Citation Nr: 1751472 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-16 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the character of discharge from a period of service in the U.S. Navy is a bar to receiving VA compensation benefits. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The appellant served on active duty in the U.S. Navy from June 2001 to November 2006, from which he received an other than honorable discharge, as discussed below. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 determination by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2016, the Board remanded the case to afford the appellant a hearing before the Board. The appellant was afforded such a hearing in March 2017, which was presided over by the undersigned Veterans Law Judge, and a copy of the transcript was associated with the record. FINDING OF FACT The appellant's service records, to include the DD-214, show that the appellant served on active duty in the U.S. Navy from June 2001 to November 2006, and that he was discharged from this period of service under other than honorable conditions due to desertion, and the evidence does not show that the appellant was insane at the time of committing the offense resulting in his discharge; though the appellant reenlisted in June 2005, the appellant is not considered to have been unconditionally discharged or released from active military service in June 2005, and the appellant's period of service in the U.S. Navy from June 2001 to November 2006 is considered one period of continuous service for VA purposes. CONCLUSION OF LAW The character of the appellant's discharge for this period of service in the U.S. Navy from June 2001 to November 2006 is a bar to the receipt of VA compensation benefits. 38 U.S.C.A. §§ 101(2), 5103, 5103A, 5303 (West 2014); 38 C.F.R. §§ 3.1(d), 3.12, 3.13, 3.159, 3.354 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's Claims Assistance Act is inapplicable to matters of pure statutory interpretation such as this case. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). This appeal arose in connection with the appellant's application for VA disability compensation benefits, received in May 2009, for disabilities that he reports are related to his period of service in the U.S. Navy. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran (for the relevant period of service). Cropper v. Brown, 6 Vet.App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). 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); 38 C.F.R. § 3.1(d). Thus, a discharge or release from a period of active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits for a disability that may have been incurred during that period. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive 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); Spencer v. West, 13 Vet. App. 376, 380 (2000) (VA is bound by service department findings); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces"). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). The appellant's service records, to include his DD-214, show that he received an other than honorable discharge from the U.S. Navy in November 2006 due to "misconduct (desertion)." Discharge due to desertion is a statutory bar to VA benefits, unless it is found that the appellant was insane at the time of committing the offense of desertion. 38 C.F.R. § 3.12. An insane person is one who, due to a diagnosable disease, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) 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. 38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet.App. 246, 253 (1995); see also VAOPGCPREC 20-97 (May 22, 1997) (clarifying VA's definition of insanity). Here, there is no argument by the appellant, and no indication in the record, that the appellant was insane due to a diagnosable disease at the time of committing the offense of desertion in 2006. Here, the appellant's case turns on whether 38 C.F.R. § 3.13(c) applies, or, in other words, whether the appellant is considered to have been unconditionally discharged or released from active military service at any point prior to his committing his desertion and prior to the expiration of his initial period of service obligation. The appellant contends, such as in the Board hearing, that he originally enlisted for a period of service from June 2001 to June 2005, and that he then reenlisted for an additional 24 months. The appellant therefore essentially argues he should be considered to have been unconditionally discharged or released from active military service in June 2005, and that therefore the determination as to his discharge of service due to desertion for the alleged period of service from June 2005 to 2006 should not be a bar to his receipt of VA compensation. 38 C.F.R. §3.13(a) and (b) provide that a discharge for immediate reenlistment prior to the expiration of the full period of the initial enlistment constitutes a conditional discharge, and that continuous reenlistments of this type are to be considered a single continuous period of active service. However, 38 C.F.R. § 3.13(c) also provides that while no unconditional discharge may have been issued, a person will be considered to have been unconditionally discharged when he did in fact serve continuously for the period of time necessary to actually complete any initial enlistment, and the reason he was not then discharged was that he had already undertaken an additional or intervening enlistment, and there is no evidence showing that he was eligible for the receipt of a discharge under dishonorable conditions at the time that he became eligible for an unconditional discharge. What this means is that, although the general rule provides that continuous reenlistments prior to expiration of the entire period of any given enlistment is generally to be considered as a single enlistment period, an exception is provided when a person actually completes an entire period required by an initial enlistment contract, and there is no evidence of misconduct or other basis for the award of a discharge under conditions other than honorable during that enlistment period. In such cases, VA benefits may be granted based on the period of initial obligation. Here, however, the criteria under 38 C.F.R. § 3.13(c) are not met. The service records show that the appellant's original enlistment contract, which was signed and dated on May 25, 2001, was for four years for a period of service beginning on June 19, 2001. However, the service records show that on June 19, 2001, the appellant signed an agreement to extent his enlistment for 24 months, and the reason cited for the agreement to extend enlistment was for schooling/ training in an advanced electronics field/ advanced technical field program. The agreement expressly stated that the appellant understood his new contract expiration date to be June 18, 2007. Thus, under the appellant's initial contracted period of service, the appellant was obligated to serve through June 18, 2007. Accordingly, though the Board acknowledges that the appellant signed an extended enlistment agreement, which amended his period of service obligation from four to six years, the appellant understood that his initial service obligation period was to expire on June 18, 2007. The appellant argues that because he was provided an honorable discharge certificate on June 16, 2005, and then he reenlisted, he should have a period of honorable service for VA purposes from January 2001 to June 2005. The Board acknowledges that the service records show that on June 17, 2005, the appellant signed a reenlistment contract for six years, with a new contract expiration date of June 16, 2011. The service personnel records confirm that he reenlisted for six years starting on June 17, 2005. Though the appellant was discharged on June 16, 2005, per a discharge certificate, the evidence does not show that the appellant was unconditionally discharged. Again, under 38 C.F.R. §3.13(a) and (b), a discharge for immediate reenlistment prior to the expiration of the full period of the initial enlistment constitutes a conditional discharge, and that continuous reenlistments of this type are to be considered a single continuous period of active service. Further, the appellant does not meet the criteria under 38 C.F.R. § 3.13(c) to be considered to have been unconditionally discharged in June 2005 for VA compensation purposes. Here, this case turns on the fact that the appellant's initial enlistment contract was set to expire on June 18, 2007. Though he had an intervening enlistment in June 2005, the evidence shows that the basis of his dishonorable discharge, namely his desertion, occurred in 2006, which was within the period of his initial service obligation. Thus, the appellant did not serve continuously for the period of time necessary to actually complete any initial enlistment, and there is evidence of misconduct that would have served as the basis of a dishonorable discharge during that initial enlistment period. Therefore, the appellant does not meet the criteria under 38 C.F.R. § 3.13(c), and the appellant's period of service from June 2001 to November 2006 is considered on single period of active service for VA purposes. Next, the Board concludes that the appellant's period of service in the U.S. Navy from June 2001 to November 2006 is dishonorable for VA purposes. The evidence shows that the appellant committed the offense of desertion which resulted in his discharge from service, and there is no evidence to indicate, and no argument by the appellant, that he was insane due to a diagnosable disease at the time he committed the offense of desertion. Instead, the appellant has reported, such as in the May 2017 Board hearing, that he left service without permission to take care of his family, and that he intended to return in time. The Board also notes that the evidence of record includes a letter from the appellant to a Captain P., in which the appellant states family-related reasons and anger due to being accused of being a child abuser by fellow sailors, as being the reasons for his leaving service on May 14, 2006. There is no argument by the appellant, and the evidence does not otherwise show, that he was insane due to a diagnosable disease, in 2006. On review, desertion is a statutory bar to VA compensation benefits, the exception to the bar to VA compensation benefits does not apply, and the appellant's period of service in the U.S. Navy from June 2001 to November 2006 is considered dishonorable. For these reasons, entitlement to status as a veteran for VA purposes is denied. ORDER The appellant has no period of service which may be deemed honorable for VA purposes, and entitlement to status as a veteran for VA purposes is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs