Citation Nr: 20042320 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 20-22 342 DATE: June 22, 2020 ORDER New and material evidence having been received, the issue of whether the character of the appellant's discharge is a bar to Department of Veterans Affairs (VA) benefits is reopened. The appellant's character of discharge does not constitute a bar to VA. FINDINGS OF FACT 1. In an April 2010 decision, the Regional Office denied the appellant's claim of entitlement to VA benefits due to the character of her discharge. The appellant did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it was final. 2. Evidence has been received since the April 2010 decision that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to VA benefits. 3. The current record shows appellant's offenses were minor and were not based on willful and persistent misconduct. CONCLUSIONS OF LAW 1. The April 2010 decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the April 2010 denial of entitlement to VA benefits due to the character of the appellant's discharge. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for status as a Veteran and entitlement to VA benefits have been met. 38 U.S.C. §§ 101, 107, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from June 2001 to February 2005. The appellant was “discharged in absentia” and received other than honorable (OTH) characterization for “misconduct drug abuse.” This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 decision of a Department of Veterans Affairs Regional Office (RO) which declined to disturb an unappealed April 2010 rating decision which originally notified the appellant of her discharge being a complete bar to VA benefits. New and Material The RO initially denied the appellant’s claim of entitlement to VA benefits due to the character of her discharge in an April 2010 administrative decision. The appellant did not initiate an appeal from this determination and new and material evidence was not been received within one year, and the appellant has in no other way challenged the finality of this decision, thus it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions, thus the characterization of the issue on the title page of this decision. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108. "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Upon a review of the record, the Board finds that new and material evidence has been associated with the claims file since the original denial of the claim. As noted in the April 2010 Administrative decision, the appellant did not furnish evidence or argument in her application for relief from the regulatory bar of VA benefits, nor were the “facts and circumstances” of her February 2005 discharge for drug-use related misconduct included in the documentation associated with the claims file. See April 2010 Administrative decision (“facts and circumstances are ‘not available’…the DD Form 214’s Narrative reason for separation shows that the claimant was discharged for misconduct involving drug abuse”). The materials associated with the record since that time are both new and material, including her April 2020 Informal Conference Report testimony reflecting that the misconduct at issue was a single failed drug test for marijuana used in conjunction to overcome depression following a suicide attempt. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of the misconduct having not been willful and persistent; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. Whether the appellant's character of discharge constitutes a bar to payment of Department of Veterans Affairs (VA) benefits. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. 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." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory, and as in the instant case, regulatory. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). As to the regulatory bars, 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 (including, generally, conviction of a felony); (4) willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined 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); and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12 (d). The regulatory bars under 38 C.F.R. § 3.12 (d) state that a discharge is considered to have been issued under dishonorable conditions for numerous offenses, including willful and persistent misconduct. Specifically, the regulation states that a discharge under other than honorable conditions will be considered dishonorable "if it is determined that it was issued because of willful and persistent misconduct." 38 C.F.R. § 3.12 (d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if the veteran's service was otherwise honest, faithful, and meritorious. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge 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). Facts and Analysis The available military personnel records indicate the receipt of three non-judicial punishments (NJP) in April 2002, February 2004, and February 2005. As noted by the April 2010 Administrative decision, the “facts and circumstances” of the three NJPs have not been associated with the claims file. See March 2010 Defense Personnel Records Information Retrieval System (DPRIS) (“no administrative decision or any related documents dealing with the veterans separation and character of discharge.”) The appellant’s February 2005 separation was qualified as an OTH discharge and it was noted on the DD214 that it was conducted “in absentia.” Some information regarding the underlying offenses can be gleaned from the appellant’s STRs which indicate that she underwent mental health treatment in February 2004 at the time she received her second NJP. The psychiatric evaluation revealed that the appellant was “unable to think…for four days” after being granted compassionate leave to attend the funeral of a friend. A history of suicidal ideation was noted with no pertinent history of disciplinary problems since enlistment other than the unexcused absence for the funeral. In November 2004, the appellant acted upon her suicidal ideation, ingesting an “unknown amount of OTC pills.” See i.e. November 2004 Emergency Care note (“cc: I want to die…history of depression and SI”). The service treatment records otherwise do not present any indication of a substance abuse problem. On review of the record, the Board finds that the evidence does not support a finding that the appellant's actions were willful and persistent as defined by VA regulation. Review of the service personnel records and service medical records do not reflect that the appellant was ever disciplined or found to use, possess, or sell drugs for the four years that she was on active duty prior to the February 2005 separation. The Board acknowledges that while there are missing personnel records, these materials have been determined to be unavailable by DPRIS and their absence may not be held against the appellant. Moreover, there is no indication that these materials may present information unfavorable to the appellant. Notably, the April 2002 and February 2004 NJPs appear to be related to unexcused absences, and not drug-related offenses. See i.e. January 2020 appellant statement (“Around April 2002 I stayed away from the ship for a while…to the best of my recollection I had around two weeks leave…when I came back I received my first non-judicial punishment for being away without leave.”) Concerning these unexcused absences, they do not appear to have been for any great length of time, and occurred nearly two years apart from one another, thus dispelling any notion of a persistent nature. (Continued on the next page)   The Board also finds that the appellant's statements regarding single time marijuana usage in furtherance of combating depression so severe that it had led to a suicide attempt can reasonably be determined as not being willful misconduct (i.e., actions involving deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences). Further, assuming arguendo that the appellant was of a clear mental state and aware of the probable consequences of marijuana usage, the Board does not find that one failed urinalysis of a schedule one illegal substance rises to the level of "persistent" misconduct. In summary, the alleged transgression does not warrant an overall characterization of willful and persistent misconduct. For these reasons, and resolving all reasonable doubt in the appellant's favor, the Board finds her actions which led to her OTH discharge did not constitute willful and persistent misconduct. Accordingly, the character of his discharge is not dishonorable, and is not a bar to her receipt of VA benefits. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.