Citation Nr: 21010435 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-41 885 DATE: February 24, 2021 ORDER The character of the appellant’s discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. FINDING OF FACT 1. The character of the appellant’s service was under dishonorable conditions as a result of offenses involving moral turpitude. 2. The appellant was not insane, as defined by VA regulations, at the time of the misconduct resulting in his discharge under other than honorable conditions. CONCLUSION OF LAW The character of the appellant’s discharge from service is a bar to VA compensation benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from May 1971 to December 1973, and was discharged with a characterization of service under other than honorable conditions. A Board hearing was held before the undersigned Veterans Law Judge in April 2018, and a transcript of the hearing is of record. In November 2018, the Board remanded the issue as to whether the character of the appellant’s discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits to obtain the appellant’s entire service records. The Board finds the agency of original jurisdiction (AOJ) has complied with the Board’s remand directives, and the evidence of record is sufficient to proceed with a decision on the merits of the appeal. REFERRED ISSUE In the November 2018 Board decision, the issue as to whether the appellant is entitled to VA healthcare benefits under 38 U.S.C. Chapter 17 was referred to the AOJ for adjudication in the first instance. To date, it does not appear the AOJ has issued the appellant a decision on the referred issue of entitlement to VA healthcare benefits under 38 U.S.C. Chapter 17. See September 2020 VA Form 21-6789. Therefore, this issue is again referred to the AOJ for appropriate action. Character of Discharge As noted above, the appellant was discharged in December 1973 with a characterization of service under other than honorable conditions. In this case, although the appellant has indicated he no longer seeks entitlement to VA compensation benefits, the appellant’s representative indicated the appellant continues to assert that the character of his discharge from service was under conditions other than dishonorable. See September 2020 VA Form 21-4138; see also December 2020 Appellate Brief. A person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. The Board observes that the AOJ determined the appellant was barred from receiving VA compensation benefits on the grounds that his discharge under other than honorable conditions was a result of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). The Board finds the particular facts of this case do not demonstrate the appellant was separated from service due to willful and persistent misconduct. Nevertheless, as discussed further below, the Board finds the appellant is barred from receiving VA compensation benefits on the grounds that the offense leading to his discharge involved moral turpitude. A discharge under other than honorable conditions based upon an offense involving moral turpitude is considered to have been issued under dishonorable conditions. 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. Id. In reviewing service records, there are no documented disciplinary infractions during the first two years of the appellant’s enlistment. The appellant received two promotions and a letter of commendation during this timeframe. In August 1973, the appellant was arrested for possible trafficking in marijuana in hashish form. See August 1973 Certificate from P.V.S. A search of the appellant’s room revealed additional hidden hashish. In August 1973, the appellant was charged with possession of a large amount of hashish, and the offense of sale of hashish. The appellant’s commanding officer recommended trial by special court martial for the charged offenses, also noting that the character of the appellant’s military service prior to the charged offenses had been good. See August 1973 Court Martial Charges. Service treatment records document that the appellant underwent a mental status evaluation in November 1973. See November 1973 Report of Mental Status Evaluation. The provider reported the appellant’s behavior was normal, and that he was fully alert and oriented. The provider reported the appellant’s mood was level, thinking process was clear, and thought content was normal. The provider reported there was no impression of significant mental illness, and that the appellant met service retention standards. In November 1973, the appellant requested discharge for the good of the service. The appellant’s request for discharge for the good of the service was favorably endorsed by his chain of command. The appellant’s commander noted that the appellant had no history of being a disciplinary problem. An endorsement by the staff judge advocate noted there were no grounds for the belief that the appellant was mentally defective, deranged, or abnormal at the time of his misconduct. In November 1973, the Department of the Army approved the appellant’s request and directed the appellant be discharged in the grade of E-1 with an undesirable discharge. In October 1975, the Army Discharge Review Board (ARDB) denied the appellant’s request for an upgrade of his discharge under other than honorable conditions. See also April 1975 DD Form 149. The appellant reported that he believed his discharge under other than honorable conditions was in error or unjust because “all the discharges due to drugs were changed to honorable.” The appellant applied again for a discharge upgrade in December 1978, noting that he had no disciplinary infractions during the first two years of service and indicating that he was denied due process related to the charges and separation proceedings. In May 1979, the ARDB denied the appellant’s request for discharge upgrade, finding that his offenses in service were serious enough to have warranted the pending court martial action, and serious enough to have been a basis for characterizing his service as having been undesirable. In April 1988, the ADRB denied the appellant’s request for reconsideration. In June 1995, the Army Board for Correction of Military Records (ABCMR) denied the appellant’s petition for correction of his military records on the grounds that his application was not submitted within the time required. In April 2011, the appellant requested ABCMR reconsider his petition for a discharge upgrade. The appellant requested that consideration be given to the emotional stress during the period of time the appellant served, and the reconciliation efforts afforded to Vietnam-era veterans. The appellant also reported that he had lived an exemplary life. The ABCMR denied the appellant’s request for reconsideration in July 2011. During the April 2018 Board hearing, the appellant reported that he began using drugs, hashish, after he had been stationed overseas for about one year. The appellant reported the use of drugs in service caused feelings of depression and confusion, and resulted in a divorce from his spouse. The appellant indicated his mind was not clear at the time of his misconduct in service. The appellant reported he did not seek medical treatment in service. The appellant reported that he requested a discharge to avoid trial by court martial and potential time in jail. A witness, I.R., reported that he had known the appellant prior to service. I.R. reported the appellant had changed a lot when he returned from service. I.R. reported he did not know that the appellant was on drugs at that time. The appellant indicated he made some bad decisions due to disease. The appellant reported that he appreciated the time he spent in the Army, and would like to be known as a veteran of the U.S. Army. The Board has considered the entire evidence of record and finds that the appellant’s discharge was under dishonorable conditions for VA purposes, and that he is barred from receiving VA compensation benefits. In this regard, the Board finds the offenses for which the appellant was discharged under other than honorable conditions involved moral turpitude. 38 C.F.R. § 3.12(d)(3). As noted above, an offense, including conduct that does not result in prosecution or conviction, involving moral turpitude is defined as a “willful act committed without justification or legal excuse which gravely violates accepted moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property.” VAOPGC 6-87 (July 27, 1987). Here, the Board finds the appellant’s possession of hashish, and in particular, the more serious offense of the sale of hashish was a willful act committed without justification or legal excuse. Additionally, the Board finds the appellant’s sale of hashish gravely violates accepted moral standards and could reasonably be expected to cause harm to other persons. While the character of the appellant’s military service prior to the charged offenses had been without incident, as noted in the May 1979 ARDB denial of the appellant’s request for a discharge upgrade, the appellant’s offenses resulting in his discharge were serious enough to have warranted the pending court martial action, and serious enough to have been a basis for characterizing his service as having been undesirable. The Board has considered whether the appellant was insane at the time he committed the offenses that led to his discharge, which would remove the bar to receipt of VA compensation benefits. See 38 C.F.R. § 3.12(b); see also 38 C.F.R. § 3.354. Although, the appellant indicated during the April 2018 Board hearing that he made some bad decisions in service “due to disease” and that his “mind was not clear,” the context of such comments was in relation to his reported use of drugs in service. The Board adds that VA’s General Counsel has held that behavior which is generally attributable to a particular substance-abuse disorder does not exemplify the severe deviation from the social norm or gross nature of conduct which is generally considered to fall within the scope of the term insanity, and therefore, does not constitute insane behavior under 38 C.F.R. § 3.354(a). See VAOPGCPREC 20-97. In this case, the Board places weight on the November 1973 mental status evaluation in which the provider reported there was no impression of significant mental illness. Additionally, the appellant denied any psychiatric symptoms on his November 1973 Report of Medical History. The appellant has not claimed to be insane at the time of his misconduct, and the Board finds the evidence of record does not otherwise suggest that he was insane at the time of committing the offenses that resulted in his discharge under other than honorable conditions. The Board recognizes that the December 2020 Appellate Brief notes that block 25 of the appellant’s DD Form 214 indicates the appellant completed “education and training” on the “benefits of [an] honorable discharge.” The Board finds such evidence is not an indication that the character of the appellant’s discharge was under other than dishonorable conditions. Rather, the Board finds it simply demonstrates that the appellant receiving education and training on the benefits of an honorable discharge. Notably, the appellant signed a letter to the effect that he understood the implications of being discharged under other than honorable conditions, to include being “deprived of many or all benefits administered by the Veterans Administration.” See November 1973 Request for Discharge for the Good of the Service. Finally, the Board recognizes that the appellant has submitted evidence demonstrating personal and professional achievements following his separation from service. Although the Board finds the appellant’s post-service achievements to be commendable, such consideration does not permit the awarding of VA compensation benefits. In light of the above, the Board finds that the appellant’s discharge was under dishonorable conditions due to offenses involving moral turpitude, and that he is barred from receiving VA compensation benefits. 38 C.F.R. § 3.12(d)(3). M. Tenner 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.