Citation Nr: 1333560	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  12-30 817A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether the character of the appellant's discharge from service disqualifies him from participation in the Veterans Retraining Assistance Program (VRAP).


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013).

The appellant served honorably on active service from December 1978 to October 1985.  His last period of service, from October 1985 to February 1988, resulted in a bad conduct discharge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2012 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that denied the appellant's request to participate in the VRAP program based on a determination that his last period of active service was dishonorable.   


FINDING OF FACT

The appellant's last period of active service was terminated by a bad conduct discharge due to persistent and willful misconduct.

 
CONCLUSIONS OF LAW

1.  The appellant's bad conduct discharge was under dishonorable conditions.  38 U.S.C.A. § 5303(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.12(d) (2013).

2.  The character of the appellant's last discharge from service is a bar to qualification for VRAP.  38 U.S.C.A. § 5303 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(d), 3.12 (2013); VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Because this case involves a legal question regarding whether the appellant has legal standing to apply for VA benefits, the Veterans Claims Assistance Act (VCAA) is not applicable to this appeal.

However, the Board notes that the appellant has been afforded every opportunity to submit evidence in support of his claim.

The RO sent the appellant a Statement of the Case (SOC) in August 2012 that provided him the specific reasons the claim had been denied as well as a complete copy of the applicable regulations.  The appellant had ample opportunity to respond before the appeal was certified to the Board for review.  

In any event, the appellant has not identified any prejudice due to error in the content or timing of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The appellant has been advised of his right to representation and his right to a hearing prior to adjudication.  VA medical examination is not required because there are no medical issues associated with the claim.  The appellant has not identified, and the evidence of record does not suggest, that there is any existing evidence that should be obtained before the Board proceeds to adjudicate the appeal.

Under these circumstances, the Board finds that the appellant is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the question of whether the character of his discharge serves to bar his claim for the VA benefit claimed on appeal.

Applicable Legal Principles

To participate in the Veterans Retraining Assistance Program (VRAP), an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable.  See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011).

Under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b) unless it is found that the person was insane at the time of committing the offense causing such discharge or unless otherwise specifically provided by statute.

There are two types of character-of-discharge bars to establishing entitlement to VA benefits: "statutory bars" under 38 C.F.R. § 3.12(c) and "regulatory bars" under 38 C.F.R. § 3.12(d).  Insanity is a defense against either a statutory bar or a regulatory bar.

The circumstances of "statutory bars" as defined by 38 C.F.R. § 3.12(c) do not apply.  The appellant in this case has been denied benefits for willful and persistent misconduct, which is cited by 38 C.F.R. § 3.12(d) as a "regulatory bar" considered to have been 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).  However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance ... are not minor."  Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994).   
 
When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Evidence and Analysis

The file contains three DD Forms 214 relating to the appellant's total period of service.  The DD Forms 214 for the periods December 1978 to October 1981 and October 1981 to October 1985 characterize those periods of service as having been honorable.  A discharge under honorable conditions is binding on VA as to the character of discharge.  38 C.F.R. § 3.12(a).

The DD Form 214 relating to the appellant's last period of active service, from October 1985 to February 1988, is characterized as a bad conduct discharge.  The DD Form 214 states the discharge was issued on conviction by Special Court Martial, which also reduced the appellant's grade to E-1.  The separation code shown on the DD Form 214 is JJD (court martial, other).

The file contains a February 1999 administrative decision by the RO in Phoenix, Arizona that found the appellant's first two periods of active service to have been honorable but found the last period of active service was under dishonorable conditions.  The RO noted as fact that the appellant was tried by Special Court Martial in January 1987 for the following offenses: having been absent without leave (AWOL) from July 2, 1986, to November 3, 1986; having wrongfully used cocaine; having made and delivered checks with insufficient funds; and, having failed to pay just debts.  The appellant was found guilty of all offenses, reduced to E-1, confined to the Navy Brig for 120 days and discharged with a bad conduct discharge (BCD).  The RO concluded the appellant's BCD had been based on willful and persistent misconduct.
 
The June 2012 decision on appeal denied the benefit claimed because the appellant's last discharge was "dishonorable."  In his Notice of Disagreement, received in June 2012, the appellant asserted he had not received a Dishonorable Discharge, but rather a BCD.  He stated he had an otherwise spotless service record but became disillusioned with service, went absent without leave and asked to be separated, which is the reason for his discharge.

The appellant submitted a Statement in Support of Claim in September 2012 arguing that his BCD was issued by a Special Court Martial (SCM) authority and based on isolated and minor offenses, to include absence without leave (AWOLs) that was caused by compelling circumstances.  The appellant stated he had been very depressed because he planned on his reenlistment to be stationed at Subic Bay, Republic of the Philippines, at which location he intended to marry, but instead he was transferred to San Diego.  In his absence, his Filipino fiancée suffered a miscarriage.  The appellant asserted he only used drugs while AWOL, never on duty status.  Thus, his AWOL and drug use was an isolated and minor event.

The appellant submitted a Substantive Appeal in November 2012 in which he asserted that an SCM is often characterized as a "misdemeanor court" and that issuance of a BCD by an SCM does not preclude entitlement to education benefits and to VRAP.  He also asserted the merchants to whom the bad checks were passed did not prosecute him.

On review of the evidence above, the Board finds the appellant's BCD was issued due to persistent and willful misconduct in service.  As noted by the February 1999 administrative decision, the appellant was convicted of four separate offenses under the Uniform Code of Military Justice (UCMJ): a four-month period of AWOL, cocaine use, passing bad checks and failing to pay just debts.  In addition, the appellant's DD Form 214 shows "time lost" (days of non-creditable service due to unauthorized absence or confinement) not only for the four-month AWOL for which he was convicted by SCM but also for the periods 14-15 March 1986, 23 November 1986-19 January 1987, 20-28 January 1987 and 20-22 February 1987.    

The Board acknowledges that the appellant had two previous enlistments that totaled 6 years and 10 months of honorable service, with award of a Good Conduct Medal.  However, even affording the appellant due credit for his previous honorable service, the Board cannot consider the commission of four UCMJ offenses to have been "minor" under the criteria of 38 C.F.R. § 3.12(d)(4). Stringham, 8 Vet. App. 445, 448; Cropper, 6 Vet. App. 450, 452-453.  The Board is also persuaded that the SCM would have taken the appellant's previous service into account when sentence was pronounced, but nonetheless imposed a very severe punishment (reduction in rank from E-5 to E-1, confinement for 120 days and BCD).  
    
There is nothing of record that indicates, and the appellant does not contend, that he was insane at the time he committed the offenses that resulted in his BCD.

The appellant has argued that his period of AWOL was due to "compelling circumstances."  VA must consider "compelling circumstances" in a situation in which a claimant for benefits had been discharged under other-than-honorable conditions as a result of AWOL for a continuous period of 180 days or more, which is a "statutory bar" under 38 C.F.R. § 3.12(c)(6).  However, the claim on appeal has not been denied due to a "statutory bar" under 38 C.F.R. § 3.12(c), but rather to a "regulatory bar" under 38 C.F.R. § 3.12(d); i.e. willful and persistent misconduct.  Further, AWOL was just one of several factors that led to the appellant's BCD.  Accordingly, the appellant's assertion of "compelling circumstances" does not raise relevant argument that impacts the outcome of this appeal.

Based on the evidence and analysis above the Board finds the appellant's last period of service was under dishonorable conditions.  Accordingly, the criteria for qualification for VRAP are not met and the claim must be denied.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application.  38 C.F.R. § 3.102; see also Schoolman v. West, 12 Vet. App. 307, 311 (1999) and Alemany v. Brown, 9 Vet. App. 512, 519 (1996).


ORDER

Entitlement to VRAP is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs