Citation Nr: 1316909 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-32 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to show that the appellant's discharge from service under conditions other than honorable is not a bar to VA benefits. 2. Whether the appellant's discharge from service under other than honorable conditions is a bar to VA benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The appellant had active service from July 1980 to May 1983. The appellant was discharged from service under conditions other than honorable. This matter came before the Board of Veterans' Appeals (Board) on appeal from February 2009 and September 2009 administrative decisions by the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). In October 2012, the appellant testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that the appellant has asserted that various additional claims for service connection and treatment warrant adjudication. However, the Board does not have jurisdiction of any of these claims, and no referral appears warranted. FINDINGS OF FACT 1. In December 2004, the RO declined to reopen the appellant's previously denied claim regarding the character of his service. 2. At the time of the RO's December 2004 decision, the appellant's DD Form 214, Report of Discharge showed that his character of service was under conditions other than honorable. 3. Evidence added to the record since the December 2004 decision includes the appellant's October 2009 allegation that he received an honorable release from boot camp. 4. The appellant did not receive an honorable discharge from boot camp. 5. The appellant's infractions in service include wrongful possession of marijuana and wrongful possession of an open container of alcohol in a privately owned vehicle on or about April 3, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 8, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 9, 1981; failure to go at the time prescribed to his appointed place of duty on or about August 31, 1981; failure to go at the time prescribed to his appointed place of duty on or about September 1, 1981; wrongfully operating his privately owned vehicle aboard a Marine Corps Base (MCB) while his driving privileges were revoked on or about July 16, 1981; wrongfully operating his privately owned vehicle aboard a MCB while his driving privileges were revoked on or about August 18, 1981; operating a vehicle while drunk on or about May 23, 1981; and a civil court conviction for fighting in public on March 16, 1981. These actions constitute willful and persistent misconduct. 6. The appellant's military service was dishonorable. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the December 2004 decision, and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). 2. The appellant's character of discharge is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims 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). As the Board is reopening the claim on the basis of new and material evidence, the Board need not determine whether there has been compliance with these notice and duty to assist provisions insofar as apprising the appellant of the specific reasons for the prior denial of this claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). As to the merits of the reopened claim, an extended discussion of the VCAA is unnecessary. Because this case involves the legal question regarding whether the appellant has legal standing to apply for VA benefits, the VCAA is inapplicable to this appeal. See Wensch v. Principi, 15 Vet. App. 362 (2001); see also Smith v. Gober, 14 Vet. App. 227, 231-232 (2000) (holding that the VCAA was inapplicable to a matter of pure statutory interpretation). Further, the appellant was informed in letters dated February 2009 and September 2009 of the fact that his character of discharge could serve as a bar to his receiving VA benefits. The appellant has responded to this letter, and has had a full and fair opportunity to present arguments in support of his claim. II. New and Material Evidence The appellant's DD 214 Form shows that his character of service was under conditions other than honorable. The appellant's infractions in service include wrongful possession of marijuana and wrongful possession of an open container of alcohol in a privately owned vehicle on or about April 3, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 8, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 9, 1981; failure to go at the time prescribed to his appointed place of duty on or about August 31, 1981; failure to go at the time prescribed to his appointed place of duty on or about September 1, 1981; wrongfully operating his privately owned vehicle aboard a Marine Corps Base (MCB) while his driving privileges were revoked on or about July 16, 1981; wrongfully operating his privately owned vehicle aboard a MCB while his driving privileges were revoked on or about August 18, 1981; operating a vehicle while drunk on or about May 23, 1981; and a civil court conviction for fighting in public on March 16, 1981. On May 11, 1983, the appellant requested separation from service in lieu of trial by court martial. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. In the case of Shade v. Shinseki, 24 Vet. App. 110, 116 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." This phrase, "raises a reasonable possibility of substantiating the claim," does not create a third element for new and material evidence but was intended, instead, to provide guidance to VA adjudicators in determining whether submitted evidence meets the new and material requirements. That is, the Board cannot require the evidence to be new, material, and raise a reasonable possibility of substantiating the claim. In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. In the prior December 2004 final decision, the claim was denied because the appellant's discharge from service on May 20, 1983 was found to have been issued under conditions which constitute a bar to entitlement to all gratuitous VA benefits. Since that December 2004 decision, however, the appellant asserted in an October 2009 statement that "Boot camp is the Separate Period of Service I was Released from Honorably." The appellant testified at his October 2012 Videoconference hearing that his time in basic training constitutes its own period of active duty. See transcript, pp. 9, 16-17. He has made similar arguments throughout the pendency of his claim. Although the appellant did not submit any official discharge form showing that he was released from service following boot camp, the credibility of this additional evidence is presumed-albeit for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). As the character of the appellant's service is fundamental to the outcome of the underlying claim, and since at this state of the proceedings the additional evidence is deemed credible, this evidence constitutes new and material evidence sufficient to reopen the claim. III. Character of Discharge In order to qualify for VA benefits, an appellant must demonstrate that he had the status of a veteran. Struck v. Brown, 9 Vet. App. 145, 152 (1996). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). A person seeking to establish veteran status must do so by a preponderance of the evidence; the benefit-of-the doubt doctrine is not applicable to that determination status. Struck, 9 Vet. App. at 152; see also Laruan v. West, 11 Vet. App. 80 (1998) (overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000)). 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). The statutory bars under 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c) state that benefits are not payable where the former service member was 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 former service member requested his or her release; or (6) By reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether there are compelling circumstances to warrant the prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c). The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for any 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. This includes, generally, conviction of a felony. (4) Willful and persistent misconduct. (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. A discharge or release from service under either the statutory or regulatory bars is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). An insane person is one who, due to a disease (1) 'exhibits ... a more or less prolonged deviation from his normal method of behavior'; (2) 'interferes with the peace of society'; or (3) 'has so departed ... 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. Struck, 9 Vet. App. at 152 (quoting Zang v. Brown, 8 Vet. App. 246, 253 (1995)). The available evidence, including his guilty convictions, shows that the appellant was not insane at the time of committing the offenses in this case. Review of the appellant's service records show that he served from July 28, 1980 to May 20, 1983. The infractions for which he was found guilty in service include wrongful possession of marijuana and wrongful possession of an open container of alcohol in a privately owned vehicle on or about April 3, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 8, 1981; failure to go at the time prescribed to his appointed place of duty on or about July 9, 1981; failure to go at the time prescribed to his appointed place of duty on or about August 31, 1981; failure to go at the time prescribed to his appointed place of duty on or about September 1, 1981; wrongfully operating his privately owned vehicle aboard a Marine Corps Base (MCB) while his driving privileges were revoked on or about July 16, 1981; wrongfully operating his privately owned vehicle aboard a MCB while his driving privileges were revoked on or about August 18, 1981; and operating a vehicle while drunk on or about May 23, 1981. He also had a civil court conviction for fighting in public on March 16, 1981. On May 11, 1983, the appellant's request for separation from service in lieu of trial by court-martial was approved. He was discharged under conditions other than honorable. As discussed above, pursuant to VA regulation, a discharge is considered to have been issued under dishonorable conditions if a person commits willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). This applies here, as the RO previously found in its November 1988 determination, based on the numerous violations of which the appellant was found guilty in service. Significantly, the Court has consistently stated that it is the appellant's burden of proof to show, by a preponderance of the evidence, that he or she is entitled to veteran status. Struck, 9 Vet. App. at 152; see also Laruan, 11 Vet. App. 80 (1998), and Aguilar v. Derwinski, 2 Vet. App. 21 (1991). The appellant has not met this burden. The Board has considered the appellant's contentions, and finds that they lack merit. First, the appellant has asserted that the charges of which he was found guilty in service were the result of prejudice. See October 2012 transcript, pp. 3-4, 7. The Board finds that the evidence in the appellant's service personnel records is inconsistent with the appellant's allegation, and it therefore lacks merit. Second, the appellant has asserted that he was threatened with court martial if he did not accept discharge. Id., pp. 6-8. The Board finds that while he was given, and accepted, the option of discharge to avoid a court martial, his service personnel records and the other evidence of record does not suggest any coercive or wrongful threats. Third, the appellant has asserted that basic training is its own period of active duty. Id., pp. 9, 16-17. The evidence does not show that the appellant was separated from service, honorably or otherwise, at the conclusion of basic training or boot camp. His unsupported assertion to that effect carries no weight. As such, his attempt to bifurcate his service so as to avoid the consequences of his infractions therein is likewise unavailing. In conclusion, the Board finds that because the appellant engaged in willful and persistent misconduct, the appellant's discharge is considered dishonorable, and this character of discharge is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. ORDER The claim is reopened, and, to this extent only, the appeal is granted. The character of the appellant's service is a bar to VA benefits, and the appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs