Citation Nr: 20081126 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 20-07 325 DATE: January 8, 2021 ORDER The request to revise or reverse an August 1971 administrative decision on the basis of clear and unmistakable error (CUE) is dismissed without prejudice to refiling. The character of the appellant’s discharge for his period of service from March 1967 to August 1969 is considered dishonorable and constitutes a bar to the payment of VA benefits. FINDINGS OF FACT 1. The appellant served on active duty from March 1967 to August 1969, with 143 days of lost time; he received an under other than honorable (OTH) conditions discharge at separation. 2. In an August 1971 administrative decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama determined that the appellant’s discharge from service was under dishonorable conditions as a result of willful and persistent misconduct. 3. Later that month, the RO notified the appellant of the August 1971 denial, and of his right to appeal, by letter mailed to the address he supplied on a July 1971 application for education benefits; he was informed that his claim for educational assistance had been denied because he was separated from service under conditions which precluded entitlement. 4. The appellant did not initiate an appeal of the RO’s August 1971 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 5. The appellant’s allegations of error in the RO’s August 1971 decision amount to no more than an assertion that the RO failed to fulfill its duty to assist him before deciding that he was ineligible for benefits. 6. The appellant filed multiple subsequent applications for VA benefits; by decisions entered in July 1978, September 1999, September 2007, and August 2016, it was determined that he was ineligible for payment of VA benefits because of the character of his discharge. 7. In June 2014 and August 2019, additional, relevant service department records that existed at the time of the prior denials were received and associated with the claims file. 8. Effective May 1977, the appellant’s discharge was upgraded to a general, “under honorable conditions” (UHC) discharge by way of a Department of Defense (DOD) special discharge review program; however, affirmation of the upgrade was subsequently denied by the Discharge Review Board on “re-review” in 1978. 9. There is no evidence that the appellant has filed any subsequent requests to upgrade the character of his discharge with the Army Discharge Review Board or Army Board for Correction of Military Records. 10. The appellant’s discharge from service was due to willful and persistent misconduct; it was not due to a minor offense offset by otherwise honest, faithful, and meritorious service. 11. The evidence does not support a finding that the appellant was insane at the time of the offenses leading to his discharge from service. CONCLUSIONS OF LAW 1. The claim of CUE in the RO’s August 1971 administrative decision is legally insufficient. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 2. The character of the appellant’s discharge for the period of service from March 1967 to August 1969 is a bar to the payment of VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from March 1967 to August 1969, to include service in Vietnam, with 143 days of lost time. He was discharged under OTH conditions at the time of his separation from service. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2017 decision issued by the VA Pension Center in St. Paul, Minnesota. In July 2019, the appellant testified at a hearing before a VA Decision Review Officer via videoconference. In June 2020, he testified at a virtual Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In December 2019, the appellant formally released his former representative. He is currently proceeding pro se. In reviewing the record for this matter, the Board observes that, in addition to challenging an August 1971 decision, the appellant has asserted CUE in administrative decisions entered in July 1978, September 1999, September 2007, and August 2016. Generally, CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997). CUE in RO decisions is governed primarily by 38 U.S.C. § 5109A and 38 C.F.R. § 3.105. Claimants may allege CUE in a RO decision at any time after the RO’s decision is made. For the Board to have jurisdiction, however, the agency of original jurisdiction (AOJ) must have first adjudicated that specific theory of CUE. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-333 (2006) (en banc). In this case, the appellant has asserted various theories of CUE in each of the July 1978, September 1999, September 2007, and August 2016 administrative decisions. However, those CUE claims have not been addressed by the RO in the first instance. As such, the Board does not have jurisdiction to consider them. The Board does, however, have jurisdiction over the issue of CUE as it relates to the August 1971 administrative decision, as that question has been adjudicated by the RO in the first instance. See January 2020 Statement of the Case. Therefore, that matter will be addressed. Contentions The appellant has advanced several arguments in support of his appeal. First, he claims that the AOJ committed CUE in August 1971 when it found that the character of his discharge from service was disqualifying. He also asserts that the conduct that led to his undesirable discharge was not willful and persistent misconduct. He maintains that his actions were driven by conscience, a concern for the safety of others (because he refused to kill anyone, which could place his fellow soldiers in jeopardy), and posttraumatic stress disorder (PTSD); that he was harassed for his beliefs; that did not “willfully” go absent without official leave (AWOL) or disobey orders; and that his conduct was not “persistent” in that he only had two courts-martial. He further asserts that his service beyond the acts for which he was disciplined was honest, faithful, and meritorious. As evidence of that, he says that he received “excellent” ratings when working in criminal investigation prior to his first period of AWOL, that he had a secret security clearance, that he worked very hard and performed all of his duties in an exemplary manner both then and when he was in Vietnam prior to a second period of AWOL, and that he was recommended for a Soldier’s Medal for saving a fellow serviceman from drowning. He points out, further, that although he applied twice, he was never granted status as a conscientious objector. The Board has reviewed all the evidence in the appellant’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Whether the August 1971 VA administrative decision should be revised or reversed on the basis of CUE. In an August 1971 administrative decision, the RO in Montgomery, Alabama determined that the appellant’s discharge from service was under dishonorable conditions as a result of willful and persistent misconduct. In so doing, the RO relied on a report furnished by the Army. Based on review of that evidence, the RO concluded that his discharge was recommended because of habits and traits of character manifested by repeated commission of major and minor offenses and habitual shirking of duties. Later that month, the RO notified the appellant of the August 1971 denial, and his right to appeal, by letter mailed to the address he supplied on a July 1971 application for education benefits. He was informed that his claim for educational assistance had been denied because he was separated from service under conditions which precluded entitlement. He did not initiate an appeal of the RO’s August 1971 decision during the one-year period following the mailing of notice of that decision. Nor was any new and material evidence received within a year. On appeal, the appellant maintains that the August 1971 administrative decision was clearly and unmistakably erroneous. In an October 2019 submission, he argued that VA erred in relying on “the Army’s side of the story.” He said that he was not given a chance to give his side of the story, to submit supporting evidence, or to correct errors in VA’s decision. In a November 2019 statement, the appellant stated: I am enclosing more information and documents in support of my application to reopen the 1971 Administrative decision that relied on the Army’s interpretation of my service as being undesirable and dishonorable “because of his willful and persistent misconduct.” I was not discharged for Willful and Persistent Misconduct. There is a lot of information to explain, my PTSD, the reason I accepted an Undesirable discharge and the fact that my Service did not involve Willful and Persistent Misconduct. Just relying on the Army’s account of my Service in no way gives an accurate portrait of my two years in the Army during the Vietnam War . . . The VA may or may not have a copy of my Courts Martial, 1968 and 1969. I have enclosed a copy of each. I believe the copies of both court[s] martial will show that I had concerns for my fellow soldiers lives in not wanting to be in direct combat. VA rating decisions which are not timely appealed are considered final and binding in the absence of a showing of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, e.g., Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 405 (1999); Fugo, supra. To establish a valid CUE claim, a claimant must show either that the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). The claimant must assert more than a mere disagreement as to how the facts were weighed or evaluated. Eddy v. Brown, 9 Vet. App. 52 (1996). As noted previously, if a claimant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. See, e.g., Bustos and Fugo, supra. If the error alleged is not the type of error that, if true, would be CUE on its face, if the claimant is only asserting disagreement with how the RO evaluated the facts before it, if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist, or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim should be dismissed without prejudice to refiling. See, e.g., Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003). Applying the foregoing principles to the facts of the present case, the Board finds that the appellant’s allegations of CUE as they pertain to the RO’s decision in August 1971 are legally insufficient. Simply put, the appellant’s only assertion, in effect, is that VA failed to fulfill its duty to assist him by gathering and/or allowing him to submit additional evidence and/or argument before deciding that he was ineligible for benefits. Even when read sympathetically, his statements do not identify any error beyond that. As noted, an allegation that VA failed to fulfill the duty to assist or improperly weighed the evidence is, as a matter of law, insufficient to give rise to a valid claim of CUE. Accordingly, because the appellant has not articulated a legally sufficient basis for a finding of CUE in the August 1971 decision, the Board must dismiss the matter without prejudice to refiling. 2. Whether the character of the appellant’s discharge for his period of service from March 1967 to August 1969 constitutes a bar to the payment of VA benefits. A. New Service Records As noted above, the RO notified the appellant of the August 1971 decision, and his right to appeal, by letter mailed to the address he supplied on a July 1971 application for education benefits. He did not initiate an appeal during the one-year period following the mailing of notice of the decision. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. 38 U.S.C. § 4005 (1970); 38 C.F.R. § 19.153 (1971). The appellant filed multiple subsequent applications for VA benefits. By decisions entered in July 1978, September 1999, September 2007, and August 2016, it was determined that he was ineligible for payment of VA benefits because of the character of his discharge. Pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. § 3.156(c)(1). Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the appellant by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. Id; see also 38 C.F.R. § 3.156(c) (2002) (“Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs.”). In the instant case, in June 2014 and August 2019, additional service department records that existed at the time of the prior denials were received and associated with the appellant’s claims file. The appellant’s complete military personnel file was not previously of record. See, e.g., August 1971 administrative decision (containing no indication that the appellant’s complete service personnel records were then reviewed or available). The Board finds that the service department records associated with the claims file in June 2014 and August 2019 constitute “relevant official service records that existed and had not been associated with the claims file when it first decided the claim,” as they provide a more complete picture of the appellant’s claim. See 38 C.F.R. § 3.156(c)(1). Therefore, the claim must be reconsidered without regard to the prior final denial. B. Character of Discharge A person seeking VA benefits must first establish that they have attained the status of a “veteran.” Holmes v. Brown, 10 Vet. App. 38 (1997). The term “veteran” means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). VA benefits are not payable unless the period of service upon which a claim is based was terminated by discharge or release under conditions other than dishonorable. 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). Service department findings (i.e., findings of the Army, Navy, or Air Force) are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have authority to alter the findings of the service department in that regard. 38 C.F.R. § 3.203(a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter a claimant’s discharge classification; the claimant’s recourse in that regard is with the service department, and not VA. Harvey v. Brown, 6 Vet. App. 416 (1994). The bar to benefits for a former service member who was discharged or released under dishonorable conditions applies to any person awarded an honorable or general discharge prior to October 8, 1977 under one of the programs listed in paragraph (h) of 38 C.F.R. § 3.12, and to any person who prior to October 8, 1977 had not otherwise established basic eligibility to receive VA benefits. The term “established basic eligibility to receive Department of Veterans Affairs benefits” means either a VA determination that an under OTH conditions discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977 under criteria other than those prescribed by one of the programs listed in paragraph (h). Unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards (and such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge), an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under 38 C.F.R. § 3.12: (1) The President's directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or (2) The Department of Defense’s special discharge review program effective April 5, 1977; or (3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. 38 C.F.R. § 3.12(h). A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. In this regard, there are two types of character of discharge bars establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where a former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition, to include in situations where there were compelling circumstances to warrant the prolonged authorized absence). The provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) an offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances or other factors affecting the performance of duty. A discharge or release under OTH conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. Provided, however, that a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). Mere technical violation of regulations or ordinances will not per se constitute willful misconduct. Id. 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 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). Pursuant to 38 U.S.C. § 5303(b), if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated. Thus, “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. 