Citation Nr: 20002884 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 18-36 910 DATE: January 13, 2020 ORDER New and material evidence has not been received sufficient to reopen the claim as to whether the character of the Appellant's discharge for the period from November 17, 1952, to June 2, 1954, constitutes a bar to VA compensation benefits. FINDINGS OF FACT 1. A September 1954 Regional Office (RO) decision found the Appellant’s other than honorable discharge for the period of service from November 17, 1952, to June 2, 1954, was issued under dishonorable conditions due to willful and persistent misconduct that constituted a bar to VA compensation benefits. The Appellant did not submit evidence within one year of the decision, nor did he timely appeal the determination. 2. A January 1973 RO decision upheld the previous determination regarding the character of the Appellant’s service, and denied entitlement to benefits. The Appellant did not submit evidence within one year of the decision, nor did he timely appeal the determination. 3. A February 1988 RO decision upheld the previous determination regarding the character of the Appellant’s service, and denied entitlement to benefits. The Appellant did not submit evidence within one year of the decision, nor did he timely appeal the determination. 4. A July 1991 RO decision upheld the previous determination regarding the character of the Appellant’s service, and denied entitlement to benefits. The Appellant did not submit evidence within one year of the decision, nor did he timely appeal the determination. 5. Evidence received since the July 1991 RO decision does not raise a reasonable possibility to substantiating the claim pertaining to the character of the Appellant’s discharge. CONCLUSIONS OF LAW 1. The July 1991 RO decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103. 2. Evidence received since the July 1991 RO decision is not new and material, and the criteria for reopening the claim as to whether the character of the Appellant’s discharge for the period of service from November 17, 1952, to June 2, 1954, constitutes a bar to VA compensation benefits have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant had military service with the United States Navy from November 1952 to June 1954. He was discharged under other than honorable conditions. The instant matter is on appeal from an August 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Appellant testified before the undersigned Veterans Law Judge in a videoconference hearing. A transcript of the proceeding has been associated with the record. 1. New and material evidence has not been received sufficient to reopen the claim as to whether the character of the Appellant's discharge for the period of service from November 17, 1952, to June 2, 1954, constitutes a bar to VA compensation benefits Decisions of the Regional Office (RO) that are not appealed in the prescribed time are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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). 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 his or 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 he/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 the facts in this case, the Appellant was discharged under other than honorable conditions following a series of infractions throughout his service. Such offenses included non-judicial punishments and summary courts-martial for multiple periods of AWOL, failure to obey an order, possession of another man’s identification card, and prejudice of the good order and discipline of the Armed Forces. In a September 1954 administrative decision, the Regional Office determined that the Appellant was discharged under dishonorable conditions for VA purposes due to these multiple acts of misconduct, and thus he was ineligible for VA compensation benefits. The Appellant argues that he should be entitled to benefits due to his disability, age, and financial hardship. In his December 2019 hearing before the undersigned, he reported that he was in possession of another person’s identification card in order to consume alcohol under the legal age in the United States. He denied experiencing mental illness during his service. While the statements of record are new in that they were not considered in the previous final denial, they are not material for the purposes of reopening the claim. These lay statements do not relate to an unestablished fact necessary to substantiating the claim, and do not, even when considered with other evidence of record, raise a reasonable possibility of substantiating the claim. Generally, in order to lift a statutory or regulatory bar to benefits, the Appellant must either obtain an upgrade to his discharge from his service department, or present evidence that he was insane at the time of the commission of the offenses underlying his discharge. Neither has been provided in this case. Instead, the Appellant asserts that he should be granted benefits due to his disability, age, and financial hardship. Unfortunately, such a contention does not address the aforementioned methods of lifting a bar to VA benefits. Service department findings are binding upon VA for purposes of establishing an individual’s service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); see, e.g., Spencer v. West, 13 Vet. App. 376, 380 (2000). VA has no authority to alter the Appellant’s discharge classification, and, instead, the Appellant’s recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). Therefore, to the extent that the Appellant contends that a removal of the bar to compensation benefits is warranted, such arguments essentially constitute a theory of equitable relief in this instance. Unfortunately, the Board is without authority to grant relief on an equitable basis. See, e.g., 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Rather, the Board is bound by the laws and regulations of the VA. Accordingly, the Board finds that the Appellant has failed to provide new and material evidence sufficient to reopen the claim pertaining to the character of his discharge; thus, his appeal to reopen the claim must be denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Associate Counsel 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.