Citation Nr: 1604256 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 13-33 899A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the Appellant's character of discharge disqualifies him from participation in the Veterans Retraining Assistance Program (VRAP). ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Appellant served on active duty in the United States Naval Reserves from August 1978 to August 1981. This period of service is characterized as honorable. He subsequently served on active duty in the United States Marine Corps from July 1983 to March 1987. This second period of service is characterized as under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The Appellant was discharged from his last period of active service from July 1983 to March 1987, under other than honorable conditions due to misconduct, described as drug abuse/use; his discharge was properly characterized as dishonorable. CONCLUSION OF LAW The character of the Appellant's last discharge from service from July 1983 to March 1987, under other than honorable conditions due to misconduct, is a bar to qualification for VRAP. 38 U.S.C.A. § 5303 (West 2014); 38 C.F.R. §§ 3.1(d), 3.12 (2013); VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The file contains a DD Form 214 relating to the Appellant's first period of service from August 1978 to August 1981, reflecting that his discharge was characterized as honorable. A discharge under honorable conditions is binding on VA as to the character of discharge. 38 C.F.R. § 3.12(a). A second DD 214, relating to the Appellant's period of service from July 1983 to March 1987, reflects that the Appellant was discharged under other than honorable conditions due to misconduct due to a pattern of misconduct. A July 2006 Administrative Decision Character of Discharge Determination, in pertinent part, determined that the Appellant's service of July 28, 1983 to March 10, 1987 was under other than honorable conditions and a bar to VA benefits based on this period of service. The service records included statements from the Chairman of the Administrative Board and Commanding Officer, a final administration board procedure, and statements of the Appellant. The Chairman indicated that the Appellant was recommended for misconduct due a pattern of misconduct. It was noted that the Appellant had an established pattern of involvement of a discreditable nature as evidenced by three nonjudicial punishments. In January 1985, the Appellant tested positive for marijuana on a urinalysis test and received nonjudicial punishment. In September 1986, he was charged with unauthorized absence. In October 1986, he was charged with breaking restriction, disobedience of a lawful order from a commissioned officer, disobedience of a lawful order form a non-commissioned officer, disrespect, and communicating a threat. He was reduced in rank. The administrative board proceedings in January 1987 indicated that the Appellant had committed a repeated pattern of misconduct, and the Appellant was recommended for discharge under other than honorable circumstances. Subsequently, in July 2006, the RO determined that the Appellant's violations of the Uniform Code of Military Justice (UCMJ) related to drug offenses and displayed a disregard for military authority and regulations. The RO found that the Appellant's service was dishonorable and a bar to VA benefits. In December 2012, the Appellant applied for VRAP benefits. In July 2013, the Appellant was advised that he did not qualify for VRAP benefits because his last discharge was dishonorable. The VRAP is a component of the VOW to Hire Heroes Act of 2011, passed by Congress, and signed into law by the President. VRAP offers up to 12 months of training assistance to unemployed Veterans. Participants may pursue an approved program of education offered by a community college or technical school that leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training) and is designed to provide training for a high-demand occupation. Pursuant to the VRAP an eligible Veteran must: be at least 35 but not more than 60 years old; be unemployed; have last been discharged under other than dishonorable conditions; not be eligible for any other VA education benefit programs; not be in receipt of VA compensation due to unemployability; and not be, or have been in the last 180 days, enrolled in a Federal or state job training program. The program is limited to 45,000 participants from July 1, 2012 through September 30, 2012, and to 54,000 participants from October 1, 2012, through March 31, 2014. Participants may receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill-Active Duty program. As noted, to participate in the VRAP, an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011). Under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b) unless it is found that the person was insane at the time of committing the offense causing such discharge or unless otherwise specifically provided by statute. There are two types of character-of-discharge bars to establishing entitlement to VA benefits: "statutory bars" under 38 C.F.R. § 3.12(c) and "regulatory bars" under 38 C.F.R. § 3.12(d). Insanity is a defense against either a statutory bar or a regulatory bar. In this case, there are no allegations of insanity and the record does not support such a finding. The circumstances of "statutory bars" as defined by 38 C.F.R. § 3.12(c) do not apply. The Appellant in this case has been denied benefits for willful and persistent misconduct, which is cited by 38 C.F.R. § 3.12(d) as a "regulatory bar" considered to have been 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). However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance . . . are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). The Appellant has provided no evidence or information relating to his other than honorable discharge from his second period of service. On review of the evidence above, the Board finds that the Appellant's most recent bad conduct discharge was due to persistent and willful misconduct in service, as supported by the evidence. As noted by the June 2006 administrative decision, the Appellant was charged with misconduct due to drug abuse, unauthorized absence, irresponsibility, disrespect to authority and communicating a threat. The service personnel records reflect that the Appellant received repeated counsellings by multiple people during his second period of service; the Board finds it significant that he was given numerous opportunities to demonstrate improved behavior, but did not. Although the Appellant had an honorable period of service, a provision of the law itself specifies that, to participate in the VRAP, an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011) (emphasis added). The Board cannot consider the commission of the UCMJ offenses during his second and last period of service to have been "minor" under the criteria of 38 C.F.R. § 3.12(d)(4) as the offenses were of a nature that would interfere with the Appellant's military duty. Stringham, 8 Vet. App. 445, 448; Cropper, 6 Vet. App. 450, 452-453. If the Appellant wishes to change or upgrade the characterization of his last discharge, he is free to petition the appropriate Marine Corps authority. Given the above, the Board finds the Appellant's last period of service was under dishonorable conditions for purposes of establishing eligibility for VRAP benefits. Accordingly, the criteria for qualification for VRAP are not met and the claim must be denied. ORDER Eligibility for VRAP is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs