Citation Nr: 21006114 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-45 652 DATE: February 3, 2021 ORDER The character of the appellant's discharge from service is not a bar to receipt of Department of Veterans Affairs (VA) compensation benefits. FINDINGS OF FACT 1. The appellant was discharged from active duty service in February 1955 under conditions other than honorable due to admission of in-service homosexual conduct. 2. None of the statutory or regulatory bars to VA compensation benefits listed in 38 C.F.R. § 3.12 apply to the nature of the appellant’s discharge. CONCLUSION OF LAW The character of the appellant’s military service discharge is not a bar to VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty service with the United States Navy from March 1953 to February 1955. He received a discharge under other than honorable conditions. This matter is on appeal from an August 2018 Regional Office (RO) decision. In his September 2018 Substantive Appeal, the appellant requested a hearing before a Veterans Law Judge. In January 2021, he withdrew his request for a hearing due to the COVID-19 pandemic, his overall health, and difficulty with virtual teleconference technology. 1. The character of the appellant's discharge from service is not a bar to receipt of Department of Veterans Affairs (VA) compensation benefits For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12 (a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, 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 AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12 (c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12 (d). Examples of aggravated circumstances or other facts affecting the performance of duty include child molestation; homosexual prostitution; homosexual acts or conduct accompanied by assault or coercion; and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status. In the present case, the appellant was discharged under other than honorable conditions following an investigation into homosexual activities. The investigation report revealed instances of conduct with two individuals, and details of these encounters were provided. At the time, the appellant reportedly made voluntary admissions of guilt with respect to these instances, but the appellant has subsequently indicated that he was forced into this confession. In January 2017, the Board for Correction of Naval Records (BCNR) granted partial relief in response to the appellant’s application to upgrade the character of his discharge. While retaining the other than honorable discharge itself, the BCNR altered the designation for discharge to “secretarial authority”. The BCNR believed that further relief was not warranted as, apparently, any sexual conduct aboard a Naval vessel was considered an “aggravating circumstance”. In August 2018, the RO issued an administrative decision that again denied entitlement to compensation benefits due to the documented in-service homosexual conduct. The RO, however, noted that “the evidence of record shows these acts did not involve aggravating circumstances or other factors affecting the performance of duty”. After a thorough review of the evidence of record, the Board finds that the provisions of 38 C.F.R. § 3.12 do not apply to bar the appellant’s entitlement to VA compensation benefits. Initially, the Board notes that the appellant did not receive a bad conduct discharge, nor do any of the statutory bars to benefits apply in the present case. Instead, 38 C.F.R. § 3.12(d)(5) is implicated due to the nature of the appellant’s discharge; however, as the RO determined, and despite the BCNR’s statement, the evidence of record fails to reveal any aggravating circumstances or other factors affecting the performance of the appellant’s duty. The in-service acts did not involve prostitution, coercion, assault, or misuse of a superior rank on the part of the appellant. Instead, the other parties involved with the appellant were both his superiors, and they appeared, based on the statements of record, to initiate these encounters when the appellant was under the influence. The Board notes that the record is inconsistent with respect to whether the appellant was facing trial by special court-martial or general court-martial, the latter of which could bar compensation benefits under 38 C.F.R. § 3.12(d)(1). Based upon a review of the record, however, the majority of the documents associated with these charges reflect pending trial by special court-martial, with one record even noting that the appellant was “exonerated of all charges and specifications” in a special court-martial on December 23, 1954. It is unclear why this purported exoneration still resulted in his discharge, but that issue is outside the purview of the Board. Given the multiple references to trial by special court-martial, the Board finds that the appellant was not discharged in lieu of a trial by general court-martial, which would implicate 38 C.F.R. § 3.12(d)(1). In sum, the statutory and regulatory bars in 38 C.F.R. § 3.12 do not apply to the appellant’s other than honorable discharge from military service. Thus, his entitlement to VA compensation benefits is not barred by the character of his discharge. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.