Citation Nr: 19132201 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 18-49 002 DATE: April 24, 2019 ORDER The character of the Veteran’s discharge from military service constitutes a bar to VA compensation benefits, and the appeal is denied. FINDING OF FACT 1. During service, the Veteran was absent without leave (AWOL) from September 20, 1976 until October 31, 1976. 2. In a September 1976 administrative decision, the Veteran received a discharge or release from service under other than honorable conditions because of willful and persistent misconduct, which constitutes a bar to VA benefits. 3. The evidence does not suggest, and the Appellant has not alleged, that the Veteran was insane at the time of the offenses leading up to discharge from military service. CONCLUSION OF LAW The Veteran’s character of discharge from military service constitutes a bar for VA benefits. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1976 to November 1976. The appellant is his surviving spouse. 1. Whether the Veteran’s discharge from military service is a bar to VA benefits. In order to receive VA benefits, a payee must be a “veteran,” which is defined, in part, as “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); see 38 C.F.R. § 3.1 (d). Thus, 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). However, the provisions of 38 C.F.R. § 3.12 (b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits. Specifically, 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: (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 (with specified exceptions to this condition). 38 U.S.C. § 5303 (a); 38 C.F.R. § 3.12 (c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined it was issued because of willful and persistent misconduct; however, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious); and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12 (d). The payment of VA compensation or 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 or unless otherwise specifically provided in law and regulation. 38 U.S.C. § 5303 (b). A DD Form 214 indicates that 40 days were lost, from September 20, 1976 to October 31, 1976, under 10 U.S.C. 972. A review of military personnel records shows that during this period, the Veteran was AWOL. In a November 1976 memo, the Veteran’s commander documents the Veteran’s total absences and describes prior incidents of conduct. The Veteran deliberately missed work details and was counseled. His primary concern was discharge from the Army because he was dissatisfied with service. He stated that “he just could not cope.” Because the Veteran was provided numerous chances to improve his character and productivity, the commander recommended an undesirable discharge. The Veteran was informed of his rights and possible prejudice as a result of discharge. He signed a waiver of rights to trial by court-martial so that he could proceed with his request for discharge for the good of the service. A September 1977 administrative decision issued a discharge from service under dishonorable conditions. The Veteran died on February [Redacted], 2014. The appellant is his surviving spouse. In February 2017 she submitted an application for death and burial benefits. Based on the foregoing, the Board finds that the Veteran’s discharge from service, under other than honorable conditions, was issued because of willful and persistent misconduct, and is therefore a bar to VA compensation benefits under 38 C.F.R. § 3.12 (d). Additionally, here, the Veteran was not an officer and was not subject to trial by general court-martial, and therefore the statutory bar under 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c)(3) and the regulatory bar under 38 C.F.R. § 3.12 (d)(1) are not applicable in this case. It is also acknowledged that a discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12 (d)(4). Here, the Veteran’s commanding officer indicated that the Veteran was provided numerous chances to improve his character and productivity, but failed. He deliberately missed work details as his foremost concern was discharge from service. Also, despite receiving numerous opportunities to improve character and productivity, the Veteran went AWOL from September 20, 1976 to October 31, 1976, a total of 43 days. Notably, he only had 5 months and 15 days of service. Such actions were not minor offenses, and instead demonstrate willful and persistent misconduct. See Struck v. Brown, 9 Vet. App. 145 (1996) (affirming Board finding that two and a half months of AWOL out of nine months of service was willful and persistent misconduct); Stringham v. Brown, 8 Vet. App. 445 (1995) (upholding Board finding that multiple instances of AWOL and a failure to obey an order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming Board finding that 32 days of AWOL out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct). The only defense to this regulatory bar to benefits is if the Veteran was insane at the time of committing the offenses causing discharge or release. However, such defense to this bar has not been raised by the Appellant or the record. “Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.” Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In sum, the Board finds that the Veteran’s discharge, under other than honorable conditions, was issued because of willful and persistent misconduct, and thus, a bar to VA benefits. Moreover, insanity has not been shown by the evidence of record or raised as a defense by the Appellant, and therefore further consideration in this regard is not necessary. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable to determination status in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel