BVA9502246 DOCKET NO. 93-08 285 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether the character of the appellant’s discharge from his period of service from August 9, 1983, to June 4, 1987, constitutes a bar to Department of Veterans Affairs (VA) benefits except as to health care under Chapter 17, Title 38, United States Code. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The appellant had active service from August 9, 1983, to June 4, 1987. This case came before the Board of Veterans’ Appeals (Board) on appeal from a determination of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that, inasmuch as the majority of his service was exceptional, and since his periods of absence without leave were on account of family matters which his commander would not help him solve, his service should not be considered dishonorable for purposes of VA benefits. 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 preponderance of the evidence establishes that the character of the appellant’s discharge from service constitutes a bar to benefits under the law administered by VA. FINDINGS OF FACT 1. The appellant’s period of active military service, extending from August 9, 1983, to June 4, 1987, was terminated by a discharge under other than honorable conditions at his request, in lieu of a court-martial because of persistent and willful misconduct. 2. The appellant was not insane at the time of committing the offenses causing his discharge. 3. For purposes of VA benefits, the appellant’s discharge was under dishonorable conditions. CONCLUSION OF LAW The appellant’s discharge from service on June 4, 1987, was under dishonorable conditions, and constitutes a bar to VA benefits . 38 U.S.C.A. §§ 101(2), 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.12 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the appellant has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the appellant in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). In order to be eligible for VA benefits, other than those under Chapter 17 covering health care, an individual must establish that the period of service on which his claim is based was terminated under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12(a). A discharge or release from service under one of the conditions specified in this section 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. 38 C.F.R. § 3.12(b). A discharge because of willful and persistent misconduct will be considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. §§ 3.1(n), 3.12(d) (1993). The record, consisting mainly of adverse actions taken against the appellant during service and the transcript of a personal hearing conducted at the RO in June 1992, reflects that he was absent without authority (AWOL) for approximately 25 hours from March 24-25, 1987 and for approximately 28 hours on April 22-23, 1987; this action was repeated the following day. As a result of these actions, he was counseled regarding the potential adverse effects of such action, and his pass privileges were suspended. On May 1, 1987, he was observed to have been off the base property, failing to observe a direct order not to leave the confines of the military installation, and was again counseled regarding his actions. The appellant was again AWOL from May 12, 1987, until he was apprehended on June 1, 1987. The record further reveals that, in lieu of a Court Martial, the appellant signed a statement on June 2, 1987, acknowledging his guilt of the specified charges, and requesting a discharge for the Good of the Service. He admitted, over his signature, that he had consulted with counsel, had been advised of his rights and the possible defenses which were available to him. He stated that he desired no further rehabilitation because he had no desire to perform further military service. On June 4, 1987, the appellant was reduced in rank from E-3 to E-1 and was discharged from the Army under Other Than Honorable Conditions. The appellant does not dispute the occurrence as stated of any of these events. In connection with the charges leading to the appellant’s discharge, his commanding officer signed a statement which included a notation that, since his assignment to the company in April 1984, the appellant had been a disruptive influence on other soldiers and had demonstrated no self-discipline, remorse for his violations of the Uniform Code of Military Justice (UCMJ) or potential for rehabilitation. His record with the company reportedly included a summarized Article 15, two company grade Article 15’s, and initiation of court-martial proceedings for willfully disobeying a superior commissioned officer and three specifications of AWOL. At his personal hearing before the RO in June 1992, the appellant testified that he had been promoted to Specialist Fourth Class (E-4) within his first year of service-half the usual length of time for such a promotion. He also stated that he was reduced in rank to Private First Class (E-3) because of a financial problem at the Post Exchange (PX) caused by his estranged wife. The appellant indicated that he believed that, if his superiors had provided him with assistance with his family and marital problems as he had requested, the incidents of being AWOL would not have occurred. The service medical records reflect that the appellant underwent a service psychiatric evaluation in May 1983, shortly before entry into active duty due to his reported history of having consulted with a psychologist due to behavioral problems in eighth grade. At the time of that examination he reported no current psychiatric symptoms. The examiner noted that mental status examination was unremarkable, that there were no neurotic or personality disorder features and that the appellant should adapt adequately to the military environment. He was later examined by a psychiatrist for the purpose of obtaining a security clearance. The report of the examination, which was undated, reflects no psychiatric abnormalities. In July 1985, the appellant was seen by a military social work service following an incident of spousal abuse. No specific findings were recorded on that occasion. Later, in December 1985, it was noted that he had received treatment at a men's anger control group and that there had been no recurrence of domestic violence. It was stated that the appellant and his spouse were entered in marital counseling through the chaplain service. His case was closed through the social work service. On his substantive appeal, the appellant stated that his belief that his misconduct was not persistent. Despite the appellant’s statement on his substantive appeal, it is apparent to the Board that his misconduct was indeed willful and persistent. Although he was counseled about his behavior on at least two occasions, the AWOL activity continued, culminating in an absence of almost three weeks. He was specifically advised that his pass privileges had been suspended. Yet he repeatedly disobeyed an order from his commanding officer and left the base. Moreover, the appellant was also advised on more than one occasion of the potentially adverse consequences further infractions would have on both his military and eventual civilian life. Thus, it cannot be said that his multiple infractions were not persistent. Neither can it be said that they were not deliberate or intentional. It is clear that the repeated instances of being AWOL were intentional acts-and this intent is reinforced by the appellant’s own hearing testimony. His offenses, committed over a relatively short period of time, were, moreover, the type of offenses that would interfere with his military duties, and indeed would preclude their performance. Such cannot be characterized as minor offenses. See Cropper v. Brown, 6 Vet.App. 450 (1994). The appellant argues that he should not be penalized since the rest of his service was essentially meritorious. While he may have been promoted quickly during his first year of service, the statement by his commanding officer in 1987, as well as the appellant’s hearing testimony, reflects an overall record of behavior which was far from "model." The incident involving an apparently bad check at the PX denotes less than honest service; although the appellant contends that the problem was due to his estranged wife, the incident resulted in his demotion. Although the appellant’s actual performance evaluations are not of record, the sworn statement by his commanding officer must be given considerable weight, especially since it is not contradicted. Additionally, the appellant’s argument that, had his superiors provided him with proper assistance in resolving his family problems, the incidents of being AWOL would not have occurred, cannot stand as an excuse for his actions. Neither the UCMJ, the United States Code nor the Code of Federal Regulations provides for such an exception. The appellant was repeatedly advised not to go AWOL again, yet he did so, with full knowledge of the potential consequences. There is no evidence in the record that the appellant was insane or had any mental illness at the time of committing the offenses which led to his discharge, and he does not contend that he was insane. Accordingly, the Board finds, by a preponderance of the evidence, that the appellant’s misconduct during service was willful and persistent. Therefore, the Board concludes that his discharge, for purposes of entitlement to VA benefits, is considered to have been under dishonorable conditions and he is barred from VA benefits, except those under Chapter 17, Title 38, United States Code. ORDER The appeal is denied. N. R. ROBIN 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.