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 (become antisocial) 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(a). When a rating agency is concerned with determining whether an individual was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing that the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court has held that a determination of whether a person is insane is, in effect, a determination of whether the person’s actions were intentional, and, thus, the result of willful misconduct. Id. at 254. The Court further indicated that such a determination is not warranted when the record does not reflect that an individual suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. In May 1997, VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual’s behavior must deviate from his or her normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). 1. Special Discharge Review Program As noted previously, the appellant was discharged from the United States Army with an under OTH conditions discharge. Although his discharge was subsequently upgraded by the service department in 1977, the Board finds that that upgrade is not effective as it pertains to his eligibility for payment of VA benefits. The record reflects that the appellant applied to the service department for an upgrade of his discharge in March 1970, which was denied in May 1970. In May 1974, he again applied to the service department for an upgrade of his discharge, which was again denied. In October 1976, the appellant again applied to the service department for an upgrade of his discharge. Thereafter, correspondence dated in May and June 1977 reflects that, effective May 1977, the Department of Defense (DOD) upgraded the appellant’s discharge to “Under Honorable Conditions” under the Special Discharge Review Program in effect at that time. The appellant’s age, general aptitude, length of service, education level, issues related to conscience, and possible personal problems were taken into account. It was noted that his service was not sufficiently meritorious to warrant an honorable discharge. In April 1978, a preliminary “re-review” of the appellant’s discharge under Public Law 95-126 determined that he would not qualify for upgrading under the new, uniform standards for discharge review. Specifically, the Discharge Review Board found as follows: In not affirming the Applicant’s upgrade[,] the Board noted in particular that approximately five months after arrival in RVN [the Republic of Vietnam] that the applicant departed in an AWOL status for which he was court-martialed. The Board noted that prior to assignment in RVN that the Applicant had previously been court-martialed for a similar offense of AWOL. The Applicant was AWOL 74 days as a result of two periods of AWOL and being dropped from the rolls in desertion, and his total lost time, including 67 days’ confinement, totaled 143 days. The Board did note that the Applicant at one time had filed for a conscientious objector status. However, it was noted that the request for such a status had not been requested until after being placed on orders for assignment in RVN, and the request was subsequently denied. The Board noted the type of duty that the individual was assigned in, as a personnel specialist, while overseas and could find no justification to substantiate why the Applicant found that it was necessary to depart in an AWOL status while assigned overseas. Based upon all of the above, it was the unanimous opinion that affirmation could not be considered appropriate. In the accompanying notice to the appellant, it was noted that the Discharge Review Board’s action would not change the character of discharge awarded to him under the Special Discharge Review Program, but that the preliminary determination meant that he may not be automatically eligible for VA benefits. On May 25, 1978, the Discharge Review Board finalized its findings. It directed the issuance of a DD Form 215 changing the appellant’s most recent DD Form 214 to include the remark, “Disch reviewed UP PL 95-126 and a determination made that characterization of service was warranted UP DOD-SDRP 4 Apr 77.” On May 26, 1978, the Discharge Review Board sent the appellant “unofficial” notification of its final determination. It was noted that official notification would be made by The Adjutant General of the Army within 90 days. A VA reference slip of record, dated June 14, 1978, noted that the appellant’s case had been reviewed under Public Law 95-126 and the upgrade was denied on second review and entitlement to VA benefits was dependent on the original discharge. The author of the reference slip noted that the language of the second review was ambiguous and that, therefore, the “flash” should remain with that document in the claims folder; presumably, to provide clarity. A handwritten notation on the reference slip made reference to DVB Circular 20-78-18. On June 29, 1978, a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued to amend the appellant’s 1977 upgraded DD Form 214. Specifically, item number 27 (“Remarks”) was amended to read, “DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS WARRANTED UP DOD SDRP 4 APR 77.” That is to say, the appellant’s discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that the characterization of service was warranted under provisions of the Department of Defense Special Discharge Review Program, April 4, 1977. On July 21, 1978, the Adjutant General of the Army issued final notice to the appellant that the previous upgrading of his discharge had been re-reviewed by the Army Discharge Review Board as required by Public Law 95-126 and the Board determined that he did not qualify for upgrading under the new uniform standards for discharge review. The notice specifically indicated that his upgraded discharge under the DOD Special Discharge Review Program was not affirmed and enclosed a copy of a DD Form 215 that corrected the prior DD Form 214. The notice further explained that while the DD Form 215 in no way changed or modified the upgraded discharge he previously received, because of the new law, he would not be able to use that discharge to qualify for VA benefits. The appellant has alleged that he did not receive timely notice of some of the foregoing service department actions so as to permit him to respond. To the extent that he is alleging that the notices were sent to improper or outdated addresses, or that he was otherwise deprived of due process in the course of the re-review of his discharge upgrade, that is a matter under the jurisdiction of, and for consideration by, the service department, and not VA. Thus far, there is no evidence that the appellant has filed any subsequent applications with the United States Army Discharge Review Board or Army Board for Correction of Military Records to have those, or other matters, addressed. In light of the foregoing, the Board must find that the service department’s 1977 upgrade of the appellant’s discharge to a general, UHC discharge is not effective as it pertains to his eligibility for payment of VA benefits. While his discharge was upgraded via the Special Discharge Review Program in May 1977, Public Law 95-126 required that his discharge receive a second review by the Discharge Review Board. The record clearly and unambiguously establishes that affirmation of the upgrade was subsequently denied by the Discharge Review Board on “re-review” in 1978. Therefore, the upgraded discharge issued under the Special Discharge Review Program does not remove the bar to benefits as a matter of law and the Board is unable to honor the upgrade for VA benefits purposes. See 38 C.F.R. § 3.12(h). As noted, any disagreement that he may have with his current discharge classification must be raised with the service department. See Harvey v. Brown, 6 Vet. App. at 424 (1994). 2. Willful and Persistent Misconduct The appellant’s service records reference numerous incidents of noncompliant behavior, to include multiple violations of the Uniform Code of Military Justice (UCMJ), as follows: In September 1968, the appellant was convicted at Special Court Martial for violation of Article 86, UCMJ, for being AWOL from August 22, 1968, to September 19, 1968 (29 days) for leaving his assigned duty location and going to Canada. He was also convicted of a violation of Article 90, UCMJ, for willfully failing to obey a lawful command of a superior officer; specifically, to get into an appropriate uniform. The Special Court Martial panel found the appellant guilty and sentenced him to confinement at hard labor for six months, forfeiture of $73.00 pay per month for six months, and reduction to the lowest enlisted rank (E1). The unexecuted portion of the sentence to confinement at hard labor was subsequently suspended when, according to the appellant, he agreed to go to Vietnam that same month. In June 1969, the appellant was convicted at Special Court Martial for violation of Article 86, UCMJ, for being AWOL from March 4, 1969, to April 19, 1969 (46 days) after failing to return to Vietnam from approved leave in Japan. He was initially dropped from the roles as a deserter, but his period of AWOL was ultimately terminated by apprehension by civilian authorities. He was also convicted of two violations of Article 90, UCMJ, for willfully disobeying lawful commands from a superior officer; specifically, refusing to wear the prescribed uniform and to report for duty at a shop office. The Special Court Martial panel found the appellant guilty and sentenced him to confinement at hard labor for six months and forfeiture of $73.00 pay per month for six months. (Ultimately, due to the appellant’s discharge from service, he only served approximately two months of that confinement.) In June 1969, while in confinement, the appellant was twice subjected to disciplinary action for failing to obey the lawful order of a superior commissioned officer. Specifically, on one occasion, he refused to work in the mess hall; on another, he refused to clean a shower room. He was sentenced to indefinite disciplinary segregation with a restricted diet not to exceed 14 days. On psychiatric evaluation in July 1969, the examining psychiatrist observed that the appellant was completely unmotivated for further duty and strongly negativistic toward the military; that although his applications as a conscientious objector had been denied twice, he insisted that he would continue resisting all orders on that basis; and that he was extremely obstinate, showed no desire to cooperate, and would undoubtedly continue as a strong liability to the military. Later that same month, the officer in charge (OIC) of the Long Binh Correctional Facility, Republic of Vietnam, recommended that the appellant be separated from service. The OIC noted while under observation and supervision for approximately 43 days, the appellant displayed an “extremely negativistic attitude, total disregard for all military customs and tradition, and no desire for under[]going rehabilitative or military training.” The OIC noted that, following the appellant’s release from disciplinary segregation, it was necessary to hold the appellant in administrative segregation due to his “recalcitrant behavior.” The appellant met with a defense attorney and was advised of the pending administrative separation, as well as the potential consequences of the separation, to include an adverse discharge. A statement the appellant signed acknowledged that as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both federal and state laws. He waived his right to an administrative separation board. Recommendations were made through the chain of command to have the appellant discharged for unfitness. The recommendations noted, among other things, that the appellant was 22 years of age; that he possessed habits and traits of character that were manifested by repeated commission of court-martial offenses; that he habitually shirked his duties; that he had an overall disregard for military authority; that he did not respond to rehabilitative efforts; and that while his performance as a personnel specialist from March 1967 to July 1968 (prior to his first period of AWOL) had been excellent, his performance from October 1968 to April 1969 had been unsatisfactory. The Commanding General reviewed the appellant’s military history, approved the separation, and directed that the appellant be issued an undesirable discharge certificate. As noted, the appellant was separated from service in August 1969 with an under OTH conditions discharge. As an initial matter, the Board notes that the evidence does not reflect that there are any statutory bars in this case. The appellant was never approved for conscientious objector status; was not sentenced to discharge or dismissal by reason of the sentence of a general court-martial; and was not an officer who resigned for the good of the service, or an alien during periods of hostilities, where it was affirmatively shown that he requested his release. Although it is undisputed that he went AWOL on two occasions and was dropped from the rolls as a deserter for a time, his periods of AWOL were not continuous for periods of at least 180 days and he was not discharged by reason of being a deserter. Turning to the regulatory bar of willful and persistent misconduct, as noted previously, the appellant denies that the conduct that led to his undesirable discharge was willful and persistent misconduct. He says, in effect, that the conduct that led to his discharge was necessitated by the Army’s actions in failing to timely and properly process his applications for conscientious objector status, and in failing to properly inform him of his right to apply for non-combatant status. He further asserts, in effect, that any noncompliant behavior on his part constituted nothing more than a minor offense, otherwise offset by honest, faithful, and meritorious service, and that there were compelling reasons for his going AWOL. In a July 2019 submission, the appellant stated, in part: The two times I was court martialed were for offenses I did to “protect a third person”, as a matter of conscience, and because of PTSD. Service, exclusive of the period I was AWOL, my service with the CID and in Vietnam, was of such quality and length that it must be characterized as honest, faithful, and meritorious and of benefit to the Nation. I had no Article 15s, no reprimands, nothing but [excellent, excellent] remarks about my Service and Conduct . . . . My service in Vietnam at the DMZ was exemplary. The VA agreed with me in their September 1999 decision refusing me VA benefits. “Even though the claimant’s service other that his infractions due to his Conscientious Objector feelings was honest, faithful and meritorious . . . .”. The VA cited, “Willful and Persistent Misconduct” in denying me VA benefits. There are reasons for going AWOL which are entitled to be given consideration. For example, obligations or duties owed to third parties. Consideration should be given to the reasons for my AWOL and to how the situation appeared to me, and not how the adjudicator might have reacted. You must consider hardship or suffering incurred during my overseas service in Vietnam. The Board has carefully considered the appellant’s arguments, but ultimately finds them unavailing. In short, the Board finds that the behaviors leading to his discharge from service constituted willful and persistent misconduct. The appellant argues, in part, that he did not he not “willfully” go AWOL or disobey orders. However, as noted, the governing definition of “willful misconduct” is “an act involving conscious wrongdoing or known prohibited action.” Here, there is no dispute but that the appellant exercised conscious intent when went AWOL and disobeyed lawful orders. Nor is there any dispute that he was aware that those acts constituted known prohibited action. Under the regulatory definition of the term, in the absence of a finding of insanity (which is discussed in further detail, below), his behavior in that regard clearly qualifies as “willful misconduct.” What the appellant appears to be arguing, at least with respect to his periods of AWOL, is that his actions were justified inasmuch as they were driven by conscience, a concern for the safety of others, and psychological stress he was experiencing at the time. However, by regulation, the defense of “compelling circumstances” applies only to prolonged periods of AWOL of at least 180 days, which is not applicable here. In addition, the appellant has provided no substantive explanation with respect to how matters of conscience or concern for others motivated his other violations pertaining to the failure to follow ordinary orders unrelated to engagement with the enemy, such as getting into an appropriate uniform, reporting for duty in a shop office, working in the mess hall, or cleaning a shower room. The appellant also argues that the conduct that led to his undesirable discharge was not “persistent,” in part, because he only had two court-martials. In this regard, the Board notes that the second period of AWOL and charges of disobedience occurred less than 10 months after his first conviction at Special Court Martial. In addition, beginning with the second period of AWOL in March 1969, the record reflects that he exhibited a recurring and continuing pattern of misconduct until the time of his undesirable discharge, to include willfully disobeying lawful orders of commissioned officers and confinement personnel. As noted, during the 1969 psychiatric assessment, he related that he would continue resisting all orders on the basis of his self-identification as a conscientious objector. It was noted that he was extremely obstinate, showed no desire to cooperate, and would undoubtedly continue as a strong liability to the military. In the Board’s view, that pattern of documented behavior clearly qualifies as “persistent.” The appellant further asserts that his service beyond the acts for which he was disciplined was honest, faithful, and meritorious. As evidence of that, he says that he got “excellent” ratings when working in criminal investigation prior to his first period of AWOL, that he had a secret security clearance, that he worked very hard and performed all of his duties in an exemplary manner both then and when he was in Vietnam prior to his second period of AWOL, and that he was recommended for a Soldier’s Medal for saving a fellow serviceman from drowning. The Board acknowledges that portions of the appellant’s service can properly be classified as honest, faithful, and meritorious. The record supports, for example, his assertions to the effect that he received excellent performance ratings during the earlier portion of his military service, and that he was recommended for the Soldier’s Medal. In the context of willful and persistent misconduct, however, the offset of an offense against otherwise honest, faithful, and meritorious is only available if the offense that led to discharge was “a minor offense.” Here, the appellant’s offenses were not singular. In addition, the Board cannot reasonably find that all of the offenses leading to his undesirable discharge were minor in nature. As noted, the appellant willfully absented himself from his military unit on two occasions, once while deployed to a combat zone, and upon return from the second occasion was disobedient to superiors who were attempting to counsel or discipline him. His chain of command determined that his misconduct was sufficiently severe as to warrant criminal prosecution through a court-martial empowered to issue a punitive discharge. The seriousness of the offenses is reflected in the Manual for Courts-Martial (MCM) punishments for each offense. The MCM provides that the maximum penalty for a charge of AWOL for more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months; the maximum penalty for a charge of AWOL for more than 30 days is a Dishonorable Discharge and confinement for 1 year; and the maximum penalty for a charge of disrespect to a commissioned officer is a Bad Conduct Discharge, forfeiture of all pay and allowances, and confinement for 1 year. See UCMJ, 10 U.S.C. § 801 et seq.; MCM 1968. In this case, the appellant’s periods of AWOL ultimately precluded the performance of his duties, both during his periods of AWOL and during periods of subsequent confinement, for a calculated total of 143 days, and interfered with the operation of his military units. By going AWOL in a combat zone, he impacted the personnel strength and combat readiness of his unit. In light of their gravity, his offenses cannot all properly be considered “minor.” In sum, the Board finds that the appellant was not discharged because of a minor offense, but was instead discharged as a result of a clear pattern of willful misconduct that fundamentally interfered with his duty and ultimately resulted in his separation from the United States Army. 3. Insanity In April 1968, the appellant underwent a psychiatric evaluation in connection with his request to separate from service as a conscientious objector. He was diagnosed with passive-dependent personality that existed prior to enlistment (EPTE), characterized by anxiety, excessive dependency, and lack of initiative. The examiner found that there was no mental defect sufficient to warrant separation through medical channels, and that the appellant was mentally responsible both to distinguish right from wrong, and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. There was no evidence of a psychotic disorder or illusions, hallucinations, or delusions. On subsequent psychiatric evaluation in July 1969, an examining psychiatrist observed that the appellant was completely unmotivated for further duty and strongly negativistic toward the military; that although his applications as a conscientious objector had been denied twice, he insisted that he would continue resisting all orders on that basis; and that he was extremely obstinate, showed no desire to cooperate, and would undoubtedly continue as a strong liability to the military. The examiner diagnosed the appellant with acute and severe passive aggressive personality disorder that existed prior to service (EPTS), manifested by evasion of duty, negativism, passive obstructionism, and inefficiency. The psychiatrist found that there was “no psychiatric disease or defect” which would warrant disposition through medical channels, that the appellant met retention standards in that regard, and that he “was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to participate in board proceedings.” At the time of his examination for separation from service later that month, the appellant completed a form wherein he indicated that he was in “good health.” He denied any history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. The examiner noted a diagnosis of passive-aggressive personality. In a July 2017 VA examination report, an examiner diagnosed the appellant with PTSD. The examiner noted that the stressor that formed the basis of the diagnosis was harassment and confinement. The examiner did not make any clinical findings of insanity. Of note, the confinement occurred as a result of his misconduct, and therefore did not precede it. After reviewing the evidence, the Board finds that it does not support the conclusion that the appellant was “insane” at the time of the commission of the offenses at issue, as defined under 38 C.F.R. § 3.354. The Board finds, first, that the weight of the evidence is against a finding that the appellant was suffering from disease at the time of his in-service misconduct. Although he was diagnosed with a pre-existing personality disorder in service, personality disorders, because of their congenital or development nature, are not recognized as “diseases” for purposes of VA compensation. See 38 C.F.R. § 4.9. In addition, no clinician, either during or following the appellant’s service, has attributed any aspect of the appellant’s in-service behavior to disease. The appellant began engaging in misconduct, which included a period of AWOL, prior to the stressor which formed the basis of the July 2016 VA diagnosis of PTSD. In addition, no disorder other than a personality disorder was identified at the time of the in-service psychiatric examination in July 1969. Indeed, the appellant himself subsequently reported being in good health and denied a history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort at the time of his service separation examination. Nor does the evidence support the proposition that the appellant was suffering “a more or less prolonged deviation from his normal method of behavior” at the time of the conduct in question. To the contrary, the psychiatrist who examined him during service in July 1969 indicated that the appellant had a long-standing personality disorder that pre-existed service and was manifested, in part, by passive obstructionism. As such, it does not appear that his behavior in service represented a deviation from his normal method of behavior. The weight of the evidence is also against a finding that, during service, the appellant’s mental status was such that it caused him to interfere with the peace of society, or caused him to become so departed from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustments to the social customs of the community in which he resided. First, his in-service conduct did not involve acts of interference with the peace of society. Second, the evidence, to include his own statements and the July 1969 psychiatric examination report, make it rather clear that his actions in service were calculated, perceived as being justified by matters of conscience; that he was mentally responsible; and that he was able to distinguish right from wrong. There is no suggestion on the current record that he did not know or understand the nature or consequences of his acts, or that the behavior he was engaging in was prohibited action. C. Conclusion For all of the foregoing reasons, the Board finds that the greater weight of the evidence establishes that the character of the appellant’s discharge for his period of service from March 1967 to August 1969 is properly considered dishonorable and therefore constitutes a bar to the 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, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board acknowledges the appellant’s disagreement with the service department’s characterization of his discharge as being under OTH conditions. As noted previously, VA is bound by the service department’s characterization and is not at liberty to change it. Duro v. Derwinski, 2 Vet. App. 530 (1992). Any disagreement that the appellant may have with his discharge classification must be directed to the service department. Harvey, supra. DAVID A. BRENNINGMEYER 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.