Citation Nr: A21020520 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200902-106803 DATE: December 27, 2021 ORDER Entitlement to a Government-furnished headstone or grave marker is granted. FINDING OF FACT The service member, who died after November 1, 1990, is interred in a private cemetery and his grave is not currently marked. CONCLUSION OF LAW The criteria for entitlement to a Government-furnished headstone or grave marker have been met. 38 U.S.C. § 2306; 38 C.F.R. § 38.630. REASONS AND BASES FOR FINDING AND CONCLUSION The service member had active duty from February 1956 to February 1958. Unfortunately the service member passed away in March 2020. The appellant is the service member's surviving child. The VA decision on appeal was issued in August 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2020 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 decision on appeal. 38 C.F.R. § 20.301. With respect to the current appeal, the appellant filed an initial request for a Government-furnished headstone or grave marker that was received by VA on May 22, 2020. See April 2020 VA Form 40-1330. Upon request, VA will furnish a Government 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. § 38.630. Any person classified as a "veteran" is eligible for burial in a national cemetery. 38 U.S.C. § 2402; 38 C.F.R. § 38.620(a). 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. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). In this case, the agency of original jurisdiction (AOJ) denied the appellant's request for a Government-furnished headstone or marker on the grounds that the "veteran status" element of the claim was not established. See August 2020 VA decision; see also undated VA Administrative Decision. The AOJ determined that the service member was discharged by "one of the statutory or regulatory bars to VA benefits under 38 C.F.R. § 3.12(c) or (d)." A May 2020 Verification of Military Service from the National Personnel Records Center (NPRC) notes that no service records are available for the service member due to fire. Through alternate record sources, the NPRC was able to determine that the service member entered active duty on February 15, 1956, and was separated from active duty on February 12, 1958 with an undesirable discharge. See February 1958 Special Orders; see also Camarena v. Brown, 6 Vet. App. 565, 567 (1994), aff'd, 60 F.3d 843 (Fed. Cir. 1995) (a discharge for conduct that was less than honorable included an undesirable discharge). Such evidence indicates that the service member was separated for unfitness pursuant to Army Regulation 635-208. Prior to his death, the appellant submitted a statement indicating that he received an undesirable discharge because he was involved in a physical altercation that was a result of defending himself against an assault by a fellow soldier. See September 2016 VA Form 21-4138. In this particular case, there is no evidence to contradict the service member's statement concerning the facts and circumstances related to the reason for his undesirable discharge. See also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (finding that the Board had a heightened duty to "consider the applicability of the benefit of the doubt"). In consideration of the service member's description of the facts and circumstances resulting in his undesirable discharge, the Board notes that a discharge because of an offense involving moral turpitude is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d)(3). Although offenses involving moral turpitude includes, generally, conviction of a felony, the term "offense" suggests a wider range of behaviors. While moral turpitude is not defined in 38 C.F.R. § 3.12(d)(3), VA's Office of General Counsel issued an opinion that defines "moral turpitude" as "a willful act committed without justification or legal excuse which gravely violates accepted moral standards and... would be expected to cause harm or loss to person or property." VAOPGC 6-87 (July 27, 1987). The opinion states that a moral turpitude offense may include conduct that does not result in prosecution or conviction. As discussed above, in order to constitute moral turpitude, the act of misconduct must be "willful." Under 38 C.F.R. § 3.1(n), the term "willful misconduct" means 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. Id. Given the limited information available and the Board's heightened duty to consider the applicability of the benefit of the doubt, the Board finds that the description of the service member's offense resulting in his undesirable discharge does not demonstrate a "willful" act, and there is no evidence of record to the contrary. Here, the service member indicated that he was involved in a physical altercation that was a result of defending himself against an assault by a fellow soldier. Although admittedly, all of the circumstances of this altercation have not been documented or expressed, such evidence does not necessarily demonstrate deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. As such, on the limited evidence before it, the Board finds that the bar to VA benefits under 38 C.F.R. § 3.12(d)(3) is not applicable. Additionally, the Board finds that no other statutory or regulatory bar to VA benefits is applicable based on the evidence of record and the service member's description of the facts and circumstances resulting in his undesirable discharge. Indeed, through no fault of the service member, there is no information regarding the events or circumstances leading up to the service member's discharge for the Board to review. Because of this, there is a heighted duty to consider the applicability of the benefit of the doubt doctrine, and the Board applies it in this case. (Continued on Next Page) In light of the above, the Board finds that the "veteran status" element of the appellant's request for a Government-furnished headstone or marker is established. The evidence of record establishes that the additional requirements for a Government-furnished headstone are met. In this case, the service member (1) died on or after November 1, 1990; (2) is buried in a private cemetery; and (3), based on the favorable decision herein, is eligible for burial in a national cemetery. Accordingly, the appellant's claim for entitlement to a Government-furnished headstone or marker is granted. V. Chiappetta 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.