Citation Nr: 18150148 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-13 605 DATE: November 14, 2018 ORDER The character of the Veteran’s discharge from service is not a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT The offense that led to the Veteran’s discharge from service did not involve moral turpitude, and his discharge is therefore not under dishonorable conditions. CONCLUSION OF LAW The character of the Veteran’s discharge is not a bar to receiving VA benefits. 38 U.S.C. §§ 101(2), 5107, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2010 to December 2012, at which time he was discharged under other than honorable conditions. In this decision, the Board has determined that the character of the Veteran’s discharge from service is not a bar to receiving VA benefits. This action represents a complete grant of the benefit sought on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist. 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 as the result of an offense involving moral turpitude (that includes, generally, conviction of a felony) is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(3). VA’s General Counsel has stated that moral turpitude is the element of a willful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. VAOPGCADV 6-87 (Feb. 5, 1988). Turning to the facts in this case, the Veteran enlisted into service with the United States Army (Army) on June 15, 2010, for a 4-year period of obligation. The Veteran deployed to service in Afghanistan on September 19, 2011, where he was ultimately stationed at an Observation Post (OP) in Logar Province. On November 26, 2011, the Veteran and the victim, a soldier with whom the Veteran generally shared a friendly relationship, engaged in a “rough-housing” match. Witness statements regarding this scuffle disagree as to whether the fight constituted “combatives training” or simply rough-housing between fellow soldiers. In either event, during this fight, the victim, by his own admission, placed the Veteran in a “head lock” and “slammed him pretty hard”. The victim ultimately bested the Veteran in this fight, and the Veteran became angry that the victim had engaged in “disrespect and dirty fighting”. Following the fight, the Veteran followed the victim into a dimly-lit room and drew his knife to the victim’s neck “in an attempt to scare [the victim] so he might back off [of the Veteran]”. Witness statements, including those from the Veteran, the victim, and other observers, consistently state that the Veteran did not intend for his knife to contact the victim’s neck. Instead, the Veteran intended to scare the victim by brandishing his knife at him. Regardless of the Veteran’s intentions, however, the knife indeed struck the victim’s neck, lacerating the right carotid vein to an extent that required surgical repair. Both immediately after the event and since that time, the Veteran has expressed remorse, stating that he had not intended to hurt the victim, wishing that he could take back his actions, and describing the victim as a good soldier. On December 2, 2011, the Veteran was charged with assault. The Veteran plead guilty to this charge at a December 12, 2011, summary court-martial. The Veteran was sentenced to reduction to the grade of Private (E-1), forfeiture of $978 pay for one month, and hard labor without confinement for 45 days. The Veteran’s command recommended the Veteran’s separation from service, the Veteran waived his right to participate in a separation board, and the Veteran separated from service on February 3, 2012, under other than honorable conditions. The Veteran’s service separation document shows that he was awarded the Afghanistan Campaign Medal with a Campaign Star, the Global War on Terrorism Medal, the Army Service Ribbon, and the Parachutist Badge. Turning to an analysis of these facts, the Board must determine whether the action that led to the Veteran’s separation from service involved “moral turpitude”. Without diminishing either the obvious unacceptability and criminality of the Veteran’s action or the seriousness of the injury inflicted on the victim, the Board finds that the specific circumstances in this case indicate that the Veteran committed the in-service assault in a manner that did not involve moral turpitude. In favor of this finding, the Board notes that the event took place in the relatively high-stress environment of an Afghan OP, and the evidence indicates that the Veteran had no episodes of misconduct before this event. Witness accounts, including the victim’s, indicate that the rough-housing that preceded the assault escalated into the victim slamming the Veteran to the ground. Witness accounts consistently indicate that the Veteran did not intend to hurt the victim, and they consistently describe the room where the assault occurred as being dimly lit. Thus, while the Veteran’s action was inappropriate, impulsive, and criminal, these circumstances show that the action did not “gravely violate moral standards” and did not constitute moral turpitude. In sum, the Board finds that the Veteran’s service was not dishonorable because his discharge did not occur as the result of an act involving moral turpitude. As such, the Veteran qualifies as a “veteran,” and he is therefore eligible to receive VA benefits. 38 C.F.R. § 3.1(d). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn