Citation Nr: 18160345
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-05 775
DATE:	December 27, 2018
Entitlement to dependency and indemnity compensation (DIC) benefits.
The character of the Veteran’s service remains a bar to VA benefits.
The criteria for entitlement to DIC benefits have not been met.  38 U.S.C. §§ 101, 1521, 1541, 5107, 5121, 5303 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.12, 3.23, 3.102, 3.159, 3.301, 3.354, 3.1000 (2017).
The Veteran had active military service from July 1972 to October 1976.  The Veteran died in December 1999.  The Appellant is his surviving spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that, as requested, the Appellant was scheduled for a video conference Board hearing in May 2017.  Notice and reminders have been sent to both known addresses of the Appellant and have been returned as undeliverable.  The record reflects the Appellant has not provide any correspondence since 2014. Consequently, the Board finds that due process has been met in affording the Appellant an opportunity for a hearing, and it may proceed to adjudicate the Appellant’s appeal without prejudice to her.
Entitlement to VA death pension.
The Appellant contends she is entitled to DIC, death pension and accrued benefits.
Under VA laws and regulations, and 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).  If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable.  See 38 U.S.C. § 101 (2); 38 C.F.R. § 3.12. 
A discharge or release because of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct includes a discharge under other than honorable conditions, if is determined that it was issued because of willful and persistent misconduct, which does not include discharge because of a minor offense if service was otherwise honest, faithful, and meritorious; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty.  38 C.F.R. § 3.12 (d). 
A discharge because of one of the above-identified offenses will not be a bar if it is found that the person was insane at the time of committing the offense causing the discharge.  38 C.F.R. § 3.12 (b).  VA regulations provide that 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 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. 
An act is willful misconduct where 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).  The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive use of drugs to the point of addiction will be considered willful misconduct.  38 C.F.R. § 3.301 (c)(3).
Here, the Veteran died in December 1999.  At no time during his lifetime did he file a claim with VA for any type of benefit.  However, in November 2010, the Appellant applied for Dependency and Indemnity Compensation (DIC), death pension and accrued benefits as a surviving spouse.  The Appellant’s claim was denied in November 2011 both on the basis of the character of the Veteran’s service and because the merits of the case did not warrant a grant.  The Appellant was notified of the decision and advised that she had the right to apply to the branch of the Armed Services in which the Veteran served for a review of the character of her husband’s discharge.  Thereafter, the Appellant filed a timely notice of disagreement with the decision and indicated she filed for an upgrade of the Veteran’s discharge.  In the 2013 Administrative Decision, the RO reviewed the Veteran’s service records noting that the Veteran reenlisted in the army prior to completion of his initial obligated period of service by obtaining a waiver of the 27 AWOL days charged for December 11, 1972 to January 5, 1973 and October 1, 1973 to November 1, 1973.  The RO noted the reason for discharge was cited as “discharged for immediate reenlistment” because the Veteran waived his option to have the reason for discharge appear on his DD Form 214.  Instead, the phrase “not required” was given as the reason for discharge.  The RO further noted that the record showed a pattern of the Veteran going AWOL which began during his initial four-year enlistment prior to the completion of his initial obligate period of service from July 18, 1972 to July 17, 1976.  The RO further noted there was no indication that the Veteran was incapable of distinguishing right from wrong when he committed the offenses and no such evidence was submitted by the Appellant.  Thus, the RO concluded that the provision for unconditional discharge were not met.  The Board agrees.
After review of the record, the Board acknowledges the Appellant’s statements indicating she would file for an upgrade of the Veteran’s discharge due to her belief that false statements submitted to authorities by her mother caused the Veteran to go AWOL and eventually become severely depressed which contributed to his death.  The Board has also considered the Veteran’s DD Form 214 for the period of service from July 1972 to December 1974 indicating the Veteran’s discharge was under honorable conditions.  However, after the RO sought verification of service with the National Personnel Records Center (NPRC) in May 2013, the NPRC did not respond that the Veteran’s character of discharge had been upgraded to honorable.  Rather the character of discharge verified by the NPRC continues to be a bar to VA benefits.  See 38 C.F.R. § 3.12 (h).  Thus, the Board finds that it must rely on the information provided by the NPRC as to the Veteran’s service information as it would come from his official service records and, therefore, is the most reliable source of information.  That information shows that the Veteran’s character of discharge remains other than honorable.  Hence, the Appellant’s eligibility for death pension benefits is not established.
The Board is sympathetic to the Appellant’s situation and is thankful for the service the Veteran has given to this country.  However, the law excludes the Appellant from entitlement to VA DIC benefits, and the Board is bound by the laws and regulations applicable to the benefit sought.  See 38 C.F.R. § 19.5.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. McDuffie, Associate Counsel 

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