Citation Nr: 1514288 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 13-07 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to show that the Appellant's discharge from service under conditions other than honorable is not a bar to VA benefits. 2. Whether the Appellant's discharge from service under other than honorable conditions is a bar to VA benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Appellant had active service from October 1969 to November 1972. He was discharged from active service under conditions other than honorable. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board observes that, in a November 1979 rating decision, the RO determined that the character of the Appellant's other than honorable discharge from active service was a bar to VA benefits. The Appellant did not appeal this decision and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Appellant also did not submit any statements relevant to this claim within 1 year of the November 1979 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to show that the Appellant's discharge from service under conditions other than honorable is not a bar to VA benefits is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. In November 1979, the RO denied the Appellant's claim regarding the character of his service. 2. At the time of the RO's November 1979 decision, the Appellant's service personnel records showed that his character of service was under conditions other than honorable. 3. Evidence added to the record since the November 1979 decision includes the Appellant's March 2013 allegation that he received from the Navy Department Review Board an upgraded discharge to general under honorable conditions and a General Discharge certificate. 4. The Appellant did not receive an upgraded discharge to general under honorable conditions from the Navy Department Review Board. 5. The Appellant's infractions in service include sleeping on post (Republic of Vietnam) on September 19, 1970, willfully disobeying the order of a non-commissioned officer (NCO) to take down plastic around a bunker (WDOLO), using disrespectful language to a NCO (DIL), and Violation of General Order by not being watchful at night on October 30, 1970, Violation of a General Order, Rules of Engagement, by firing a round (combat zone) without reporting it on January 11, 1971, sleeping on post as a sentry (Republic of Vietnam) on January 23, 1971, absent without leave (AWOL) from April 3, 1971, to June 24, 1971, being apprehended and charged with robbery on December 7, 1971, and a civil court conviction for 1st degree robbery on February 10, 1972. 6. The Appellant's actions during service constitute willful and persistent misconduct. 7. The Appellant's service is considered dishonorable for VA purposes. CONCLUSIONS OF LAW 1. A November 1979 rating decision, which determined that the Appellant's character of discharge is a bar to VA benefits, is final. 38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). 2. Evidence received since the November 1979 rating decision is new and material; accordingly, the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The Appellant's character of discharge is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2014); 38 C.F.R. §§ 3.12, 3.354 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). As the claim is being reopened on the basis of new and material evidence, the Board need not determine whether there has been compliance with these notice and duty to assist provisions insofar as apprising the Appellant of the specific reasons for the prior denial of this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As to the merits of the reopened claim, the Board finds that an extended discussion of the VCAA is unnecessary. Because this case involves the legal question regarding whether the Appellant has legal standing to apply for VA benefits, the VCAA is inapplicable to this appeal. See Wensch v. Principi, 15 Vet. App. 362 (2001); see also Smith v. Gober, 14 Vet. App. 227, 231-232 (2000) (holding that the VCAA was inapplicable to a matter of pure statutory interpretation). Further, the Appellant was informed in the February 2013 statement of the case of the fact that his character of discharge from active service could serve as a bar to his receiving VA benefits. The Appellant has responded and has had a full and fair opportunity to present arguments in support of his claim. New and Material Evidence The Appellant's service personnel records show that his character of service was under conditions other than honorable. Specifically, they show he was given an undesirable discharge from active service. The Appellant's infractions in service include sleeping on post (Republic of Vietnam) on September 19, 1970, willfully disobeying the order of a NCO to take down plastic around a bunker (WDOLO), using disrespectful language to a NCO (DIL), and Violation of a General Order by not being watchful at night on October 30, 1970, Violation of a General Order, Rules of Engagement, by firing a round (combat zone) without reporting it on January 11, 1971, sleeping on post as a sentry (Republic of Vietnam) on January 23, 1971, AWOL from April 3, 1971, to June 24, 1971, being apprehended and charged with robbery on December 7, 1971, and a civil court conviction for 1st degree robbery on February 10, 1972. In October 1972, the Appellant was recommended for an administrative discharge by reason of misconduct (i.e., a conviction by civil authority of 1st degree robbery, an offense punishable by confinement in excess of one year). He waived all of his rights and accepted the discharge. Thereafter, he received an undesirable discharge from active service. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing 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 cannot be cumulative or 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). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. In Shade v. Shinseki, 24 Vet. App. 110, 116 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." This phrase, "raises a reasonable possibility of substantiating the claim," does not create a third element for new and material evidence but was intended, instead, to provide guidance to VA adjudicators in determining whether submitted evidence meets the new and material requirements. That is, the Board cannot require the evidence to be new, material, and raise a reasonable possibility of substantiating the claim. In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could reasonably result in substantiating the claim if it were reopened. Id., at 118. In the prior final November 1979 rating decision, the claim was denied because the Appellant's discharge from service in November 1972 was found to have been issued under conditions which constitute a bar to entitlement to VA benefits. Since that November 1979 decision, the Appellant asserted in March 2013 that the Navy Department Review Board upgraded his discharge to general under honorable conditions. Moreover, in support of his claim, he provided VA for the first time with a document entitled General Discharge which indicated that he received a general under honorable conditions discharge in November 1972. Since the credibility of this additional evidence is presumed, albeit only for the limited purpose of determining whether this evidence is new and material, and the character of the Appellant's service is fundamental to the outcome of the underlying claim, the Board finds that this evidence constitutes new and material evidence sufficient to reopen the claim. See Justus, 3 Vet. App. 510, 513 (1992). Character of Discharge Claim In order to qualify for VA benefits, an Appellant must demonstrate that he had the status of a Veteran. Struck v. Brown, 9 Vet. App. 145, 152 (1996). The term "Veteran" means 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). A person seeking to establish Veteran status must do so by a preponderance of the evidence; the benefit-of-the doubt doctrine is not applicable to that determination status. Struck, 9 Vet. App. at 152; see also Laruan v. West, 11 Vet. App. 80 (1998) (overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000)). There are two types of character of discharge bars to establishing entitlement for 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). The statutory bars under 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c) state that benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities, (2) by reason of the sentence of a general court- martial, (3) resignation by an officer for the good of the service, (4) as a deserter, (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release, or (6) by reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether there are compelling circumstances to warrant the prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c). The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for any of the following offenses: (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, and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. A discharge or release from service under either the statutory or regulatory bars is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). An insane person is one who, due to a disease (1) "exhibits ... a more or less prolonged deviation from his normal method of behavior;" (2) "interferes with the peace of society;" or (3) "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." Struck, 9 Vet. App. at 152 (quoting Zang v. Brown, 8 Vet. App. 246, 253 (1995)). The Appellant in this case does not contend and the available evidence, including his guilty conviction, does not show that he was insane at the time of committing the offenses which prompted his undesirable discharge. As reported above, the records show that the Appellant served from October 1969 to November 1972. Also as reported above, the infractions for which he was found guilty in service include sleeping on post (Republic of Vietnam) on September 19, 1970, willfully disobeying the order of a NCO to take down plastic around a bunker (WDOLO), using disrespectful language to a NCO (DIL), and Violation of a General Order by not being watchful at night on October 30, 1970, Violation of a General Order, Rules of Engagement, by firing a round (combat zone) without reporting it on January 11, 1971, sleeping on post as a sentry (Republic of Vietnam) on January 23, 1971, AWOL from April 3, 1971, to June 24, 1971, and a civil court conviction for 1st degree robbery on February 10, 1972. In October 1972, the Appellant was recommended for an administrative discharge by reason of misconduct (i.e., a conviction by civil authority of 1st degree robbery, an offense punishable by confinement in excess of one year). He waived all of his rights and accepted the discharge. Thereafter, he received an undesirable discharge from service. As to the Appellant's assertions that he received from the Navy Department Review Board an upgraded discharge to general under honorable conditions, the record shows that, in October 1977, the Appellant was notified that a Department of the Navy, Special Review Program, had recommended in August 1977 that his discharge be upgraded to under honorable conditions. The record contains a DD Form 214 which lists the character of the Appellant's service as Under Honorable Conditions and the General Discharge certificate discussed above. A review of the record shows that, in August 1978, the Department of the Navy, DOD Discharge Review Program (Special), notified the Appellant that he did not qualify for an upgrade in the character of his discharge from active service and declined to affirm the recommendation from the Department of the Navy, Special Review Program, that his discharge be upgraded to under honorable conditions. The August 1978 holding by the Department of the Navy, DOD Discharge Review Program (Special) is binding on VA as to the character of the Appellant's discharge from active service. Notwithstanding the Appellant's claims to the contrary, the 1977 letters from Department of the Navy, Special Review Program, the DD Form 214, and the General Discharge certificate, the Board finds that the preponderance of the evidence shows that the character of the Appellant's discharge was not upgraded to general, under honorable conditions, and it remains undesirable. During the pendency of the appeal, the Appellant has not made any argument to show he is entitled to Veteran status. In statements found in his service personnel records, however, the Appellant claimed that his infractions during service were caused by his becoming addicted to narcotics while serving in the Republic of Vietnam. As discussed above, a discharge is considered to have been issued under dishonorable conditions if a person commits willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). Moreover, the Court has stated consistently that it is the Appellant's burden of proof to show by a preponderance of the evidence that he or she is entitled to Veteran status. Struck, 9 Vet. App. at 152; see also Laruan, 11 Vet. App. 80 (1998), and Aguilar v. Derwinski, 2 Vet. App. 21 (1991). The Board finds that the Appellant has not met this burden in this appeal. In this regard, the Board finds that the evidence in the Appellant's service personnel records and civil court records surround the 1st degree robbery conviction are inconsistent with the Appellant's assertions that his in-service infractions were caused by a narcotic addiction which began while he was on active service in the Republic of Vietnam. Therefore, the Board finds that the Appellant's assertions as to this issue lack merit. See Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Even assuming for the sake of argument only that the Veteran's assertions regarding his alleged in-service narcotic addiction were credible, the Board finds that an action which constitutes willful misconduct (i.e., the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use or the use of substances other than alcohol to enjoy their intoxicating effects) is not a valid justification for an in-service action and does not demonstrate by a preponderance of the evidence that the Appellant is entitled to Veteran status. See 38 U.S.C.A. § 105 (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(d) (2014). In summary, the Board finds that, because he engaged in willful and persistent misconduct, the Appellant's discharge from active service is considered dishonorable and the character of his discharge from active service is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. ORDER As new and material evidence has been received, the previously denied claim is reopened; to this extent only, the appeal is granted. Because the character of the Appellant's other than honorable active service is a bar to VA benefits, the appeal is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs