Citation Nr: 21062124 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-27 445 DATE: October 6, 2021 ORDER The Veteran's character of discharge for the period of service from June 26, 1982, to June 15, 1984, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code; the appeal is denied. FINDINGS OF FACT 1. The Veteran's discharge for the period of service from June 26, 1978, to June 25, 1982 was under honorable conditions. 2. The Veteran's discharge for the period of service from June 26, 1982, to June 15, 1984 was under conditions other than honorable. 3. During the Veteran's second period of active military service he was disciplined for misconduct, to include 3 nonjudicial punishments, under Article 15, Uniform Code of Military Justice (UCMJ) for offenses to include use of a controlled substance (marijuana), failure to obey a lawful order, failure to obey a general order, breach of the peace, and behavior of a discreditable nature. These incidents occurred over less than a two-year period. 4. The Veteran's numerous violations of the Uniform Code of Military Justice (UCMJ) represent willful and persistent misconduct which resulted in his discharge under other than honorable conditions. 5. The Veteran's misconduct was willful and persistent, and it was not offset by otherwise honest, faithful, and meritorious service. 6. Evidence of record does not reflect that there has been a removal of any bar to VA benefits via an upgrade to the Veteran's character of discharge by the relevant service department or a finding of insanity during the offenses underlying the appellant's discharge. CONCLUSION OF LAW The character of the Veteran's discharge for the period of service from June 26, 1982, to June 15, 1984, is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 26, 1978, to June 25, 1982 with an honorable character of discharge. The Veteran's period of service from June 26, 1982, to June 15, 1984 is considered dishonorable for VA purposes according to a March 2015 administrative decision, which determined that the discharge was based on willful and persistent misconduct; this type of discharge is a bar to VA benefits. 38 C.F.R. § 3.12. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. Whether the Veteran's character of discharge for the period from June 26, 1982, to June 15, 1984 constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code. The Veteran is seeking entitlement to VA benefits. Specifically, he has asserted that his character of discharge should not be a bar to VA benefits. He has also asserted that he was suffering from a significant medical condition which should be considered when determining the character of his service. After a careful review of the evidence of record, the Board finds that the character of the Veteran's discharge from service for the period from June 26, 1982, to June 15, 1984 is a bar to benefits. Applicable Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. See Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, a person must demonstrate by preponderance of evidence qualifying service and character of discharge)). A "veteran" is "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). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars and (2) regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a former service member was discharged or released under one of the following conditions: (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 a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (with certain exceptions). 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must then determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions. (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the Veteran was insane. 38 U.S.C. § 530(b). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). 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). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). Factual Background The Veteran originally enlisted on June 26, 1978, for a period of four years, thus, his period of obligation was until June 25, 1982. The Veteran was discharged honorably on October 23, 1968, at the end of his period of obligation. This was not a conditional discharge. Despite incidents of misconduct, to include drug possession, the service department granted the Veteran with a period of honorable service from June 26, 1978, to June 25, 1982. The Board is bound by this determination. 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., the Army, Navy and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. See 38 C.F.R. § 3.203 (a); Spencer v. West, 13 Vet. App. 376, 380 (2000). VA has no authority to alter the claimant's discharge classification. At issue is his second period of service, from which he was discharged under other than honorable conditions. A review of the Veteran's military personnel record shows that he was discharged for misconduct and drug use. His military personnel records indicate several incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In March 1982, the Veteran was convicted at nonjudicial punishment and sentenced to reduction to the rank of E3 (which was suspended for a period of six months). In April 1982, the commander vacated the suspended punishment of reduction in rank. The Veteran was reduced to the rank of E3 effective April 1982. In April 1982, the Veteran was convicted at nonjudicial punishment for violating Article 92, UCMJ, for violation of a lawful general order for wrongful possession of a controlled substance, re: marijuana. He was sentenced to 45 days of extra duty and to forfeit $250.00 pay per month for two months, and to reduction to the rank of E2 (which was suspended for a period of six months). In July 1982, while under the suspended punishment detailed above, the Veteran was convicted at nonjudicial punishment for violating Article 91, UCMJ, for willful disobedience of a petty officer. He was sentenced to 15 days of extra duty and to reduction to the rank of E2. In January 1984, the Veteran was convicted at nonjudicial punishment for violating Article 134, UCMJ, for wrongful use of a controlled substance, re: marijuana. He was sentenced to 45 days of restriction (with 10 days of restriction suspended for a period of six months), 45 days of extra duty (with 10 days of extra duty suspended for a period of six months), to forfeit $250.00 pay per month for two months, and to reduction to the rank of E2. In April 1984, the Veteran was convicted at nonjudicial punishment for violating Article 92, UCMJ, on two occasions for failing to obey a lawful order and failure to obey a general order, violating Article 116, for breaching of the peace, and for violating Article 134, UCMJ, for behavior of a discreditable nature. He was sentenced to 25 days of restriction (with 5 days of restriction suspended for a period of six months) 25 days of extra duty (with 5 days of extra duty suspended for a period of six months), to forfeit $100.00 pay per month for two months, and to reduction to the rank of E1. In April 1984, the Veteran's commander initiated an administration separation action to separate the Veteran from military service. The Veteran was discharged on June 15, 1984, with an under Other than Honorable (OTH) conditions discharge certificate. His DD214 notes a discharge code of HKA for discreditable incidents. There is no evidence that the Veteran applied to have his discharge reviewed for possible upgrade with the Department of the Navy Discharge Review or Navy Board of Correction of Naval Records. Analysis In March 2015, the RO determined that the Veteran engaged in a pattern of willful misconduct and his service from June 26, 1982, to June 15, 1984, was found to be under conditions less than honorable and a bar to VA benefits. In considering the evidence of record and the applicable laws and regulations, the Board finds that the weight of the evidence shows that willful and persistent misconduct was demonstrated by the Veteran throughout his second period of service. The evidence shows that the Veteran committed repeated offenses and underwent rehabilitative efforts for disciplinary problems during that same time period. In order for the offenses which led to the Veteran's discharge to be considered minor, so as to warrant an exception to a bar to VA compensation benefits, the offenses must be determined to be such that the commission of the offenses would not have interfered with or precluded the Veteran's military duties. See Stringham v. Brown, 8 Vet. App. 445 (1995). The Board finds that the record reflects that the offenses interfered with the Veteran's military duties because the Veteran's action detracted from his unit's operation and resulted in loss of manpower. The Board finds no factual basis upon which to deem the Veteran's offenses as minor or not a pattern of willful or persistent misconduct. The evidence does not show that the Veteran's period of service from June 26, 1982, to June 15, 1984 was otherwise honest, faithful, and meritorious. The Board finds no indication that the Veteran was insane at the time of the misconduct that led to his discharge, including having a deviation from his normal method of behavior, interfered with the peace of society, or lacked the adaptability to make further adjustment to the social customs of the community in which he resided. In this case, the Board finds that the evidence shows that the Veteran was not insane at the time of committing the offenses resulting in his discharge. See 38 C.F.R. § 3.12(b). There is no probative evidence to support the theory that at the time of his misconduct, (1) the appellant had a more or less prolonged deviation from his normal method of behavior; or (2) the appellant interfered with the peace of society; or (3) the appellant had 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 resided. 38 C.F.R. § 3.354(a). Additionally, the Veteran has not asserted that he was insane, nor has he provided any medical evidence of psychiatric or psychological treatment or insanity. Thus, the insanity exception to the bar to VA benefits is not applicable. The Board has considered the Veteran's contention of "self-medicating" with marijuana as a means to deal with an underlying medical condition. See June 2021 Board hearing. There is no evidence that the Veteran raised these contentions with his military chain of command. Additionally, the nature of the underlying conduct, which includes numerous offenses in addition to marijuana use, indicates that the Veteran engaged in willful and persistent conduct over the majority of his second period of service. The Board finds that the Veteran's June 1984 discharge under other than honorable conditions resulted from willful and persistent misconduct and was not due to a mere minor offense; the Veteran's service was not honest, faithful, and meritorious; and the Veteran was not insane for VA purposes at the time he committed the offenses resulting in his discharge. There are two types of character of discharge bars to establishing eligibility 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). VA regulations provide that healthcare and related benefits authorized by Chapter 17 of the Title 38 of the United States Code shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions listed in 38 C.F.R. § 3.12(d). The Veteran's discharge as a result of "willful and persistent misconduct" is a discharge under 38 C.F.R. § 3.12(d), and thus does not bar healthcare and related benefits authorized by Chapter 17, although it is considered to have been issued under dishonorable conditions. The March 2015 administrative decision found the Veteran to be entitled to health care under Chapter 17 of Title 38 U.S.C. for any condition found to be service-connected. Therefore, although health care benefits under 38 U.S.C. Chapter 17 are not barred, the Veteran is not entitled to benefits other than under Chapter 17. As the probative evidence of record fails to establish that Veteran was insane under the § 3.354(a) definition when he committed the acts resulting in his bad conduct discharge, the Veteran's character of discharge remains a bar to his eligibility for VA benefits for this period of service. Given the foregoing, the preponderance of evidence is against the claim; there is no doubt to be resolved, and eligibility to VA benefits, other than health care benefits under 38 U.S.C. Chapter 17, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.