Citation Nr: 22046366 Decision Date: 08/16/22 Archive Date: 08/16/22 DOCKET NO. 18-37 119 DATE: August 16, 2022 ORDER The character of the appellant's discharge is not a statutory or regulatory bar to the award of Department of Veterans Affairs (VA) benefits; to this extent the appeal is granted. FINDING OF FACT The appellant's administrative discharge under other than honorable conditions was not based on offenses involving willful misconduct and was not otherwise issued under one of the conditions specified in VA regulations that is considered to have been issued under dishonorable conditions. CONCLUSION OF LAW The criteria for recognition of status as a veteran and basic entitlement to VA benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.301. REFERRED MATTER The current appeal stems from the appellant's claim for entitlement to VA disability compensation benefits received by VA in February 2012. See February 2012 VA Form 21-526. Based on the decision herein, the appellant's discharge under other than honorable conditions is no longer considered a bar to the award of VA benefits. Given that the agency of original jurisdiction (AOJ) has not yet addressed the merits of the appellant's service connection claim, such is referred to the AOJ to address in the first instance. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Navy from October 1981 to April 1986. In February 2020, the Board remanded the current appeal for additional development. The Board finds that the AOJ substantially complied with the February 2020 remand directives, and the evidence of record is sufficient to proceed with a decision. As a preliminary matter, the Board observes that the appellant requested a hearing before a Veterans Law Judge. See January 2021 correspondence from the appellant. In a June 2022 letter, the appellant was informed of the Board hearing options, and advised that the Board would assume he did not wish to have a hearing if no response was received within 30 days. More than 30 days have elapsed since the June 2022 letter, and the appellant has not submitted any communication pertaining to his request for a Board hearing. Additionally, the Board observes that the appellant submitted additional evidence in support of his appeal in January 2021 and requested review of such evidence by the AOJ. In February 2021, the AOJ determined that the additional evidence submitted by the appellant in January 2021 did not warrant a change in the character of discharge determination. See February 2021 VA Form 27-0820. Character of Discharge A claimant must first establish "veteran" status in order to qualify for VA compensation benefits. A veteran is defined as a person who served in the active military, naval, air, or space 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). In this case, the appellant's discharge under other than honorable conditions was determined to have been issued because of willful and persistent misconduct. See November 2012 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. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful and meritorious. The term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Turning to the particular facts of this case, the appellant denied any mental health symptoms or treatment prior to service. See December 1980 Report of Medical History. Additionally, he denied any drug use or alcohol abuse prior to entering service. See also December 1980 U.S. Navy Drug Abuse Certificate. The appellant enlisted for a period of four years beginning on October 6, 1981, with a voluntary 24-month extension upon acceptance of training in the Advanced Electronics Field program and accelerated advancement to the pay grade of E-4. In November 1982, the appellant accepted accelerated advancement to the pay grade of E-4. After completing more than three years of service with no record of behavioral or mental health problems, the appellant sought psychiatric treatment on February 11, 1985. The appellant admitted to a persistent depressed mood and reported an inability to deal with stress on the ship and separation from his spouse. The service treatment provider's assessment was adjustment disorder, rule out personality disorder. According to psychological testing performed on February 15, 1985, the appellant had a schizoid personality. The provider recommended that the appellant be separated from service for the convenience of the government due to "severe preexisting personality disorder." In March 1985, the appellant sought treatment for "multiple problems." The appellant reported an episode of drinking over the previous weekend in which he either passed out or fell asleep. The ship medical officer observed that the appellant's speech was halting, and the appellant had difficulty with train of thought. The appellant's insight was limited. The ship medical officer also noted that religious conflict might be involved, stating that the appellant was "very concerned about time off Beirut." The ship medical officer requested that the appellant be seen for a psychological evaluation. The ship medical officer indicated a provisional diagnosis of adjustment disorder versus [conscientious] objector status. On psychological evaluation in April 1985, Dr. M.B. indicated the appellant's presentation during the interview supported the previous psychiatric evaluation. Dr. M.B. stated it was difficult to imagine that the appellant's attitude had not led to a decline in performance requiring counseling. The appellant was seen again approximately two weeks later. Dr. M.B. reported the appellant's presentation had deteriorated since the earlier visit. Dr. M.B. stated the appellant demonstrated very poor ability to deal with anger, and that the appellant's judgment was seriously impaired. While Dr. M.B. reported it was difficult to imagine that the appellant's attitude had not led to a decline in performance requiring counseling, available service records are silent for any misconduct or adverse information prior to June 28, 1985. On June 28, 1985, the appellant received nonjudicial punishment (NJP) for unauthorized absence from his appointed place of duty (quarters for muster), and possession of a knife. On October 3, 1985, the appellant received NJP for drunk and disorderly conduct and assault on an individual by striking him with his hands on or about August 2, 1985, and wrongful use of marijuana on or about August 13-14, 1985. On December 12, 1985, the appellant received NJP for wrongful use of marijuana on October 4, 1985. In February 1986, the appellant was screened and evaluated by the Counseling and Assistance Center. The Director reported the appellant's primary substance of abuse was marijuana, which was used infrequently with only two documented incidents in service. The Director reported the appellant was not psychologically dependent on alcohol or drugs. In March 1986, the appellant submitted a statement for consideration in the administrative discharge proceedings against him. The entirety of the 3-page statement submitted by the appellant that is associated with the claims file is illegible. In April 1986, the Commander, Naval Military Personnel Command, authorized the appellant's discharge. The Commander directed that the appellant be discharged with a characterization of service under other than honorable conditions by reason of misconduct drug abuse (use). See also DD Form 214. The available service records associated with the claims file contain little to no description of the facts and circumstances surrounding the misconduct resulting in the appellant's NJP in June, October, and December 1985. However, in correspondence associated with his September 2013 notice of disagreement, the appellant reported that June 1985 charge for possession of a dangerous weapon was actually his military-issued pocketknife. With respect to the June 1985 charge for being absent from his appointed place of duty (quarters for muster), the appellant reported that he was assigned as a member of the armed roving guard. As it relates to his NJP in October 1985, the appellant indicated that he submitted a rebuttal statement concerning the charges for the alleged assault and drunk and disorderly conduct, which is not included in the service records associated with the claims file. With respect to the December 1985 NJP for wrongful use of marijuana, the appellant denied using marijuana on October 4, 1985. As noted above, the entirety of the appellant's 3-page statement for consideration in his administrative discharge proceedings is illegible. The appellant asserted that the misconduct resulting in his discharge under other than honorable conditions did not reflect "willful and persistent" misconduct, and he had no disciplinary problems for the first nearly four years of active-duty service. The appellant asserted that his mental health issues in service were a contributing factor in the misconduct resulting in his discharge under other than honorable conditions. Additionally, the appellant argued that the diagnosis of a "severe preexisting personality disorder" was incorrect, noting that he had no mental health issues prior to seeking treatment in 1985 and no behavioral problems prior to the in-service disciplinary actions beginning in June 1985. See also statement from the appellant's sister received by VA in January 2021. In June 2016, the appellant submitted correspondence from Dr. T.F. Dr. T.F. stated that she reviewed the appellant's service records and disagreed with the in-service diagnosis of a personality disorder. Dr. T.F. explained that the appellant had no record of any mental illness or behavioral troubles prior to entering active duty, and that he was able to obtain and maintain a secret clearance for more than four years in service to perform his job as an Advanced Electronics Field technician. See also Disability Benefits Questionnaire. Dr. T.F. noted that the appellant disclosed that he was experiencing mental health symptoms in 1985 but did not appear to receive mental health treatment. Dr. T.F. also noted that service treatment records indicate various mental health diagnoses other than a personality disorder. Pursuant to the February 2020 Board remand, the appellant was afforded a VA examination in November 2020. The examiner stated that he had no doubt that the behaviors identified as misconduct in the appellant's service record were the result of significantly impaired thinking and judgment due to psychiatric disability. The examiner indicated that the appellant's substance use in service provided the appellant with a way of decreasing the intensity of the emotional effects of his psychiatric disorder. The examiner opined that the perception that the appellant was a problem in service was actually the unfolding of a serious mental disorder. The Board has considered the evidence of record in this case and resolves reasonable doubt in favor of the appellant in finding that his discharge under other than honorable conditions was not based on willful and persistent misconduct. In reaching this determination, the Board assigns weight to the medical findings that the appellant's misconduct was the result of significantly impaired thinking and judgement due to a psychiatric disease. The Board recognizes that service treatment records attributed the appellant's impaired judgment to various mental health diagnoses, including a preexisting personality disorder. However, the Board assigns weight to Dr. T.F.'s medical opinion that the evidence does not demonstrate a preexisting personality disorder, where the appellant had no record of any mental illness or behavioral troubles prior to service or during his nearly four years of active duty. Additionally, the Board finds the provisions under 38 C.F.R. § 3.301(c) relevant to the discussion herein concerning "willful misconduct." Pertinently, under 38 C.F.R. § 3.301(c)(3), "the isolated and infrequent use of drugs by itself will not be considered willful misconduct." In this case, service records document the appellant's wrongful use of marijuana was limited to two occasions after his completion of nearly four years of service. Furthermore, the medical evidence of record suggests that the appellant's substance use was a way of decreasing the intensity of the emotional effects of his psychiatric disorder. The appellant's offenses involving possession of a knife and absence from his quarters for muster on one occasion are not shown to have significantly interfered with the performance of his military duties. As discussed above, the available evidence of record contains little to no description of the facts and circumstances surrounding the charges for drunk and disorderly conduct and assault. Based on the April 1986 authorization for the appellant's discharge and his DD Form 214, it appears the appellant's discharge under other than honorable conditions was based primarily on his two isolated drug use offenses committed in August and October 1985, respectively. In this particular case, the evidence discussed above supports a finding that the appellant's offenses resulting in his discharge (committed after nearly four years of service) were a result of impaired judgment due to psychiatric disability, and not a result of "willful misconduct" involving deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. The Board finds the overall conditions of the appellant's service are not dishonorable for the purposes of entitlement to VA benefits. See Camarena v. Brown, 6 Vet. App. 565, 567 (1994). In sum, the Board resolves reasonable doubt in favor of the appellant in finding that the bar to VA benefits under 38 C.F.R. § 3.12(d)(4) for willful and persistent misconduct is not applicable. Additionally, the Board finds that the other regulatory and statutory bars to the award of VA benefits are also not for application in this case. As such, the basic eligibility requirements for status as a veteran and entitlement to VA benefits have been met. To this extent the appeal is granted. Marissa Caylor Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.