Citation Nr: 18145249 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 17-56 788 DATE: October 26, 2018 ORDER Entitlement to VA death benefits is denied. FINDING OF FACT The character of J.J.’s discharge from service for the period from May 4, 1972, through December 6, 1976, is a bar to VA benefits. CONCLUSION OF LAW The criteria for basic eligibility to VA death pension benefits have not been met. 38 U.S.C. §§ 101, 1310, 1541, 5107 5303 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.12, 3.102, 3.312, 3.354 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION J.J. served on active duty from May 4, 1972, through December 6, 1976. He was discharged under other than honorable conditions. The undesirable discharge was to escape trial by court-martial. J.J. is deceased and the Appellant is his surviving spouse. As he does not have the status of a veteran for VA benefits purposes, for the sake of clarity, the Board shall refer to him as “J.J.” in this decision. Out the outset, the Board must determine whether the character of J.J.’s discharge is a bar to the Appellant’s eligibility to VA death 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. Holmes v. Brown, 10 Vet. App. 38, 40 (1997); 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 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). A person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C. § 5107 (b), is not applicable to that determination of status. By statute, benefits are not payable where the former service member was discharged as a deserter. 38 U.S.C. § 5303 (a); 38 C.F.R. § 3.12 (b), (c). Benefits are not payable where the former service member was discharged or released 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 unless the person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. Id. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. 38 C.F.R. § 3.12 (c). A discharge for willful and persistent misconduct is considered to have been issued under dishonorable conditions. Acceptance of an undesirable discharge to escape trial by general court-martial is also considered as indicating dishonorable conditions for VA purposes. 38 C.F.R. § 3.12 (d). A discharge for willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12 (d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 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 or release from service under conditions specified in 38 C.F.R. § 3.12 is a statutory 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. 38 C.F.R. § 3.12 (b). A DD Form 214 and personnel records, show that J.J. was discharged from his period of service from May 4, 1972, through December 6, 1976, under other than honorable conditions. Service personnel records show that he was declared a deserter. He was charged with 3 specifications of unauthorized absences (1) 243 days, (2) 771 days, and (3) 80 days. He consulted with counsel and requested discharge for the good of the service to avoid trial by court-martial. The weight of the evidence demonstrates that J.J.’s discharge under other than honorable conditions was due to willful and persistent misconduct associated with prolonged periods of unauthorized absence and to avoid trial by court-martial. The Board finds that his discharge was not based upon a minor offense, and the record shows that his discharge was an undesirable discharge to avoid trial by court-martial. See 38 C.F.R. § 3.12 (d)(4). The Appellant has not submitted evidence showing that J.J. was insane at the time he committed the offenses leading up to his discharge. She instead claims J.J. had gone home because he was homesick and to help his grandmother after his grandfather died. See VA Form 9 received in October 2017. Due to his willful and persistent misconduct and request for an undesirable discharge to avoid trial by court-martial, J.J.’s discharge is considered dishonorable for VA purposes. In April 1983, the Naval Discharge Review Board found the discharge was proper and no change was warranted. In April 2017, VA issued an Administrative Decision finding that J.J.’s discharge was found to be dishonorable for VA purposes and a bar to VA benefits. As his character of discharge has not been upgraded at any time by his service department, by any discharge review board, or by a Presidential directive, an exception to the bar of VA benefits under 38 C.F.R. § 3.12 (f) is not applicable. For these reasons, the Board finds that the character of J.J.’s discharge is considered to have been under dishonorable conditions and is a bar to the Appellant’s receipt of VA death pension benefits. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel