Cropper v. Brown

6 Vet. App. 450, 1994 U.S. Vet. App. LEXIS 447, 1994 WL 197928
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 23, 1994
DocketNo. 92-1187
StatusPublished
Cited by24 cases

This text of 6 Vet. App. 450 (Cropper v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cropper v. Brown, 6 Vet. App. 450, 1994 U.S. Vet. App. LEXIS 447, 1994 WL 197928 (Cal. 1994).

Opinions

MANKIN, Judge, filed the opinion of the Court, in which IVERS, Judge, joined. HOLDAWAY, Judge, filed a separate opinion concurring in part and dissenting in part.

MANKIN, Judge:

John E. Cropper (appellant) appeals a June 3, 1992, decision of the Board of Veterans’ Appeals (Board) determining that appellant’s discharge under other than honorable conditions precluded entitlement to veterans benefits. The appellant asserts the Board’s determination was in error because it improperly applied the relevant law. Specifically, the appellant avers the Board did not properly apply relevant statutes and regulations regarding the impact of insanity upon characterization of discharge and subsequent entitlement to veterans benefits. While the Board did not fail to properly apply the relevant laws and regulations regarding insanity and characterization of discharge, it did, however, fail to discuss relevant evidence of record.

I. Factual Background

The appellant served in the United States Navy from March 1, 1984, to January 17, 1986. During service, the appellant received four nonjudicial punishments resulting from marijuana use, an absence without leave, drunk and disorderly conduct, and failure to go to appointed place of duty. Consequently, the appellant was discharged with an other than honorable discharge “by reason of misconduct” showing a pattern of “frequent involvement of a discreditable nature with civil or military authorities.”

In November and December 1986, the appellant set six fires in Ocean City, Maryland. He was subsequently arrested, and tried on six counts of arson. During trial, the appellant presented three psychiatric experts who testified that appellant suffered from pyromania. In a plea arrangement with the prosecution, the appellant was found not criminally responsible for the six counts of arson, and was committed to Maryland’s Perkins Hospital for the treatment of the criminally insane.

When first admitted to the Perkins Hospital, the appellant underwent extensive psychiatric and psychological testing. A report of the tests concluded that the appellant “has a long history of impulsive, antisocial behavior. [The appellant] does not appear to have any sense of responsibility for many of [his criminal] actions.” The conclusions drawn by the testing reported that the appellant “has other past episodes of antisocial activities often fueled by substance abuse. His discharge from the Navy ... [was] temporally related to his abuse of alcohol_ Be[452]*452cause of his condition of pyromania, substance abuse, and antisocial personality structure, I believe this man would continue to be dangerous if released.”

The appellant applied for veterans benefits in September 1988. Based upon the other than honorable discharge, the VA denied the appellant’s claim except for health care benefits. The appellant appealed this finding to the Board, which also found that the appellant’s discharge precluded entitlement to veterans benefits. The Board considered the appellant’s claim that he was insane when each of the incidents leading to his discharge occurred. However, the Board concluded, relying upon the lack of any evidence of insanity in the appellant’s service medical files, that appellant’s discharge under other than honorable circumstances precluded eligibility for all veterans benefits except health care benefits. This appeal followed.

II. Analysis

A Willful and Persistent Misconduct

The appellant concedes that his discharge was characterized as under other than honorable circumstances. The appellant contends, however, that the Board erred in finding that his conduct constituted willful and persistent misconduct. In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a “veteran.” Aguilar v. Derwinski, 2 Vet.App. 21 (1991); see also, e.g., 38 U.S.C. § 1110 (entitlement to wartime disability compensation predicated upon status as disabled veteran). A “veteran” is any “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2). Thus, a claimant must establish as a threshold matter that he was discharged under conditions other than dishonorable. Id.

The statute and regulations direct that certain offenses act as a bar to entitlement to veterans benefits. 38 U.S.C. § 5303; 38 C.F.R. § 3.12 (1993). Among those offenses is a discharge under other than honorable (OTH) conditions issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). In determining whether a claimant’s discharge was the result of willful and persistent misconduct, the Board must find that the claimant’s conduct was not a minor offense, and consider whether the claimant’s service was “otherwise honest, faithful, and meritorious.” Id. An OTH discharge found to be the result of willful and persistent misconduct will be considered to have been issued under dishonorable conditions, 38 C.F.R. § 3.12(d)(4), and will render a claimant ineligible for veterans benefits. 38 U.S.C. § 101(2).

In the present case, the Board found as a matter of fact that the appellant could not be classified as a veteran because his OTH discharge was issued under dishonorable conditions due to willful and persistent misconduct, and that he did not fall within the exemption for a “discharge because of a minor offense” provided by 38 C.F.R. § 3.12(d)(4). The appellant asserts that this finding is in error. The Court reviews such assertions of error in fact finding under the “clearly erroneous” standard. Rogers v. Derwinski, 2 Vet.App. 419, 421 (1992). In Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), we stated the role of this Court is not to make findings of fact, but to ascertain whether the findings made by the Board evidence clear error. The Board’s findings constitute clear error only where they are not supported by a plausible basis in the record. Id.

The Board found, and the record reveals, that the appellant received nonjudicial punishment for unlawful possession and use of marijuana, absence without leave for several hours, drunk and disorderly conduct, and failure to go to appointed place of duty. The record also demonstrates that the incidents which resulted in the nonjudicial punishments took place over a period of slightly more than one year.

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Cite This Page — Counsel Stack

Bluebook (online)
6 Vet. App. 450, 1994 U.S. Vet. App. LEXIS 447, 1994 WL 197928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cropper-v-brown-cavc-1994.