Citation Nr: 21024815 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-36 910 DATE: April 26, 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 The character of the appellant’s discharge from service was under dishonorable conditions as a result of willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant’s discharge from service is a regulatory bar to the receipt of VA compensation benefits. 38 U.S.C. §§ 101; 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 Navy from November 1952 to June 1954. A Board hearing was held in December 2019, and a transcript of the hearing is of record. In a March 2021 letter, VA notified the appellant that the Veterans Law Judge who conducted the December 2019 hearing is no longer available and that his appeal would be assigned to another Veterans Law Judge for decision. In April 2021 correspondence, the appellant declined to appear at another Board hearing, and elected to have the Board consider his case on the evidence of record. The Board recognizes that the Veteran submitted a VA Form 21-22a, Appointment of Individual as Claimant’s Representative, received in April 2021, electing a new representative. However, for appeals in the Legacy system, an appellant has 90 days following the mailing of notice that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. See 38 C.F.R. § 20.1305(a). Following the expiration of this 90-day period, the Board of Veterans’ Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. 38 C.F.R. § 20.1305(b). In this case, the appellant was notified of the transfer of the appeal to the Board in a November 25, 2020 letter. The new VA Form 21-22a was received past the expiration of the 90 days and no good cause was provided for the delay in submitting the request. As such, the Board cannot accept the recently submitted VA Form 21-22a, and the Veteran’s prior representative remains his current representative for the purposes of this specific appeal. In November 2020, the United States Court of Appeals for Veterans Claims (Court) granted the appellant’s and the Secretary’s joint motion for remand (JMR), vacating and remanding the Board’s January 2020 decision that found that new and material evidence had not been received to reopen the claim as to whether the character of the appellant’s discharge from service constitutes a bar to VA compensation benefits. Upon further review, and for the reasons discussed further below, the Board finds that new and material evidence is not required to reopen the appellant’s claim as to whether the character of his discharge from service is a bar to the receipt of VA compensation benefits. Historically, the appellant submitted claims for entitlement to VA compensation benefits that were denied by VA on the grounds that the character of his discharge from service constitutes a bar to the receipt of VA benefits. See September 1954 letter, January 1973 letter, February 1988 letter, and July 1991 letter. The appellant did not file a notice of disagreement or submit any new and material evidence within one year of the above listed VA notification letters, and those decisions became final. The evidence of record at the time of those decisions includes a DD Form 214, and a summary of the appellant’s offenses in service provided by the Chief, Bureau of Naval Personnel with a statement that the character of the appellant’s discharge from service was under other than honorable conditions. See August 1954 VA Form 3102. In connection with the appellant’s November 2015 claim for VA compensation benefits, the agency of original jurisdiction (AOJ) submitted a request for the appellant’s entire service records. See June 2016 Personnel Information Exchange System (PIES) request. The appellant’s complete service personnel records, which contain additional relevant information pertaining to the appellant’s disciplinary infractions in service, were received by VA in July 2016. In contrast to the general rule, which only permits claims to be reopened on the submission of new and material evidence, 38 C.F.R. § 3.156(c) requires VA to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file, whether or not they are “new and material.” See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (2014). Notwithstanding the previous final VA decisions, in light of the relevant service department records that were newly associated with the appellant’s claims file in July 2016, the Board will reconsider the issue as to whether the character of his discharge from service is a bar to the receipt of VA benefits. As the agency of original jurisdiction (AOJ) addressed the Veteran’s claim on its merits in the August 2016 Administrative Decision on appeal, and again in a May 2018 Statement of the Case, there is no prejudice in the Board’s advancing to a merits adjudication at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Character of Discharge In order to qualify for VA compensation benefits, a claimant or the party upon whose service the claimant predicates the claim must be a “veteran.” A veteran is defined as 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 claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. Such discharge is a 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Additionally, a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. In reviewing service records, the appellant entered active duty in November 1952. The appellant completed recruit training and was transferred to his first assignment onboard a ship in March 1953. In April 1953, the appellant received nonjudicial punishment (NJP) for being absent from his duty station for approximately seven hours due to oversleeping. See April 21, 1953 Report Slip. A note on the April 21, 1953 Report Slip indicates the appellant reported he “was tired.” Within less than one week timeframe, the appellant received NJP again for being absent from his duty station for 14 hours and 45 minutes. See April 24, 1953 Report Slip. A note on the April 24, 1953 Report Slip indicates the appellant reported he “wanted to get in time to see some girl.” In July 1953, the appellant was tried and convicted at summary court martial for being absent from his appointed place of duty on three consecutive days in June 1953, and for failing to obey a lawful order to stay in one place and wipe a table. In September 1953, the appellant received NJP for conduct to the prejudice of good order and discipline in the armed forces. In December 1953, the appellant received NJP for unauthorized absence for a period of approximately 14 hours and 30 minutes. In February 1954, the appellant was tried and convicted at summary court martial for unauthorized absence for a period of six days. In April 1954, the appellant received NJP for possession of another man’s identification card, and neglect to the prejudice and good order of the armed forces. In an April 1954 letter, the appellant’s commanding officer requested authority to discharge the appellant for unfitness with an undesirable discharge. The commanding officer reported the appellant had been a chronic disciplinary problem since entering the Naval service, and that the appellant demonstrated a complete lack of aptitude. The commanding officer reported the appellant failed to perform the tasks assigned to him in a satisfactory manner, that the appellant was completely uncooperative, and that the appellant’s attitude and actions seriously affected the morale and discipline of his division. The appellant was discharged from service in June 1954 for unfitness, with an undesirable characterization of service. See June 1954 Record of Discharge. In a May 1979 letter, the Naval Discharge Review Board (NDRB) denied the appellant’s request for a discharge upgrade. The April 1979 NDRB decisional document indicates the appellant reported he was young at the time of his enlistment, and had a hard time adjusting to service. The NDRB found that the appellant’s service record demonstrated frequent involvement with military authorities of a discreditable nature, including five NJP’s and two summary courts martial over a 12-month period. The NDRB found that the appellant’s frequent infractions, involving unauthorized absence, disobedience, prejudicial conduct, neglect, and wrongful possession, constituted sufficient evidence to characterize the appellant’s service as undesirable. Additionally, the NDRB noted the appellant’s intellectual scores on enlistment examinations demonstrated the appellant possessed faculties that were either above or well within the norm, such that he should have been able to satisfactorily complete his enlistment. In August 2016 communication with the appellant, he indicated that he did not recall being absent without authorization for all of the periods documented in his service records. See August 2016 VA Form 27-0820. The appellant recalled one occasion where he had been out drinking in the evening and did not return to ship until around noon the following day. The appellant recalled leaving the duty station where his ship was docked to drive to his family’s residence in another state, and returning to his duty station at the direction of his uncle. The appellant reported using another man’s identification card to get into a club because he was under the legal drinking age. See also June 2018 VA Form 9 (appellant reported he had been allowed to drink alcohol while serving overseas, and it seemed arbitrary to not be able to drink in the United States). In his July 2017 notice of disagreement, the appellant reported it was his belief that he received an incorrect discharge. In a May 2018 informal conference with the Decision Review Officer, the appellant and his representative requested that, in reviewing the appellant’s disciplinary infractions in service, consideration be given to the fact that the appellant dropped out of high school after the 10th grade and enlisted in the Navy at the age of 17 during a time of war. See also December 2019 Board hearing transcript. The appellant also noted that most of his time in service was spent aboard a ship, which was vastly different from the environment of his childhood. The appellant requested additional consideration be given to the nature of his nonviolent offenses and his current circumstances (financial needs). See also June 2018 VA Form 9. The Board has considered the entire evidence of record and finds that the appellant’s discharge was under dishonorable conditions for VA purposes based on willful and persistent misconduct, and that he is barred from receiving VA compensation benefits. 38 C.F.R. § 3.12(d)(4). The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board. Stringham v. Brown, 8 Vet. App. 445, 447 (1995). In this case, the Board finds that the Veteran’s repeated disciplinary infractions, as evidenced by five NJP’s and two summary courts martial within the span of 12 months, demonstrates not only willful, but also persistent misconduct. 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. Here, the appellant’s repeated disciplinary actions for repeated infractions involving unauthorized absence, disobedience, and prejudicial conduct demonstrates deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Given the persistent nature of the appellant’s offenses in the span of 12 months (during his approximately 18 months of total service), the Board finds the appellant’s repeated misconduct significantly interfered with or precluded the performance of military duties, and the exemption for a discharge because of a minor offense is not applicable. See 38 C.F.R. § 3.12(d)(4) (a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious). The evidence does not demonstrate the Veteran’s service was otherwise honest, faithful, and meritorious. In this regard, the Board notes that in the April 1954 request for authority to discharge the appellant from service, the appellant’s commanding officer stated that the appellant failed to perform the tasks assigned to him in a satisfactory manner, that the appellant had been a chronic disciplinary problem since entering the Naval service, the appellant was completely uncooperative, and that the appellant’s attitude and actions seriously affected the morale and discipline of his division. The Board recognizes that the appellant was young at the time of his enlistment and only had a 10th grade education. As noted by the NDRB, the appellant’s intellectual scores on enlistment examinations demonstrated the appellant possessed faculties that were either above or well within the norm, such that he should have been able to satisfactorily complete his enlistment. Importantly, to the extent that the appellant has implied that compelling circumstances may excuse or mitigate his misconduct, as the regulations currently stand, the compelling circumstances exception under 38 C.F.R. § 3.12(c)(6) applies only to Vietnam-era veteran’s with periods of AWOL for at least 180 continuous days. See Winter v. Principi, 4 Vet. App. 29, 32 (1993) (A review of the legislative history of the statute, 38 U.S.C. § 5303(a)(2)(A), whose language is mirrored in 38 C.F.R. § 3.12(c)(6) indicates additional considerations that might permit the awarding of VA benefits was added in response to clemency and discharge review and upgrade programs for Vietnam-era draft evaders and deserts. “They in no way modify the requirements for awarding of benefits found elsewhere in statutes or regulations. They pertain solely to Vietnam-era veterans who received [other than honorable] discharges stemming from extended periods of AWOL.”). See also July 2016 VA Form 9 with associated correspondence. In this case, the appellant did not serve during the Vietnam-era and was not AWOL for at least 180 consecutive days. As such, the compelling circumstances exception under 38 C.F.R. § 3.12(c)(6) is not applicable. With respect to the appellant’s request that consideration be given to the nature of his nonviolent offenses and his current circumstances (financial needs), the Board is bound by the current laws and regulations concerning bars and exceptions to the receipt of VA compensation benefits. As discussed above, the Board finds that the appellant’s discharge was under dishonorable conditions due to willful and persistent misconduct and that he is barred from receiving VA compensation benefits under 38 C.F.R. § 3.12(d)(4). The evidence of record is against a finding that the exemption for a discharge because of a minor offense is warranted based on service that was otherwise honest, faithful, and meritorious. Additionally, neither the appellant nor his representative have claimed the appellant was “insane” at the time of committing the offenses that resulted in his discharge under other than honorable conditions. See 38 C.F.R. § 3.12(b) (a finding that the person was insane at the time of the misconduct resulting in a dishonorable discharge lifts the bar to the payment of VA benefits); see also 38 C.F.R. § 3.354 (defining insanity). Indeed, during the December 2019 Board hearing, the appellant stated he was not aware of experiencing any type of mental illness during service. The evidence of record does not otherwise suggest that the appellant was insane, as defined by VA regulations. (Continued on Next Page) In sum, the Board finds that the appellant’s discharge was under dishonorable conditions due to willful and persistent misconduct, and that he is barred from receiving VA compensation benefits. 38 C.F.R. § 3.12(d)(4). 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.