Citation Nr: 1317822 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-36 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the appellant's character of discharge is a bar to payment of Department of Veterans Affairs (VA) compensation benefits. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The appellant served on active duty from September 1980 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision by VA's Regional Office (RO) in Buffalo, New York. The RO initially denied entitlement to compensation benefits on the basis of his character of discharge in an October 1987 administrative decision. The appellant did not express timely disagreement, and the decision became final. In March 2006, the appellant petitioned to reopen his claim for compensation benefits, and therefore his character of discharge determination. In April 2006, the RO continued to deny the appellant's claims for compensation on the basis of his character of discharge. In March 2007, he testified at a RO hearing; a transcript of the hearing is of record. In February 2010, the Board reopened the claim but denied benefits on the basis of the character of discharge. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2010, the Court vacated the Board decision and remanded the claim for compliance with the instructions in a Joint Motion for Remand. In May and November 2011, the Board remanded the issue for further development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the Virtual VA file reflects no additional pertinent records. FINDINGS OF FACT 1. The appellant received a bad conduct discharge for serious, willful, and persistent misconduct. It did not consist of minor offenses offset by otherwise honest, faithful, and meritorious service. 2. The appellant was not insane at the time of the misconduct for which he received a bad conduct discharge. CONCLUSION OF LAW The appellant's bad conduct discharge is a bar to the payment of VA disability compensation. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12; 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a 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 or her representative, if any, 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). Proper notice from VA 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. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the RO received the appellant's claim for service connection for several disabilities as residuals of a head injury in service. The claim was for the same disabilities as in a January 1985 claim. The RO did not provide notice relevant to the criteria to substantiate the claims. In an April 2006 decision, the RO referred to an October 1987 RO administrative decision that determined that the character of the appellant's discharge was a bar to VA compensation benefits because the discharge was characterized as other than honorable as a result of willful and persistent misconduct. The 1987 decision cited the criteria of 38 C.F.R. § 3.12 (d)(4). In the April 2006 decision, the RO incorrectly denied VA compensation and treatment benefits citing 38 C.F.R. § 3.12 (c)(6) which is not applicable in this case. As adequate notice of the criteria for a bar to compensation by the character of discharge and for a determination of insanity was not provided, the Board will examine whether the error was prejudicial to the appellant and affected the essential fairness of the adjudication. In this case, the Board finds that the notice errors did not affect the essential fairness of the adjudication. In an October 2006 notice of disagreement, a March 2007 RO hearing, a November 2007 substantive appeal, and in written statements in December 2007, September 2009 and January 2010, the appellant noted or discussed the circumstances surrounding disciplinary actions in service and the criteria for a bar to compensation benefits under 38 C.F.R. § 3.12(d)(4) for willful and persistent misconduct. The appellant also discussed the effects of a traumatic head injury and their impact on his behavior and referred to the results of a medical examination performed after the injury that are associated with the claims file. The Board notes that the appellant has been represented by an attorney since September 2010, who filed a Joint Motion for Remand and submitted argument on his behalf. Thus, the Board concludes that the appellant has demonstrated actual knowledge of the applicable criteria and could reasonably be expected to understand what was necessary to substantiate his claim. Accordingly, the notice errors have not affected essential fairness of the adjudication. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. In May and November 2011, pursuant to the Joint Motion for Remand, the Board remanded the matter to obtain certified copies of the appellant's court-martial records. In July 2012, VA received copies of the record with an attached "Authentication of Record of Trial" signed by the military judge. In November 2012, the appellant's attorney indicated that they would accept the records even though they were not certified copies. As such, the VA has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Moreover, during the RO hearing, the Decision Review Officer fully explained the criteria for a bar to compensation benefits pursuant to 38 C.F.R. § 3.12(d)(4) and elicited information addressing the circumstances surrounding the appellant's misconduct. This action supplemented VA's compliance with the Veterans' Claims Assistance Act (VCAA) and 38 C.F.R. § 3.103 (2012). In his March 2013 Written Brief Presentation, the appellant's attorney argued that the Veteran was insane at the time that he committed the offenses that led to his discharge and that he should be afforded a VA medical examination. Under the VCAA, in a claim for disability compensation, VA must provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(1). As veteran status is an element of establishing entitlement to disability compensation, 38 U.S.C.A. §5103A(d) applies to this case. Recently, in Trafter v. Shinseki, the Court determined that 38 U.S.C.A. § 5103A(d) applied to compensation claims brought pursuant to 38 U.S.C.A. § 1151 and that § 5103(d)(1) must be read in conjunction with § 5103(d)(2). Trafter v. Shinseki, No. 10-3605, 2013 WL 1789774, at *7 (Vet. App. Apr. 29, 2013). Pursuant to 38 U.S.C.A. § 5103A(d)(2), an examination or opinion is necessary when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the context of § 1151 claims, the court held that the "may be associated" language required that the evidence of record indicate a causal connection between the current disability and the VA treatment before VA was required to provide a medical examination or opinion. Trafter, 2013 WL 1789774, at *9. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83; see also Trafter, 2013 WL 1789774, at *10. In this case, as will be discussed in detail below, the evidence does not indicate that the appellant was insane at the time he committed the offenses that led to his discharge. Rather, the evidence indicates that the appellant was fully aware of his actions and fully aware that his actions were illegal. The evidence does not indicate that he exhibited prolonged deviation from his normal method of behavior, interfered with the peace of society, or so departed from the accepted standards of the community as to lack adaptability to make further adjustment to the social customs of the community in which he resided. See 38 C.F.R. § 3.354. Under these circumstances, the Board finds that VA medical examination and opinion are not required, even under the low threshold outlined in McLendon and Trafter. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The issue is thus ready to be considered on the merits. Analysis The appellant served in the United States Army as a financial specialist. He contends that the disciplinary action leading to conviction by a special court martial and award of a bad conduct discharge was for a single 24 hour episode of minor offenses and not indicative of persistent misconduct. He contends that other disciplinary violations during his enlistment were minor offenses and that he was awarded a Good Conduct Medal for otherwise honest faithful and meritorious service. He contends that his behavior dramatically changed after sustaining serious head injuries in June 1982 and that he met the VA standard for insanity at the time of commission of the offenses. The appellant further contends that he enlisted for four years and reenlisted or extended his enlistment prior to the offenses adjudicated at special court martial. The Board is bound by the service department's determination for the reason of a veteran's separation from military service and is not at liberty to change such determination. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). A veteran's recourse in such a situation is with the service department, not with VA. Under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b). A discharge under other than honorable conditions is considered to be under dishonorable conditions if it is determined that it was issued because of an offense involving moral turpitude; this includes, generally, conviction of a felony. See 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(d)(3). A discharge under other than honorable conditions is also considered to be under dishonorable conditions if it is determined that the discharge was issued because of willful and misconduct. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(d)(4) . Such a discharge is a bar to the payment of VA benefits unless it is found that the service member was insane at the time of the commission of the offense causing such discharge or release, unless otherwise specified. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Discharge for a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance ... are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). For VA purposes, an insane person is 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. 38 C.F.R. § 3.354(a). Moreover, when a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. 38 C.F.R. § 3.354(b). In May 1980, the appellant enlisted in the Army Reserve under the provisions of a delayed entry program. In September 1980 he was discharged from the Army Reserve and immediately enlisted in the Regular Army for a period of four years. In July 1981, the appellant was awarded nonjudicial punishment for failure to report to his assigned place of duty and failure to follow a lawful order regarding shaving. At a subsequent time not evident in the record, the appellant was administratively barred from promotion and reenlistment. However, in April 1982, the bar was removed. The appellant's commanding officer noted that his attitude and performance had improved significantly during the most recent three months. Service treatment records showed that in June 1982, the appellant sustained a fractured skull in a personal assault. The injury was found to be in the line of duty and not due to his misconduct. Residuals of the injury included delayed onset facial palsy and episodes of dizziness and headache. In January 1983, the appellant was examined by a clinical neuropsychologist who noted that testing showed no cerebral dysfunction of clinical significance. The psychologist noted no memory, reasoning, problem solving, motor, or language deficits. The psychologist noted that some very mild functional inefficiencies were not of practical significance and that the appellant had made an excellent recovery from a significant head trauma. The psychologist also evaluated the results of a personality inventory test and noted the presence of significant problems in adjustment primarily characterological in nature. In September 1983, the appellant was awarded the Army Good Conduct Medal for service from September 1980 to September 1983. In March 1984, the appellant's commanding officer executed a bar to reenlistment for failure to properly manage his personal affairs by issuing dishonored checks to military payees on two occasions in December 1983. The commanding officer also noted that the appellant had received counseling for reporting to work late and for frequently leaving his desk to socialize. There is no evidence that the bar was rescinded. In March 1984, the appellant sought treatment at a military clinic after being hit on the back of the head with a beer bottle and losing consciousness for five to ten minutes. The examiner noted that the appellant declined to provide additional details. He was placed on light duty and observation for 24 hours. On follow-up, he reported experiencing a headache. The examiner noted no neurological or motor deficits and diagnosed a probable mild concussion. There was no further treatment. In May 1984, the appellant received nonjudicial punishment for absence from his place of duty for a period of two and one-half hours. A June 1984 service treatment record reflects that the appellant complained of nervousness and difficulties sleeping. It was noted that he was having some adjustment problems related to disciplinary problems. In August 1984, prior to the expiration of his four year enlistment, the appellant was arraigned, tried, and found guilty at a special court martial for violations of two articles of the Uniform Code of Military Justice. There were two specifications of distribution of marijuana, two specifications of possession of marijuana, and one specification each of breaking restriction, use of marijuana, and possession of an object intended for smoking marijuana. Sentence was adjudged in October 1984 and included confinement at hard labor for two months, forfeiture of pay, reduction to the lowest pay grade, and a bad conduct discharge. A December 1984 court martial order was typed indicating that trial occurred before a general court martial. However, several copies showed pen and ink changes to read that the forum was a special court martial. The remainder of the record showed that the appellant appeared before only one special court martial. The appellant completed confinement in December 1984 and was sent to his home of record on excess leave without pay pending appellate review by the Army Court of Military Review (Court of Review). The appellant noted in writing that he declined a discharge physical examination. A November 1984 service treatment record notes the appellant's complaints of headaches with depression and difficulty sleeping. In January 1985, while still on active duty, the appellant submitted a claim of entitlement for service connection for residuals of the head injury, which included a skull fracture of the right cheekbone, eardrum, headaches, and a loss of feeling in the right side of his face. He did not complain of any psychiatric problems. He reported that he was discharged in December 1984 but did not have copies of his military records. The appellant was provided a comprehensive VA medical examination for the claimed residual disorders including headaches, dizziness, hearing loss, tinnitus, blurred vision, and partial facial paralysis. Examiners noted mild peripheral nerve damage and a scar on the right side of the face. The examiner found no justification for additional neurological examination. A hearing examiner diagnosed tinnitus and mild conductive hearing loss in the right ear. A vision examiner noted a possible slight pigment disturbance in the right eye and minor refractive corrections that did not warrant eyeglasses. The appellant did not claim or report and the examiners did not note any symptoms of a psychiatric disorder. In October 1985, a physician noted a review of the service treatment records and found the appellant satisfactory for execution of the bad conduct discharge. Also in October 1985, the Court of Review affirmed the court martial order, and the bad conduct discharge was executed. There is no evidence that the appellant reenlisted or voluntarily extended his enlistment. The appellant did receive creditable service for the period of excess leave awaiting court martial review. The Record of Discharge or Release from Active Duty (DD-214) showed the character of discharge as under other than honorable conditions and the reason for separation as for the good of the service - in lieu of court-martial. In December 1986, the appellant petitioned the Army Discharge Review Board (ADRB) for a recharacterization of his discharge to honorable. In the petition, the appellant contended that the discharge was inequitable because his capacity to serve was impaired by the residuals of a significant head injury and significant problems of adjustment, citing the comments of the military neuropsychologist in December 1983. In a February 1987 decision, the ADRB confirmed that the appellant received a bad conduct discharge as a result of a special court martial order. The ADRB also confirmed that the appellant served in a single four year enlistment with additional creditable service time while awaiting review of the discharge order by the Court of Review. The ADRB of five senior Army officers rejected the exculpatory medical issue presented by the appellant, noting that he declined a physical examination in December 1984 and that a medical review of the record in October 1985 cleared the appellant for separation with a bad conduct discharge. The ADRB found that the characterization of the discharge was equitable and denied the appeal. In June 2006, the appellant petitioned the Army Board of Correction of Military Records (ABCMR) for an upgrade of the character of his discharge from bad conduct to honorable. The appellant contended that the offenses resulting in the court martial and bad conduct discharge were related to one episode of smoking marijuana and that he was absent without leave on one occasion for only two hours. He contended that both events were minor infractions and not persistent. The events also occurred after his head injury. The appellant called attention to the neuropsychological examination in January 1983 in which the examiner noted significant adjustment problems of a primarily characteristic nature. The appellant noted that he was continually treated for the disability until separation. He noted the award of a Good Conduct Medal for service prior to his head injury and contended that his subsequent minor infractions were a product of the injury. The ABCMR noted that a petition for correction must be filed within a three year statute of limitations. However, a review is permitted if it is in the interest of justice to do so. Further, the ABCMR is not permitted to disturb the finality of a court martial conviction but may only change the character of discharge if clemency is warranted. The ABCMR noted a review of the personnel and treatment records and discussed the events as described above. The ABCMR concluded that the appellant did not have a disabling medical or physical disorder at the time of discharge and was cleared for separation by competent medical authority. The ABCMR also concluded that the appellant's trial by court martial was warranted by the gravity of the offenses and appropriately characterized the misconduct. Further, the ABCMR concluded that the appellant's record of service was undistinguished and that given the severity of the offenses, clemency was not warranted. The ABCMR denied a correction of the records. In an October 2006 notice of disagreement, a November 2007 substantive appeal, and in statements in December 2007 and September 2009, the appellant contended that the bar to payment of VA compensation was not warranted because his offenses were minor, substantially related to one episode, and influenced by residuals of a head injury. The appellant provided additional lay evidence at a March 2007 RO hearing. The appellant stated that his offenses for which he received nonjudicial punishment were minor and that he had received a Good Conduct Medal. He further stated that the court martial charges involving marijuana possession and distribution were for purchasing substances for someone else, all in the same 24-hour period. He stated that he had reenlisted about three months prior to the charges but later stated that he intended to reenlist but instead decided to extend his current enlistment to take advantage of a choice of assignment if he reenlisted at the end of his overseas tour of duty. He stated that he continued to experience migraine headaches, a detached retina, and required dental work as a result of his head trauma and that he was barred from VA medical treatment. The appellant also called attention to the psychologists report in 1983 that he had adjustment problems. However, he did not discuss any current abnormal behavioral symptoms. The Board concludes that a bar to the payment of VA disability compensation benefits based on a bad conduct discharge is warranted. Generally, VA is bound by a finding of the service department of an honorable discharge but must evaluate an other than honorable discharge using the criteria of 38 C.F.R. § 3.12. The Board acknowledges the appellant's statements and testimony regarding the circumstances of his nonjudicial and court martial punishment and his injury. The appellant is competent to report on events that he experienced and on his symptoms following the 1982 head trauma. However, the Board places less probative weight on the appellant's statements as they are not uniformly consistent with the record. The appellant applied for VA benefits in December 1984 indicating that he had been discharged when he was still on active duty awaiting court martial review of an award of a bad conduct discharge. The appellant also stated that he had completed a four year enlistment with honorable service prior to the court martial charges and had voluntarily extended his enlistment. The Board concludes that the offenses for which the appellant received nonjudicial punishment in 1981 were minor. Although he was later barred from promotion and reenlistment for unspecified reasons, his commanding officer in April 1982 recognized his improved performance and rescinded the bar. He was awarded a Good Conduct Medal for service up to September 1983 despite the earlier minor offenses. However, starting in December 1983 and continuing through August 1984, the appellant was counseled for inefficient work habits, barred from reenlistment for issuing dishonored checks, and again received nonjudicial punishment for being absent without authorization. Finally, he was tried and convicted by a special court martial for serious offenses including two specifications of distribution of marijuana and for breaking restriction. As noted above, pursuant to a Joint Motion for Remand, the Board remanded the matter to obtain the record of the court-martial proceedings. These records were obtained and are unfavorable to the appellant. Despite his contentions that all the offenses involved only one episode of smoking marijuana, the court-martial proceedings reflect that the appellant was engaged in the persistent use and distribution of marijuana. The specific charges were brought based on three separate episodes over the course of two different days. The first set charges involved the use, possession, and distribution of marijuana on May 2, 1984. According to the appellant's testimony, he saw an individual being chased by the police throw something to the side of the road, which turned out to be hashish (Court-Martial Transcript (Tr.) at pg. 42). He said he smoked with a friend who had first introduced him to hashish when he arrived in Germany (Tr., pg. 43). The friend asked him if he could "square him away" along with another friend who turned out to be a Criminal Investigative Command (CID) agent (Tr., pgs. 43-44). Later that day, he sold marijuana to the friend/CID agent. Id. The appellant testified that he trusted his friend because he would sometimes give him drugs for free or he would buy from him (Tr., pg. 45). The second series of offenses occurred on June 15, 1984 while the appellant was under restriction. The appellant broke restriction when he went to a friend's house in Frankfort to obtain hashish (Tr., pg. 53). He returned to base and sold some of it to a CID informant (Tr., pgs. 53-54). He said he did not trust the informant at first, but that the informant had sold him some drugs in the past (Tr., pg. 54). He also said that he had sold the informant drugs days earlier (Tr., pg. 55). After selling the informant hash, the appellant picked up another friend and they returned to Frankfort to obtain more drugs (Tr., pg. 56). After making the purchase, they were apprehended (Tr., pg. 57). In discussing the informant, the appellant stated that the informant had previously shown him where he could obtain marijuana and had sold him drugs (Tr., pg. 65). The appellant pled guilty on all charges (Tr., pg. 25). He stated that he understood the maximum sentence allowed for the offenses, including a bad conduct discharge (Tr., pg. 26). He testified that he knew he was using and distributing marijuana/hashish and that he knew it was illegal (Tr., pgs. 44, 54). Based on the foregoing, the Board concludes that the conduct was serious, willful, and represented a pattern of misconduct during 1984 leading to conviction on multiple specifications of serious offenses at special court martial in August 1984. The use, possession, and distribution of marijuana are not simply minor offenses, but interfere with military duty and are offenses in which dishonorable discharge is a contemplated punishment. Furthermore, the record shows a pattern of behaviors that may be characterized as willful - intentional or deliberate - in that there is no evidence of coercion or mental incapacity to suggest otherwise. The appellant knew what he was doing and knew that it was illegal. The military judge explained the defense of entrapment and the appellant stated that he did not believe he was entrapped (Tr., pgs. 63-66). The Board notes that in awarding punishment including a bad conduct discharge, the special court martial judge and the Court of Review considered mitigating evidence and the appellant's entire performance record. The Board places significant probative weight on the analysis and conclusions of the military court, ARDB, and ABCMR regarding the seriousness of the court martial offenses, pattern of conduct throughout his single enlistment, and impact on his performance as a soldier. The Board considers the Army military and civilian board members who performed the reviews to be competent, knowledgeable, and objective in their assessment of military performance. The courts and review boards did not find mitigating medical or behavioral issues or an offsetting record of distinguished performance. The Board concludes that the residuals of a 1982 head injury are not a disease that meets the VA criteria of insanity at the time of the commission of minor and serious offenses from December 1983 to August 1984. Notably, the head injury occurred after some minor offenses in 1981. Service treatment records showed that the residuals of the head injury included physical disorders involving facial nerves, hearing, and very minor vision deficits. Regarding behavioral symptoms, the neuropsychologist noted only personality and adjustment difficulties regarding the appellant's character, not a mental health disorder caused by injury. In fact, the appellant's performance improved and he was recognized for good conduct through September 1983. There is no evidence of a diagnosis of any form of mental health disease. Although symptoms of nervousness, depression, and difficulty sleeping were noted soon after he was charged with the offenses contained in the court-martial, there was no evidence of a psychiatric disorder or any symptoms that indicate he was insane at the time. The appellant declined a military medical examination when his confinement was completed and did not report any behavioral symptoms in a 1985 VA examination. A military medical review officer noted no disorders to prevent the execution of a bad conduct discharge in October 1985. Therefore, the Board concludes that the appellant did not meet the criteria for insanity at the time he committed the minor and serious offenses in 1984 because he did not have a mental health disease and because the offenses constituted a pattern of increasingly serious and willful violations of the Uniform Code of Military Justice and were not a deviation from his normal method of behavior. The issue of a denial of VA health treatment benefits, raised by the appellant at his RO hearing, is not before the Board on appeal. The Board intimates no opinion in that regard. However, the Board notes that the RO advised the appellant in the original October 1987 denial of compensation benefits that he should apply to the nearest VA health care facility if the need for medical treatment arises for a service-related condition. The weight of the credible and probative evidence demonstrates that the appellant's bad conduct discharge is the result of willful and persistent misconduct and remains a bar to payment of VA disability compensation. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appellant's bad conduct discharge is a bar to payment of VA disability compensation. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs