Citation Nr: 1340917 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-15 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the character of the appellant's discharge from service for the period from August 1957 to March 1959 constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from July 23, 1954 to August 15, 1957, and from August 16, 1957 to March 3, 1959. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the appellant's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the appellant's claim. The appellant's claim was remanded by the Board in June 2013 in order to obtain the appellant's service treatment records (STR). Those records were obtained and are now included in the appellant's claims file. Evidence and statements submitted by the appellant subsequent to the August 2013 supplemental statement of the case are duplicative and have previously been considered by the RO in deciding the appellant's claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant began a four year commitment to the United States Marine Corps in July 1954. He was discharged for purposes of reenlistment on August 15, 1957. He resumed service on August 16, 1957. 2. At the time of the appellant's August 15, 1957 discharge from service, he had served for less than four years and he was not eligible for complete separation. 3. The appellant's period of service from August 16, 1957 to March 3, 1959 was terminated by a discharge under other than honorable (OTH) conditions. 4. The actions that led to the appellant's discharge from service in March 1959, included failure to obey a lawful order, and being absence without leave (AWOL) for a total of 215 days, and resulted in convictions at special courts martial. The appellant's actions constituted willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant's discharge for his entire period of service from July 1954 to March 1959 is a bar to the payment of VA compensation benefits. 38 U.S.C.A. §§ 101(2), 5303(b) (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.13 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Where the issue involves the character of an appellant's discharge, VCAA notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The RO provided this notice in a letter dated April 13, 2009. This letter informed him that VA compensation benefits would require resolution of the question of whether his service was honorable and the character of his discharge. 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. Furthermore, VA assisted the appellant by obtaining pertinent service personnel and treatment records. For VA purposes, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). If the 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 was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12. A discharge or release because of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct, which includes a discharge under other than honorable conditions and does not include discharge because of a minor offense if service was otherwise honest, faithful, and meritorious; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). As it prevents attainment of veteran status, a discharge under any of the aforementioned offenses pursuant to 38 C.F.R. § 3.12(d) generally is a bar to VA benefits. See 38 C.F.R. § 3.12(b). A service personnel record indicates that the appellant was put on two weeks restriction without suspension from duty for violation of the Uniform Code of Military Justice (UCMJ) Article 86, because of an unauthorized absence during May 2, 1955. The appellant's service personnel records reflect that he had unauthorized absences from December 6 to December 10, 1957; from December 12 to December 23, 1957; from April 18 to April 22, 1958; from April 24 to May 1, 1958; from May 2 to May 22, 1958; and from November 3 to January 5, 1959. In May 1958, the appellant was found guilty by special court-martial for violation of various provisions of the UCMJ. These convictions included the following: violation of UCMJ, Article 86 for being AWOL for the periods from April 18, 1958 to April 23, 1958, and April 24, 1958 to May 2, 1958; and violation of UCMJ, Article 92, for failure to obey a lawful order. His sentences included confinement at hard labor and reduction of rank. On December 3, 1958 the appellant was declared a deserter and was dropped from the rolls. In February 1959 the appellant's commanding officer noted two prior convictions by courts-martial, an average of 2.4 in conduct, 215 days of lost time and an unauthorized absence from November 3 to November 5, 1959, and requested that the appellant be discharged for reasons of unfitness. In February 1959 the appellant appeared before an Unfitness and Misconduct Discharge Board. At the hearing the appellant asserted that his military troubles resulted from financial problems caused by trying to support his family. He stated that his military pay was not adequate to properly provide the necessities for his wife and children. It was noted that the appellant had repeatedly committed offenses with warranted trial by court-martial and had lost a total of 215 days, thereby indicating his inability to conform to regulations. It was the opinion of the discharge board that the appellant was unfit for further retention and the discharge board recommended that the appellant be discharged by reason of unfitness. The record contains an undated statement signed by the appellant noting that the appellant had been informed that he was being considered for an undesirable discharge by reason of misconduct and the appellant indicated that he did not desire to make any statement at that time. Based on the foregoing pattern of behavior, the appellant was duly discharged effective March 3, 1959 under other than honorable conditions. In an April 2009 letter the appellant reported that his first discharge was honorable with a good conduct award. He asserted that he was working on his second good conduct award when everything seemed to go wrong. He stated that he was in a bad marriage and that he was insecure with a 7th grade education. The appellant claimed that his dishonorable discharge should have been a medical discharge. He reported that in May 1958 he was shot in the back of the head. On his February 2010 notice of disagreement the appellant stated that he did not recall being AWOL in May 1955. He indicated that he had problems during service due to his cultural background and his being a grammar school dropout. He also reported that his parents died while he was in service and that he was in a bad marriage at that time. He stated that his judgment and maturity were not a good consideration. The appellant felt that some of his service records and medical records were incorrect as they did not mention his being shot in the back of the head or his receiving treatment for cuts on the left arm. The appellant submitted a March 2010 letter from a physician who stated that he treated the appellant for posttraumatic stress disorder (PTSD). He also stated that the appellant had significant residual pain from a superficial gunshot occurring at the occiput of the head. The above evidence reveals that the appellant was discharged in March 1959 for a pattern of persistent and willful misconduct that included going AWOL on multiple occasions, and failure to obey a lawful order. Furthermore, the appellant's misconduct was clearly not minor, as he was declared a deserter on one occasion and he was tried and convicted by court-martial, on several occasions. The United States Court of Appeals for Veterans Claims (Court) has noted that offenses that interfere with one's military duties preclude their performance and are not minor. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). The Board has considered the appellant's contentions that he had problems at the time due to lack of education, immaturity, a bad marriage, and the death of his parents. However, these factors provide no justification for being AWOL for 215 days or for his failure to obey a lawful order. With regards to the appellant's claims that he was shot in the head during service, the Board does not find the appellant's statements to be credible. None of the service treatment records (STR), including Reports of Medical Examinations dated in August 1957, May 1958, January 1959 and March 1959, make any reference to a gunshot wound or a head injury. Regardless, even if the appellant had been shot in the head during service, the appellant made no assertions as to how such alleged injury was in anyway related to his misconduct during service. In this case, the appellant has not argued, and the evidence does not show, that he was insane at any time during his active duty service. The Board notes that the appellant received a "normal" clinical psychiatric evaluation upon all examinations during service, including the examination for separation from service in March 1959. Accordingly, the insanity exception to the bar of benefits based on discharge under dishonorable conditions is therefore not for application in this case. The appellant has in effect argued that his first period of service from July 23, 1954 to August 15, 1957 should be considered a separate valid, honorable period of service entitling him to status as a veteran. In essence, the appellant wishes his service to be broken into two separate and distinct periods, the first of which is honorable, and therefore not a bar to VA compensation. In this regard, the Board observes that the appellant's first DD Form 214 reveals that he had "honorable" service from July 23, 1954 to August 15, 1957, after which he was discharged and immediately reenlisted on August 16, 1957. Crucially however, a discharge to reenlist is deemed a "conditional" discharge, and not unconditional, if it was issued prior to the date the person was eligible for discharge under the point or length of service system. 38 C.F.R. § 3.13(a). Under these circumstances, an appellant's entire period of service constitutes one period of service, and entitlement to VA benefits is determined by the character of the final termination of such period of active service. 38 C.F.R. § 3.13(b). An exception can nevertheless apply. Under 38 C.F.R. § 3.13(c), despite the fact that a conditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) 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; (2) 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 (3) 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. 38 C.F.R. § 3.13(c). See also 38 U.S.C.A. § 101(18). In this case, the appellant's first DD-214 demonstrates that the appellant agreed to a four year term of service through July 1958 upon enlistment in July 1954. This obligation was clearly not satisfied at the time of his discharge for reenlistment in August 1957. Thus, although the appellant's service during the time period from July 23, 1954 to August 15, 1957 was deemed honorable on his DD-214, because he had not yet served the time he was obligated to serve at the time of the August 1957 discharge, the provisions of 38 C.F.R. § 3.13(c) cannot render that discharge "unconditional" or complete. As such, because the appellant was not eligible for complete separation through fulfillment of his service obligation at the time of his discharge for reenlistment in August 1957, his first and second periods of service [July 23, 1954 to August 15, 1957, and August 16, 1957 to March 3, 1959] are deemed as one by VA regulation, and the character of discharge from the appellant's final period of service is controlling. 38 C.F.R. § 3.13(b). Therefore, based on all of the above, the Board concludes that the appellant was discharged under other than honorable conditions due to willful and persistent misconduct for the period of service from July 1954 to March 1959. The character of the appellant's discharge for this period of service is in fact a bar to the payment of VA benefits. 38 C.F.R. § 3.12(d)(4). For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the appeal must be denied. See Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER The character of the appellant's discharge for the period of service from July 1954 to March 1959 remains a bar to payment of VA benefits, such that the claim is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs