Citation Nr: 1753906 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-31 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the appellant's character of discharge is a bar to eligibility for Department of Veterans Affairs (VA) benefits. ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The appellant had service from June 1988 to May 1990 in the U.S. Marine Corps as an assault vehicle crewman. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Philadelphia, Pennsylvania, VA Regional Office (RO). In November 2008, the appellant requested a hearing before the Board via videoconference. While he was scheduled for this hearing in May 2011, he failed to appear and did not ask for the hearing to be rescheduled. A hearing will not be rescheduled without good cause shown for failure to appear. No good cause has been shown. Therefore, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (d) (2017). In August 2011, the Board remanded the matter for further development. FINDING OF FACT The character of the appellant's active duty service in the U.S. Marine Corps from June 1988 to May 1990 was general under other than honorable conditions as a result of willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant's active service in the U.S. Marine Corps from August June 1988 to May 1990 is a bar to VA benefits. 38 U.S.C. §§ 101(18), 5303 (2012); 38 C.F.R. §§ 3.1(n), 3.12 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In August 2011, the Board remanded the matter so that the RO would associate with the file the evidence which supports its determination that the appellant was facing a general court-martial at the time of his request for a separation in lieu of a trial by court-martial. The RO subsequently associated records showing the type of court-martial the appellant faced. Thus, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Character of Discharge In May 1990, the appellant received a general discharge under other than honorable conditions, and he seeks to establish his status as a "veteran" for VA benefits purposes. Veteran status is established for a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). 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 or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). 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). This decision only outlines and discusses the relevant sections of the law below. A discharge or release are statutory bars to entitlement if by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days, with certain exceptions. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). A discharge or release under the following are regulatory bars to entitlement: acceptance of an undesirable discharge to escape trial by general court martial is considered to have been issued under dishonorable conditions; or an offense involving moral turpitude (i.e., conviction of a felony); or willful and persistent misconduct (this includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct). 38 C.F.R. § 3.12(d). Willful and persistent misconduct includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. Id. at § 3.12(d)(4). A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Id. On August 1, 1989, the appellant was counseled concerning his "poor financial management" regarding returned checks from the Enlisted Club and on August 10, 1989 was counseled concerning his "over indulgence of alcohol." The appellant was afforded an opportunity for rebuttal and mitigation in both instances, but did not submit a rebuttal in either. On November 22, 1989, the appellant entered a period of unauthorized absence for 112 days until March 11, 1990. On April 30, 1990, the appellant submitted a request for the good of the service discharge in lieu of trial by court-martial for a period of unauthorized absence. On May 17, 1990, the appellant accepted and received a general discharge under other than honorable conditions for the good of the service, in lieu of trial by court-martial. The appellant's offense, listed on May 1990 Staff Judge Advocate's Memorandum, is Article 86 of Uniform Code of Military Justice (UCMJ). The appellant filed a claim for VA benefits and, after he was informed that he was not eligible, has sought to have his discharge recharacterized or found as not barring benefits. Regarding the appellant's discharge, in October 2009, the Board for Correction of Naval Records found the evidence submitted was insufficient to establish the existence of probable material error or injustice. The appellant had a period of unauthorized absence of "110 days" (the discrepancy between 110 and 112 days is not of importance for this decision) and the Board of Corrections did not find mitigating factors sufficient to warrant recharacterization or upgrade. A September 2017 RO Administrative Decision found the appellant was charged under UCMJ Article 86(3) "absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct." "[T]he [appellant] accepted and received a discharge under other than honorable conditions for the good of the service, in lieu of trial by court-martial." The Regional Office found there was no evidence of insanity under the applicable VA criteria. See 38 C.F.R. § 3.354 (2017). . The appellant was AWOL for less than 180 days, the offense did not include moral turpitude (as best can be determined), and the March 1990 charge sheet is for a special court-martial, as opposed to general court-martial. The appellant received an other than honorable conditions; therefore, the remaining bar to VA benefits is whether the appellant's misconduct was a minor offense and, if not, whether it was willful and persistent. Of the Veteran's total time in service of less than 24 months, the Veteran was AWOL for 110 or 112 days (roughly 15 percent of his total service). Pursuant to UCMJ Article 86, AWOL in excess of 30 days is not viewed as a minor offense, but rather as a severe offense which is punishable by confinement of up to one year and the issuance a dishonorable or bad conduct discharge. See, e.g., See Winter v. Principi, 4 Vet. App. 29, 32 (1993) ("The BVA correctly determined that the UCMJ views AWOL in excess of 30 days as a severe offense, punishable by confinement for up to one year and the issuance of either a bad conduct or dishonorable discharge.") (citation omitted); Cropper v. Brown, 6 Vet. App. 450, 452, 453 (1994) (noting that offenses that preclude the performance of military duties, such as unauthorized absence and failure to go to the appointed place of duty, are by definition not minor offenses). The Veteran spent over 100 days absent without official leave, 15 percent of his total service. As stated in a CAVC decision with similar facts, "[appellant's] conduct was severe and, by analogy, persistent because he spent almost one fifth of his service time in an AWOL status." Winter, 4 Vet. at 32. The appellant's long period of unauthorized absence constituted willful and persistent misconduct, decidedly not of a minor nature. During the period of being AWOL, the appellant was aware of his "deliberate or intentional wrongdoing with knowledge of . . . its probable consequences." See April 2008 Notice of Disagreement (reporting he was aware his period on leave was about to end prior to his period of absence without official leave). In the present case, the Board has considered the totality of the circumstances and has determined that appellant misconduct was willful and persistent resulting in a discharge that precludes VA compensation and pension benefits. The Veteran does not contend nor is no evidence the he met the VA criteria for insanity. Rather, his act was willful. Id. at § 3.12(b). Nor does 38 C.F.R. § 3.12(c)(6) apply to willful and persistent misconduct. The Board has considered the appellant's lay statement regarding the circumstances of his unauthorized absence. See April 2008 Notice of Disagreements (stating he was absent due to a family emergency and that his first lieutenant had told him to take whatever time he needed to handle the situation). The Board assigns low probative weight to the statement because, if true, the Veteran could have contested the charges during court martial, provided evidence of mitigation. In an April 1990 Request for Separation in Lieu of Trial by Court Martial, the Veteran acknowledged that an other than honorable discharge could impair his eligibility for benefits enjoyed by other service members. Moreover, in a November 2009 decision, the Board of Corrections of Naval Records considered the Veteran's mitigating factors. The BCNR concluded that these factors were not sufficient to warrant recharacterization of your discharge because of your misconduct that resulted in periods of absence totaling over three months. The Board believed that considerable clemency was extended to you when your request for discharge was approved. The BCNR also concluded that you received the benefit of your bargain with the Navy when your request for discharge was granted Accordingly, the Veteran's application for a correction of the record was denied. The Board places considerable weight on the assessment and decisions of the Marine Corps and the BCNR because these decision makers were in the best position to have information pertaining to the nature of the Veteran's offense, circumstances, and record of service. The Board finds that the application of a regulatory bar is warranted for service under other than honorable conditions under 38 C.F.R. § 3.12 (d)(4). ORDER The appellant's other than honorable discharge as a result of willful and persistent misconduct is a bar to VA benefits. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs