Citation Nr: 18124075
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 11-06 750
DATE:	August 6, 2018
ORDER
The character of the Appellant’s service constitutes a bar to receiving Department of Veterans Affairs (VA) benefits.
FINDING OF FACT
The Appellant’s misconduct in-service was willful and persistent; it did not consist of mere minor offenses offset by otherwise honest, faithful and meritorious service, and he was not insane at the time he committed the misconduct in-service.
CONCLUSION OF LAW
The character of the Appellant’s discharge from service is a bar to receiving VA compensation benefits.  38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354.
 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Appellant served on active duty from June 1971 to October 1974, at which time he was discharged under other than honorable conditions.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 administrative decision.  The Appellant participated in a hearing before the undersigned in May 2018, and a transcript of this hearing has been associated with the record.  
VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims.  VA provided all appropriate notice to the Appellant in July 2009.  All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed.  There remains no question as to the substantial completeness of the claim.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  For these reasons, the Board finds that VA’s duties to notify and assist have been met.
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.  VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable.  38 C.F.R. § 3.12(a).  A claimant receiving a discharge under conditions other than honorable may be considered to have been discharged under dishonorable conditions in certain circumstances.  38 U.S.C. § 5303; 38 C.F.R. § 3.12.  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).  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 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).  Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense.  See, e.g., Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board’s finding that two and half months of AWOL was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board’s finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board’s finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct and, by analogy, persistent misconduct).
A discharge under dishonorable conditions bars the payment of benefits unless it is found that the person was insane at the time of committing the offense.  38 C.F.R. § 3.12(b).  For the purpose of this regulation, 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so 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).  
Turning to the facts in this case, the Appellant entered into active service on June 1, 1971, for a three-year period of obligation.  The Appellant completed training as a military policeman, and he was transferred to the Republic of Vietnam (Vietnam) on November 10, 1971.  The Appellant served in Vietnam until June 27, 1972, at which time he transferred to Aberdeen Proving Ground (APG), in Maryland.  After arriving at APG on August 6, 1972, the Appellant received a nonjudicial punishment (NJP) on September 26, 1972, for failure to appear at his appointed place of duty and disobeying a lawful order from a superior non-commissioned officer (NCO).  The Appellant’s pay grade was reduced to E-2, and he did not appeal his punishment.
On March 3, 1973, the Appellant was convicted by a special court-martial of the following charges: 1) possession of an amphetamine on September 30, 1972; 2) stealing a purse valued at $281 on or about October 1, 1972; 3) wrongfully appropriating a set of license plates on or about November 18, 1972; 4) a period of AWOL from October 2, 1972, to October 14, 1972; 5) using disrespectful language towards a superior NCO on or about November 22, 1972, and; 6) failing to obey a lawful order on or about November 24, 1972.  The Appellant was sentenced to confinement at hard labor for four months, a reduction in pay grade to E-1, forfeiture of $154 in pay for four months, and a bad conduct discharge.  In a March 28, 1973, Prisoner’s Statement, the Appellant admitted guilt with regards to the charges of drug possession and AWOL, but he denied guilt with respect to the charges of larceny and disrespect.  The clinician noted that the Appellant had a successful tour in Vietnam before being stationed in Maryland.  The clinician observed that the Appellant was immature, and he used exaggeration, rationalization, and antisocial acts to cover his poor self-concept.  The clinician indicated that the Appellant could have adjustment problems while in confinement.  The Appellant’s forfeiture was later reduced, and his confinement was later reduced to three months.  The Appellant served his confinement at Fort Leavenworth, Kansas, and he was returned to duty at Fort Stewart, Georgia, pending the outcome of his appeal to the Court of Military Appeals.  
While serving at Fort Stewart awaiting the outcome of his appeal, on April 8, 1974, the Appellant received an NJP for a period of AWOL from March 25, 1974, to March 27, 1974.  The Appellant received a forfeiture of pay and 14 days of extra duty.  The Appellant was again AWOL from July 8, 1974, to July 16, 1974, but the available personnel records are silent as to the punishment that he received for this offense.  In July 1974, the Court of Military Appeals reviewed the findings and sentence of the Appellant’s special court-martial and determined that the findings of being disrespectful towards a commissioned officer and failure to go to his place of duty should be dismissed.  The Court of Military Appeals determined that the remainder of the findings and sentence were appropriate.  The Appellant was discharged under other than honorable conditions pursuant to the sentence of the special court-martial on October 10, 1974, and he was issued a Bad Conduct Discharge Certificate.  The Appellant had served 2 years, 2 months, and 20 days of total active service, and he had 200 days of lost time due to AWOL and confinement.  
With regard to the Appellant’s service treatment records, the Board notes that the Appellant did not complain of psychiatric symptoms at any time during service.  In a March 1973 Report of Medical History, the Appellant denied experiencing symptoms such as frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort.  In a March 1973 Report of Medical Examination, the Appellant was found to be psychiatrically normal.  In a July 1973 Report of Medical Examination, the Appellant was found to be psychiatrically normal.  
Following service, in February 1975, the Appellant stated that it was difficult to transition from duty in Vietnam to service at APG.  The Appellant stated that his commanding officer at APG had “no faith in his soldiers”, and he treated the Appellant with disrespect and racial prejudice.  The Veteran could not believe that his commanding officer “believe[d] the word of a woman . . . over one of his soldiers”.  The Veteran stated that others “made up incidents of disrespect”.  The Veteran was afraid to raise such concerns during his special court-martial.  
In October 1976, the Appellant applied to the Army Discharge Review Board (ADRB) for an upgrade of the character of his discharge.  The Appellant argued that his special court-martial found him guilty of only some of the charges against him, and his discharge under other than honorable conditions was too severe a punishment.  In October 1977, the Appellant stated that he went AWOL because there was nobody whom he could talk to.  The Appellant felt that his company commander treated him with racial prejudice, and he had difficulty adjusting at APG.  The Appellant argued that his military service before his assignment at APG was excellent.  In December 1977, the ADRB determined that the Appellant had been properly discharged and denied the Appellant’s request for a change to the character of his discharge.  In February 1979, the Appellant again contended that his discharge occurred as the result of his commanding officer’s racial prejudice.  
In June 1998, the Appellant requested that the Army Board for Correction of Military Records (ABCMR) upgrade the character of his discharge from service.  In support of this request, the Appellant stated that he had been told that his discharge would be upgraded within six months of his separation from service.  The Appellant indicated that he had just returned from Vietnam when he began to experience problems in-service.  The Appellant indicated that he had a drug problem that was the result of serving as a military policeman and not wanting to fall asleep.  The Appellant indicated that he had passed a lie detector test in service.  In October 1998, the ABCMR found no basis to upgrade the Appellant’s character of discharge.  
In April 2004, the Appellant said that he had been lied to, and it was always [his] word against the other person’s.  The Appellant indicated that the character of his discharge was unfair.  In January 2005, June 2008, and June 2009, the ABCMR denied reconsideration of the Appellant’s request for an upgrade of his discharge for exceeding the one-year regulatory limitation for reconsideration.  In an April 2009 examination, the Appellant stated that he received a bad conduct discharge as a result of racism.  In June 2009, a clinician indicated that the Appellant had received treatment since May 2009 for posttraumatic stress disorder (PTSD) as a result of his experiences in Vietnam.  In January 2010, a VA clinician indicated that the Appellant had PTSD as a result of his experiences in Vietnam.  The clinician indicated that the Veteran reported using substances as a way to self-medicate his symptoms of PTSD.  In March 2012, the Appellant’s representative argued that the Appellant was insane at the time of his discharge.
In October 2014, the Appellant applied to the ABCMR to reconsider his earlier request for an upgrade of his bad conduct discharge to an honorable discharge.  The Appellant argued that he suffered from PTSD and drug use as a result of his service in Vietnam.  In February 2015, the ABCMR denied the Appellant’s request for reconsideration.  The ABCMR noted that the Department of Defense (DOD) had acknowledged that some soldiers who had been administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  In some cases, this undiagnosed PTSD was a mitigating factor in the soldiers’ misconduct.  The ABCMR noted that misconduct stemming from PTSD was typically based upon a spur of the moment decision resulting from a temporary lapse in judgment.  PTSD was not, however, a likely cause for either premeditated misconduct or misconduct continuing for an extended period of time.  In this case, the ABCMR found that the Appellant’s records were devoid of evidence that he was subjected to a traumatic event while active duty.  The ABCMR indicated that the Appellant’s misconduct was premeditated in nature and unrelated to a medical condition.  
In May 2017, a VA examiner noted that conditions of insanity do not tend to be transient or environmentally triggered.  The examiner opined that the Appellant’s problems that resulted in his in-service misconduct and other than honorable discharge were due to substance abuse rather than insanity.  The Appellant reported daily substance abuse from 1971 to 2001.  The Appellant attributed such substance use to his PTSD, but the examiner noted that the Appellant’s drug problems and behavior continued long after his military service.  The Appellant’s drug use spurred antisocial activities that resulted in repeated incarcerations.  The Appellant’s VA diagnoses included PTSD, major depression, anxiety, and various substance dependencies, which were all in sustained remission by 2009.  None of these diagnoses would be considered to be “insanity,” nor did the Appellant ever have a psychotic diagnosis or true antisocial personality because he turned his life around and stopped engaging in those behaviors once he became clean.  The examiner noted that insanity tended to continue because it was not a transient state.  The examiner noted that in 2016, the Appellant was described as a role model, church deacon, and involved with youth, none of which were behaviors typically associated with someone insane or antisocial.  Thus, the examiner concluded that the Appellant’s in-service behavior was less likely than not due to insanity and was at least as likely as not due to drug and alcohol abuse.  
 
During his May 2018 hearing before the undersigned, the Appellant stated that his in-service misconduct occurred as a result of disturbing incidents that he experienced in Vietnam.  The Appellant indicated that he used drugs to self-medicate his psychiatric symptoms, and he experienced black-outs as a result.  
Turning to an analysis of these facts, the Board acknowledges that the first year of the Appellant’s service, including his service as a military policeman in Vietnam, was meritorious.  Furthermore, it is not in dispute that after service, the Appellant has been treated for PTSD that he attributes to incidents that occurred in Vietnam.  With that said, the question in this case is whether the Appellant, despite his experiences in Vietnam, was discharged as a result of a pattern of misconduct that was willful and persistent.  
The Board finds that soon after the Appellant’s return from Vietnam on August 6, 1972, the Appellant indeed engaged in a pattern of misconduct that was willful and persistent, and which continued until his October 10, 1974, separation from service.  The evidence shows that the Appellant was AWOL on a number of occasions, ultimately resulting in approximately 200 days of lost time in-service.  Additionally, the Appellant possessed amphetamines, disobeyed orders, showed disrespect towards superior officers, committed larceny, and misappropriated a set of license plates.  Such actions occurred not on a single occasion, but continued on a number of occasions over a period of time.  The Board thus finds that 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 interfered with the Appellant’s military duty and ultimately resulted in his separation from service.  
The Appellant has argued that insanity led to his misconduct and his ultimate discharge from service, but the Board places little probative weight in these assertions.  The Board, as the fact finder, must determine the credibility of evidence.  Culver v. Derwinski, 3 Vet. App. 292 (1992).  When weighing the credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).
The Board places little weight in the Appellant’s current assertions that he was insane in-service because such account is at odds with both the Appellant’s service treatment records and post-service records.  The Appellant never sought treatment for psychiatric symptoms in-service, nor did he attribute his in-service misconduct to psychiatric symptoms at any time.  A clinician, in association with the Appellant’s in-service incarceration, found the Appellant not to be insane, but instead to be immature and prone to exaggeration, rationalization, and antisocial acts.  Such findings do not imply that the Appellant was insane at the time of the evaluation.  Furthermore, a May 2017 examiner, in a well-reasoned opinion, found the Appellant not to have been insane at the time of his in-service misconduct.  
The Board places little weight in the Appellant’s current assertions that he was insane in-service because such account is at odds with the Appellant’s post-service justifications of his in-service behavior.  For example, in February 1975, the Appellant argued that certain charges against him in-service, including the larceny charge and charges of disrespect, were “made up”.  The Appellant argued on a number of occasions, for example in February 1975, October 1977, February 1979, and April 2009, that his misconduct occurred because his superior officers showed racial prejudice towards him and treated him with disrespect.  In April 2004, the Appellant stated that the character of his discharge was unfair because he had been lied to.  Thus, the Appellant himself has on multiple occasions argued that his misconduct occurred not as the result of insanity, but instead as the result of factors such as unfairness and racial prejudice.  The Appellant’s post-service justifications of his in-service behavior is at odds with a finding that the Appellant was insane in-service.
In sum, the Board finds that the character of the Appellant’s discharge from service is a bar to the receipt of VA benefits.  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 Appellant’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990).

 
MICHELLE KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Flynn 

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