Citation Nr: A21017656 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 200420-183712 DATE: November 1, 2021 ORDER As the character of the former service member's service is a bar to VA benefits, the appellant's appeal for eligibility for a government-furnished headstone or marker and presidential memorial certificate is denied. FINDING OF FACT The former service member had willful and persistent misconduct during his period of service and was discharged under other than honorable conditions which was determined to be under dishonorable conditions and is a statutory bar to VA benefits. CONCLUSION OF LAW The former service member's service did not meet the character of discharge requirements for the payment of VA benefits; his character of discharge bars receipt of a government-furnished headstone or marker and presidential memorial certificate. 38 U.S.C. §§ 101(2), 5103, 5103A, 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.13, 3.159. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant's son had active service from June 2009 to October 2012. He died in August 2019. The appellant is the former service member's father. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2019 administrative decision of the Department of Veterans Affairs (VA), which determined that the former service member's character of discharge prevents the payment of VA benefits. The appellant asserts that the former service member is entitled to a Government-furnished headstone or marker and memorial certificate. In an April 2020 VA Form 10182 notice of disagreement, wherein the appellant selected the Direct Review lane, the former service member's father and mother also included a statement that the former service member did have PTSD and struggled during and after his time in service, causing him to die by suicide. However, the Boards notes this statement qualifies as evidence added to the claims file during a period of time when new evidence was not allowed. Because this evidence was added to the claims file after the December 2019 decision, and because the appellant elected the Direct Review option, and, in accordance with the modernized review system, the Board can consider only the evidence of record at the time of the December 2019 decision, which is the subject of this appeal for direct review. Therefore, the Board may not consider that evidence. See 38 C.F.R. § 20.300. The appellant may file a Supplemental Claim and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Here, governing law provides that (if the individual requesting certified that a headstone or marker will be placed on the grave for which it was requested) VA will furnish a headstone or marker for the grave of a veteran who: (1) died on or after November 1, 1990; (2) is buried in a private cemetery; and (3) was eligible for burial in a national cemetery. See 38 U.S.C. § 2306; 38 C.F.R. § 38.361. Governing law also provides that any person classified as a "veteran" is eligible for burial in a national cemetery. See 38 U.S.C. § 2402; 38 C.F.R. § 38.620(a). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable (emphasis added). See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). 38 C.F.R. § 3.12 provides, in pertinent part, that if the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. See 38 C.F.R. § 3.12(a). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 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. See 38 C.F.R. § 3.12 (b). The regulation provides that benefits are not payable where the 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 absence without official leave (AWOL) for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). 38 C.F.R. § 3.12 further provides that a discharge or release because of one of following 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 (This includes, generally, conviction of a felony); (4) Willful and persistent misconduct (This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.); (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. In this case, a DD Form 214 shows that the former service member was discharged under other than honorable conditions in October 2012 for misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. The former service member had committed the following offenses during service: he had unauthorized absence from his ship; he missed his ship's movement; he was caught on board his ship huffing a can of blast away air duster; he had another incident when he was found passed out naked in a bathroom with an aerosol can next to him; and failure to obey a lawful order. A September 2012 recommendation for administrative separation noted that he was being discharged by reason of misconduct due to pattern of misconduct and commission of a serious offense. The former service member was noted to have waived his right to an administrative board. It was noted that the former service member did not serve in an imminent danger zone though he did not undergo an examination to determine whether he had PTSD/TBI as a contributing factor as he waived those rights to one. His commanding officer also "strongly recommended" the separation and noted that the former service member was notified of the administrative separation and was afforded his rights, which he waived. As such, he had been on notice and was competent as to the consequences of his subsequent actions. In November 2019, an Administrative decision found that the former service member's discharge from service was not issued under conditions other than dishonorable and is a bar to VA benefits under 38 C.F.R. § 3.12. It was also determined that there is no evidence to show that at the time of the misconduct, the former service member was mentally defective or unable to distinguish right from wrong and adhere to the right. The Board acknowledges the appellant's argument that the former service member was struggling with PTSD, but there is no evidence or indication of such a diagnosis in the record at the time of the December 2019 decision; nor was it noted in the military personnel record. The Board also notes that the former service member's service from June 2009 to October 2012 is considered one period of service. The service department certification is determinative. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530 (1992) (holding that a service department determination as to an individual's service shall be binding on the VA); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). In sum, the Board finds that the character of discharge of the former service member creates a bar to VA benefits, and that the appellant's claim for entitlement for the former service member for a government-furnished headstone or marker and a certificate must be denied. The records pertinent to the former service member's discharge reveals that his discharge under other than honorable conditions was due to willful and persistent misconduct and VA determined that his discharge was considered under dishonorable conditions, which is a bar to VA benefits. Consequently, although the Board sincerely sympathizes with the appellant on the loss of his son, unfortunately, the appellant has no legal entitlement to VA benefits, and his claim must be denied as a matter of law. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.