Citation Nr: 18143643 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 13-28 198 DATE: October 19, 2018 ORDER The character of the Appellant’s service constitutes a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT The Appellant’s misconduct in-service was willful and persistent; it did not consist of mere minor offenses offset by otherwise honest, faithful and meritorious service, and he was not insane at the time he committed the misconduct in-service. CONCLUSION OF LAW The character of the Appellant’s discharge from service is a bar to receiving VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from February 1979 to September 1982, at which time he received a bad conduct discharge pursuant to the sentence of a special court-martial. This case was previously before the Board of Veterans’ Appeals (Board) in January 2016 on appeal from a May 2010 administrative decision. The Board finds that there has been substantial compliance with its January 2016 remand directives, and it will proceed to a decision. VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA provided all appropriate notice to the Appellant in February 2010. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. The Appellant participated in a hearing before the undersigned in September 2015, and a transcript of this hearing has been associated with the record. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA’s duties to notify and assist have been met. For benefits purposes, a “veteran” is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.315. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). A claimant receiving a discharge under conditions other than honorable may be considered to have been discharged under dishonorable conditions in certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, “offenses that would interfere with the appellant’s military duty, indeed preclude their performance... are not minor.” Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). A discharge under dishonorable conditions bars 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). For the purpose of this regulation, 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so 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). Turning to the facts in this case, the Appellant enlisted into service with the United States Marine Corps (Marines) in January 1979 for a four-year period of obligation. On May 17, 1979, civil authorities charged the Appellant with burglary following his theft of a camera and his accomplice’s theft of a television. On July 12, 1979, the Appellant received a non-judicial punishment (NJP) based on his possession and use of marijuana. In September 1979, the Appellant was not recommended for promotion. Pursuant to a special court-martial convened on May 28, 1980, the Appellant was found guilty of wrongfully using provoking words towards a superior, stealing cigarettes, and unlawfully striking a fellow Marine. On June 16, 1980, the Appellant was reduced to pay grade E-1, forfeited $250 pay per month for three months, and was sentenced to hard labor for three months. On January 16, 1981, the Appellant received an NJP based on the Appellant’s breaking of restrictions. The Appellant was sentenced to forfeiture of $100 pay per month for two months, and 45 days of restriction to limits. The Appellant was tried by special courts-martial on December 30, 1980, January 26, 1981, and March 3, 1981, which found him guilty of a charge of assault after he struck a sergeant and broke his jaw and a charge of burglary. On March 3, 1981, the Appellant was sentenced to confinement at hard labor for five months, to forfeit $334 per month for five months, and to be discharged from the service with a bad conduct discharge. On April 13, 1981, a counselor at the Appellant’s correctional facility found the Appellant to be immature with no sense of responsibility. The counselor found the Appellant to be non-restorable to service. On April 21, 1981, the Appellant waived his restoration to military duty, and he requested execution of his bad conduct discharge. On April 29, 1981, a clinician found that the Appellant had no symptoms of psychosis, disabling neuroses, or organic brain syndrome. The clinician detected no mental disorders. In the Appellant’s April 30, 1981 separation examination, the Appellant was found to be psychiatrically normal. On July 30, 1981, the United States Naval Clemency and Parole Board declined to grant the Appellant’s request for clemency. Following the approval of the Appellant’s request not to be restored to duty, the Appellant separated from service with a bad conduct discharge on September 17, 1982. Following service, in March 1993, the Appellant applied to the Naval Discharge Review Board (NDRB) for an upgrade of his discharge. The Appellant argued that upgrade was warranted because he was seeking employment with the federal government and because time had passed since his discharge. In May 1994, the NDRB found that the Appellant’s discharge was proper as issued, finding that the Appellant’s in-service misconduct showed a disregard for duty, responsibility, and respect for his fellow Marines. The NDRB concluded that the Appellant’s deliberate abandonment of his sworn obligation warranted his bad conduct discharge. In March 2011, the Appellant applied to the Board for Correction of Naval Records for an upgrade of his discharge. The Appellant argued that his discharge occurred as the result of his in-service abuse of alcohol and drugs, and he was never afforded with the opportunity to participate in in-service treatment. In December 2011, the Board for Correction of Naval Records denied the Appellant’s request. During the Appellant’s September 2015 hearing before the undersigned, the Appellant again argued that upgrade was warranted because he was not offered the opportunity to participate in substance abuse treatment while in service. The Appellant also indicated that he was the target of racial slurs during service. In June 2017, the Navy Council of Review Boards indicated that it had no additional records relating to the Appellant’s request for an upgrade of his discharge, because it retained authority to review the Appellant’s discharge for only 15 years following the Appellant’s 1982 separation from service. Turning to an analysis of these facts, the Board finds that the weight of the evidence supports a finding that the Appellant’s discharge was indeed the result of willful and persistent misconduct. The evidence shows that approximately four months into his period of active service, the Appellant was civilly charged with burglary. A pattern of serious misconduct continued throughout his service, with the Appellant using marijuana, striking fellow Marines on multiple occasions and once breaking the jaw of a fellow Marine, using provoking words towards a superior, committing burglary, and committing larceny. The Board thus finds that the Appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his military duty and ultimately resulted in his separation from service. The Board acknowledges that the Appellant has attributed his in-service misconduct to factors such as substance abuse and racial prejudice. The Board notes, however, that the Appellant did not mention any of these factors during his service, and regardless, such factors do not mitigate his clear pattern of serious in-service misconduct. While the Appellant has not explicitly stated that he was insane in-service, he has essentially argued that the above factors robbed him of the ability to think rationally. The Appellant’s current argument is contradicted by the evidence of record. For example, at the time of his separation from service, the Appellant certified on a number of occasions that he had been advised of and understood the nature of his separation. Furthermore, no psychiatric disabilities were noted at the Appellant’s separation from service. Thus, the Board finds that the Appellant was not insane at any time during service. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In sum, the Board finds that the character of the Appellant’s discharge from service is a bar to payment of VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn