Citation Nr: 21064748 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-64 511 DATE: October 21, 2021 ORDER The character of the Appellant's discharge from active military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a); the appeal is denied. FINDINGS OF FACT 1. The Appellant was discharged from service in December 1989 under other than honorable conditions based on commission of a serious offense and a pattern of willful and persistent misconduct. 2. During service, the Appellant was subjected to nonjudicial punishment on six occasions for numerous violations of the Uniform Code of Military Justice (UCMJ), to include unauthorized absences, failure to pay just debts, uttering checks with the intent to defraud, and larceny. 3. During her period of service, the Appellant's in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 4. The evidence of record does not suggest, and neither the Appellant nor representative has alleged, that the Appellant was insane at the time of the offenses leading to her discharge from service. 5. There has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge. CONCLUSION OF LAW The character of the Appellant's discharge from service is a bar to her receipt of VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). 38 U.S.C. §§ 101(2), 5103, 5103A, 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.159, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from June 1987 to December 1989. She was discharged with an under Other than Honorable (OTH) Conditions Discharge for patterns of misconduct. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 administrative decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which determined that the appellant's military service from June 1987 to December 1989 was under "other than honorable conditions" and that she was not entitled to receive VA compensation benefits for that period of service. The appellant requested and was scheduled for a Board hearing, but subsequently cancelled the request. In March 2021, the Board remanded the appeal for further development. 1. Whether the Appellant's discharge from service constitutes a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). The Appellant is seeking entitlement to VA compensation benefits. Specifically, she asserts that the character of discharge was too severe for the misconduct, that she was the victim of discrimination, and she deserves to be recognized as a Veteran. Relevant 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. Holmes v. Brown, 10 Vet. App. 38 (1997). 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 the 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 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, which 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). A discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, offenses that would interfere with the Appellant's military duties, and preclude their performance are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1991). The Appellant was given an OTH discharge due to misconduct. The RO determined that her service was dishonorable for VA purposes due to willful and persistent misconduct. There are two possible exceptions to the Appellant being barred from receiving VA compensation benefits: if the Appellant's conduct was minor and offset by service which was otherwise honest, faithful, and meritorious; or if the Appellant is shown to have been insane at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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 the question is whether an individual was insane at the time of an offense leading to court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of 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 (2000). 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). There still must be competent evidence establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. 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. That determination is not warranted when the record does not show that a service member had insanity due to disease or that the service member did not know or understand the nature or consequences of the acts, or that what the service member was doing was wrong. Zang v. Brown, 8 Vet. App. 246 (1995). Significantly, the burden is on the appellant to submit competent medical evidence that the service member was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (1995). 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 that person's 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). 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 service member was insane. 38 U.S.C. § 530(b). The burden is on the appellant to submit competent medical evidence that the appellant was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (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). 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 this 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 will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). Factual Background In this case, the Appellant enlisted in the United States Navy on June 8, 1987 for a period of four years of active duty. The service separation form shows that the Appellant was discharged on December 15, 1989, with an OTH discharge due to commission of a serious offense and a pattern of misconduct. The Appellant's service separation form includes a separation code of HKQ, which is the discharge code for commission of a serious offense. Review of the military personnel records shows instances of misconduct: In October 1988, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for an unauthorized absence, in violation of Article 86, UCMJ. She was found guilty and sentenced to perform 15 days of extra duty and oral admonishment. In February 1989, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for an unauthorized absence, in violation of Article 86, UCMJ, and five counts of wrongfully making or uttering bad checks in an attempt to defraud, in violation of Article 123, UCMJ. She was found guilty and sentenced to be reduced to the rank of E-2, (which was suspended for six months), to perform extra duty and be restricted to the unit area for 30 days. In April 1989, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for an unauthorized absence, in violation of Article 86, UCMJ. She was found guilty and sentenced to be reduced to the rank of E-2, (which had been suspended for six months due to the February 1989 NJP) and 30 days of correctional confinement. In May 1989, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for six counts of larceny, by wrongfully making or uttering bad checks in an attempt to defraud, in violation of Article 121, UCMJ, and failing to pay a lawful debt, in violation of Article 134, UCMJ. She was found guilty and sentenced an oral admonition. In October 1989, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for larceny, by wrongfully making or uttering bad checks in an attempt to defraud, in violation of Article 121, UCMJ, and failing to pay a lawful debt, in violation of Article 134, UCMJ. She was found guilty and sentenced to perform extra duty and be restricted to the unit area for 45 days. In October 1989, the command initiated administrative separation actions against the Appellant due to commission of a serious offense and a pattern of misconduct. The Appellant waived her rights to consult with counsel and to appear before an administrative separation board, thereby accepting an adverse discharge. In November 1989, the Appellant was subjected to nonjudicial punishment at Captain's Mast, for an unauthorized absence, in violation of Article 86, UCMJ. She was found guilty and sentenced to perform extra duty and be restricted to the unit area for 30 days. In November 1989, the Appellant's General Court Martial Convening Authority approved the administrative separation and ordered that the Appellant be discharged with an under Other than Honorable conditions characterization of service, effective December 15, 1989. In an October 2016, the Appellant reported that she has sought a discharge upgrade from the Department of the Navy Board of Correction of Naval Records (NBCNR). However, in response to requests for supporting document, the National Personnel Records Center (NPRC) responded that all military personnel records have been provided to VA. These records do not include an application to the NBCNR. Analysis Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the Appellant's discharge occurred as the result of willful and persistent misconduct. The Appellant's command attempted numerous rehabilitative efforts to assist the Appellant in dealing with her misconduct, to include counseling. The rehabilitative efforts failed and the Appellant, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct, to include periods of unauthorized absence, failing to pay just debts and committing larceny. The Appellant's repeated violations of the UCMJ is consistent with a finding that the Appellant's misconduct was both willful and persistent. At no time has she expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against her. She also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The Appellant was not discharged because of a minor offense, but she was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with her service duties and resulted in her separation from service for misconduct. The Appellant has not argued that her in-service misconduct was neither willful nor persistent. The definition of willful misconduct is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n). Rather, the Appellant has asserted that several of the NJP's did not occur, despite the evidence to the contrary, her misconduct was minor, that members of her commanders were suffering from mental disorders, and that she was unjustly treated due racism by members of her chain of command, which therefore should be considered regarding whether her conduct was a bar to VA benefits. The Appellant did not specify how these contentions, if taken as true, would support a finding that her actions were not willful or persistent. Despite the Appellant's contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The Appellant's misconduct occurred over a two-year period, and she continued to engage in misconduct despite being counselled and disciplined on several occasions. The Board finds that the Appellant's conduct, which shows the Appellant failing to pay just debts, committing larceny, and absenting herself from her appointed place of duty without proper authorization, occurred despite the illegality of such behavior. The Board also finds, as did the Appellant's chain of command, that the Appellant's in-service misconduct was not minor, but it instead fundamentally interfered with her service duties. The only defense to this regulatory bar to benefits is if the Appellant was insane at the time of committing the offenses causing discharge or release. However, such a defense to this bar has not been raised by the Appellant, her representative, or the record. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Appellant has not argued that she was insane during service, and the Board otherwise finds the evidence does not support a finding that the Appellant was insane when she engaged in the pattern of consistent misconduct that resulted in her discharge from service. She did not complain of any psychiatric symptoms at the time of her separation from service, nor were any clinical findings of psychiatric conditions made at the time of her separation examination. Thus, further consideration in this regard is not necessary. The Board has considered if there are any other reasons to set aside the regulatory bar to VA benefits, including because the Appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). There is no indication that the Appellant received an upgrade to the character of her discharge by a discharge review board. Additionally, insanity has not been shown by the evidence of record. Neither the Appellant nor her representative have asserted such on the record, nor have they provided any evidence related to the Appellant's mental health. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge or evidence showing the Appellant was insane at the time of her offenses. Based on the foregoing, the Board finds that the Appellant's discharge from service on December 15, 1989, with an OTH discharge, was issued because of multiple violations of the UCMJ, to include nonjudicial punishments for larceny, failing to pay just debts, and unauthorized absences spanning from October 1988 to November 1989, which constitutes willful and persistent misconduct. Therefore, character of discharge is a bar to VA compensation benefits, as the OTH discharge for that period of service was the result of willful and persistent misconduct under 38 C.F.R. § 3.12(d), 3.13, 3.354. The Board finds that the preponderance of the evidence supports those findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Appellant has submitted many statements from family, friends, co-workers, and servicemembers attesting to her strong work ethic and resilient character. This evidence indicates that the Appellant "turned her life around," and has been a dedicated health care worker for many years. While this evidence speaks to the Appellant's strong post-service behavior, the Board finds that the evidence of in-service misconduct, as well as the findings of the service department, are dispositive of the issue on appeal. While the Board is sympathetic to the Appellant's contentions, as well as the contentions made by the various lay individuals on her behalf, the Board notes that service department findings (i.e., the Army, Navy, and Air Force) are binding on 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); see also Spencer v. West, 13 Vet. App. 376, 380 (2000). The Board is bound by the finding reflected in the Appellant's DD Form 214. The proper course for the Appellant, if she believes there is a reason to dispute the DoD's determination or the content of military records in regard to the upgraded character of discharge designation, is to pursue such a disagreement with the DoD. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). In sum, the foregoing evidence shows that the Appellant committed offenses which constitute willful and persistent misconduct, which was not minor, nor offset by otherwise meritorious service. Accordingly, the character of the Appellant's discharge is a bar to his receipt of VA benefits. J. NICHOLS 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.