Citation Nr: 21040609 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-19 579A DATE: July 6, 2021 ORDER The Veteran's character of discharge for the period from December 17, 2009, to September 12, 2013 is not a bar to VA benefits; the appeal is granted. FINDING OF FACT The Veteran engaged in an act of willful misconduct, but his misconduct was not persistent during his third period of active service. CONCLUSION OF LAW The character of the Veteran's discharge for the period of active duty from December 17, 2009, to September 12, 2013 is not a bar to VA benefits. 38 U.S.C. §§ 101 (2), 5103A, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has service from September 2005 to September 2013. The Veteran completed two periods of honorable service from June 20, 2001 to September 30, 2005, and from October 1, 2005 to December 16, 2009. However, the Veteran was discharge from his third period of service, from December 17, 2009 to September 12, 2013, with an under other than honorable conditions discharge, due to serious misconduct. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO), in New York, New York. In December 2018, the Board remanded the appeal for further development. 1. Whether the character of the Veteran's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits. The Veteran contends that the character of his discharge from service should not be a bar to the award of VA benefits. He specifically maintains that his offenses were minor and should not be considered willful and persistent misconduct. He asserts that his service was otherwise honest, faithful, and meritorious. Relevant Law When a person is seeking VA benefits, it first must be shown by a preponderance of the evidence 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. An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge. However, a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. 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). The Board finds that the Veteran'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. If there is no statutory bar, VA must determine whether there is a regulatory bar to benefits. 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. 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 Veteran'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 has reviewed all the evidence in the Veteran'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 Veteran 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 Veteran initially enlisted in the United States Marine Corps on June 20, 2001. He served in Operation Iraqi Freedom. The Veteran completed two periods of honorable service from June 20, 2001 to September 30, 2005, and from October 1, 2005 to December 16, 2009. During his third period of service, which commenced on December 17, 2009, the Veteran engaged in misconduct and was administratively separated with an under other than honorable conditions discharge. The service separation form shows that the Veteran was discharged on September 12, 2013, due to serious misconduct. The Board notes that the Veteran's military personnel records are incomplete. The Board remanded the appeal in December 2018 to obtain the Veteran's complete military personnel records, however, the records available from the Defense Personnel Records Information Retrieval System (DPRIS), while substantial, are not complete, and do not contain the records of trial of the Veteran's summary court martial or any other supporting documentation. The Veteran's military personnel record indicates one incident of misconduct, which included two violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In March 2013, the Appellant was convicted at Summary Court Martial for one violation of Article 92, UCMJ, for failing to obey a lawful general order, and one violation of Article 125, UCMJ, for engaging in wrongful sodomy with another noncommissioned officer. He was found guilty and sentenced to reduction in rank to Sergeant and forfeiture of $1532.00 pay per month for one month. A May 2013 treatment note indicates that the Veteran reported: "worry about an impending military/administrative separation following court martial for a military offense. (He) declined to provide details regarding the offense but admitted to having a sexual encounter with a female recruiter while working as a recruiter...He reports feeling disappointed in himself and remorseful for his actions." In May 2013, the Veteran's commander initiated an administrative separation action to separate the Veteran from the Marine Corps due to misconduct. The Commanding General reviewed the Veteran's military history, to include his incident of misconduct, and approved the separation and directed that the Veteran be issued an under other than honorable (OTH) conditions discharge. The Veteran separated from service on September 12, 2013. In March 2014, the Veteran submitted a request for discharge upgrade to the Navy Discharge Review Board (NDRB). In an April 2014 review of the Veteran's discharge, the NDRB determined that the Veteran's characterization of service was appropriate and that an upgrade to a general conditions discharge was not warranted. However, the NDRB noted that the Veteran's military personnel file was incomplete and did not contain the facts and circumstances of his summary court martial, nor any separation documents. Analysis In this case, the question at hand is whether the Veteran engaged in willful and persistent misconduct during service. The Board must determine whether the Veteran's actions constituted willful and persistent misconduct such that his discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions, barring him from the receipt of VA benefits other than health care under 38 U.S.C. Chapter 17. The weight of the evidence supports a finding that the Veteran's discharge did not occur as the result of willful and persistent misconduct. The Veteran was subjected to a Summary Court Martial for wrongful sodomy with another recruiter and violating a policy on inappropriate relationships. There is no other misconduct in the Veteran's military personnel records. Rather, his records, to include enlisted evaluation reports, demonstrate that he performed admirably with no other adverse counseling reports or misconduct. Until the incident in question, the Veteran received outstanding evaluations, contributed to disaster relief efforts for Super Storm Sandy, and was an active representative of the Marine Corps in the local community. Notably, immediately prior to the period of misconduct, the Veteran's recruiting station commander recommended him for advancement to the rank of Gunnery Sergeant. The Veteran has argued that his in-service misconduct was neither serious 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 Veteran has asserted that his misconduct should be considered minor and that his service should be considered otherwise honest, faithful and meritorious. The evidence indicates that the Veteran willfully engaging in an inappropriate relationship with another recruiter, while married. Additionally, the Manual for Courts Martial (MCM) notes that the punishments for Article 92 and Article 125 is dishonorable discharge and confinement for two years, and dishonorable discharge and confinement for five years, respectively. See MCM, 2012 edition. Therefore, the Board finds that the misconduct was not minor. Despite the Veteran's contentions, the nature and persistence, or lack thereof, of the underlying in-service misconduct is determinative to the issue on appeal. The Board finds the Veteran's misconduct that led to his separation, namely an act of consensual sodomy with another Marine, was not persistent. Indeed, there is only one instance in the record of such misconduct. Moreover, the record does not indicate that the Veteran was counseled or punished for another act of misconduct during his third period of service. Accordingly, there was no persistent misconduct, and the Veteran's character of discharge is not a bar to VA benefits. Therefore, his discharge is not considered to have been under dishonorable conditions. Rebecca N. Poulson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.