Citation Nr: 1340727 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-16 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been received to reopen the appellant's claim that his character of discharge is not a bar to basic eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17), and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The appellant had active naval service from March 1994 to May 1997. The appellant's discharge was characterized as under other than honorable conditions (OTH). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In connection with this appeal, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO in April 2012. A transcript of that hearing has been associated with the claims file. Although the RO has determined that new and material evidence has been submitted to reopen the appellant's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. In a May 2002 administrative decision, the RO determined that the appellant's discharge was a bar to basic entitlement to VA benefits (exclusive of health care under 38 U.S.C. Chapter 17). 2. The evidence associated with the claims file subsequent to the May 2002 administrative decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The appellant was subject to non-judicial punishment during active service for destruction of private property, failure to obey a lawful general order or regulation, and aggravated assault. 4. The appellant's conduct while in active naval service constituted willful and persistent misconduct and the appellant was not insane at the time of the offenses that led to his discharge. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the appellant's claim that his character of discharge is not a bar to basic eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17). 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The character of the appellant's discharge is a bar to basic eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17). 38 U.S.C.A. §§ 101(2), 5303 (West 2002); 38 C.F.R. § 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). As part of the notice, VA must 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the appellant's claim to reopen, the Board notes that the appellant has been provided all required notice. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the appellant's claim to reopen. Therefore, no further development is required with regard to that issue. With regard to the appellant's claim that his character of discharge is not a bar to basic eligibility to VA benefits (exclusive of health care under 38 U.S.C. Chapter 17), the record shows that the appellant was mailed a letter in February 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The Board also finds that the appellant has been afforded adequate assistance in response to his claim. The appellant's service medical records and service personnel records, to include the facts and circumstances surrounding his OTH discharge, are on file. Neither the appellant nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board has not been made aware of any outstanding evidence. Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). New evidence is defined as evidence not previously submitted to agency decision-makers. 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) (2013). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The appellant's discharge was originally found to be a bar to entitlement for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17) in a May 2002 administrative decision. The appellant did not appeal that decision. The pertinent evidence of record at the time of the May 2002 administrative decision included the appellant's service medical records and his service personnel records, to include the facts and circumstances surrounding his OTH discharge. The pertinent evidence that has been received since the May 2002 administrative decision includes the appellant's March 2009 RO hearing testimony and April 2012 Board hearing testimony, in which he elaborated on the facts and circumstances surrounding his OTH discharge, providing details which go beyond those contained in the service medical records and service personnel records. The Board finds that the appellant's hearing testimony is new and material. The evidence is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim, when presumed credible for the purpose of determining whether to reopen the claim. Accordingly, reopening of the appellant's claim that his character of discharge is not a bar to basic eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17) is warranted. Character of Discharge The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. §§ 101(2), 101(18) (West 2002); 38 C.F.R. § 3.12(a) (2013). A discharge or release for certain offenses is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d) (2013). A Veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013). A discharge from military service because of willful and persistent misconduct 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) (2013). 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) (West 2002); 38 C.F.R. § 3.12(b) (2013). VA regulations provide that 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 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 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The appellant asserts that his active service should qualify him as a Veteran for purposes of receiving VA benefits because the offenses that led to his OTH discharge did not constitute willful and persistent misconduct. A review of the appellant's service personnel records shows that the appellant was originally contracted to serve in the United States Navy for a period of four years, but only served three years, two months, and two days of his commitment. During his period of active service, the appellant was subject to non-judicial punishment three times. In October 1994, the appellant kicked a pumpkin off a porch while helping his friends move out of a home. In November 1994, the appellant received non-judicial punishment for violation of Article 109 of the Uniform Code of Military Justice (UCMJ) for destruction of private property. He was required to forfeit $208 of pay for one month, was placed on restriction for 14 days, and was required to perform extra duties for 14 days. In March 1996, the appellant was noted to be a restrained driver in a car accident. The car was severely damaged and the appellant was transported by ambulance and received initial treatment at a civilian hospital. Subsequently, the appellant was transferred to the Naval hospital, at which time the appellant's blood alcohol content (BAC) was tested and found to be well over the legal limit. Following evaluation for alcohol dependence for placement in rehabilitation, the appellant was not found to have alcohol dependence and in May 1996, the appellant received non-judicial punishment for a violation of Article 92 of the UCMJ for violation or failure to obey lawful general order or regulation. He received a reduction in rate to E-2, was required to forfeit $500 of pay per month for two months, was placed on restriction for 30 days, and was required to perform extra duties for 30 days. In April 1997, while the appellant was serving aboard the USS Clark, the appellant was frequenting a bar while the USS Clark was in port. While at the bar, the appellant punched a Senior Chief in the face. Following the altercation, the appellant returned to the USS Clark. Upon his return to the USS Clark, the appellant was found to be intoxicated and was detained on deck for examination by a corpsman. In the various reports resulting from the investigation into the altercation, it was noted that the victim may have been harassing the appellant prior to the punch. However, it was not definitive. In April 1997, the appellant received non-judicial punishment for a violation of Article 128 of the UCMJ for aggravated assault. He received a reduction in rate to E-3, was required to forfeit $575 of pay per month for two months, and was required to perform extra duties for 45 days. Approximately one month after his third offense, the appellant was separated from active service with an OTH discharge and was noted to be ineligible for re-enlistment. At his March 2009 RO hearing and his April 2012 Board hearing, the appellant provided testimony claiming that the offenses were not as serious as noted in the record and that there were extenuating circumstances for each instance of non-judicial punishment. First, the appellant argued that he never destroyed private property. Rather, he reported that kicking the pumpkin was accidental and that, essentially, the owners of the pumpkin overreacted. With regard to the appellant's March 1996 driving under the influence accident and subsequent punishment, the appellant testified that he would not have usually driven drunk, but that he and his friends were being threatened by some local men and they had to get away from a bar quickly. The appellant also testified the issue was not a serious offense as he was not charged with driving under the influence (DUI) by the local authorities. With regard to the charge of aggravated assault, the appellant argued that he was goaded into punching a superior service member in the face and that the superior service member actually asked the appellant to punch him. Further, the appellant has argued that he should not be found to have engaged in willful and persistent misconduct based on the fact that he had superior job performance while in active service. The Board has considered the appellant's testimony. However, the Board finds that the appellant's behavior in service constitutes willful and persistent misconduct. The appellant actions resulted in non-judicial punishment three times in a three year period. Additionally, two of the incidents in question were alcohol related and at least one of the offenses (aggravated assault) was serious in nature. In fact, the aggravated assault offense was serious enough to prompt the appellant's early separation from active service. The Board finds that there are no adequate extenuating circumstances to excuse the appellant's offenses while in active service. Further, the Board considered the appellant's statements that his ability to adequately and meritoriously perform his duties while in active service should negate a finding of willful and persistent misconduct. However, the Board finds that being good at assigned duties does not mean that person cannot engage in bad behavior serious enough to warrant disciplinary action outside of work. This is not a situation in which the appellant's offenses were minor in nature and so, could be excused by service that was otherwise honest, faithful, and meritorious. Specifically, the aggravated assault charge was a serious offense, and the other offenses show that the service was not otherwise clear of offense. Additionally, the appellant was made aware of his undesirable discharge status prior to separation and there is no indication from the record that the appellant attempted to have his discharge status upgraded. Additionally, the appellant has not provided any evidence indicating that he was insane at the time of the offenses that led to his undesirable discharge. Furthermore, the Board notes that it is bound by the service department's determination for the reason of a Veteran's separation from active service and is not at liberty to change such determination. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The narrative reason for separation is "misconduct - commission of a serious military offense." Therefore, an appellant's recourse in such a situation is with the service department, not with VA, and there is no evidence in the available records to show that the appellant applied to the Discharge Review Board for an upgrade of his discharge within the 15 year statute of limitations. In sum, the Board finds that the RO was correct in its determination that the appellant's discharge was not the result of insanity, but rather willful and persistent misconduct. Accordingly, the Board finds that the appellant is not a Veteran for VA compensation and pension purposes as his character of discharge was other than honorable and is considered to be dishonorable for VA purposes and is a bar to VA benefits, exclusive of health care under 38 U.S.C. Chapter 17. ORDER New and material evidence has been presented to reopen a claim that the character of discharge is not a bar to basic eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17). To that extent only, the claim is allowed. Because the character of discharge is a bar to basic eligibility for VA benefits, eligibility for VA benefits (exclusive of health care under 38 U.S.C. Chapter 17) is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs