Citation Nr: 20006385 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-26 469 DATE: January 28, 2020 ORDER The character of the appellant's discharge from service for the period from April 25, 2002 to October 31, 2012, is a bar to payment of VA benefits; the appeal is denied. FINDINGS OF FACT 1. The appellant's first period of service ended with a conditional discharge. 2. The appellant's offenses during service constituted crimes of moral turpitude. 3. There is no evidence the appellant was insane at the time he committed the in-service misconduct. 4. A May 2014 VA administrative decision determined that the appellant's period of active service was dishonorable for VA purposes and a bar to VA benefits. 5. There has been no removal of any bar to VA benefits by any upgrade to the appellant's character of discharge. CONCLUSION OF LAW The character of the appellant's discharge is a bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served on active duty from April 25, 2002 to October 31, 2012. The appellant was convicted of several violations of the Uniform Code of Military Justice (UCMJ) at a General Court-Martial in June 2010 and confined from June 14, 2010 until his discharge on October 31, 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2014 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Wichita, Kansas. In July 2019, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Whether the appellant's character of discharge is a bar to the receipt of VA compensation benefits. 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 “veteran.” 38 U.S.C. §§ 1110, 1131; see 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). Statute 38 U.S.C. § 101(18) is not restricted to any given war, conflict, or time period, and provides that 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. 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. The implementing regulation provides that a discharge in order to reenlist is considered a conditional discharge if it was prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13(a). In these circumstances, the entire period of service typically 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). A service member may, however, be considered to have been unconditionally discharged or released from active military, naval, or air service if 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). [Of note, 38 C.F.R. § 3.13 has not been revised to include the Persian Gulf War era (defined as the period beginning August 2, 1990, and lasting through the date thereafter prescribed by Presidential proclamation or by law), but the appellant is otherwise covered by virtue of the statute, 38 U.S.C. § 101(18).] The appellant originally enlisted on April 25, 2002 for a term of three years. He then re-enlisted on December 6, 2004 for a term of six years. Therefore, the appellant served the period of time that he was obligated to serve at the time of entry into service on April 25, 2002. The appellant was not discharged or released from service at that time due to his intervening re-enlistment. At his July 2019 Board hearing, the appellant testified that he had re-enlisted in December 2009. He asserted that he completed his service obligations. Specifically, he stated I re-enlisted in ’04, from ’02 to ’04, and that contract went from ’04 to 2009, where I re-enlisted again in 2009, in December of 2009. I was court martialed in June of 2010. So, I still completed both of those contracts. So, from 2004 to 2009 was my second contract, which I completed, then re-enlisted in December of 2009. So, that would have been two completed contracts. Once I re-enlisted in ’09, I would -- for the additional six years or whatever it was, I believe, I never finished that time period out. The appellant also read from a document in which he noted indicated that he was honorably discharged from the United States Army on December 6, 2009, and that he re-enlisted on December 7, 2009. The appellant’s service personnel records have been associated with the file and no such document as read at the hearing is contained therein. Rather, the appellant’s DD 214, issued in October 2012, reads “IMMEDIATE REENLISTMENTS THIS PERIOD -- 20041206-20121031.” It does not indicate an immediate re-enlistment in December 2009. Furthermore, the appellant’s military personnel record does not contain any re-enlistment documents except for those pertaining to his December 2004 re-enlistment. Therefore, the Board finds that the evidence does not support the appellant’s claim of a December 2009 reenlistment. In any event, assuming arguendo the appellant had a December 2009 re-enlistment, his appeal would still fail for the same reasons detailed below because additional conduct supporting the finding of dishonorable conduct occurred during this period of time. The issue in this case is whether the appellant would have been eligible for a discharge or release under conditions other than dishonorable on his scheduled discharge date of April 24, 2005 except for the intervening reenlistment. As discussed below, the Board finds that the appellant committed misconduct involving moral turpitude during his initial term of service which would have rendered him ineligible for a discharge under conditions other than dishonorable. Service-connected compensation benefits may be granted to a veteran who has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. Accordingly, a discharge or release from active service under conditions other than dishonorable is generally 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: (1) statutory bars found in 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c); and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). Under the regulatory bars, which are at issue in this appeal, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, to include conviction of a felony; (4) willful and persistent misconduct, to include a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release from service under one of the above conditions is a regulatory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days. The appellant contends that he is entitled to VA benefits as a Veteran, despite his Bad Conduct Discharge, because his first period of service was terminated to allow him to re-enlist in December 2004. As discussed above, the appellant’s discharge was conditional upon his reenlistment and therefore, the remaining issues are whether the appellant would have been eligible for a discharge or release under conditions other than dishonorable on his scheduled discharge date of April 24, 2005, and whether the appellant’s characterization of discharge due to misconduct is a bar to VA benefits. After review of the evidence, including the appellant's lay statements and July 2019 Board testimony, the Board finds the appellant had other than honorable service due to his commission of an act involving moral turpitude, and as such, would not have been eligible for discharge or release under conditions other than dishonorable on his scheduled discharge date of April 24, 2005. As noted above, the appellant enlisted in the United States Army on April 25, 2002 for a period of three years, with a Scheduled Discharge Date (SDD) of April 25, 2005. The appellant was conditionally discharged on December 5, 2004, and he signed an immediate reenlistment contract effective December 6, 2004, for a period of six years, or until December 6, 2010. However, the Army discharged him in October 2012 with a Bad Conduct Discharge, due to a court-martial conviction for misconduct. The misconduct in question was the appellant's offenses involving moral turpitude, which include convictions for several acts, involving sexual assault on a child under the age of 12 and 16 years of age at the time of the offenses. In June 2010, the appellant was formally charged with two violations of Article 80, UCMJ, for attempted rape and sodomy of a minor female child under the age of sixteen years of age; two violations of Article 120, UCMJ, for sexual assault of a minor child; two violations of Article 125, UCMJ, for sodomy with a minor child under the age of 12 years of age; and two violations of Article 134, UCMJ, for acts which bring discredit upon the service. At a June 2010 General Court-Martial, the military judge found the appellant guilty of violation of Article 134 for taking indecent liberties with a minor female child, under the age of 16 years of age. The offenses occurred between December 12, 2003 and December 31, 2004. The military judge also found the appellant guilty of violation of Article 80 for attempts to commit sodomy with a minor female child, and two violations of Article 120 for illegal sexual contact with a minor female child, between October 29, 2008 and October 3, 2009. The military judge sentenced the appellant to 17 years imprisonment, reduction to the grade of E-1, and to be discharged from service with a dishonorable discharge. The General Court Martial Convening Authority approved the sentence, with the exception of the imposition of a dishonorable discharge, but rather, imposed a Bad Conduct Discharge. The sentenced was corrected to 13 years. Accordingly, the offenses involving moral turpitude for which the appellant was convicted and discharged with a Bad Conduct Discharge characterization occurred during the period of enlistment from April 25, 2002, to December 6, 2004, as well as other offenses occurring from October 2008 to October 2009. Since the appellant would have been released from service on April 25, 2005, but for the fact of his intervening re-enlistment on December 6, 2004 for a period of six years, to expire on December 6, 2010, the entire period of service is considered dishonorable for VA purposes. The Board is cognizant of the appellant’s argument that he was not charged until June 2010, and since he completed his contract prior to June 2010, and his service was considered honorable at the time, he would have been eligible for an unconditional discharge or release under conditions other than dishonorable at that time but for the intervening re-enlistment. The Board finds the appellant’s argument misplaced and contrary to the intent of the controlling statute and implementing regulation. The focus is on when the conduct occurred, not when the conduct was discovered, or when the conduct became the subject of an official investigation, or when the conduct became the basis for a charge or conviction. Here, the conduct occurred prior to his initial scheduled discharge date. As such, the appellant did not finish his initial three-year enlistment without misconduct, and would not have been eligible for a discharge under conditions other than dishonorable. In addition, the evidence does not show, nor has the appellant ever contended that he was insane at the time of committing the offenses resulting in his discharge. See 38 C.F.R. § 3.12(b). He did not offer such a defense in service, and there is no indication in the service medical records or otherwise of the existence of any insanity at the time of the commission of the offenses leading to his discharge. Therefore, the insanity exception to the bar of benefits based on discharge under dishonorable conditions is not for application in this case. As the preponderance of the evidence shows that the appellant committed the offenses involving moral turpitude between December 12, 2003 and December 31, 2004 and between October 29, 2008 and October 3, 2009, and he was not insane for VA purposes under 38 C.F.R. § 3.354, his character of discharge from service for the period from April 25, 2002 to October 31, 2012, is a bar to payment of VA benefits. Thus, his appeal must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TANYA SMITH 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.