Citation Nr: 20005182 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-32 911 DATE: January 23, 2020 ORDER The character of the decedent’s service constitutes a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT The decedent’s misconduct in-service was willful and persistent; it did not consist of mere minor offenses offset by otherwise honest, faithful and meritorious service; and, he was not insane at the time he committed the misconduct in-service. CONCLUSION OF LAW The character of the decedent’s discharge from service is a bar to receiving VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The decedent served on active duty from August 1961 to August 1963, at which time he was discharged under other than honorable conditions. The decedent died in January 2015, and the appellant has been substituted in this case as the decedent’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 administrative decision. The appellant participated in a hearing before the undersigned in September 2017, and a transcript of this hearing has been associated with the record. This matter was most recently before the Board in October 2018, when it remanded the appellant’s claim in order to obtain a complete copy of the decedent’s service personnel records. The decedent’s personnel records were obtained, and the Board will proceed to a decision in this case. 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); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). 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 it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). For the purpose of this regulation, 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so 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). Turning to the facts in this case, the decedent enlisted into service with the United States Army (Army) on August 2, 1961, for a 3-year period of obligation. A May 17, 1963, Military Police Report indicates that the decedent was released to civil authorities on a warrant for aggravated assault against a civilian. An associated Military Police Report of Investigation stated that the decedent forcefully ejected the civilian from a vehicle, then picked up a beer bottle and threw it at the civilian. On May 22, 1963, the decedent received a non-judicial punishment (NJP) for a period of AWOL from May 15, 1963, to May 16, 1963. The decedent was sentenced to a reduction in grade to Private E-2, and he did not appeal this sentence. On June 12, 1963, the decedent was found guilty by special court-martial of a charge of AWOL from June 1, 1963, to June 6, 1963. The decedent was sentenced to confinement at hard labor for 4 months and forfeiture of $25 per month for 4 months. In a June 19, 1963, Report of Psychiatric Examination, the decedent attributed his 6-day period of AWOL to family problems. The examiner found the decedent to be a “skillful manipulator” and recommended the decedent’s separation from the military service. The examiner found that the decedent had no signs of a severe mental disorder. Instead, the examiner diagnosed the decedent with a passive aggressive reaction manifested by acts of a discreditable nature in both civilian and military life, impulsive acting out behavior and flight from situations of minor stress. On July 22, 1963, immediately after the decedent’s command granted him an early release from confinement, the decedent was apprehended by civil authorities for being drunk in public. On July 24, 1963, the decedent’s second lieutenant stated that the decedent was a “sorry excuse for a soldier”, “very lazy”, “always mouthing off”, and “slow in responding to orders”. On July 25, 1963, the decedent’s commanding officer stated that the decedent’s performance was substandard, with the decedent “in constant trouble with civilian and military authorities since his arrival at this unit”. The commanding officer stated that the decedent had been repeatedly counseled regarding his substandard appearance, personal hygiene, and equipment. The commanding officer rated the decedent’s conduct and efficiency as unsatisfactory. On July 25, 1963, the decedent acknowledged that his commanding officer had notified him that he was being recommended for an undesirable discharge from the service. The decedent understood the consequences of accepting such a discharge. The decedent waived his rights to a hearing and to submit written statements on his own behalf. The decedent additionally declined to be represented by counsel. On July 26, 1963, the decedent’s first sergeant stated that his “many attempts to rehabilitate [the decedent had] failed”, and he recommended the decedent’s elimination from the service. In the decedent’s August 6, 1963, Report of Medical History, the decedent denied experiencing symptoms such as frequent trouble sleeping, depression, excessive worry, loss of memory, amnesia, or nervous trouble of any sort. Consistent with the decedent’s denial of psychiatric symptoms, the decedent’s August 6, 1963, separation examination indicates that the decedent was psychiatrically normal. On August 3, 1963, decedent’s discharge from service was approved. The decedent separated from service on August 19, 1963, under other than honorable conditions. The decedent’s service separation document indicates that he lost 73 days of service as the result of his periods of AWOL and confinement. Following service, in February 2013, the decedent argued that his service was honorable because he only committed one offense, a period of AWOL. The decedent otherwise characterized this period of AWOL as a “youthful indiscretion”. The decedent additionally stated that his platoon sergeant “provoked [him] into . . . foolish actions”, including being drunk in public. The decedent argued that he did not understand the consequences of accepting an undesirable discharge. In January 2014, the decedent argued that he experienced racial prejudice in service. In September 2015, the appellant argued that the decedent was only AWOL for 4 days before turning himself in, he was not charged with any major offenses, and his charges of drunk in public and fighting were part of “GI culture”. During her September 2017 hearing before the undersigned, the appellant minimized the severity of the decedent’s in-service misconduct. The appellant, for example, disagreed with the characterization of the decedent’s substandard appearance as a soldier. Turning to an analysis of these facts, the Board has closely examined the totality of the evidence of record, and it finds that the weight of the evidence supports a finding that the decedent’s discharge occurred as the result of willful and persistent misconduct. The evidence shows that over an approximately 3-month period, civil authorities charged the decedent with aggravated assault against a civilian and drunkenness in public. During this same time, the decedent received an NJP for a 2-day period of AWOL, and he was convicted by special court-martial for a 6-day period of AWOL. The decedent’s superiors consistently described the decedent’s performance, appearance, and equipment as substandard despite numerous attempts at rehabilitation. The Board thus finds that the decedent was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his duty and ultimately resulted in his separation from service. The Board places little weight on the appellant’s attempts to minimize the seriousness of the decedent’s in-service misconduct. Both the decedent and the appellant have argued that the decedent was discharged from service as the result of a single period of AWOL. This claim is incorrect. As noted above, the decedent’s military records show that he was discharged as the result of both civilian criminal activity and military misconduct that continued despite the attempts of the decedent’s command to rehabilitate his behavior. Similarly, the Board disagrees with the appellant’s characterization of the decedent as engaging in “youthful misconduct” or simply participating in “GI culture”. The decedent’s chain of command consistently characterized the decedent’s conduct as substandard. The Board finds that despite the appellant’s current justifications of his in-service misconduct, the decedent’s misconduct was indeed willful and persistent. The appellant has not argued that the decedent was insane during service, and the Board otherwise finds the evidence not to support a finding that the decedent was insane when he engaged in the pattern of consistent misconduct that resulted in his discharge from service. The decedent denied experiencing any psychiatric symptoms at the time of his separation from service, and he was found to be psychiatrically normal at the time of his separation examination. Furthermore, the decedent and the appellant have attempted to minimize the importance of the decedent’s in-service misconduct; such justifications of his in-service misconduct are inconsistent with a finding that the decedent was insane at any time during service. (Continued on the next page)   In sum, the character of the decedent’s discharge from service is a bar to payment of VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable. The Board does not have the authority to grant the appellant’s claim on an equitable basis, and it is instead constrained to follow specific provisions of law. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.