Citation Nr: 1319701	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  07-20 901A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Whether the appellant's character of service for the period of service extending from January 31, 1970, to December 21, 1973, is a bar to VA benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel


INTRODUCTION

The appellant had active military service from January 1970 to December 1973. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a decision of July 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  In that decision, the RO notified the appellant that his character of discharge determination was still considered as under other than honorable conditions as no new and material evidence had been submitted to show a change in the character of discharge.  

In July 2010, the appellant appeared at a hearing before an Acting Veterans Law Judge, and in November 2010, the Board issued a decision in which it denied reopening the appellant's claim on the basis that new and material evidence had not been submitted subsequent to the last prior final Board decision, issued in July 1993.  This decision was appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In a November 2011 memorandum decision, the Court vacated the Board's decision and remanded this claim to the Board for compliance with directives specified in that decision.

As indicated above, the appellant had a hearing before the Acting Veterans Law Judge who issued the now vacated November 2010 decision.  That Acting Veterans Law Judge has since retired from the Board.  The appellant was notified in March 2012, that he had the right to request another hearing before a different Veterans Law Judge.  The appellant did not respond, and his request for a hearing is considered satisfied.  

In August 2012, after reopening the appellant's claim on the basis of new and material evidence, the Board determined additional development was required prior to a decision on the merits.  All requested actions have been completed and the claim is once again before the Board.

Finally, the Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 


FINDINGS OF FACT

1.  The appellant enlisted in January 1970, and was discharged from active service effective in December 1973, following conviction by a general court-martial; his service was characterized as "under other than honorable conditions."  

2.  The appellant was not insane at the time he committed the offenses leading to his discharge from active military service.


CONCLUSION OF LAW

The character of the appellant's service, extending from January 31, 1970, to December 21, 1973, is a bar to VA benefits.  38 U.S.C.A. §§ 101, 5303 (West 2002 & Supp. 2011); 38 C.F.R. § 3.12 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  This was satisfied in November 2005 and March 2006 letters, and the appellant has not argued he has been prejudiced by any improper notice.  All relevant facts have been obtained under the circumstances of this case

Character of Discharge

The appellant disputes the characterization of his discharge and has been attempting to establish entitlement to compensation benefits for quite some time.  Despite what the appellant's service personnel records show, he has consistently alleged that his character of discharge has been changed to "Honorable" since his separation from service in 1973.  

The appellant was convicted by a general court-martial, for possession of heroin and failure to follow an order.  His service personnel records, to include his DD Form 214, show he received a discharge of "Under Other than Honorable Conditions."  

In August 1982, the appellant was first notified of VA's decision that the nature of his discharge was a bar to VA benefits.  The decision noted that the appellant had received an other than honorable discharge as a result of a sentence of a general court-martial, and that there was no indication he was insane at the time he committed the offenses leading to the court-martial.  

In July 1983, the appellant alleged his discharge had been upgraded to "Honorable."  In September 1983, the RO requested from the National Personnel Records Center (NPRC) a copy of any upgraded discharge.  The NPRC informed the RO, in October 1983, that the appellant's "o[ther] t[han] h[onorable]" discharge had not been upgraded.  The NPRC attached a copy of a December 1981 letter to him from the Army Board for Correction of Military Records (ABCMR) stating that his application for correction of his Army records had been denied.  The RO notified the appellant in December 1983 that the NPRC had reported that his discharge had not been upgraded, and that his claim could not be reopened without evidence of a change in the character of his discharge. 

In August 1984, the appellant attached a copy of 38 U.S.C. § 3303, (now 5303) referring to Presidential Proclamation 4313 of September 16, 1974.  However, he was informed by the RO that no further action would be taken on his claim absent action by the ABCMR. 

In May 1986, the appellant again claimed his discharge had been upgraded to "General" in 1977.  The RO responded in May and June 1986 that he should submit a copy of the alleged upgraded discharge.  Nevertheless, in July 1986, the RO requested from the NPRC "any records you may have on an upgraded discharge which [the appellant] says he received in 1977."  NPRC responded and advised that the "disch[arge] has not been upgraded."  

At a July 1987 personal hearing, the appellant testified under oath at the RO that he had been notified by Senator S. I. Hayakawa's (California) office and by the NPRC that his discharge would be upgraded pursuant to a 1977 proclamation by President Carter.  He testified that he had been told in 1983 and 1987 by White House personnel that his discharge should have been upgraded, and that in 1987 he had hand-carried a copy of a discharge paper from the Army or the White House to Washington, DC.  The appellant's service representative then asked that another request for information be made to the NPRC. 

In November 1987, the ABCMR denied the appellant's request for reconsideration of his application for correction of his military records.  The ABCMR stated that insufficient evidence had been submitted to offer a basis for reversal of the previous decision.   

In March 1988, the NPRC notified the RO that, as of February 1988, there was no record of the appellant's discharge having been upgraded.  The RO determined later that month that no evidence had been received to warrant a change in its March 1982 decision.  The appellant requested reopening of his claim in July 1988, and attached an application for vocational rehabilitation, a copy of 38 U.S.C. § 5303 containing a reference to the President's directive of January 19, 1977, and a copy of his discharge certificate.  In August 1988, the RO informed the appellant that the 1977 directive did not apply in his case, that the directive was not binding on VA, and that he could become entitled to benefits only by having his discharge status changed by the ABCMR. 

In connection with claims for compensation benefits in the 1990's the appellant advised that he had documentation from five presidents and several senators about an upgrade in his discharge status, as well as an "unconditional pardon" from President Reagan.  He later indicated he has also received presidential pardons from former Presidents Nixon, Ford, and Carter.  No documentation supporting these assertions were put in the record.  The appellant's compensation claims were denied, and the Board issued a decision in 1993, finding that the appellant's discharge had not been upgraded, his character of service was a bar to VA benefits, and his claim to reopen was denied.  

The appellant made another attempt to reopen his claim for benefits on the basis that his discharge from service had been upgraded, which was denied the RO in 2006.  The appellant appealed that decision to the Board, which denied it in a November 2010 decision.  The appellant appealed the Board's decision to the Court, who vacated the Board's decision and returned the matter to the Board for re-adjudication.  In August 2012, although questioning the authenticity of a recently submitted DD 214 by the appellant, the Board reopened the issue on the basis of that DD 214 which reflected his character of service as "HONORABLE."  The Board then directed the RO to inquire with the NPRC as to whether the appellant's discharge had been upgraded.  The NPRC responded in 2013, that there was no record of a discharge upgrade.  

Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a Veteran of active military, naval, or air service.  38  U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.  The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. §§ 101(2) and (24); 38 C.F.R. § 3.1(d).

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).  The designation of the discharge as honorable by the service department is binding on VA as to character of discharge.  38 C.F.R. § 3.12(a).

There are two types of character of discharge bars to establishing entitlement for VA benefits:  (1) statutory bars found at 38 U.S.C.A. § 5303(a); and (2) 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:  (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.  38 U.S.C.A. § 5303(a).  

Acceptance of an undesirable discharge to escape trial by general court-martial;  a discharge because of mutiny or spying; a discharge because of an offense involving moral turpitude; a discharge because of willful and persistent misconduct and a discharge because of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty are regulatory bars to VA benefits.  38 C.F.R. § 3.12 (d).  

Notwithstanding the foregoing, if it is established that, at the time of the commission of an offense leading to a person's court-martial, discharge, or resignation, that person was insane, then he shall not be precluded from benefits under laws administered based on the period of service from which he was separated.  See 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b).  

As has been confirmed through official sources many times since the appellant was discharged from service, including as recently as in 2013, his discharge from service followed his conviction in a general court-martial, and yielded a character of service described as "under other than honorable conditions."  This has not been changed or up-graded.  The appellant's contentions and submissions to the contrary are unsupported, and the Board considers the official reports and documents provided by the government agencies responsible for maintaining them to be of more probative value than the appellant's self-serving assertions.   

As to the DD 214 which prompted the reopening of the claim, it is a photocopy of a DD 214 found in the claims file (it bears the date stamped receipt by VA), but in the block reflecting the character of service where had been typed "under other than honorable conditions," was now the word "honorable."  In addition, the actual block number in question on the original DD 214 found in the claims file was "13a," and the block number on the DD 214 the appellant submitted to reopen the claim was "12b."  Under the circumstances of this case, it is evident that the DD 214 the appellant submitted is not genuine, but merely an altered copy of the original DD 214.  Likewise, it is almost absurd to think that a genuine upgrade of discharge following a conviction by general court-martial, would be administratively documented in this manner.  On the question of whether the character of appellant's discharge has been upgraded, the Board accords no favorable weight to the DD 214 he recently submitted.   

Lastly, there is no clinical finding that the appellant was insane at the time of the in-service offenses in question to invoke the exception to the bar to benefits.  Significantly, the burden is on the appellant, not VA, to submit competent and credible medical evidence that he was insane at the time of his offenses.  Stringham v. Brown, 8 Vet. App. 445, 449 (1995).  This has not been done.  

For these reasons set forth above, the Board finds that the appellant's discharge under other than honorable conditions following his conviction in a general court-martial is a bar to him receiving VA benefits concerning this service.  Consequently, he has no legal entitlement to VA benefits based on disease or injury incurred in service, and his claim must be denied.  


ORDER

The character of the appellant's discharge from service for the period of service extending from January 31, 1970 to December 21, 1973, is a bar to VA benefits; his appeal is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals







Department of Veterans Affairs