Stringham v. Brown

8 Vet. App. 445, 1995 U.S. Vet. App. LEXIS 951, 1995 WL 757826
United States Court of Appeals for Veterans Claims·Decided December 20, 1995·No. No. 94-1159·Published·Cited by 13 cases

Opinion

KRAMER, Judge:

The appellant, Donald L. Stringham, appeals a September 27, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which found him ineligible for disability compensation because of the character of his discharge. Record (R.) at 5-13. The Court has jurisdiction under 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the Board’s decision.

I. BACKGROUND

The appellant served on active duty from February 1968 to August 1970. R. at 56-9. He received an “undesirable discharge” in August 1970. R. at 59. The record on appeal (ROA) shows that the appellant received four Article 15, Uniform Code of Military Justice (UCMJ), nonjudicial punishments for violations of Article 86, UCMJ, absence without official leave (AWOL) (R. at 60-74, 85), and one Article 15, UCMJ, nonjudicial punishment for violation of Article 92, failure to obey a lawful order (R. at 75-76). In July 1990, the RO granted service connection for post-traumatic stress disorder (PTSD) for the purposes of medical care eligibility under chapter 17, title 38, U.S.Code R. at 188-91.

On December 28, 1992, the Court issued a decision remanding a June 1991 BVA decision which is not the subject of the present appeal. The remand decision directed the BVA to correct several deficiencies in its decision. First, the BVA was directed to provide reasons or bases for the BVA’s finding of “willful and persistent misconduct” under 38 C.F.R. § 3.12(d)(4) (1994). This finding, in turn, had constituted the basis for the Secretary’s determination that the appellant was ineligible for disability compensation benefits because his discharge from military service was under dishonorable conditions. See 38 U.S.C. 101(2); 38 C.F.R. § 3.12(a), (b). Second, the BVA was directed to consider the minor-offense exception contained in 38 C.F.R. § 3.12(d)(4). Finally, the BVA was directed to address the insanity exception contained in 38 C.F.R. § 3.12(b).

Pursuant to the Court remand and after further case development, the BVA issued a decision on September 27, 1994, which found the appellant ineligible for disability compensation because of the character of his discharge. R. at 5-13. In making this determination, the BVA again found that the appellant’s discharge was issued under dishonorable conditions based upon “willful and persistent misconduct.” R. at 8. The Board also found that neither the minor-offense exception (§ 3.12(d)(4)) nor the insanity exception (§ 3.12(b)) was applicable. The findings from the September 27, 1994 BVA decision are the subject of this appeal.

II. ANALYSIS

The BVA’s determination whether a discharge is based on willful and persistent misconduct is a matter of fact which the Court reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Cropper v. Brown, 6 Vet.App. 450, 452 (1994). Under this standard “if there is a ‘plausible’ basis in the record for [448] the factual determinations of the BVA ... [the Court] cannot overturn them.” Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1990); see Cropper, supra. In support of its findings of “persistent” misconduct, the Board points to a seven-month period, from February through August 1970, when the appellant was AWOL several times and failed to obey a lawful order. R. at 10. In support of its findings of “willful” misconduct, the Board stated that the appellant offered “nothing which would indicate that the circumstances were beyond his control or that he was unable to seek assistance for his problems.” Ibid. The Board also noted that the appellant had accepted nonjudicial punishment under UCMJ Article 15 without explanation or appeal. Ibid. Although some of these reasons might better have been applied to both findings rather than used discretely, such error, if any, was nonprejudicial to the appellant because the Court is convinced that the BVA’s findings, as is, are both plausible and adequately supported. See Gilbert, supra.

As to the minor-offense exception, the Board determined, in essence, that such an exception could be applicable only in the case of a single offense and that where, as here, there were multiple instances of AWOL and one instance of failure to obey an order, the exception could not apply. Under 38 C.F.R. § 3.12(d)(4), “[a] discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious” (emphasis added). This language raises the question as to whether a single offense can ever constitute persistent misconduct. It is not necessary, however, to decide this question. Even assuming, without deciding, that the minor-offense exception can apply to multiple offenses, all of the appellant’s offenses, as a matter of law, are not minor because by definition they “were the type of offenses that would interfere with [the] appellant’s military duties, indeed preclude their performance, and thus could not constitute a minor offense.” Cropper, 6 Vet.App. at 452-53.

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Stringham v. Brown, 8 Vet. App. 445, 1995 U.S. Vet. App. LEXIS 951, 1995 WL 757826 (Cal. 1995).

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