Citation Nr: 0702319 Decision Date: 01/25/07 Archive Date: 01/31/07 DOCKET NO. 95-15 025 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether the character of the appellant's discharge from military service constitutes a bar to VA benefits. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The appellant served on active duty from July 1952 to December 1954. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a November 1992 administrative decision of the RO that determined that the appellant's service between July 1952 to December 1954 was considered a bar to VA benefits. The appellant timely appealed. In November 2003, the Board remanded the matter for additional development. FINDING OF FACT Each of the appellant's periods of AWOL was the result of compelling circumstances, and constituted a minor offense; the acceptance of an undesirable discharge in lieu of trial by general court-martial, or willful and persistent misconduct are not demonstrated. CONCLUSION OF LAW The character of the appellant's discharge is not a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. § 3.1, 3.12, 3.13, 3.354 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim. II. Analysis As a preliminary matter, the Board notes that the appellant's service medical records and personnel records are not available and may have been destroyed in a fire at the National Personnel Records Center (NPRC). Moreover, Surgeon General's Office records, morning reports, and sick reports are also not available. The RO has made several attempts to locate these records, and the information cannot be reconstructed. It is incumbent upon VA to afford the appellant's claim heightened consideration due to the unfortunate loss of his service records. E.g., Marciniak v. Brown, 10 Vet. App. 198 (1997), O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The available service records reflect that the appellant's military service from July 1952 to December 1954 was terminated by discharge under conditions other than honorable. The reason for discharge was unfitness. Documented facts and circumstances of the appellant's discharge are unavailable, and presumably all records were destroyed by fire. In April 1992, the appellant filed a claim for basic eligibility for loan guaranty entitlement. In October 1992, the appellant testified before RO personnel that the reason for his going home the first time during basic training was to take care of his sick mother. The appellant was designated as AWOL primarily for a long weekend, returning on Monday or Tuesday, and was given "KP" as a punishment. On the second occasion, the appellant was designated as AWOL for three weeks to one month, returning voluntarily prior to his being sent to Korea. The appellant received an Article 15, and was notified of the passing of his mother during his second day in Korea. The appellant also testified that he earned a Combat Infantryman Badge in Korea, and saw combat; and that he was wounded in Korea when he was hit with a bayonet on his hand. Following an approximate one-year tour of duty in Korea, the appellant returned to Fort Knox, Kentucky. There he met the company commander's daughter, and admitted knowing he was doing wrong by letting himself be strayed. The appellant had gone on a pass or leave, and had not returned. He lived in Newport, Kentucky, with the commander's daughter, and was apprehended by military police for being AWOL and put into the stockade. From there, the appellant was discharged with an undesirable and released from the stockade. There was no court martial. In October 1992, the RO determined that the appellant's discharge was deemed to be under dishonorable conditions, barring all VA benefits. In June 1994, the appellant testified that he had no problems while serving in Korea. On one occasion, the appellant went to Seoul to pick up supplies, and could not get back that night. He was designated as AWOL for one day, and assigned company punishment. He received neither a court martial nor an Article 15. The appellant also testified that, following his service in Korea, he was assigned to the Motor Pool. The commander requested that the appellant go to his house in Newport, Kentucky, to do some gardening, painting, etc. The appellant stayed at the house for 21 or 22 days, prior to being apprehended, and was designated as AWOL from his second day in the Motor Pool. Again, he received neither a court martial nor an Article 15, but was discharged as unfit. In May 2003, the appellant testified that he did not remember signing anything to get a release from service, but that he may have done so. The claims file contains no evidence of any agreement that the appellant accepted some form of undesirable discharge in lieu of a court martial. The evidence shows that the appellant had not applied for a correction of his military records. The appellant has indicated that his military records could not be corrected because they were destroyed by fire and unavailable. A veteran is defined as "a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation benefits are 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 C.F.R. § 3.12(a). If an applicant for VA benefits does not submit evidence of his military service, or the evidence submitted is insufficient, VA must request verification of service from the service department. 38 C.F.R. § 3.203(c); see also Sarmiento v. Brown, 7 Vet. App. 80 (1994). Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces. Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c), and regulatory bars listed in 38 C.F.R. § 3.12(d). In either case, insanity is a defense to either statutory or regulatory bars. See 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). VA benefits are not payable when an individual is discharged by reason of a discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c). This bar to benefits does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (a) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful, meritorious, and of benefit to the Nation. (b) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. (c) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities. Regulatory bars to eligibility to VA benefits include a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (a) Acceptance of undesirable discharge in lieu of trial by general court-martial (note the requirement for a general court-martial, and not summary or special court-martial). (b) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if 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 service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d). The U.S. Court of Appeals for Veterans Claims (Court) has ruled that an unauthorized absence is the type of offense that would interfere with and preclude the performance of an appellant's military duties and thus can not constitute a minor offense. Cropper v. Brown, 6 Vet. App. 450, 453 (1994). In Winter v. Principi, 4 Vet. App. 29 (1993), the Court found that 32 days AWOL out of 176 days total service equals severe misconduct and, by analogy, persistent misconduct. However, in Strinaham v. Principi, 3 Vet. App. 560 (1992), the Court held that an appellant with misconduct that included four AWOLs and one failure to obey a lawful order, but was awarded a purple heart medal and was service- connected for post traumatic stress disorder (PTSD) (for medical treatment purposes) requires analysis under 38 C.F.R. § 3.12(d)(4) (as minor offenses) and VA must discuss effect of PTSD on in-service conduct. Here, the testimony suggests faithful service outside the periods of AWOL. The appellant reports that he received decorations denoting significant participation in combat, and that he was wounded in such combat. The testimony also reflects that at the time of service the appellant had a ninth grade education, and that at the time of his discharge he had recently returned from overseas service. While the veteran's first two periods of AWOL prior to his service in Korea pertained to family emergencies or obligations, his final AWOL demonstrated a lack of maturity in judgment and must be viewed from the appellant's perspective rather than as an adjudicator. The appellant's perspective was that of a young person with limited education, whose service was otherwise honest, faithful, and meritorious. Given the nature of his one-year overseas service in Korea, his limited education and immature judgment, the duties he felt to third parties, and that his total AWOL was significantly less than 180 days; the Board finds that compelling circumstances existed for each period of AWOL and thereby constituted minor offenses that did not involve moral turpitude, or willful and persistent misconduct. In essence, there is no indication that the veteran was ever convicted of a felony. Moreover, with heightened consideration afforded, the Board finds no evidence of the acceptance of an undesirable discharge in lieu of trial by general court-martial, or willful and persistent misconduct. Thus, the veteran has not provided evidence sufficient to establish that his service was dishonorable or that the circumstances of his discharge constitute a bar to benefits under the statute or regulations. We are left with a single document-his Certification of Military Service provided in 1992 by the National Personnel Records Center. Speculation as to the specific reasons for his discharge is just that: speculation. In the absence of evidence that his "other than honorable" discharge was in fact "dishonorable" under the statute or regulations, the Board finds that his character of discharge is not a bar to VA benefits. ORDER The character of the appellant's discharge from service is not a bar to VA benefits; the appeal is allowed. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs