Citation Nr: 21006328 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-38 387A DATE: February 3, 2021 ORDER The character of the Appellant’s discharge from military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, other than health care benefits under Chapter 17, Title U.S.C. and 38 C.F.R. § 3.360(a); the appeal is denied. FINDINGS OF FACT 1. During his period of service, the Appellant was subjected to three courts martial (one Summary Court Martial and two Special Courts Martial) for offenses including: unauthorized absences, communicating threats, disobeying and being disrespectful towards superiors, and assault. 2. The Appellant was subjected to an administrative separation action for his willful and persistent misconduct. He waived his rights to contest the separation to a board of officers. 3. The Appellant was discharged on September 27, 1967 with an under Conditions Other Than Honorable (OTH) discharge due to willful and persistent misconduct. 4. During his period of service, the Appellant’s in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 5. The Appellant’s discharge was upgraded to a general, under honorable conditions, discharge in May 1976 by the Department of Defense (DOD) special discharge review program, which was denied by the Army Board of Correction of Military Records upon re-review in June 2012. 6. There has been no removal of any bar to VA benefits via an upgrade to the Appellant’s character of discharge or evidence showing that the Appellant was insane at the time of his offenses. CONCLUSION OF LAW The character of the Appellant’s service, from March 16, 1965 to September 27, 1967, is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from March 1965 to September 1967. His initial character of discharge under other than honorable conditions was upgraded by a Department of Defense Special Discharge Review Board (SDRB) in June 1978 to under honorable conditions. But see 38 C.F.R. § 3.12(h)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2018, the Board remanded the appeal to the RO for further development. Specifically, the Board directed the RO to obtain a psychiatric opinion on the issue of insanity. Whether the character of the Appellant’s discharge from military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, other than health care benefits under Chapter 17, Title U.S.C. and 38 C.F.R. § 3.360(a). The Appellant seeks recognition as a Veteran for VA purposes. The Appellant contends that, despite his character of discharge, he should be entitled to VA benefits. He also asserts that he had posttraumatic stress disorder (PTSD) in service which was responsible for his actions leading to his discharge. Relevant Law 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 (1997). A veteran is 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 discharge or release from a period of active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension benefits. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12(a). 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). When a servicemember is given an other than honorable discharge by the service department, VA decides whether the character of such discharge is dishonorable for VA purposes. Special Discharge Review Benefits are barred where the former service member was discharged or released, under one of the conditions listed under 38 U.S.C. § 5303 (a), 38 C.F.R. § 3.12 (c), or 38 C.F.R. § 3.12(d). 38 C.F.R. § 3.12(d)(4) indicates willful and persistent misconduct is a condition of discharge which bars the former service member from receiving VA benefits. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of 38 C.F.R. § 3.12, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term “established basic eligibility to receive Department of Veterans Affairs benefits” means either a VA determination that an under other than honorable conditions discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. Unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards (and such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge), an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section: (1) The President’s directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or (2) The Department of Defense’s special discharge review program effective April 5, 1977; or (3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. 38 C.F.R. § 3.12(h). Character of Discharge 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). 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 the period of service. 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars and (2) regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a 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, with certain exceptions. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, which includes, generally, conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, offenses that would interfere with the Appellant’s military duties, and preclude their performance are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1991). The Board finds that the Appellant’s service does not meet any of the statutory bars listed under 38 C.F.R. § 3.12(c)(1)-(6) such that the reason for his discharge is a bar to the payment of benefits. Specifically, the Appellant was not a conscientious objector, did not undergo a general court-martial, did not resign as an officer for the good of the service, was not a deserter, was not an alien during a period of hostilities, and did not commit absence without official leave (AWOL) for a continuous period of at least 180 days. The Board will next consider the regulatory bars listed in 38 C.F.R. § 3.12(d). A discharge or release under the conditions listed under 38 C.F.R. § 3.12(d) are considered to have been issued under dishonorable conditions, and thus are a bar to the receipt of benefits. The provisions of 38 C.F.R. § 3.12(d) state that 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. 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 because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under any of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory 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 specifically provided by 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). That is, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Thus, “insanity” is a defense to all statutory and regulatory bars, while “compelling circumstances” is only a defense to the statutory bar involving an AWOL period of at least 180 days. There is one possible exception in this matter to the Veteran being barred from receiving VA benefits for his period of service: if the Veteran is shown to have been “insane” at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). However, mental illness is not identical to “insanity.” Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person’s discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the Appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that “a determination of whether a person is insane is, in effect, a determination of whether the person’s actions were intentional, and, thus, the result of willful misconduct.” Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect an Appellant suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the Appellant to submit competent medical evidence that the Appellant was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, 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 or her normal method of behavior could be best 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 (May 22, 1997). 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 Appellant. Holmes v. Brown, 10 Ve.t App. 38, 40 (1997). The Board has reviewed all the evidence in the Appellant’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). Factual Background In this case, the Appellant enlisted in the United States Army on March 16, 1965. He served in the Republic of Vietnam. The service separation form shows that the Appellant was discharged on September 27, 1967, due to “unfitness” and misconduct. The Appellant’s service separation form includes a separation code of 28B, which is the discharge code for unfitness, and frequent involvement in incidents of a discreditable nature with civil or military authorities. He was issued a DD form 258A, an Undesirable Discharge Certificate. The Appellant’s military personnel record indicates numerous incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In December 1966, the Appellant was convicted at Summary Court Martial for two violations of Article 86, UCMJ, for failing to be at his appointed place of duty, one violation of Article 90, UCMJ, for failing to obey a lawful order, and one violation of Article 128, UCMJ, for assaulting a soldier in the execution of his duties. He was found guilty and sentenced to reduction to the lowest enlisted rank and forfeiture of $60.00 pay per month for one month. In February 1967, the Appellant was convicted at Special Court Martial for one violation of Article 86, UCMJ, for being absent without authorization, one violation of Article 90, UCMJ, for failing to obey a lawful order, one violation of Article 128, UCMJ, for assaulting another soldier, and one violation of Article 134, UCMJ, for communicating a threat to another soldier. He was found guilty and was sentenced to confinement at hard labor for six months and forfeiture of $60.00 pay per month for six months. While in confinement as a result of the February 1967 Special Court Martial, the Appellant had the following misconduct: Eight offenses of failing to obey lawful orders, one offense of using profanity to a guard, and one offense of disrespect to an officer. In June 1967, the Appellant was convicted at Special Court Martial for one violation of Article 128, UCMJ, for assaulting another soldier In July 1967, the Appellant’s immediate commander recommended that he be separated for unfitness for military service. The Appellant waived his rights to appear before an administrative separation board. The Appellant’s executive officer stated that It is my opinion, based on this contact with (the Appellant), that he has a very defiant nature, and tends to rebel against supervision by superiors. Furthermore, it did not seem that (the Appellant) had benefitted from the punishment or rehabilitation imposed on him at the Stockade. The Company Commander stated that During counseling sessions, (the Appellant) is disrespectful and hostile. His past record and attitude toward the military proves that the stockade has done little in rehabilitating him. In July 1967, the Appellant’s Battalion and Brigade Commanders endorsed the proposed separation action. The Commanding General reviewed the Appellant’s military history, to include his history of misconduct, and approved the separation and directed that the Appellant be issued an undesirable discharge. The Appellant separated from service on September 27, 1967. In May 1976, the Department of Defense (DOD) Special Review Program upgraded the Appellant’s discharge to “Under honorable conditions.” A second June 2012 review of the Appellant’s discharge by the Army Board of Correction of Military Records (ABCMR) determined that the Appellant’s characterization of service was appropriate and that an upgrade on an individual basis was not warranted. There is no evidence that the Appellant has filed another application with the United States Army Discharge Review (DRB) or Army Board of Corrections of Military Records (ABCMR). Analysis Discharge Upgrade under the Department of Defense’s special discharge review program In May 1976, the Department of Defense (DOD) Special Review Program upgraded the Appellant's discharge to “Under honorable conditions.” A second review of the Appellant’s discharge made a June 2012 determination that the Appellant would not qualify for upgrading under the new, uniform standards for discharge review. The Appellant’s character of discharge received under the DOD Special Discharge Review Program remained in place, but the Appellant was informed that the Appellant could seek reconsideration of the Board decision. There is no evidence that the Appellant has sought reconsideration. While the Appellant’s discharge was upgraded to general by the DOD special discharge review program in May 1976, Public Law 95-126 required that his discharge receive a second review by the Discharge Review Board. Thus, a re-review determined that the Appellant did not qualify for an upgrade under the new uniform standards for discharge review. Therefore, the upgraded discharge issued under the DOD special discharge review program does not remove the bar to benefits as a matter of law and the Board is unable to honor the upgrade for VA benefits purposes. See 38 C.F.R. § 3.12(h). In this regard, the Board notes that any disagreement that a claimant may have with his discharge classification must be raised with the Army Board for Correction of Military Records. See Harvey v. Brown, 6 Vet. App. at 424 (1994). Because the Appellant’s character of discharge was upgraded under DOD’s special discharge reviews program, the regulatory bar to benefits under 38 C.F.R. § 3.12(d)(4) for willful and persistent misconduct is not removed. Additionally, there has been no discharge upgrade under any other authority. Thus, the Board must now consider whether there are defenses to the regulatory bar. In this case, the question at hand is whether the Appellant had engaged in willful and persistent misconduct during service. Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the Appellant’s discharge occurred as the result of willful and persistent misconduct. The Appellant’s command attempted numerous rehabilitative efforts to assist the Appellant in dealing with his misconduct, to include counseling. The rehabilitative efforts failed and the Appellant, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct, to include misconduct while in confinement due to Special Court Martial conviction for prior acts of misconduct. The Appellant’s repeated violations of the UCMJ is consistent with a finding that the Appellant’s misconduct was both willful and persistent. At no time has he expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against him. He also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The Appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his service duties and resulted in his separation from service for misconduct. The Appellant has not argued that his in-service misconduct was neither willful nor persistent. The definition of willful misconduct is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n). Rather, in a February 2015 correspondence, the Appellant asserted that his misconduct should be considered minor and that his service should be considered otherwise honest, faithful and meritorious. Despite the Appellant’s contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The Appellant’s misconduct occurred over a six month period, and he continued to engage in misconduct despite being disciplined on several occasions. The Board finds that the Appellant’s conduct, which shows the Appellant assaulting and threatening other soldiers, disobeying superiors, being disrespectful towards superiors, and numerous unauthorized absences, occurred despite the illegality of such behavior. The Board also finds, as did the Appellant’s chain of command, that the Appellant's in-service misconduct was not minor, but it instead fundamentally interfered with his service duties. Therefore, the Appellant’s discharge is dishonorable. 38 C.F.R. § 3.12(d)(4). However, the Board will address the potential defense to this statutory bar on the basis of insanity. See 38 C.F.R. § 3.12(b). The Board notes that 38 C.F.R. § 3.12(b) provides, essentially, that if an Appellant was insane at the time of committing an offense causing discharge under that regulation (as relevant here, based on willful and persistent misconduct), this would not be a bar to VA benefits. Insanity has a specific definition for VA purposes, as outlined in 38 C.F.R. § 3.354. This definition provides that an insane person is one who 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. See also Zang v. Brown, 8 Vet. App. 246 (1995) (holding that the phrase “due to disease” applies to all three circumstances in 38 C.F.R. § 3.354 (a)). The Appellant has not presented any argument that any of the three circumstances in the regulation were applicable to the Appellant at the time of his misconduct and the Board finds that the evidence does not otherwise indicate that any of the three circumstances are applicable. The remaining evidence of record does not suggest that the Appellant was insane as defined by VA regulation. As noted above, a finding that a discharge was dishonorable is a bar to the payment of benefits unless it is found that the person in question was insane at the time of committing the offense. See 38 C.F.R. § 3.12(b). However, the evidence of record does not establish that the Appellant was insane at the time of his in-service offenses. After reviewing the evidence, the Board finds that the evidence does not demonstrate that the Appellant was considered “insane” as defined under 38 C.F.R. § 3.354. The Appellant’s STRs do not contain any medical records which would support a finding of insanity. During a September 1967 Report of Mental Status Evaluation, the examining psychiatrist noted emotional instability but did not make any findings which would indicate insanity and cleared the Appellant for administrative separation. In September 2019, the Appellant was afforded a VA mental conditions examination on the issue of sanity. The examiner diagnosed the Appellant with Unspecified Depressive Disorder and Unspecified Trauma and Stressor-Related Disorder. On the issue of sanity at the time of the Appellant’s misconduct, the examiner opined that the Appellant was sane at the time of his misconduct. Specifically, the examiner opined that This examiner could find no evidence that the (Appellant) exhibited a prolonged deviation from his normal method of behavior as he reported the experiences he had in the military, particularly related to interacting with peers and other soldiers, was more indicative of how he had interacted with people he had been living with while traveling the east coast as a migrant worker. This examiner could locate no evidence in the (Appellant’s) medical records during the service to suggest that he was insane (based on the definition above). As such, it is LESS LIKELY THAN NOT that the veteran was “insane” during his military service, though he did demonstrate poor conduct which he reports was, in large part, influenced by his then, quite active, alcohol and cannabis use disorders. In this case, the Board affords this opinion significant probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the September 2019 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on an in-person examination of the Appellant, as well as a review of the Appellant’s in-service history, to include his diagnosed psychiatric conditions. The examiner provides a thorough rationale with supporting evidence for his opinion as to why the Appellant’s misconduct was not due to insanity. Furthermore, there is no competing medical opinion of record. The Board thus finds that the September 2019 opinion is dispositive of the issue of sanity. The Appellant himself is not competent to attribute his conduct in service as the product of insanity. Considering these records, the Board finds that there is no evidence of “a more or less prolonged deviation from his normal method of behavior,” “interfer[ence] with the peace of society,” or being “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. Therefore, the Board finds there is no probative evidence of insanity at the time the offenses in question were committed. Based on the foregoing, the Board finds that the Appellant’s discharge from service on September 27, 1967, was issued because of three court martial convictions for misconduct, which constitutes willful and persistent misconduct. Therefore, character of discharge from the Appellant’s period of service is a bar to VA compensation benefits, as the discharge was the result of willful and persistent misconduct under 38 C.F.R. § 3.12(d), 3.13, 3.354. The Board finds that the preponderance of the evidence supports those findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In sum, the foregoing evidence shows that the Appellant committed offenses which constitute willful and persistent misconduct which was not offset by otherwise meritorious service. Accordingly, the character of the Appellant’s discharge is a bar to his receipt of VA benefits. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.