Citation Nr: 1331178	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-08 268	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida


THE ISSUE

Whether the character of the appellant's discharge for his period of service from December 1989 to August 1992 is a bar to VA compensation benefits.


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The appellant served on active duty from December 1989 to August 1992.  His discharge for this period of service was under other than honorable (OTH) conditions.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 administrative decision by the VA Regional Office (RO) in St. Petersburg, Florida.

FINDINGS OF FACT

1.  The appellant served on active duty from December 1989 to August 1992.

2.  In January 1992, before a special court-martial, the appellant was convicted of 11 counts of violating Uniform Code of Military Justice (UCMJ) Article 123a, wrongfully and unlawfully uttering checks without sufficient funds, from June 25, 1991, to July 10, 1991.  

3.  He was subsequently discharged in August 1992 under OTH conditions.

4.  The misconduct committed by the appellant during service which led to his discharge under OTH conditions was willful and persistent, commenced before the expiration of his initial obligated period of service, and was not a minor offense offset by otherwise honest, faithful, and meritorious service.

5.  The evidence does not show, and the appellant does not contend, that he was insane at the time he committed his inservice misconduct.


CONCLUSION OF LAW

The character of the appellant's discharge for his period of service from December 1989 to August 1992 is a bar to VA compensation benefits.  38 U.S.C.A. §§ 101(2), 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.13 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), 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.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate 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.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter mailed in August 2008, prior to the initial adjudication of the claim.  Specifically, he was advised that, given the character of his discharge, a determination regarding his veteran status was necessary prior to adjudicating the merits of his claim for VA compensation.  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 appellant was advised of the applicable legal criteria as well as the information and evidence necessary to support his claim.  Given the nature of the question at issue in this case, the Board finds that VA's duty to notify has been satisfied.  See Dennis v. Nicholson, 21 Vet. App. 18 (2007) (discussing VA's notification duties in a character of discharge determination). 

The duty to assist the appellant has also been satisfied.  The appellant's service personnel records are on file, and he has provided statements in support of his claim.  On his substantive appeal form, filed in January 2010, the appellant indicated that he was seeking to submit post service mental health treatment records in support of his claim.  As he failed to subsequently submit these records, the RO sent correspondence to the appellant in February 2012 requesting that he complete and return the applicable authorization and consent forms, so the RO could obtain the records on his behalf.  The Veteran failed to respond to the RO's letter.  As a result of the appellant's failure to cooperate, the records are not available.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street.  If the claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").  

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided.

II.  Legal Criteria 

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)  (2013).  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) (2012).

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).

Service department findings (i.e., the Army, Navy and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service.  VA does not have the authority to alter the findings of the service department.  38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997).  VA has no authority to alter the claimant's discharge classification - the claimant's recourse is with the service department.  Harvey v. Brown, 6 Vet. App. 416 (1994).

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

Entitlement to VA benefits is determined by character of discharge at completion of unbroken service, i.e., where a conditional discharge was issued 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 active service.  However, 38 C.F.R. § 3.13 provides an exception if the following conditions are met:  (a) the person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (b) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (c) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.  A discharge is considered unconditional if the person served the original obligated term, but was not discharged due to reenlistment, and would have been eligible for discharge at the end of original term except for intervening enlistment.

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 being absent without leave (AWOL) for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition).  38 U.S.C. § 5303; 38 C.F.R. §3.12(c).

In addition, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions.  These offenses are:  (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty.

In particular, a discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions.  A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious.  38 C.F.R. § 3.12(d)(4).  

An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.  Mere technical violation of police regulations or ordinances will not, per se, constitute willful misconduct.  38 C.F.R. § 3.1(n); M21-1MRIII.v.1.D.15.a.  The conduct must also be persistent (reoccurring or ongoing) in order to deem a discharge "other than honorable" for VA purposes.

A discharge or release from service under any of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory 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); 38 C.F.R. § 3.12(b).  That is, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge.  38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b).  Thus, "insanity" is a defense to all statutory and regulatory bars, while "compelling circumstances" is only a defense to the statutory bar involving an AWOL period of at least 180 days.  The appellant does not contend, and the evidence does not reflect, that he was insane at the time of his offenses.

The appellant is seeking eligibility for VA compensation benefits based on his military service from December 1989 to August 1992.  To this end, he contends that the character of his discharge at the end of his period of service should not be a bar to his receiving VA compensation benefits.

In the June 2009 administrative decision, the RO found that the appellant's OTH discharge was due to willful and persistent misconduct during service, and that his discharge is considered to be issued under dishonorable conditions for VA purposes.  Therefore, as explained by the RO, because the appellant was not discharged with a bad conduct discharge or with one of the bars listed in 38 C.F.R. § 3.12(c), he is entitled only to VA health care benefits under Chapter 17, Title 38 U.S.C., for any disabilities determined to be service connected.

Under applicable law, VA 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.  38 U.S.C.A. § 101(2).  However, a discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions.  38 C.F.R. § 3.12(d)(4).  

In this case, the Veteran pled guilty to wrongfully and unlawfully uttering, with intent to defraud, 11 separate checks from June 25, 1991, to July 10, 1991, totaling over $3,500 in value.  As noted in the June 1992 memorandum from the Chief of Naval Personnel, this case involves misconduct due to commission of a serious offense resulting in conviction by a special court-martial.

In an undated statement, included with his service personnel records, the appellant stated, "[t]he reason that I wrote the bad checks was to acquire money to send my wife to Tel Aviv Israel because of the death of her grandmother."  Thus, his actions were intentional.  The appellant does not contend, and the evidence does not reflect, that he was insane at the time of his offenses.  38 C.F.R. § 3.12(b).  Moreover, having been convicted of 11 counts, for offenses committed over a 15 day span, he clearly was engaged in a persistent course of misconduct.

Accordingly, the Board concludes the period of service from December 1989 to August 1992 ended with an other than honorable discharge due to willful and persistent misconduct he committed when he was sane.  The character of his discharge therefore is considered dishonorable.  Accordingly, the appeal must be denied.


ORDER

The Board having determined that the character of the appellant's discharge from service is a bar to the award of VA compensation benefits, the benefit sought on appeal is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs