Citation Nr: 19155131 Decision Date: 07/17/19 Archive Date: 07/16/19 DOCKET NO. 18-47 283 DATE: July 17, 2019 ORDER Entitlement to non-service-connected disability pension benefits is denied. FINDING OF FACT The Veteran’s character of service is deemed dishonorable and a bar to VA benefits. CONCLUSION OF LAW The criteria for entitlement to VA benefits have not been met. 38 U.S.C. § 101; 38 C.F.R. § 3.1, 3.12, 3.301. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1988 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s January 2018 administrative decision denying the Veteran’s claim for non-service-connected disability pension benefits (hereafter “pension benefits”) based on the Veteran’s character of service. Entitlement to non-service-connected disability pension benefits The Veteran is seeking entitlement to non-service-connected disability pension benefits based on his wartime service during the Persian Gulf War. The RO denied his claim finding that his military service for the period of August 1988 to May 1992 is deemed dishonorable for VA purposes and is a bar to VA benefits. The Veteran contends that he did not enlist in the Navy for the sole purpose to abuse alcohol and the consumption of alcohol while on liberty did not interfere with the performance of his duties. He acknowledges that he received multiple Captain’s Masts (i.e., nonjudicial punishments) but sets forth that he also received many medals, commendations and awards during his service. Therefore, he argues that his service was at least partly meritorious and that, although the reason for his discharge was a Captain’s Mast in March 1992, it should not overshadow his entire service. He contends he is eligible for pension because he did not receive a dishonorable or bad conduct discharge, he had more than 24 months of active duty with more than one day of wartime service, and his discharge was not by general court martial. See April 2018 notice of disagreement. In his VA Form 9, the Veteran questioned why his entire period of service is deemed dishonorable, again listing his medals, ribbons, commendations, etc., essentially arguing that at least a part of his service was meritorious. Under VA laws and regulations, and 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). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.12. 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 absence without official leave (AWOL) for a continuous period of at least 180 days (this bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence). 38 C.F.R. § 3.12(c). Furthermore, 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 conviction of a felony; (4) willful and persistent misconduct – includes a discharge under other than honorable conditions, if is determined that it was issued because of willful and persistent misconduct, which does not include discharge because of a minor offense 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). In the present case, the Board finds that the Veteran’s discharge, although specified as under other than honorable conditions, is deemed to be dishonorable pursuant to 38 C.F.R. § 3.12(d)(4) as his discharge was due to willful and persistent misconduct. The Veteran’s DD Form 214 clearly indicates the reason for his discharge was “Misconduct – Pattern of Misconduct.” The Board has looked at the Veteran’s service personnel records as well and has considered the evidence as a whole and finds that whatever medals, awards or commendations the Veteran may have received cannot override the persistent and willful misconduct that pervaded his military service. The Veteran’s service personnel records show that he was recommended for administrative separation from the United States Navy in March 1992 because of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct as evidenced by all punishments received under the Uniform Code of Military Justice (UCMJ). See March 21, 1992 memo 1910. His military records show the Veteran had four nonjudicial punishments (NJPs, also called Captain’s Masts in the Navy). The first one was in September 1989 for missing his ship’s movement that caused his unauthorized absence for 15 days in August 1989. The next two NJPs given in September 1990 and December 1991 were issued essentially because the Veteran was drunk and disorderly while on liberty and resisted arrest, which incidents occurred in August 1990 and November 1991. In December 1991, he was also charged with provoking speeches. Finally, in March 1991, he was issued an NJP for failure to obey a lawful order when he drank to the point of getting drunk while taking Antabuse despite previous knowledge this would be harmful to him. Comments provided by his Commanding Officer (CO) reflect that the Veteran had been provided counseling and had been given numerous chances to correct his drinking problems. Despite this and attempts at rehabilitation, the Veteran’s attempts to control or reduce his use of alcohol were repeatedly unsuccessful. Furthermore, his service personnel records contain a September 1990 report of an evaluation of the Veteran in which he was screened in August 1990 following a referral by his CO due to suspected overindulgence in alcohol. Based on this review of his medical/service records and interview with him, it was concluded that the Veteran “appears to be dependent on alcohol.” The Veteran disclosed experiencing blackouts and increased tolerance, as well as admitting to three alcohol-related incidents, two of which required hospital attention. He admitted to drinking daily except duty days in port. He acknowledged using alcohol more than intended, having unsuccessful efforts to control his use and running out of money for necessities due to his drinking. It was recommended that the Veteran be admitted to ABS (Level III) treatment. The Veteran’s service treatment records show that he was placed on Antabuse in November 1990, presumably as part of this treatment program. Moreover, the Veteran’s service treatment records show he was treated multiple times in the Emergency Department for alcohol intoxication in June 1990, August 1990, November 1991 and February 1992. Significantly, the last three visits coincide with the last three incidents for which the Veteran received the NJPs. Moreover, the February 1992 ER note shows the Veteran was again sent in for evaluation for ethanol intoxication by his command. It was further noted that, although he had been on Antabuse for six months, he drank enough alcohol that night to get drunk despite knowing that this may be harmful to him. His blood alcohol level was 241 mg/dl. Luckily, his only issue on examination was sinus tachycardia which eventually subsided. The treating physician noted that the Veteran was a tremendous liability to the Navy and that he showed no insight into his alcoholism and was obviously refractory to rehabilitation. Furthermore, there is documentation in the record that the Veteran was advised that his failure to cooperate in and complete his alcohol rehabilitation treatment programs could result in his separation from service. The Veteran twice signed a Drug and Alcohol Statement of Understanding – in July 1988 when he enlisted and again in August 1991 when he was going through rehabilitation – which set forth the Navy’s policy as to drug and alcohol abuse and the penalties for not following the Navy’s standards in this matter, including being subject to administrative discharge action. A September 1990 counseling record also shows he was warned at that time that he had a deficiency in his performance and he was warned that his failure to adhere to abstain from alcohol could make him eligible for administrative separation action. Moreover, a July 1991 memorandum from his CO to him with the subject “Drug and Alcohol Abuse Program Entry Statement” advised the Veteran that his “[f]ailure to cooperate in and complete this regimen will constitute grounds for separation processing.” 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). The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. 38 C.F.R. § 3.301(c)(2). In the present case, the Veteran’s NJPs reflect a pattern of willful misconduct pursuant to 38 C.F.R. § 3.301(c)(2). Moreover, his continued abuse of alcohol despite his command’s repeated attempts to help him through counseling and rehabilitation programs, as well as warning him multiple times of the consequences of his continued use of alcohol, is evidence of persistent and willful misconduct as the Veteran had knowledge that his use of alcohol was not acceptable behavior and he knew or should have known that his continued use of it would result in negative action against him. Yet he persisted in his negative behavior – using alcohol – with wanton or reckless disregard of the probable consequences of his actions – i.e., that he would be administratively discharged from service. Moreover, the Veteran had four NJPs during his service from August 1989 until March 1992. His service records make it clear that the last three were alcohol-related incidents. However, the Veteran admits that the first one in August 1989 was also alcohol-related as he states he missed his ship in the Philippines because of being intoxicated while on liberty. Therefore, apparently the Veteran’s alcohol abuse resulted in all four of the NJPs awarded and his alcohol caused issues during three-quarters of his time in service, not just during the last half of his service. Moreover, the Veteran essentially admitted at the September 1990 evaluation that he had lost control of his alcohol use by that time and this is also evidence by the multiple Emergency Department visits where his blood alcohol levels are very high. His alcohol abuse also led to him knowingly drinking while taking Antabuse, which was against direct orders for him not to drink while taking this medication. Such behavior is clearly persistent and willful misconduct under the applicable VA regulations. The Veteran argues that he had meritorious service as evidenced by the many medals, awards, commendations, etc. that he received. The Board acknowledges that the Veteran’s performance evaluations appear to show his performance improved for a time after the September 1990 NJP, especially during his ship’s deployment to the Persian Gulf during the latter half of 1991. However, given his NJP in December 1991 for being drunken and disorderly and resisting arrest, any such improvement was only temporary. The medals and awards the Veteran received in this case do not cannot overcome years of willful misconduct in abusing alcohol and repeatedly violating the Uniform Code of Military Justice when the Veteran knew this was against service standards. When the Veteran entered service in July 1988, he signed a Drug and Alcohol Statement of Understanding acknowledging his understanding of the Navy’s policy against drug and alcohol abuse. He was advised multiple times thereafter that he needed to stop his alcohol abuse, or it would lead to his administrative discharge. Unfortunately, the Veteran’s alcohol abuse eventually led to his administrative discharge. Thus, the Board finds the evidence demonstrates persistent and willful misconduct on the part of the Veteran such that his character of service should be deemed dishonorable for VA purposes. His offenses were not minor. The only exception would be if the Veteran is found to have been insane by VA standards at the time of the act causing the discharge. A discharge because of one of the above-identified offenses will not be a bar if it is found that the person was insane at the time of committing the offense causing the discharge. 38 C.F.R. § 3.12(b). VA regulations provide that 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 so departed from the accepted standards of the community to which by birth and education he belongs 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. VA General Counsel has stated that the determination of whether a particular behavior constitutes “insanity” for the purposes of section 3.354(a) is a question of fact to be resolved by the factfinder, based on consideration of the circumstances of the particular case. Zang v. Brown, 8 Vet. App. 246, 252-53 (1995), citing Stringham v. Brown, 8 Vet. App. 445, 448 (1995). Significant to this case, VA’s General Counsel has stated that behavior that is generally attributable to a substance-abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct that is generally considered to fall within the scope of the term “insanity” and, thus, does not constitute insane behavior. See VAOPGCPREC 20-97. In the present case, the Veteran does not contend, nor does the competent medical evidence show, that he was insane at the time he committed the offenses that led to his administrative discharge from active military service. The only medical evidence of record is the Veteran’s service treatment records. These records only contain notes showing emergency treatment for acute alcohol intoxication. There is also a September 1990 note indicating the Veteran was evaluated for his alcohol abuse. None of these records indicate the Veteran was treated for or diagnosed to have any mental health disorder other than alcohol abuse. Furthermore, the Veteran’s separation examination conducted in April 1992 did not identify any psychiatric abnormalities. The Board acknowledges that VA has not obtained a medical opinion on this issue but finds that one is not needed as there is no evidence to suggest that the Veteran was insane at the time of the commission of the acts that led to his discharge. His alcohol abuse is not a basis for a finding of insanity and, therefore, would not trigger VA’s duty to assist in obtaining a medical opinion. See VAOPGCPREC 20-97. In the absence of competent medical evidence linking the Veteran’s in-service offenses to insanity, the Board must find the Veteran was not insane at the time he committed the offenses that lead to his discharge. See Zang v. Brown, 8 Vet. App. 246, 254 (1995). Finally, the Board notes that the finding of this character of service determination applies to the entire period of the Veteran’s active military service because he only had one period of active duty. Where the Secretary determines that a person’s discharge from service was under dishonorable conditions, the payment of pension, compensation, or dependency and indemnity compensation, based on that period of service, is barred. See Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994), 38 C.F.R. § 3.12. A character of service determination applies to a single period of active duty. If the Veteran had multiple periods of active duty, then each period would stand alone and the character of service determination would only apply to the period in which the bad conduct occurred. Unfortunately, in the Veteran’s case, he only had the one period of active duty and, therefore, his entire period of active military service is affected. There is no provision in the law for the Board to parcel out periods of meritorious service from non-meritorious service and give the Veteran credit for meritorious service. Rather, the entire period of service is considered dishonorable for VA purposes. As such, the Veteran is barred from receiving VA benefits except for limited purposes as provide by law. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow 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.