Citation Nr: 0717368 Decision Date: 06/11/07 Archive Date: 06/18/07 DOCKET NO. 05-17 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits, including healthcare benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The appellant served on active duty from January 1990 to February 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2003 Administrative Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. FINDINGS OF FACT 1. The appellant's actions resulting in a special court- martial and bad conduct discharge on February 13, 1995 constituted willful and persistent misconduct within the meaning of the law for the period of service extending from January 8, 1990 to February 13, 1995. 2. The appellant was not insane (as defined by VA regulation) at the time of the commission of the offenses which led to his court-martial and discharge. CONCLUSION OF LAW The character of the appellant's discharge constitutes a bar to VA benefits, including healthcare benefits. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. §§ 3.12(a)(b)(d)(4), 3.301(a)(c)(3), 3.354, 3.360 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION In reaching this determination, the Board wishes to make it clear that it has reviewed all the evidence in the claims file, which includes: his multiple contentions; service medical and administrative records; and private medical records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant in this case seeks to modify and/or amend the character of his discharge from service. In pertinent part, it is contended that, at the time of the commission of the acts which led to his "bad conduct" discharge, the appellant was, in fact, insane. In that regard, veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. See 38 C.F.R. § 3.1(d). Where a former service member did not die in service, compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2). A discharge under honorable conditions is binding on the Department of Veterans Affairs as to character of discharge. 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 or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b). A discharge or release due to willful or persistent misconduct is considered to have been issued under dishonorable conditions. Willful and persistent misconduct includes a discharge under other than honorable conditions, where 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 the service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(a)(b)(d) (2006). As previously alluded to, direct service connection may be granted only where a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct, or, for claims filed after October 31, 1990, (as in this case), the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. § 105. The isolated infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2006). For the purposes of determining whether a discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits, an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. When a rating agency is concerned with determining whether a claimant was insane at the time he committed an offense leading to his court-martial, discharge, or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition noted above. 38 C.F.R. § 3.354 (2006). Health care and related benefits authorized by Chapter 17 of Title 38, United States Code, shall be provided to certain former service persons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in the line of duty. With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by discharge under other than honorable conditions. Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. In the present case, the DD Form 214 shows that the character of service for the period of service from January 1990 to February 1995 was listed as "bad-conduct discharge." The narrative reason for the appellant's separation was listed "as a result of court-martial." A review of the appellant's personnel file shows that he was tried by special court- martial for various offenses on February 18, 1993. The Special Court-Martial found that he was guilty of several of the offenses with which he had been charged, including being absent without leave from September 12th to September 18th and from September 21st to September 27th, 1992; being absent without leave from October 13th to October 15th, 1992; being absent without leave from November 3rd to November 5th, 1992; and being absent without leave from December 4th to December 9th, 1992. The appellant was additionally found guilty of failing to go to his appointed place of duty on October 16th, 1992, and of wrongfully using methamphetamines on or about November 23rd and November 30th, 1992, and on or about December 5th and December 10th, 1992. Finally, the appellant was found guilty of having wrongfully stolen a 1986 automobile on December 3rd, 1992. The sentence assigned was a bad conduct discharge, with four months' confinement, and a forfeiture of $525 per month for four months, with reduction to the rank of E-1. The pretrial agreement suspended confinement over 90 days for a period of 12 months. The military judge ordered an 80-day administrative credit for the time the appellant was in pretrial confinement, and no days of judicially ordered credit, for a total of 80 days' credit. The appellant subsequently appealed this decision and was granted voluntary appellate leave to await appellate review effective March 5th, 1993. On February 13th, 1995, the decision of the Special Court-Martial was affirmed, and the appellant's bad conduct discharge was executed. In an Administrative Decision of September 2003, it was determined that the appellant's actions resulting in a bad conduct discharge in February 1995 constituted willful and persistent misconduct within the meaning and intent of the law for his period of service from January 1990 to February 1995. That Administrative Decision also found no evidence that the appellant was insane at the time of the commission of the offenses which led to his discharge, and that basic entitlement to VA benefits for the period of service from January 1990 to February 1995 was not shown. A review of the service medical records shows that, while in service, the appellant received a diagnosis of, and was treated for, an organic delusional disorder due to amphetamine use, for which he was subsequently admitted to a detoxification facility with a diagnosis of psychosis secondary to amphetamine intoxication. At the time of a preconfinement examination in December 1992, it was noted that the appellant was a long time "crystal meth" user. Significantly, at the time of the appellant's enlistment examination in June 1999, there was no evidence of any psychiatric disability. The Board acknowledges that, in correspondence of June 2003, a private psychiatrist wrote that he was the attending physician for the appellant, and that his clinical impression was that the appellant suffered from post-traumatic stress disorder. However, there is no evidence that, at any time during the appellant's period of active military service, he suffered from a post-traumatic stress disorder of a severity sufficient to render him "insane" as defined by regulation. In point of fact, based on a review of the entire evidence of record, there is no indication that the appellant was, in fact, insane at the time of the commission of any of the offenses which led to his court-martial and discharge. Zang v. Brown, 8 Vet. App. 246 (1995); Struck v. Brown, 9 Vet. App. 145 (1996); VAOPGCPREC 20-97. Under the circumstances, the Board is compelled to conclude that the character of the appellant's discharge constitutes a bar to VA benefits, including healthcare benefits. The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), has been considered. The Administrative Decision from which this appeal arises is dated in September 2003. Although received after that decision, in a letter dated in May 2005, the appellant was told that VA needed information showing that his character of discharge had been upgraded. The appellant was also advised to submit information or evidence that would tend to support his claim. The appellant was told what evidence he should submit and what type of evidence VA would obtain. The appellant was also told that he should submit any evidence, contention, or argument bearing on the issue. Though the aforementioned letter was not issued prior to the 2003 administrative determination, the Board finds that VA effectively met its duty to notify the appellant of the essential VCAA elements and that the appellant was fully informed of the information and evidence needed to substantiate his claim. Further, although the VCAA-content complying notice was not issued prior to the initial adjudication of the matter on appeal, the Board specifically finds that the appellant was not prejudiced because he was given sufficient time to submit and/or identify any and all evidence necessary to substantiate his claim, and he had ample opportunity to participate in the adjudicatory process. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content and that any deficiency in timing has been cured and is nonprejudicial to the appellant. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence. The RO obtained the appellant's service department records, including his service personnel records and records of proceedings associated with his service discharge. Also of record are the appellant's treatment reports. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER The character of the appellant's discharge constitutes a bar to VA benefits, including healthcare benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs