Citation Nr: 18151542 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 11-22 898 DATE: November 20, 2018 ORDER The character of the appellant's discharge is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. FINDINGS OF FACT 1. The appellant had a single period of active service from April 1975 to October 1979. 2. The misconduct committed by the appellant during service was willful and persistent and did not consist of minor offenses offset by otherwise honest, faithful and meritorious service. 3. There is no evidence the appellant was insane at the time he committed the in-service misconduct. CONCLUSION OF LAW The character of the appellant’s discharge from service is a bar to VA compensation benefits. 38 U.S.C. 5303; 38 C.F.R. 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active service from June 1975 to October 1979. The Veteran testified in support of this claim during a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge in December 2011. This claim was remanded by the Board in December 2013 and March 2015 for additional development. In March 2015 the Board remanded the claim to have the RO send a request to the Army in order to determine whether the appellant was qualified for a complete separation from service on December 28, 1978. In May 2017 the Army responded that it could not assist in this determination because the records were with the National Personnel Records Center (NPRC). Therefore, the February 2014 response by the NPRC is sufficient for whether the appellant was qualified for a complete separation from service on December 28, 1978. An August 1980 administrative decision found that the appellant’s character of discharge was a bar to the receipt of VA benefits. The appellant did not submit a timely notice of disagreement and the August 1980 administrative decision is final. Generally, a finally adjudicated claim can be reopened only after the submission of new and material evidence. 38 C.F.R. § 3.156(a). In contrast to the general rule, however, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1); Blubaugh v. McDonald, 773 F. 3d 1310 (2014). Here, additional service personnel records were received by the RO in October 2015 and additional service medical records were received by the RO in March 2018. Therefore, the Board will review the claim without determining whether the criteria to reopen the prior final decision have been met. Whether the character of the appellant's discharge is a bar to the receipt of VA benefits Veteran Status Service-connected compensation benefits may be established for a veteran who has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110. 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. Accordingly, a discharge or release from active service under conditions other than dishonorable is generally 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: (1) statutory bars found in 38 U.S.C. 5303(a) and 38 C.F.R. 3.12(c); and (2) regulatory bars listed in 38 C.F.R. 3.12(d). Under the regulatory bars, which are at issue in this appeal, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, to include conviction of a felony; (4) willful and persistent misconduct, to include a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious; (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty, e.g. homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status. 38 C.F.R. 3.12(d). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge 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). An absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445 (1995). A discharge or release from service under one of the above conditions is a regulatory 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 or release or unless otherwise specifically provided. 38 U.S.C. 5303(b); 38 C.F.R. 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days. VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) who has so departed from the accepted standards of the community to which by birth and education he belongs 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). In the process of consulting several well-accepted legal authorities, VA General Counsel has noted that the term insanity was synonymous with psychosis. VAOPGCPREC 20-97 (May 22, 1997). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445 (1995). A discharge to reenlist is a conditional discharge if it was issued during the Vietnam era, prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. 38 C.F.R. 3.13(a)(2). Except as provided in 38 C.F.R. 3.13(c), the entire period of service under the circumstances in 38 C.F.R. 3.13(a) constitutes one period of service and entitlement will be determined by the character of the final determination of such period of active service. 38 C.F.R. 3.13(b). Even though no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service under the following conditions: (1) the person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. 3.13(c). The Appellant’s Service The appellant’s enlistment contract indicates a four-year term of enlistment beginning on June 19, 1975. The appellant was issued two service separation forms. The first service separation form indicates a period of active service from June 19, 1975, to December 28, 1978, characterized as honorable. That document does not provide a reason for the appellant’s separation. The second service separation form indicates that the appellant had a second period of active service from December 29, 1978, to October 9, 1979, characterized as under conditions other than honorable. Although the appellant was issued two service separation forms with two separate periods of active service, under 38 C.F.R. 3.13(b), it is in fact one period of active service with an other than honorable discharge as the final determination for the period of active service. The appellant’s first discharge was a conditional discharge under 38 C.F.R. 3.13(a)(3). The appellant asserted that he was absent without leave (AWOL) because his father was sick and his mother needed help taking care of him. The appellant asserts that his first period of active service should be considered to be separate and honorable. Contrary to the appellant’s argument, 38 C.F.R. 3.13(c) requires that three conditions must be met. At the time of “discharge for reenlistment,” the appellant did not fulfill his four-year term of enlistment as required under 38 C.F.R. 3.13(c)(1). Therefore, under 38 C.F.R. 3.13(b), the appellant’s active service from June 19, 1975, to October 9, 1979, constitutes one period of active service with an other than honorable discharge. Military personnel records show that the appellant received five Article 15 non-judicial punishments. One non-judicial punishment was for a violation of Article 90 of the Uniform Code of Military Justice (UCMJ) for disobeying a superior officer and four non-judicial punishments were for being AWOL. The appellant was also counseled nine times for various performance issues. The question is whether the appellant’s actions in service constituted willful and persistent misconduct such that his discharge under other than honorable conditions is considered to have been issued under dishonorable conditions. The Board finds that the appeal must be denied. After review of the evidence, including the appellant’s lay statements and hearing testimony, the Board finds the appellant had other than honorable service due to willful and persistent misconduct. Although the appellant reports, and the record shows, that he had family health issues during service, he had numerous instances of misconduct. The frequency of his misconduct shows a persistent pattern of behavior that may be characterized as willful, meaning intentional or deliberate, in that there is no evidence of coercion or mental incapacity to suggest that it was otherwise. The appellant was not discharged because of a minor offense. His discharge was due to a pattern of behavior that resulted in five non-judicial punishments and nine counselings. “Offenses that would interfere with [the] appellant’s military duties, indeed preclude their performance ... could not constitute a minor offense.” Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1994) (observing that “drug use, unauthorized absence, drunk and disorderly conduct, and failure to go to place of duty were the types of offenses that would interfere with the appellant’s military duties, indeed preclude their performance and thus could not constitute a minor offense”). To the extent the appellant claims that life stresses resulted in psychological stresses that caused his misconduct, his allegations do not rise to the level of insanity. The Board finds no indication that the appellant had a deviation from his normal method of behavior, interfered with the peace of society, or lacked the adaptability to make further adjustment to the social customs of the community in which he resided. While the appellant reports psychological stresses, manifestations of psychiatric disorders do not equate to insanity for purposes of 38 U.S.C. § 5303 (b) or 38 C.F.R. § 3.12 (b). Beck v. West, 13 Vet. App. 535, 539 (2000); VAOPGCPREC 20-97. Additionally, the appellant has not provided any medical evidence of psychiatric or psychological treatment or insanity. Thus, the insanity exception to the bar to VA benefits is not applicable. Finally, to the extent the appellant indicated that he should receive an honorable discharge, the ultimate determination by the service department was a discharge under other than honorable conditions. VA is bound by the service department’s determination for the reason of a service member’s separation from active service and is not at liberty to change that determination. Duro v. Derwinski, 2 Vet. App. 530 (1992). The Board finds that the character of the appellant’s discharge from service is a bar to VA compensation benefits and the appeal will be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke