Citation Nr: 20002225 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 16-11 502A DATE: January 10, 2020 ORDER The Appellant’s character of discharge for the period from May 23, 1969 through November 1, 1972, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. On May 23, 1969, the Appellant enlisted in the U.S. Army for a period of three years, with an expected discharge date of May 22, 1972. 2. On June 7, 1971, the Appellant was discharged from service for the purpose of immediate reenlistment and he reenlisted in the U.S. Army, effective June 8, 1971, for a period of three years, with an expected discharge date of June 6, 1974. 3. On October 15, 1972, the Appellant was charged with being Absent without Leave (AWOL) with the offenses occurring between April 1972 and October 1972. The Appellant was charged with three counts of AWOL from April 26, 1972 to May 31, 1972, from June 13, 1972 to August 31, 1972, and from September 8, 1972 to October 2, 1972. 4. On October 19, 1972, the Appellant submitted a request for discharge in lieu of a trial by court martial and was discharged on November 1, 1972 with an under Other Than Honorable (OTH) conditions discharge. 5. The Appellant was discharged in November 1972 because of willful and persistent misconduct; he was not discharged because of a minor offense. 6. There has been no removal of any bar to VA benefits via an upgrade to the Appellant’s character of discharge or evidence showing that the Appellant was insane at the time of his offense. CONCLUSION OF LAW The character of the Appellant’s service, from May 23, 1969 through November 1, 1972, is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Board will reference to the deceased former service member as Appellant, and the surviving spouse as the Substitute Appellant. The Appellant served on active duty from May 23, 1969 through November 1, 1972. He was discharged in lieu of court martial for misconduct, to include multiple periods of being AWOL and given an under OTH conditions discharge. The Appellant died in June 2016. The Substitute Appellant is the former service-member’s surviving spouse. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2014 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Winston-Salem, North Carolina. Under 38 U.S.C. § 5121A, a person who could be considered an accrued benefits claimant may substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim. The statute applies to claims of any claimant who died on or after October 10, 2008. See Pub. L. No. 110-389, 212, 122 Stat. 4145, 4151 (2008). Here, as the Appellant died in June 2016, the substitution benefits provisions apply. In a September 2016 notification letter, the Agency of Original Jurisdiction (AOJ) recognized the Substitute Appellant as a substitute claimant for the Appellant's claims on appeal that were pending when he died. The Substitute Appellant was scheduled for a Board Hearing, via video teleconference on March 7, 2019 in Winston-Salem, North Carolina. In February 2019, she withdrew her hearing request in written correspondence received by VA. 1. Whether the Appellant’s character of discharge for the period from May 23, 1969 through November 1, 1972 constitutes a bar to payment of VA benefits, other than health care under Chapter 17, Title 38, United States Code. The Appellant during his lifetime was seeking entitlement to VA benefits. Specifically, he asserted that his character of discharge should be revised and he should be allowed entitlement to VA benefits. He has also argued that the AOJ erred in not considering that he voluntarily entered the United States Army during the period of the draft, that he earned several awards for his two tours of combat service, to include the Army Commendation Medal and the Bronze Star Medal, and that he had symptoms of posttraumatic stress disorder (PTSD) at the time of his misconduct. His representative also argues that his first period of service should entitle him to VA benefits because his DD214, Certificate of Discharge, was issued under honorable conditions. After a careful review of the evidence of record, the Board finds that the character of the Appellant’s discharge from service is a bar to VA benefits. Relevant Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of a veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). “The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2). The term “discharge or release” includes “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). Conditional Discharge A discharge to reenlist is considered a conditional discharge if it was issued during one of the following periods: (1) World War I; prior to November 11, 1918; (2) World War II, the Korean conflict or the Vietnam era; or (3) Peacetime service; prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13 (a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c). Character of Discharge VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant’s discharge classification, and the claimant’s recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994), A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars 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 listed under 38 C.F.R. § 3.12(c): (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 periods of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the exception to AWOL, a person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits “unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged, unauthorized absence.” 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6). The Board notes that this provision is not applicable to the instant case as the Appellant was not AWOL for a period of at least 180 days. Rather, the Appellant’s military personnel records indicate that he was AWOL from April 26, 1972 to May 31, 1972 (35 days), from June 13, 1972 to August 31, 1972 (89 days), and from September 8, 1972 to October 2, 1972 (24 days). The provisions of 38 C.F.R. § 3.12(d) 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. A discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. 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). However, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious, or unless 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(d)(4). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). Specifically, pursuant to 38 U.S.C. § 5303(b), “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated.” 38 U.S.C. § 5303(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 his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) 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(a). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Mental illness is not identical to “insanity.” Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the Appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that “a determination of whether a person is insane is, in effect, a determination of whether the person’s actions were intentional, and, thus, the result of willful misconduct.” Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a Veteran suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent medical evidence that the Veteran was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior, which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his or her normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). The Board has reviewed all the evidence in the Appellant’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Appellant voluntarily entered the United States Army on May 23, 1969. He earned the military occupational specialty of engineer equipment maintenance specialist (62B). He served in the Republic of Vietnam from March 11, 1970 to Feb 5, 1971 and from August 23, 1971 to March 13, 1972. The Appellant earned the Bronze Star Medal and Army Commendation Medal for service in Vietnam. A review of the Appellant’s service personnel records (SPRs) show that he was discharged in lieu of court martial. His SPRs indicate several incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In March 1970, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 86 by being AWOL from March 3, 1970 to March 7, 1970. He was found guilty and ordered to forfeit $60.00 pay per month for one month. The Appellant went AWOL from April 26, 1972 to June 1, 1972. He was dropped from the rolls and listed as a deserter on May 25, 1972, until his return to military control on June 1, 1972. The Appellant went AWOL from June 13, 1972 to August 31, 1972. He was dropped from the rolls and listed as a deserter on July 13, 1972, until his return to military control on August 31, 1972. The Appellant went AWOL from September 8, 1972 to October 1, 1972. Upon his return from AWOL in October 1972, the Appellant was charged for three counts of violating Article 86, UCMJ, for three periods of AWOL. The Appellant’s SPRs further show that he consulted with an attorney and requested discharge under other than honorable conditions to escape trial by special court-martial. The record reflects that the Appellant requested a discharge for the good of the service in lieu of trial by court martial. In his request for discharge, the Appellant stated The reason for my request to be released from duty in the Army or armed forces is that the Army is causing great conflict in relation to my marriage and financial problems…I have chosen to take no alternative but to go AWOL from the Army…If I were to go back to duty, the Army would have more problems with me in the future. I just cannot cope with Army life anymore. At least on the outside, I can use my mind and my ability to the fullest extent…I have made up my mind…that the Army was going to have a great deal of problems with me being AWOL again or Article 15s for misconduct and causing a great deal of money to be spent in the next 2 years to make me what they consider to be a good soldier which I will not be! For ending this statement, I will say that I will cause more problems in the future until I am released. The Appellant indicated that he made this request voluntarily and understood that he might receive an OTH conditions discharge certificate and lose VA benefits. In conjunction with his request for separation, the Appellant underwent a physical and mental evaluation in October 1972, and was found to have normal clinical findings, and was cleared for separation. The matter was referred for trial for a special court martial. The reviewing officer noted the Appellant’s periods of AWOL and his prior non-judicial punishment and approved the discharge in lieu of court-martial for the good of the service. The Appellant separated from service on November 1, 1972. His DD-214 lists his discharge character as under conditions other than honorable for the good of the service. The Appellant filed an application with the United States Army Discharge Review (DRB) in November 1974 to upgrade his character of discharge. However, this request was denied in December 1974. The Appellant filed another application with the United States Army Discharge Review (DRB) in June 1984 to upgrade his character of discharge. However, this request was denied in November 1974. The Appellant filed another application with the Board of Corrections of Military Records (ABCMR) in September 2012 to upgrade his character of discharge. The ABCMR granted the Appellant the authority to wear his service medals in June 2013. However, the ABCMR denied the request for discharge upgrade noting that the Appellant’s “service clearly did not meet the standards of acceptable conduct for Army personnel. This misconduct rendered his service unsatisfactory.” Analysis Period of Service The Appellant’s personnel records show that, on May 23, 1969, he enlisted in the U.S. Army for a period of three years, with an expected discharge date of May 22, 1972. On June 7, 1971, the Appellant was discharged from service for the purpose of immediate reenlistment and he reenlisted in the U.S. Army, effective June 8, 1971, for a period of three years, with an expected discharge date of June 6, 1974. The Appellant was discharged on November 1, 1972 with an under OTH conditions discharge due to misconduct for periods of AWOL with the offenses occurring between April 1972 and October 1972. The Appellant's period of active service from May 1969 to November 1972 has been held to be under dishonorable conditions. A DD 214 shows a period of active duty from May 1969 to June 1971; the character of separation for this period is indicated as being “honorable.” However, this form also indicates that the Appellant was discharged for immediate reenlistment at the time. He was not eligible for complete discharge in June 1971, so this is not a complete period of service and the controlling character of discharge is contained in the DD 214 for the following period of service. The Appellant’s DD 214 issued for his final period of service shows this period to be from September 1968 to March 1971. The character of discharge was “under other than honorable conditions.” Based on these facts, the Board finds that the Appellant’s discharge was conditional and the exception in 38 C.F.R. § 3.13(c) does not apply because he did not serve the entire period he was initially obligated to serve. Hence, the Board finds that the Appellant’s entire period of service is considered to be one single period of service. Since the Appellant would have been released from service on May 22, 1972, but for the fact of his intervening reenlistment on June 8, 1971 for a period of three years, to expire on June 6, 1974, and would not have been eligible for a discharge or release under conditions other than dishonorable due to his misconduct, the entire period of service is considered dishonorable for VA purposes. Character of Discharge After review of the record, the Board finds there is a regulatory bar to VA benefits in this case. The evidence does not reflect that there are any statutory bars in this case. The Appellant was not a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; was not sentenced to discharge by a general court martial; was not an officer who resigned; nor an alien during periods of hostilities, where it is affirmatively shown that the former service member requested his or her release. The Board notes that the Appellant’s discharge from service does not fall under the statutory bar listed in 38 C.F.R. § 3.12(c)(4) or (6). Although it is undisputed that the Appellant went AWOL on two occasions for periods in excess of 30 days, and was dropped from rolls as a deserter, the Appellant’s DD214 notes that he was discharged in lieu of court martial as due to willful and persistent misconduct. Additionally, his periods of AWOL were not continuous for periods of at least 180 days. However, the evidence reflects that the Appellant was discharged in lieu of undergoing a court-martial as a result of willful and persistent misconduct. As such, there is a regulatory bar to VA benefits in this case. The Board notes that the Appellant’s discharge from service does not fall under the regulatory bar listed in 38 C.F.R. § 3.12(d)(1). Although it is undisputed that the Appellant accepted an undesirable discharge in lieu of trial by court-martial, the Transmittal of Court-Martial Charges dated October 1972 indicated that a special court-martial was recommended. There is no indication that the Appellant was charged with a general court-martial. See 10 U.S.C. §§ 818, 819 (a general court-martial has the authority to impose a bad conduct or a dishonorable discharge, while a special court-martial has the authority to impose a bad conduct discharge but not a dishonorable discharge). The Appellant’s SPRs reflect multiple incidents of AWOL. In March 1970, he was subjected to nonjudicial punishment for AWOL. The Appellant was also charged for three periods of AWOL, from April 26, 1972 to June 1, 1972, from June 13, 1972 to August 31, 1972, and from September 8, 1972 to October 1, 1972. He was also dropped from the rolls as a deserter on two of these occasions as a result of being AWOL in excess of 30 days. The matter was referred for trial for a special court martial. The record reflects that the Appellant requested a discharge for the good of the service in lieu of trial by court martial. The Appellant indicated that he made this request voluntarily and understood that he might receive an other than honorable discharge certificate and lose VA benefits. The Appellant's DD 214 reflects a discharge of under other than honorable conditions and specifies an administrative discharge for the good of the service, under Army Regulation 635-200, chapter 10, for discharge in lieu of court martial. In light of the foregoing, the Board finds that the Appellant’s discharge was a result of his willful and persistent misconduct. The Appellant exhibited multiple willful actions that led to the charges against him, including willfully absenting himself from his military unit without authority. He did so even after receiving nonjudicial punishment for his first AWOL offense. In his request for discharge, the Appellant stated that he went AWOL intentionally over an expressed dissatisfaction with the Army. He also stated an intent to continue committing misconduct until he was released. Further, the appellant’s multiple periods of AWOL demonstrate willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445 (1995). Multiple instances of AWOL are “the type of offenses that would interfere with [the] appellant’s military duties, indeed preclude their performance, and thus could not constitute a minor offense.” Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). The Board finds these multiple periods of AWOL to constitute a pattern of willful and persistent misconduct. Thus, the Appellant’s discharge is considered to be dishonorable for VA benefits purposes. See 38 C.F.R. § 3.12(d). The Board has considered if there are any other reasons to set aside the statutory and regulatory bars to VA benefits, including because the Appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). As noted above, the evidence demonstrates that the Appellant applied for an upgrade to the character of his discharge by the ADRB on two occasions. The ADRB twice considered his requests and found that a discharge upgrade was not warranted and denied his requests. The ABCMR also considered the Appellant’s request for discharge and determined that his service was unsatisfactory and did not warrant a discharge upgrade. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge. Additionally, insanity has not been shown by the evidence of record. While the Appellant’s representative has asserted that he had PTSD or PTSD-like symptoms, there is no medical evidence that the Appellant was diagnosed with PTSD, nor lay evidence of any PTSD-like symptoms in service or following the Appellant’s discharge from service. The Appellant’s service treatment records indicate that he sought mental health treatment in September 1969 and was diagnosed with an anxiety reaction and situational adjustment disorder due to loss of support from family and friends. The treating mental health clinician returned the Appellant to duty and ordered a follow-up treatment. However, the clinician did not make any findings of severe mental health issues or indications of insanity. Furthermore, there is no indication that the Appellant was insane when he went AWOL, and he was found to have normal findings related to mental health his October 1972 discharge examination. There is no evidence showing the Appellant was insane at the time of his offense. In sum, the foregoing evidence shows that the Appellant accepted an undesirable discharge in lieu of trial by court martial as a result of being AWOL, which resulted in a discharge for willful and persistent misconduct and is a regulatory bar to VA benefits, and such a status has not been remediated either by an upgraded discharge or a finding of insanity at the time of his offense. 38 C.F.R. § 3.12(d). As the preponderance of the evidence shows that the Appellant committed the AWOL offenses between April 1972 and October 1972 and was not insane for VA purposes under 38 C.F.R. § 3.354, his character of discharge from service for the period from May 23, 1969 through November 1, 1972, is a bar to payment of VA benefits. Accordingly, the character of the Appellant’s discharge is a bar to his receipt of VA compensation benefits and the appeal must be denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.