BVA9502718 DOCKET NO. 94-47 588 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to the receipt of Department of Veterans Affairs (VA) loan guaranty benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The appellant had active military service from October 1988 to August 1991. This matter arises from a January 1992 decision rendered by the St. Paul, Minnesota, Regional Office and Insurance Center (RO). Therein, it was held that the character of the appellant's discharge from military service constituted a bar to all gratuitous VA benefits, save for health care benefits under 38 U.S.C.A. Chapter 17 (West 1991). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in holding that the character of his discharge from military service was a bar to all VA benefits other than certain health care benefits. More specifically, he contends that although he was convicted of a felony by a civilian court, that conviction subsequently was vacated. He argues that prior to the events which led to his discharge under other than honorable conditions he had completed nearly three years of honest, faithful and meritorious service. He argues further that his abuse as a child, along with his prior exposure to diverse social mores, mitigates against the severity of the offense which led to his discharge. Finally, he contends that VA's definition of moral turpitude is vague and arbitrary in nature and, therefore, exceeds statutory authority. 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's discharge from military service was under circumstances that constituted a bar to the receipt of gratuitous VA benefits, to include loan guaranty benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The appellant's active military service was terminated in August 1991 by a discharge under other than honorable conditions. 3. The appellant's discharge from military service was the result of his criminal conviction by civilian authorities for having taken indecent liberties with a child, an offense which is a felony. 4. The appellant was not insane at the time that he committed the offense which led to his military discharge. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to his receipt of gratuitous VA benefits, to include loan guaranty benefits. 38 U.S.C.A. §§ 5107, 5303 (West 1991); 38 C.F.R. § 3.12 (d)(3) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the appellant has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). That is, it is one which is plausible and capable of substantiation. In addition, all relevant facts have been properly developed. Accordingly, no further assistance to the appellant is required in order to comply with the duty to assist him as mandated by law. Id. I. Background The appellant entered military service in October 1988. In January 1989, he received a certificate in recognition of meritorious achievement while undergoing recruit training. During the following month he was identified as a top performer, and was afforded special consideration for selection to a Navy Class "A" school. It appears that the appellant remained a superior performer throughout that year and the early part of 1990. The appellant's military service otherwise was uneventful until April 1991 when he received a non judicial punishment for larceny of personal property of a value of $59 from the Navy resale activity in Norfolk, Virginia. Then, on July 8, 1991, he was tried in Norfolk, Virginia, on the criminal charge of indecent liberties with a child, an offense classified by that state as a felony. He pled guilty to the charge. Because of this, the appellant was discharged from military service under other than honorable conditions in August 1991. On September 4, 1991, the civilian court vacated the finding of guilt, and deferred finding until September 1994, opting instead to place the appellant on supervised probation for a period of three years. II. Analysis A discharge or release from military service because of an offense involving moral turpitude is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12 (d)(3). This includes, generally, conviction of a felony. Id. However, the foregoing shall not apply if it is established to the satisfaction of the Secretary that, at the time of the commission of the offense leading to the discharge, the person was insane; in such cases, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated. 38 U.S.C.A. § 5303(b) (West 1991) The appellant challenges VA's definition of moral turpitude as a legal matter. He argues that the definition is too vague and arbitrary to be applied in his case. In a published opinion, VA's General Counsel defined moral turpitude as "the element of a willful act committed without justification or legal excuse which gravely violates accepted moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. Op. G.C. 6-87 (1987). Although this definition is not binding upon the Board, it is neither vague nor arbitrary, and, therefore, will be employed for the purpose of this decision. The appellant contends that the offense which he committed did not constitute a felony and did not involve moral turpitude. As a factual matter, the record leaves no doubt that the appellant was, in fact, convicted of a felony. A probation report dated in September 1991, from the Virginia Department of Corrections indicates that the appellant had pled and been found guilty of indecent liberties in July 1991. It is immaterial that the Court then vacated the finding of guilt and deferred its finding for a three-year probationary period. Moreover, the appellant's criminal act constituted moral turpitude within the foregoing definition. The veteran was apprehended at the Virginia Beach Public Library following an act of exhibitionism that was aimed at a 35-year old woman, but that was also witnessed by an 11-year old girl, as well. The Board finds that such an act "gravely violates accepted moral standards," and that it was done willfully. The question remains regarding whether the appellant was insane when the felony at issue was committed. The appellant was examined by T. A. Pasquale, a licensed psychologist, during August 1991. The appellant did not deny that he had willfully committed the act of exhibitionism, and the psychologist found him to be fully oriented, non delusional, and responsible. Although the psychologist stated that the appellant's pre-service background (which purportedly entailed oppressive Communist rule, torture, and sexual abuse, as well as exhibitionist experiences on the nude beaches of Spain and France) might be precipitating factors for the appellant's compulsive behavior, the psychologist did not question the appellant's sanity at the time that the felonious act was committed. Nor has any other evidence been submitted that would tend to challenge the appellant's sanity. Given this, the Board finds that the appellant was sane when the crime in question was committed. As a final matter, the veteran argues that his exemplary military record prior to his criminal act mitigates against a finding of moral turpitude. The Board disagrees. The pertinent law and regulations do not permit an act involving moral turpitude to be mitigated by the quality of prior military service. See 38 C.F.R. § 3.12(d). This is in contrast to mitigating circumstances expressly permitted under the provisions of 38 C.F.R. § 3.12(c)(6) (1993). Given that the appellant was sane when he committed the act of exhibitionism at the Virginia Beach Public Library, and because that act was a felony which involved moral turpitude, the Board has no alternative but to find that his discharge from military service in August 1991 was under dishonorable conditions. ORDER The appellant was discharged under dishonorable conditions; therefore, his appeal is denied. CHARLES E. HOGEBOOM 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.