Citation Nr: 1709699 Decision Date: 03/29/17 Archive Date: 04/11/17 DOCKET NO. 11-00 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under 38 U.S.C. Chapter 17. WITNESSES AT HEARINGS ON APPEAL The appellant, his spouse, and his father ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The appellant served on active duty in the Navy from August 1989 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that determined that the appellant's character of discharge from service constituted a bar to VA benefits, exclusive of health care under 38 U.S.C. Chapter 17. In July 2010, the appellant appeared at a personal hearing at the RO. In February 2017, the appellant appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The appellant was inducted into service in August 1989 and was administratively discharged in October 1991 under other than honorable conditions. 2. The appellant's offenses were minor and were not based on willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant's discharge for the period of active duty from August 1989 to October 1991 is not a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5103A, 5303 (West 2014); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The term Veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2016). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2014); 38 C.F.R. § 3.12 (2016). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a) (2016). However, a discharge or release from service under specified conditions is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(b) (2016). Benefits are not payable where the claimant was discharged or released by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(c)(2) (2007); 38 U.S.C.A. § 5303 (West 2014). Additionally, a discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. However, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious, or unless it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(d)(4) (2014). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant's other than honorable conditions discharge should not act as a bar to the grant of veterans' benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). A person discharged under conditions other than honorable on the basis of an absence without official leave period of at least 180 days is barred from receipt of VA benefits unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. (ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. Consideration should be given to how the situation appeared to the person himself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. 38 C.F.R. § 3.12(c)(6)(i-iii). The appellant contends that the character of his discharge from service should not be a bar to the award of VA benefits. He specifically maintains that his offenses were minor and should not be considered willful and persistent misconduct. He asserts that his service was otherwise honest, faithful, and meritorious. The appellant reports that in regard to his offense of being AWOL for two days, he was on an off-duty weekend excursion in West Virginia when his friend's car broke down on the way back and that he was unable to return in time. He reports that he did call and report that the car was broken down to the petty officer in charge, and that he borrowed another friend's car in order to return to his ship. The appellant indicates that in terms of his second offense, he was told to check the rooms off and indicate what times the sailors were in their rooms. He states that he performed his duties for three hours, but, that for the fourth hour, his petty officer told him to go ahead and sign off for everyone without checking the rooms. He asserts that the petty officer did not subsequently admit to telling him he could check off the rooms. The appellant indicates that the third offense occurred because he was at a beach house where individuals were smoking marijuana. He states that when he came back to duty, his urine was randomly checked and that it showed a trace of marijuana. He contends that he never actually smoked marijuana at the beach house. The appellant served on active duty in the Navy from August 1989 to October 1991. His service personnel records indicate that he served aboard the USS Charleston. The record reflects that the appellant was disciplined for three offenses. His service personnel records indicate that he was disciplined in August 1990 for a violation of Article 86 of the Uniform Military Code of Justice (UCMJ) for an unauthorized absence from his unit for two days. Additionally, in January 1991, the appellant was disciplined for a violation of Article 92 of the UCMJ for dereliction of duty. There was a notation, at that time, that the appellant should look up the PQS instruction pertaining to roving security watches. In September 1991, the Veteran was disciplined for violation of Article 112A of the UCMJ for wrongful use, possession of a controlled substance (marijuana). There is a notation that a urine test confirmed that the appellant was positive for THC in his urine. In September 1991, the appellant's commanding officer indicated that the appellant's current performance appeared to be in decline and that his past record showed no potential for further Naval service. The commanding officer referred the appellant for an administrative discharge. In a September 1991 Statement of Awareness and Request for Waiver for or Waiver of Privileges form, the Veteran acknowledged that he was being considered for an administrative separation which could result in an other than honorable discharge by reason of misconduct due to a pattern of misconduct and the violation of the USMJ, Article 112A, use of a controlled substance (marijuana). The appellant's DD Form 2014 reflects that he was given a discharge under other than honorable conditions and that the reason for his separation from service was a pattern of misconduct. The appellant's service treatment records include an undated Substance Abuse/Dependency Screening form. There was a notation, at that time, that abuse criteria had been met and that the substance used was marijuana. The examiner indicated that the Veteran had a single episode of smoking marijuana. The examiner reported that the Veteran's affect was bright and that his orientation was appropriate. In a June 2009 Administrative Decision, the RO concluded that the appellant's service from August 1989 to October 1991 was considered dishonorable for VA purposes. The RO indicated that the appellant was administratively discharged from the Navy for an unauthorized absence in August 1990; dereliction of duty in January 1991; and use of a controlled substance (marijuana) in September 1991. The RO indicated that the appellant's enlistment was to end in May 1993 and that he did not fulfill his obligation due to his misconduct. The RO noted that the reason that was given for the appellant's discharge was due to a pattern of misconduct and drug use. It was noted that in the appellant's submitted statement, he reported that he was in a small room with many others that were smoking marijuana. The RO indicated that the appellant did not state the reason that he stayed in the room where the illicit drug use occurred. The RO found that the appellant's facts and circumstances could not be verified or corroborated. The RO noted that the appellant's offenses occurred within fourteen months and that his commanding officer indicated that his performance at the time of his discharged appeared to be in decline and that his past record showed no potential for further naval service. The RO maintained that there was no evidence of record that would indicate that the appellant had any mental impairment or disorder at the time of the commission of his the offenses leading to his discharge. The Board observes that the record indicates that the appellant was AWOL for two days in August 1990. Therefore, his period of AWOL was well short of the 180 days required for a period of AWOL to be considered prolonged. 38 C.F.R. § 3.12(c)(6). Consequently, such period does not satisfy the regulatory requirements that an appellant's other than honorable discharge constitutes a bar to the payment of benefits under 38 C.F.R. § 3.16(c)(6) for AWOL. The character of the appellant's discharge from service has not been upgraded, and the Board makes no findings as to propriety of any upgrade of his discharge, merely that an upgrade of discharge has not been awarded by the appropriate body of jurisdiction. As there has been no removal of any bar to VA benefits, the bar to benefits established under 38 C.F.R. § 3.12(c)(6) remains in effect. An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge. However, a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. A discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12 (d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n) (2016). As noted above, the appellant contends that the character of his discharge from service should not be a bar to the award of VA benefits. He specifically asserts that his offenses were minor and should not be considered willful and persistent misconduct. The Board must determine whether the appellant's actions constituted willful and persistent misconduct such that his discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions, barring him from the receipt of VA benefits other than health care under 38 U.S.C. Chapter 17. In order for the appellant's offenses to be considered to have been minor offenses, as noted in the exception to a bar of entitlement to VA benefits, the offenses must be determined to be such that the commission of the offenses would not have interfered with or precluded the appellant's military duties. Stringham v. Brown, 8 Vet. App. 445 (1995). In this case, the Board cannot find that the offenses committed by the appellant interfered with is military duties and, therefore, they may be considered minor offenses. The record reflects that the appellant was AWOL for only two days; that he was disciplined apparently regarding a roving security watch; and that he was disciplined for testing positive for marijuana on one occasion. The appellant has offered credible reports as to the manner in which those offenses occurred. Therefore, the Board finds the appellant's service may be considered to have been otherwise honest, faithful, and meritorious and that his offenses were minor offenses. Accordingly, the Board finds that the appellant's character of discharge was not based on offenses involving willful and persistent misconduct. Therefore, his discharge is not considered to have been under dishonorable conditions. ORDER The appellant's character of discharge is not a bar to VA benefits; the appeal is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs