Citation Nr: 1801625 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the appellant's character of discharge for the period of service from March 1990 to April 1992 is a bar to Department of Veterans Affairs (VA) compensation benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The appellant had active military service from March 1990 to April 1992, and was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia While the appellant initially requested a Board hearing on his VA Form 9, Appeal to the Board received in March 2014, in March 2017 his representative subsequently indicated that he was withdrawing his hearing request and would not appear at the hearing scheduled for that same month. While the appellant's representative also indicated that the appellant would be submitting a statement withdrawing his appeal, no such statement is of record. Accordingly, the Board will proceed with a decision in this matter. FINDINGS OF FACT 1. The appellant served on active duty from March 1990 to April 1992. He was discharged under other than honorable conditions as a result of misconduct due to commission of a serious offense, civilian conviction and failure to complete alcohol abuse rehabilitation. 2. The appellant's behavior and mental state did not meet the VA criteria for insanity at the time he committed the offenses that resulted in the other than honorable discharge. CONCLUSION OF LAW The character of the appellant's discharge for his active duty from March 1990 to April 1992 is a bar to the payment of VA compensation benefits. 38 U.S.C. §§ 101(2), 5303 (2012); 38 C.F.R. §§ 3.1(d), 3.12, 3.301, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking entitlement to VA benefits. Specifically, he has asserted that his character of discharge should be revised and he should be allowed to pursue entitlement to VA benefits. After a careful review of the evidence of record, the Board finds that the character of the appellant's discharge from service is a bar to benefits. A person seeking VA benefits must first establish that they have attained the status of Veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). The term Veteran means 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. § 101(2). 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). The provisions of 38 C.F.R. § 3.12(b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits. However, such benefits will not be barred if it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided in law and regulation. 38 U.S.C. § 5303(b). With the exception for insanity, benefits are not payable where the former service member was discharged or released by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(c)(2). Benefits are also not payable where the former service member was discharged under other than honorable conditions as a result of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). The provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses 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 (that includes, generally, conviction of a felony); (4) willful and persistent misconduct (that includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct); a discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. Willful and persistent misconduct includes a discharge under other than honorable conditions determined to be issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). Willful and persistent conduct excludes a discharge because of a "minor" offense if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d). An offense that "interfere[s] with [the] appellant's military duties, indeed preclude[s] their performance . . . [does] not constitute a minor offense." Stringham v. Brown, 8 Vet. App. 445 (1995). A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12(d) 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 or unless otherwise specifically provided. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). An insane person is 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. 38 C.F.R. § 3.354(a). The appellant's service personnel records reflect that in May 1991, the appellant was charged with driving under the influence of alcohol. In July 1991, he was found guilty in a California municipal court and ordered to pay a fine of $1225.00, serve 5 days in county jail, be placed on 36 months of probation, and participate in the drinking driver program. The appellant was also ordered to complete alcohol abuse rehabilitation by his unit. However, personnel records indicate that he unenrolled in "level II" outpatient treatment at the Naval Hospital in San Diego due to noncompliance with treatment program rules. In February 1992, the appellant submitted a statement on his behalf upon advisement that he was being considered for discharge under other than honorable conditions. He wrote that he made a mistake and was cited for driving under the influence of alcohol, and failed to complete level II training that was his duty to complete. However, he felt that he worked hard in service and that his actions were not dishonorable-but that he always served his country honorably. The appellant was recommended for separation due to his misconduct due to commission of a serious offense, civilian conviction and failure to complete alcohol abuse rehabilitation, and subsequently separate under other than honorable conditions. It was noted that his behavior in failing to complete treatment demonstrated a lack of motivation and commitment to behavioral change and Navy treatment opportunities. Furthermore, his alcohol abuse rehabilitation failure clearly indicated that he no longer exhibited potential for further naval service. This behavior, coupled with his civil conviction and recent performance constituted a significant department from the conduct expected from members of naval service, and it was determined that the appellant be immediately discharge from service with an other than honorable discharge. In a written statement received in July 2011, the appellant reported that he served in Kuwait, and when he returned home he fell into a paranoid depression. About a month after his return from Kuwait, he received a D.U.I. off base. His commanding officer held back on any punishment and sent him to Level II rehabilitation. The appellant reported having problems with the program because the counselor was a drunk himself. He confronted the counselor, but to no avail, and dropped out of the course. He was placed on restriction for 30 days and was to go back to level II rehabilitation. But while on restriction, he was offered an early-out, so he put in a request to be discharged. He was told that his discharge was going to be other than honorable as a result of not completing the rehabilitation program, but there was nothing he could do because his discharge paperwork was already going through. The preponderance of the above evidence demonstrates that the appellant's character of discharge is a bar to VA compensation benefits. Service records demonstrate that he was recommended for an other than honorable discharge due to misconduct characterized as commission of a serious offense (driving under the influence), civilian conviction and failure to complete alcohol abuse rehabilitation. Moreover, the service personnel records reflect that the appellant's conduct made him no longer suitable for naval service. The Board cannot find that this behavior was "minor," as the service department has determined his misconduct to be a serious offense. Moreover, as noted in the appellant's personnel records, the nature of his offense and failure to complete treatment constituted a significant departure from conduct expected from members of naval service. The evidence therefore reflects that the appellant was discharged for a pattern of persistent and willful misconduct. 38 C.F.R. § 3.12(d). The weight of the evidence establishes that the appellant was sane during his period of service. Although the appellant asserts that he suffered from depression/paranoia during this time, or some other acquired psychiatric disability, the evidence does not demonstrate that the appellant was insane as defined by 38 C.F.R. § 3.354(a). A service treatment report dated in July 1991 reflects notation of increased anger and depression, but psychiatric difficulties rising to the level of insanity were not documented. An April 1992 separation examination report indicates that the appellant was found to be normal from a psychiatric standpoint. In sum, the evidence does not indicate that the appellant was suffering from psychosis or was insane during the relevant period of service. Nor has the appellant made such allegation. The Board further notes that the appellant's character of discharge has not been upgraded at any time by his service department, by any discharge review board, or by a Presidential directive. As such, an exception to the bar of VA benefits under 38 C.F.R. § 3.12(g), (h) is not applicable. Accordingly, the Board finds, by a preponderance of the evidence, that the appellant's misconduct during service was willful and persistent. Therefore, the Board concludes that his discharge, for purposes of entitlement to VA benefits, is considered to have been under dishonorable conditions and he is barred from VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12(d)(4), 3.360. ORDER The character of the appellant's discharge for the period of service from March 1990 to April 1992 is a bar to VA compensation benefits. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs