Citation Nr: 21067309 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-04 243A DATE: November 3, 2021 ORDER The Appellant's discharge is a bar to payment of Department of Veterans Affairs benefits; the appeal is denied. Entitlement to service connection for nonalcoholic steatosis hepatitis is denied. Entitlement to service connection for a thyroid disability is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for multiple hemangiomas is denied. FINDING OF FACT The offenses underlying the Appellant's discharge constitute willful and persistent misconduct; the Appellant's discharge is a bar to payment of VA benefits. CONCLUSIONS OF LAW 1. The character of the Appellant's discharge is a bar to payment of VA benefits. 38 U.S.C. § 101, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.102. 2. The criteria for establishing service connection for nonalcoholic steatosis hepatitis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for a thyroid disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for establishing service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for establishing service connection for multiple hemangiomas have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Appellant served on active duty with the United States Marine Corps from July 1968 to September 1970, and the service was characterized as under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits and a May 2018 rating decision denying service connection for the four claimed disabilities. Status as a Veteran 1. Whether the character of the Appellant's discharge is a bar to payment of VA benefits VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). A discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, which generally includes conviction of a felony; (4) willful and persistent misconduct, and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. §3.12(d). A discharge or release from service under one of the conditions specified in section 3.12 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 or unless otherwise specifically provided in 38 U.S.C. § 5303(b). Here, the Appellant has not alleged insanity nor does the record raise the issue. The question for the Board, then, is whether the Appellant's offenses during service constituted willful and persistent misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or a wanton and reckless disregard of its probable consequences. Id. 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). An offense that interferes with or precludes the performance of military duties cannot be characterized as a minor offense. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995). The Appellant's service personnel records show that he had unauthorized absences from October 18, 1968, to October 23, 1968; from November 1, 1968, to November 18, 1968, and from November 20, 1968, to January 14, 1969; and from May 17, 1969, to October 28, 1969. This third period of unauthorized leave was the longest, noted in the records to be 163 days. There are no citations for any other offenses in his personnel records. The Appellant was issued a nonjudicial punishment (NJP) for the first unauthorized absence, from October 18 to 23, 1968. For the second unauthorized absence, from November 1, 1968, to January 14, 1969, the Appellant appeared before a special court martial and was sentenced to confinement for three months, which he served from March 1969 to May 1969. For the third unauthorized absence, from May 17, 1969, to October 28, 1969, the Appellant appeared again before a special court martial and was sentenced to confinement for four months and a bad conduct discharge. After completing his sentenced of confinement in March 1970, the Appellant was permitted indefinite home leave while awaiting appellate review and discharge. The bad conduct discharge was later administratively changed to a discharge under other than honorable conditions by the clemency program enacted by Presidential Proclamation 4313. The Appellant has made no assertions regarding the character of his discharge during the course of this appeal. However, he submitted a detailed statement to the Navy Discharge Review Board in 1975, when he applied for an upgrade of his bad conduct discharge. The Appellant reported that, after completing bootcamp in September 1968, he requested leave to attend to a matter his girlfriend was having with her family. When this leave was denied, the Appellant reported that he went absent without official leave (AWOL) on November 1, 1968. He reported that, upon his return, he felt that his being placed on restriction and awaiting a special court martial was too harsh a punishment, so he left base again for two months. The Appellant reported that he requested orders to go to Vietnam in place of the special court martial, but this request was denied. He reported that he planned to go AWOL once he was released from confinement, which he did approximately four days after his release, in the hopes that he would be discharged from service. Upon review of the evidence of record, the Board finds the Appellant's offenses during service are to be considered willful and persistent misconduct. To begin with, the Appellant served from July 1968 until his discharge in September 1970. After completing bootcamp in September 1968, the Appellant served without offense only until October 18, 1968. After that date, the Appellant was essentially either on unauthorized absence or serving punishment for unauthorized absence until his discharge. Further, the Appellant's explanation for his absences, in the 1975 statement, does not indicate that the absences were anything other than conscious wrongdoing. The Appellant reported that he requested leave and left base regardless when the request was denied; he also reported that he later intended to go AWOL upon release from confinement with the purpose of being discharged from service. Therefore, the Board finds the Appellant's sequence of unauthorized absences to be both willful and persistent. The regulations do provide for a compelling circumstances exception. 38 U.S.C. § 5303(a)(2)(A); 38 C.F.R. § 3.12(c)(6). However, this exception applies only to Vietnam-era veterans with periods of AWOL for at least 180 continuous days. Winter v. Principi, 4 Vet. App. 29, 32 (1993) ("They pertain solely to Vietnam-era veterans who received [other than honorable] discharges stemming from extended periods of AWOL"). Here, the Appellant's longest period of unauthorized absence was 163 days. The Board further notes that one of three factors to consider in applying this exception is the length and character of service exclusive of the period of prolonged AWOL, 38 C.F.R. § 3.12(c)(6)(i), which in the Appellant's case is not a favorable factor. Lastly, the Board notes there is no indication in the record that the Appellant accepted the bad conduct discharge in order to avoid a general court martial. See 38 C.F.R. § 3.12(d) (acceptance of an undesirable discharge to escape trial by general court martial renders discharge dishonorable under VA regulations). In conclusion, the Board finds the Appellant's offenses during service constitute willful and persistent misconduct, and the Appellant's discharge is considered to have been under dishonorable conditions, barring payment of VA benefits. Service Connection 2. Entitlement to service connection for nonalcoholic steatosis hepatitis 3. Entitlement to service connection for a thyroid disability 4. Entitlement to service connection for diabetes mellitus 5. Entitlement to service connection for multiple hemangiomas Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). Here, the Board has found that the Appellant's service was dishonorable for the purposes of VA regulations. Therefore, the Appellant does not have status as a veteran, and fails to fulfill the first element of a service connection claim. Service connection for any disability, including nonalcoholic steatosis hepatitis, a thyroid disability, diabetes mellitus, and multiple hemangiomas, is denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.