Citation Nr: 22015170 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-17 995 DATE: March 16, 2022 ORDER The character of the appellant's discharge from active military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a); the appeal is denied. FINDINGS OF FACT 1. The appellant had service from March 16, 1981, to September 16, 1983, and received an Under Other Than Honorable (OTH) conditions discharge for misconduct. 2. During his period of service, the appellant's in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 3. The evidence of record does not suggest, and neither the appellant nor his representative has alleged, that the appellant was insane at the time of the offenses leading to discharge from service. 4. There has been no removal of any bar to VA benefits via an upgrade to the appellant's character of discharge. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to his receipt of VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). 38 U.S.C. §§ 101(2), 5103, 5103A, 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.159, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active-duty service with the United States Marine Corps from March 1981 to September 1983. He received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from a May 2013 Regional Office (RO) decision. In October 2020, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. In November 2020 and April 2021, the Board remanded the appeal for further development. The appellant is seeking entitlement to VA compensation benefits. Relevant Laws and Regulations When a person is seeking VA benefits, it first must be shown 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). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation 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). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of the period of service. 38 C.F.R. § 3.13(b). 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). If there is no statutory bar, VA must determine whether there is 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, which 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). 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 appellant'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 appellant was given an OTH discharge due to misconduct. The RO determined that his service was dishonorable for VA purposes due to willful and persistent misconduct. There are two possible exceptions to the appellant being barred from receiving VA compensation benefits for service from March 16, 1981 to September 16, 1983: if the appellant's conduct was minor and offset by service which was otherwise honest, faithful, and meritorious; or if the appellant is shown to have been insane at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) has so departed (become antisocial) from the accepted standards of the community, to which by birth and education he belongs, as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). When the question is whether an individual was insane at the time of an offense leading to court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535 (2000). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. A determination of whether a person is insane is, in effect, a determination of whether the person's actions were intentional, and, thus, the result of willful misconduct. That determination is not warranted when the record does not show that a service member had insanity due to disease or that the service member did not know or understand the nature or consequences of the acts, or that what the service member was doing was wrong. Zang v. Brown, 8 Vet. App. 246 (1995). Significantly, the burden is on the appellant to submit competent medical evidence that the service member was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (1995). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior, which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from that person's normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the service member was insane. 38 U.S.C. § 530(b). The burden is on the appellant to submit competent medical evidence that the appellant was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (1995). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). The Board has reviewed all the evidence in the appellant'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 appellant 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 appellant enlisted in the United States Marine Corps on March 16, 1981, for a period of four years of active-duty service. The service separation form shows that the appellant was discharged on September 16, 1983, with an OTH discharge due to several incidents of misconduct. The appellant's service separation form includes a separation code of GKA, which is the discharge code for discreditable incidents with civil or military authorities. Review of the military personnel records shows instances of misconduct: In June 1981, the appellant was subjected to nonjudicial punishment for assault, in violation of Article 128, Uniform Code of Military Justice (UCMJ). He was found guilty and sentenced to forfeit $166.00 pay per month for one month. In November 1981, the appellant was subjected to nonjudicial punishment for unauthorized absence from his appointed place of duty, in violation of Article 86, UCMJ. He was found guilty and sentenced to forfeit $50.00 pay per month for one month, to perform 7 days of extra duty and be restricted to the unit area for 7 days, which was suspended for a period of one month. In March 1982, the appellant was subjected to nonjudicial punishment for theft of clothing from the military exchange, in violation of Article 121, UCMJ. He was found guilty and sentenced to forfeit $100.00 pay per month for one month, to perform 7 days of extra duty and be restricted to the unit area for 7 days. In April 1982, the appellant was subjected to nonjudicial punishment for disrespect towards a superior petty officer, in violation of Article 91, UCMJ. He was found guilty and sentenced to forfeit $144.00 pay per month for one month, to perform 14 days of extra duty and be restricted to the unit area for 14 days. In June 1982, the appellant was subjected to nonjudicial punishment for disobeying a lawful order from a noncommissioned officer, in violation of Article 92, UCMJ. He was found guilty and sentenced to be restricted to the unit area for 7 days. In July 1982, the appellant was subjected to nonjudicial punishment for disrespect towards a superior petty officer, in violation of Article 91, UCMJ. He was found guilty and sentenced to reduction in rank to the rank of E2. In April 1983, the command initiated an administrative separation action against the appellant for a pattern of misconduct. After notification, the appellant met with an attorney and appeared before an administrative separation board. In September 1983, the administrative separation board convened. The board considered all available evidence, to include the appellant's service records, and his own testimony regarding his military record and the facts and circumstances of his six nonjudicial punishments. The board found that the appellant knew his responsibilities as a Marine, as well as the consequences of his behavior, and that he had "clearly proven to be a detriment to the good order and discipline of the Marine Corps." The board recommended that the appellant be discharged with an OTH discharge. In July 1983, the appellant's General Court Martial Convening Authority approved the administrative separation and ordered that the appellant be discharged with an OTH characterization of service, effective September 16, 1983. The appellant submitted a May 2014 Application for the Review of Discharge, which he purports was submitted to the Department of the Navy Board of Correction of Naval Records (NBCNR). In September 2021, pursuant to the April 2021 Board Remand, the RO attempted to obtain any records related to a discharge upgrade application; however, in a November 2021 response, the NBCNR noted that there was no pending application, and the appellant's service personnel records do not contain any findings or documents related to an application for a discharge upgrade. There is no other evidence that the appellant has sought a discharge upgrade from the Department of the Navy Board of Correction of Naval Records (NBCNR). Analysis Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the appellant's discharge occurred as the result of willful and persistent misconduct. The appellant's command attempted numerous rehabilitative efforts to assist the appellant in dealing with his misconduct, to include counseling, administrative warnings, and nonjudicial punishments. The rehabilitative efforts failed and the appellant, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct, to include disobedience and disrespect to military authorities, and theft. The appellant's repeated violations of the UCMJ are consistent with a finding that his misconduct was both willful and persistent. At no time has he expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against him. As a recruit, the appellant received training on the UCMJ, and potential punishments and consequences for misconduct. He also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his service duties and resulted in his separation from service for misconduct. The appellant has not argued that his in-service misconduct was neither willful 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 appellant has asserted that his misconduct was minor or provided justification for the incidents, and therefore should not be considered regarding whether his conduct was a bar to VA benefits. See May 2014 Form 9. Despite the appellant's contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The appellant's misconduct occurred over the majority of his period of service, and he continued to engage in misconduct despite being disciplined on several occasions. The Board finds that the appellant's conduct, which shows the appellant disobeying orders, disrespecting noncommissioned officers, assaulting another servicemember, and theft from a military exchange, occurred despite the illegality of such behavior. The Board also finds, as did the appellant's chain of command, that the appellant's in-service misconduct was not minor, but it instead fundamentally interfered with his service duties. In this regard, the evidence shows that he committed repeated offenses for which he was counseled and punished. Further, while the appellant argues that his infractions were minor in nature, or not of a pattern of willful and persistent misconduct, the Board disagrees. While some of the misconduct in question, such as failure to obey an order, would qualify as a minor offense, those that preclude performance of military duties, to include assault, failure to obey lawful orders, disrespect to superiors, and theft, cannot constitute a minor offense as such interfered with the appellant's military duties insofar as the offenses included assault of another servicemember, failure to obey lawful orders, and detracted from his unit's operation, and resulted in loss of manpower due to increased supervision of the appellant. Cropper, supra. Thus, the only remaining defense to this regulatory bar to benefits is if the appellant was insane at the time of committing the offenses causing discharge or release. However, such a defense to this bar has not been raised by the appellant, his representative, or the record. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The appellant has not argued that he was insane during service, and the Board otherwise finds the evidence does not support a finding that the appellant was insane when he engaged in the pattern of consistent misconduct that resulted in his discharge from service. He did not complain of any psychiatric symptoms at the time of his separation from service, and he was found to be sane at the time of his separation examination. Thus, further consideration in this regard is not necessary. The Board has considered if there are any other reasons to set aside the regulatory bar to VA benefits, including because the appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). There is no indication that the appellant received an upgrade to the character of his discharge by a discharge review board. As noted above, the appellant submitted a May 2014 Application for the Review of Discharge, which he purports was submitted to the Department of the Navy; however, the NBCNR noted that there was no pending application, and the appellant's service personnel records do not contain any findings or documents related to an application for a discharge upgrade. Additionally, insanity has not been shown by the evidence of record. Neither the appellant nor his representative have asserted such on the record, nor have they provided any evidence related to the appellant's mental health. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the appellant's character of discharge or evidence showing the appellant was insane at the time of his offense. Based on the foregoing, the Board finds that the appellant's discharge from service on September 16, 1983, with an OTH discharge, was issued because of willful and persistent misconduct. Therefore, the character of discharge from the period of service from March 16, 1981, to September 16, 1983, is a bar to VA compensation benefits, as the OTH discharge for that period of service was the result of willful and persistent misconduct under 38 C.F.R. §§ 3.12(d), 3.13, 3.354. (Continued on the next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the character of the appellant's discharge from the period of service from March 16, 1981, to September 16, 1983, is a bar to VA compensation benefits is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JOHN Z. JONES 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.