Citation Nr: 1331847 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-17 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to the payment of Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The appellant had service from July 2001 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 administrative decision of the Seattle, Washington, VA Regional Office (RO) that determined that the appellant's other than honorable discharge from service constituted a bar to the payment of VA benefits. The appellant testified at personal hearings before a Decision Review Officer at the RO in April 2011 and before the undersigned Veterans Law Judge at the RO in September 2011. Transcripts of the hearings are included in the claims file. FINDINGS OF FACT 1. The appellant had one period active military service from July 2001 to September 2006 and received an other than honorable discharge. 2. The appellant received several Uniform Code for Military Justice (UCMJ) violations for failure to obey a lawful order, underage drinking, and larceny in June 2002. He served a Captain's Mast in July 2002 and was charged with unauthorized absence from July 9, 2006, through July 14, 2006. 3. In May 2006, the appellant was convicted in Bremerton Municipal Court for Domestic Violence and violation of a No Contact Order. 4. In September 2006, the appellant was convicted in Kitsap County Superior Court of residential burglary (felony); violation of a protection order (felony); taking a motor vehicle without permission in the 2nd degree; violation of a protection order (gross misdemeanor); and unlawful imprisonment. 5. The evidence establishes that the appellant's offenses were willful and persistent and prevented the proper performance of his duties. 6. The evidence does not establish that the appellant was insane at the time of commission of the in-service offenses. CONCLUSION OF LAW The appellant's discharge from service was under other than honorable conditions and the character of this discharge is a bar to the payment of VA benefits. 38 U.S.C.A. §§ 101, 5103A, 5107, 5303 (West 2002); 38 C.F.R. § 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in March 2009. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the June2011 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (appellant afforded a meaningful opportunity to participate effectively in adjudication of claim, and notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Board recognizes that assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). However, VA's duty to provide a medical examination is not triggered unless the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service or a disease manifesting during an applicable presumptive period; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). That has not been demonstrated in this case. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Character of Discharge A person seeking VA benefits must first establish that they 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 U.S.C.A. § 101(2) (West 2002). 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) (West 2002); 38 C.F.R. § 3.12(a) (2013). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a) (2013). The provisions of 38 C.F.R. § 3.12(b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits. However, benefits will not be barred if 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 in law and regulation. 38 U.S.C.A. § 5303(b) (West 2002). With the exception for insanity, benefits are not payable where the former service member was discharged or released by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(c)(2) (2013). Benefits are also not payable where the former service member was discharged under other than honorable conditions as a result of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6) (2013). A discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (that includes, generally, conviction of a felony); (4) willful and persistent misconduct (that 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; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d) (2013). 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(a) (2013). The appellant's service separation form indicates that he served on active duty with the United States Navy from July 2001 to September 2006. He enlisted for four years in July 2001 and subsequently extended his enlistment. In September 2006, he received an other-than-honorable discharge. There were no other periods of military service. In February 2009, he filed a claim for service connection. He has asserted that although he committed the offenses in service, he was injured during service. He also asserted that his "initial" four-year period of service and his subsequent enlistment extension should be considered separate periods of active duty such that the initial four year period may be deemed honorable, particularly in light of the fact that his crimes were committed during his extension period. The appellant's service records show that he had several UCMJ violations for failure to obey a lawful order, underage drinking, and larceny in 2002. He received a Captain's Mast in July 2002. In May 2006, he was convicted in Bremerton Municipal Court for Domestic Violence and violation of a No Contact Order. He was discharged from service in September 2006 under other than honorable conditions. In a September 2009 Report of Contact, a clerk from Kitsap County Superior Court stated that the Veteran was convicted in September 2006 of residential burglary (felony); violation of a protection order (felony); taking a motor vehicle without permission in the 2nd degree; violation of protection order (gross misdemeanor); and unlawful imprisonment. He was charged with unauthorized absence from July 9, 2006, to July 14, 2006. The evidence in the present case demonstrates a willful and persistent course of behavior that can only be labeled as misconduct. The appellant's actions cannot reasonably be described as either isolated or infrequent. Moreover, his actions resulted in two felony convictions. He has not provided any mitigating evidence for his behavior and he has not alleged, and the evidence does not demonstrate, that he was insane when he committed the acts denoted above. Finally, although the Veteran's major troubles began during his period of re-enlistment, his service personnel records demonstrate that there were no breaks in service dates. Therefore, his service is considered to be one period of active duty and VA regulations do not provide for consideration of only part of a period of active duty for a character of discharge determination. Accordingly, the Board finds that the appellant does not fall within the exception for a "discharge because of a minor offense" as provided by 38 C.F.R. § 3.12(d)(4). Consequently, his discharge must be considered as having been under dishonorable conditions. Accordingly, the payment of VA compensation benefits is precluded by law. 38 C.F.R. § 3.12(a) (2013). The Board has carefully considered the entire record in this case. However, the evidence is not so evenly balanced that there is reasonable doubt as to any material matter regarding the issue on appeal. Because the preponderance of the evidence is against the claim, the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The character of the appellant's discharge from service constitutes a bar to the payment of VA benefits and the appeal is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs