Citation Nr: 1303768 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-22 610A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether the character of the appellant's discharge is a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The appellant had military service from June 1967 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 administrative decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Due to the location of the appellant's residence, jurisdiction of his appeal is with the Regional Office (RO) in Reno, Nevada. In October 2009, the appellant and his brother testified at a hearing before a decision review officer. In March 2012, the appellant also testified at a hearing before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the claims file. The Board observes that the appellant's representative who was appointed in June 2011 was not present at the March 2012 hearing. The Board afforded the representative the opportunity to provide an informal hearing presentation in January 2013, which was declined as the appellant already presented testimony before the undersigned. FINDINGS OF FACT 1. The appellant entered service in June 1967 and was discharged in June 1968 under other than honorable conditions ("undesirable discharge"). 2. The actions that led to the appellant's discharge from service, including multiple periods of absence without official leave (AWOL), constituted willful and persistent misconduct and the appellant was not insane at the time of the offenses. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. 38 U.S.C.A. §§ 5103, 5103A, 5303 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.12, 3.159, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the legal conclusion turns on the interpretation of the bars to VA benefits as set forth in the laws and regulations, the United States Court of Appeals for Veterans Claims (Court) has held that veteran status is one of the five elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Court has addressed the adequacy of VCAA notice in cases concerning the character of discharge. See Dennis v. Nicholson, 21 Vet. App. 18 (2007). The appellant was notified in a letter dated in June 2009 that his service had been characterized as less than honorable by the service department. The appellant was requested to provide information regarding the events that led to his discharge, to include any supporting statements or evidence, as well as a statement indicating why he believed his service was honorable. He was also informed of his right to have a personal hearing. The letter also enclosed a copy of the pertinent regulation. Regarding VA's duty to assist, VA obtained the appellant's pertinent personnel records. In this regard, the Board observes that a DD Form 258A, Undesirable Discharge, is not of record. However, the appellant's remaining personnel records documenting the actions that led to his discharge are of record. Therefore, the Board finds that a remand to obtain DD Form 258A is not required, as such remand would result in no additional benefit to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The Board finds that the appellant was afforded a meaningful opportunity to participate in the development of his claim. He was provided the opportunity to provide details concerning the circumstances that led to his discharge. In addition, the appellant was afforded hearings before a decision review officer in October 2009 and before the undersigned in March 2012. Hence, the Board finds that the appellant has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. VA has no duty to inform or assist that was unmet. The appellant has not identified any additional pertinent records that have not been obtained and associated with the claims folder. II. Analysis The appellant maintains that the character of his discharge should not be a bar to the receipt of VA benefits. He contends that he was harassed in service, which drove him to several unauthorized absences. See, e.g., October 2009 Hearing Transcript (H.T.) at 3. Under VA laws and regulations and for benefits purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a) (2012). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c); and regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (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 former service member requested his or her 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 (the regulation provides certain exceptions to this condition). A person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (1) Length and character of service exclusive of the period of prolonged AWOL (Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful, and meritorious and of benefit to the Nation.); (2) Reasons for going AWOL (Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. Consideration should be given to how the situation appeared to the person himself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began.); and (3) a valid legal defense exists for the absence which would have precluded a conviction for AWOL. (Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice.) 38 C.F.R. § 3.12(c)(6)(i-iii). As to the regulatory bars, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions: (1) Acceptance of an undesirable discharge to escape trial by general court-martial; (2) Mutiny or spying; (3) An offense involving moral turpitude (this includes, generally, conviction of a felony); (4) Willful and persistent misconduct (this includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious.); (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12(c) and (d) is a statutory or regulatory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days. The Court has described the definition of insanity under 38 C.F.R. § 3.354(a) as "expansive." Stringham v. Principi, 3 Vet. App. 560, 561 (1992). An insane person is defined by VA regulation as one who, 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; or who interferes with the peace of society; or who 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. See 38 C.F.R. § 3.354(a) (2012). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant's other than honorable discharge should not act as a bar to the grant of veterans' benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). The Board notes that the burden is on the claimant to submit competent medical evidence that he was insane at the time of his offenses. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The Board has conducted a careful review of the record, and concludes that the character of the appellant's discharge from service constitutes a bar to VA benefits. The pertinent evidence establishes that he received an undesirable discharge and the Board finds that the appellant's actions in service constitute willful and persistent misconduct. In this case, the appellant's personnel records show that he went AWOL on three occasions during the one year he was in service. He was AWOL for three days in September 1967, for 25 days in October 1967 and for 46 days from January 1968 February 1968. He was placed in pretrial confinement beginning in February 1968. An April 1968 report of a special court martial shows that the appellant pled guilty to the charge of being AWOL from January 1968 to February 1968 and was sentenced to six months at hard labor. The appellant was placed in confinement from March 1968 to May 1968. A May 1968 request for elimination shows that the appellant was recommended for elimination from service due to unfitness and that he should be furnished an undesirable discharge certificate. The appellant was noted to be basically a totally unwilling soldier who could not be of any use to the Army. Despite his claims of "nervousness," there seemed to be no valid psychological complaint behind his repeated AWOLs and unwillingness to accept training. Whenever the situation became difficult or unpleasant, the appellant simply left. Company discipline and confinement apparently had not altered his attitude. Separation seemed to be more expedient than either continued confinement or return to duty with recurrent offenses almost inevitable. The appellant signed off on the contemplated action to accomplish his separation for unfitness in May 1968. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, did not submit statements on his own behalf and waived the right to representation by counsel. The appellant indicated that he understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran. According to the appellant's DD 214, he did not achieve any military occupational specialty (MOS) beyond that of a trainee throughout his service. The pertinent evidence of record establishes that the appellant's service was terminated by a discharge under other than honorable conditions and that he in fact received an undesirable discharge. As the appellant went AWOL on three separate occasions and was noted to be a "totally unwilling soldier," the Board concludes that the appellant engaged in willful and persistent misconduct in service, which constitutes a bar to benefits. Here, the appellant entered service in June 1967 and went AWOL for the first time in September 1967, just a few months after entering service. He did not even obtain an MOS beyond that of a trainee in service. Therefore, considering how quickly the appellant went AWOL, in connection with the personnel records showing that he was a "totally unwilling soldier," the Board also concludes that the appellant's service aside from his multiple AWOLs was not otherwise honest, faithful, and meritorious. The Board acknowledges the appellant's contention that harassment in service caused him to go AWOL. To the extent that the appellant's assertions indicate that a defense to his behavior in service was insanity, the burden of establishing insanity has not been met. As noted above, a claimant bears the burden of establishing insanity by submitting competent medical evidence that he was insane at the time of his offenses. See Stringham at 449. No medical evidence has been presented to establish that the appellant was insane at the time of his misconduct in service. No medical professional has opined that at the time of the appellant's misconduct in service, he exhibited due to disease, a more or less prolonged deviation from his normal method of behavior; interfered with the peace of society; or had so departed from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided. In fact, the May 1968 records indicate that despite his claims of "nervousness," there seemed to be no valid psychological complaint behind his repeated AWOLs and unwillingness to accept training. Thus, the totality of the evidence simply fails to establish that the appellant was insane at the time of his misconduct. In finding that the appellant was not insane in service, the Board acknowledges his testimony about being harassed in service as well as his brother's testimony that he was psychologically impaired prior to service. See, e..g., October 2009 H.T. at 9, 13. However, there is no evidence of record showing that either of them the specialized medical education, training, and experience necessary to render a competent medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the insanity defense requires competent medical evidence establishing insanity, the appellant's and his brother's assertions lack probative value. A discussion as to whether the appellant had "compelling circumstances" to excuse his periods of unauthorized absences is not in order because the periods totaled less than the 180 days contemplated in the bar from receipt of VA benefits for a prolonged AWOL period. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). Moreover, even if the "compelling circumstances" provision was considered to be applicable, the Board finds the appellant's described in-service harassment due to a pre-service incident in which he assaulted a police officer does not excuse his in-service offenses of repeated episodes of being absent without leave. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The appellant's reported in-service harassment over previous criminal charges is not comparable to these situations. There is also no indication that he was undergoing hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability. In sum, for all the foregoing reasons, the Board finds that the appellant's discharge from military service is considered to have been issued under dishonorable conditions; the appeal must be denied. Because the discharge was not under conditions other than dishonorable, the discharge acts as a bar to the receipt of VA pension and compensation benefits. An exception is not warranted because the appellant was not insane at the time. 38 C.F.R. § 3.12. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The character of the appellant's discharge from service constitutes a bar to VA benefits. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs