Citation Nr: 18129409 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 14-32 352A DATE: August 24, 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 was discharged from service as the result of willful and persistent misconduct and an offense involving moral turpitude, and he was not insane at any time during 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 March 1986 to November 1987, at which time he received a discharge under other than honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 administrative decision. VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA provided all appropriate notice to the Appellant in March 2010. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA’s duties to notify and assist have been met. 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); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See, e.g., 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); 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). Additionally, a discharge or release as the result of an offense involving moral turpitude (that includes, generally, conviction of a felony) is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(3). VA’s General Counsel has stated that moral turpitude is the element of a willful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. VAOPGCADV 6-87 (Feb. 5, 1988). A discharge under dishonorable conditions bars the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). For the purpose of this regulation, 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 his 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 he belongs so 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). Turning to the facts in this case, the Appellant enlisted into the United States Army in March 1986 for a three year period of obligation. On December 11, 1986, the Appellant received a non-judicial punishment (NJP) for failures to appear at his appointed place of duty on December 3, 1986, December 5, 1986, and December 8, 1986. The Appellant was then AWOL from December 31, 1986, to January 12, 1987, at which time he was apprehended by civil authorities. On May 1, 1987, a civil court convicted the Appellant of burglary, and he was sentenced to two years of imprisonment. On October 20, 1987, the Appellant’s unit commander notified the Appellant of the initiation of separation proceedings as a result of the Appellant’s civil conviction, and the Appellant was advised of his rights. On the same day, the Appellant waived a hearing by a board of officers, indicated that he did not intend to appeal his conviction, and he did not submit a statement on his behalf. The Appellant’s unit commander recommended separation with an under other than honorable discharge. On October 22, 1987, the Appellant’s intermediate commander recommended that the Appellant separate from service with an under other than honorable discharge as a result of his conviction for burglary and resulting imprisonment. It was noted that the Appellant’s military service record indicated that he lacked discipline and was frequently involved in criminal acts. On November 2, 1987, the Appellant’s senior intermediate commander recommended that the Appellant separate from military service with an other than honorable discharge as a result of misconduct and a civil court conviction. On November 13, 1987, the separation authority directed the Appellant’s separation, and on November 20, 1987, the Appellant separated from service with an other than honorable discharge. The Appellant had 9 months and 19 days of creditable service. Following the Appellant’s separation from service, in September 1989, the Appellant applied for an upgrade of his discharge from the Army Discharge Review Board (ADRB), noting that his discharge had “seriously hampered” his ability to find employment. The Appellant indicated that he was not informed of the reasons for his discharge until after his separation from service. In March 1990, the ADRB unanimously determined that the character of the Appellant’s discharge under other than honorable conditions was proper as issued. The Appellant filed his current claim for benefits in January 2010. In March 2010, the Appellant indicated that the burglary charges against him were unwarranted because he was “set up by this Korean woman”. The Appellant indicated that he was forced to sign discharge papers. In August 2014, the Appellant stated that he was entitled to recognition as a veteran because he served more than 90 days of honorable service. The Appellant stated that he was inadequately represented by counsel in both his civilian burglary case and in the military. The Appellant indicated that he had been a model citizen following his incarceration. Turning to an analysis of these facts, the Appellant’s in-service civil conviction for a felony charge of burglary constitutes an offense involving moral turpitude. In other words, the Appellant’s crime was felonious, willful, had no justification or legal excuse, gravely violated moral standards, and would be expected to cause harm to a person or property. The Appellant has argued, essentially, that his conviction occurred as the result of a misunderstanding, but the Board places little weight in the Appellant’s contention. The Appellant did not advance such an argument at any time during his active duty service, and a civil court indeed found the Appellant guilty of burglary. Furthermore, the Board finds that the Appellant’s NJP and period of AWOL, both of which occurred less than a year after the Appellant’s entry into service, is consistent with a finding that the Appellant engaged in willful misconduct during service. In sum, the Board finds that the Appellant’s willful and persistent misconduct, coupled with his conviction of a crime involving moral turpitude, renders the entirety of the Appellant’s service dishonorable. The Appellant has not argued that he was insane in-service. Indeed, the Appellant has on numerous occasions advanced arguments justifying his in-service misconduct, placing blame on a woman with whom he had a romantic relationship, his civil counsel, and his military counsel. These attempts to justify his behavior are inconsistent with a finding that the Appellant was insane during service. (Continued on the next page)   In sum, the Board finds that the character of the Appellant’s discharge from service is a bar to payment of VA benefits. In reaching this conclusion, 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn