Citation Nr: 18140351 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 15-12 837 DATE: October 3, 2018 ORDER Entitlement to nonservice-connected pension is denied. FINDINGS OF FACT 1. The appellant received a bad conduct discharge by order of a general court-martial effective October 1986. 2. The appellant’s behavior and mental state was not the result of a disease, and he did not meet the VA criteria for insanity at the time he committed the offenses that resulted in a bad conduct discharge. 3. The appellant did not have active duty service during a period of war as recognized by VA. CONCLUSION OF LAW The appellant’s bad conduct discharge by order of a special court martial is a bar to the award of VA benefits, and the criteria for eligibility for nonservice-connected pension have not been met. 38 U.S.C. §§ 101, 1521, 5303 (2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.12, 3.13, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active service from June 1984 to October 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 decision by the Pension Management Center located in the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2017, the appellant testified at a hearing before the undersigned; a copy of the hearing transcript has been associated with the electronic claims file. Nonservice-connected pension This appeal arose in connection with appellant’s application for VA nonservice-connected pension benefits. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, a person must demonstrate by preponderance of evidence qualifying service and character of discharge)). 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). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars under 38 C.F.R. § 3.12(c) and regulatory bars under 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): (1) as a conscientious objector who refused to perform military duty, wear a 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; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without leave (AWOL) for a continuous period of at least 180 days, with certain exceptions. A discharge or release from service is not a bar to the payment of benefits if it was found that the person was insane at the time of committing the offense causing such discharge. 38 C.F.R. §§ 3.12(b), 3.354. In this case, the appellant’s DD Form 214 reflects that he received a bad conduct discharge as a result of court-martial. A review of appellant’s service personnel records shows that a March 1986 general court-martial order found him guilty of multiple felonies, and sentenced the him to a bad conduct discharge, confinement for 13 months, forfeiture of all pay and allowances, and reduction to the grade of E1. A May 1986 decision by the United States Army Court of Military Review affirmed the March 1986 general court-martial sentence. The Board finds that the appellant’s bad conduct discharge is a bar to entitlement to VA benefits as a matter of law under the statutory criteria as the discharge was at the order of a general court-martial for conviction of a felony. Character of discharge is assigned by the service department and VA has no authority to change the character of discharge or the conviction and sentence by the general court martial. The Board acknowledges the appellant’s contentions that he has already paid for his mistakes. However, as explained above, VA has no authority to change the character of the discharge. The service personnel records reflect a single DD Form 214 that clearly shows one period of active duty ending with an unconditional bad conduct discharge as a result of a court-martial, with no intervening reenlistments or other enlistment contract actions. See 38 C.F.R. § 3.13. The Board has considered whether there is any competent lay or medical evidence to suggest that the appellant met the VA criteria for insanity at the time of the offense, and the Board finds none. As there is no competent evidence of abnormal behavior and mental state due to disease, the appellant does not meet the VA criteria for insanity at the time he committed the offense that resulted in a bad conduct discharge. As the bar to benefits is a matter of law, the “benefit of the doubt” rule is not for application, and the Board must deny the claim for a nonservice-connected pension. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). The Board also notes that, even if the appellant’s character of discharged is amended, he would still not be eligible for nonservice-connected pension benefits because he does not have the requisite active duty service during a period of war as recognized by VA. Specifically, the appellant’s only period of service from June 1984 to October 1986 took place subsequent to the Vietnam War era (August 5, 1964, through May 7, 1975), and prior to the Gulf War era (in effect since August 2, 1990). Id. The Veteran does not contend, and the record does not otherwise reflect, that he had any additional periods of service. As such, eligibility for nonservice-connected pension benefits is not warranted as a matter of law because the appellant does not have any wartime active duty service. See Sabonis, 6 Vet. App. 426. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel