Citation Nr: 0813753	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  06-08 775	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Whether the character of the appellant's discharge from 
military service constitutes a bar to Department of Veterans 
Affairs (VA) benefits.


ATTORNEY FOR THE BOARD

M. Donohue, Associate Counsel 


INTRODUCTION

The appellant had active duty service in the United States 
Marine Corps from February 1970 to October 1971.  He was 
discharged under conditions other than honorable.  

In May 1972 and October 1978, the Department of Veterans 
Affairs (VA) Regional Office (RO) in Detroit Michigan 
determined that the character of the appellant's discharge 
from service was a bar to VA benefits.  He did not appeal 
those decisions. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a November 2005 decision by the Detroit 
RO which determined that the appellant's character of 
discharge is a bar to all VA benefits.  

The appellant was scheduled to appear for a hearing with a 
Veterans Law Judge (VLJ) in April 2007.  He failed to report 
for this hearing.  He has provided no explanation for his 
failure to report and has not since requested that the 
hearing be rescheduled.  His hearing request, therefore, is 
deemed withdrawn.  See 38 C.F.R. §§ 20.702(d); 20.704(d) 
(2007).

In April 2006, prior to the certification of this appeal to 
the Board, the appellant's representative notified the RO 
that it wished to discontinue its representation of the 
appellant as he had perfected an appeal without their 
knowledge.  See 38 C.F.R. § 20.608(a) (2007).  The appellant 
has not indicated that he desires another representative, so 
the Board will proceed assuming that the appellant wishes to 
represent himself.


FINDINGS OF FACT

1.  The appellant served on active duty from February 1970 to 
October 1971.    During his military service, the appellant 
was absent without official leave (AWOL) from July 27, 1970 
to July 28, 1970; December 1, 1970 to June 15, 1971; and July 
6, 1971 to July 12, 1971.  He was confined from July 12, 1971 
to October 12, 1971.

2.  The appellant was separated from military service under 
conditions other than honorable by administrative discharge.

3.  During service the appellant was AWOL for a total of 203 
days, 196 of which were consecutive. 

4.  The evidence of record supports a conclusion that the 
appellant was not insane at the time of his unauthorized 
absences.

CONCLUSION OF LAW

The character of the appellant's discharge from service is a 
bar to the award of VA benefits.  38 U.S.C.A. § 5303 (West 
2002); 38 C.F.R. §§ 3.1(d), 3.12 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant is seeking to establish status a "veteran," 
as that term is defined by law, for the purposes of securing 
entitlement to VA disability benefits.  

In the interest of clarity, the Board will first discuss 
certain preliminary matters.  The Board will then render a 
decision. 

The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  The VCAA also 
redefines the obligations of VA with respect to its statutory 
duty to assist claimants in the development of their claims.  
See 38 U.S.C.A. §§ 5103, 5103A (West 2002).

In Manning v. Principi, 16 Vet. App. 534 (2002), citing 
Livesay v. Principi, 15 Vet. App. 165 (2001), the United 
States Court of Appeals for Veterans Claims held that the 
VCAA has no effect on an appeal where the law, and not the 
underlying facts or development of the facts, is dispositive 
of the matter.  The Board finds that such is the case as to 
the issue here on appeal.  The facts in this case, which 
involve the character of the appellant's discharge and the 
dates and circumstances surrounding his unauthorized 
absences, are not in dispute.  Application of pertinent 
provisions of the law and regulations will determine the 
outcome.  No amount of additional evidentiary development 
would change the outcome of this case; therefore no VCAA 
notice is necessary.  See DelaCruz v. Principi, 15 Vet. App. 
143, 149 (2001) [VCAA notice not required where there is no 
reasonable possibility that additional development will aid 
the claimant].

The Board additionally observes that general due process 
considerations have been complied with in this case.  See 38 
C.F.R. § 3.103 (2007).  

In June 2005 the RO sent the appellant a letter which 
informed him that VA intended to determine whether the 
character of discharge from his period of service was 
dishonorable for the purpose of VA benefits.  The 
correspondence provided him with notice of 38 C.F.R. § 3.12, 
invited him to elaborate on the events leading to his 
discharge, and advised that he could submit evidence to 
support his account of the events leading to his discharge 
(including lay statements from those with personal knowledge 
of the circumstances).  He was advised to send any 
information as soon as possible.

The appellant has been accorded ample opportunity to present 
evidence and argument in support of his appeal.  As was 
discussed in the Introduction, he failed to report for a 
personal hearing which was scheduled at his request.

Accordingly, the Board will proceed to a decision on the 
merits.

Pertinent law and regulations

"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.'" See Cropper 
v. Brown, 6 Vet. App. 450, 452 (1994).  The term "veteran" 
means a 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.A. § 
101(2) (West 2002); 38 C.F.R. § 3.1(d) (2007).

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).  A discharge 
or release from service based on one of the conditions found 
under 38 U.S.C.A. § 5303(a) is a bar to the payment of 
benefits and is also a bar to benefits under Chapter 17 of 
Title 38.  A discharge or release because of one of the 
offenses found under 38 C.F.R. § 3.12(d) is considered to 
have been issued under dishonorable conditions and is a bar 
to VA compensation benefits, but not to benefits under 
Chapter 17 of Title 38.  

The discharge or dismissal by reason of the sentence of a 
general court-martial of any person from the Armed Forces, or 
the discharge of any such person on the ground that such 
person was a conscientious objector who refused to comply 
with lawful orders of competent military authority, or as a 
deserter, or on the basis of an absence without authority 
from active duty for a continuous period of at least one 
hundred and eighty days if such person was discharged under 
conditions other than honorable, unless such person 
demonstrates to the satisfaction of the Secretary of VA that 
there are compelling circumstances to warrant such prolonged 
unauthorized absence, shall bar all rights of such person 
under the laws administered by the Secretary of VA based upon 
the period of service from which discharged or dismissed, 
notwithstanding any action subsequent to the date of such 
discharge by a board established pursuant to section 1553 of 
title 10 of the United States Code. 38 U.S.C.A. § 5303(a); 38 
C.F.R. § 3.12(c) (2007). 

If it is established to the satisfaction of the Secretary of 
VA that, at the time of the commission of the offense leading 
to a person's court-martial or discharge, that person was 
insane, such person shall not be precluded from benefits 
under laws administered by the Secretary based upon the 
period of service from which such person was separated. 38 
U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b) (2007).

The provisions of 38 C.F.R. § 3.12(d) state that a discharge 
or release because of one of the following offenses is 
considered to have been issued under dishonorable conditions: 
acceptance of undesirable discharge in lieu of trial by 
general court-martial; mutiny or spying; offense involving 
moral turpitude (this includes, generally, conviction of a 
felony); willful and persistent misconduct; and homosexual 
acts involving aggravating circumstances and other factors 
affecting the performance of duty.

An honorable or general discharge issued on or after October 
8, 1977, by a discharge review board established under 10 
U.S.C.A. § 1533 sets aside a bar to benefits imposed under 38 
C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), of this 
section provided that: (1) the discharge is upgraded as a 
result of an individual case review; (2) the discharge is 
upgraded under uniform published standards and procedures 
that generally apply to all persons administratively 
discharged or released from active military, naval or air 
service under conditions other than honorable, and; (3) such 
standards are consistent with historical standards for 
determining honorable service and do not contain any 
provision for automatically granting or denying an upgraded 
discharge.  38 C.F.R. § 3.12(g) (2007).

Unless a discharge review board established under 10 U.S.C.A. 
§ 1553 determines on an individual case basis that the 
discharge would be upgraded under uniform standards meeting 
the requirements set forth in paragraph (g) of this section, 
an honorable or general discharge awarded under one of the 
following programs does not remove any bar to benefits 
imposed under this section: (1) the President's directive of 
January 19, 1977, implementing 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, that does not apply to all persons administratively 
discharged or released from active military service under 
other than honorable conditions. 38 C.F.R. § 3.12(h).

Analysis 

The facts of this case are not in substantial dispute.  The 
appellant's military service from February 1970 to October 
1971 included AWOL from July 27, 1970 to July 28, 1970; 
December 1, 1970 to June 15, 1971; and July 6, 1971 to July 
12, 1971.  He was confined from July 12, 1971 to October 12, 
1971.  The record this shows a total of 294 days of time 
lost, including a continuous period of 196 days from December 
1, 1970 to June 15, 1971. 

The appellant was thus AWOL for a period in excess of 180 
days.  Furthermore, the evidence of record indicates that the 
appellant accepted a discharge under dishonorable conditions 
in order to escape trial by court-martial.  These facts are 
uncontested.  See a statement from the appellant dated June 
9, 2005; see also his March 2006 substantive appeal [VA Form 
9].  Accordingly, 38 C.F.R. § 3.12(c) and (d) are applicable.  

The Board is aware that the appellant's character of 
discharge was later upgraded to under honorable conditions by 
the Department of Defense Special Discharge Program, 
effective August 22, 1977.  As noted in the law and 
regulations above, however, this alone is not sufficient to 
remove the bar to VA benefits. See 38 C.F.R. 3.12(h).  In 
July 1978 the appellant's upgraded character of discharge 
underwent a mandatory review by the Military Discharge Review 
Board where it decided not to affirm the appellant's upgraded 
discharge and that the original character of discharge would 
remain.  Since the Discharge Review Board did not upgrade the 
appellant's character of discharge, the bar to benefits 
established under 38 C.F.R. 
§ 3.12(d) due to acceptance of an undesirable discharge in 
lieu of trial by general court-martial remains in effect.  
See 38 C.F.R. § 3.12(g),(h) (2007).

With respect to the bar to benefits under 38 C.F.R. 3.12(c) 
based on the appellant's AWOL in excess of 180 days, the only 
exceptions available are whether the appellant was insane at 
the time of the offense or if there were compelling 
circumstances to warrant the prolonged unauthorized absences 
during service.

The appellant has not asserted that he was insane at the time 
of the commission of the offenses, neither has he produced 
any evidence of a diagnosis of any acquired psychiatric 
disorder in service or at the present time.  Despite the 
appellant's generalized complaints of a current mental 
illness, the applicable regulation provides an exception to 
the bar to benefits only if the individual was insane at the 
time of the offense caused the discharge.  See 38 U.S.C.A. § 
5303; 38 C.F.R. 
§ 3.12(b); see also Stringham v. Brown, 8 Vet. App. 445, 448 
(1995) [under the insanity exception, both the acts leading 
to discharge and the insanity must occur simultaneously].  

In short, there is no medical evidence to suggest that the 
appellant was insane at the time of the conduct leading to 
his discharge, and he does not so allege.  In the absence of 
any evidence to the contrary, the Board finds that the 
appellant was not insane at the time he took unauthorized 
leave. 

Concerning the appellant's allegations of compelling 
circumstances surrounding his unauthorized absence in excess 
of 180 days, he argues that he entered military service at 
the age of 17 with little education and a poor family 
background.  The appellant has stated that he married his 
girlfriend while on authorized leave and upon returning was 
told that he was too young for base housing.  He claims that 
he went AWOL in order to care for his family and his newborn 
daughter. 

In essence, the appellant argues that he had a family 
obligation which required him to take an extended 
unauthorized leave.  However, there is no indication that the 
appellant's wife or daughter was in any distress or that a 
family emergency required his presence.  Nor does the 
appellant allege as much.  In fact, an August 1971 letter 
from the Bureau of Family and Children's Service indicates 
that appellant's daughter was in good health.  

Moreover, there is no indication that the appellant was 
employed while he was AWOL.  Indeed, an August 1971 report of 
the Department of Public Social Services
Stated that the family was on public assistance "as an 
unemployed father case."
This letter also indicates that the family was allotted $225 
per month in government aid due to the appellant's 
unemployment.  Once the appellant was apprehended by military 
authorities the amount of financial aid being offered to the 
family was reduced by only $21 per month.  In essence, the 
appellant was "supporting" his family by drawing 21 dollars 
a month in government welfare. 

Even when considering the appellant's age and educational 
level, the Board finds that the circumstances did not warrant 
his prolonged unauthorized absence.  See 38 C.F.R. 
§ 3.12(c)(6)(ii).

The record indicates that the appellant served from February 
1970 to October 1971; approximately twenty months. Out of 
that time period the appellant was AWOL for a period of 196 
consecutive days and he was confined to the brig for 91 days.  
The record also shows that the appellant had two other 
periods of unauthorized leave during his service.  Hence, a 
significant portion of the appellant's service was neither 
honest, faithful, meritorious or of benefit to the nation.  
See 38 C.F.R. § 3.12(c)(6)(i).

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 a period of prolonged absence without leave began.  
38 C.F.R. § 3.12(c)(6)(ii) (2007).   There is no evidence 
that this was a factor in any of his unauthorized absences. 
The appellant's MOS was warehouseman (the civilian equivalent 
being stock clerk), and he never left the United States.

The existence of a valid legal defense that would have 
precluded conviction for absence without leave is also a 
factor to be used in determining whether there are compelling 
circumstances to warrant the prolonged unauthorized absence, 
but the record is negative for such a legal defense. 38 
U.S.C.A. § 5303; 38 C.F.R. § 3.12(c)(6)(ii-iii).

In sum, there were no compelling circumstances present which 
were of such severity as to force the appellant into leaving 
his unit for more than 180 days, and justify his prolonged 
periods of unauthorized absence.  He was not insane at the 
time of the misconduct and he willfully accepted an 
administrative discharge under dishonorable conditions in 
lieu of a trial by general court-martial.  

Therefore, the appellant's discharge must be considered as 
having been under dishonorable conditions and is a bar to VA 
benefits, and the appeal must be denied.  The bar to benefits 
established under 38 C.F.R. § 3.12(c) and (d) remain in 
effect. 

For reasons stated above, the appeal is denied.




ORDER

The character of the appellant's discharge constitutes a bar 
to VA benefits.


____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs