO provided this notice to the appellant in letters dated June 2006 and June 2007. These letters informed him that VA compensation benefits would require resolution of the question of whether his service was honorable. The June 2007 letter also enclosed a copy of 38 C.F.R. § 3.12, the controlling regulation, and advised the appellant to submit any evidence in support of his appeal. Furthermore, VA assisted the appellant by obtaining pertinent service personnel and treatment records. While there is no post-service medical evidence of record, the appellant has not been prejudiced by this fact. VA has not been provided with any evidence to suggest that the appellant was "insane" at the time of his multiple unauthorized absences. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations In order to qualify for VA benefits, a claimant must demonstrate that he was a veteran. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). The term 'discharge or release' includes: (1) retirement from the active military, naval or air service, and (2) the satisfactory completion of the period of active military, naval or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(18). A discharge or release to reenlist is a conditional discharge if it was issued during World War I, World War II, the Korean conflict, the Vietnam era, or peacetime service. 38 C.F.R. § 3.13(a). Typically, the entire period of service constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). A person may be considered to have been unconditionally discharged or released from active military, naval, or air service during one of the above timeframes, however. 38 C.F.R. § 3.13(c). The requirements for such a constructive unconditional discharge are: (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service, (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment, and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. Id. If these requirements are met, the entire period of service does not constitute one period of service. 38 C.F.R. § 3.13(b). This has been interpreted to suggest that the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. See VAOGCPREC 8-2000, fn. 2 (July 25, 2000). It is dishonorable when a person is discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the person requested his release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days, unless there were compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c). Additionally, a discharge or release is considered to have been under dishonorable conditions if it was because of one of the following offenses: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(d). An offense involving moral turpitude includes, generally, the conviction of a felony. 38 C.F.R. § 3.12(d). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Willful and persistent misconduct includes a discharge under other than honorable conditions determined to be issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d). However, willful and persistent conduct excludes a discharge because of a minor offense if service was otherwise honest, faithful, and meritorious. Id. An offense that "interfere[s] with [the] appellant's military duties, indeed preclude[s] their performance... [does] not constitute a minor offense." Stringham v. Brown, 8 Vet. App. 445 (1995). An AWOL thus has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board's finding that two and a half months of AWOL out of nine months of service was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board's finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board's finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct. As it prevents attainment of Veteran status, a discharge under any of the aforementioned conditions pursuant to 38 C.F.R. § 3.12(c) or offenses pursuant to 38 C.F.R. § 3.12(d) generally is a bar to VA benefits. 38 C.F.R. § 3.12(b). There are two instances when this is not true, however. The first instance is an exception to the general rule for a person who is found to have been insane at the time he committed the act(s) precipitating his discharge or release. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b); see also Zang v. Brown, 8 Vet. App. 246 (1995). Establishing causal connection between the insanity and the act(s) is not required. Struck, 9 Vet. App. at 145; Helige v. Principi, 4 Vet. App. 32 (1993); VAOPGCPREC 20-97 (May 22, 1997). The burden is on the appellant to submit sufficient evidence of his insanity. Stringham, 8 Vet. App. at 445. Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535 (2000). The predicate for insane behavior for VA purposes generally is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, he is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Id. An insane person therefore is one who: (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354. The term 'constitutionally psychopathic' refers to a condition that may be described as an antisocial personality disorder. VAOPGCPREC 20-97. Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not constitute prolonged deviation from a person's normal method of behavior. Id. The phrase 'interferes with the peace of society' refers to behavior which disrupts the legal order of society. Id. The term 'become antisocial' refers to the development of behavior that was hostile or harmful to others in a manner which deviated sharply from the social norm and that was not attributable to a personality disorder. Id. The second instance involves setting aside the bar to VA benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), when certain requirements are met by a discharge review board established under 10 U.S.C. § 1553 in issuing an upgraded honorable or general discharge on or after October 8, 1977. 38 C.F.R. § 3.12(g). If the same certain requirements are satisfied, the bar to VA benefits also is removed when an upgraded honorable or general discharge is issued under: (1) the President's directive of January 19, 1977, initiating further action with respect to Presidential Proclamation 4313 of September 16, 1974; or (2) the Department of Defense's Special Discharge Review Program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval, or air service under other than honorable conditions. 38 C.F.R. § 3.12(h). Facts and Analysis The appellant enlisted with the Marine Corps in July 1966 for a term of 4 years. The appellant completed 2 years and 8 days of this service. He was charged with an unauthorized absence from January 16, 1968, to January 26, 1968. The record reflects that on January 12, 1968, the appellant was apprehended by the California Highway Patrol on suspicion of auto theft. The January 1968 police report notes that he was also in violation of P.C. § 12025 for having a 25 caliber automatic weapon under the driver's seat of his vehicle. This weapon was registered to the appellant. The passenger of the car was noted to be AWOL from Camp Pendleton, California. The appellant was confined in California from January 12, 1968, to January 26, 1968. The appellant was on authorized leave until January 15, 1968. The appellant was delegated to military authority on January 28, 1968, with charges pending. The appellant was also charged with an unauthorized absence from March 4, 1968, to April 5, 1968. The Veteran was declared a deserter on April 3, 1968 and dropped from the rolls of his organization. He was subsequently convicted on April 3, 1968, of driving a vehicle without owner's permission (a misdemeanor) and sent to 30 days confinement suspended for a period of one year. The appellant was found guilty of both of the above charges and confined to hard labor for one month. He was also to forfeit $60.00. On May 28, 1968, the appellant was notified that he was being recommended for an undesirable discharge by reason of misconduct. Specifically, his conviction in a civil court of driving a vehicle without the owner's permission. According to a May 1968 psychiatric note, the appellant had completed 2 years of his 4 year enlistment. He was referred for processing for an administrative discharge. The appellant reported that he was AWOL from March 4, 1968, to April 5, 1968, due to problems at home and a general dissatisfaction with the medical attention he had been receiving for an eye disability. The Veteran denied any psychological problems at present or in the past, and the psychiatrist concluded that there was no evidence of anxiety, depression, psychosis or neurosis. Judgment and impulse control were also deemed to be intact. His motivation for completing his enlistment, however, was less than optimal. The examining psychiatrist concluded that the Veteran had no psychiatric abnormalities and he was considered fully fit for duty. The record also contains a copy of a page from a Unit Punishment Book. It was noted that the appellant was absent, without proper authority, from his organization at which he was required to be from June 25, 1968, through July 11, 1968. A trial by summary court martial was recommended. The appellant testified before an Administrative Discharge Board in July 1968 that he was with his Company during this time. The record contains an endorsement for retention in lieu of undesirable discharge dated August 28, 1968. It was noted that the appellant did not know that the car he was driving was stolen and that his passenger told him it belonged to him. It was also noted that the appellant was instructed by his attorney to plead guilty to a crime he did not commit. However, it was argued that the appellant could not be guilty of this crime because he did not have the intent needed to be found guilty under § 10851 of the California Vehicle Code. The appellant was subsequently AWOL from August 26, 1968, through December 14, 1968. A December 1968 memorandum from the Adjutant, Headquarters Regiment, indicates that the appellant's case was to be referred to another board at Camp Del Mar. However, the appellant went AWOL and never appeared before this Board. It was now requested that the appellant be given an undesirable discharge for the good of the service. The appellant also signed his name to a December 1968 request for undesirable discharge for the good of the service. The appellant admitted to having an unauthorized absence from August 26, 1968, through December 14, 1968. The appellant agreed that his discharge was further substantiated by his past record of similar offenses. In January 1969, the appellant's discharge from the Marine Corps as undesirable for the good of the service was directed by the Staff Judge Advocate. In a November 1969 VA Administrative Decision, it was determined that his period of service from July 19, 1966, to January 3, 1969, was under dishonorable conditions due to his misdemeanor charge and his periods of AWOL service. In March 1974, it was determined that the appellant's dishonorable discharge was a bar to Loan Guaranty benefits. The preponderance of the above evidence demonstrates that the appellant's character of discharge is a bar to VA benefits, except for those under Chapter 17 of 38 U.S.C. Service records demonstrate that he was recommended for an undesirable discharge due to misconduct (the misdemeanor involving the stolen car) and several periods of AWOL service. The appellant was found to have unauthorized absences from January 16, 1968, to January 26, 1968, from March 4, 1968, to April 5, 1968, from June 25, 1968, to July 11, 1968, and from August 26, 1968, to December 14, 1968. Therefore, the evidence reflects that the appellant was discharged for a pattern of persistent and willful misconduct. 38 C.F.R. § 3.12(d). Furthermore, the record demonstrates that this behavior was not minor. The appellant was punished for his offenses that resulted in him being incapable of performing his military duties. The Marine Corp deemed the appellant's behavior to be of sufficient severity that it would be of benefit to the Marine Corps if he were discharged. The Court has noted that offenses that interfere with one's military duties preclude their performance and are not minor. Stingham, 8 Vet. App. at 448; see also Cropper, 6 Vet. App. at 452-53. The Veteran also agreed to an undesirable discharge in lieu of a court martial in December 1968. The Veteran acknowledged that this was due to his unauthorized absence from August 26, 1956, to December 14, 1968, and due to his past record of similar offenses. As already noted, an AWOL has been found on numerous occasions to constitute willful and persistent misconduct. See Struck v. Brown, 9 Vet. App. 145 (1996); Stringham, 8 Vet. App. at 445; Winter, 4 Vet. App. at 29. Accordingly, the evidence of record supports a finding that the appellant was discharged in January 1969 for a pattern of persistent and willful misconduct. 38 C.F.R. § 3.12(d). As noted above, a discharge due to willful and persistent misconduct, to include those under other than honorable conditions (as in this case), will be considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). Discharge under dishonorable conditions is a bar to VA benefits (in this case, other than those under Chapter 17) unless it is found that the service member was insane at the time of the commission of the offense causing such discharge or release. See 38 U.S.C.A. § 5303(b) and 38 C.F.R. § 3.12(b). The appellant's representative did argue during the July 2012 hearing that he should be afforded a mental examination because he was not previously afforded a mental evaluation and his mental state at the time of these events impaired his ability to distinguish right from wrong. However, the record reflects that the appellant was afforded a mental evaluation in May 1968 and it was determined that there was no evidence of anxiety, depression, psychosis or neurosis. As such, the Board does not find this argument persuasive. Furthermore, as already noted, mental illness is not akin to insanity. Beck, 13 Vet. App. at 535. The assertion that the appellant endured stressful events during service is hardly evidence of insanity. The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). Presently, no medical evidence of the appellant being "insane," or in other words, unable to act in an intentional manner, has been submitted. See generally, Zang v. Brown, 8, Vet. App. 246, 254 (1995) (explaining that a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct). In fact, it was determined in May 1968 that he simply lacked motivation. The Board further notes that the appellant's character of discharge has not been upgraded at any time by his service department, by any discharge review board or by a Presidential directive, nor does the record reflect that the appellant has applied for an upgraded character of discharge. As such, the second exception regarding bar of VA benefits due to character of discharge is not applicable. See 38 C.F.R. § 3.12(g), (h). The appellant has also argued that his charge of riding in a stolen vehicle was not willful misconduct in that he was not aware that the car was stolen. The Board has no reason to question the credibility of this assertion, as the version of events described by the appellant during his July 2012 hearing are nearly identical to those he reported at the time of the arrest in January 1968. However, the evidence of record reveals that even after the appellant was AWOL while serving prison time subsequent to his arrest, he was again AWOL from March 4, 1968, to April 5, 1968, from June 25, 1968, to July 11, 1968, and from August 26, 1968, to December 14, 1968. In his May 1968 psychiatric evaluation, the appellant reported that he was AWOL from March 4, 1968, to April 5, 1968 for personal reasons and a general dissatisfaction with medical treatment he was receiving. While he denied being AWOL from June 25, 1968, to July 11, 1968, he freely admitted to being AWOL from August 26, 1968, to December 14, 1968, when he requested an undesirable discharge. There is nothing to suggest that these periods of unauthorized absence were somehow related to his arrest of January 1968. As such, the intent of the appellant when he was driving a stolen vehicle fails to demonstrate that he did not exhibit persistent and willful misconduct during active military service. Finally, the Board notes that the record contains numerous statements, both for and against a recharacterization of discharge. According to a statement from the appellant's family physician dated March 1968, his history had always been outstanding until he got into his current problem. The physician requested that leniency be afforded the appellant. A July 1968 statement from the Veteran's Staff Sergeant also notes that he was not a "dumb" Marine and that with proper guidance, he could be a good Marine. It was recommended that an undesirable discharge not be afforded to the appellant. However, these statements are of little probative value as they were made prior to the appellant's final period of AWOL service from August to December 1968. Regardless of these individuals opinion about the appellant, it does not change the fact that he exhibited a habit of persistent and willful misconduct - specifically, unauthorized absences. The record also contains a number of statements from other service members dated June 1968. According to a statement authored by an individual with the initials J.A.W., the appellant's ability as a Marine was somewhat less than most other soldiers. He seemed to be in a word of his own and his personality was not that of a normal Marine. His personal appearance was also described as leaning toward "hippie." It was noted that while the appellant could be a great Marine if he wanted to be, he was presently of no value to the Marine Corps. Another statement authored by an individual with the initials T.M. indicates that while the appellant did an average job in his duty assignment, he was always complaining about problems at home and asking for special liberties. This individual felt that for the appellant's own sake and the good of the Marine Corps, he should be discharged from service. Finally, a statement from an individual with the initials H.J.S. indicates that after having almost daily contact with the appellant, it was his opinion that he was lacking in motivation, totally untrustworthy and had no general value to the Marine Corps. Therefore, the in-service evidence regarding the character of the appellant is in conflict. Finally, a number of statements in support of the appellant's claim were received in July 2012. According to a friend of the appellant, he had known him for over nine years and he was extremely reliable and competent. Another statement from an individual purporting to have known the appellant for over 5 years reflects that he was an outstanding member of the community and that he was a person of outstanding character. A similar assertion is made by another individual purporting to have known the appellant for approximately 9 years. While the Board has considered these statements, they are not probative to the appellant's claim. The Board is in no way questioning the reliability, integrity or competency of the appellant at the present time. The only issue before the Board is whether he exhibited persistent and willful misconduct during his military service. As the appellant confirmed in December 1968, he was AWOL from August 1968 to December 1968 and he had a past record of similar offenses. As such, the appellant's history of going AWOL is not in dispute. Accordingly, the Board finds, by a preponderance of the evidence, that the appellant's misconduct during service was willful and persistent. Therefore, the Board concludes that his discharge, for purposes of entitlement to VA benefits, is considered to have been under dishonorable conditions and he is barred from VA benefits, except for health care and related benefits under chapter 17 of title 38 U.S.C. 38 U.S.C.A. § 5303 (West 1991); 38 C.F.R. §§ 3.12(d)(4), 3.360 (1999). ORDER The character of the appellant's discharge for his period of active duty from July 1966 to January 1969 is a bar to VA benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs