Citation Nr: 18145116 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 16-02 175 DATE: October 30, 2018 ORDER The character of the appellant's discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code. FINDINGS OF FACT 1. During military service, the appellant received three non-judicial punishments for a total of six violations of the Uniform Code of Military Justice (UCMJ). 2. The appellant was separated from military service in March 2005 under conditions other than honorable. 3. The appellant’s offenses constituted willful and persistent misconduct. 4. The evidence of record does not demonstrate that the appellant was insane at the time he committed the offenses that led to the March 2005 discharge. CONCLUSION OF LAW The character of the appellant’s discharge from military service is a bar to the award of VA benefits other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1 (d), 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty from July 2001 to March 2005. Whether the character of the appellant's discharge is a bar to the receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code 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. 38 U.S.C. §§ 1110, 1131; see Cropper v. Brown, 6 Vet. App. 450, 452 (1994). 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 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). 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). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 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 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; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 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-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 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). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). After carefully reviewing the record, the Board finds that the character of the appellant’s discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. A review of the appellant’s service records demonstrates that he was charged with violation of Article 86 of the UCMJ for being absent without authority on September 5, 2002. He was charged with a violation of Article 92 for failure to obey an order or regulation by failing to have his uniform prepared for inspection from about August 8, 2002 to September 13, 2002. He was also charged with a violation of Article 104 of the UCMJ for making a false official statement by stating that he was at basketball practice when he was not on September 5, 2002. He was charged with two violations of Article 91 of the UCMJ for failing to obey an order and being disrespectful language to a superior on September 11, 2003. He was also charged with a violation of Article 117 of the UCMJ for wrongfully using provoking gestures on September 11, 2003. The appellant ultimately received a discharge under other than honorable conditions for a pattern of misconduct. In statements and at the Board hearing in July 2016, the appellant asserted that the actions of his superior officers were unjust, that he was dealing with some mental health symptoms from serving in a combat zone, that his mother was sick, and that his mother had custody of his niece and nephew, which led to him request a humanitarian discharge. After a review of all the evidence, the Board finds that the appellant’s actions, which resulted in three non-judicial punishments on September 23, 2002, October 9, 2003, and October 8, 2004, constitute a pattern of willful and persistent misconduct and are a regulatory bar to VA benefits as defined under 38 C.F.R. § 3.12(d)(4). The record shows that the pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). In Rogers v. Derwinski, 2 Vet. App. 419 (1992), the United States Court of Appeals for Veterans Claims (Court) affirmed a Board decision finding that two non-judicial punishments and initiation of a Special Court Martial with subsequent discharge for good of the service constituted a pattern of willful and persistent misconduct. This situation is similar to that in Rogers, with six violations of the UCMJ and three non-judicial punishments. Moreover, the situation in this case, involving six separate offenses spanning a period of more than a year, which resulted in three non-judicial punishments, cannot be considered “a minor offense” as contemplated under 38 C.F.R. § 3.12(d). For these reasons, the Board finds that the conduct of the appellant was willful and persistent misconduct, and his discharge is appropriately considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d). The Board also finds that the appellant was not insane at the time of the willful and persistent misconduct. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). 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 discharge should not act as a bar to the grant of veterans’ benefits. Cropper, 6 Vet. App. 450. In this case, the appellant’s service treatment records do not document any mental health impairment; moreover, there were no findings of insanity at any time. At the service separation examination in March 2005, the appellant reported several conditions in connection with his Report of Medical History but did not report any psychiatric symptoms. The appellant has not submitted any evidence of treatment for psychiatric symptoms or conditions at any time. The appellant has never asserted that he was insane at the time of the in-service incidents. In summary of the Board’s findings, the entire period of service was under conditions other than honorable; the discharge was not upgraded by a discharge review board established under 10 U.S.C. § 1553; the combination of offenses, which resulted in three non-judicial punishments, constitutes willful and persistent misconduct; and the appellant was not insane at any time during his service. As such, the appellant does not have status as a veteran for VA purposes, and the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke