Citation Nr: 1320013 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-03 644A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the character of service is a bar to the appellant's basic eligibility of VA benefits. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The appellant is the surviving spouse of a deceased service member, who had a period of active service that began in May 1966 and ended in February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and December 2007 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appellant testified at a May 2013 hearing by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The deceased service member began service in May 1966 and was discharged for the good of the service in February 1970 under conditions other than honorable. 2. The actions that led to the deceased service member's discharge from service, including multiple periods of being absent without official leave (AWOL), constituted willful and persistent misconduct; the deceased service member was not insane at the time of the offenses. 3. In its May 1978 decision, the service department Discharge Review Board did not affirm the deceased service member's May 1977 character of discharge upgrade to under honorable conditions. CONCLUSION OF LAW The character of the deceased service member's service is a bar to the award of VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law generally imposes on VA certain notice and duty to assist provisions concerning claims for VA benefits. However, VA's General Counsel has held that there is no duty to notify a claimant where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Further, it was held that there is no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004. In this case, undisputed facts render the appellant ineligible for the claimed benefit. Moreover, there is no additional evidence that would substantiate the claims. Therefore, the notice and duty to assist provisions are not applicable in this case. A person seeking VA benefits must first establish that they, or the person on the basis of whose service they seek benefits, have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). 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 C.F.R. § 3.1(d) (2012). If the former service member did not die in service, pension, compensation, or DIC is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12. In January 1970, the deceased service member was recommended for separation from service due to unfitness. The basis for the recommendation was his past military history of court-martial offenses including seven periods of AWOL totaling 478 days lost days, the last of which occurring immediately after he failed to appear in state court to answer charges of "issuing worthless checks." Personnel records confirm that the deceased service member was found guilty of being AWOL on at least one prior occasion, in July 1969. In order to avoid a dishonorable discharge, the deceased service member sought a discharge for the good of the service in January 1970; the narrative he signed indicated that he was aware that the "under other than honorable" discharge he would receive would deprive him of "many or all. . . benefits, [including] many or all benefits administered by" VA. He was discharged from active duty service in February 1970, with his service characterized as under conditions other than honorable. An "under conditions other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge. However, a discharge or release from service because of willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct) is considered to have been under dishonorable conditions. 38 C.F.R. § 3.12(d). A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. As noted above, the deceased service member was separated from service due to unfitness and numerous infractions including seven separate periods of AWOL totaling 478 days. Article 86 of the Uniform Code of Military Justice (UCMJ) 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.A. § 801 et seq., Manual for Court-Martial, United States, 1988; Winter v. Principi, 4 Vet. App. 29 (1993). The Board finds that the deceased service member's offenses during active duty were not minor and constitute willful and persistent misconduct. The appellant testified at the May 2013 Board hearing that she believed the deceased service member's offenses during service were the result of a mental disability and/or psychiatric trauma sustained as a result of his service in Vietnam. A discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offenses. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b) (2012). In order for a person to be found to have been insane at the time of committing an in-service 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). 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. 37,955 (1997). In this case, the evidence does not establish that the deceased service member was insane during any of the seven periods of AWOL noted on his Department of Defense Form 214 (DD-214). The January 1970 recommendation for discharge noted that the deceased service member had undergone a medical examination, and did not then or during any of the periods of AWOL appear to be mentally defective, deranged, or abnormal. The record also reflects that while being confined to a military stockade in July 1969, the deceased service member was given a diagnosis of chronic moderately severe character disorder. This appears to be a personality disorder, which is considered under VA regulations to be a congenital or developmental disorder, rather than an acquired psychiatric disorder. There is also no indication that the deceased service member's character disorder met the standard of insanity accepted by VA, and the record does not establish that the deceased service member was ever diagnosed with posttraumatic stress disorder or any other mental health condition during or after service. To the extent the appellant attaches significance to the fact that the deceased service member's periods of AWOL began after his one-year period of service in Vietnam, the record does not establish any connection between the two. Indeed, it appears that the first period of AWOL may have resulted from the deceased service member's desire to be married to the appellant, being that it began on March 19, 1968, three days prior to their marriage. As such, the deceased service member's original discharge in February 1970 is considered a discharge under dishonorable conditions, pursuant to 38 C.F.R. § 3.12(d) (4), and insanity is not an applicable defense in this instance. The appellant also contends that the deceased service member's discharge was upgraded and is therefore not dishonorable. Review of the claims file indicates that in May 1977, under the Department of Defense Special Discharge Review Program, his discharge was upgraded to "under honorable conditions." For the next year, this upgraded discharge allowed the deceased service member to obtain a limited period of educational benefits (which the appellant has noted, even though she asserted they were granted in the 1980s and the record reflects they were granted in 1978). However, reconsideration by the service department review board in May 1978 resulted in an unfavorable outcome; the service department's Discharge Review Board noted that the upgrade had been granted pursuant to the deceased service member's year of service in Vietnam, but that based on his multiple periods of AWOL, the five-member panel unanimously determined not to affirm the previous upgrade. The September 1978 finding of the Review Board was characterized as final, holding that due to the [deceased service member's] disciplinary record as reflected by two Special Courts Martial for lengthy periods of absence without leave [and] the extensive absence without leave for which he was pending charges at time he requested separation for the good of the service, he did not warrant relief under regular review criteria. The Board found no mitigation for his 478 days lost time due to AWOL and confinement by military and civilian authorities . . . Thus, the Board finds that the deceased service member's upgraded discharge does not confirm upon him status as a veteran. As the service department's Discharge Review Board determined in May 1978 that the deceased service member's upgraded discharge could not be affirmed, the February 1970 discharge stands and remains a bar to VA benefits. In her February 2008 notice of disagreement, the appellant argued that she was entitled to survivor benefits because both the deceased service member's original and the amended DD-214s had indicated he was eligible for the "benefits of honorable discharge." However, on both of the DD-214s, it actually indicates that the deceased service member completed a course of education or training which appears to have concerned or been titled "Benefits of Honorable Discharge." No actual entitlement based on the deceased service member's completion of that course or training appears to be suggested by the language on either DD-214. The appellant also alleged that there was clear and unmistakable error (CUE) in the January 2009 statement of the case, both on the basis that the service department's determination of character of discharge was binding on VA, and that no consideration was given to short lapse of time between the deceased service member's return from Vietnam and his first period of AWOL. Here, the January 2009 statement of the case is part of the appellant's appeal of the August 2007 and December 2007 denials of her claim for benefits, which has remained pending, and the Board is presently addressing. Thus, because a motion for revision on the basis of CUE cannot lie as to a prior decision that is still open to direct review, consideration of the appellant's claims as to CUE will not be undertaken. In conclusion, the Board finds that the character of the deceased service member's discharge is a bar to benefits. The appellant's claim for VA survivor benefits is thus barred as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The deceased service member's character of service is a bar to the appellant's basic eligibility of VA benefits; the appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs