Citation Nr: 18159495 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-16 052 DATE: December 19, 2018 ORDER Entitlement to VA death benefits is denied. FINDING OF FACT The character of T.H.’s discharge from service for the period from June 23, 1972, to February 6, 1974, is a bar to VA benefits. CONCLUSION OF LAW The criteria for basic eligibility to VA death pension benefits have not been met. 38 U.S.C. §§ 101, 1310, 1541, 5107 5303 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.12, 3.102, 3.312, 3.354 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION T.H. served on active duty from June 23, 1972, through February 6, 1974. T.H. is deceased and the Appellant is his surviving spouse. As he does not have the status of a veteran for VA benefits purposes, which will be discussed further and for the sake of clarity, the Board shall refer to him as “T.H.” in this decision. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997); Cropper v. Brown, 6 Vet. App. 450, 452 (1994). 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. 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 person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C. § 5107 (b), is not applicable to that determination of status. By statute, benefits are not payable where the former service member was discharged as a deserter. 38 U.S.C. § 5303 (a); 38 C.F.R. § 3.12 (b), (c). Benefits are not payable where the former service member was discharged or released 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 unless the person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. Id. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. 38 C.F.R. § 3.12 (c). A discharge for willful and persistent misconduct is considered to have been issued under dishonorable conditions. Acceptance of an undesirable discharge to escape trial by general court-martial is also considered as indicating dishonorable conditions for VA purposes. 38 C.F.R. § 3.12 (d). A discharge for willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12 (d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of 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). A discharge or release from service under conditions specified in 38 C.F.R. § 3.12 is a statutory 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. 38 C.F.R. § 3.12 (b). Service personnel records show T.H. had two special court-martials, one in February 1974 and the other in December 1973, for being absent without leave. He had one punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). In January 1974, T.H. was found guilty by special court-martial of violation of Article 86 of the UCMJ. A “Resume of Attitude, Conduct, Performance, and Discreditable Acts” shows he had no desire to return to duty in December 1973. In January 1974, it was noted that he was not motivated for further service and wanted any type of discharge “just so he can get out.” He requested discharge and on January 31, 1974, signed a statement showing that he was aware of the possible ineligibility for Veteran’s benefits with an under other than honorable discharge. The weight of the evidence demonstrates that T.H.’s discharge under other than honorable conditions was due to willful and persistent misconduct associated with being absent without leave, Article 15 punishment, and conviction by special court-martial. The Board finds that his discharge was not based upon a minor offense, and the record shows that his discharge was an undesirable discharge so he could leave the service. See 38 C.F.R. § 3.12 (d)(4). The Board acknowledges that the Appellant has argued T.H. had an extreme seizure disorder which may have affected his behavior, and did not have the presence of mind to accept a medical discharge. See VA Form 21-4138 received in July 2013. However, the Appellant has submitted no medical evidence to support her allegations. Service medical records do note T.H. reported a long history of seizure disorder; however, x-rays and electroencephalography were negative for such a disorder. Moreover, there is no indication in the service personnel records that either a medical discharge was warranted or offered. Finally, even if the seizure disorder were to be shown, this is not a showing that T.H. was insane at the time he committed the offenses leading up to his discharge. Due to his willful and persistent misconduct, conviction by special court-martial, a request to leave the service, a signed form indicating he understood the ramifications of an undesirable discharge on future benefits, and the undesirable discharge itself, T.H.’s discharge is considered dishonorable for VA purposes. Finally, the Board notes that in March 2013, VA issued an Administrative Decision finding that T.H.’s discharge was found to be dishonorable for VA purposes and a bar to VA benefits. As his character of discharge has not been upgraded at any time by his service department, by any discharge review board, or by a Presidential directive, an exception to the bar of VA benefits under 38 C.F.R. § 3.12 (f) is not applicable. CONTINUED ON NEXT PAGE   Therefore, the Board finds that the character of T.H.’s discharge is a bar to the Appellant’s receipt of VA death pension benefits. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel