Citation Nr: 21000760 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-62 983 DATE: January 6, 2021 ORDER New and material evidence has been received that is sufficient to reopen the issue as to whether the character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. The character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA compensation benefits. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for VA disability compensation purposes, is denied. Entitlement to service connection for a back disability, for VA disability compensation purposes, is denied. FINDINGS OF FACT 1. In a March 1974 administrative decision, the agency of original jurisdiction (AOJ) determined the character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 was under dishonorable conditions as a result of willful and persistent misconduct. In a March 1974 letter, VA notified the Veteran that the character of his discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA benefits, and advised him of his procedural and appellate rights. 2. As the Veteran did not file a notice of disagreement or submit any new and material evidence within one year of the March 1974 decision, it is final. 3. Additional evidence has been received since the March 1974 VA decision that is not cumulative or redundant of the evidence of record at that time, and relates to an unestablished fact necessary to substantiate whether the Veteran meets basic eligibility requirements for the receipt of VA compensation benefits. 4. The character of the Veteran’s service from December 5, 1968 to March 24, 1972 was under dishonorable conditions as a result of willful and persistent misconduct. 5. The preponderance of evidence is against a finding that the Veteran has an acquired psychiatric disorder, to include PTSD, that was incurred in, or is otherwise related to, a period of honorable service. 6. The preponderance of evidence is against a finding that the Veteran has a back disability that was incurred in, or is otherwise related to, a period of honorable service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the issue of whether the character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA compensation benefits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1, 3.12. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for VA disability compensation purposes, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for entitlement to service connection, for VA disability compensation purposes, for a back disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard from April 1963 to May 1964, and received an honorable discharge following active duty for training from April 1963 to October 1963. He received a general discharge from the Army National Guard in May 1964 for continued and willful absence from military duties, and was transferred to the United States Army Reserve. While in the United States Army Reserve, he was involuntarily ordered to active duty, and received a bad conduct discharge for the period of service from December 5, 1968 to March 24, 1972. A Board hearing was held before the undersigned Veterans Law Judge in April 2018, and a transcript of the hearing is of record. The Board previously remanded the issues currently on appeal for additional development in September 2018 and October 2019. The Board finds the AOJ has substantially complied with the Board’s previous remand directives and that the evidence of record is sufficient to proceed with a decision on the merits for the issues on appeal. Status As A Veteran New and Material Evidence A claim that has been finally adjudicated may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; D’Amico v. West, 209 F.3d 1322 (2000) (applying the new and material evidence standard to claims previously denied on the basis of veteran status and character of discharge). Evidence is considered new if it was not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). The Board adds that, under 38 C.F.R. § 3.156(c), if 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, rather than require new and material evidence. However, a claim is not reconsidered where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department. 38 C.F.R. § 3.156(c)(2). In a March 1974 letter, VA notified the Veteran that the character of his discharge from active duty service [from December 5, 1968 to March 24, 1972] under dishonorable conditions was a bar to the receipt of VA educational assistance benefits. See March 1974 administrative decision (finding that the Veteran is barred from receiving any VA benefits based on the period of service from December 5, 1968 to March 24, 1972 due to his discharge for willful and persistent misconduct); see also 38 C.F.R. § 3.12(d)(4). The Veteran was advised of his procedural and appellate rights. He did not file a notice of disagreement or submit any new and material evidence within one year of the March 1974 VA notification letter. Therefore, the March 1974 VA decision notifying the Veteran that the character of his discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA benefits is final. 38 C.F.R. § 3.156. In October 2011, the Veteran filed a claim for entitlement to service-connected disability compensation benefits. See October 2011 VA Form 21-526. In a November and December 2011 letter, VA notified the Veteran that new and material evidence was required to reopen the threshold issue as to whether the character of his discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA benefits. No further correspondence or information was received from the Veteran following the December 2011 VA notification letter, until he filed another claim for entitlement to service-connected disability compensation benefits in February and May 2016. See February and May 2016 VA Form 21-526EZ. In May 2016, relevant Department of the Army records associated with the Veteran’s service records were received by VA, to specifically include records from the Army Discharge Review Board (ADRB) and Army Board for Correction of Military Records (ABCMR). See December 1974 and June 1981 ADRB decision (denying Veteran’s application for a discharge upgrade); see also May 2013 ABCMR decision (denying the Veteran’s application for a change in basis of his discharge). Such records did not exist at the time of the March 1974 VA administrative decision, and the Veteran did not provide sufficient information for VA to identify and obtain such records following the March 1974 VA administrative decision. See 38 C.F.R. § 3.156(c). However, the Board finds such evidence to be new and material, and the issue of whether the character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to the receipt of VA benefits is reopened. See also July 2016 VA administrative decision. Character of Discharge In order to qualify for VA compensation benefits, a claimant or the party upon whose service the claimant predicates the claim must be a “veteran.” A veteran is defined as 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); 38 C.F.R. § 3.1(d). Thus, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). As noted above, the Veteran received an honorable discharge following active duty for training from April 1963 to October 1963, for which veteran status has been achieved for the purpose of receiving VA compensation benefits. However, his only other period of service, where he was on active duty from December 5, 1968 to March 24, 1972, was terminated by a bad conduct discharge. In a July 2016 updated administrative decision, VA determined the character of the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 is a bar to VA compensation benefits due to willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4). Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. Such discharge is a 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Additionally, a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. In reviewing service records pertaining to the Veteran’s period of service from December 5, 1968 to March 24, 1972, the Veteran was involuntarily ordered to active duty by direction of the President, with a reporting date of September 17, 1968. See August 1968 Department of the Army Letter Orders. The Veteran was ordered to active duty for a period of one year and six months, with the term of his enlistment to be extended as necessary to permit completion of the period of active duty to which he was ordered. In December 1968 Special Orders, the Veteran reportedly surrendered to military authorities on December 5, 1968 to begin his assignment on active duty. In February 1969, the Veteran was punished under Article 15, for absence without official leave (AWOL) from January 23, 1969 to February 16, 1969. In September 1969, the Veteran was punished under Article 15 for a number of disciplinary infractions, including: unauthorized absence, disobeying a lawful order/command from a superior noncommissioned officer and a superior commissioned officer, and disrespect towards a superior noncommissioned officer. In October 1969, the Veteran was punished under Article 15 for unauthorized absence, and disrespect towards a superior noncommissioned officer. The Veteran was AWOL from November 1-18, 1969, and from November 27, 1969 through January 7, 1970. Service records indicate that the Veteran was in confinement from January 13, 1970 to June 12, 1970. In March 2016, additional service records were added to the claims file, including a letter from the Veteran in which he reported that he had been retained on active duty for more than nine months beyond his term of enlistment. See January 1970 correspondence from the Veteran. The Veteran indicated that he was being mistreated by the Army and that he found no support through his chain of command. In the letter, the Veteran appears to suggest that he was experiencing prejudicial actions due to his race. See also April 1969 service treatment record (suggesting the Veteran reported racial tension) The Veteran was tried before a special court martial in February 1970 and was found guilty of: disobeying a lawful order (two specifications); AWOL from November 1-18, 1969; AWOL from November 27, 1969 to January 7, 1969; disrespect to a commissioned officer; striking a commissioned officer; and disrespect in language to a noncommissioned officer. See Record of Court Martial Conviction. While in confinement, the Veteran wrote another letter that was included in service records added to the claims file in March 2016. See February 1970 correspondence from the Veteran. The letter from the Veteran alleged that black prisoners were receiving extreme and unjust punishment in the stockade, including being beaten, watered down, stripped of clothing and bedding, and having food withheld. Service treatment records document that the Veteran was hospitalized from March 30, 1970 to April 8, 1970. In an April 1970 psychology consult, the provider reported that standard psychological testing failed to elicit data indicative of psychosis, and was only reflective of chronically low frustration tolerance. In an addendum, the provider noted that, if the Veteran’s report of sleep deprivation prior to the offenses leading to his special court martial were true, that sleep deprivation in itself, in an individual with or without low frustration tolerance, had been noted in many research studies to be a sufficient predisposing condition to lower capacity to inhibit impulse and to diminish