Citation Nr: 1428024 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 11-16 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Whether the character of discharge of the appellant's deceased spouse constitutes a bar to payment of VA benefits, to include VA death benefits. REPRESENTATION Appellant is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant's deceased spouse had active duty service from May 1968 to July 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the RO in St. Paul Minnesota, which denied claims for Dependency and Indemnity Compensation and Dependents' Educational Assistance. In June 2013, the appellant presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2013). A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to insure a total review of the evidence. FINDINGS OF FACT 1. The entire period of service from May 1968 to July 1970 was under conditions other than honorable. 2. The discharge was not upgraded by a discharge review board established under 10 U.S.C. § 1553. 3. The combination of offenses resulting in numerous non-judicial punishments constitutes willful and persistent misconduct. 4. The appellant's deceased spouse was not insane at any time during his service. CONCLUSION OF LAW The character of discharge of the appellant's deceased spouse constitutes a bar to benefits administered by VA. 38 U.S.C.A. §§ 101, 5107, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.203, 3.354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's deceased spouse had one period of service from May 1968 to July 1970. The pivotal determination in this case is whether the appellant's deceased spouse may be considered a "veteran" for VA purposes, as the VA benefits claimed by the appellant are her relationship to a "veteran." A veteran is defined as "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); 38 C.F.R. § 3.1(d). There are numerous statutory and regulatory bars to VA benefits stemming from the characterization of an individual's service at discharge. Pertinent to this appeal, a discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under "other than honorable" conditions, if VA determines 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. 38 C.F.R. 38 C.F.R. § 3.12(d). Here, the original discharge document, DD Form 214, reflects that the appellant's deceased spouse was discharged in July 1970 under conditions "other than honorable." The Board acknowledges that the appellant's deceased spouse applied to have his discharge upgraded under the Department of Defense's Special Discharge Review Program in June 1977. In October 1977, his DD Form 214 was reissued reflecting a discharge "under honorable conditions." However, an upgraded discharge under the Special Discharge Review Program does not remove the bar to VA benefits. A discharge review board under 10 U.S.C. § 1553 must determine on an individual case basis that the discharge would be upgraded under uniform standards meeting specific requirements. Here, the record reflects that the Navy Discharge Review Program considered an upgrade under uniform standards of discharge review pursuant to Public Law 95-126. They initially determined (August 1978) that the determination of the Special Discharge Review Program should be upheld. However, they reconsidered the application in July 1978 and determined that an upgrade was not warranted. Based on this determination, to the extent there has been an upgrade granted under the Special Discharge Review Program, this upgrade does not affect the appellant's entitlement to VA compensation benefits. For VA purposes, the character of service of her deceased spouse remains other than honorable. Having determined that an other than honorable discharge applies to the sole period of service from May 1968 to July 1970, the Board must determine if this characterization was due to willful and persistent misconduct constituting a bar to VA benefits, exclusive of health care benefits of Chapter 17, United States Code. 38 U.S.C.A. § 5303; 38 C.F.R. §§ 3.12, 3.354. The service records show that the serviceman requested and was granted an undesirable discharge for the good of the service based on three violations of punitive articles of the Uniform Code of Military Justice (UCMJ), specifically, Article 92, Article 128, and Article 89. The serviceman was awaiting trial by Special Court Martial when he accepted the undesirable discharge. In addition to these violations, his service records also show four additional non-judicial punishments for violations of Articles 134 (September 1969), 128 (October 1969), and 91 (April 1970, and May 1970). In Rogers v. Derwinski, 2 Vet. App. 419 (1992), the United States Court of Appeals for Veterans' Claims (Veterans' Court) affirmed a Board decision finding that two non-judicial punishments and initiation of a Special Court Martial with subsequent discharge for good of the service constituted a pattern of willful and persistent misconduct. In light of the evidence here, the Board finds that the numerous violations, some of which were violent in nature, and which would have resulted in a Special Court Martial if the serviceman had not applied for discharge, constitute a pattern of willful and persistent misconduct and are a regulatory bar to VA benefits as defined under 38 C.F.R. § 3.12(d)(4). The record also shows that the pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). It cannot be said that his service was "otherwise honest, faithful and meritorious." Therefore, the Board finds the conduct of the appellant's deceased spouse was indeed willful and persistent misconduct, and his discharge is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d). The Board also finds that the appellant's deceased spouse was not insane at the time of his willful and persistent misconduct. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). The service treatment records reveal no treatment for psychiatric issues during his service and he was found to be psychiatrically normal at service separation in July 1970. The appellant has never asserted that her deceased spouse was insane at the time of the in-service incidents, nor did he during his lifetime. The Board notes that the record contains copies of two rating decisions purporting to grant benefits to the appellant and her brother -in-law (serviceman's brother) on issues including the cause of death of the appellant's deceased spouse and burial benefits. The RO noted in the statement of the case that these were preliminary draft decisions which were loaded to the electronic records repository but were never dispatched. It is unclear how the decisions were released; however, the Board notes that it is not bound by these decisions and reviews the matters on appeals de novo. The Board also acknowledges an argument by the appellant's representative that the provisions of 38 C.F.R. § 20.1106 mandate that VA must disregard the determination made during her spouse's lifetime that he was ineligible for VA benefits (see May 2011 RO hearing transcript, page 7). In essence, that provision states that issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during "the veteran's" lifetime. Thus, by its wording the provision is applicable to those with status as a "veteran," which is not the case here. Moreover, this section simply removes the bar of finality of decisions made during a veteran-claimant's lifetime for the limited purpose of permitting his or her survivors to seek the same benefits. VA has properly followed this provision in adjudicating the appellant's claim and appeal without requiring that she submit new and material evidence on the question of whether the character of discharge of her deceased spouse constitutes a bar to payment of VA benefits. In light of the prior denials of benefits pursued by the appellant's deceased spouse during his lifetime on the same matter, this would have been required but for the application of 38 C.F.R. § 20.1106. In summary of the Board's findings, the entire period of service was under conditions other than honorable; the discharge was not upgraded by a discharge review board established under 10 U.S.C. § 1553; the combination of offenses which would have resulted in a trial by Special Court Martial constitutes willful and persistent misconduct; and the appellant's deceased spouse was not insane at any time during his service. As such, the appellant's deceased spouse does not have status as a veteran for VA purposes, and the appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant has not asserted that there has been any deficiency in the notice or assistance provided under the Veterans Claims Assistance Act of 2000 (VCAA). Moreover, the Board finds that because the issue presented is one of statutory interpretation, the VCAA is not applicable. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii). While the Board acknowledges that the questions raised by the appellant concerning the question of insanity and the determination as to whether there was a pattern of willful and persistent misconduct, there is no actual dispute as to these facts. The appellant has never asserted that her deceased spouse was insane, or that his actions did not constitute a pattern of willful and persistent misconduct. The appellant's written assertions and testimony are centered on her assertion that his discharge was upgraded and that this should permit a grant of the benefits sought. Thus, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to "veteran" status and the applicability of upgraded discharges under the Special Discharge Review Program. This case turns therefore not a factual dispute, but a dispute of law. The VCAA is inapplicable and need not be considered in this case. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2013). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the appellant was specifically notified of the reasons for the RO's denial of her claim and of the nature of the evidence necessary to substantiate the claim. Such actions comply with 38 C.F.R. § 3.103. ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs