BVA9502958 DOCKET NO. 93-09 766 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to the payment of disability compensation benefits based upon the character of the claimant's discharge. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The appellant served on active duty from December 1980 to April 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1990 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A hearing was held before a member of this Board sitting in Los Angeles, in March 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the finding of the RO that the character of his discharge from the service is a bar to VA benefits. He claims that the six year period of service performed by him prior to his court martial was honest, faithful and meritorious, and that the incident that caused his dismissal should not constitute a bar to benefits for that period. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to the payment of disability compensation benefits based upon the character of the claimant's discharge is well grounded. FINDING OF FACT The claim of entitlement to the payment of disability compensation benefits based upon the character of the claimant's discharge is not plausible. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to the payment of disability compensation benefits based upon the character of the claimant's discharge. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking to establish basic entitlement to VA benefits. He served on active duty from 1980 to 1990, and was dismissed from the service pursuant to his conviction by court- martial for an offense other than desertion. In July 1990, he filed a claim for service connection for hypertension, prostate disorder and a stomach ulcer. In December 1990, the RO entered an administrative decision that the appellant's discharge from military service on April 18, 1990 was issued under conditions that constitute a bar to the payment of VA benefits. VA compensation benefits are paid to veterans for disability incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1993). A veteran is, by definition, one who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "discharge or release" includes the satisfactory completion of that period of service to which the individual was obligated at the time of entry into service. 38 U.S.C.A. § 101(18). A discharge to accept appointment as a commissioned office is a conditional discharge, if it was issued during peacetime service; prior to the date the person was eligible for an unconditional discharge. 38 C.F.R. § 3.13(a)(3). Where the discharge was conditional, and was followed by a period of service, as described in § 3.13(a), then the entire period will constitute one period of service, and entitlement to benefits will be determined by the character of the final termination, except for death pension purposes. § 3.13(b). Here, the veteran's first DD Form 214 indicates that he enlisted in December 1980, and was honorably discharged on March 19, 1981, in order to accept a commission. A second DD Form 214 shows that he entered active duty on March 20, 1981 as a captain, and was dismissed from service, as described earlier, in April 1990. Therefore, according to the above criteria, the entire period of service, from December 1980 to April 1990, is governed by the character of the final type of separation; i.e. dismissal. At his hearing on appeal, the appellant was reminded by his representative that the issue involved a statutory bar that allowed for only a small amount of latitude. Transcript of Hearing at 2 (Mar. 29, 1993). The appellant described the events leading up to his court martial, and did not question the guilty verdict. Id. at 3. His claim is that the six years he served prior to the incident leading to the court martial, were honorable, and "I just don't think it's fair to let that, um, cloud my whole, ah, history of what I did and continue to do for this country..." Id. at 5. When the appellant was notified by the RO of the administrative decision herein appealed, he was also informed that he had the right to file for a revision of the character of his discharge with the Service Department Discharge Review Board, or to apply for correction of his military records by the Service Department Board for Correction of a Military Records. The appropriate forms for that purpose were enclosed with his notification. Letter from RO to Appellant (Dec. 17, 1990). At his hearing, the appellant was asked whether he had applied to the discharge review board for a review of his discharge. Transcript at 5. He indicated that he planned to submit such an application, and understood that he could expect an answer within six months to one year. Id. at 6. The hearing took place almost two years ago, and there is nothing in the file to indicate that the veteran submitted a response from his service department. The appellant was dismissed from service by reason of the sentence of a general court-martial. This is among the types of discharge for which benefits are not payable. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(2). Such a discharge or release from service is a bar to the payment of benefits "unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided (38 U.S.C.A. § 5303(b))." 38 C.F.R. § 3.12(b). Here, there is nothing in the service record of the appellant's court-martial to suggest that insanity was considered as a defense to his act. Neither has the appellant made such a claim subsequently. His claim amounts to his statement that he disagrees with the terms of the statute governing eligibility for benefits, which is a matter outside the jurisdiction of the Board. See 38 U.S.C.A. § 7104. The possibility of a successful claim through evidentiary channels, on the other hand, has persuaded the Board to use the approach it has, rather than that of Sabonis v. Brown, 6 Vet.App. 426 (1994). As an initial matter, one who submits a claim for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals (the Court) has further defined a well- grounded claim as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). With these criteria in mind, the Board finds that the appellant has not met his initial burden of submitting evidence of a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). ORDER The claim of entitlement to the payment of disability compensation benefits based upon the character of the claimant's discharge is dismissed. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.