Citation Nr: 19102471 Decision Date: 01/10/19 Archive Date: 01/09/19 DOCKET NO. 15-25 216 DATE: January 10, 2019 ORDER New and material evidence having been received, the issue of whether the character of the appellant’s discharge is a bar to payment of Department of Veterans Affairs (VA) benefits is reopened. The character of the appellant’s discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. The appeal is denied. FINDINGS OF FACT 1. In March 1975, the RO determined that the appellant’s discharge from active service was issued under conditions which constitute a bar to the payment of VA benefits. The appellant was duly notified of this determination and his appellate rights, but did not appeal, nor was new and material evidence received within the following year. 2. Evidence received since the final March 1975 decision relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating that the appellant is eligible for the payment of VA benefits. 3. In March 1974, the appellant requested discharge for the good of the Service and received a discharge under conditions other than honorable in June 1974. 4. The appellant’s actions resulting in undesirable discharge constituted willful and persistent misconduct. 5. The appellant was not insane at the time he committed the offenses that led to his discharge. CONCLUSIONS OF LAW 1. The March 1975 decision that the appellant’s character of discharge was a bar to the payment of VA benefits is final. 38 U.S.C. § 4005(c) (1970) (currently 38 U.S.C. § 7105 (2018)); 38 C.F.R. §§ 3.104, 19.129, 19.153 (1974) (currently 38 C.F.R. §§ 3.104, 3.158, 20.1103 (2018)). 2. New and material evidence has been received to warrant reopening the claim as to whether the appellant is eligible for the payment of VA benefits. 38 U.S.C. § 5107, 5108 (2018); 38 C.F.R. § 3.156 (2018). 3. The character of the appellant’s discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101(2), 5303(a) (2018); 38 C.F.R. §§ 3.1, 3.12 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the U.S. Army from September 1972 to June 1974 and was discharged under other than honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which affirmed the March 1975 administrative decision that the appellant was not eligible for VA benefits because the character of his discharge was dishonorable for VA purposes. The appellant filed a timely Notice of Disagreement (NOD), received in June 2013. A Statement of the Case (SOC) was issued in June 2015. A timely substantive appeal was received in July 2015. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). A March 1975 VA administrative decision found that the appellant’s June 1974 discharge under conditions other than honorable was dishonorable for VA purposes because his approximate three-month total period of absence without leave (AWOL) constituted willful and persistent misconduct. The March 1975 letter included notification of the appellant’s appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the letter. Thus, the determination is final. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 1975. This evidence includes the August 2012 statement that the appellant went AWOL to visit a sick woman who was not recognized as family when his requests to visit her were denied, suggesting potentially extenuating circumstances for the appellant’s AWOL. This evidence is new, as the evidence before the RO at the time of its March 1975 determination did not include such a claim of extenuating circumstances for his AWOL. Further, it is material, as it relates to an unestablished fact necessary to substantiate the claim. The appellant’s claim was denied in part because his discharge was for willful and persistent misconduct. The Board finds that this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant’s previously denied claim as to whether the character of his discharge is a bar to the payment VA benefits is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Background Service personnel records reveal that the appellant was AWOL from June 6, 1973, to July 3, 1973. On October 26, 1973, and October 29, 1973, he failed to go to formation. He willfully disobeyed a direct order on November 19, 1973. He was AWOL from February 3, 1974, to February 28, 1974, and from March 5, 1974, to March 16, 1974. In March 1974, the appellant voluntarily requested discharge for the good of the Service under the provisions of chapter 10, AR 635-200. He had been afforded the opportunity to consult with appointed counsel for consultation. He expressed his understanding that, if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He was advised of and understood the possible effects of such an undesirable discharge. A Judge Advocate attested that he advised the appellant of such and attested to the fact that the appellant personally made the request for discharge. The appellant’s commanding officer recommended that the request for discharge be approved because the appellant was unable to perform to the minimum acceptable standards and was unable to adapt to military life. He was also suspected of having a drug problem. He did not have reasonable grounds for belief that the appellant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal. A Lieutenant Colonel and a Colonel interviewed the appellant and each opined that it would be in the best interests of the U.S. Army to separate him from service. An April 1974 Report of Mental Status Evaluation is of record. The appellant’s behavior was normal and he was fully alert and oriented. His mood was level, thinking process was clear, thought content was normal, and memory was good. The impression was no significant mental illness. He was mentally responsible, able to distinguish right from wrong, and able to adhere to the right. He had the mental capacity to understand and participate in Board proceedings. He met the retention standards as prescribed in Chapter 3, AR 40-501. An April 1974 statement from the appellant’s section chief states that the chief found that the appellant did not want to be told what to do by noncommissioned officers (NCO). His attitude was substandard. He had not adjusted to military formations and the wearing of military clothing. The chief had counseled him on numerous occasions to no avail. The appellant talked back to all NCOs and has made the statement that he cannot work for people that he does not like. He was disrespectful when ordered to sweep down steps and refused to obey the order. He missed multiple formations, was not at his place of duty, failed to repair for inspection, and was AWOL for multiple periods. The chief opined that a discharge would benefit the appellant and the Army. A statement from his platoon sergeant includes similar complaints of missing formation, going AWOL, having a below average attitude, and unsatisfactory efficiency and personal characteristics. A March 1975 VA administrative decision found that the appellant’s June 1974 discharge under conditions other than honorable was dishonorable for VA purposes because his approximate three-month total of AWOL constituted willful and persistent misconduct. Notification of such decision was provided to the appellant in March 1975. He was provided information regarding how to file a request for revision of the character of his discharge with the Service Department Discharge Review Board. In December 1979, the Army Discharge Review Board denied the appellant’s request for a change in the type and nature of his discharge. In a statement received in August 2012, the appellant outlined his reasons for his AWOL. He contended that he was passed over for advancement during training. He stated that “the only adult that had been in my life became very sick and was not expected to live.” Because this woman was not recognized as family by the Army, the appellant’s requests for leave were denied. He visited her on weekends but was unable to return to base on time and thus began to be charged with AWOL. Thus, he decided to visit this person without authorization, including for a period of 90 days. When he returned, he was told he would have to repeat basic training. The appellant did not want to do so. He stated that he was locked up until he was eventually discharged. In October 2012, the appellant expressed regret over his discharge and the effects it had on his life and familial relationships. Received in October 2012 was a buddy statement from D.C., who served with the appellant. D.C. reported that he and the appellant had been friends for 50 years. In May 2013, entitlement to nonservice-connected pension benefits was denied because the appellant’s discharge was dishonorable for VA purposes. In his June 2013 NOD, the appellant argued that his service should not be considered dishonorable because he completed basic combat training, advanced individual training as a lineman, and paratrooper training. The appellant stated that he never refused a lawful order pertaining to the performance of his duties as a combat-ready soldier. He indicated that he had been misrepresented by the American Red Cross while on active duty but had no proof of that. He indicated that he has twice applied to the Board for Correction of Military Records to have his discharge upgraded. However, his request was denied on both occasions. He indicated that serving in the military during the Vietnam era was very difficult due to “severe emotional problems of combat soldiers.” He also explained that his dream was to make a career of the military like his father had. He reported that he developed emotional problems during medical training at Fort Sam Houston and sought help from the American Red Cross. He stated that he was reassigned to Fort Ord and things improved, until he went to Fort Bragg, where he again sought help from the Red Cross. He stated that he could not remember all of the details which led him to accept the type of discharge, but he remembered that a Red Cross representative told him that they would assist him. In March 2015, the appellant stated that he had been a good soldier and was not sure why he lost focus other than the fact that tensions were high and attitudes were not good during the Vietnam era. He expressed regret. In the June 2015 SOC, it was noted that the appellant was discharged for the good of the service on June 4, 1974, and given an undesirable discharge. He was charged with being AWOL from June 6, 1973, to July 2, 1973, October 22, 1973, to October 28, 1973, February 3, 1974, to February 28, 1974, and from March 5, 1974, to March 15, 1974. His commanding officer noted that he was unable to perform to the minimum acceptable standards and was unable to adapt to military life. A colonel interviewed the appellant and opined that it would be in the best interests of the U.S. Army to effect discharge. In his July 2015 substantive appeal, the appellant requested that his discharge be updated because he was trained to service his country. He was very young and thrown into a new environment when he was on active duty. He also indicated that he was affected mentally by segregation in schools which caused him to join the job corps prior to joining the Army. He stated that he continues to give back to his country. Eligibility for Receipt of VA Benefits 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. 38 U.S.C. §§ 1110, 1131; see 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 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). 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 listed under 38 C.F.R. § 3.12(c): (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 AWOL for a continuous period of at least 180 days. The provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 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 because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). After carefully reviewing the record, the Board finds that the character of the appellant’s discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. As detailed supra, the appellant’s service records reveal that he was AWOL on multiple occasions, from June 6, 1973, to July 3, 1973, from February 3, 1974, to February 28, 1974, and from March 5, 1974, to March 16, 1974. He failed to go to formation on October 26, 1973, and October 29, 1973. He further willfully disobeyed a direct order on November 19, 1973. Multiple officers interviewed the appellant and opined that it would be in the best interests of the U.S. Army to separate him from service. The appellant’s section chief and platoon sergeant each observed that the appellant’s attitude was substandard, talked back to all NCOs, disrespectful, missed multiple formations, was not at his place of duty, and failed to repair for inspection. Following the opportunity to consult with counsel, the appellant voluntarily requested discharge for the good of the Service and ultimately received a discharge under other than honorable conditions for the good of the service. After a review of all of the evidence, the Board finds that the appellant’s actions constitute a pattern of willful and persistent misconduct and are a regulatory bar to VA benefits as defined under 38 C.F.R. § 3.12(d)(4). The record shows that the pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). While the appellant has recently offered reasons for his periods of AWOL, to include emotional stress and a desire to spend time with an ailing woman who took care of him but was not recognized by the Army as family, the Board affords lower probative weight to these remote recollections, made decades after the fact and in connection with a claim for monetary benefits, than to the contemporaneous evidence of record which establishes a pattern of willful and persistent misconduct and which affirmatively shows that the appellant was not suffering from mental impairment during service. This evidence includes the reports by the appellant’s section chief and platoon sergeant, and the opinions of the appellant’s commanding officer, and the Lieutenant Colonel and Colonel who interviewed the appellant. The appellant’s multiple periods of AWOL, in conjunction with his willful disobeying of a direct order, disrespect towards superiors, and failures to be at his place of duty, appear for formations, and repair for inspection constitute a pattern of willful and persistent misconduct. The Board also notes that the appellant himself requested a discharge for the good of the Service with the understanding of the possibility of receiving a discharge under other than honorable conditions and the consequences of such. The Army Discharge Review Board denied his request for an upgraded discharge on two occasions. For these reasons, the conduct of the appellant was willful and persistent misconduct, and his discharge is appropriately considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d). In November 2013, the appellant indicated that post-service evidence was on file with the Army Board for Correction of Military Records. Since then, a copy of the December 1979 denial of the appellant’s request for a change in the type and nature of his discharge by the Army Discharge Review Board has been associated with the claims file. There is no indication, nor is it contended, that there are any further relevant records. Indeed, the appellant himself reported that the Army Board for Correction of Military Records has twice denied his request for an upgraded discharge. The Board also finds that the appellant was not insane at the time of his willful and persistent misconduct. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). 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 discharge should not act as a bar to the grant of veterans’ benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). Critically, the record does not document any mental health impairment; moreover, there were no findings of insanity at any time. Indeed, an April 1974 Report of Mental Status Evaluation indicates that the appellant’s behavior was normal, he was fully alert and oriented, with no significant mental illness. He was able to distinguish right from wrong. Although he has made reference to emotional issues, the appellant has never asserted that he was insane at the time of the in-service incidents. In summary of the Board’s findings, the entire period of service was under conditions other than honorable; the discharge was not upgraded by a discharge review board established under 10 U.S.C. § 1553; and the appellant was not insane at any time during his service. As such, the appellant does not have status as a veteran for VA purposes, and the appeal is denied. 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. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel