Citation Nr: 1318224 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-44 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the character of the appellant's discharge is a bar to benefits administered by the Department of Veterans Affairs. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The appellant had a period of service from March 1974 to August 1974, the character of discharge of which is the matter on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Paul, Minnesota. Thereafter, the Oakland, California, RO assumed jurisdiction. In his November 2010 substantive appeal, the appellant requested a hearing before a Veterans Law Judge at the RO. The hearing was scheduled in August 2012. A statement in support of claim received prior to the hearing requested that the hearing be rescheduled. The appellant was subsequently scheduled for another hearing in March 2013. In a statement in support of claim received in March 2013, the appellant asked that the request for a hearing be withdrawn. He also asked that his appeal be advanced on docket due to health reasons. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The appellant served on active duty from March 1974 to August 1974. 2. The DD Form 214 lists the character of discharge of service as "under conditions less than honorable." 3. On April 11, 1974, the appellant disobeyed a lawful order. 4. During service, the appellant was charged with absence without leave (AWOL) from April 11, 1974 until about July 8, 1974, for a total of 86 days. 5. There were no compelling circumstances to warrant the unauthorized absence, considering length and character of service, exclusive of the period of prolonged unauthorized absence, and the reason for the unauthorized absence. 6. The request for discharge for the good of the service in lieu of a trial by general court-martial was approved by the Commanding General. 7. At the time of his request, and in subsequent documents, the appellant acknowledged that his actions were voluntary and that he understood the consequence of his actions, including that he might not be eligible for VA benefits. 8. The appellant's disobeying a lawful order, his failure to report as ordered, and his period of AWOL, although for a period shorter than 180 days, constitutes willful and persistent misconduct. 9. The appellant was not insane during any part of his military service and there is no compelling circumstance that would serve as a basis for concluding a bar to benefits should not be imposed. CONCLUSION OF LAW The character of the appellant's discharge from his service of March 1974 to August 1974 is a bar to benefits administered by VA. 38 U.S.C.A. § 5303 (West 2002 & Supp. 2012); 38 C.F.R. § 3.12(b), (c)(6), (d)(1), (d)(4) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Where the issue involves the character of discharge, VCAA notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). In this case, the RO provided the required notice in a letter dated in May 2009. The letter informed the appellant that VA compensation benefits would require resolution of the question of whether his service was honorable and the character of his discharge. The letter enclosed a copy of 38 C.F.R. § 3.12, the controlling regulation, and advised the appellant to submit any evidence in support of his appeal. The Board finds that this letter was sufficient to notify the appellant of the criteria applicable to his claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that has been associated with the claims file include the service personnel records and post-service medical records. As discussed above, the appellant was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The appellant was an active participant in the claims process by providing evidence and argument with regard to his claim. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Legal Authority When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997); see also Cropper v. Brown, 6 Vet. App. 450, 452 (1994) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) and 38 U.S.C.A. § 1110). The term "veteran" means 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) (West 2002); 38 C.F.R. § 3.1(d) (2012). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). A person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit-of-the-doubt doctrine, 38 U.S.C.A. § 5107(b), is not applicable to that determination of status. See Aguilar, supra. The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). When a serviceman receives an other than honorable discharge, VA must decide whether the character of such discharge is honorable or dishonorable (not qualifying for VA benefits). Conditions under which an other than honorable discharge would be considered dishonorable, include acceptance of an undesirable discharge to escape trial by general court-martial and willful and persistent misconduct. 38 U.S.C.A. §§ 101(2), 5303; 38 C.F.R. § 3.12(d). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). A discharge or release is considered to have been issued under dishonorable conditions where the discharge was given under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). By regulation, a discharge or release is considered to have been issued under dishonorable conditions if the former service member accepts an undesirable discharge to escape trial by general court-martial. 38 C.F.R. § 3.12(d). Because the charges that lead to the appellant's discharge included his unexcused absence, a discussion of the regulations concerning a discharge due to unexcused absences or absent without leave (AWOL) is warranted. By statute, benefits are not payable where the former service member was discharged or released 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 unless the person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(b), (c)(6). Under 38 C.F.R. § 3.12(c)(6)(i-iii), the following factors will be considered in determining whether there are "compelling circumstances" to warrant the prolonged unauthorized absence: (i) 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, and meritorious and of benefit to the Nation. (ii) 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 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. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. The record reflects that the appellant was AWOL from April 11,1974, until about July 8, 1974. This period of absence without official leave is well short of the 180 days required for the periods of AWOL to be considered to be prolonged. 38 C.F.R. § 3.12(c)(6). Therefore, the period does not satisfy the regulatory requirement that an appellant's other than honorable discharge constitutes a bar to the payment of benefits under 38 C.F.R. § 3.12(c)(6) for AWOL. His period of AWOL, however, is still relevant on the question of willful and persistent misconduct. AWOL cannot constitute a minor offense for purposes of willful and persistent misconduct. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995); Cropper v. Brown, 6 Vet. App. 450, 452, 453 (1994); Struck v. Brown, 9 Vet. App. 145, 153 (1996). To that end, why the appellant went AWOL must be examined. The Board can look at the totality of the circumstances, including factors other than the claimant's own statements, to determine why the appellant went AWOL. Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003). A discharge or release from service under conditions specified in 38 C.F.R. § 3.12(c) is a statutory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). An insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a) (2012). The appellant's DD Form 214 establishes he entered service in March 1974 and was separated from service in August 1974. The appellant was credited with 2 months and 1 day of active service. The DD Form 214 also indicates the appellant lost 86 days of service that includes the days he was AWOL from April 11, 1974 until about July 8, 1974. The character of service reflects that the appellant received an "under conditions other than honorable" discharge for the good of the service under DD 258 MC. From 5:30 a.m. on April 11, 1974 to until 8:00 a.m. on July 8, 1974, the appellant was AWOL. This incident resulted in charges under the Uniform Code of Military Justice. The appellant was found to have disobeyed a lawful order issued by a commanding officer. He was ordered for seven days to correctional custody and to forfeit $50.00 of pay for one month. In July 1974, the appellant requested a discharge for the good of the service in lieu of a court martial resulting from his period of AWOL from April 11, 1974, to July 8, 1974. He made this request because the charges instituted against him could have resulted in a bad conduct discharge. The request, signed by the appellant, indicated that he had consulted his attorney and was entirely satisfied with the advice of counsel and that he persisted in his request. Further, the appellant acknowledged that he was guilty of the charges (or lesser included charges) that could impose a discipline ultimately leading to a discharge due to bad conduct or a dishonorable discharge. The appellant had been advised of the charges and of his rights to contest the proposed charges and to present evidence. The statement also reflected that he understood that as a result of a discharge under conditions other than honorable, he may be ineligible for veteran benefits. The Commanding General subsequently approved the request for discharge for the good of the service in August 1974. On separation from service, the appellant received an "other than honorable conditions" discharge under DD 258. In his September 2009 notice of disagreement, the appellant stated that he went AWOL as a result of having been falsely accused of actions and participations of abuse by others who had enlisted with him. The appellant asserted that he was the subject of verbal abuse regarding his race, and that, since that time, his life had become disoriented and he was depressed. He said he was assumed to be guilty as he would not inform on himself or others. He noted that he was filing a claim not for service-connected hardships but for hardships/disorientations, including mental illness, and physical hardships which were a result of his discharge. In a March 2013 statement, the appellant indicated that he was charged as willfully disobeying an order as a result of not wanting to report about what others had done. He stated that he left after that due to fear for his life. The appellant stated that he was unfamiliar with military law and accepted this discharge to escape further dishonor. After review of the record, the Board determines that the credible evidence demonstrates that the appellant's service is not "other than dishonorable" for purpose of VA benefits. The Board determines too that the appellant did not render faithful and meritorious service throughout the period of active duty, as the nature and quantity of the misdeeds in service leading to his discharge were willful and persistent. The appellant's abovementioned actions cannot reasonably be described as either isolated or infrequent. The appellant willfully disobeyed an order from a commanding officer and then went AWOL for a period of 86 days. Thus, these actions were willful and persistent. As such, it is found that the appellant does not fall within the exception for a "discharge because of a minor offense" as provided by 38 C.F.R. § 3.12(d)(4). In regard to the minor-offense exception noted above, the Court in Stringham v. Brown, 8 Vet. App. 445, 448 (1995), determined that "offenses that would interfere with [the] appellant's military duties, indeed preclude their performance...could not constitute a minor offense." The Board finds in this case that the appellant's misconduct is the type of offense that was willful and persistent, and that would interfere with his military duties, and indeed preclude his performance; therefore, his offenses cannot be considered to be minor offenses. Id.; see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). The Board acknowledges that the appellant was not AWOL for 180 days; however, the appellant's claim was not denied under 38 C.F.R. § 3.12(c)(6). Rather, his claim is being denied under 38 C.F.R. § 3.12(d) for the reasons set forth above. The appellant does not argue and the record does not suggest that the bar to benefits should be overturned because the appellant was insane when he went AWOL or for his other misconduct. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). As for whether there was a valid legal defense which would have precluded a conviction for being AWOL, 38 C.F.R. § 3.12(c)(6)(iii), the record shows that, in consultation with an attorney, the appellant requested an administrative discharge in lieu of trial by general court-martial, knowing that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and that he may be ineligible for VA benefits. From this the Board infers that the appellant did not have a valid legal defense, and the record does not otherwise provide any reason for valid legal defense, including insanity. Because of the appellant's willful and persistent misconduct, which is not characterized as a minor offense, because he accepted undesirable discharge in lieu of court martial, and because there is no evidence to suggest that he was insane at the time, his discharge must be considered as having been under dishonorable conditions. For the reasons stated above, the Board finds that the character of the appellant's discharge is a bar to the payment of VA benefits. 38 C.F.R. § 3.12(d)(4). ORDER The character of the appellant's discharge constitutes a bar to the receipt of VA monetary benefits; the appeal is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs