Citation Nr: 18158680 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 15-20 188 DATE: December 17, 2018 ORDER The character of the Veteran’s discharge constitutes a bar to the award of VA death benefits; therefore, the appeal is denied. FINDINGS OF FACT 1. The Veteran was discharged from service under other than honorable conditions. 2. During his active service, the Veteran was subject to multiple charges in relation to disorderly conduct, drug possession, and multiple absences without leave. 3. Due to the Veteran’s willful and persistent misconduct, his discharge is considered dishonorable for VA purposes. 4. The most probative evidence of record does not reflect that the Veteran was insane at the time of his in-service willful and persistent misconduct. CONCLUSION OF LAW The character of the Veteran’s discharge is under dishonorable conditions and constitutes a bar to the appellant’s receipt of VA death benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1979 to May 1981; he was discharged under other than honorable conditions. The Veteran died in November 2015, and the appellant filed a claim for VA death benefits as the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2018, the appellant appeared and testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the proceedings is associated with the claims file. The RO denied the appellant’s claim for entitlement to a death pension because it found the character of the Veteran’s discharge to be a bar to VA benefits. The appellant contended, at her January 2018 Board hearing, that she should not be held responsible for her husband’s actions during service. The Board notes that a prerequisite for eligibility to benefits is the underlying veteran status of the appellant’s deceased husband. The term “veteran” is defined as 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. An “other than honorable” discharge classification does not necessarily constitute a “dishonorable” discharge. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. Specifically, there are two types of character of discharge bars to establishing entitlement to 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). The statutory bars are not applicable in this case. The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for numerous offenses, including willful and persistent misconduct. Specifically, the regulation states that a discharge under other than honorable conditions will be considered dishonorable “if it is determined that it was issued because of willful and persistent misconduct.” 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if the veteran’s service was otherwise honest, faithful, and meritorious. Id. However, the payment of VA pension benefits will not be barred if it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(b). A review of the Veteran’s military personnel records reflects multiple accounts of a series of incidents that occurred in January 1981 in Camp Casey, South Korea. The records reflect that the Veteran, in an attempt to leave base on a bus, presented a normal off-duty pass that appeared to be tampered with. He was asked to leave the bus, but refused and became disorderly. He continued to act disorderly when the military police arrived, and had to be physically removed from the bus. After apprehension, the Veteran was found to be in possession of marijuana. The Veteran was also found to be absent without leave (AWOL) for this period of time. The record also reflects that subsequent to the January 1981 incident, but before formal charges were brought against him, the Veteran was AWOL for seven days in February 1981. No further explanation of the Veteran’s absence was provided. The Veteran was charged for wrongfully leaving his post before he was regularly relieved, failure to obey a military police officer, and wrongful possession of marijuana, all related to the January 1981 incident, as well as wrongfully being absent from his unit in February 1981. In conjunction with these charges, the Veteran underwent a mental evaluation in May 1981, and was found to not have a mental illness, to be mentally responsible, to be able able to distinguish right from wrong, and to adhere to the right, and had the mental capacity to participate in the proceedings. The matter was referred for trial for a special court martial. The record reflects that the Veteran requested a discharge for the good of the service in lieu of trial by court martial. The Veteran indicated that he made this request voluntarily, and understood that he might receive an other than honorable discharge certificate and lose VA benefits. The Veteran’s DD 214 reflects a discharge of under other than honorable conditions, and specifies an administrative discharge conduct triable by court martial. The Veteran filed an application with the United States Army in November 1986 to upgrade his character of discharge. However, this request was denied in May 1988. In light of the foregoing, the Board finds that the Veteran’s discharge was a result of his willful and persistent misconduct. The Veteran exhibited multiple willful actions in January 1981 that led to the charges against him, including tampering with an off-duty pass, disorderly conduct, drug possession, and being absent from his post. The Veteran’s willful misconduct continued the following month when he was documented as being AWOL for seven days. The Board finds these series of events to constitute a pattern of willful and persistent misconduct. Thus, the Veteran’s discharge is considered to be dishonorable for VA benefits purposes. See 38 C.F.R. § 3.12(d). As noted above, a finding that a discharge was dishonorable is a bar to the payment of benefits unless it is found that the person in question was insane at the time of committing the offense. See 38 C.F.R. § 3.12(b). However, the evidence of record does not establish that the Veteran was insane at the time of his in-service offenses. Specifically, the May 1981 psychiatric evaluation did not find any mental illness. Further, there was no indication in the Veteran’s service treatment records of any psychiatric or mental illness. While the appellant’s representative acknowledged during the January 2018 Board hearing that the Veteran got into some trouble in service, he argued that this was not the appellant’s fault, and that the Veteran turned his life around after service. The Board acknowledges the appellant’s arguments; however, they are contrary to applicable laws and regulations. As previously discussed, the threshold question of entitlement to the benefits the appellant seeks is the underlying veteran status of the appellant’s deceased husband. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1. Further, while the Veteran may have turned his life around after separation from service, it is the character of discharge, and the willful and persistent misconduct during service that led to such discharge, which constitute a bar to benefits. See 38 C.F.R. § 3.12(d) In summary, the Board finds that the Veteran’s May 1981 discharge was a result of his persistent and willful misconduct, is therefore considered dishonorable, and that the Veteran was not insane at the time of his offenses. Due to his dishonorable discharge, the Veteran does not have veteran status for VA benefits purposes, and the appellant is therefore barred from any applicable VA death benefits. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel