Citation Nr: 18156221 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-10 622 DATE: December 11, 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 she was not insane at the time she 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 1990 to September 1991, at which time she received a discharge under other than honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 administrative decision. 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). Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. Examples of such determinations were made in 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), and 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 the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). 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 her 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 she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which she resides. 38 C.F.R. § 3.354(a). Turning to the facts in this case, the Appellant enlisted into the United States Navy on October 23, 1990, for a four-year period of obligation. The Appellant had a period of AWOL beginning on March 22, 1991. The Appellant missed the movement of the USS Shenandoah on April 19, 1991, and she was declared to be a deserter on April 22, 1991. The Appellant returned to military authorities on May 30, 1991. In a May 30, 1991, psychiatric consultation, a clinician noted that the Appellant was depressed and had been having suicidal thoughts. The clinician diagnosed the Appellant with adjustment disorder with a depressed mood and suicidal thoughts. In a separate May 30, 1991, clinical record, the Appellant stated that she deserted because she was depressed and could not stand to be in the Navy. The clinician diagnosed the Appellant with adjustment disorder with suicidal thoughts. In a separate May 30, 1991, record, the Appellant stated that she did not want to “go out with [her] ship”. The Appellant stated that she went AWOL in March to be near her parents and to her husband as he completed training. The Appellant indicated that she had disliked the Navy since her second week of basic training, but she resolved to “adjust and deal with separation from her husband”. The clinician found the Appellant to be responsible for her behaviors, and not suicidal, homicidal, or psychotic. No psychiatric follow-up care was required. On July 19, 1991, the Appellant received a non-judicial punishment (NJP) charging her with a 39-day period of AWOL from March 22, 1991, to May 30, 1991, a 3-day period of AWOL from May 31, 1991, to June 3, 1991, a 1-day period of AWOL on July 11, 1991, a 1-day period of AWOL on July 12, 1991, and disobeying a lawful order. The Appellant was sentenced to forfeit $376 per month for two months and restriction to limits for 45 days. The Appellant was counseled regarding her periods of AWOL and disobedience of a lawful order. On July 21, 1991, the Appellant was informed that she was being considered for an administrative discharge due to the commission of a serious offense, and she was informed of her associated rights. On July 26, 1991, the Appellant acknowledged her receipt and understanding of such notice, indicated that she did not wish to consult with counsel, and waived all rights except the rights to obtain copies of pertinent documents. The Appellant did not object to the separation, and the Appellant’s command recommended her discharge. To the contrary, a July 19, 1991, clinical report indicated that the Appellant felt relieved that she was finally “going to get out of the Navy”, and a clinician noted that the Appellant did not have psychiatric pathology at that time. In a September 5, 1991, Report of Medical History, the Appellant denied experiencing psychiatric symptoms such as depression, anxiety, excessive worry, or nervous trouble of any sort. The Appellant’s September 5, 1991, separation examination indicated that she was psychiatrically normal. On September 11, 1991, the Appellant was discharged under other than honorable conditions as the result of the commission of a serious offense. Following service, in August 1993, the Appellant applied to the Naval Discharge Review Board (NDRB) for an upgrade of the character of her discharge, arguing that she was young and immature during her enlistment. In December 1994, the NDRB determined that the Appellant’s discharge was proper as issued. The Appellant filed her current claim for benefits in October 2013. In December 2014, the Appellant stated that she suffered numerous “setbacks” in service that left her unable to perform her military duties. The Appellant described being held back for two weeks in boot camp, experiencing the death of her grandfather, being unable to attend her preferred military school, and having a fear of heights and claustrophobia aboard the USS Shenandoah. The Appellant felt depressed and had a nervous breakdown. 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 began engaging in misconduct fewer than six months following her entry into service, with the Appellant ultimately going AWOL on four occasions and accruing over 40 days of AWOL in total. During service, both the Appellant herself and her Naval command indicated that the Appellant wished to be discharged from service. The Board thus finds that the Appellant was not discharged because of a minor offense, but she was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with her naval duty, which ultimately resulted in her separation from service, and which occurred as a result of the Appellant’s desire to leave the service. While the Board observes that the Appellant complained of psychiatric symptoms in service, the Board ultimately finds that the Appellant was not insane at any time during service. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The Appellant was psychiatrically evaluated following her 39-day period of AWOL, and clinicians did not find the Appellant to be insane at that time. Indeed, a May 1991 clinician found the Appellant to be responsible for her actions. The Appellant was found to be psychiatrically normal at the time of her September 1991 separation from service. The evidence of record, including the Appellant’s statements, supports a finding that the Appellant realized her dislike of Naval service soon after her entry into active duty. The evidence further indicates that the Appellant went AWOL to be nearer to her husband, she wished to leave the service, and she felt relief at the prospect of being discharged from service. These facts do not support a finding that the Appellant was insane during service, but they instead suggest that the Appellant made rational decisions based on her dissatisfaction with service, albeit decisions that ultimately resulted in her undesirable discharge from service. In sum, the character of the Appellant’s discharge from service is a bar to payment of VA benefits. 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn