Citation Nr: 1318963	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  13-07 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

Whether the appellant is entitled to Dependency and Indemnity Compensation (DIC) benefits, death pension benefits, and/or accrued benefits as the child of a former service member.


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel



INTRODUCTION

The appellant seeks entitlement to VA benefits as the child of a former service member who served from March 1959 to June 1962, and who received a discharge under conditions other than honorable.  The record reflects that the service member died in October, 1998, and the appellant is the service member's child. 

This matter comes to the Board of Veterans' Appeals, hereinafter the Board, from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that denied the appellant's claim because the service member's discharge was under conditions other than honorable.  The RO determined that the service member, and subsequently the appellant, were barred from VA benefits, thus precluding eligibility for VA benefits. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The appellant's father entered onto active military service in March 1959 and was subsequently discharged from service under other than honorable conditions in June 1962.  The service member was awarded an other than honorable discharge during a period of confinement, recommended for an undesirable discharge because he was considered "unfit for service due to his record of misconduct." 

2.  The record does not show that the service member was insane during service nor does the record demonstrate compelling circumstances to warrant the former service member's behavior.


CONCLUSION OF LAW

The character of the former service member's discharge from service is considered a bar to the receipt of VA benefits for a surviving child.  38 U.S.C.A. §§ 101(2), 5303 (West 2002 & Supp. 2012); 38 C.F.R. § 3.12 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The essential facts are not in dispute; the case rests on the interpretation and application of the relevant law.  The Veterans Claims Assistance Act of 2000 (VCAA) does not affect matters on appeal when the issue is limited to statutory interpretation.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed).  In addition, there is no indication that any additional notice or development would aid the appellant in substantiating his claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012).  Under these circumstances, there is no further duty to notify or assist the appellant in the development of his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). 

The Board has thoroughly reviewed all the evidence in the appellant's claim folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

II. Legal Criteria - Laws and Regulations

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. 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) (West 2002); 38 C.F.R. § 3.12(a) (2012).  If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable.  A discharge under honorable conditions is binding on VA as to character of discharge.  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12(a) (2012). 

Except as provided in 38 C.F.R. § 3.13(c) (2012), 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. See 38 C.F.R. § 3.13(b). 

A discharge or release from service under one of the conditions specified in this section is a 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 specifically provided (38 U.S.C. 5303(b)).  38 C.F.R. § 3.12(b) (2012).  There are two types of character of discharge bars to establishing eligibility 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).  A regulatory bar is applicable in this case, as discussed below. 

Under 38 C.F.R. § 3.12(d) (2012), a discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions: 

(1) Acceptance of an undesirable discharge to escape trial by general courts-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. 


An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority 10 U.S.C. 1552 is final and conclusive on the Department of Veterans Affairs.  The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section.  38 C.F.R. § 3.12(e) (2012). 

III. Analysis

The evidence on file shows that the former service member committed a series of offenses during service that establish a record of misconduct that evidenced a willful disregard for the requirements of military discipline and the needs of the service.  He was absent without leave (AWOL) on two occasions, from May 17, 1961, through June 6, 1961, and from October 16, 1961, to February 21, 1962.  Pursuant to the Uniform Code of Military Justice (UCMJ), Article 86 does not view AWOL in excess of 30 days as a minor offense, but rather as a severe offence punishable by confinement of up to one year and the issuance of either a bad conduct or dishonorable discharge.  See UCMJ, 10 U.S.C. § 801 et seq., Manual for Court-Martial, United States, 1988; Winter v. Principi, 4 Vet. App. 29 (1993).  

On two occasions, he received a court martial and was confined, fined, and reduced in rank.  At no time during or subsequent to service did the former service member argue that he did not in fact commit the offenses for which he was found responsible during service, and which served as the basis for his separation with the Under Conditions Other than Honorable discharge.  The Board finds that the deceased service member's offenses during active duty were not minor and constitute willful and persistent misconduct.

Further, following a mental status examination in May 1962, he was found to be cooperative, he spoke clearly and coherently, and he showed no sign of any thought disorder.  Mood and affect were appropriate to ideation.  His sensorium was clear and he was oriented in all three spheres.  Though insight and judgment were poor, no psychiatric diagnosis was rendered at that time.

A discharge or release from service on this basis is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offenses, causing such discharge in accordance with 38 C.F.R. § 3.12(b) (2012).  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 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).  VAOPGCPREC 20-97 (May 22, 1997), 62 Fed. Reg. 37955 (1997).  Here, the evidence on file does not show that the former service member was insane, as defined by VA regulation, at any time during service or, more specifically, during the times that he committed the multiple offenses for which he was separated.  

While the former service member argued matters in extenuation and mitigation of these offenses, prior VA decisions did not alter his character of discharge.  According to the record, the appellant's father originally contended that caring for a sick friend, as well as caring for his sick mother, resulted in his periods of AWOL.  However, there is no evidence in the file to corroborate these statements.  Although the appellant argued in October 2012 that his father did not receive a Court Martial, personnel records in the claims file point to the contrary.

The Board finds that the evidence shows that the former service member was separated from service as a direct result of his willful and persistent misconduct as evidenced by the service personnel records on file, as well as administrative decisions of record.  Some, but not all, of the offenses committed by the former service member during service were punishable at court-martial by imprisonment and the issuance of a punitive discharge.  Thus, the former service member was not discharged because of a minor offense, but rather a series of incidents which resulted in confinement and forced separation.

In conclusion, the Board finds that the character of the deceased service member's discharge is a bar to benefits, and basic eligibility to VA benefits has not been established.  The appellant submitted statements on his Notice of Disagreement and VA-Form 9 noting that his father served his country, was a war hero, and that the errors he made while on active duty were the result of a hardship.  While the Board has considered the appellant's heartfelt contentions, his claim of entitlement to VA benefits is without merit.  While the Board is sympathetic to the appellant's claim, VA is bound by the applicable law and regulations as written.  38 U.S.C.A. § 7104(c) (West 2002).  The appellant's claim for VA benefits is barred as a matter of law because his father's discharge was found to be other than honorable.  

As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426  (1994).  Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) are not for application.  

As to the appellant's desire for his father's character of discharge to be upgraded, the Board is unable to affect that change.  Instead, the appellant is advised to contact the Board of Correction of Military Records so as to request the benefit sought.  See 38 C.F.R. § 3.312(e).

						(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to Dependency and Indemnity Compensation (DIC) benefits, death pension benefits, and/or accrued benefits as the child of a former service member is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs