Citation Nr: 1808923 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 17-37 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Whether new and material evidence has been submitted to reopen the claim of whether the character of the appellant's discharge from service should be a bar to VA benefits, and if so whether the character of the appellant's discharge from service should be a bar to VA benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The appellant served on active duty from September 1983 to September 1987. His discharge was characterized as under other than honorable conditions (UOTHC). An April 1993 administrative decision of the Atlanta, Georgia Department of Veteran Affairs (VA) Regional Office (RO), concluded the character of the appellant's service was dishonorable for VA benefits. This appeal arises from a March 2016 decision that continued the finding the appellant was not eligible for VA benefits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017), 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The appellant's period of service from September 1983 to September 1987 was terminated by an UOTHC discharge. 2. An April 1993 administrative decision concluded the appellant's service was characterized by instances of willful and persistent misconduct and therefore was dishonorable for VA purposes, rendering him ineligible for most VA benefits. 3. The April 1993 administrative decision was not appealed and became final. 4. Evidence received since the April 1993 administrative decision includes the appellant's statements that provide a greater context of the circumstances for the infractions cited in the 1993 administrative decision that were the basis for considering his service dishonorable for VA purposes. 5. The appellant's infractions in service included: two instances of disrespect to a noncommissioned officer in October 1984 and February 1987, and two incidents of property damage in February 1987 and April 1987. 6. The Veteran's conduct while in active service did not amount to willful and persistent misconduct and there was no other regulatory or statutory bar to benefits, or dishonorable service. CONCLUSIONS OF LAW 1. As evidence received since the April 1993 administrative decision is new and material, the criteria for reopening the appellant's claim of whether the character of his discharge from service should be a bar to VA benefits are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The character of the Veteran's discharge was not a bar to the receipt of VA benefits. 38 U.S.C. §§ 101 (2), 5107, 5303 (2012); 38 C.F.R. § 3.12 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen VA decisions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C. § 5108; 38 C.F.R. § 3.104 (a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. § 3.160 (d), 20.200, 20.201, 20.202, 20.302(a) (2017). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence in this case shows appellant's period of service from September 1983 to September 1987 was terminated by an UOTHC discharge. An April 1993 administrative decision concluded the appellant's service was characterized by instances of willful and persistent misconduct and therefore was dishonorable for VA purposes, rendering him ineligible for most VA benefits. This decision cited 4 occasions where the appellant received non-judicial punishments (Article 15's). The April 1993 administrative decision was not appealed and became final. Evidence received since the April 1993 administrative decision includes the appellant's statements that provide a greater context of the circumstances for the infractions cited in the 1993 administrative decision that were the basis for considering his service dishonorable for VA purposes. The appellant described his platoon sergeant as jealous of his superior skills in physical training, which was considered to reflect poorly on the platoon sergeant who retaliated by initiating punishments for fairly minor infractions. The Board finds that such evidence is new because it was not before the RO at the time of the 1993 decision. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection; namely a credible context for the initiation of the Article 15's cited as the basis for the 1993 decision, which context diminishes the appellant's culpability for the infractions. Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened. Character of Service In order to qualify for VA benefits, an appellant must demonstrate that he had the status of a veteran. Struck v. Brown, 9 Vet. App. 145, 152 (1996). 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). A person seeking to establish veteran status must do so by a preponderance of the evidence; the benefit-of-the doubt doctrine is not applicable to that determination status. Struck, 9 Vet. App. at 152; see also Laruan v. West, 11 Vet. App. 80 (1998) (overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000)). 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). The statutory bars under 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c) state that 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; or (6) By reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether there are compelling circumstances to warrant the prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c). 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 any of the following offenses: (1) Acceptance of an undesirable discharge to escape trial by general court-martial. (2) Mutiny or spying. (3) An offense involving moral turpitude. This includes, generally, conviction of a felony. (4) Willful and persistent misconduct. (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious, or unless 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(d)(4) (2017). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant's other than honorable conditions discharge should not act as a bar to the grant of veterans' benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). As indicated above, the administrative decision in April 1993, concluded that the appellant's service career was characterized by instances of willful and persistent misconduct and therefore, was dishonorable under 38 C.F.R. § 3.12(d)(4). The appellant's DD Form 214, reflects that he served on active duty from September 1983 to September 1987 and was given an "other than honorable" discharge based on "Misconduct - Minor Disciplinary Infractions." (Emphasis added.) During his military career, the appellant had four non-judicial punishments (NJP or Article 15s). The first NJP, on October 10, 1984, was for disrespect to an NCO and resulted in a reduction to E-1 and a $334 fine. As the result of an NJP for destruction of property (damaging the hood and battery of a lance corporal's vehicle) on February 4, 1987, he was fined $200 and restricted for 45 days. An NJP on February 6, 1987, for disrespect to an NCO, resulted in another reduction to E-1 and a $400 fine. His final NJP, on April 23, 1987, was for destruction of private property (damaging a trashcan). He was again fined and restricted. Thus, over a period of 4 years there were only 4 infractions, the last of which was simply damaging a trash can. In his notice of disagreement received April 2016, the appellant stated that he felt the infractions during service were minor, and were motivated by a dislike for him by his platoon sergeant who was embarrassed by the appellant's superior abilities during physical training exercises. The Board must determine whether the appellant's actions constituted willful and persistent misconduct such that his discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions, barring him from the receipt of VA benefits other than health care under 38 U.S.C. Chapter 17. In order for the appellant's offenses to be considered to have been minor offenses, as noted in the exception to a bar of entitlement to VA benefits, the offenses must be determined to be such that the commission of the offenses would not have interfered with or precluded the appellant's military duties. Stringham v. Brown, 8 Vet. App. 445 (1995). The facts here do not reflect the appellant engaged in acts that would interfere with or preclude the performance of his military duties, and therefore, may be considered minor offenses. Likewise, they were characterized as such on the appellants discharge certificate. The record reflects that the appellant made disrespectful comments to his NCO on two separate occasions nearly 3 years apart. The evidence suggests the appellant said something inappropriate and argued with his superior; it does not show that he refused to comply with orders or failed to carry out his duties. The same goes for the property damage offenses; the record does not show that the offenses were anything more than minor. For each offense, he was appropriate disciplined with rank reductions, fines and restrictions. Moreover, none of the documents describing his actions characterized any offense as anything more than minor. Therefore, the Board finds the appellant's service may be considered to have been otherwise honest, faithful, and meritorious and that his offenses were minor offenses. Based on this evidence, the Board concludes that the appellant's actions that led to his UOTHC characterization of service do not amount to a statutory or regulatory bar to VA benefits. Therefore, the Board finds the character of his discharge is not dishonorable for VA purposes, and does not serve as a bar to his possible receipt of VA benefits based on that period of service. ORDER New and material evidence has been submitted to reopen the claim of whether the character of the appellant's discharge from service should be a bar to VA benefits, and this aspect of the appeal is granted. The character of the appellant's discharge from service is not a bar to VA benefits, and his appeal is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs