Citation Nr: 1752367 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-28 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether the character of the Veteran's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 administrative decision of the Louisville, Kentucky, VA Regional Office (RO). The Board denied the appeal in an October 2016 decision. The Veteran appealed the Board's decision and in an August 2017 order, the United States Court of Appeals for Veterans Claims (Court) endorsed an August 2017 joint motion for remand (JMR) vacating the Board's October 2016 decision and remanded the case for further action consistent with the terms of the joint motion. Specifically, the JMR requested that the Board discuss why the Veteran's character of discharge is a bar to VA benefits and whether the Veteran was insane at the time of his discharge, which are discussed below in compliance with the August 2017 JMR. The Veteran testified before the undersigned Veterans Law Judge at a May 2015 Board videoconference, and a transcript of this hearing is of record. FINDING OF FACT On October 23, 1968, the Veteran was not eligible for unconditional discharge, as he had not completed his period of obligated service and was discharged due to reenlistment. CONCLUSION OF LAW The character of the Veteran's service constitutes a bar to VA benefits. 38 U.S.C. §§ 101, 5107, 5303 (West 2012); 38 C.F.R. §§ 3.1, 3.12, 3.13(b), (c) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria 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. § 101 (18); 38 C.F.R. § 3.12 (a). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12 (a). Service department findings 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 (2000). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c) and regulatory bars listed in 38 C.F.R. § 3.12 (d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12 (c) by reason of the sentence of a general court-martial. A discharge in order to reenlist during the Vietnam era is considered a conditional discharge if it was prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13 (b). In these circumstances, the entire period of service typically constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. Id. A service member may, however, be considered to have been unconditionally discharged or released from active military, naval, or air service if 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). If all three requirements are met, the entire period of service does not constitute one period of service and, instead, the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. 38 C.F.R. § 3.13 (b); VAOGCPREC 8-2000 (July 25, 2000). The Veteran contends that his first period of active service from August 1966 to October 23, 1968 was honorable and therefore he is entitled to VA benefits based for that period. The Veteran originally enlisted on August 8, 1966 for a period of three years, thus, his period of obligation was until August 7, 1969. The Veteran was discharged honorably on October 23, 1968, prior to the end of his period of obligation, for the purposes of reenlistment. The Veteran's second period of service began the next day October 24, 1968. A discharge in order to reenlist during the Vietnam era is considered a conditional discharge if it was prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13 (b). In these circumstances, the entire period of service typically constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. Id. Because the Veteran was discharged in October 1968, prior to the expiration of his period of obligation, he does not he does not meet 38 C.F.R. § 3.313(c)(2) and his first period of service does not constitute an unconditional discharge. Thus, his first and second period of service are considered as one period of service. As noted below the Veteran's character of discharge for his second period of service October 24, 1968 to May 1969 was "other than honorable." The Veteran's second period of service ended in a discharge under "conditions other than honorable" because the Veteran had submitted a voluntary statement admitting violations of Article 86, UCMJ during both periods of service. The Board acknowledges the Veteran's contentions that his second period of service, October 24, 1968 to May 1969, should not have been considered other than honorable because he submitted the statement admitting to the offending conduct only under the direction of his naval lawyer. A review of the Veteran's military personnel file shows an April 1969 form signed by the Veteran with the subject "Discharge for reason of commission of offense punishable by punitive discharge" this form advised the Veteran of his rights related to discharge. Section one specifically stated "I understand the nature of the discharge will be under conditions other than honorable and Undesirable discharge, DD 258-MC." The Veteran initialed the form which indicated he had consulted with counsel, understood the rights he was waiving, and that he desired to request discharge for the good of the service. As part of the investigation into the Veteran's violation of Article 86, UCMJ he provided an April 1969 voluntary statement. The Veteran stated that he was informed by a special agent of the office of naval intelligence that he was being investigated for the illegal use of marijuana. The Veteran reported he first started using marijuana in May or June 1967 in Vietnam during his first period of service. The Veteran reported he smoked one marijuana cigarette a week from about June 1968 to January 1968. The Veteran reported he continued to use marijuana when he returned to the United States in April or June 1969. The Veteran listed several other people he used marijuana with during his second period of service. The Veteran signed the voluntary statement and indicated "I understand that my discharge from the naval service, affected by acceptance of this request, will be with an un-desirable discharge, which will be issued without referral to or consideration of my case by an administrative discharge board." The Veteran's military personnel file also contains a document showing entitled "Offenses and Punishments" 11 violations of Article 86, UCMJ (unauthorized absence). The Veteran has provided several statements regarding his second period of service. The Veteran submitted an April 2013 notice of disagreement which stated a few months after arriving in Illinois for his second period of service he heard rumors that he was going to be deployed to Vietnam. The Veteran reported this rumor caused him distress and as a result he requested leave for a period of 30 days, which was denied. The Veteran reported following this denial he got in his car and went home. The Veteran stated he "knew a little about military law" and therefore knew he could not be gone longer than 30 days so he returned 20 days later. The Veteran stated when he returned he was told that he was caught by an informant with marijuana in his car. The Veteran stated that he was never caught with anything nor did anyone take anything from him. The Veteran said he admitted the violation of Article 86, UCMJ (unauthorized use of marijuana) because he wanted to separate from active duty so he did not have to return to Vietnam. The Veteran submitted a July 2014 VA Form 9 which stated that he only did what his Naval lawyer told him to do in order to stay out of jail. The Veteran stated at no point was he "caught smoking marijuana" or was it ever found in his possession by anyone of authority. The Veteran reported his in-service voluntary statement was made under "stress." The Veteran provided a March 2015 statement which stated the April 1969 voluntary statement that he made should not be considered credible because it was under duress and without any corroborating evidence. Most recently, the Veteran was afforded a May 2015 Board videoconference hearing. The Veteran testified when he reenlisted for his second period of service he heard a rumor that he was going back to Vietnam. The Veteran reported this upset him so he requested leave for a period of 30 day leave which was denied so he "took off for 24 or 25 days, something like that and I came back." The Veteran reported when he returned he had a stripe removed, then he asked for leave for another 30 day period which was denied, so he left again, this time for two weeks. Upon his return another stripe was removed. The Veteran reported for a third time, he requested leave for a period of 30 days which was denied and he left again for under two weeks, and upon his return he had a third stripe taken. The Veteran reported the third time he returned he was told he was caught with marijuana. The Veteran reported he consulted with a Naval lawyer who told him to plead guilty in order to get out of the military. The Veteran reported after his separation from service he did not have any other legal issues. When the Veteran was asked if he used marijuana in his first period of service he stated "I don't remember smoking anything..." When the Veteran was asked about the people he referenced using marijuana with in his April 1969 voluntary statement the Veteran stated "I never did anything like that. I don't remember saying that, you know. I don't remember saying it." The Veteran noted that he was very upset during his second period of service due to the rumor that he was going to be deployed to Vietnam again and this caused him to have the unauthorized absences and why he agreed to admit to being in possession of marijuana. The Board finds the Veteran's lay statements indicating that his April 1969 voluntary statement should not be believed to because it was given at the direction of his naval lawyer to be less than credible. The Veteran has provided inconsistent statements regarding the number and length of his unauthorized absences during his second period of service. The Veteran's military personnel record noted 11 instances of unauthorized absence. The Veteran reported in an April 2013 notice of disagreement that he had one unauthorized absence that lasted about 20 days and it was following this absence that he was informed that he was being investigated for unauthorized possession of marijuana. During the Veteran's May 2015 Board hearing he testified that he had three separate unauthorized absences. The Veteran reported that his last unauthorized absence was under 14 days and it was upon his return from this absence that he was informed that he was being investigated for illegal possession of marijuana. These statements regarding the number and length of his unauthorized absence are inconsistent with each other and with the Veteran's military personnel record. Additionally, during his May 2015 Board hearing the Veteran testified that he did not remember parts of his April 1969 voluntary statement and whether or not he used marijuana during his first period of service. Because memory hinges on recencey earlier statements are generally more trustworthy than later ones. Curry v. Brown, 7 Vet. App. 59 (1994). The more contemporaneous the evidence the greater credibility, and therefore the greater probative value that can be attached to the evidence, especially when weighed against later dated statements generated for pecuniary purposes. Id. Thus, as the Veteran's statements are inconsistent, come over 40 years after the alleged incident in 1969, and are for a pecuniary purpose, they are not credible and therefore have little probative value. VA benefits are barred by statute where a former service member was discharged under one of the conditions listed under 38 U.S.C. § 5303(a), 38 C.F.R. § 3.12(c), or 38 C.F.R. § 3.12(d). 38 C.F.R. § 3.12(d)(4) indicates willful and persistent misconduct is a condition of discharge which bars the former service member from receiving VA benefits. The Veteran's military personnel file contains a May 1969 record which indicated the Veteran was to be discharged as undesirable by reason of unfitness under IAW MARCORSEPMAN paragraph 6017.2d (Unauthorized use of marijuana) and was signed by the Acting Director of the Judge Advocate Division. As noted above as part of his separation proceedings the Veteran provided an April 1969 statement indicating he repeatedly used marijuana during his active service to include his service in Vietnam and the United States. As such the Board finds the Veteran's discharge under conditions other than honorable for unfitness due to his repeated unauthorized use of marijuana falls under the willful and persistent misconduct condition of discharge under 38 C.F.R. § 3.12(d). 38 C.F.R. § 3.12(d)(4) indicates a discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. However, the Board finds this exception has not been met. The Board finds the persistent nature of the Veteran's marijuana use as well as his 11 periods of unauthorized absence indicate his service was not otherwise honest, faithful and meritorious. An exception to the bar to VA benefits under 38 C.F.R. § 3.12(d) is if the Veteran was insane at the time he committed the offenses which lead to his discharge. The Board finds, however, that the record, including the Veteran's statements, does not reasonably raise a claim of insanity, as defined under 38 C.F.R. § 3.354(a). An insane person is defined as one who, 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. See 38 C.F.R. § 3.354(a). As noted above the Veteran has presented statements indicating during his second period of service he was told he may have to return to Vietnam which caused him to be "messed up" in the head. See May 2015 Board Hearing Testimony. However, the Veteran's April 1969 statement indicated that he used marijuana in Vietnam as well as the United States indicating that the Veteran was using marijuana prior to the time he states he was in an altered headspace. Moreover, the Veteran had several periods of unauthorized absence during the period the Veteran's state of mind is in question. The Veteran's statement that he "knew a little about military law" and therefore knew he could not be gone longer than 30 days so he returned 20 days later indicates that he had enough self-awareness to limit his period of unauthorized absence to adapt to military law. The Court has held that the only way to read 38 C.F.R. § 3.354(a) is to apply the phrase "due to a disease" to all three circumstances provided for in the regulation. Zang v. Brown, 8 Vet. App. 246 (1995). There is no evidence of record indicating that the Veteran may have been insane during his time in service and the only evidence that might raise the question is his own lay assertions as to his state of mind when he went AWOL. Nevertheless, there is no assertion or competent evidence in the record that his behavior was "due to a disease," as required under 38 C.F.R. § 3.354(a). Thus, the Board will not consider whether there is an exception to a bar of benefits based on insanity. Additionally, the Board acknowledges the Veteran's representative's September 2017 statement that the VA does not have the authority to render a guilty judgment on a military infraction under the Uniform Code of Military Justice, or withhold benefits based upon this judgement. However, the Board is not rendering a guilty judgement on a military infraction but is instead making a finding that the Veteran's two periods of service are one period of service and thus his discharge under conditions other than honorable, as determined by the Acting Director of the Judge Advocate Division, would include the Veteran's first period of service which was originally deemed honorable. Thus, the Board finds that the Veteran's character of discharge from military service constitutes a bar to VA benefits. The Veteran's second period of service was appropriately characterized as other than honorable. Due to the fact that the Veteran's first period of service was not separate and distinct his first period of service is also characterized as other than honorable. The reason for the Veteran's discharge was for his willful and persistent misconduct. Thus, the Veteran's discharge from military service constitutes a bar to VA benefits. ORDER The character of the Veteran's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs