Citation Nr: 1330699	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  11-01 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut


THE ISSUE

Whether the character of the Veteran's discharge from service is a bar to VA benefits for service from June 2001 to March 2009.  


(The claims of service connection for bilateral knee, Eustachian tube dysfunction, defective hearing, esophageal reflux disease, reactive airway disease, deviated nasal septum, dysthymic disorder, sleep apnea, lumbago and asthma are the subject of a separate decision.)

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran had active service from July 1988 to March 2009.  The Veteran's service included 38 months confinement and a dishonorable discharge by general court-martial in November 2007.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 RO decision that, in part, determined that the character of the Veteran's discharge for service from June 29, 2001 to March 20, 2009, was a bar to VA benefits under the provisions of 38 C.F.R. § 3.12(c).  A videoconference hearing before the undersigned was held in August 2011.  


FINDINGS OF FACT

1.  The Veteran entered active military service in July 1988, and reenlisted in July 1991, January 1994, August 1996, June 1998, and January 2000.  

2.  By general court-martial adjudged in March 2007, the Veteran was sentenced to 38 months confinement, reduction to the grade of E-1, and a dishonorable discharge from service in March 2009.  

3.  The Department of the Army certified that the Veteran's active service prior to 
March 1, 2007, was under honorable conditions, and is binding on VA.  



CONCLUSION OF LAW

The character of the Veteran's service prior to March 1, 2007 was under honorable conditions and is not a bar to VA benefits prior to that date.  38 U.S.C.A. §§ 101(18), 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.14(d) (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2012).  

In light of the favorable disposition of the issue in this case, an exhaustive analysis of VA's compliance with these statutes is not in necessary, as the Veteran is not prejudiced in any regard.  

Laws & Regulations

VA regulations pertaining to the character of discharge provides, in pertinent part, that if a 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 the Department of Veterans Affairs as to character of discharge.  38 C.F.R. § 3.12(a).  

A discharge or release from service under one of the conditions specified in this section (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 causing such discharge or release or unless otherwise specifically provided (38 U.S.C.A. § 5303(b)).  

Benefits are not payable where the former service member was discharged or released by reason of the sentence of general court-martial.  38 C.F.R. § 3.12(c).  Subsection (d) provides, in pertinent part, that a discharge or release because of an offense involving moral turpitude which includes, generally, conviction of a felony, is considered to have been issued under dishonorable conditions.  38 C.F.R. § 3.12(d).  

Determinations as to honorable service will be made by the service departments and the findings shall be binding on the Department of Veterans Affairs.  38 C.F.R. § 3.14(d).  

Discussion & Analysis

The Veteran contends, in essence, that while he was dishonorably discharged from service in March 2009 by general court-martial, his active service prior to March 2007 was honorable service and that he is entitled to VA benefits for any disability that was incurred in or otherwise related to his honorable service.  

Historically, the service records showed that the Veteran joined the Army Reserve under a delayed entry program in September 1987, and that he entered active military service in July 1988 under a contract for a period of four years.  In July 1991, the Veteran reenlisted for four years, and in January 1994, extended his enlistment for 20 months (to meet the "SRR" for oversea assignment).  In August 1996, the Veteran reenlisted for three years, and in June 1998, reenlisted for two years.  In January 2000, the Veteran contracted to reenlist for an "indefinite" period.  

A general court-martial proceedings in March 2007 found the Veteran guilty of several offenses, and sentenced him to 10 years confinement - reduced to 38 months, reduction to E-1, and a dishonorable discharge from service upon completion of his confinement.  The Veteran was separated from service in March 2009.  

In June 2008, the Veteran filed a claim for VA benefits, vis-à-vis, service connection for multiple disabilities.  By rating action in January 2010, the RO determined that the Veteran's active service from July 1988 to June 28, 2001, was under honorable conditions, but that his service from June 29, 2001 to March 2009 was under dishonorable conditions, and was a bar to any VA benefits arising from his service deemed to have been under dishonorable conditions.  The Veteran disagreed with that decision, giving rise to the current appeal.  

In Holmes v. Brown, 10 Vet. App. 38 (1997), the United States Court of Veterans Appeals (Court) interpreted subsection B of 38 U.S.C. § 101(18) "as defining "discharge or release" to include members who reenlist before completing their initial period of service, but who would have been eligible for discharges other than under dishonorable conditions at the time of the completion of the initial service obligation."  [original emphasis by the Court].  

In that case, the Veteran reenlisted for a six year obligation after serving 21 months of a 36 month term.  Shortly thereafter, he went AWOL for more than 180 days.  After his apprehension by military authorities, the Veteran was discharged under other than honorable conditions (UOTHC) in 1973.  The Veteran committed suicide in 1992, and his spouse sought to obtain dependency and indemnity compensation (DIC), arguing that the Veteran's service prior to his reenlistment should be recognized as under honorable conditions entitling her to DIC benefits.  The Court found that because the Veteran reenlisted before completing his initial service obligation, his entire service constituted one period of service under 38 C.F.R. § 3.13(a) and (b).  As such, entitlement to VA benefits was determined by the character of the final termination of his period of service.  Since the Veteran's character of discharge for his only period of service was UOTHC, he was not eligible for VA benefits.  

However, the facts in the present case are distinguishable from the Holmes case, in that the Veteran completed the terms of his initial service obligation.  In fact, the Veteran completed the terms of all of his service reenlistment contracts that obligated him to serve a specific number of years.  That is, the terms of the Veteran's reenlistment contracts between 1991 and 2000, were for periods ranging from two to four years.  However, his last reenlistment contract stipulated that his obligation was for an "indefinite" period of time.  Under that contract, therefore, the Veteran would have been eligible for discharge other than under dishonorable conditions at any time after June 2000, the expiration date of his two year obligation under the June 1998 reenlistment contract.  

Moreover, the Board notes that a Memorandum from the Department of the Army, Personnel Control Facility, dated in June 2007, certified that the Veteran's character of service from January 1, 2000 to February 28, 2007 was under honorable conditions.  As noted above, determinations as to honorable service are solely within the purview of the service departments and are binding on the Department of Veterans Affairs.  38 C.F.R. § 3.14(d).  

Inasmuch as the service department has certified that the Veteran's character of service prior to February 28, 2007 was under honorable conditions, the Board finds that his service prior to that date is not a bar to VA benefits.  


ORDER

The character of the Veteran's military service prior to March 1, 2007 is not a bar to VA benefits.  




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs