Citation Nr: 19137167 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 17-03 323 DATE: May 14, 2019 ORDER There is no clear and unmistakable error (CUE) in the September 2006 administrative determination that the character of the appellant’s service is a bar to receiving Department of Veterans Affairs (VA) benefits. The character of the appellant’s service is a bar to receiving VA benefits. FINDINGS OF FACT 1. An unappealed September 2006 administrative decision found that the character of the appellant’s service was a bar to receiving VA benefits; this decision was reasonably supported by the evidence then of record and the prevailing legal authority, and the decision was not undebatably erroneous. 2. The appellant’s misconduct in-service was willful and persistent; and, it did not consist of mere minor offenses offset by otherwise honest, faithful and meritorious service, and he was not insane at the time he committed the misconduct in-service. CONCLUSIONS OF LAW 1. There is no CUE in the September 2006 administrative decision finding that the character of the appellant’s service was a bar to receiving VA benefits, and that decision is final. 38 U.S.C. § 5109A, 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.105(a) (2018). 2. 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 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from June 1969 to June 1971, at which time he received a discharge under conditions other than honorable. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 VA administrative decision finding no CUE in a September 2006 administrative decision. The appellant has been provided with all appropriate notification, and the Board will proceed to a decision. VA received the appellant’s Rapid Appeals Modernization Program (RAMP) opt-in election form in November 2018. However, as the appeal had already been activated at the Board as of March 2018, the appeal was no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Factual History The appellant enlisted into service with the United States Army (Army) on August 22, 1969, for a 2-year period of obligation. The appellant successfully completed basic combat training and advanced individual training. Pursuant to the December 4, 1970, order of a special court-martial, the appellant was found guilty of a period of AWOL from August 10, 1970, to November 19, 1970. The appellant was sentenced to confinement at hard labor for 4 months and to forfeit $50 per month for 4 months. On May 6, 1971, a chaplain opined that the appellant was not open to further rehabilitation and recommended the appellant’s separation. Pursuant to the May 18, 1971, order of a special court-martial, the appellant was found guilty of a period of AWOL from January 12, 1971, to April 29, 1971. The appellant was sentenced to confinement at hard labor for 5 months and to forfeit $60 per month for 5 months. On June 2, 1971, the appellant’s command initiated proceedings to have the appellant administratively separated from service by reason of unfitness. On June 7, 1971, after consulting with counsel, the appellant waived consideration of his case by a board of officers, waived a personal appearance, and waived representation by counsel. On June 8, 1971, the appellant was counseled regarding the possibility of his early separation from service as a result of his misconduct. The appellant’s commanding officer stated that the appellant appeared to understand the ramifications of a separation from service, and he implied to his commanding officer that he wanted “out of the service by the most expedient means”. On June 17, 1971, the appellant’s commanding officer recommended that the appellant be eliminated from the service with an undesirable discharge. In support of this recommendation, the commanding officer noted that the appellant engaged in frequent acts of a discreditable nature with military authorities, had an AWOL record, and showed no motivation for continued active duty. The commanding officer noted that the appellant had been counseled concerning his responsibilities, and further attempts at rehabilitation would be useless. The appellant separated from service on June 24, 1971, under other than honorable conditions. The appellant’s service separation document shows that he lost 302 days of service (from August 10, 1970, to January 7, 1971, and from January 12, 1971, to June 22, 1971) due to periods of AWOL and confinement. Following service, in June 1977, the appellant applied to the Department of Defense Special Discharge Review Program (SDRP) for an upgrade of the character of his discharge. Effective July 1977, the Army Discharge Review Board (ADRB) upgraded the appellant’s discharge to under honorable conditions, and the appellant’s separation document was reissued to reflect this upgrade. In November 1978, however, following a re-review of the appellant’s file, the ADRB determined that the appellant’s discharge did not qualify for an upgrade under the new, uniform standards applicable to discharge review. A May 2005 rating decision, without a discussion of the character of the appellant’s discharge, granted the appellant’s claims for service connection for bilateral hearing loss and tinnitus. In June 2006, VA noted that the appellant had been erroneously granted compensation benefits, and it proposed to terminate the appellant’s benefit payments effective September 2006. A September 2006 administrative decision found that the character of the appellant’s service barred him from receiving VA benefits, and it severed the appellant’s compensation benefits. The administrative decision concluded that the appellant’s discharge was dishonorable because it occurred as the result of willful and persistent misconduct. In support of this finding, the administrative decision noted the appellant’s period of AWOL from August 10, 1970, to January 7, 1971. The administrative decision further stated that while there was not, at that time, sufficient evidence to “determine whether [the appellant’s] period from January 12, 1971, to June 22, 1971, was due to AWOL or confinement, however it states on [the appellant’s separation document] that he had a total of 302 days of bad time”. In June 2009, the appellant applied to the Army Board for Correction of Military Records (ABCMR) for an upgrade of the character of his discharge, simply stating that he believed that his discharge should be honorable. In November 2009, the ABCMR found that the appellant’s record of service was insufficiently meritorious to warrant an upgrade. CUE The appellant’s representative has argued that the September 2006 administrative decision should be overturned on the basis of CUE. An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. When the evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C.A. § 7105(c); 38 U.S.C.A. § 3.105(a). There is a three pronged test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (that is, there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). CUE a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed CUE. CUEs are “errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). A failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383 84 (1994). Furthermore, in determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there is no error within the meaning of 38 C.F.R. § 3.105(a). Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). Turning to an analysis of the facts in this case, the appellant’s attorney argues that the RO did not review a full copy of the appellant’s personnel file when rendering the September 2006 decision. Without such evidence, the appellant argues that it was CUE for the RO to find that the appellant’s discharge was dishonorable because there was no evidence supporting a finding that the appellant had been AWOL for a period of 180 days or more. The Board disagrees. The September 2006 administrative decision acknowledged uncertainty as to whether the appellant’s period of lost time from January 12, 1971, to June 22, 1971, was the result of AWOL or confinement. However, to the extent that this notation is an error at all (the record shows that the appellant was both AWOL and confined during this period), it is not an undebatable error that would manifestly have changed the outcome of the decision. The correct facts show that the appellant was AWOL from January 12, 1971, to April 29, 1971, with a period of confinement that followed. These facts, had they been before the adjudicator in September 2006, would have confirmed that the appellant had a second lengthy period of AWOL, and they would thus not have manifestly resulted in a different outcome. The attorney also contends that the September 2006 administrative decision contained CUE by stating that the appellant’s service separation document noted 302 days of “bad time.” The attorney notes that the appellant’s service separation document only stated that the appellant had non-pay periods of time from August 10, 1970, to January 7, 1971, and from January 12, 1971, to June 22, 1971. While it is accurate that the appellant’s service separation document does not specifically use the term “bad time”, it indeed notes that these periods of time were lost under 10 U.S.C. § 972, which applies to enlisted members who, in pertinent part, desert, are AWOL, or are confined in connection with a trial. The use of the term “bad time” is accurate, and use of the phrase did not manifestly change the outcome of the decision. The attorney further argues that it was CUE for the September 2006 decision to find that the appellant was discharged as a result of willful and persistent misconduct. He maintains that the appellant’s period of AWOL was not willful and persistent misconduct because a single incident of AWOL is not “persistent”. Leaving aside the fact that the appellant had two lengthy periods of AWOL, not one, the question of whether a single lengthy period of AWOL can itself be an example of “persistent” misconduct involves the weighing of evidence, which is not CUE. In sum, the September 2006 decision contains no undebatable errors. The decision found that the appellant’s in-service misconduct was willful and persistent, and it denied the appellant’s claim on this basis. Reconsideration A complete copy of the appellant’s personnel file was added to the record after the RO’s September 2006 administrative decision finding that the character of the appellant’s service was a bar to the receipt of VA benefits. These newly-obtained personnel records require VA to reconsider the appellant’s claim. 38 C.F.R. § 3.156(c). 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). A discharge under dishonorable conditions bars the payment of benefits unless the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). 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 her 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 she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which she resides. 38 C.F.R. § 3.354(a). Turning to an analysis of the facts in this case, as an initial matter, the Board finds that the SDRP’s July 1977 upgrade of the character of the appellant’s discharge does not remove the bar to the appellant’s receipt of VA benefits. Unless a discharge review board established under 10 U.S.C. § 1553 (in this case, the ADRB) determines on an individual case basis that a claimant’s discharge should be upgraded, an honorable or general discharge awarded by an SDRB does not remove a bar to benefits. See 38 C.F.R. § 3.12(h). Here, while an SDRB indeed upgraded the character of the appellant’s discharge in July 1977, the ADRB later determined that the appellant’s discharge did not qualify for upgrade under new, uniform standards. Put another way, the appellant’s discharge under other than honorable conditions remains binding on VA because the ADRB did not affirm the SDRB’s upgrade of the appellant’s character of discharge. The weight of the evidence supports a finding that the appellant’s discharge occurred as the result of willful and persistent misconduct. The evidence shows that just over a year after his entrance into service, the appellant began engaging in a pattern of serious misconduct that occurred consistently, and despite counseling, until his June 1971 separation from service. The appellant received two special courts-martial for lengthy periods of AWOL. The appellant’s misconduct continued despite receiving a number of formal counseling sessions informing him of the consequences of continued misconduct. The Board thus finds that the appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his military duty and ultimately resulted in his separation from service. The appellant has not argued that he was insane during service, and the Board otherwise finds the evidence not to support a finding that the appellant was insane when he engaged in the pattern of consistent misconduct that resulted in his discharge from service. The appellant did not complain of any psychiatric symptoms at the time of his separation from service; instead, according the June 1971 comment of his commanding officer, the appellant simply wanted “out of the service by the most expedient means”. In sum, 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. The Board does not have the authority to grant the appellant’s claim on an equitable basis, and it is instead constrained to follow specific provisions of law. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.