Citation Nr: 18145785 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-39 736 DATE: October 30, 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 October 1969 to December 1973, at which time he was discharged under other than honorable conditions. 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 July 2013. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. 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). Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See, e.g., Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board’s finding that two and half months of AWOL was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board’s finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board’s finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct and, by analogy, persistent misconduct). 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 Army (Army) on October 2, 1969, for a 3-year period of obligation. Pursuant to an April 1972 special court-martial proceeding, the Appellant was convicted of a charge of AWOL for a 147-day period from October 15, 1971, to March 10, 1972. On April 18, 1973, the Appellant was sentenced to confinement at hard labor for two months, a reduction in rank, and a forfeiture of $100 for 3 months as punishment for an additional period of AWOL. On September 28, 1973, the Appellant was charged with a 71-day period of AWOL beginning on July 16, 1973, and ending on September 25, 1973, and trial by special court-martial was recommended. In the Appellant’s October 8, 1973, separation examination, he was found to be psychiatrically normal. The Appellant denied ever having experienced symptoms such as depression, excessive worry, or nervous trouble of any sort. On October 12, 1973, the Appellant requested a discharge for the good of the service in lieu of trial by court-martial. The Appellant had been afforded with the opportunity to consult with counsel and understood the effects of such a request, including ineligibility for VA benefits. The Appellant stated that he could not adjust to the Army; when he tried to adjust, he went AWOL on three separate occasions. The Appellant thought that retraining him again would be a waste of time and money. On October 12, 1973, the Appellant’s command recommended the Appellant’s separation from service. The command indicated that the Appellant had a record of two previous convictions by special courts-martial for charges of AWOL. The command indicated that further attempts to rehabilitate the Appellant would be unsuccessful. On November 7, 1973, an additional commanding officer indicated that the Appellant was immature, and lacking in discipline, motivation, and a desire to remain in the military. On November 21, 1973, the Appellant’s command approved the Appellant’s separation from service in lieu of court-martial. The Appellant separated from service on December 13, 1973, under other than honorable conditions. The Appellant’s service separation document indicated that the Appellant had lost 257 days of service due to periods of AWOL and confinement, with 184 days lost after the expiration of his initial service obligation. Following service, in April 2014, the Appellant stated that he had never been charged with desertion. The Appellant suggested that his service in Vietnam caused him to have posttraumatic stress syndrome and resulted in his periods of AWOL. In December 2016, the Appellant’s attorney indicated that the Appellant was exposed to chemical agents in-service and observed “acts of war”. The Appellant’s attorney indicated that the Appellant had been a model citizen since his separation from service. The Appellant’s attorney requested that given such factors, VA should make an equitable exception and find that the Appellant’s character of discharge was not a bar to the receipt of VA benefits. 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 the Appellant had several lengthy periods of AWOL during an approximately two-year period that ultimately resulted in 257 days of AWOL before his separation from service, with such periods of AWOL occurring both before and after the termination of his initial 3-year service obligation. 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 Appellant has attributed his periods of AWOL to factors such as witnessing acts of war. The Appellant did not mention such factors during his service; in fact, the Appellant broadly stated in-service that he wished to leave service as the result of a “failure to adjust”, and psychiatric examination found the Appellant to be normal. Regardless, such factors in no way 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). The Board has no discretion to make an equitable (Continued on the next page)   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. The Board does not have the authority to grant the Appellant’s claim on an equitable basis, and it is instead constrained to follow specific provisions of law. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn