Citation Nr: 22014561 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-10 837 DATE: March 14, 2022 ORDER The service member's discharge under other than honorable conditions is not a bar to the award of Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC); to this extent, the appeal is granted. REMANDED Entitlement to service connection for the cause of the service member's death is remanded. FINDINGS OF FACT 1. The service member's discharge under other than honorable conditions was a result of minor offenses, and not the result of willful misconduct. 2. The service member's active duty service was otherwise honest, faithful and meritorious. CONCLUSION OF LAW For the purposes of basic eligibility requirements for entitlement to DIC, the criteria for status as a veteran have been met. 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.12, 20.1106. REASONS AND BASES FOR FINDING AND CONCLUSION The service member served on active duty in the United States Army from October 1977 to April 1980. Unfortunately, the service member passed away in September 2015, and the appellant is his surviving spouse. In August 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. The appellant and her attorney requested a 90-day continuance to obtain additional evidence in support of the current appeal. In October 2021, the appellant's attorney submitted a June 2021 decision of the Army Board for Correction of Military Records (ABCMR) concerning the appellant's request for an upgrade of the service member's discharge under other than honorable conditions. Although ABCMR denied the request for a discharge upgrade, VA must make its own determination as to whether the character of the service member's discharge is a bar to the award of VA benefits. See Robertson v. Shinseki, 26 Vet. App. 169, 175 (2013) (if a service member receives an undesirable discharge, a discharge under other than honorable conditions, or a bad conduct discharge, a formal character of discharge determination must be made before addressing a claim for benefits on the merits). The service member's discharge under other than honorable conditions is not a bar to the award of DIC. In this case, the appellant filed a claim for entitlement to DIC based on service connection for the cause of the service member's death. See June 2018 VA Form 21-534; see also August 2018 notice of disagreement. For the purposes of entitlement to DIC, the standards and criteria for determining whether or not a death is service-connected shall be those applicable under 38 U.S.C. Chapter 11. See 38 U.S.C. § 1310; see Myore v. Nicholson, 489 F.3d 1207, 1212 (Fed. Cir. 2007). In order to qualify for VA benefits under 38 U.S.C. Chapter 11, 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). Here, the service member's period of service from October 1977 to April 1980 was terminated by a discharge under other than honorable conditions due to misconduct frequent incidents of a discreditable nature with authorities. See DD Form 214. During the service member's lifetime, the AOJ determined that his discharge was a result of willful and persistent misconduct, constituting a bar to the award of VA compensation benefits. See June 1996 VA notification letter (referencing a September 1980 VA administrative decision). 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. In determining whether a service member's discharge was the result of willful and persistent misconduct, VA must find that the service member's conduct was not a minor offense, and consider whether service was otherwise honest, faithful and meritorious. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). Although the service member did not appeal the determination that the character of his discharge was a bar to VA compensation benefits during his lifetime, such a determination is not final for purposes of the appellant's claim for survivor benefits. See 38 C.F.R. § 20.1106 (except for certain provisions that are not applicable in the instant case, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime); see also Rogers v. Derwinski, 2 Vet. App. 419, 420 (1992). Therefore, the Board will consider whether the character of the service member's discharge is a bar to DIC, notwithstanding the previous final determination that his discharge was under conditions deemed to be dishonorable. Turning to the particular facts concerning the service member's discharge under other than honorable conditions, the service member entered into a three-year enlistment agreement in October 1977. With the exception of a formal counseling in April 1978 for failing to arrive at the appointed time for a clean-up detail, the first six months of the service member's military records are silent for any misconduct or disciplinary infractions. More than two years into the service member's three-year enlistment, he received nonjudicial punishment (NJP) for: (1) unauthorized absence from morning formation on Saturday, October 20, 1979, and remained absent until Monday, October 22, 1979, at 6:30am; and (2) unauthorized absence for a period of two hours on October 25, 1979. See October 31, 1979, Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ). On December 6, 1979, the service member received NJP for: (1) failing to go at the time prescribed for extra duty on two occasions; (2) unauthorized absence on two occasions; (3) disobeying a lawful order to clean his weapon; (4) disobeying a lawful order to report for a clean-up detail; and (5) disobeying a lawful order to report to the office of his superior commissioned officer. See December 6, 1979, Record of Proceedings under Article 15, UCMJ. On January 24, 1980, the service member received NJP for unauthorized absence from morning formation. See January 24, 1980, Record of Proceedings under Article 15, UCMJ. On February 8, 1980, the service member received NJP for: (1) failing to go at the time prescribed for extra duty on two occasions; and (2) unauthorized absence from a work call formation. See February 8, 1980, Record of Proceedings under Article 15, UCMJ. On February 22, 1980, the service member's commanding officer recommended that the service member be administratively separated from service for misconduct because of frequent incidents of a discreditable nature with military authorities. On March 5, 1980, the service member's administrative separation was approved, and he was discharged with a characterization of service under other than honorable conditions, effective April 1, 1980. In consideration of the entire evidence of record, the Board finds that the service member's conduct involved minor offenses, and that his service was otherwise honest, faithful and meritorious. In reaching this determination, the Board recognizes that the service member received NJP on four occasions during service. The Board notes that the Supreme Court of the United States has held that Article 15 (nonjudicial) punishment is an administrative method of dealing with the most minor of offenses. See Middendorf v. Henry, 425 U.S. 25, 31-32 (1976). Here, the service member's offenses resulting in his discharge primarily involved unauthorized absence for very short periods of time (such as being 5 to 10 minutes late for formation), and failing to go at the time prescribed for extra duty. See also March 1980 Memorandum for Record. The service member's chain of command elected to use no more than administrative methods to deal with the service member's minor offenses. Although the service member received counseling and NJP for the above offenses, the service member's chain of command did not indicate, and the Board finds that the evidence of record does not otherwise demonstrate, that such offenses significantly interfered with the proper performance of his military duties. See Stringham v. Brown, 8 Vet. App. 445 at 448 (1995) (quoting Cropper, 6 Vet. App. at 452-53). In addition to the above reasons, the Board observes that the service member reported that the offenses resulting in his discharge were due to his religious beliefs and convictions. See February 1980 Recommendation for Elimination (with enclosed undated statement from the service member); see also February 1980 Memorandum for Record (noting that the service member was claiming conscientious objector status as early as November 1979). A March 1980 Memorandum for Record, concerning the service member's misconduct and counseling, noted that the service member reported his periods of unauthorized absence were to attend prayer meetings. The Board finds that service records, and other evidence of record in this case, support the service member's assertion that his offenses (involving unauthorized absence, failure to go at the time prescribed to his appointed place of duty, and failure to obey an order) were due to his religious beliefs and convictions. See also April 1982 and May 1995 private treatment records. Although the service member was ultimately administratively separated for misconduct, and not as a conscientious objector, it appears that the service member's misconduct was related to his assignment of extra duties. Per service regulations, service members who have submitted applications for conscientious objection are to be assigned duties providing minimum practicable conflict with their asserted beliefs, and not required to take part in training that involves the handling of weapons, pending a final decision on their application. See generally Army Regulation 600-43; see also 32 C.F.R. § 75.6(h) (1981) (every effort will be made to assign applicants to duties which will conflict as little as possible with their asserted beliefs). Service records do not otherwise indicate that the service member's offenses involved the performance of his regular military duties. The Records of Counseling and Records of Proceedings under Article 15 note that the service member's offenses generally pertained to the extra duties that he was assigned, which reportedly conflicted with his religious beliefs and convictions and/or prayer meetings. The Board finds such to be persuasive evidence against a finding that the service member's offenses involved "willful misconduct." See 38 C.F.R. § 3.1(n) (willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences). The Board finds that the service member's offenses do not demonstrate a wanton and reckless disregard for probable consequences, but were a result being assigned extra duties (that appear to be contrary to service regulations), which conflicted with his religious beliefs and convictions. Moreover, the Board finds that the service member's military records demonstrate that, except for the minor offenses resulting in his discharge, his service was otherwise honest, faithful, and meritorious. With the exception of a counseling in April 1978 for failing to arrive at the appointed time for a clean-up detail, service records are notably silent for any misconduct during the first more than two years of the service member's three-year enlistment. Additionally, the service member's commanding officer reported that up until his first NJP in October 1979, the service member had "always been a good soldier." See also February 1980 Recommendation for Elimination (with enclosed undated statement from the service member in which he reported that he underwent a spiritual change in September 1979). In sum, the Board finds that the service member's discharge under other than honorable was not a result of willful and persistent misconduct. See 38 C.F.R. § 3.12(d)(4). The Board adds that other regulatory or statutory bars to the receipt of VA compensation benefits are also not applicable in this case. Accordingly, the character of the service member's discharge is not a bar to the award of DIC. REASONS FOR REMAND Entitlement to service connection for the cause of the service member's death is remanded. As noted above, the appellant seeks entitlement to DIC based on service connection for the cause of the service member's death. The AOJ determined that the character of the service member's discharge was a bar to VA benefits. See July 2018 VA notification letter; see also Robertson, 26 Vet. App. at 175 (2013). In light of the decision herein, finding that the service member's discharge is not a bar to the award of DIC, the Board finds remand is necessary for the AOJ to adjudicate the merits of the appellant's claim for entitlement to service connection for the cause of the Veteran's death in the first instance. The matters are REMANDED for the following action: The AOJ must send the appellant and her attorney the proper notice that advises her about what is needed to substantiate a claim for DIC. Following the above, and any further development deemed warranted, adjudicate in the first instance the appellant's claim for entitlement to service connection for the cause of the Veteran's death. SHEREEN M. MARCUS 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.