Citation Nr: 21077044
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 18-48 231
DATE: December 28, 2021

ORDER

The character of the Veteran's service for the period from December 29, 2007 through December 28, 2011, is not a bar to VA benefits; the appeal is granted.

REMANDED

Whether the Veteran's character of discharge for the period from December 29, 2011 through February 14, 2014 constitutes a bar to Department of Veterans Affairs benefits, other than health care under Chapter 17, Title 38, United States Code, for that period of service is remanded.

FINDINGS OF FACT

1. A DD Form 214 and personnel records, show that the appellant was discharged from his period of service from December 2007 to February 2014 under "other than honorable (OTH) conditions."

2. The appellant had served four years active service from December 29, 2007, to December 28, 2011, the time he was obligated to serve at the time of his entry into service, was not discharged. He reenlisted on October 20, 2011 and would have been eligible for a discharge or release under conditions other than dishonorable at that time.

3. From December 29, 2007, to December 28, 2011, the appellant is considered to have been unconditionally discharged under conditions other than dishonorable.

4. The Veteran's misconduct which formed the basis of his OTH discharge did not occur during his first period of service.

CONCLUSION OF LAW

The character of the Veteran's service for the period from December 29, 2007 through December 28, 2011, is not a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the United States Marine Corps from December 29, 2007, through February 7, 2014.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2015 and June 2018 administrative decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In February 2021, the Veteran testified before the undersigned Veterans' Law Judge. A transcript of the hearing is associated with the claims file.

1. Whether the Veteran's character of discharge for the period from December 29, 2007 through December 28, 2011 constitutes a bar to Department of Veterans Affairs benefits, other than health care under Chapter 17, Title 38, United States Code, for that period of service.

The appellant essentially seeks "veteran" status. He contends his character of discharge should not be a bar to VA compensation benefits. He also asserts that he served honorably during his first period of obligated service and that his misconduct occurred following his October 2011 reenlistment.

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, 40 (1997); see also Cropper v. Brown, 6 Vet. App. 450, 452 (1994) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) and 38 U.S.C. § 1110). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released 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). A person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C. § 5107(b), is not applicable to that determination of status. 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). 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. 38 C.F.R. § 3.12(b).

A discharge for willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not, per se, constitute willful misconduct. 38 C.F.R. § 3.1(n).

A discharge or release from service under conditions specified in 38 C.F.R. § 3.12 is a statutory 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the conditions defined under 38 C.F.R. § 3.13(c) have been met.

Analysis

A DD Form 214 and personnel records, show that the appellant was discharged from his period of service from December 2007 to February 2014 under "other than honorable (OTH) conditions."

Service personnel records show that the Veteran received non-judicial punishment in October 2013 for a violation of the Uniform Code of Military Justice (UCMJ) Article 86, absence without leave. In August 2013, the Veteran was convicted at Summary Court Martial for a violation of Article 112A, wrongful use of a controlled substance. He was also arrested and charged with assault for a domestic violence incident in June 2013. He was recommended for administrative separation based on these offenses.

The regulations at 38 C.F.R. § 3.13(b) state, 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).

The regulations at 38 C.F.R. § 3.13(c) provides as follows:

Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when: (1) the person served in the active military service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such period at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.

Although 38 C.F.R. § 3.13(a), (b) provide that a discharge for immediate reenlistment prior to the expiration of the full period of the initial enlistment constitutes a conditional discharge, and that continuous reenlistments of this type are to be considered a single continuous period of active service, 38 C.F.R. § 3.13(c) also provides that while no unconditional discharge may have been issued, a person will be considered to have been unconditionally discharged when he did in fact serve continuously for the period of time necessary to actually complete any initial enlistment, and the reason he was not then discharged was that he had already undertaken an additional or intervening enlistment, and there is no evidence showing that he was eligible for the receipt of a discharge under dishonorable conditions at the time that he became eligible for an unconditional discharge.

What this means is that, although the general rule provides that continuous reenlistments prior to expiration of the entire period of any given enlistment is generally to be considered as a single lengthy enlistment, an exception is provided when a person actually completes an entire period required by an enlistment, and there is no evidence of misconduct or other basis for the award of a discharge under conditions other than honorable during that enlistment period. In such cases, VA benefits may be granted based on the period of initial obligation.

The Board finds that the provisions 38 C.F.R. § 3.13(c) are applicable in this case. Service personnel records show that the Veteran enlisted in the United States Reserves on December 3, 2007 for a period of eight years. However, on December 29, 2007, the appellant requested release from the Reserve component and enlisted in the Navy for an active-duty period of four years, with no requirement for additional Reserve service. On October 20, 2011, after over three years of active service, he signed an immediate reenlistment contract to end four years from October 20, 2011. The new contract expiration date was October 19, 2015. 

The Board finds that the Veteran had active service for four years, the time he was obligated to serve at the time of his entry into service. He was not discharged or released at the time he completed that period of obligation, and the record shows that he reenlisted on October 20, 2011. Finally, the record shows that he had no punishments under the Uniform Code of Military Justice, and only one minor disciplinary counselling, during the initial enlistment period from December 29, 2007, to December 28, 2011, and that he would have been eligible for a discharge or release under conditions other than dishonorable at that time.

Resolving the benefit of the doubt in favor of the appellant, under 38 C.F.R. § 3.13(c), the period in which he would have been eligible for a discharge or release under conditions other than dishonorable would have been from December 29, 2007, to December 28, 2011. For these reasons, the appellant's period of service from December 29, 2007, to December 28, 2011, was under conditions other than dishonorable and is not a bar to the receipt of VA benefits.

REASONS FOR REMAND

1. Whether the Veteran's character of discharge for the period from December 29, 2011 through February 14, 2014 constitutes a bar to Department of Veterans Affairs benefits, other than health care under Chapter 17, Title 38, United States Code, for that period of service is remanded.

The Veteran essentially seeks "Veteran" status for the period from December 29, 2011 to February 14, 2014. He contends his character of discharge should not be a bar to VA compensation benefits.

The Veteran's service records show that he was discharged on February 14, 2014 under other than honorable conditions due to engaging in patterns of misconduct.

In August 2013, the Veteran was tried at Summary Court Martial for wrongful use of a controlled substance (oxazepam), in violation of Article 112a, UCMJ. He was sentenced to reduction to the rank of E4.

In October 2013, the Veteran received nonjudicial punishment for being AWOL, in violation of Article 86, UCMJ. He was sentenced to reduction to the rank of E-3 and to perform extra duty for 45 days.

The Veteran also was convicted of assault related to domestic violence in civilian court.

In July 2013, the Veteran's commander notified the Veteran that he was recommending that the appellant be separated from service for engaging in patterns of misconduct. 

The approving authority approved the administrative separation. The Veteran was discharged with an under other than honorable discharge, effective February 14, 2014.

Service department findings 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. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000).

Based on the above, the AOJ has determined that the character of the Veteran's discharge for this period of service is a bar to his entitlement to VA compensation benefits, exclusive of Chapter 17 healthcare benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are "compelling circumstances to warrant the prolonged unauthorized absence." 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated."

For purposes related to the character of discharge, 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).

In May 1997, the 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 does 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 his normal method of behavior could best be 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, 62 Fed. Reg. 37955 (1997).

The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id.

The Veteran has not specifically claimed to be insane at the time that he committed his criminal offenses. Additionally, we emphasize that the definition of insanity set forth above certainly encompasses greater impairment than is indicated by a simple diagnosis of a mental health disorder. However, the Veteran's service treatment records indicate diagnoses of generalized anxiety disorder, adjustment disorder with anxiety, dysthymic disorder (depressive neurosis), and depression concurrent with his period of misconduct. Additionally, his STRs indicate that he was prescribed medication for anxiety, and routinely attended mental health counseling in 2012 and 2013. 

The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 539 (2000) (although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis). Accordingly, given the evidence of record reflecting that the Veteran may have had psychiatric impairment in service, the Board finds that a VA examination and opinion is warranted on the issue of the Veteran's mental state at the time of the misconduct that led to his February 2014 discharge under other than honorable conditions.

Additionally, the Board finds that there are outstanding records which are relevant to the claim on appeal. Specifically, the claims file includes a summary of the Veteran's civilian conviction for domestic violence and assault in June 2013. This summary does not include specific details of the facts and circumstances of his offense and conviction. It also indicates that a mental health evaluation was directed by a Nevada state court. This evidence is relevant to the issue on appeal. As such, the Board finds that the RO should make attempts to obtain these records and associate them with the claims file.

The matters are REMANDED for the following action:

1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after obtaining the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to obtain this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be obtained, provide the required notice and opportunity to respond to the Veteran and his representative.

2. Undertake appropriate development to obtain court documents from the State of Nevada regarding the Veteran's October 2013 assault conviction (Case Identification Number C-13-293309-1).

3. After completion of the above, please afford the Veteran with a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the Veteran was insane under VA regulations at the time of the misconduct that led to his February 2014 discharge under other than honorable conditions. After examination of the Veteran and review of his claims file, the examiner should respond to the following:

(a) Was the behavior that led to the Veteran's discharge in February 2014 due to psychiatric disability?

(b) Was the Veteran insane at the time he committed the criminal acts that led to his February 2014 discharge under other than honorable conditions?

In providing an answer to these questions, the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease: exhibits 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane.

Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

 

 

R. FEINBERG

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.