Citation Nr: 1323067 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-03 421A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen the determination that the character of the appellant's discharge is a bar to Department of Veterans Affairs benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant had service from February 1964 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 Administrative Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge in a video conference hearing in May 2009; a transcript of the hearing is associated with the claims file. The case was previously before the Board in July 2009 when it was remanded for additional development. As noted in the July 2009 Board remand, the November 2005 Administrative Decision on appeal considered the appellant's previously disallowed claim on the merits without consideration of whether new and material evidence had been presented. The Board has a legal duty to consider whether new and material evidence has been received to reopen the claim regardless of the RO's actions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. FINDINGS OF FACT 1. An unappealed July 1977 Administrative Decision denied the appellant entitlement to VA benefits, based essentially on findings that his general court-martial was a bar to VA benefits. 2. Evidence received since the July 1977 Administrative Decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim whether the character of the appellant's discharge is a bar to the receipt of VA monetary benefits, and raises a reasonable possibility of substantiating the claim. 3. The appellant entered active duty in February 1964 and received a bad conduct discharge in January 1971. 4. The appellant was convicted by general court-martial due to unauthorized absence of at least 688 days. 5. The appellant received a clemency discharge pursuant to Presidential Proclamation 4313 of September 16, 1974, which was not affirmed upon subsequent review by a discharge review board on an individual basis. 6. There is no evidence suggesting that the appellant was insane at the time of the acts that resulted in his discharge. CONCLUSIONS OF LAW 1. The July 1977 Administrative Decision denying the appellant entitlement to VA benefits is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). 2. New and material evidence has been received to reopen the claim of whether the character of the appellant's discharge is a bar to the receipt of VA monetary benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The appellant's bad conduct discharge constitutes a bar to the payment of VA monetary benefits. 38 U.S.C.A. §§ 101(2), 5107, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.354, 3.360 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As an initial matter, the Board notes that for the reasons detailed below, it finds that new and material evidence has been received to reopen the appellant's claim of whether the character of his discharge is a bar to the receipt of VA monetary benefits. Therefore, no further discussion of the VCAA is required with respect to this aspect of his appeal as any deficiency has been rendered moot. Where the issue involves the character of a veteran's discharge, VCAA must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The RO provided this notice in a letter dated in August 2005. The letter informed him that VA compensation benefits would require resolution of the question of whether his service was honorable and the character of his discharge. The letter enclosed a copy of 38 C.F.R. § 3.12, the controlling regulation, and advised the appellant to submit any evidence in support of his appeal. The Board finds that this letter, as well as a December 2009 letter, notified the appellant of the criteria applicable to his claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment and personnel records, and post-service treatment records. The appellant was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ identified the issue and asked specific questions directed at identifying whether there was evidence that would help substantiate the appellant's claim and specifically sought to identify any pertinent evidence not currently associated with the claims file. In addition, the appellant volunteered his pertinent service history. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and he has not identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary and the appellant is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). New and Material Evidence Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 can be neither cumulative nor 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). By way of background, the Board observes that the RO denied the appellant entitlement to VA benefits in a July 1977 Administrative Decision on the basis that his general court-martial and bad conduct discharge were a bar to the payment of VA monetary benefits. He did not appeal this decision and, as such, it became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the appellant's claim for entitlement to VA benefits was received prior to the expiration of the appeal period stemming from the July 1977 Administrative Decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The instant claim was received in July 2005. For the reasons to be discussed below, at least some of the evidence submitted by the appellant subsequent to the July 1977 denial is new and material, and the claim must be reopened. Since the last final denial of record, the appellant submitted additional evidence, including April 2012 Internet excerpts indicating that bad conduct discharge recipients are eligible for VA disability compensation. This evidence is new, in that it was not previously of record at the time of the July 1977 denial. Additionally, the newly submitted evidence is not cumulative and redundant of evidence already of record. Further, such evidence is presumed credible for the limited purpose of reopening the previously disallowed claim. Justus v. Principi, 3 Vet. App. 510 (1992). Given the standard provided in the Court's decision in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of whether the character of the appellant's discharge is a bar to VA benefits. Based on the above, the Board finds the aforementioned evidence to be both new and material. The appellant having submitted both new and material evidence, his claim of whether the character of his discharge is a bar to VA benefits must be reopened and considered on the merits. Merits Analysis The appellant's claim seeking to be declared eligible for VA benefits having been reopened, it may now be considered on the merits. Generally, the Board is prohibited from considering a claim on the merits which has not yet been considered on the same basis by the agency of original jurisdiction. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). However, in this case, as noted above in the Introduction and in the July 2009 Board remand, the November 2005 Administrative Decision on appeal considered the appellant's previously disallowed claim on the merits without consideration of whether new and material evidence had been presented. Thus, no prejudice would result to the appellant by the Board considering his claim on the merits at this time. The Board acknowledges the appellant's argument that, during the pendency of his appeal, there appears to have been some confusion regarding his social security number, and that such has affected obtaining all of his pertinent records. While the Board acknowledges that there is some evidence that his social security number was confused with his claim number, all of his service personnel and treatment records are associated with his claims file, and were received in November 2012. Hence, the Board finds that the development in this case has been exhaustive, any harm done was nonprejudicial to his claim, and there is no basis to remand this claim for additional development to search for any other service records as there is no evidence that there are any such records. The appellant is seeking to be declared eligible for VA benefits. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). 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); 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). A person discharged under conditions other than honorable by reason of the sentence of a general court-martial is barred from VA benefits. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(2). A person discharged under conditions other than honorable on the basis of an absence without leave (AWOL) period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence." 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation; (ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began; (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. 38 C.F.R. § 3.12(c)(6)(i-iii). 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). 38 C.F.R. § 3.12(d) provides that a discharge or release because of one of the offenses specified is considered to have been under dishonorable conditions. One of the conditions, listed at 38 C.F.R. § 3.12(d)(4), is 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. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 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). According to 38 C.F.R. § 3.354(a), 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(b) provides when a rating agency is concerned with determining whether an appellant was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C.A. § 5303(b)), 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. See also VAOPGCPREC 20-97 (holding that the term "constitutionally psychopathetic" was synonymous with psychopathetic personality (antisocial personality disorder). Consulting various well-accepted legal authority, General Counsel also noted that the term insanity was more or less synonymous with "psychosis." See Zang v. Brown, 8 Vet. App. 246, 254 (1995) (finding that insanity must be due to a "disease" or that a claimant "did not know or understand the nature or consequences of his act or that what he was doing was wrong"). Unless a discharge review board established under 10 U.S.C.A. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements of this section, an honorable or general discharge award under Presidential Proclamation No. 4313 does not remove any bar to benefits imposed under this section. 38 U.S.C.A. § 5303(e); 38 C.F.R. § 3.12(h)(1). The same reasoning follows for other upgrades issued without an individual review by a board of corrections. Congress has prescribed in 38 U.S.C.A. § 5303(a) that a discharge or release from service as a result of a sentence of a general court-martial "shall bar all rights of such persons under laws administered by the Secretary based upon the period of service from which discharged or dismissed." 38 U.S.C.A. § 5303(a). The only defense to the statutory bar arises when it is established that the individual was insane at the time of the commission of the offense leading to the court-martial and discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved, and apply the definition of 38 C.F.R. § 3.354(a). This regulation provides for three circumstances which the Court, noting the "obvious drafting defects" of the regulation, indicated should be modified by applying the phrase "due to disease." Zang v. Brown, 8 Vet. App. 246, 252-53 (1995). In addition, the Court held that "a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. The evidence of record in this case discloses that the appellant during his active service did, without authority, absent himself from his unit from December 1, 1966 to October 22, 1968, for a total number of 691 days lost. See DD Form 214. The evidence also shows that in January 1969, the appellant received a general court-martial for his absence from December 1, 1966 to October 22, 1968. He was found guilty of a violation of Article 86 of the Uniform Code of Military Justice, and sentenced to a dishonorable discharge, confinement at hard labor for 1 year, and forfeiture of all pay and allowances. In April 1969, the Office of Staff Judge Advocate of the U.S. Navy reviewed the general court-martial, and recommended a bad conduct discharge (in place of a dishonorable discharge), and affirmance of the rest of the general court-martial sentence. In June 1969, the Office of the Judge Advocate of the U.S. Navy affirmed the bad conduct discharge, as well as the confinement at hard labor for 1 year and forfeiture of all pay and allowances (as recommended by the Office of Staff Judge Advocate). In September 1970, the appellant waived his right to request restoration to duty in the naval service, and requested execution of the discharge adjudged by general court-martial (i.e., bad conduct discharge). He was ultimately discharged in January 1971 with a bad conduct discharge. See DD Form 214. On August 16, 1976, the appellant received a full pardon and was awarded a clemency discharge by President Gerald Ford pursuant to Presidential Proclamation No. 4313. It was noted that the clemency discharge replaced his punitive or undesirable discharge. A DD Form 215, dated in January 1977, shows that the appellant received a clemency discharge in recognition of satisfactory completion of alternative service pursuant to Presidential Proclamation No. 4313. As noted above, a bar to benefits imposed by 38 C.F.R. § 3.12(c)(2) (discharge by reason of the sentence of a general court-martial) is not removed by Presidential Proclamation No. 4313 unless a discharge review board established under 38 U.S.C.A. § 1553 determines that, on an individual case basis, that the discharge would be upgraded under uniform standards meeting the requirements set forth in 38 C.F.R. § 3.12(g). See 10 U.S.C.A. 1553; 38 U.S.C.A. § 5303(e); 38 C.F.R. § 3.12(h); see also Hayes v. Brown, 7 Vet. App. 420, 423-24 (1995). Therefore, the Board finds that the appellant's upgraded discharge under Presidential Proclamation No. 4313 did not remove a bar to VA compensation benefits such as the appellant is seeking in this case. The Board notes that in March 2006, upon application by the appellant, a Navy Board for Correction of Naval Record reviewed the appellant's character of discharge and determined that his bad conduct discharge was warranted. The review board found the evidence was insufficient to warrant recharacterization of his discharge due to the length of his unauthorized absence. As the Navy Board for Correction of Naval Record determined in March 2006 that recharacterization of the appellant's discharge was not warranted, his clemency discharge provided pursuant to Presidential Proclamation No. 4313 is not sufficient to remove the bar to VA benefits. [Notably, August 2011 correspondence from the Naval Discharge Review Board indicated that there was no evidence of an active or closed case, demonstrating the appellant has not filed another application for an upgrade of his discharge since the March 2006 denial.] In light of the above, the appellant's bad conduct discharge by reason of the sentence of a general court-martial is a bar to VA benefits, and his appeal is denied. 38 C.F.R. §§ 3.12(c)(2), 3.354. In reaching this determination, the Board also notes that the Veteran would not be eligible for VA benefits under 38 C.F.R. § 3.12(d). The evidence shows that he was absent without proper authority for the period from December 1, 1966 to October 22, 1968, for a total of 688 days. Such a lengthy absence constitutes a pattern of willful and persistent misconduct. Even acknowledging his clemency discharge, his upgraded separation form did not change time lost. The present case is not one involving one isolated minor episode of misconduct. Every day that the appellant was absent reduced the readiness and the ability of his unit to perform duties. An absence without authority cannot constitute a minor offense for purposes of willful and persistent misconduct because it would interfere with and preclude the performance of the appellant's military duties. Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Struck v. Brown, 9 Vet. App. 145, 152-53 (1996); Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). Because of the appellant's willful and persistent misconduct, which is not characterized as a minor offense; because he received a bad conduct discharge by reason of the sentence of a general court-martial; and because there is no evidence to suggest that he was insane at the time (and no argument that he was), the Board finds that the character of the appellant's discharge is a bar to the payment of VA benefits. 38 C.F.R. § 3.12(d)(4). Notably, at the January 1969 general court-martial, he testified that he remained absent to financially assist his family. And in various statements during the pendency of this appeal, he has contended that he was absent without authority because of family matters that were worrying him during his active service. See, e.g., February 2007, May 2009 correspondence; see also May 2009 video conference hearing testimony. To the extent the appellant submitted April 2012 Internet excerpts indicating that bad conduct discharge recipients are eligible for VA disability compensation, the Board finds that such is of no probative value. Notably, and as addressed above, the appellant would be entitled to VA benefits pursuant to the methods provided by regulation. As recharacterization of his discharge has not occurred by a discharge review board established under 38 U.S.C.A. § 1553 on an individual case basis, his bad conduct discharge due to a general court-martial sentence serves as a bar to VA monetary benefits. For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit of the doubt doctrine is therefore not applicable and the appeal must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER New and material evidence having been received to reopen the claim of whether the character of the appellant's discharge is a bar to the receipt of VA monetary benefits, the claim is reopened. To this extent only the benefit sought on appeal is allowed. The character of the appellant's service from February 1964 to January 1971 is a bar to entitlement to VA benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs