Citation Nr: 19138371 Decision Date: 05/17/19 Archive Date: 05/17/19 DOCKET NO. 15-34 793 DATE: May 17, 2019 ORDER The Veteran’s character of discharge is not a bar to the receipt of VA benefits. FINDINGS OF FACT 1. During his military service, the Veteran was charged with wrongful use of marijuana and assault. 2. The Veteran’s discharge was due to a minor offense. 3. The Veteran’s service was otherwise honest, faithful, and meritorious. CONCLUSION OF LAW The character of the Veteran’s discharge from military service is not a bar to the award of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1998 to November 1999. He received an other than honorable discharge due to drug abuse. Whether the character of the Veteran's discharge is a bar to the receipt of VA benefits When a person seeks 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; 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). The regulatory bars of 38 C.F.R. § 3.12(d), at issue in this case, 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 Veteran’s discharge is not a bar to his receipt of VA benefits. The Veteran’s service personnel records show that he was charged in September 1999 with wrongful use of marijuana and punching a fellow servicemember in the face. In October 1999 the Veteran admitted to these offenses and was discharged in November 1999 due to drug abuse. These two instances of misconduct are the only misconduct in his records. The Veteran stated that he used marijuana to treat mental health symptoms that began in service and were due to combat. The Veteran’s service personnel records show that his service was otherwise honest, faithful, and meritorious. Therefore, the Board finds that his misconduct was a minor offense and that his service was otherwise honest, faithful, and meritorious. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke 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.