BVA9406655 DOCKET NO. 91-52 166 ) DATE ) ) ) THE ISSUE Whether the character of the appellant's discharge from military service constitutes a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The appellant's service began in May 1967 and ended in August 1972. In a March 1981 administrative decision, it was held that the character of the appellant's discharge from service constituted a bar to Department of Veterans Affairs (VA) benefits. In April 1991 the appellant submitted additional information for the purpose of reopening his claim. In an April 1991 administrative decision, the VA Regional Office, Fargo, North Dakota held that new and material evidence had not been submitted that was sufficient to reopen the claim. The veteran appealed from that decision. This case was initially before the Board of Veterans' Appeals (Board) in August 1992. The Board held that the additional evidence submitted since the March 1981 administrative decision was new and material and sufficient to reopen the claim. It was indicated that the appellant's claim would accordingly be considered on a de novo basis. The Board remanded the case for further development. The case has been returned to the Board and is now ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the character of his discharge from military service should not constitute a bar to VA benefits since his combat caused stress disorder and his self- medication of that condition by alcohol caused his absence without leave from the Armed Forces. The veteran was 19 years old while he was serving in Vietnam and was wounded in combat. He had exemplary duty from May 1967 to March 1969. His service to his country was honest, faithful and meritorious prior to his period of absence without leave. It is asked that the veteran be granted full VA benefits for treatment of his wounds, both psychological and physical and that he be permitted to "come home." 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 character of the appellant's discharge from service does not constitute a bar to VA benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The appellant served on active duty from May 1967 to August 1972. 3. The appellant had a period of unauthorized absence of 22 days in January 1969. He had another period of unauthorized absence from April 1969 to February 1971 for which he received a special court- martial. He was found guilty. His sentence included a bad conduct discharge and confinement at hard labor for three months. 4. In April 1977 the appellant's bad conduct discharge from service was upgraded to a general discharge under Presidential Proclamation 4313 of September 1974. 5. In May 1980 the Naval Discharge Review Board confirmed the April 1977 determination but held that recharacterization of the appellant's general discharge as an honorable discharge was not warranted under the historically consistent criteria for review. 6. There were compelling reasons for the appellant's unauthorized absence from April 1969 to February 1971. CONCLUSIONS OF LAW 1. The April 1977 and May 1980 upgrades of the appellant's discharge to a general discharge under honorable conditions did not remove any of the statutory bars imposed by subparagraph (c) of 38 C.F.R. § 3.12. 38 C.F.R. § 3.12(h) (1993). 2. Since there were compelling reasons for the appellant's unauthorized absence in excess of 180 days which led to his discharge from military service, that discharge does not constitute a bar to the receipt of VA benefits. 38 U.S.C.A. §§ 5107, 5303 (West 1991); 38 C.F.R. § 3.12(c) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note that we have found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. I. Background The record discloses that the appellant's service extended from May 1967 to August 1972. He received an other than honorable discharge from service. His active service included a tour of duty in the Republic of Vietnam, from November 1967 to November 1968. His awards include the Purple Heart Medal and Combat Action Ribbon. He was born in April 1948. The appellant's service records further indicate that he was absent without leave for 22 days in January 1969 and was again absent without leave from April 1969 to February 1971, a period of about 22 months. He was convicted by a special court-martial of unauthorized absence and was sentenced to a bad conduct discharge. In April 1977 the appellant was awarded a clemency discharge pursuant to Presidential Proclamation 4313. In July 1979 he petitioned the Naval Discharge Review Board for review, asking that the character of his discharge be changed to honorable. In May 1980 the Discharge Review Board held that, consistent with a January 1977 Presidential memorandum relating to clemency discharges, the basis of the appellant's discharge should be changed to general/convenience of the Government. The Board further determined that further recharacterization was not warranted under the historically consistent criteria for review. It was held that the general discharge had been awarded only because the circumstances of the appellant's case had met the criteria of the Presidential memorandum of January 1977 and that, in view of the appellant's unauthorized absence of 657 days, his conduct had to remain characterized as other than honorable under traditional standards of honorable service. The Naval Discharge Review Board proceedings further indicate that the appellant had completed the eighth grade and that after enlisting in service he had completed recruit training and had no problems. He had initially been assigned as a mortar man in Vietnam and later as an ambulance driver. It was stated that he had participated in two operations. He had been wounded and hospitalized and later returned to duty. It was indicated that he had attained the rank of lance corporal and was getting good marks of 4.6 and 4.7 and his record was considered to be excellent. It was further indicated that he had been transferred to Camp Pendleton in November 1968 and had been bothered by attitudes toward the Vietnam war and servicemen. Moral was low. Other Marines had used drugs and he had used marihuana and drunk heavily. In an April 1991 statement the veteran described various traumatic incidents that occurred during his service in Vietnam including the death of his best friend. He stated that after he returned to the United States his anger was too great and he could not stand the protesting. He indicated that alcohol was the only thing that helped. He had accordingly gone absent without leave. The veteran's sister related in April 1991 that the veteran's personality had changed after his return from Vietnam. She stated that before he had been sent to Vietnam he had been a happy-go-lucky person and was fun to be around and joked a lot. She stated that after his return, he was moody and when anyone would talk to him he wouldn't answer. She stated that it was as if he was in his own little world. The veteran was seen at a VA mental health clinic in May 1991 by J. Brown, Ph.D. It was indicated that he appeared to meet the criteria for post-traumatic stress disorder. Another 1991 report by a licensed independent clinical social worker reflects a diagnosis of post-traumatic stress disorder. The veteran was afforded a psychiatric examination by the VA in May 1993. It was stated that he had been wounded in the right leg and right elbow by shrapnel in July 1968 and had been hospitalized. It was stated that for his first 3 or 4 months in Vietnam he had been assigned to the Infantry and then he had been an ambulance driver. Part of his duty required that he pick up and bag bodies. He reported that in July 1968 a helicopter had struck a hill and everyone aboard had been killed. He had had to go out and pick up the bodies and the helicopter had had a load of Agent Orange on it. He stated that there had been Agent Orange all over everything and everyone. The veteran also recalled a nightmare which might have actually occurred. He recalled seeing a body bag with movement in it and hearing an intense scream which usually woke him up. He stated he realized that after a while the scream was coming from himself. The veteran stated that his reason for going absent without leave was that he was very angry at society, having had problems with the protesters against the war. After his discharge he returned to his home and had continuing problems with alcohol. He reported current problems with nightmares and that he at times had flashbacks. He had survivor guilt and a startle response and was hypervigilant. He had had temper problems since he came back. He had had suicidal thoughts but no attempts and was often blue and depressed. Various findings were recorded on the mental status examination. It was indicated that he had various post-traumatic stress disorder symptoms as indicated previously. The diagnosis was post-traumatic stress disorder with alcohol dependence. II. Analysis If the veteran did not die in service, pension, compensation or dependency and indemnity 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); 38 C.F.R. § 3.12(a). Benefits are not payable where the veteran was discharged or released by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days unless it is found he was insane at the time of committing the offense. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether compelling circumstances warranted the prolonged unauthorized absence, the length and character of service exclusive of the period of the unauthorized absence will be considered. This period should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. Additionally, consideration may be given to reasons offered by the claimant including family emergencies or obligations. These reasons 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. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(c)(6). An honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed by paragraph (c) or (d) of this section; (1) The President's directive of January 19, 1977, initiating further action with respect to Presidential Proclamation 4313 of September 16, 1974, or (2) the Department of Defense's Special Discharge Review Program effective April 5, 1977, or (3) any discharge review program implemented after April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval or air service under other than honorable conditions. 38 C.F.R. § 3.12(h). In this particular case, as noted previously, the veteran received a bad conduct discharge from military service. In April 1977 his discharge was upgraded to a general discharge pursuant to Presidential Proclamation 4313 and this discharge was confirmed on review in May 1980. However, as noted under 38 C.F.R. § 3.12(h), the upgraded discharge does not remove a bar to benefits imposed by 38 C.F.R. § 3.12(c). (A discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days). Accordingly the service department findings are not controlling and a VA character of discharge determination is required in the appellant's case. The record discloses that the veteran served in the Republic of Vietnam from November 1967 to November 1968 and that he was wounded in action while serving there. He has reported various traumatic experiences including placing deceased servicemen in body bags in connection with his duties as an ambulance driver. A diagnosis of post-traumatic stress disorder has been made on the recent VA examination. The veteran has indicated that after his return to the United States his anger was too great and he could not stand the antiwar protesting. He has indicated that his psychiatric condition and his self-medication of that condition by alcohol caused his absence without leave from the Armed Forces. The record further reflects that the veteran was only 19 years of age when he entered military service and he reportedly had only completed some 8 or 9 years of education. He had good performance marks and had completed more than 1 1/2 years of active service, including about one year in the Republic of Vietnam before his initial period of unauthorized absence. In the Board's judgment, the evidence establishes that there were compelling reasons for the veteran's period of unauthorized absence in excess of 180 days. In addition, the Board considers his active service exclusive of the period of unauthorized absence to have been generally honest, faithful, and meritorious and of benefit to the nation. Accordingly, the bar to VA benefits imposed by 38 C.F.R. § 3.12(c) does not apply and the veteran's discharge from military service may be considered as having been issued under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12(a). In arriving at its decision in this case the Board has resolved all doubt in favor of the appellant. 38 U.S.C.A. § 5170. ORDER The character of the appellant's discharge from military service does not constitute a bar to Department of Veterans Affairs benefits. The appeal is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 JAMES R. ANTHONY ROBERT D. PHILIPP * (MEMBER TEMPORARILY ABSENT) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.