the capacity to adhere to the right and to regulate one’s actions on a basis considered by the individual to be correct under non-sleep deprived conditions. In an April 1970 discharge summary, the provider reported that sleep deprivation was in part responsible for the Veteran’s misconduct that resulted in his special court martial and also his socio-racial background. In May 1970, the Veteran was sentenced to confinement at hard labor for one month and discharge from the service with a bad conduct discharge. While awaiting appellate review of the special court martial, the Veteran was AWOL again from June 14, 1970 to March 13, 1971. In a May 1971 special court martial order, the sentence to confinement at hard labor for one month, having already been served, and the discharge from service with a bad conduct discharge was approved. The Veteran was discharged from service effective March 24, 1972 under other than honorable conditions. In a September 1975 statement, the Veteran indicated that the timeframe during his period of service from December 5, 1968 to March 24, 1972 was a very confusing time in his life. See September 1975 VA Form 21-4138. He reported that he had tried to put that time in his life behind him and that he had matured a great deal and was able to handle responsibility since then. In numerous character statements that have been associated with the claims file, the Veteran was described as being respected in his community, well-liked, hard-working, intelligent, a man of outstanding character and virtue, honorable, and a good father. During the April 2018 Board hearing, the Veteran reported that he had more than five years of honorable service prior to his period of active duty from December 5, 1968 to March 24, 1972. The Veteran reported that, while on active duty in December 1968, he and a number of fellow soldiers went out for drinks. After returning to the barracks, he reported that he was laying on his bed when a group of unidentified soldiers held him down and sexually assaulted him. See also November 2017 VA psychology note. The Veteran indicated that, when he attempted to report the sexual assault, his superior officer made derogatory racial comments. The Veteran indicated that racial tensions were very high during this time in service and that he did not seek treatment for the sexual assault for fear of retaliation. The Veteran indicated that his behavior changes and AWOL from January 23, 1969 to February 16, 1969 were due to the sexual assault. The Board has considered the entire evidence of record and finds that the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 was under dishonorable conditions for VA purposes, and that he is barred from receiving VA compensation benefits for claims based on this period of service. The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board. Stringham v. Brown, 8 Vet. App. 445, 447 (1995); 38 C.F.R. § 20.1303. In this case, the Board finds that the Veteran’s repeated disciplinary infractions, as evidenced by his punishment under Article 15 in February 1969, September 1969, and October 1969; his special court martial in February 1970; and his AWOL from June 1970 to March 1971 demonstrates not only willful, but also persistent misconduct. Under 38 C.F.R. § 3.1(n), the term “willful misconduct” means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. In light of the punishment under Article 15 received by the Veteran in February and September 1969, his subsequent misconduct involving the same type of offenses, including unauthorized absence, disrespect towards a superior officer/noncommissioned officer, and disobeying a lawful order/command, demonstrated persistent misconduct and involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. The Board finds that the Veteran’s repeated offenses during the period of service from December 5, 1968 to March 24, 1972 to be severe, and the exemption for a “discharge because of a minor offense” is not applicable. See 38 C.F.R. § 3.12(d)(4) (a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious). In this regard, the Board finds the Veteran’s repeated misconduct involving unauthorized absence, disrespect towards a superior officer/noncommissioned officer, and disobeying a lawful order/command, significantly interfered with, or precluded the performance of, his military duties. In reaching this decision, the Board sincerely sympathizes with the Veteran’s report of racial tensions and prejudicial treatment during his period of service from December 5, 1968 to March 24, 1972, which is corroborated by his correspondence in service personnel records, as well as service treatment records. To the extent that compelling circumstances may excuse or mitigate his misconduct, as the regulations currently stand, the compelling circumstances exception under 38 C.F.R. § 3.12(c)(6) applies only to Vietnam-era veteran’s with periods of AWOL for at least 180 continuous days. See Winter v. Principi, 4 Vet. App. 29, 32 (1993) (38 C.F.R. § 3.12(c)(6) pertains solely to Vietnam-era veterans who received [other than honorable] discharges stemming from periods of AWOL for a continuous period of at least 180 days); see also 85 F.R. 41471 (Proposed Rule: Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge). While the Board recognizes that the Veteran was AWOL from June 14, 1970 to March 13, 1971 (approximately 273 days), this period of AWOL was after the special court martial that adjudged a bad conduct discharge based on other offenses not involving AWOL for a continuous period of at least 180 days. As such, the exception to the bar to VA benefits based on compelling circumstances is not applicable in this case. As a final matter, the Board recognizes that the Veteran underwent psychological testing in April 1970 and that the provider indicated the Veteran had chronically low frustration tolerance. Additionally, the provider indicated that sleep deprivation prior to the offenses that resulted in the Veteran’s special court martial was partly responsible for his actions due to a lowered capacity to inhibit impulse, diminish capacity to adhere to right, and regulate one’s actions. The Board finds the above is probative evidence against a finding that the Veteran’s behavior was “due to a disease.” See Zang v. Brown, 8 Vet. App. 246, 253 (1995); see also Gardner v. Shinseki, 22 Vet. App. 415, 419 (insanity need not be causally connected to the misconduct that led to the discharge, but it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis). In this case, the Veteran has not claimed to be insane at the time of his misconduct, nor does the current evidence of record otherwise suggest that he was insane at the time of committing the offenses that resulted in his discharge under other than honorable conditions. See 38 C.F.R. § 3.12(b); see also 38 C.F.R. § 3.354. Given the above, the Board finds that the Veteran’s discharge for the period of service from December 5, 1968 to March 24, 1972 was under dishonorable conditions due to willful and persistent misconduct, and that he is barred from receiving VA compensation benefits. 38 C.F.R. § 3.12(d)(4). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As noted above, in order to qualify for VA compensation benefits, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Based on the decision herein, the Veteran is barred from receiving VA compensation benefits that are based on his period of service from December 5, 1968 to March 24, 1972. Acquired Psychiatric Disability, To Include PTSD In this case, the Veteran asserts that his current acquired psychiatric disability was incurred during his period of service from December 5, 1968 to March 24, 1972, which was terminated by a bad conduct discharge. See October 2011 VA Form 21-526; see also May 2018 VA Form 21-0781a. In a November 2017 VA psychology note, the Veteran was diagnosed with other specified trauma and stressor-related disorder, persistent depressive disorder, mild cannabis use disorder, and polysubstance abuse (by history). The Veteran denied experiencing mental health symptoms prior to his military confinement, which service records document occurred from January 13, 1970 to June 12, 1970. Also, he claimed that he experienced military sexual trauma, as described above, during his period of service from December 5, 1968 to March 24, 1972. The evidence of record does not demonstrate, nor does the Veteran contend, that his currently diagnosed psychiatric disorder(s) are related to his honorable period of active duty for training from April 1963 to October 1963. See also September 1963 Report of Medical Examination (clinical evaluation of the Veteran’s psychiatric condition was normal & September 1963 Report of Medical History (Veteran denied depression, excessive worry, and nervous trouble of any sort). The Board acknowledges that, to date, the Veteran has not been provided with a VA examination, and a medical opinion has not been obtained, in relation to his claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for VA disability compensation purposes. However, given the Veteran’s contentions and the evidence of record, the Board finds a VA medical opinion or examination is not warranted. The preponderance of evidence is against a finding that the Veteran’s current acquired psychiatric disorder(s) was(were) incurred in, or aggravated by, a period of honorable service. Accordingly, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for VA disability compensation purposes is denied. Back Disability The Veteran asserts that he has a current back disability that was incurred during his period of service from December 5, 1968 to March 24, 1972, which was terminated by a bad conduct discharge. See October 2011 VA Form 21-526. Service treatment records prior to the Veteran’s period of service from December 5, 1968 to March 24, 1972 are silent for reports of back pain or injury. See September 1963 Report of Medical Examination (clinical evaluation of the Veteran’s spine and musculoskeletal system was normal; see also September 1963 Report of Medical History (Veteran reported he was in good health). In March 1969, the Veteran sought treatment for tenderness of his right lumbar spine region. In April 1969, he sought treatment for back and leg pain. In April and May 1970, he reported continued back pain that had onset in September 1969. See also October 2011 VA Form 21-526 (indicating onset of low back disability was 1969). The evidence of record does not demonstrate, nor does the Veteran contend, that his claimed low back disability is related to his honorable period of active duty for training from April 1963 to October 1963. The Board acknowledges that, to date, the Veteran has not been provided with a VA examination and that a medical opinion has not been obtained, in relation to his claim for entitlement to service connection for a back disability for VA disability compensation purposes. However, given the Veteran’s contentions and the evidence of record, the Board finds a VA medical opinion or examination is not warranted. The preponderance of evidence is against a finding that the Veteran’s claimed back disability was incurred in, or aggravated by, a period of honorable service. Accordingly, entitlement to service connection for a back disability for VA disability compensation purposes is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate Counsel 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.