Citation Nr: 21007401 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-30 649 DATE: February 9, 2021 ORDER The character of the Appellant’s discharge from active military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a); the appeal is denied. FINDINGS OF FACT 1. The Appellant had service from September 9, 1960 to May 7, 1963 and received an Under Other Than Honorable (OTH) conditions discharge for misconduct. 2. 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. 3. The evidence of record does not suggest, and neither the Appellant nor representative has alleged, that the Appellant was insane at the time of the offenses leading to discharge from service. CONCLUSION OF LAW The character of the Appellant’s discharge from service is a bar to his receipt of VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). 38 U.S.C. §§ 101(2), 5103, 5103A, 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.159, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant had active service from September 9, 1960 to May 7, 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 administrative decision by the VA Regional Office (RO), which denied entitlement to VA benefit payments on the basis that Appellant’s character of discharge for his period of service from September 1960 to May 1963 was found to be dishonorable for VA purposes due to evidence of willful and persistent misconduct and the issuance of an OTH Discharge. 1. Whether the Appellant’s discharge from service from September 9, 1960 to May 7, 1963 constitutes a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). The Appellant is seeking entitlement to VA compensation benefits. Specifically, he asserts that the character of discharge was too severe for the misconduct and he deserves to be recognized as a Veteran. He also asserts several arguments against the findings of the in-service judicial proceedings against him. 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). 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 Appellant was given an OTH discharge due to misconduct. The RO determined that his service was dishonorable for VA purposes due to willful and persistent misconduct. There are two possible exceptions to the Appellant being barred from receiving VA compensation benefits for service from September 9, 1960 to May 7, 1963: if the Appellant’s conduct was minor and offset by service which was otherwise honest, faithful, and meritorious; or if the Appellant 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 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 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535 (2000). The insanity need only exist at the time of the commission of the offense leading to the person’s discharge, and 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 establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. 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. That determination is not warranted when the record does not show that a service member had insanity due to disease or that the service member did not know or understand the nature or consequences of the acts, or that what the service member was doing was wrong. Zang v. Brown, 8 Vet. App. 246 (1995). Significantly, the burden is on the appellant to submit competent medical evidence that the service member was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (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 did 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 that person’s 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). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the service member was insane. 38 U.S.C. § 530(b). 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 (1995). 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). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). 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 Air Force on September 9, 1960 for a period of four years of active duty. The service separation form shows that the Appellant was discharged on May 7, 1963, with an OTH discharge due to several incidents of misconduct and for frequent involvement of a discreditable nature with civil and military authorities. The Appellant’s service separation form includes a separation code of 488, which is the discharge code for unsuitability. Review of the military personnel records shows instances of misconduct: In September 1960, the Appellant was convicted at Summary Court Martial under the UCMJ for theft of currency from another service-member’s barracks room, in violation of Article 121, UCMJ. He was sentenced to restriction to his air base for 60 days, forfeiture of $55 per month for one month, and reduction to the lowest enlisted rank. In May 1961, the Appellant purchased a .22 caliber rifle from another airman, which he knew was government property. The airman he bought it from informed the Appellant that he had stolen it from a survival kit. The Appellant’s separation documents note that “he was not prosecuted for this offense because supply could not find a record of the serial number to establish that it was government property.” In a statement to the Air Force Office of Special Investigations, he did admit that “I do not know when or where (the other airman) obtained the rifle. He has given no indication other than stating that the rifle was from a survival kit, that it was government property.” In September 1962 and thereafter, the Appellant was counseled by his First Sergeant on his misconduct. The command provided resources to the Appellant and advised him that further misconduct could lead to adverse action. The First Sergeant detailed the counseling sessions as follows: An airman from another squadron complained that (the Appellant) had a radio of his and owed him ten dollars He further stated that he had tried for almost two months to collect and have his property returned. I discussed this matter with (the Appellant) and counseled. him at great length regarding his responsibilities and the necessity of him to conform to established standards of behavior. At this time, he assured me that the matter would be taken care of. On 15 September 1962. Two months and four counseling sessions later he finally paid the ten dollars. After another six weeks and two more sessions he finally returned the radio. At each counseling he would indicate that he intended to do the right thing, but some adverse circumstance would always prevent it. I have since found that this is his standard operating procedure. He continually does things which he knows to be wrong and makes excuses until forced by the threat of drastic action to make restitution. On one occasion I received several phone calls from a local jewelry store (Toppers, in Merced, California) regarding recovery of a set of wedding and engagement rings which (the Appellant) had purchased and would not pay for. (The Appellant) stated that the rings were in possession of his ex-girlfriend in Fresno, California. Correspondence with her indicated that she had returned the rings to (the Appellant). In the meantime, the store called and stated that the rings had been found in a local pawn shop and recovered. I have received phone calls from a clothing store and a service station in Merced and in both cases, they have indicated that they had given up hope of collecting. They would not write letters since “they hate to get a young man in trouble over such a small sum.” Quite recently he had extensive repair work done on his automobile and we received numerous phone calls from the mechanic who had been able to collect nothing and had made the mistake of letting (the Appellant) take the auto on the promise that he would pay. To my knowledge he has yet to collect anything. A short time ago I received a letter from (the Appellant’s) father requesting assistance in getting (the Appellant) to make car payment since his father had signed for the note.,. He stated that he was being forced to make the payments which he could not afford. On each occasion of a call I have talked to (the Appellant) and he always had some excuse and promised action. The only action I ever knew of him taking was to make an allotment to his father for the car payment. His attitude is get all you can get from anyone who is foolish enough to trust you, I further feel that he borrows radios and other items of value with the sole purpose of pawning them to obtain cash which he couldn’t borrow. In January 1963, the Appellant made an official statement to the Air Police that a toolbox had been stolen while he was on approved leave, and, at the time he made this statement, he knew the statement was false. He later admitted that he used the toolbox as collateral for a loan. The toolbox was not recovered. In April 1963, the Appellant convicted at Summary Court Martial under the UCMJ for wrongful appropriation of government property, in violation of Article 121, UCMJ, and disobeying a lawful order, in violation of Article 91, UCMJ. He was sentenced to restriction to his air base for 60 days, forfeiture of $35 per month for one month, and reduction to the lowest enlisted rank. In April 1963, the command initiated administrative separation actions against the Appellant for frequent involvement of a discreditable nature with civil or military authorities. After consulting with counsel, the Appellant waived his rights to an administrative separation board, thereby accepting no less than an undesirable discharge. In May 1963, the Appellant’s General Court Martial Convening Authority approved the administrative separation and ordered that the Appellant be discharged with an undesirable characterization of service, effective May 7, 1963. There is no evidence that the Appellant has sought a discharge upgrade from the Department of the Air Force Board of Correction of Military Records (AFBCMR). Analysis 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 failing to pay just debts and committing larceny from the government and other servicemembers. 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, the Appellant has asserted that his misconduct was minor, and for one of the offenses he was not convicted, which therefore should not be considered regarding whether his conduct was a bar to VA benefits. The Appellant did not specify how these contentions, if taken as true, would somehow support a finding that his actions were not willful or persistent. 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 two-and-a-half-year 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 failing to pay just debts, committing larceny from the government and other servicemembers, and providing false statements to law enforcement, 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. The only defense to this regulatory bar to benefits is if the Appellant was insane at the time of committing the offenses causing discharge or release. However, such a defense to this bar has not been raised by the Appellant, his representative, or the record. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Appellant has not argued that he was insane during service, and the Board otherwise finds the evidence does not support a finding that the Appellant was insane when he engaged in the pattern of consistent misconduct that resulted in his discharge from service. He did not complain of any psychiatric symptoms at the time of his separation from service, and he was found to be sane at the time of his separation examination. Thus, further consideration in this regard is not necessary. The Board has considered if there are any other reasons to set aside the regulatory bar to VA benefits, including because the Appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). There is no indication that the Appellant received an upgrade to the character of his discharge by a discharge review board. Additionally, insanity has not been shown by the evidence of record. Neither the Appellant nor his representative have asserted such on the record, nor have they provided any evidence related to the Appellant’s mental health. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant’s character of discharge or evidence showing the Appellant was insane at the time of his offense. Based on the foregoing, the Board finds that the Appellant’s discharge from service on May 7, 1963, with an OTH discharge, was issued because of frequent involvement of a discreditable nature with civil or military authorities, to include Summary Court Martial convictions for property crimes, larceny, providing false statements to law enforcement, and failing to pay just debts spanning from September 1960 to January 1963, which constitutes willful and persistent misconduct. Therefore, character of discharge from the period of service from September 9, 1960 to May 7, 1963 is a bar to VA compensation benefits, as the OTH discharge for that period of service 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 minor, nor offset by otherwise meritorious service. The Appellant contends that some of the events were mischaracterized at the time, but the Board finds that the accounts provided by his superiors, father and former fiancée are more consistent with the record and more credible than the current recollections by the Appellant. Accordingly, the character of the Appellant’s discharge is a bar to his receipt of VA benefits. T. MAINELLI 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.