BVA9504811 DOCKET NO. 93-12 085 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether the character of the serviceman's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) death benefits. REPRESENTATION Appellant represented by: Maine Division of Veterans Services ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The appellant is the widow of the serviceman who served on active duty in the Armed Forces from May 23, 1944 to September 3, 1947, at which time he was given a bad conduct discharge. He died in March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1992 determination by the Togus, Maine Regional Office (RO), which denied the appellant's claim seeking entitlement to VA death benefits on the basis that the serviceman's discharge from military service was issued under conditions which bar the payment of VA benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant, the serviceman's widow, and her representative contend, in effect, that the character of her husband's discharge from military service should not constitute a bar to her receipt of VA death benefits. She maintains that there were mitigating circumstances for any acts of misconduct committed by him during his tour of active service. Essentially, the appellant asserts that he was immature, lacked a formal education and was assigned to combat duty during the initial amphibious invasions of Iwo Jima and Okinawa. Additionally, the appellant contends that the serviceman was not provided appropriate mental health therapy to help him cope with his combat experiences. In this regard, she alleges that her husband may have been suffering from post- traumatic stress disorder (PTSD) at the time of his commission of the offenses. It is further argued that his acts of misconduct were minor infractions that can not be characterized as willful and persistent when viewed in the light of his otherwise honest, faithful and meritorious service. 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 veteran'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 evidence of record does not support the appellant's claim for VA death benefits based on the character of the serviceman's discharge from military service. FINDINGS OF FACT 1. The serviceman's period of active military service from May 3, 1944 to September 3, 1947 was terminated by reason of a bad conduct discharge. 2. The serviceman received nonjudicial punishment in July and August 1945 for absence without leave for two hours and thirty minutes, and five hours and thirty minutes, respectively. 3. In November 1945, he was convicted by a general court martial following a period of absence over leave of thirty-three days, and by summary court martial in July 1947 of absence without leave for three hours, assaulting a Petty Officer, writing in the deck log without proper authority and drunk while in duty status. 4. The serviceman was absent without leave for twenty seven hours on August 20, 1947 and was discharged with a bad conduct (under other than honorable conditions) discharge on September 3, 1947, as a result of a violation of a probation period imposed by the July 1947 summary court martial. 5. The serviceman had enlisted on May 23, 1944 to serve during minority until March 24, 1948. He was not eligible for complete separation when he was discharged on September 3, 1947. 6. The serviceman was sane at the time of his commission of the offenses which established the pattern of willful and persistent misconduct. CONCLUSION OF LAW The serviceman was discharged from service on September 3, 1947 by reason of a bad conduct discharge (under other than honorable conditions) because of willful and persistent misconduct, and the character of this discharge, considered to be under dishonorable conditions, is a bar to the receipt of VA death benefits based on his military service. 38 U.S.C.A. § 101(2), 101(18), 1310(b), 5303(b) (West 1991); 38 C.F.R. § 3.12 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As pertinent to the present appeal, the governing legal criteria 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); 38 C.F.R. § 3.12(a) (1993). A discharge or release for certain offenses, including willful and persistent misconduct, is considered to have been under dishonorable conditions. 38 C.F.R. § 3.12(d)(4) (1993). An exception is provided under that regulation if the discharge was because of a minor offense and 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 U.S.C.A. § 5303; 38 C.F.R. § 3.12(b) (1993). Review of the service department records reflects that the serviceman enlisted on May 23, 1944 to serve during minority until March 24, 1948. He served until September 3, 1947, at which time he was given a bad conduct discharge due to several offenses. The serviceman was absent without leave for two hours and thirty minutes on July 28, 1945 and for five hours and thirty minutes on July 31 to August 1, 1945 for which he was not brought to trial by court martial. He was convicted by a general court martial in November 1945, for absence over leave of 33 days. The serviceman was also convicted by summary court martial in July 1947 of absence without leave for three hours, assault on a Petty Officer of the watch, writing in the deck log without proper authority and drunk while in duty status. The sentence adjudged was a bad conduct discharge from the United States Navy which was remitted on condition that he maintain a satisfactory record for a period of six months. He violated his probationary period by absence over leave for 27 hours in August 1947 and, effective on September 3, 1947, he was discharged from service with a bad conduct discharge. In December 1947, a decision was entered by the VA with respect to the issue of the character of the serviceman's discharge from service. Therein, a review of the facts and circumstances leading to the serviceman's release from active duty with a bad conduct discharge was undertaken, and it was concluded that his discharge occurred as a result of willful and persistent misconduct. As a result, his bad conduct discharge was considered to be a discharge under dishonorable conditions for VA purposes, and thus a bar to VA benefits. In November 1949, the Navy Department's Board of Review, Discharge, and Dismissals notified the Chief of Naval Personnel that the Board had reviewed the bad conduct discharge and found that no change should be made. Such action was undertaken in accord with the serviceman's 1949 request for review of his discharge. He alleged at that time that immaturity caused his wrong doings, pointing out that he was never in trouble overseas, but developed an irresponsible and reckless attitude after the war, which led to his dismissal. In response to a request made by the VA for information regarding the serviceman's military service, the National Personnel Records Center, in a report dated in March 1992, indicated that the serviceman was not eligible for complete separation from service when he was discharged on September 3, 1947. While the serviceman's offenses have been found persistent and willful, the appellant has advanced contentions that they were rather minor and that the rest of his service was honest, faithful and meritorious. Therefore, she asserts that they should not be used as a basis to bar VA death benefits. 38 C.F.R. § 3.12(d)(4). The Board notes that the United States Court of Veterans Appeals held in Cropper v. Brown, 6 Vet.App. 450 (1994), that in determining whether a claimant's discharge was the result of willful and persistent misconduct, the Board must find that the serviceman's conduct was not a minor offense and consider whether the serviceman's service was otherwise honest, faithful and meritorious. Although a minor offense may not provide the basis to establish willful and persistent misconduct, this case involves several offenses, and two judicial convictions. Moreover, the number and frequency of the periods of unauthorized absence certainly indicate a persistent pattern of behavior that was not consistent with the honest, faithful and meritorious service for which VA benefits were intended. The Board further acknowledges the appellant's assertion that the magnitude of circumstances confronting the serviceman, as well as impediments resulting from his personal background and possible PTSD, effectively mitigated any misbehavior on his part while on active duty. The record contains no evidence whatsoever to the effect that the offenses committed in service were a product of a mental disorder. Likewise, the Board can find no evidence of the presence of extenuating circumstances excusing the serviceman's repeated conduct. The appellant has cited nothing which would indicate that the circumstances were beyond his control or that he was unable to seek assistance for his problems. Further, the circumstances the appellant relates were not alleged by her husband at the time of his discharge. The serviceman's lack of any defense and apparent acquiescence to his punishment indicates a certain degree of acknowledgment on his part that he committed the violations willfully. However, as already pointed out by the RO in the April 1992 decision notification letter, which provided the appellant with DD Forms 293 and 149, there may still exist ways for the appellant to directly petition the military for correction or revision of the serviceman's service records as they pertain to the character of his discharge. The evidentiary record certified to the Board for appellate review does not reflect that the forms were completed and returned to the appropriate authority. In sum, the record persuasively shows that the serviceman's conduct during service constituted willful and persistent misconduct. There is no evidence of insanity at the time of the misconduct, and it has not been contended that the veteran was insane. Therefore, his discharge must be considered as having been under dishonorable conditions 38 C.F.R. § 3.12(d)(4). Accordingly, under these circumstances, the payment of VA death benefits based on the serviceman's military service is precluded by law. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court held that cases in which the law is dispositive, the claim should be denied because of the absence of legal merit. ORDER The appeal is denied. N. R. ROBIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.