Citation Nr: 19156046 Decision Date: 07/19/19 Archive Date: 07/19/19 DOCKET NO. 1845321 DATE: July 19, 2019 ORDER The character of the Veteran's discharge constitutes a bar to the receipt of Department of Veteran Affairs (VA) benefits from November 1992 to May 1997. FINDINGS OF FACT 1. The Veteran was discharged from active duty service in May 1997 under other than honorable conditions (OTH). 2. During his active duty service, it was found that he indecently assaulted a private during training. 3. Due to the Veteran’s willful and persistent misconduct, his discharge is considered dishonorable for VA purposes. CONCLUSION OF LAW The character of the Veteran’s discharge is under dishonorable conditions and constitutes a bar to the appellant’s receipt of VA benefits. 38 U.S.C. § §§ 101, 5303; 38 C.F.R. § §§ 3.1, 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served active duty service from September 1982 to August 1985; January 1986 to November 1992; and November 1992 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 administrative decision of the VA Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The character of the Veteran's discharge constitutes a bar to the receipt of VA benefits from November 1992 to May 1997. To establish eligibility for most VA benefits based on an individual’s military service, the character of discharge for the period of service at issue must be under conditions other than dishonorable. 38 C.F.R. § § 3.1. A discharge because of willful and persistent misconduct is considered to have been under dishonorable conditions. 38 C.F.R. § § 3.12 (d)(4). This includes a discharge under other than honorable conditions, if it is determined that 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. Id. A dishonorable discharge or a statutory bar deprives a claimant of all VA benefits, unless it is determined the individual was insane for VA purposes when committing the acts that resulted in the discharge or unless otherwise specifically provided. 38 C.F.R. § § 3.12 (b). However, the payment of VA 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. 38 C.F.R. § § 3.12 (b). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § § 3.1 (n). In January 1997, allegations of abuse were filed against the Veteran for sexual harassment against a Private during training. In particular, it was reported that the Veteran “shook down” the Private—who told him she had already been “shook down.” Regardless, the Veteran proceeded to repeatedly pat the Private over her breasts and buttocks, and this was witnessed by another Private. The allegations were reviewed, and it was determined that the Veteran indecently assaulted the Private. In March 1997, the Veteran was formally removed as Sergeant First Class of the Drill Sergeant Program. In April 1997, the Veteran was reassigned to the U.S. Army transition point for transition processing. This ultimately led to his May 1997 discharge. The Veteran contends that the dates assigned for dishonorable service—November 1992 to May 1997—are incorrect because this period only reflects his re-enlistment. Further, he contends he was assigned to two other locations, and he had attended/graduated many service schools with promotion during these dates that reflects honorable service. For example, he stated that his military personnel records indicate he was assigned to Fort Campbell, Kentucky, from November 1992 to August 1996; which is not the location where his in-service misconduct occurred. The Veteran’s military personnel record indicates that the Veteran enlisted for a four-year period of active duty in November 1992. Prior to the expiration of the four-year period to which he was initially obligated, he reenlisted in December 1995 for a six-year period. Although the appellant’s initial obligated period of service would have expired in November 1996, no discharge or release was awarded at that time because of the intervening reenlistment in December 1995. First, the Board notes that the provisions of 38 C.F.R. § § 3.13 related to constructive unconditional discharge do not apply here as the provisions pertain only to those who served in World War I, World War II, the Korean conflict, the Vietnam era, or peacetime service. See 38 C.F.R. § § 3.13 (a). The entirety of the appellant’s active duty service during the period in question was during the Persian Gulf War era. See 38 U.S.C. § § 101 (33); 38 C.F.R. § § 3.2 (i) (defining the Persian Gulf War as the period beginning August 2, 1990 and lasting through the date thereafter prescribed by Presidential proclamation or by law). Second, the term “discharge or release” includes (A) retirement from the active military, naval, or air service; and (B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable. 38 U.S.C. § § 101 (18). Therefore, pursuant to 38 U.S.C. § § 101 (18), the date on which the initial obligated period of service expired rather than the date of reenlistment is controlling. Consequently, the initial obligated period of service would have expired in November 1996 if the Veteran had not reenlisted. However, the Veteran would not have been eligible for the award of a discharge or release under conditions other than dishonorable for such period of service since the misconduct leading to his OTH discharge occurred during such time period. Therefore, the Board finds that the entire period of service from November 1992 to May 1997 is considered as one period of active duty service. Additionally, the Veteran contends that section eighteen of his DD-214 states that purpose for determining eligibility for compliance for federal benefits//continuous honorable active service: 19860121 – 19951211. For VA purposes, character of discharge is determined based on the information located in section twenty-four of a veteran’s DD-214. Here, section twenty-four of the referenced DD-214 states character of service: OTH. Upon review of the evidence of record, the Board finds that the Veteran’s May 1997 OTH discharge was a result of his persistent and willful misconduct, and this is considered dishonorable. The Veteran does not have veteran status for VA purposes from November 1992 to May 1997. Therefore, the Veteran is barred from any applicable VA benefits during this period of service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, Attorney Advisor 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.