Citation Nr: A21013934 Decision Date: 08/19/21 Archive Date: 08/19/21 DOCKET NO. 190322-170151 DATE: August 19, 2021 ORDER The character of the appellant's discharge for the period of service from October 2, 1979 to March 26, 1981, is a bar to receipt of Department of Veterans Affairs (VA) compensation benefits; the appeal is denied. FINDING OF FACT The character of the appellant's discharge from service for the period from October 2, 1979 to March 26, 1981 was under dishonorable conditions as a result of willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant's discharge from service for the period from October 2, 1979 to March 26, 1981 is a regulatory bar to the receipt of VA compensation benefits. 38 U.S.C. § 101, 5303 (2020); 38 C.F.R. §§ 3.1, 3.12, 3.301, 3.354 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from October 1979 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2019 administrative decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). The appellant elected the Board's direct review docket. March 2019 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the February 2019 administrative decision. 38 C.F.R. § 20.301. In connection with his claim, the appellant testified at a September 2018 pre-determination hearing; a transcript of which is associated with the file. Whether the character of the appellant's discharge for the period of service from October 2, 1979 to March 26, 1981 is a bar to receipt of VA compensation benefits. The appellant contends that the character of his discharge for the period of service from October 2, 1979 to March 26, 1981, should not be considered dishonorable for VA purposes, and thus should not be a bar to benefits. In this regard, the appellant argues that three of the offenses charged in service have been called into question and should not be weighed against his character of discharge. Further, the remaining two offenses charged in service should be considered minor offenses, and consequently his character of discharge should not be considered a bar to benefits. However, after a review of the record, the appellant's discharge was the result of persistent and willful misconduct, and thus his discharge is considered dishonorable for VA purposes and is a bar to benefits. In this regard, for benefits purposes, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.315. 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). The appellant's service does not trigger any statutory bar to benefits; however, the AOJ found his discharge met 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 (this 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). The AOJ determined the appellant's discharge was due to willful and persistent misconduct, and is thus considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). "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). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). However, "offenses that would interfere with the appellant's military duty, indeed preclude their performance... are not minor." Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). Turning to the facts in this case, the appellant enlisted in the U.S. Army on October 2, 1979, for a three-year obligation. He was discharged less than two years later on March 26, 1981, with an Other Than Honorable discharge in lieu of trial by special court-martial. See DD 214 Certificate of Release or Discharge from Active Duty. While in active service, on June 12, 1980, the appellant was charged with an Article 15 Non-Judicial Punishment (NJP) for using disrespectful language to a Non-Commissioned Officer. See July 1980 Military Personnel Records (MPRs). He was required to forfeit $100.00 for one month of his pay, complete extra duty for 14 days, and was restricted to duty, worship, and the dining facility for 14 days. Id. He appealed the matter, but his appeal was denied. On October 30, 1980 he was charged with an Article 121, Larceny and Wrongful Appropriation, for the theft of a German road sign on approximately September 14, 1980. See October 1980 MPRs. He was also charged with an Article 134, General Article, for wrongfully possessing marijuana on the same day. He was required to forfeit $150.00 per month for two months of his pay, complete extra duty for 30 days, and was restricted to duty, worship, and the dining facility for 30 days. The Commanding officer recommended Article 15 action, noting that the appellant's duty performance was "fair to poor," and he had been a "problem in the past." October 1980 Recommendation for Article 15 Action. The appellant appealed the matter, stating that he had never stole anything in his life, and that he was walking back to the billets and came upon the sign on the road, so he picked it up to see what it said, at which time a cab pulled up and asked if he wanted a ride, to which he said yes, and he was driven to the police station. The appellant's appeal was denied, with the presiding officer noting that the appellant was found with marijuana residue on his person, and it was not being challenged by the appellant. However, the presiding officer also noted that although the appellant was found with the road sign in his possession, it was his word against that of the cab driver, and therefore, it was difficult to prove his intent to steal the sign. The officer also noted his duty performance had been fair to poor. See December 1980 Appeal of Field Grade Article 15. On January 16, 1981, the appellant was charged with charged with wrongfully having in his possession marijuana and transferring physical possession of the marijuana to a covert member (agent) of the Joint Drug Suppression Team on December 4, 1980 and December 19, 1980. See January 1981 Court-Martial Charge. The incident reports indicate that on December 4, 1980, the agent, and a confidential informant (CI) met the appellant at the gym on base. The appellant met the agent and the CI at their car, and suggested they go into the gym by the weights. The CI left, and the agent asked for "hash," at which time the appellant removed a tinfoil wrapped object from his pocket, then put it back into his pocket, and suggested they move to a racquetball court. The appellant then removed eight foil wrapped objects, opened them to show alleged hash, and stated that he smoked a bowl the night before. The agent bought four pieces, which he stated he brought back to the Joint Drug Suppression Team office. Testing on the pieces revealed they were marijuana in hash form. Then, on December 19, 1980, the agent reported the appellant contacted the CI again to attempt to sell more marijuana. The agent and the CI met the appellant at the billets, and the agent proceeded into the billets with the appellant. The agent reported that the appellant unrolled a cellophane object that contained eight foil wrapped pieces of suspected marijuana. The agent reported he then bought two pieces of the suspected marijuana. He brought the suspected marijuana back to the office, and it tested positive again as marijuana. A trial by Special Court-Martial empowered to adjudge a Bad Conduct Discharge was recommended. See January 1981 Court-Martial Charge. On February 2, 1981, the appellant requested a discharge for the good of the service in lieu of trial by special court-martial, acknowledging his guilt of the charges against him. Initially, his request was recommended for denial on two occasions in February 1981, with the presiding officers noting the seriousness of the charges, and that his duty performance and attitude were poor. However, a third officer recommended for the request to be approved as the agent who conducted the operations had since left service. Moreover, the agent left owing money to his landlord and another military police officer, and falsified clearance papers in order to leave without honoring those debts. Therefore, the officer determine it was not likely that the agent would accept international travel orders to return and testify, which made a conviction unlikely. Accordingly, on February 24, 1981, the appellant's request for discharge for the good of the service was approved. In response to the incidents above, the appellant reported in a July 2018 statement that he had difficulty in service, with physical and mental problems, including respiratory problems, a hernia, and foot pain, and after a projectile rolled over his foot and injured his leg, he met someone who offered him hash to smoke, so they got high in the gym. The man offered to sell him some, but he did not have any money, so the man arrested him. He stated that he continued to have physical and emotional problems after service because he felt bad about what happened to him. At the September 2018 hearing, the appellant testified that the first incident of disrespectful language to a non-commissioned officer, only occurred because he was in a lot of physical pain. He testified that he was struggling with a physical exercise when the NCO was yelling at him. He reported he was exhausted and was just defending himself when he snapped and yelled back. In regard to the larceny incident, the appellant testified that he was just walking after getting some food, and saw the sign in the street, so he moved it out of the street and leaned it on a tree, when the MPs came up and questioned him. In regard to the two possession of marijuana incidents, he testified he was just working in the gym, when he smelled people smoking hash, so he approached them and they offered him hash, so he smoked some with them. He stated he left and went back to work, when one of the men approached him and asked if he wanted to buy some more, so he said yes. He testified the man left, and came back with marijuana to sell him, but he did not have any money. He testified the man offered him a pipe to smoke, so he took it and started to take a hit, but then the man knocked the pipe out of his hand and arrested him. He testified the man just wanted money for the marijuana. He also testified they told him if he just signed some papers, he would not have to go to prison in Europe. The Board has considered the entire evidence of record and finds that the appellant's discharge was under dishonorable conditions for VA purposes. In this regard, the Board finds that the appellant's numerous NJPs and admitted drug use during a one year and five-month period of service constitutes willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). In this regard, the appellant and his representative argue that the January 1981 charges of possession and sale of marijuana from December 1980 should not be considered against the appellant because the agent was not reliable, and the charges were false. They further argued that the AOJ made a favorable finding that the record does not support these charges. However, initially, the AOJ did not find that the charges were not valid. Rather, the AOJ found because of the perceived unreliability of the agent based on his actions falsifying documents, the benefit of the doubt should be considered in the appellant's claims for service connection for treatment purposes only. The Board similarly considers the benefit of the doubt in this case; however, the record does not show that the charges were brought falsely against the appellant, but rather that the service department found it would be difficult to convict the appellant without the testimony of the agent, which they were unlikely to procure. Additionally, the appellant acknowledged his guilt in these charges in his request for a discharge in lieu of a court-martial, with the consultation of counsel. In this regard however, the appellant implied he requested the discharge because he was afraid of going to prison; and thus, the Board finds his admission of guilt less probative. Turning to the appellant's recollection of events which resulted in these charges, while he disputes that he was selling marijuana, he reported that he not only openly smoked marijuana in the public bleacher area of the gym, but also at an undisclosed location in the gym where he was sweeping. He stated he smelled marijuana and proactively approached those smoking, and openly participated in smoking. Finally, the appellant's recollection of events does not account for the 15-day gap between the two operations by the agent. Consequently, as validity of the charges has been called into question over the reliability of the agent, even resolving all doubt in his favor and foregoing consideration of the charges of possession and sale of marijuana, the appellant admitted to smoking a prohibited substance willingly on two occasions in this time period. The appellant and his representative also argue that the larceny charge should not be considered against the appellant, as the Army found there was no intent to steal. However, again the appellant and his representative have misstated the finding in the record. The presiding officer rather found that "proving" intent would be difficult as it was the appellant's statements against that of a cab driver. In this regard, the appellant has not proved to be the most accurate historian. Notably, his recollection of the events changed, with him first stating in October 1980 that he picked the sign up to see what was on it, and then the cab driver immediately approached and offered a ride. Then in his hearing testimony, he stated he was moving the sign off the road, leaned it on a tree, and MPs came to question him then. The appellant did not and does not dispute the possession of marijuana residue. However, the representative argues that under 38 C.F.R. § 3.301(c)(3) "the isolated and infrequent use of drugs by itself will not be considered willful misconduct." Regardless, the appellant and his representative argue that giving him the benefit of the doubt, the charges should not be considered. In doing so, he would only have two offenses in service, which should both be considered minor. Specifically, the representative argues that the physical pain and stress the appellant was under when he used disrespectful language mitigates the charge. His service treatment records confirm that he had a hernia, foot pain, and insomnia at the time. Therefore, resolving doubt in his favor, were the incident the only offense in his record, it could be considered the result of passion and minor. Thus, the representative argues, that without consideration of the larceny charge, the possession and sale of marijuana charge, and given the mitigation of the use of disrespectful language charge, the appellant only had two minor offenses in service of possession of residual of hashish and the use of disrespectful language, and under 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. Unfortunately, the representative's argument fails for two reasons. First, regarding 38 C.F.R. § 3.301(c)(3), the appellant admitted to smoking or having marijuana on at least three occasions. Further, the appellant admitted to openly smoking marijuana in the public gym, showing a knowing disregard of any potential consequences. Consequently, it cannot be considered isolated and infrequent use. Further, the appellant reported he smoked the marijuana while on duty and performing his duty operations; thus, it is not considered a minor offense because he was in an impaired state while on duty. See Stringham, supra. Secondly, even if the Board considered the appellant's offenses were "minor," his period of service from October 2, 1979 to March 26, 1981 was not "otherwise honest, faithful, and meritorious." 38 C.F.R. § 3.12(d)(4). Specifically, he was noted to have a fair to poor duty performance in October 1980, and poor duty performance and attitude in February 1981. He obtained a Marksman Badge with the M-16 Rifle Bar and an Expert Badge with Hand Grenade Bar, without any meritorious advancements or awards. Therefore, given the negative view of his duty performance, and lack of other indicia of meritorious service; the Board cannot say his service was otherwise honest, faithful, and meritorious. Consequently, the Board finds that the appellant's discharge was based on willful and persistent misconduct. Specifically, even resolving all doubt in his favor, the frequent and open use of marijuana, including during his duty hours, and his use of disrespectful language to an NCO, in consideration of his service as a whole, which could not be considered otherwise honest, faithful, and meritorious, represents willful and persistent misconduct. As a final consideration, 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). The evidence of record does not otherwise suggest that the appellant was insane, as defined by VA regulations. In this regard, the Board acknowledges that the appellant sought treatment in service for insomnia due to emotional difficulties from his job frustration, problems with his feet and hernia, his relationship with his girlfriend, and the article 15 he received for the disrespectful language, and he was diagnosed with an adjustment reaction to adult life. The Board also acknowledges that the appellant reported he experienced continued emotional problems because of the events in service. However, mere manifestations or diagnoses of psychiatric disorders are not synonymous with insanity for purposes of 38 C.F.R. § 3.12(b). Beck v. West, 13 Vet. App. 535, 539 (2000). Further, the weight of the evidence is against a finding that the appellant's in-service misconduct was not a prolonged deviation from the appellant's normal method of behavior due to disease. In this regard, first, the appellant and his representative do not argue this is the case. Additionally, the appellant indicated that his emotional problems were due to the events in service but were not what caused the events in service. Finally, the appellant admitted to smoking marijuana openly in public while in service, which does not indicate that this was a deviation from his normal behaviour. Therefore, the appellant's discharge under other than honorable conditions for the period of service from October 2, 1979 to March 26, 1981, was under dishonorable conditions due to willful and persistent misconduct. 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. As such, the appellant is barred from receiving VA compensation benefits for claims based on the period of service from October 2, 1979 to March 26, 1981. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the (Continued on the next page) appellant's claim, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.