Citation Nr: 1343459	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  08-24 157	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Whether the character of the appellant's service is a bar to VA benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Hudson, Counsel






INTRODUCTION

The appellant served on active duty from September 1989 to February 2003, when he received a dishonorable discharge from service.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the RO in Wichita, Kansas, which determined that the character of the appellant's discharge was a bar to VA benefits.  The appeal was remanded in February 2011.


FINDINGS OF FACT

1.  The appellant's service was terminated by a dishonorable discharge by reason of general court-martial.  

2.  The appellant was not insane at the time of the offenses that led to his dishonorable discharge from service.


CONCLUSION OF LAW

The character of the appellant's discharge from service is a statutory bar to VA 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

I.  Veterans Claims Assistance Act (VCAA) Compliance

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In a letter dated in October 2007, prior to the initial adjudication of the claim, the RO advised the claimant of information necessary to substantiate the claim.  He was advised of the type of evidence that could help him establish that his service was not dishonorable.  

Under the VCAA, the VA also has a duty to assist the claimant by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c).  In this case, VA obtained the claimant's service treatment and personnel records.  All available records pertaining to the criminal investigation of the appellant's case were obtained, pursuant to the Board remand, including records pertaining to the April 1993 incident; thus, the remand directives were satisfied.  Inasmuch as there is no evidence that he was insane at the time he committed the offenses leading to his other than honorable discharge, an examination or medical opinion is not required.  

Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Analysis

As a threshold matter, a claimant must first establish, by a preponderance of the evidence, that the former service member upon whose service such benefits are predicated has attained the status of veteran.  Holmes v. Brown, 10 Vet. App. 38, 40 (1997); Aguilar v. Derwinski, 2 Vet. App. 21 (1991).  A "veteran" is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012).

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). 

The appellant contends that his dishonorable discharge should not be held as a bar to VA benefits due to two discharges to reenlist that occurred prior to his conviction for felonies at a general court-martial in July 1998.

There are two types of character of discharge bars to establishing entitlement to VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c), and regulatory bars listed in 38 C.F.R. § 3.12(d). A dishonorable discharge by reason of the sentence of a general court martial is a statutory bar. 38 C.F.R. § 3.12(c).  

A person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C.A. § 5107(b), is not applicable to that determination of status.  See Aguilar, supra.

The appellant entered active duty in September 1989, for a four year tour of duty.  He was discharged to reenlist in June 1993, three months short of the conclusion of his original tour of duty.  The reenlistment was for an additional two years of service.  The appellant was discharged to reenlist again in March 1995, again three months short of the conclusion of his tour, for an additional two years of service.  The appellant's final, scheduled discharge was to occur in March 1997.  The appellant was arrested and confined pending a Court Martial prior to March 1997.  His discharge was delayed, and he was convicted of felonies in July 1998.  He served six years in prison before receiving a dishonorable discharge and separating from service in February 2003.  

Where a service member receives a discharge to reenlist, the entire period of service may be held to constitute one period of service, and entitlement will be determined by the character of the final termination of such period of service.  See 38 U.S.C.A. § 101 (18); 38 C.F.R. § 3.13(b) (2013).  

However, 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) (2013); VAOGCPREC 8-2000 (July 25, 2000).

Here, the appellant reenlisted in June 1993 and March 1995, prior to the completion of period of active service for which he was obligated at the time of his entry into service.  The remaining question is whether the appellant would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable in September 1993, at the conclusion of his original period of service or in June 1995, at the conclusion of his first extension of service.

The events which precipitated the general court-martial occurred on April 2, 1993 and in August and November 1995.  The appellant was charged with committing an indecent assault upon a person not his wife on or about April 2, 1993.  The April 1993 event was clearly within the original term of service.  The appellant argues that the Army knew of the April 1993 event, investigated it, chose not to prosecute him, and allowed him to reenlist.  He argues this should not be counted against him.  

The investigation reports obtained in connection with the remand development include a summary of the event which reportedly took place on April 3, 1993, and the ultimate conclusion that there was no credible information to believe that a crime was completed.  The case was therefore closed.  

Evidence compiled in connection with the general court-martial included law enforcement records, which showed the appellant was the subject of a CID preliminary inquiry concerning an event which occurred on April 2, 1993.  During the investigation, the appellant was alleged to have indecently assaulted a female whom he had gotten intoxicated.  Insufficient credible information was obtained to list him as a subject in the previous investigation, but the modus operandi was similar to the subsequent incidents.  

Admittedly, this does not clearly establish how the April 2, 1993, incident came to be listed as a charge and conviction in the general court-martial.  Nevertheless, the general court-martial report dated in July 1998 included this charge as one of the charges of which the appellant was found guilty in the general court-martial.  Thus, one of the offenses of which the appellant was convicted occurred during his first period of enlistment, and before he had completed the initial period for which he was obligated.  

VA regulations specifically provide that with discharge due to general court-martial only a finding of insanity or a decision of a board of correction of records established under 10 U.S.C. 1552 (the service department) can establish basic eligibility to receive VA benefits.  38 C.F.R. § 3.12(c)(2). 

In this case, the evidence does not show, nor has the appellant ever contended that he was insane at the time of committing the offenses resulting in his discharge.  See 38 C.F.R. § 3.12(b) . He did not offer such a defense in service, and there is no indication in the service medical records or otherwise of the existence of any insanity at the time of the commission of the offenses leading to his discharge.  

There is no indication that the service department has revised the character of his discharge.  Indeed, he was examined in July 1976 and found to be free of mental illness and capable of determining right from wrong.  Service department findings (i.e., the Army, Navy and Air Force) are binding 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); see, e.g., Spencer v. West, 13 Vet. App. 376, 380, (2000).  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).  
Moreover, as noted above, the burden of proof is on the claimant to establish veteran status.  Such has not been accomplished in this case.  The weight of the evidence is against the claim; thus, the appellant has failed to establish, by a preponderance of the evidence, that he is a "veteran" (with a qualifying discharge), and the reasonable doubt doctrine is not for application.  See Holmes, Aguilar, supra.  


ORDER

The appellant's discharge from service under dishonorable conditions encompassed the entire period of his service, and constitutes a bar to VA benefits; the appeal is denied.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs