Citation Nr: 25001037 Decision Date: 01/27/25 Archive Date: 01/27/25 DOCKET NO. 18-55 065 DATE: January 27, 2025 REMANDED Whether the Appellant's character of discharge for the period from November 20, 2007, through September 11, 2012, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code, is remanded. REASONS FOR REMAND The Appellant served on active duty from November 20, 2007, through September 11, 2012. The Appellant was discharged for patterns of misconduct and given an Other than Honorable (OTH) conditions discharge; the Appellant's character of discharge is the subject of this appeal. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2016 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Louis, Missouri. In August 2019, the Appellant testified at a Board hearing before a Veterans Law Judge who is no longer with the Board. A transcript of the hearing is of record. In December 2020, the Appellant was informed that the VLJ who held the August2019hearing was no longer with the Board and that he could have an additional hearing if he chose. The letter also explained that if the Appellant did not respond within 30 days of the letter, the Board will assume he did not want an additional hearing and proceed with the appeal. As the 30 days had passed without response from the Appellant, the Board deemed the request for a second hearing waived by the Appellant. In a January 2020 decision, the Board affirmed the AOJ decision that the Appellant's character of discharge was a bar to VA benefits. The Appellant appealed the Board's January 2020 decision to the Court of Appeals for Veterans Claims (CAVC). CAVC granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board erred in failing to consider whether the evidence of psychiatric treatment triggered VA's duty to assist in obtaining a VA examination on the issue of insanity, under 38 C.F.R. §3.354(a). The February 2020 Board decision and the November 2020 JMR are incorporated herein by reference. In August 2021 and November 2022, the Board remanded the issues for further development. The case has since been returned to the Board for appellate review. 1. Whether the Appellant's character of discharge for the period from November 20, 2007, through September 11, 2012, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code, is remanded. While the Board regrets further delay on this issue, after a review of the evidence of record, the Board finds that further remand is necessary to ensure due process prior to adjudicating this claim. The Board notes that there had been a recent change in law which was not properly addressed in the last AOJ adjudication in October 2024. Specifically, the regulation governing character of discharge has been amended to allow the use of the compelling circumstances exception for cases involving discharges due to willful misconduct and offenses involving moral turpitude, both of which bars have been raised as possibly applicable in this case. See Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 89 Fed. Reg. 32,361 (April 26, 2024) (amending 38 C.F.R. § 3.12(d)-(e) effective June 25, 2024). The provisions of 38 C.F.R. § 3.12(d), as amended, 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 a discharge under other than honorable conditions or its equivalent 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. The Board recognizes that the term "moral turpitude" is not defined in 38 C.F.R. § 3.12(d). Black's Law Dictionary offers two definitions for moral turpitude. The first defines the term as "conduct that is contrary to justice, honesty, or morality." The second, which Black's states is applicable to military law, simply defines moral turpitude as "any conduct for which the applicable punishment is a dishonorable discharge or confinement not less than one year." Black's Law Dictionary (8th ed. 2004). It is also noteworthy that 38 C.F.R. § 3.12(d)(3) specifically states that felonies will generally be considered an offense involving moral turpitude. A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). Under this regulation, instances of minor misconduct occurring within two years of each other are persistent; an instance of minor misconduct occurring within two years of more serious misconduct is persistent; and instances of more serious misconduct occurring within five years of each other are persistent. For purposes of this section, minor misconduct is misconduct for which the maximum sentence imposable pursuant to the Manual for Courts-Martial United States would not include a dishonorable discharge or confinement for longer than one year if tried by general court-martial. 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). Additionally, 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). Under this regulation, instances of minor misconduct occurring within two years of each other are persistent; an instance of minor misconduct occurring within two years of more serious misconduct is persistent; and instances of more serious misconduct occurring within five years of each other are persistent. For purposes of this section, minor misconduct is misconduct for which the maximum sentence imposable pursuant to the Manual for Courts-Martial United States would not include a dishonorable discharge or confinement for longer than one year if tried by general court-martial. An act constitutes willful misconduct when 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. 38 C.F.R. § 3.1(n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). 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). Compelling Circumstances Exception The bar to benefits for prolonged AWOL under paragraph (c)(6) and the two types of misconduct described in paragraph (d)(2) (crime of moral turpitude and willful and persistent misconduct) will not be applied if compelling circumstances mitigate the AWOL or misconduct at issue. The compelling circumstances exception considers the length and character of service exclusive of the misconduct, whether a valid legal defense would have precluded a conviction for the misconduct unde the Uniform Code of Military Justice, and the reasons for the misconduct, including an appellant's mental or cognitive impairment at the time of the in-service misconduct, whether there was duress, coercion, or desperation, and his age, cultural background, educational level, and judgmental maturity. 38 C.F.R. § 3.12(e). Specifically, the following factors will be considered in a determination on this matter: (1) Length and character of service exclusive of the period of prolonged AWOL or misconduct. Service exclusive of the period of prolonged AWOL or misconduct should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. (2) Reasons for AWOL or misconduct. Factors considered are as follows: (i) Mental or cognitive impairment at the time of the prolonged AWOL or misconduct, to include but not limited to a clinical diagnosis of (or evidence that could later be medically determined to demonstrate existence of) posttraumatic stress disorder (PTSD), depression, bipolar disorder, schizophrenia, substance use disorder, attention deficit hyperactivity disorder (ADHD), impulsive behavior, or cognitive disabilities. (ii) Physical health, to include physical trauma and any side effects of medication. (iii) Combat-related or overseas-related hardship. (iv) Sexual abuse/assault. (v) Duress, coercion, or desperation. (vi) Family obligations, or comparable obligations to third parties. (vii) The person's age, education, cultural background, and judgmental maturity. (3) Whether a valid legal defense would have precluded a conviction for AWOL or misconduct under the Uniform Code of Military Justice. The defense must go directly to the substantive issue of absence or misconduct rather than to procedures, technicalities, or formalities. In the October 2024 Supplemental Statement of the Case, the AOJ did not address the requirements under the amended 38 C.F.R. § 3.12. Specifically, the AOJ did not address the amended definition of willful and persistent misconduct, under 38 C.F.R. § 3.12(d)(4), to include an analysis of the occurrence of the offenses and maximum punishments under the MCM, to determine persistence. The AOJ also did not address whether "compelling circumstances" mitigated the Appellant's in-service misconduct. Furthermore, the AOJ did not provide the Appellant with adequate notice of the laws and amended regulations that the AOJ considered in rendering its decision. As such, the AOJ has deprived the Appellant of proper due process which should be addressed upon remand. On remand, after completing the records development, the AOJ will adjudicate the Appellant's case under the new amendments to section 3.12 in the first instance. The matters are REMANDED for the following action: (Continued on the next page) ? 1. After review of any newly obtained records, and any evidence or legal argument submitted by the Appellant, issue a new supplemental statement of the case, compliant with the new amendments of 38 C.F.R. § 3.12(e), determining whether the character of the Appellant's discharge from service constitutes a bar to the receipt of VA compensation benefits. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.