The appellant’s in-service misconduct 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.
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Citation Nr: 20019482 Decision Date: 03/16/20 Archive Date: 03/16/20 DOCKET NO. 16-53 308A DATE: March 16, 2020 ORDER The character of the appellant’s service is a bar to receiving benefits from the Department of Veterans Affairs (VA). FINDING OF FACT The appellant’s in-service misconduct 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. CONCLUSION OF LAW The character of the appellant’s 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 October 1986 to September 1989, at which time he received a bad conduct discharge pursuant to the sentence of a special court-martial. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2016 administrative decision. The appellant participated in a hearing before the undersigned in January 2020, and a transcript of this hearing has been associated with the record. In April 2018, the appellant filed a request to participate in the Rapid Appeals Modernization Program (RAMP), a new initiative applicable to certain eligible compensation appeals. The issue in this case—the determination of whether the character of the appellant’s service is a bar to VA benefits—is not a “compensation appeal” that is eligible for RAMP processing. Therefore, notwithstanding the appellant’s request to participate in RAMP, the Board will review the appellant’s claim under the legacy appeals process. 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 enlisted into service with the United States Navy (Navy) on October 1, 1986, for an 8-year period of obligation. The appellant completed an initial period of training, and he reported to service aboard the USS Belleau Wood on February 15, 1987. On November 24, 1987, the appellant received a non-judicial punishment (NJP) for failing to go to or leaving his appointed place of duty, missing the ship’s movement, failing to obey a lawful order, and breaking a restriction to limits. The NJP noted that these offenses took place on September 24, 1987, September 28, 1987, October 1, 1987, and October 16, 1987. The appellant was sentenced to forfeiture of $329 per month for 2 months and a reduction in pay grade. The appellant was formally counseled that he had to absolutely conform to Naval regulations and authority, and that any further deficiencies in his performance or conduct could result in disciplinary action or administrative discharge. On February 25, 1988, the appellant received a Captain’s Mast for 5 specifications of AWOL, 2 specifications of disobeying a petty officer, and a specification dereliction in the performance of his duties. The Captain’s Mast noted that these offenses took place on February 11, 17, 18, 19, 20, 21, and 23, 1988. The appellant was sentenced to 3 days of diminished rations. On March 29, 1988, the appellant sought psychological treatment with concerns relating to family problems, disciplinary problems, stress associated with work on his ship, and his probable discharge from the Navy. On October 13, 1988, the appellant received a psychological evaluation after complaining of “crazy thoughts”, suicidal ideation, and homicidal ideation. The appellant stated that he “want[ed] out of the Navy”. The clinician found the appellant to be “reasonable and appropriate in conversation”, and he was released to his command. On October 29, 1988, the appellant received a psychological evaluation after threatening suicide while in the brig. On November 30, 1988, a clinician noted the appellant was stable and a low risk for suicide or homicide. The clinician diagnosed the appellant with antisocial personality disorder, and the appellant was fit and suitable for continued incarceration. On December 20, 1988, the appellant was found guilty by special court-martial of 4 specifications of AWOL, taking place from February 29, 1988, to March 1, 1988, March 11, 1988, to March 14, 1988, April 15, 1988, to May 3, 1988, and from May 16, 1988, to October 7, 1988. The appellant was sentenced to 60 days of confinement at hard labor, forfeiture of $447 per month for 2 months, and a bad conduct discharge. On December 28, 1988, a clinician determined that the appellant was not dependent on drugs or alcohol. While the appellant’s December 28, 1988, separation examination did not evaluate the appellant psychiatrically, it found the appellant to be generally qualified for separation from service. The commanding authority approved the sentence of the December 1988 special court-martial on January 24, 1989. On February 24, 1989, the Navy-Marine Corps Court of Military Review affirmed the findings and the sentence of the special court-martial. On September 1, 1989, the Naval Clemency and Parole Board found that clemency was unwarranted. On September 22, 1989, the Court of Military Appeals approved the sentence of the special court-martial and ordered the appellant’s bad conduct discharge to be executed. Following these affirmations of the appellant’s sentence, the appellant received a bad conduct discharge on September 22, 1989, pursuant to his conviction by special court-martial. The appellant’s service separation document indicates that he lost approximately 220 days of service as the result of his periods of AWOL and incarceration. Following the appellant’s separation from service, in October 1992, the appellant requested that the Naval Discharge Review Board (NDRB) upgrade the character of his discharge from service. In January 1994, the NDRB determined that the appellant’s discharge was proper as originally issued. The NDRB rejected the appellant’s argument that he wanted a discharge to “get [his] life together” and that he had “payed the price for [his] faults long enough”, and it unanimously declined the appellant’s application for an upgrade. Similarly, in October 2010, the Board for Correction of Naval Records (BCNR) unanimously determined that an upgrade of the character of the appellant’s discharge from service was unwarranted. The BCNR explained that the mere passage of time or post-service good conduct did not themselves justify an upgrade of the character of the appellant’s discharge from service. In July 2015, the appellant argued that he was 19 years old when he “made [his] mistake”. The appellant argued that he was discharged, in large part, because of his race. Also in July 2015, the appellant argued that he went AWOL to avoid having to participate in “atrocities” such as “gay bashing, gang rapes, [and] bar fights”. During his January 2020 hearing before the undersigned, the appellant argued that “about [at] least 20” of the days that he was listed as AWOL were inaccurate. The appellant indicated that he was AWOL because he refused to participate in activities such as rape and “gay bash[ing]”. Turning to an analysis of these facts, the weight of the evidence supports a finding that the appellant’s discharge occurred as the result of willful and persistent misconduct. The evidence shows that approximately a year after his entry into service, the appellant began engaging in a pattern of consistent misconduct that continued until his September 1989 separation from service. During this time, the appellant failed to go to or left his appointed place of duty, missed his ship’s movement, failed to obey a lawful order, broke a restriction to limits, twice disobeyed a petty officer, was derelict in the performance of his duties, and was AWOL on at least nine occasions and was incarcerated for a total of 220 days of lost service. This misconduct continued despite formal counseling and punishments in the form of an NJP, a Captain’s Mast, and a special court-martial. 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 fundamentally interfered with his duty and ultimately resulted in his separation from service. The Board places little weight on the appellant’s attempts to minimize the seriousness of his in-service misconduct. At no time during service did any clinician find, for example, the appellant’s age to be a factor that mitigated the seriousness of his repeated misconduct. Similarly, the appellant did not mention experiencing racial discrimination at any time during service, nor did he in any way attribute his repeated periods of AWOL to his attempt to avoid engaging in violence with his fellow sailors. Instead, during service, the appellant stated that he simply wished to leave naval service. Both the appellant’s chain of command and the military appellate process found the appellant’s bad conduct discharge to be justified. The Board finds that despite the appellant’s current justifications of his in-service misconduct, his misconduct was indeed willful and persistent. The appellant has not argued that he was insane during service, and the Board otherwise finds the evidence does not support a finding that the appellant was insane when he engaged in the pattern of consistent misconduct that resulted in his discharge from service. While the appellant was evaluated on a number of occasions during service for psychiatric complaints, particularly during his period of incarceration from October 1988 to November 1988, clinicians consistently found the appellant to be psychologically suitable for continued confinement. Furthermore, the appellant himself has consistently argued to the NDRB, to the BCNR, and to VA in his current claim for benefits, that his bad conduct discharge was unjust. Such justifications of his in-service conduct are inconsistent with a finding that the appellant was insane at any time during service. In sum, the character of the appellant’s discharge from service is a bar to payment of VA benefits. 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. The Board does not have the authority to grant the appellant’s claim on an equitable basis, and it is instead constrained to follow specific provisions of law. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.