Citation Nr: 21040509 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 14-18 396 DATE: July 5, 2021 ORDER The character of the Veteran's discharge from service is not a bar to the receipt of Department of Veterans Affairs (VA) benefits, and the claim is granted. FINDINGS OF FACT 1. The Veteran's discharge under other than honorable conditions was a result of minor offenses. 2. The Veteran's service was otherwise honest, faithful and meritorious. CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA disability compensation benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102. REFERRED ISSUES As it relates to the current appeal, the Veteran filed a claim for VA disability compensation benefits in February 2010. See February 2010 VA Form 21-526. The Veteran's claim was denied on the grounds that the character of his discharge was a bar to VA disability compensation benefits. See November 2010 VA notification letter. As discussed further below, and based in part on newly received service records, the Board finds that the character of the Veteran's discharge no longer constitutes a bar to VA disability compensation benefits. See 38 C.F.R. § 3.156(c). To the extent any portion of the service connection claims remain pending, they are referred to the agency of original jurisdiction (AOJ) for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran entered active duty service in the United States Army in June 1973, and was administratively discharged in February 1976 with a characterization of service under other than honorable conditions. In June 2016, the Veteran testified before the undersigned in a Travel Board hearing. A transcript of the proceedings has been associated with the record. Historically, this matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2013 VA decision that determined the Veteran's discharge from service under other than honorable conditions is a bar to VA benefits. The Board remanded the appeal in January 2018 for additional development. In March 2020, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran's and the Secretary's joint motion for remand (JMR), vacating and remanding a July 2019 Board decision that determined the character of the Veteran's discharge is a bar to VA benefits. The Board remanded the appeal again in September 2020 for additional development, to include attempting to obtain the Veteran's complete service treatment and personnel records. Newly received service personnel records were associated with the claims file in September 2020 that are relevant to the issue of whether the character of the Veteran's discharge from service is a bar to VA benefits. See 38 C.F.R. § 3.156(c). For the reasons discussed further below, the Board finds the character of the Veteran's discharge from service no longer constitutes a bar to VA compensation benefits. The character of the Veteran's discharge from service is not a bar to the receipt of VA benefits. 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, constituting a bar to VA compensation benefits. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. 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. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995). In reviewing service records, the Veteran enlisted in the United States Army for a period of three years, beginning active duty in June 1973. The Veteran was 18 years of age, and had completed 10 years of education. The Veteran completed basic training and advanced individual training without incident or disciplinary infraction. The Veteran was transferred to his first duty assignment in October 1973. See Record of Assignments. The Veteran reported he was placed in a noncommissioned officer billet shortly after arriving at his first duty station. See August 2012 correspondence from the Veteran. The Veteran was promoted to E-2 in October 1973, and shortly thereafter he was promoted to E-3 in January 1974. While still serving on active duty, the Veteran earned his high school diploma in June 1974. The first disciplinary infraction documented in service records is an Article 15 (nonjudicial punishment) in July 1974. The July 1974 Record of Proceedings Under Article 15 noted that the Veteran was absent without official leave (AWOL) for 22 days, from July 1-23, 1974. The Veteran's punishment included reduction in grade to E-2, forfeiture of pay for one month (suspended for 30 days), and restriction for 14 days. Notably, the Veteran was promoted to E-3 approximately three months later. Following the July 1974 Article 15, service records are silent for any incident or disciplinary infraction for the next eight months. In March 1975, the appellant received an Article 15 for misappropriation of government property, selling a cold weather coat valued at $20.60 to unknown individuals. The Veteran's punishment included reduction in grade to E-2, forfeiture of pay for two months, extra duty for 14 days, and restriction for 30 days. In August 1975, the Veteran received an Article 15 for failing to obey a lawful order to wear a white undershirt in uniform at all times. Additionally, in August 1975, the Veteran received an adverse Enlisted Efficiency Report. The Veteran's supervisor reported the Veteran required constant supervision, and had been counseled repeatedly on his job performance and attitude. Service records associated with the claims file in September 2020, include the Veteran's appeal of the adverse Enlisted Efficiency Report. See August 1975 DA Form 2496. The Veteran reported that he performed his duties at work, and did not require constant supervision. The Veteran reported that the information contained on the counseling sheets he received were mostly untrue, and that he had never heard anything negative about his work performance. The Veteran indicated that he was constantly harassed by the supervisor who had arrived a few months earlier. The Veteran indicated his morale had deteriorated with the harassment. The Veteran reported that all he wanted was to stay straight until he was released from the Army. In September 1975, the Veteran received an Article 15 for failing to go at the time prescribed to his appointed place of duty. The September 1975 Record of Proceedings Under Article 15 provides only very limited information concerning the facts and circumstances, but it appears the Veteran was late for a battalion formation. In November 1975, the Veteran was notified that he was recommended for discharge for unfitness under Army Regulation 635-200, Chapter 13. See also November 1975 FR Form 55. The Veteran requested consideration of his case by a board of officers. In January 1976, the board of officers convened. Five witnesses that had been within the Veteran's chain of command over the last three to nine months were called to testify before the board of officers. The witness testimony against the Veteran generally indicated the Veteran's performance of duties was substandard, that he always appeared unkempt, and had a poor attitude. The battalion commander reported that he issued the Veteran an Article 15 in March 1975 for misappropriation of government property, but didn't recall the Veteran's attitude at that time. The battalion commander indicated that misappropriation of government property is a court martial offense, and that there was sufficient evidence against the Veteran for a court martial conviction. The battalion commander reported he did not "bluff [the Veteran] into an Article 15." The board of officers recommended that the Veteran be discharged for unfitness, and issued an undesirable discharge. See January 1976 DA Form 1574. In January 1976 correspondence, the Veteran's defense counsel requested that the convening authority reject the recommendation of the board of officers and retain the Veteran, or in the alternative, order separation with a general characterization of service. The defense counsel argued that four Article 15 punishments in two and a half years failed to establish "frequent incidents of a discreditable nature." In February 1976, the Veteran's discharge was directed with an undesirable characterization of service. See also DD Form 214 (discharge under other than honorable conditions). In December 2010 correspondence, the Veteran reported that he entered the Army hoping to mature as a man and as a soldier. The Veteran reported that he made an immature decision to go AWOL for 22 days in July 1974 after his request for leave was denied. The Veteran reported he accepted his punishment, and vowed to do better. The Veteran indicated that, despite efforts to become a better soldier, he felt unfairly targeted for the later punishments in his service record. See also November 2013 correspondence from the Veteran. The Veteran reported he felt discriminated against. In August 2012 correspondence, the Veteran reported that he stayed out of trouble after the July 1974 Article 15, but that things changed with the arrival of a new battalion commander (in approximately March 1975) and company commander (in approximately October 1975). See also January 1976 Report of Proceedings of Board of Officers. In July and August 2012, the Veteran submitted numerous statements in support of his claim, attesting to his good character, kindness, and desire and commitment to helping others. In a statement from C.R., he reported the Veteran was a lifelong friend. C.R. reported the Veteran was a good person, a hard worker, honest, dependable, and had good morals and values. The Veteran's father recalled having conversations with the Veteran in the Spring of 1975, in which the Veteran reported he was having a very difficult time, and that he was doing everything possible to finish his enlistment but felt that he was going to be kicked out of the Army. In consideration of the entire evidence of record, the Board finds the Veteran's discharge under other than honorable conditions was a result of minor offenses, and that his service was otherwise honest, faithful and meritorious. As such, the regulatory bar to the receipt of VA compensation benefits under 38 C.F.R. § 3.12(d)(4) for willful and persistent misconduct is not applicable. The Board adds that other regulatory or statutory bars to the receipt of VA compensation benefits are also not applicable in this case. In reaching this determination, the Board finds that the Veteran's July 1974 Article 15 for being AWOL for 22 days is not, in and of itself, a severe offense. The Board notes that under the Uniform Code of Military Justice, AWOL in excess of 30 days is a severe offense. See Winter v. Principi, 4 Vet. App. 29, 32 (1993) (citing Manual for Courts-Martial (1984), Part IV, Para. 10(E)(2)(B) and (C)). The Veteran does not dispute the facts and circumstances surrounding the July 1974 Article 15 for being AWOL for 22 days. Service records support the Veteran's assertion that he accepted responsibility and the punishment for going AWOL, and made efforts to learn from his mistake and become a better soldier. In this regard, the Board notes that the Veteran was promoted to E-3 approximately three months later, and had no other disciplinary infractions until March 1975. The Veteran's second Article 15 (for misappropriation of government property) coincides with the recent arrival of the Veteran's new battalion commander. Based on documentation in service records, the facts and circumstances of the Veteran's reported selling of a military coat valued at $20.60 to unknown individuals are unclear at best. The March 1975 Record of Proceedings Under Article 15 indicates that the Veteran presented matters in defense and/or extenuation of the offense. However, the Veteran's defense and/or extenuating matters were not reported in service records. The battalion commander testified at the January 1976 board of officers hearing that there had been enough evidence to convict the Veteran at court martial. However, the Veteran was not court martialed for the offense. While the battalion commander testified "I did not bluff him into an Article 15," the Veteran reported he felt pressured to sign the Article 15. The particular facts in this case do not support a finding that the Veteran's March 1975 Article 15 for misappropriation of government property was a severe offense. Here, there is only a very vague description of facts and circumstances surrounding the offense despite the battalion commander's assertion that there was enough evidence to convict the Veteran at court martial, the Veteran's defense and/or extenuating matters were not reported in service records, and there is evidence suggesting that the Veteran was pressured into accepting an Article 15 for the offense. Additionally, the Board finds the August 1975 Article 15 (for failing to obey a lawful order to wear a white undershirt in uniform) and September 1975 Article 15 (for failing to go at the time prescribed to a battalion formation) were issued for minor offenses. The evidence is against a finding that such offenses significantly interfered with the performance of the Veteran's military duties. The Board recognizes that evidence was presented before the January 1976 board of officers hearing indicating the Veteran had received numerous counselings between September 1974 and September 1975, as well as four tickets for post violations between April and July 1975. The Veteran is competent to report that much of the adverse information in his service records, to include the reported counselings, was untrue or taken out of context. See June 2016 Board hearing transcript; see also February 2018 correspondence from the Veteran. Insofar as the Veteran has suggested he was unfairly targeted for punishment and discriminated against, the Board observes that service records document the Veteran reported harassment following changes in his immediate and senior leadership. See August 1975 DA Form 2496. The Board finds it compelling that the Veteran's service records are largely silent for misconduct prior to such changes in leadership. The newly received service records associated with the claims file in September 2020 support the Veteran's assertions, and the Board finds such reports to be credible. As a final consideration, the Board finds the Veteran's service was otherwise honest, faithful and meritorious. The evidence suggesting the Veteran had a bad attitude, poor military appearance, and below average or unsatisfactory performance, is inconsistent with the first year and a half of the Veteran's progression in service, which fails to document any such problems. Such behavioral is entirely contradictory to the character statements submitted on the Veteran's behalf, which describe him as a good person, a hard worker, honest, and dependable. Additionally, the Board notes that the Veteran earned a high school degree within the first year of his enlistment and reportedly served in a noncommissioned officer billet as a junior enlisted member. In sum, the Board finds the Veteran's discharge under other than honorable conditions was a result of minor offenses, and his service was otherwise honest, faithful and meritorious. See 38 C.F.R. § 3.12(d)(4). Accordingly, the character of the Veteran's discharge from service is not a bar to the receipt of VA benefits. Michael A. Pappas 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.