Citation Nr: 1802444 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-03 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the character of the Veteran's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Appellant had active service from November 1948 to June 1951. This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Appellant testified at a hearing before the undersigned; a copy of the hearing transcript has been associated with the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Appellant received an Undesirable discharge from active service due to unfitness. 2. The evidence does not establish that the Appellant received his Undesirable discharge as a result of an offence considered to have been dishonorable as defined by VA regulation; rather, he received his discharge as a result of a special court-martial incident rather than a general court martial or for willful or persistent misconduct. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Appellant, the character of his discharge from service from November 1948 to June 1951 is not a bar to benefits administered by VA. 38 U.S.C. § 5303 (2012); 38 C.F.R. § 3.12 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION "In order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'" 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 defined as "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) (2012); 38 C.F.R. § 3.1(d) (2017). If a service member receives an undesirable discharge, a discharge under other than honorable conditions, or a bad conduct discharge, VA is instructed to make a formal character of discharge determination before addressing a claim for benefits on the merits. See M21-1MR, pt. III, subpt. v, ch. 1, § B-5(c). If VA determines that the service member was discharged or released under any of the circumstances outlined in 38 U.S.C. § 5303 or its implementing regulation, 38 C.F.R. § 3.12, such benefits are not payable unless VA finds that the service member was insane at the time of committing the offense that precipitated that discharge or release. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b) (2017) (listing the following conditions as a bar to the payment of benefits: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; or (6) 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). Furthermore, pursuant to 38 C.F.R. § 3.12(d), a discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions: (1) Acceptance of an undesirable discharge to escape trial by general court-martial. (2) Mutiny or spying. (3) An offense involving moral turpitude. This includes, generally, conviction of a felony. (4) 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. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. As an initial matter, the Board recognizes that the Appellant's service treatment records and personnel records are unavailable and have been destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The Board recognizes that there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in situations, such as the one here, in which records are presumed to have been, or in actuality were, destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the RO issued an administrative decision in December 2015, which stated that alternative record sources "noted the claimant was discharged by court martial and accepted the possibility of receiving an Under Other Than Honorable Discharge and its effects." Because "VA is unable to gather evidence of whether a summary court martial or a special court martial was given (M21-1MR, Part III, Subpart v, 1.B.7.b)," the RO ultimately decided that his service from November [] 1948 to June [] 1951, in the U.S. Army is other than honorable. Here, even though the Appellant's service records are unavailable, a reconstructed file was provided by the National Archives and Records Administration (NARA) that confirmed that he was discharged from service and issued an "Undesirable Discharge" for his service from November 1948 to June 1951. According to a June 1951 morning report, it was determined that the Veteran was to receive an "Und[esirable] dischparge per A[rmy] R[egulation] 6615-368 [for] Unfitness." See June 1951 Morning Report. However, after carefully reviewing the alternate sources contained in the reconstructed file, the Board determines that there is evidence that suggests that it is as least as likely as not that his discharge was due to circumstances other than by reason of a general court martial sentence as suggested by the RO, or any of the other conditions listed in 38 C.F.R. § 3.12(d), such as willful and persistent misconduct. Although the RO had determined there was insufficient evidence as to whether the Appellant was facing instead a special court martial or summary court martial, the Board notes that there is, in fact, affirmative evidence that he faced a special court martial in the reconstructed file. Most notably, in a March 1951 record, it was noted that the Veteran was "convicted under 93rd AW to be confined at H/L for six (6) months per SCM Orders Number 71 dated 3/17/51." See March 1951 Security Classification record. The Board notes that the abbreviation "SCM" is a clear reference to special court martial, as summary court martial was abbreviated elsewhere in these records as "SumCM." Moreover, his confinement period is consistent with disciplinary action associated with a special court martial because it is a confinement period less than one year. Furthermore, although "Unfitness" may be used to describe a number of adverse traits and conditions, the evidence available to the Board does not suggest a pattern of willful or persistent misconduct here. Rather, the Appellant explained to the Board the circumstances that led to his court martial; he stated he was involved in a racially motivated alteration and that he was the only one charged in the incident. See October 2017 Board Hearing Transcript. The circumstances as described by the Appellant of being targeted racially and being involved in a physical altercation, along with the fact that he attained the rank of E-5 prior to his disciplinary action, suggest that he was not subject to disciplinary action on a regular basis or that he was otherwise engaged in misconduct that would rise to the level of "willful and persistent." What is more, due to the absence of any available service records, there is simply no evidence to contradict the competent evidence provided by the Appellant regarding the circumstances of his special court martial. In fact, when he applied to the Army Board for Correction of Military Records in 1987, they did not deny his claim to revise his character of discharge, but instead stated that they "cannot make a decision on your application" due to the lack of evidence, citing the records destroyed by fire. See May 1987 letter ("Since your records are not available and since your application does not contain enough information to allow the Board to make a determination, the Board cannot take any further action at this time. This does not mean that your application has been denied or that you may not file again.") (emphasis added). Here, the Appellant was issued an Undesirable discharge, which has not been upgraded by the Army Board for Correction of Military Records, and the Board is bound to accept this character of discharge. However, the evidence suggests that his Undesirable discharge was due to a special court martial rather than a general court martial. Under 10 U.S.C. §§ 818 and 819, a general court-martial has the authority to impose a bad conduct or a dishonorable discharge, while a special court-martial has the authority to impose a bad conduct discharge, but not a dishonorable discharge. Thus, his Undesirable discharge, which appears to have been issued in conjunction with a special court martial sentence, is not necessarily considered a bar to VA benefits unless it is accompanied by any of the conditions enumerated by VA regulations. Importantly, the limited evidence available fails to establish that his Undesirable discharge was the result of willful and persistent misconduct or any of the other enumerated conditions set forth in 38 C.F.R. § 3.12 so as to be considered dishonorable as defined by VA or as a bar to benefits. For all of these reasons, the Board resolves doubt in the Appellant's favor, and grants the appeal. ORDER The character of the Appellant's discharge from service from November 1948 to June 1951 is not a bar to benefits administered by VA. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs