Citation Nr: 21073280 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 13-29 083 DATE: December 8, 2021 ORDER The character of appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits; to this extent the appeal is denied. FINDINGS OF FACT 1. The appellant's discharge under other than honorable conditions was issued as a result of willful and persistent misconduct. 2. The appellant was not discharged due to a minor offense where service was otherwise honest, faithful and meritorious. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.12, 3.203, 3.301. REFERRED MATTER As discussed further below, the Board finds the character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. However, health care and related benefits authorized under 38 U.S.C. Chapter 17 shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred in or aggravated during active military, naval, or air service in the line of duty. See 38 C.F.R. § 3.360(a). In this case, the agency of original jurisdiction (AOJ) has not yet adjudicated the appellant's service connection claims for treatment purposes only under 38 U.S.C. Chapter 17. See June 2012 VA Form 21-526. As such, the appellant's service connection claims, for treatment purposes only under 38 U.S.C. Chapter 17, are referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served in the United States Army from September 2000 to July 2002. He was discharged in July 2002 under other than honorable conditions. Historically, the appellant was denied entitlement to VA compensation benefits in an April 2013 VA decision on the grounds that his service was considered dishonorable for VA purposes. A Board hearing was held before the undersigned Veterans Law Judge in August 2016, and a transcript of the hearing is of record. In December 2016, the Board determined the character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. In July 2017, the Court of Appeals for Veterans Claims (Court) granted the appellant's and the Secretary's joint motion for partial remand (JMPR), which vacated and remanded the Board's December 2016 decision to the extent that the character of the appellant's discharge was determined to constitute a bar to the receipt of VA compensation benefits. The parties to the JMPR found that the Board did not offer an adequate statement of reasons or bases for determining the type of court martial the appellant was facing when he requested discharge in lieu of court martial. In August 2019, the Board again determined the character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. In April 2021, the Court issued a Memorandum Decision, vacating and remanding the Board's August 2019 decision that determined the character of the appellant's discharge from service is a bar to VA compensation benefits. The Court found that the Board erred by failing to address issues raised by the appellant and by the record. As detailed below, the Board has considered the entire evidence of record, to specifically include addressing the evidence and argument noted in the April 2021 Memorandum Decision, and finds that the character of the appellant's discharge from service is a regulatory bar to the award of VA compensation benefits. The character of appellant's discharge from service is a bar to the receipt of VA compensation benefits. A claimant must first establish "veteran" status in order to qualify for VA compensation benefits. 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 AOJ determined that the appellant's service is dishonorable for the purposes of entitlement to VA compensation benefits. See April 2013 VA administrative decision. The AOJ found that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct, constituting a bar to the receipt of VA compensation benefits. 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. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful and meritorious. Turning to the particular facts in this case, the appellant completed a security clearance application prior to entering service in which he reported a history of alcohol/drug offenses. See September 2000 Standard Form 86. The appellant reported that he was charged with and paid a fine for public intoxication with a county court in September 1999. The appellant reported charges for possession of beer, driving under the influence (DUI), reckless driving, and interference with police, which were dismissed by a county court in May 2000. The appellant's Record of Military Processing indicates that he received an enlistment waiver prior to entering active duty. See September 2000 DD Form 1966/1. The appellant entered active duty service for a period of two years beginning in September 2000. See September 2000 DD Form 4. The appellant enlisted under an enlistment incentive cash bonus program, and was assigned the military occupational specialty of Parachute Rigger requiring Airborne training. The appellant signed a statement of understanding, acknowledging that he would be trained in another military occupational specialty if he was unable to complete Advanced Individual Training (AIT). Additionally, the appellant initialed a statement of understanding, acknowledging that he understood the Army's policy was to prevent alcohol abuse in order to perform its mission to defend the United States, to ensure its combat readiness, and to protect the health and welfare of its soldiers. The appellant acknowledged that he understood alcohol abuse involving criminal acts or conduct detrimental to the Army or good order and discipline would not be tolerated. The appellant completed his initial training and was transferred to his first duty station in June 2001. See Record of Assignments. While in transition to his new assignment, the appellant was picked up for and charged by civil authorities with DUI. See July 2001 Developmental Counseling Form. The company commander advised the appellant that he would receive a General Officer Letter of Reprimand for the above offense. The appellant was advised that his post driving privileges and off post pass privileges were suspended. The company commander reported that the appellant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for treatment. Additionally, the company commander indicated that the appellant had been identified in a bar establishment in town one week after being assigned to the company. The company commander also indicated that a fellow soldier reported the appellant was in possession of that fellow soldier's identification card. The appellant was advised that any further misconduct would be looked upon very seriously, and may result in separation from the Army. The appellant signed the July 2001 Developmental Counseling Form, indicating his agreement with the summary of key points and plan of action. In a December 2001 Development Counseling Form, the appellant's supervisor indicated the appellant was fined by civil authorities for his DUI in July 2001. The appellant's supervisor reported the appellant's overall performance of duties was marginal. In a January 2002 Developmental Counseling Form, the appellant's supervisor indicated the appellant had improved his job performance and finished as the second Packer of the Month overall for the month of January. The appellant's supervisor advised the appellant to keep up with the provisions set forth in his DUI conviction by civil authorities, and to continue to stay out of trouble. In a February 2002 Developmental Counseling Form, the appellant's supervisor reported the appellant's performance had been excellent during the month of February. The appellant's supervisor noted that the appellant had started visiting his probation officer and performing community service pursuant to his DUI conviction by civil authorities. The appellant's supervisor advised the appellant to avoid alcohol at all costs. In a March 2002 Developmental Counseling Form, the appellant's supervisor reported the appellant's overall job performance during the month of March was marginal at best. The appellant's supervisor indicated the appellant was corrected for sliding packed parachutes across the floor with another soldier. The appellant's supervisor noted that all life-saving equipment must be handled with the utmost care, and advised the appellant that such behavior would not be tolerated. The appellant's supervisor also provided positive feedback, noting that the appellant supported a deployment at the Joint Readiness Training Center, that the appellant was motivated and demonstrated a positive attitude, and that the appellant was becoming one of the most expedient parachute packers. In April 2002, the appellant attempted to drive onto post through a military check point. See April 2002 Military Police Desk Blotter; see also April 2002 military police investigator's sworn statement. The military police investigator reported that the appellant smelled of alcohol. The appellant was administered a field sobriety test, which he failed. The appellant reportedly denied consuming alcohol when initially questioned by military police, and later admitted to drinking one beer. The military police investigator detained the appellant and transported him to a civilian police department. The appellant lit a cigarette while in the back of the military police vehicle. When the military police investigator attempted to take the cigarette out of the appellant's mouth, the appellant turned his head which caused the cigarette to burn a hole in the military police vehicle. The military police investigator reported that the appellant exited the military police vehicle and refused an order to get back in the vehicle. The appellant was administered a blood alcohol concentration (BAC) test at the civilian police department, which revealed a BAC of 0.115. The military police investigator reported the appellant was rude, swearing, and unruly when he was being transported back to post for further processing at the Provost Marshall Office. The military police investigator reported the appellant attempted to kick him as he walked by, and that the appellant refused an order to remain seated. In an April 2002 Developmental Counseling Form, the appellant's supervisor noted the appellant had received his second DUI within [nine] months. The appellant's supervisor advised that the appellant could have killed someone or injured himself. The appellant's supervisor reported the appellant had blatantly violated the terms of his State probation. The appellant's supervisor advised that the appellant was no longer allowed to handle any air items that provided life-saving capabilities, which increased the overall workload for his peers. In May 2002, the following charges were preferred against the appellant: (1) failure to go at the time prescribed to his appointed place of duty (physical training formation) on April 30, 2002; (2) failure to obey a lawful order by wrongfully refusing to get back into a military police vehicle on April 6, 2002; (3) without proper authority, and through neglect, damaging a military police vehicle by burning it with a lit cigarette on April 6, 2002; and (4) physically controlling a vehicle with a BAC of [0.115]. See May 2002 Charge Sheet. The preferred charges were received by the summary court martial convening authority. It appears that prior to referral of the charges to court martial, the appellant submitted a voluntary request for discharge in lieu of trial by court martial. See June 2002 Request for Discharge in Lieu of Court Martial. In the request for discharge, the appellant indicated an understanding that at least one of the charges (failure to report; disobeying an order; damage to government property; and/or DUI) preferred against him authorized imposition of a bad conduct or dishonorable discharge. In a statement submitted with his request for discharge in lieu of trial by court martial, the appellant indicated that he had received no bad counselings and that his supervisor would say the appellant performed his job well. The appellant reported that he "simply screwed up while drinking." The appellant reported that he had been going to ADAPCP and was progressing well. The appellant requested that he be granted a general (under honorable conditions) characterization of service. The appellant's chain of command and the staff judge advocate favorably endorsed the appellant's request for administrative discharge in lieu of court martial, unanimously recommending discharge with a characterization of service under other than honorable conditions. In a June 28, 2002 memorandum, the appellant's request for discharge in lieu of trial by court martial was approved with a characterization of service under other than honorable conditions. The commanding general further directed the appellant be barred from the military installation because the appellant's conduct was prejudicial to good order and discipline. The appellant was administratively discharged under other than honorable conditions in July 2002. In connection with the appellant's June 2012 claim for VA disability compensation benefits, the appellant was advised to submit evidence concerning the events that led to his discharge under other than honorable conditions. See August 2012 VA correspondence. In a September 2012 statement, the appellant reported he acquired stress fractures in his feet during basic training. See September 2012 VA Form 21-4138; see also November and December 2000 service treatment records (documenting a left foot stress fracture and physical profile for 30 days). The appellant reported he was placed on a physical profile and unable to proceed to the next phase of training. The appellant reported that he was ridiculed and alienated by his peers and superiors for being on a physical profile. The appellant reported that he was able to complete training despite continued physical pain, and that he did not seek further treatment due to fear of becoming an outcast. The appellant reported the pain in his feet intensified during AIT. The appellant reported that he began to self-medicate with alcohol during AIT. The appellant reported that he felt that he could not make it through training without alcohol, and that he could not face being shunned for being place on physical profile again. The appellant reported that he was underage, and that he was aware alcohol was not permitted in the barracks. The appellant reported that he felt drinking alcohol was worth the risk of breaking the rules in order to make it through training. The appellant reported he went on to Airborne training, which was even more physically intense. The appellant indicated that he felt training in another military occupational specialty was not an option for him. The appellant reported that he continued to numb his pain with alcohol, and that his drinking increased during Airborne training. The appellant reported that physical training was not as intense following completion of Airborne training, but that he would still take shots of alcohol on days with difficult physical training. See also March 2001 Permanent Orders (documenting completion of Airborne training effective March 30, 2001). The appellant reported that he had not been much of a drinker prior to service, and that he never had an alcohol problem prior to his enlistment. See also August 2016 Board hearing transcript. With respect to his July 2001 DUI, the appellant reported that he went to the beach with fellow soldiers. The appellant reported that one of the fellow soldiers knew a bartender, who served the appellant alcohol despite being underage. The appellant reported that he was in a parking lot when he received the July 2001 DUI. The appellant reported that he was assigned to an Army Ranger battalion after the DUI offense in July 2001. The appellant reported his unit did 10-mile runs and had a jump every month, sometimes twice a month. The appellant reported that drinking was accepted at his new unit, and that he was given alcohol on numerous occasions by leadership that was aware the appellant was underage. See also August 2016 Board hearing transcript. The appellant reported that alcohol became his daily routine. With respect to his April 2002 DUI, the appellant reported that he got into trouble coming through the get with alcohol on his breath. The appellant reported that he agreed to separation from service under other than honorable conditions. The appellant reported that he did the best he could given his situation, and that he served honorably and lived up to the core values of the United States Army. In September 2013, the appellant reported that the majority of the alleged violations in service, to include the most serious charges, arose from a single isolated incident on April 6, 2002, which reflected an unintentional and uncharacteristic lapse in judgment. See September 2013 VA Form 9 with associated correspondence. The appellant reported that his discharge under other than honorable conditions was ultimately due to his own mistakes. The appellant reported that he otherwise exceeded standards in the performance of his duties. The appellant requested that the Board consider that everyone is susceptible to making mistakes. In a December 2017 Appellate Brief, the appellant's attorney argued that the offenses that prompted the appellant's request for separation arose from a single incident and constituted minor offenses; therefore, the appellant's behavior cannot be deemed willful or persistent. The appellant's attorney argued that no other statutory or regulatory bars to VA benefits, to include the bar under 38 C.F.R. § 3.12(d)(1) for acceptance of an undesirable discharge to escape trial by general court martial, are applicable in this case. See also June 2019 and November 2021 Appellate Brief. In support of the contention that the appellant requested discharge in lieu of a trial by a summary court martial, the appellant's attorney noted that the charges preferred against the appellant in May 2002 were received by the summary court martial convening authority. The appellant's attorney reported that offenses tried at summary court martial are considered minor offenses, the maximum punishment for which such offenses can be imposed include confinement for one month, forfeiture of two-thirds of one month's pay, and a reduction in rank to E-1. In a June 2020 Appellant Brief associated with the Memorandum Decision issued by the Court in April 2021, the appellant's attorney asserted that it is clear that the appellant was discharged from service because of the events that occurred in April 2002. The appellant's attorney argued that, in considering whether the character of the appellant's discharge is a bar to VA compensation benefits, the Board is limited to consideration of the May 2002 charges for offenses committed by the appellant in April 2002. See also November 2021 Appellate Brief. The appellant's attorney argued that there is no indication that any conduct prior to April 2002 was contemplated at the time of the appellant's discharge. Additionally, the appellant's attorney noted the assertion that the appellant's use of alcohol was not willful because the appellant used alcohol to cope with pain from injuries incurred during training. See April 2021 Memorandum Decision (directing the Board to address the issue of whether the appellant's use of alcohol to treat pain constituted willful misconduct). The appellant's attorney further noted the assertion that the appellant's offenses leading to his request for discharge were mere technical violations of police regulations, and therefore did not constitute willful misconduct under 38 C.F.R. § 3.1(n)(2). The appellant's attorney also noted the argument that because the offenses leading to the appellant's request for discharge arose from a single incident, the appellant's conduct was not "persistent." In a November 2021 Appellate Brief, the appellant's attorney argued that, with respect to the question of what constitutes persistent misconduct in the context of forming the basis for a discharge from service, the Board should request information from the relevant military authorities to adequately define the basis of a discharge. Additionally, the appellant's attorney argued that the appellant avoided seeking medical treatment for injuries incurred in service because of previous negative experiences as described above, and instead resorted to alcohol as a method of self-medicating continued symptoms of pain. See also 38 C.F.R. § 3.301(c). Thus, the appellant's attorney argued that the appellant's use of alcohol was not tied to any deliberate wrongdoing or wanton and reckless disregard of the consequences. The Board has considered the entire evidence of record and finds that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct, constituting a bar to the receipt of VA compensation benefits under 38 C.F.R. § 3.12(d)(4). To the extent that the appellant's attorney argues that the Board should remand the instant appeal to make an inquiry to the relevant military authorities to adequately define the basis of a discharge, the Court has held that 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). Should the appellant wish to seek an upgrade of his discharge, the proper recourse is through the service department (in this case the Army Review Boards Agency). See also 38 C.F.R. § 3.12(a) (a discharge under honorable conditions is binding on the VA as to character of discharge). In reaching this determination, the Board recognizes that the appellant's administrative separation from service was initiated pursuant to the appellant's request for discharge following the preferral of charges in May 2002 (for the offenses committed in April 2002). See 10 U.S.C. § 830 (pertaining to the preferral of charges). It appears the appellant's request for discharge in lieu of court martial was approved prior to referral, which would have specified the level of court martial, of the May 2002 charges against the appellant. See 10 U.S.C. § 830a (pertaining to the referral of charges). As such, service records do not contain information as to the level (summary, special, or general) of court martial that the appellant was facing as a result of the May 2002 charges. However, the Board agrees with the assertion that there is insufficient evidence to determine that the appellant accepted an undesirable discharge to escape trial by a general court martial. See 10 U.S.C. § 832 (2002) (requiring an Article 32 investigation before charges may be referred to a general court martial). With respect to the assertion that the Board is limited to consideration of the May 2002 charges for offenses committed by the appellant in April 2002, the Board does not agree. In Camarena v. Brown, the Court reviewed the legislative history of VA's regulation under 38 C.F.R. § 3.12, which clearly showed a congressional intent that if a discharge given was for conduct that was less than honorable, then the Secretary has the discretion to deny benefits in appropriate cases where the overall conditions of service had, in fact, been dishonorable. See Camarena v. Brown, 6 Vet. App. 565, 567 (1994). While the convening authority that approved the appellant's discharge in lieu of trial by court martial did not explicitly state the appellant's characterization of service under other than honorable conditions was based on consideration of the appellant's entire military record, such is generally consistent with Department of Defense and Department of the Army regulations. See Department of Defense Directive 1332.14, "Enlisted Administrative Separations," December 21, 1993; see also Army Regulation (AR) 635-200. As to the Board's finding that the appellant's discharge under other than honorable conditions was a result of willful and persistent misconduct, the Board observes that prior to entering active duty in September 2000, the appellant indicated that he understood the Army's policy was to prevent alcohol abuse in order to perform its mission to defend the United States, to ensure its combat readiness, and to protect the health and welfare of its soldiers. The appellant also acknowledged that he understood alcohol abuse involving criminal acts or conduct detrimental to the Army or good order and discipline would not be tolerated. Despite the above, the appellant received a DUI in July 2001 after drinking (while underage) at a bar at the beach with fellow soldiers. Service records indicate that the appellant was required by civil authorities to see a probation officer and perform community service related to the July 2001 DUI, and that he received a General Officer Letter of Reprimand and formal counseling from his company commander, as well as suspension of his post driving privileges and off post pass privileges, and referral to ADAPCP for treatment. The appellant was advised in writing, to which he initialed his understanding, that any further misconduct would be looked upon very seriously and may result in separation from the Army. The Board finds that the appellant's subsequent alcohol related offense in April 2002, involving physically controlling a vehicle with a BAC of 0.115 (while underage), failure to obey a lawful order by wrongfully refusing to get back into a military police vehicle, and damaging a military police vehicle by burning it with a lit cigarette, demonstrates willful misconduct. See 38 C.F.R. § 3.1(n) (defining "willful misconduct" as 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.). Given the adverse consequences of the appellant's July 2001 DUI (including being assigned to a probation officer, reprimand/counseling, ADAPCP treatment, and warning that further misconduct may result in separation), the Board finds the appellant's April 2002 alcohol related offense(s) involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. See also February 2002 Developmental Counseling Form (appellant was advised to avoid alcohol at all costs). As noted in the April 2002 Developmental Counseling Form, the appellant's supervisor advised that the appellant could have killed someone or injured himself driving under the influence, and the appellant blatantly violated the terms of his State probation. The Board recognizes the assertion that the appellant resorted to alcohol as a method of self-medicating symptoms of pain related to injuries sustained in service. The appellant's attorney cited to 38 C.F.R. § [3.301] in support of the argument that the use of alcohol to self-medicate injuries sustained during service should not be considered willful misconduct. Under 38 C.F.R. § 3.301(c)(2), the simple drinking of alcoholic beverage is not of itself willful misconduct. However, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. Id. Under 38 C.F.R. § 3.301(c)(3), where drugs are used for therapeutic purposes from a service-connected disability, it will not be considered of misconduct origin. While the appellant indicated his use of alcohol in service was to numb pain in his feet and back, the Board finds that the particular facts and circumstances of the appellant's use of alcohol that resulted in the July 2001 and April 2002 offenses was under conditions which would raise a presumption that will be considered willful misconduct. The appellant received a DUI in July 2001 following drinking at a bar at the beach with fellow soldiers. In the June 2002 request for discharge in lieu of court martial, the appellant reported that he "simply screwed up while drinking." The Board adds that, while the appellant reported he had not been much of a drinker prior to service and that he never had an alcohol problem prior to his enlistment, responses to his September 2000 security clearance application suggests otherwise. The Board notes the Veteran's assertion that he avoided seeking medical attention for pain in service because of previous negative experiences. However, self-treating pain with alcohol does not correspond with the appellant operating a vehicle after drinking socially with fellow soldiers. Insofar as the appellant requested that the Board consider that everyone is susceptible to making mistakes, the Board notes that the appellant's command afforded him an opportunity to recover from his misconduct in July 2001. The appellant was clearly advised of the consequences of further misconduct, and yet he committed the further offenses in April 2002. Additionally, the Board finds that the appellant's two alcohol related offenses involving DUI within nine months of each other also demonstrates persistent misconduct. The term "persistent" is not defined by VA regulation, but may generally be defined as "continuing to exist despite interference or treatment." See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/persistent (last viewed November 30, 2021). Here, the appellant continued to commit alcohol related offenses, to include involving DUI, despite prior ADAPCP treatment, as well as interference in the form of being assigned to a probation officer, reprimand/counseling, and warning that further misconduct may result in separation. The Board has considered whether the exception for a discharge because of a minor offense is applicable. As noted above, a discharge for a minor offense will not be considered willful and persistent if service was otherwise honest, faithful and meritorious. See 38 C.F.R. § 3.12(d)(4). The Board recognizes the positive aspects of the appellant's service, including the report that the appellant's performance had been excellent during February 2002, and a March 2002 report that the appellant had supported a deployment at the Joint Readiness Training Center and that the appellant was becoming one of the most expedient parachute packers. The critical question is whether the appellant's discharge was the result of a minor offense. After a review of all the evidence, the Board finds that the offenses that resulted in the appellant's discharge under other than honorable conditions were not minor in nature. The appellant's misconduct involving alcohol, including DUI, was prejudicial to good order and discipline, constituted a significant departure from the conduct expected of service members, and endangered the health and safety of other persons. Accordingly, the Board finds the appellant's offenses resulting in his discharge under other than honorable conditions were serious offenses, and the exemption for a "discharge because of a minor offense" is not applicable. In reaching this determination, the Board acknowledges the contention that the appellant requested discharge in lieu of a trial by a summary court martial, and that offenses tried at summary court martial are considered minor offenses. Although the evidence of record is not sufficient to determine that the appellant accepted an undesirable discharge to escape trial by a general court martial, the appellant's request for discharge in lieu of court martial was allowed because at least one of the charges preferred against him authorized imposition of a punitive (bad conduct or dishonorable) discharge. See June 2002 Request for Discharge in Lieu of Court Martial. Notably a punitive discharge may only be directed by the sentence of a special or general court martial, not a summary court martial. Such evidence does not support a finding that the appellant was facing trial by a summary court martial for minor offenses. As a final matter, neither the appellant nor his attorney have asserted at any time that the appellant was "insane" at the time of committing the offenses that led to his discharge under other than honorable conditions. See 38 C.F.R. § 3.12(b) (a finding that the person was insane at the time of the misconduct resulting in a dishonorable discharge lifts the bar to the payment of VA benefits); see also 38 C.F.R. § 3.354 (defining insanity). The evidence of record does not otherwise suggest that the appellant was insane, as defined by VA regulations, at the time of the offenses leading to his discharge under other than honorable conditions. In sum, the Board finds that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct. The evidence of record is against a finding that the exemption for a discharge because of a minor offense is warranted. Additionally, the appellant has not asserted and the evidence of record does not otherwise suggest that the appellant was "insane," as defined by VA regulations, at the time of the offenses leading to his discharge under other than honorable conditions. Accordingly, the appellant is barred from receiving VA compensation benefits under 38 C.F.R. § 3.12(d)(4), and the appeal is denied. S. HENEKS 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.