Citation Nr: 18124068
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 13-14 146
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 was discharged from service as the result of an offense involving moral turpitude, and he was not insane at any time during 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 July 2001 to June 2004, at which time he received a discharge under other than honorable conditions by reason of misconduct.  This matter was previously before the Board of Veterans’ Appeals (Board) in May 2017 on appeal from a March 2011 administrative decision.  The Board finds that there has been substantial compliance with its May 2017 remand instructions.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
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 December 2010.  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 as the result of an offense involving moral turpitude (that includes, generally, conviction of a felony) is considered to have been issued under dishonorable conditions.  38 C.F.R. § 3.12(d)(3).  VA’s General Counsel has stated that moral turpitude is the element of a willful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property.  VAOPGCADV 6-87 (Feb. 5, 1988).
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 enlisted into the United States Navy (Navy) on July 24, 2001.  On February 18, 2003, a criminal complaint in civil court was filed against the Appellant.  On December [redacted], 2003, the Appellant plead guilty to a felony charge of repeated sexual abuse of a child.  The Appellant was sentenced to six months in prison, five years’ probation, and 250 hours of community service.  On March 24, 2004, the Appellant was notified that he would be administratively separated under other than honorable conditions as a result of his civilian conviction and sentencing.  On May 12, 2004, the Administrative Separation Board (ASB) found by a vote of three to zero that the preponderance of the evidence supported a finding of misconduct due to a civilian conviction.  The ASB, also by a vote of three to zero, recommended a separation under other than honorable conditions.  On May 20, 2004, the Appellant requested the findings of the ASB be set aside.  In a May 23, 2004, hearing before the ASB, the Appellant described the nature of the sexual abuse that he perpetrated against his grade-school nieces, stating that one such incident occurred during a period of “Christmas leave” in 2001.  The ASB unanimously upheld the nature of the Appellant’s discharge, and the Appellant was discharged under other than honorable conditions on June 9, 2004.  
Following service, in January 2011, the Appellant applied to the Naval Discharge Review Board (NDRB) seeking an upgrade of his discharge.  The Appellant contended that he was separated for misconduct that occurred before his enlistment, that he had excellent service in the Navy, and that his post-service conduct warranted an upgrade.  In June 2012, the NDRB found that the Appellant’s discharge was proper as issued.  The NDRB found that the Applicant’s administrative board established at least one incident for which he was convicted occurred while he was in the Navy.  Additionally, the NDRB noted that the Appellant’s conviction occurred during the Appellant’s enlistment.
Turning to an analysis of these facts, the Appellant’s in-service civil conviction for a felony charge of repeated sexual abuse of the same child unambiguously constitutes an offense involving moral turpitude.  In other words, the Appellant’s crime was felonious, willful, had no justification or legal excuse, gravely violated moral standards, and would be expected to cause harm to a person.  The Appellant has argued he is nevertheless entitled to VA benefits because but for this conviction, his active duty service was meritorious.  It may well be that the Appellant otherwise had meritorious service in the Navy, but the seriousness of the felony for which he was convicted during service, and indeed, the jail sentence that followed such conviction, fundamentally interfered with the Appellant’s ability to perform his duties, and it renders the entirety of the Appellant’s service dishonorable.  
The Appellant has additionally argued that he is entitled to VA benefits because the offense that led to his discharge from service occurred before his enlistment into service.  The Board disagrees.  During the Appellant’s in-service hearing before the ASB, the Appellant indicated that an incident of sexual abuse occurred during a period of Christmas leave in 2001, which was during active duty service.  Furthermore, the Appellant’s conviction for charges of sexual abuse itself occurred during active duty service.  The Board thus places little weight on the Appellant’s argument, and it finds that the Appellant was discharged as the result of a crime of moral turpitude.  The Board finds that the Appellant was not insane at any time in-service, nor does the Appellant so contend.  See Stringham v. Brown, 8 Vet. App. 445, 449 (1995).  
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In sum, the Board finds that the character of the Appellant’s discharge from service is a bar to payment 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).
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Flynn 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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