Citation Nr: 0006988 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-10 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether the character of the appellant's discharge from her October 1981 to May 1983 service constitutes a bar to Department of Veterans Affairs (VA) benefits, except for health care and related benefits under Chapter 17 of title 38 United States Code. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The appellant served on active duty from October 1981 to May 1983. This matter came before the Board of Veterans' Appeals (Board) from an April 1997 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut which determined that the character of the appellant's discharge from service was a bar to VA benefits except health care under 38 U.S.C. Chapter 17. A notice of disagreement was received in May 1997. A statement of the case was issued in April 1998. A substantive appeal was received from the appellant in June 1998. A hearing was scheduled to be held at the Board in Washington, D.C. in October 1998 but the appellant failed to report for this hearing. The Board notes that whether the appellant is eligible for health-care and related benefits authorized under chapter 17 of title 38 U.S.C. is not addressed in this decision. The appellant was informed, in the April 1997 administrative decision, that she may be eligible for such benefits. Such benefits were denied for an alleged psychiatric disorder in an unappealed January 1998 RO decision. As such, the issue currently in appellate status is as listed above. FINDINGS OF FACT 1. The appellant served on active duty from October 1981 to May 1983, and was discharged under other than honorable conditions. 2. An April 28, 1983, Summary Court-Martial Order, indicates that the appellant plead guilty to willfully disobeying lawful orders on April 19, 1983 and April 20, 1983, and striking her superior noncommissioned officer while in the execution of her office, on or about April 28, 1993, in violation of Article 91, Uniform Code of Military Justice (UCMJ); during service the appellant was also charged with several other violations, to include failing to report to her appointed place of duty in violation of Article 86, UCMJ, going AWOL (absence without official leave) from April 8 to April 10, 1983, showing disrespect to a commissioned officer, disobeying a lawful order, assaulting a prison guard in violation of Article 128, UCMJ, and refusing to wear a uniform. 3. The appellant's offenses committed during her military service were willful and persistent; she was not insane at the time of the commission of any of the offenses which led to her discharge; and for purposes of VA benefits, the appellant's discharge from service was under dishonorable conditions. CONCLUSION OF LAW The appellant's discharge from her October 1981 to May 1983 service was under dishonorable conditions, and constitutes a bar to VA benefits for this period, except for Chapter 17 of 38 U.S.C. 38 U.S.C.A. § 5303 (West 1991); 38 C.F.R. § 3.12(d) (4) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in every claim for VA benefits concerns the adequacy of the appellant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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 U.S.C.A. § 101(2), 101(18) (West 1991 & Supp. 1999); 38 C.F.R. § 3.12(a) (1999). Regulations further provide that a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d) (1999). A discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4) (1999). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. Additionally, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 C.F.R. § 3.12(b) (1999). A review of the file reveals that the appellant entered active military service in October 1981 and was discharged under other than honorable conditions in May 1983. The narrative reason for separation was "Misconduct- pattern of misconduct." Further review of the file reveals that, according to an April 28, 1983, Summary Court-Martial Order, the appellant plead guilty to the following offenses: willfully disobeying lawful orders on April 19, 1983 and April 20, 1983, and striking her superior noncommissioned officer while in the execution of her office, on or about April 28, 1993, in violation of Article 91, UCMJ. The appellant was sentenced to forfeiture of $428 per month and to 30 days hard labor confinement. The appellant's service records also reflect that she was charged with several other violations in March, April and May 1983, to include that she failed to report to her appointed place of duty in violation of Article 86, UCMJ on March 25th, went AWOL (absence without official leave) from April 8th to April 10th, showed disrespect to a commissioned officer on April 20th, disobeyed a lawful order on April 21st, assaulted a prison guard in violation of Article 128, UCMJ on April 21st, failed to obey an order on April 29th, and refused to wear a uniform on May 2nd, among other things. Service medical records reflect that the appellant was admitted to the hospital for neuropsychiatric observation from April 21 to April 26, 1983, with diagnoses of rule out borderline personality disorder, rule out substance abuse, marijuana and LSD, and alcohol abuse. The summary report indicates that the appellant's unit commander was contacted and reported that the appellant was a total disruption for the unit. As a result of this admission, the veteran was diagnosed with a severe personality disorder and multiple substance abuse, to include LSD and marijuana, and occasional alcohol to excess. It was noted that the appellant displayed no signs or symptoms of psychotic behavior. The examiner recommended that the appellant be immediately administratively separated from service. On mental status evaluation conducted on April 28, 1983, the appellant's behavior was normal and she was fully alert and oriented. Her mood was hyperactive, thinking clear, memory good, and thought content normal. The examiner found that the appellant had no significant mental illness, was mentally responsible, able to distinguish right from wrong, and was able to adhere to the right. The appellant was again diagnosed with a severe character behavior disorder, and it was again recommended that she be immediately administratively separated from service. Finally, service records reflect that in May 1993 it was recommended by several commanding officers that the appellant be separated from service due to her continuous pattern of misconduct, and ultimately she was discharged under Chapter 14 (Discharge for Misconduct), AR 635-200 effective May 20, 1993. The Board finds that the violations committed by the appellant in service were so repetitive as to demonstrate willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4) (1999). Further, the Board concludes these offenses, which led to the appellant's discharge - including assaults and disobeying orders - were not minor in nature. Her offenses, committed over a relatively short period of time, were the type of offenses that would interfere with her military duties, and indeed would preclude their performance; such cannot be characterized as minor offenses (See Cropper v. Brown, 6 Vet. App. 450 (1994)), nor was her service otherwise honest, faithful, and meritorious. Finally, the Board notes that there is no evidence of record that the appellant was insane at the time of the misconduct noted above. In conjunction with this claim, the appellant did submit a detailed statement to the effect that she was sexually harassed while in service, first began to remember being the victim of a violent sexual assault at the age of seven, and was involved in a relationship with a man, the end of which (when he transferred) sent her into a "rapid decline." The appellant noted that at that time her substance abuse escalated, she became more defiant, and ultimately left the military as a "broken person." The appellant made similar statements during post-service treatment, including to a clinical social worker at the Hartford Vet Center, who, in an undated letter (received at the RO in May 1997) indicated that the appellant's behavior leading up to her discharge from service appeared to be the response to feelings of vulnerability triggered by military events and partial recollection of childhood trauma. Further, this history was given during a VA psychiatric examination accomplished in May 1997, at which time the appellant was diagnosed with a borderline personality disorder and post traumatic stress disorder (PTSD), the latter diagnosis in part related to her alleged childhood trauma. While the Board is sympathetic with the problems allegedly confronting the appellant during the time leading up to her separation (and apparently thereafter, according to the record), at the time of her discharge from service, she was diagnosed with having a severe personality disorder and not a psychiatric disorder to include psychotic manifestations. In fact, such manifestations were specifically not found at that time. She was certainly, as reflected above, not found to be insane at the time, nor does any of the post-service medical evidence suggest that such was the case. 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 her discharge, for purposes of entitlement to VA benefits, is considered to have been under dishonorable conditions and she is barred from VA benefits, except for health care and related benefits under chapter 17 of title 38 U.S.C. 38 U.S.C.A. § 5303 (West 1991); 38 C.F.R. §§ 3.12, 3.360 (1999). ORDER The appeal is denied. D. C. Spickler Member, Board of Veterans' Appeals