Citation Nr: 20048047 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 17-27 536 DATE: July 17, 2020 ORDER The character of the appellant's service from April 16, 1968 to July 22, 1970, is a bar to receiving VA benefits. FINDING OF FACT The appellant'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 appellant'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 appellant first served from April 11, 1968 to April 15, 1968 and was discharged honorably. Following these four days of honorable service, the appellant served from April 16, 1968 to July 1970, at which time he received a discharge under other than honorable conditions (OTH). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 administrative decision This matter was denied in a February 2019 Board decision and appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the February 2019 decision in part, not disturbing the Board’s finding of sufficient evidence to warrant the reopening of the issue on appeal. As explained by the JMPR, the appellant’s initial four days of honorable service in April 1968 have not been duly considered in any VA adjudication of the underlying issues of entitlement to service connection. See February 2020 JMR (“Appellant’s initial period of service is relevant to his underlying claims of aggravated form of cancer, acute injury to his spinal column, and a total disability rating based on individual unemployability”); see also June 2013 administrative decision. As the AOJ has not actually adjudicated the claims for service connection on their merits, the Board finds that it does not have jurisdiction over the service connection issues referenced in the appellant’s underlying December 2012 application for VA benefits, and therefore these matters must be referred to the AOJ for appropriate action. The character of the appellant's service is a bar to receiving VA benefits. As discussed in the February 2020 JMPR, a review of the record reveals that the appellant has two distinct periods of active duty service by way of the issuance of two separate DD 214s. While the four days of honorable service in April 1968 are indeed relevant to the claims of entitlement to service connection, as noted above these issues have not been adjudicated by the AOJ and have therefore been referred. Regarding the only issue properly on appeal, the Board finds the claim must be denied. 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: regulatory, and as in the instant case, statutory. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). 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. Examples of such determinations were made in 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), and 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). 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 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. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VA O.G.C. Prec. 20-97 (May 22, 1997) (clarifying VA's definition of insanity). Background The Appellant entered service on April 11, 1968 and was discharged under honorable conditions on April 15, 1968 “to enlist in RA [regular Army]”. See DD 214; see also February 2013 Appellant correspondence (“I went in the Army in April of 1968. After five days I signed up for another year so I could go to cook school.”) Thereafter, the appellant signed a 3-year enlistment contract on April 16, 1968. An October 7, 1969, special court-martial order found the appellant guilty of two specifications of AWOL occurring from May 11, 1969, to June 21, 1969, and from July 14, 1969, to July 22, 1969. The appellant was to be reduced to the grade of E-1, to be restricted to limits for 60 days, to perform hard labor without confinement for 3 months, and to forfeit $80 pay per month for four months, with a part of such sentence suspended. The appellant was again AWOL from December 11, 1969, to January 13, 1970, and from February 3, 1970, to April 24, 1970. On May 11, 1970, the appellant requested a discharge for the good of the service in lieu of trial by court-martial. The appellant stated that he understood the implications of such a request, including ineligibility for VA benefits. The appellant participated in a separation examination on May 22, 1970, at which time he was found to be psychiatrically normal. The appellant did not complain of any psychiatric symptoms in his May 22, 1970, report of medical history. The appellant's command recommended approval of his request, and on July 17, 1970, the appellant's request to be discharged for the good of the service was approved. The appellant was found to be medically qualified for separation from military service, and he separated from service on July 22, 1970, for the good of the service under conditions other than honorable. The appellant's service separation document indicates that the appellant had 170 days of lost time. Following service, in February 2013, the appellant stated that he started going AWOL to escape the pain that he experienced while performing physical tasks in service. Analysis The evidence shows that the appellant had lengthy periods of AWOL throughout his service, ultimately resulting in 170 days of lost time in total. Even when factoring in the appellant’s four days of initial honorable service in April 1968, the 170 days lost is still a significant portion of the overall time served. During service, both the appellant himself and his command indicated that the appellant wished to be discharged from service. The Board thus finds that the appellant 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 military duty, which ultimately resulted in his separation from service, and which occurred as a result of the appellant's desire to leave the service. The appellant has attributed his periods of AWOL to his desire to escape the physical pain that he suffered during service. The appellant has not argued, nor do the service treatment records (STRs) demonstrate, that any of the injuries arguably related to the infractions underlying his dismissal were incurred in April 1968. See December 2012 VA Form 21-526 (“Entered into service…4-16-68…I was in a car wreck in August 1968.”). Therefore, the Board finds this initial period of service irrelevant to the analysis here. STRs do reflect that he injured his back/spine in a motor vehicle accident, and that he was seen for complaints of back pain on several occasions following August 1968 However, the appellant did not mention this motivation for his periods of AWOL during service, and regardless, such a justification for his periods of AWOL does not mitigate the appellant's clear pattern of serious in-service misconduct. Concerning insanity, the appellant has not explicitly claimed that he was insane during service, and the Board does not otherwise find that the appellant was insane at the time of his in-service misconduct. The appellant was found to be physically and psychologically normal at the time of his separation from service. Indeed, the appellant has argued that he made a rational decision to go AWOL on multiple occasions, which is contrary to a finding that the appellant was insane during service. Additionally, the Board notes that the four days of honorable service in April 1968 do not indicate any psychological issues nor has the appellant proffered such a contention. In sum, the character of the appellant's discharge from his April 16, 1968 to July 22, 1970 service is a bar to payment of VA benefits. The Board has considered the applicability of the benefit of the doubt doctrine. However, as 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). 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.