BVA9505818 DOCKET NO. 93-11 356 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the character of the appellant's discharge is a bar to Department of Veterans affairs benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The appellant had active service from April 9, 1952 to December 28, 1955. This appeal arises from a November 1992 administrative decision by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO) that the character of the appellant's discharge was a bar to the receipt of Department of Veterans Affairs (VA) benefits. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the appellant had two periods of service, one of which terminated with an honorable discharge on September 26, 1952. It is asserted that the appellant's subsequent term of service which terminated with a bad conduct discharge on December 28, 1955 is separate and distinct from his initial term of active service. It is further contended that the appellant is entitled to VA benefits based on his first term of service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 character of the appellant's discharge is a bar to the receipt of VA benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant had active service from April 9, 1952 to December 28, 1955. 3. He was originally inducted into active service for a period of two years. 4. He was convicted by special court-martial in February 1953 for breaking restriction and two periods of unauthorized absence and received nonjudicial punishment on April 5, 1954 for either failure to go to his appointed place of duty or unauthorized absence and disobedience of an order. 5. He was discharged on September 26, 1952 for the purpose of enlistment for three years. 6. He was convicted by general court-martial in August 1955 for brandishing a dangerous weapon at another service member. The sentence included a bad conduct discharge. 7. The bad conduct discharge was executed on December 28, 1955. CONCLUSIONS OF LAW 1. The appellant, who received a conditional discharge in September 1952, may not be considered to have been unconditionally discharged under conditions other than dishonorable at the time of completion of the period of his initial service obligation of two years in April 1954 because of willful and persistent misconduct. Accordingly, basic eligibility for VA benefits is determined on the basis of the entire period of active service. 38 U.S.C.A. §§ 101(18), 5107 (1991); 38 C.F.R. §§ 3.12, 3.13 (1994). 2. Pursuant to sentence of a General Court Martial, the appellant was discharged from active service with a bad conduct discharge in December 1955. His discharge is considered to have been issued under dishonorable conditions. Therefore, VA benefits are not payable based upon the appellant's service. 38 U.S.C.A. §§ 101(2) (1991); 38 C.F.R. §§ 3.12, 3.360 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, he has presented a claim which is plausible, and all relevant facts have been properly developed. No further assistance to the appellant is required to comply with the duty to assist the appellant mandated by 38 U.S.C.A. § 5107. The Board notes that the appellant had applied for VA pension benefits and was denied them by an unappealled administrative decision dated in January 1963. The decision was decided on the basis that the character of the appellant's final discharge was a bar to VA benefits. Subsequent to this decision, Public Law 95- 126 was enacted, effective October 8, 1977, which allows a veteran who was discharged for the purpose of enlistment or re- enlistment to be awarded VA benefits based on the initial period if he completed his original term of service and would have been eligible for discharge or release under conditions other than dishonorable at that time. This provision constitutes a new benefit which was not available at the time of the original decision. Therefore, the Board will consider the appellant's claim on a de novo basis. A discharge to accept appointment as a commissioned or warrant officer, or to change from a Reserve or Regular commission to accept a commission in the other component, or to reenlist is a conditional discharge if it was issued during one of the following periods: (1) World War I; prior to November 11, 1918. As to reenlistments, this subparagraph applies only to Army and National Guard. No involuntary extension or other restrictions existed on Navy enlistments. (2) World War II, the Korean conflict or the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. (3) Peacetime service; prior to the date the person was eligible for an unconditional discharge. (b) Except as provided in paragraph (c) of this section, the entire period of service under the circumstances stated in paragraph (a) of this section constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service except that, for death pension purposes, § 3.3(b)(3) and (4) is controlling as to basic entitlement when the conditions prescribed therein are met. (c) Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13. In the instant case, the appellant's service records indicate that he was inducted into active service on April 9, 1952 for a period of two years. A VA Form 21-3101 dated in September 1992 indicates that his term of service would have ended on April 8, 1954. His records contain a DD Form 214 for the period of April 9, 1952 to September 26, 1952 which indicates that his active service through September 26, 1952 was honorable and that the discharge was for the purpose of enlistment. On September 27, 1952, the appellant enlisted for three years. A Verification of Military Service Data dated in November 1962 indicates that the appellant was not eligible for complete separation in September 1952. A DD Form 464 dated in September 1955, indicates that the appellant was convicted by special court-martial in February 1953 for two periods of unauthorized absence, one for 31 days and the other for 5 days, and for breaking restriction. The form also indicates that on April 5, 1954, the appellant received nonjudicial punishment for disobeying an order (Article 92) and for either failure to go to his place of duty or for unauthorized absence (Article 86). The appellant's service records also include a copy of General Court-Martial Order No. 9-55, dated in September 1955, which indicates that the appellant was convicted of aggravated assault and was sentenced, inter alia, to a bad conduct discharge (BCD). The order notes that one previous conviction was considered. Also included is the General Court-Martial Convening Authority's action dated in dated in September 1955, upholding the conviction. By decision dated in September 1955, the Navy Board of Review upheld the conviction and sentence. A DD Form 463 dated in November 1955, the report of a clemency board at the U.S. Naval Retraining Command indicates that the appellant was ambivalent in his motivation for service and that he waived restoration to duty; requesting a discharge under honorable conditions. In November 1955 the Naval Clemency Board declined to grant clemency for the appellant. The records available for clemency board review included a classification summary which noted several military offenses and indicated that his military record prior to the current offense "could be described as unsatisfactory." It was noted that he resented authority overtly, drank excessively and became irresponsible and unpredictable. Supplementary General Court-Martial Order No. 582-55, dated in November 1955, ordered that the appellant's bad conduct discharge executed. A DD Form 214 indicates that the discharge was executed on December 28, 1955. A VA Form 3101 dated in October 1962 indicates that the appellant received a bad conduct discharge in December 1955. The appellant's initial enlistment was terminated by the proper authorities in less than two years and although an honorable discharge was issued, it does not provide the basis for awarding VA benefits. The discharge was issued in September 1952 for the purpose of immediate enlistment. At that time, the appellant was not eligible for complete separation and the September 1952 discharge did not terminate his military obligation. His initial period of service was for two years, therefore he would not have become eligible for complete separation until April 8, 1954. As he was convicted of three offenses in February 1953 and received nonjudicial punishment on April 5, 1954 for two offenses; he had been punished for five offenses prior to the date of the expiration of his original obligated service. Under these circumstances, it may not be held that he would have been eligible for a discharge or release under conditions other than dishonorable at the end of the initial period of service. The record demonstrates that the appellant had embarked on a course of willful and persistent misconduct during his first term of service which continued during his subsequent term and which ended in the issuance of a punitive discharge. The character of the appellant's service constitutes a bar to VA benefits. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is any doubt as to a material issue. 38 U.S.C.A. § 5107. ORDER The character of the appellant's discharge constitutes a bar to VA benefits. The appeal is denied. ROBERT D. PHILIPP 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.