Citation Nr: 21000973 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-62 580A DATE: January 6, 2021 ORDER The character of the appellant’s discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. FINDING OF FACT The character of the appellant’s discharge from service was under dishonorable conditions as a result of willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant’s discharge from service is a bar to VA compensation benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from May 1958 to November 1959, and was discharged with a characterization of service under other than honorable conditions. A Board hearing was held before the undersigned Veterans Law Judge in December 2020, and a transcript of the hearing is of record. During the Board hearing, the appellant waived initial review of any additional evidence not previously considered by the agency of original jurisdiction (AOJ). Procedurally, the appellant submitted a claim for VA compensation benefits in July 2014. See July 2014 VA Form 21-526EZ and VA Form 21-527EZ. In a January 2015 rating decision, the AOJ denied the appellant’s claim for service-connected disabilities. In a May 2015 letter, VA notified the appellant that the character of his discharge from service is a bar to VA compensation benefits, but that he is eligible for health care and related benefits authorized under 38 U.S.C. Chapter 17 for any disability incurred in or aggravated during active service in the line of duty. 38 C.F.R. § 3.360(b). In May 2015, the appellant submitted a notice of disagreement, limiting his appeal to the issue of whether the character of his discharge from service is a bar to VA compensation benefits. Character of Service 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). In this case, the appellant was administratively separated from service due to unfitness, and received an undesirable discharge. See October 27, 1959 correspondence; see also DD Form 214. In a May 2015 administrative decision, VA determined the character of the appellant’s discharge from service is a bar to the receipt of VA compensation benefits 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 personnel records, the appellant’s commanding officer recommended the appellant be administratively discharged for unfitness. See October 16, 1959 correspondence. The commanding officer reported he was assigned command over the appellant’s unit in May 1959. The commanding officer indicated the appellant came to his attention shortly after his arrival at the unit because the appellant was absent from his place of duty without proper authority for 50 minutes in May 1959. The commanding officer reported that after that incident, the appellant committed three offenses within a period of approximately two weeks, including two charges of absence without official leave (AWOL), and one summary court martial for failure to obey a regulation. See also July 1959 Record of Conviction by Summary Court Martial (carrying a concealed blank cartridge pistol inside his coat pocket). The commanding officer reported the appellant was referred to a service board on October 6, 1959, which chose to retain the appellant in the service and transfer him to another unit. Shortly afterwards, on October 20, 1959, the appellant was tried and convicted by special court martial of AWOL and assault with a means likely to produce grievous bodily harm. On October 27, 1959, the commanding general approved the appellant’s separation for unfitness with an undesirable characterization of service. In a March 1976 letter from the Army Board for Correction of Military Records (ABCMR), the appellant’s May 1975 request to upgrade his discharge was denied. See May 1975 DD Form 149. In a May 1975 affidavit associated with the appellant’s initial ABCMR application, he reported that he was only 17 years old when he enlisted in the service. The appellant reported he had never been away from home prior to joining the Army, and that his first assignment overseas was lonely. The appellant reported he had felt concern for his family at home that was dealing with a number of problems. With respect to the appellant’s special court martial conviction for assault, he reported that he had been approached by a group of white soldiers while standing at a bus stop. The appellant reported one of the soldiers made a derogatory racial slur, and a fight ensued. The appellant reported he threw a beer bottle that hit one of the soldiers. In a February 1982 letter from ABCMR, the appellant’s application for reconsideration of his request for discharge upgrade was denied. See July 1981 DD Form 149. In an April 1981 affidavit, the appellant reported he was able to talk with his first company commander during his assignment overseas about problems at home, and that the company commander seemed understanding. The appellant reported that after a new company commander was assigned to his unit, he was assigned extra duties more than other soldiers. As noted above, the commanding officer that recommended the appellant be discharged for unfitness arrived at the unit in May 1959 (prior to which, the appellant had no record of disciplinary infractions). The appellant reported he felt harassed by his new commanding officer, and singled out because he was the only black soldier in the unit. See also May 2015 notice of disagreement. In this regard, the Board also notes the service board held on October 6, 1959, prior to the special court martial conviction, had chosen to retain the appellant in the service and transfer him to another unit. In a May 2015 statement, the appellant reported he had only an 8th grade education when he entered service. The appellant reported he was given extra duties even on days that he was supposed to have off. See also December 2017 VA Form 9. The appellant reported that he felt humiliated by white soldiers that told him he was not allowed to be at the bars frequented by white soldiers. See also December 2020 Board hearing transcript. In August 2015, the appellant submitted evidence demonstrating numerous personal achievements following his separation from service. The appellant received certificates for completing many educational and vocational programs, as well as certificates recognizing his contributions and achievements in his church. The Board has considered the entire evidence of record and finds that the appellant’s discharge was under dishonorable conditions for VA purposes, and that he is barred from receiving VA compensation benefits. 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. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995); see also 38 C.F.R. § 20.1303. 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. The Board finds that the appellant’s repeated disciplinary infractions from May through October 1959, as evidenced by repeated periods of AWOL, his summary court martial for failure to obey a regulation, and his special court martial for AWOL and assault, demonstrates persistent misconduct, which involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. The Board has considered whether the exception for a minor offense is warranted based on service that was otherwise honest, faithful, and meritorious. 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). While the appellant’s service from May 1958 to May 1959 appears to be without incident, and the periods of AWOL appear to be relatively insignificant, the Board finds the offenses for which the appellant was convicted by summary court martial and special court martial are not minor. In particular, the appellant’s conviction for assault with a means likely to produce grievous bodily harm is a severe offense. As such, the Board finds the exemption for a discharge because of a minor offense is not applicable. The Board finds the appellant’s report concerning the circumstances of his service to be credible, including prejudicial treatment and provocation by other soldiers. As discussed above, the appellant had no disciplinary infractions in his record until the new commanding officer was assigned to his unit. The appellant indicated he was singled out by the new commanding officer and assigned extra duties more than other soldiers. The Board finds the fact that the October 1959 service board chose to retain the appellant and transfer him to another unit supports such allegations. Additionally, the Board finds the appellant’s report that his misconduct was provoked by derogatory racial comments and treatment to be credible. While the Board is sympathetic to the appellant, 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) (A review of the legislative history of the statute, 38 U.S.C. § 5303(a)(2)(A), whose language is mirrored in 38 C.F.R. § 3.12(c)(6) indicates additional considerations that might permit the awarding of VA benefits was added in response to clemency and discharge review and upgrade programs for Vietnam-era draft evaders and deserts. “They in no way modify the requirements for awarding of benefits found elsewhere in statutes or regulations. They pertain solely to Vietnam-era veterans who received [other than honorable] discharges stemming from extended periods of AWOL.”); see also 85 F.R. 41471 (Proposed Rule: Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge). Additionally, although the Board finds the appellant’s post-service achievements to be commendable, such consideration does not permit the awarding of VA compensation benefits. The Board recognizes that the appellant has reported he was immature and dealing with stress related to service and from problems at home during his time in service. However, the appellant 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. Although the Board is sympathetic to the appellant, the Board is bound by the current laws and regulations concerning bars and exceptions to the receipt of VA compensation benefits under 38 C.F.R. § 3.12. In light of the above, the Board   finds that the appellant’s discharge 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). M. C. GRAHAM 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.