Citation Nr: 18156877 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-18 601A DATE: December 11, 2018 ORDER The appellant’s discharge is considered to have been issued under other than honorable conditions and is a bar to the payment of VA pension benefits. FINDING OF FACT The appellant’s entire period of service was under conditions other than honorable. CONCLUSION OF LAW The character of the appellant’s service is a bar to benefits administered by VA. 38 U.S.C. §§ 101, 5103, 5103A, 5303, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.159, 3.203, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from August 1971 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 administrative decision issu8ed by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. Jurisdiction over the appeal presently rests with the PMC in Philadelphia, Pennsylvania. 1. Whether the appellant’s character of discharge is a bar to VA pension benefits The appellant filed a claim for nonservice-connected pension benefits which has been denied based on his discharge being under conditions other than honorable. He contends he should be entitled to VA benefits. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 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 dishonorable discharge, a statutory bar, or a regulatory bar, deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception such as insanity applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c), and regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) 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 (with specified exceptions to this condition). 38 C.F.R. § 3.12(c). An adjudicator is permitted to look at the totality of the evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL. Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003). As to the regulatory bars, 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 courts-martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (this includes a discharge under “other than honorable conditions”, if it is determined it was issued because of willful and persistent misconduct. A discharge because of a minor offense, however, will not 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. 38 C.F.R. § 3.12(d). A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or 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). Thus, insanity is a defense to all statutory and regulatory bars. 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 (become antisocial) 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). Except as provided in 38 C.F.R. § 3.13 (c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13 (b). The evidence of record indicates that the appellant entered active duty in the Army in August 1971. On July 15, 1972, he left his military unity in Germany without permission and remained AWOL until August 19, 1972, when he was detained by civilian police in Pennsylvania. He was found guilty of unauthorized absence. On August 29, 1972, the appellant signed a letter indicating that he “cannot stand the military service” and felt he was unable to remain in the military. He further indicated that he would continue to go AWOL until he was separated from service. in August 30, 1972, he signed a statement agreeing to an administrative discharge under other than honorable conditions in lieu of a court-martial. He also signed a document on August 30, 1972, acknowledging that in accepting an undesirable discharge, he would not be entitled to a number of benefits, to include VA pension benefits. For his part, the appellant now asserts that he was harassed by a fellow service member upon arrival in Germany and that his superior officer refused to do anything about the harassment. He asserts that he went AWOL to avoid further harassment, and but for that situation, he would have remained in the military. The Board finds that the nature of the appellant’s discharge is a regulatory bar to VA pension benefits. He was discharged under other than honorable conditions in lieu of a general court-martial which is explicitly listed as a “dishonorable discharge” for VA benefit purposes. There is no indication that he was ever insane during his period of active service and he does not make such a contention. Rather his personnel records indicate that, at the time, he found military life undesirable, that he was aware of his actions at the time, and that he was willing to continue taking such actions until such a time as he was no longer associated with the military. His own statements to VA admit that he was well aware of his actions and within his faculties at the time he went AWOL through his discharge. Statements signed by the appellant at the time of his discharge acknowledge that he would not be entitled to the VA pension benefits he now seeks by virtue of his taking an other than honorable discharge in lieu of court-martial. To the extent that he asserts he went AWOL to avoid harassment from a fellow service-member, that is not supported by the appellant’s voluminous personnel records, neither does it indicate any issues with sanity during his period of service. There is no indication that he ever sought a change of station or that he attempted to explain his reasons for going AWOL prior to his discharge. In sum, the appellant’s discharge as under other than honorable conditions in lieu of a court-martial is considered to have been issued under dishonorable conditions per Federal regulation. The evidence does not support a finding, nor does the appellant assert that he was insane at the time of his actions leading to his discharge and therefore there is no defense to his character of discharge. As such, the findings of the service department are binding and conclusive upon VA for purposes of establishing the appellant’s individual service.   The appellant does not meet the definition of “veteran” for purposes of entitlement to VA pension benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel