Citation Nr: 1318763 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 11-28 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the character of the Appellant's discharge for a period of service from November 2, 1967 to June 21, 1972 is a bar to VA benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION 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). The Appellant served on active duty from November 2, 1967 to June 21, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a May 2013 video-conference hearing. A hearing transcript has been associated with the Virtual VA paperless claims processing system. At that hearing, the Appellant submitted additional evidence and waived RO review of this evidence in the first instance. A review of the Virtual VA paperless claims processing system does not reveal any additional documents, other than the May 2013 hearing transcript, pertinent to the present appeal. As the Board's decision below determines that the characterization of the Appellant's active duty service does not constitute a bar to VA benefits, the issues of entitlement to service connection for posttraumatic stress disorder (PTSD) and throat cancer have now been raised by the record. Therefore, these issues are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. The Appellant had a continuous period of active duty from November 2, 1967 to June 21, 1972. 2. For the time period from November 1967 to May 1969, the Appellant's active duty service was honest, faithful, meritorious and of benefit to the Nation as demonstrated by being selected Officer of the Day during basic training, performing combat service in Vietnam resulting in awards of the Army Commendation Medal, the Bronze Medal and the Combat Infantryman Badge (CIB), and having excellent conduct and efficiency ratings. 3. Upon his return from Vietnam service, the Appellant's conduct and efficiency ratings suddenly became unsatisfactory, led to two Article 15 punishments and a 728 day period of being absent without leave (AWOL). 4. Given the Appellant's young age, limited education, lack of a family support network, the personal relationship hardships caused by overseas service, and the emotional consequences of extensive combat service, the Board finds that compelling circumstances are demonstrated to warrant the Appellant's unsatisfactory performance and prolonged period of AWOL following his return from Vietnam. CONCLUSION OF LAW The character of the Appellant's service from November 2, 1967 to June 21, 1972 does not constitute a bar to VA benefits. 38 U.S.C.A. §§ 101, 5107, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.159, 3.354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As addressed more fully below, the Board grants the benefit sought on appeal in full. As such, any potential duty to notify or duty to assist errors have been rendered harmless. Similarly, any potential errors in the conduct of the video-conference hearing have also been rendered non-prejudicial. See generally Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). Analysis The Appellant seeks to establish his eligibility for VA compensation benefits, which has been denied by the RO on the basis that the characterization of his active duty service constitutes a bar to benefits. He contends that compelling circumstances exist to mitigate the effects of an extended period of being AWOL. 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 discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). 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). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of a AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). A person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such 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(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, and (ii) Reasons for going 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. 38 C.F.R. § 3.12(c)(6)(i). Reasons for going AWOL 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. 38 C.F.R. § 3.12(c)(6)(ii). 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: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) 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; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). The Appellant enlisted in the Regular Army of the United States on November 2, 1967 for a three year period. He was 18 years old. A November 21, 1967 letter from his Commanding Officer reflected that, on November 20, 1967, the Appellant had been selected as an Officer of the Day. He received excellent conduct and efficiency ratings during basic combat training and advanced infantryman (AIT) training. The Appellant entered a tour of duty in the Republic of Vietnam in April 1968. He served as both a rifleman and senior scout observer. He received excellent conduct and efficiency ratings during his entire tour of duty. Additionally, he was awarded the Army Commendation Medal for exceptionally meritorious achievement and outstanding performance in ground operations in the Republic of Vietnam from April 29, 1968 through September 29, 1968. He was also awarded the Bronze Star Medal for outstanding meritorious service in connection with ground operations against a hostile force in the Republic of Vietnam from April 15, 1968 through December 15, 1968. On October 23, 1968, the Appellant was awarded the CIB in recognition of outstanding performance of duty in the Republic of South Vietnam against an active hostile ground force. A November 5, 1968 letter from the Commander in Chief of the United States Army described the Appellant as a fine looking soldier who took pride in his unit and association with the men of All Americans. His officers and senior noncommissioned officers described the Appellant as performing well. The service personnel records next reflect that, in May 1969, the Appellant had a military occupational specialty as a drill sergeant at Fort Jackson, South Carolina. At this time, he first received unsatisfactory excellent conduct and efficiency ratings. He received Article 15 punishments for failing to report at his appointed place of duty on January 13, 1970, and on May 4, 1970. The Appellant had a period of AWOL from June 2, 1970 to May 31, 1972. In June 1972, a Staff Judge Advocate recommended a discharge of the Appellant for the good of the service, noting that the Appellant had consented to an undesirable discharge in lieu of trial. It was noted that the Appellant was single with 3 illegitimate children, had a high school education with no work experience, had received two Article 15's and, prior to his current AWOL period, had unsatisfactory conduct and efficiency ratings. The Appellant accepted an undesirable discharge under Chapter 10, AR 635-200 in lieu of a special Court-Martial proceeding. In October 2003, the Appellant submitted his original claim for VA compensation benefits, but his application has been denied on the basis that the character of his discharge constitutes a bar to such benefits. The Appellant contends that compelling circumstances exist to remove this barrier. The relevant evidence includes records from the Savannah Vet Center reflecting that the Appellant was first diagnosed with PTSD in 2008. An assessment report reflects that the Appellant's childhood was negatively impacted by his father's alcohol abuse and physical abuse towards the Appellant. The Appellant enlisted in the Army as employment opportunities were scarce. He served in combat while in Vietnam and was subject to both enemy and friendly fire. He felt that his life had been threatened on six different occasions. He described discharging his weapon against the enemy approximately two times per month during his tour of duty. The impact of his military experience was described as substance abuse, feeling animosity towards others, having his girlfriend become pregnant by another, undergoing emotional changes and wondering why God let these events happen. The Appellant met the criteria for a PTSD diagnosis due to his combat exposure verified by the CIB and symptoms of anger, low tolerance for stress, avoidance behavior, social isolation, alienation from others, sleep problems, concentration difficulties, startle response and hyperalertness. In August 2009, the Army Review Boards Agency (ARBA) denied the Appellant's application for a discharge upgrade. The Appellant described his reasons for AWOL due to personal problems which impaired his ability to service. He described that, while serving in Vietnam, his girlfriend sent him a letter stating that she was having his baby. Four months later, the Appellant received another letter informing him of her miscarriage. Upon his return to the United States, the Appellant found out that his girlfriend became pregnant by another man at which time his "whole world" fell apart. He attempted to work out his relationship, and used leave whenever he could. However, he described not having the chance to get home enough. The Appellant reported that his mind "snapped" when he went AWOL and he lost all sense of time. A statement from the Appellant's spouse reported meeting the Appellant in 1970. She described him as wild, disturbed, devastated and hurting inside due to his combat experiences. She recalled the Appellant being upset about being sent back to the front line in combat when he only had a few more weeks of Vietnam service remaining. He also had personal problems as well as a recurrent rash which started in Vietnam. She felt that his period of AWOL was due to his Vietnam experiences. She described the Appellant had been afraid to return to the Army after going AWOL, and that it took much persuasion from his family to get him to return. The ARBA determined that the Veteran's record of good service prior to his AWOL was greatly diminished by his two Article 15's, the length of his period of AWOL, and insufficient mitigating circumstances. In additional statements and testimony of record, the Appellant has further described his combat zone service as being very stressful, and that his mind was not the same when he returned home from Vietnam. He had personal problems, misconduct problems in the military, nightmares, depression, became violent and resorted to alcohol abuse. He now attributed those problems to PTSD which was unrecognized. He stresses that his military service in Vietnam was meritorious, and that the consequences of his combat exposures and personal problems caused by his Vietnam service constitutes a compelling reason for his extended period of AWOL. The record is entirely clear that, prior to his return from Vietnam service, the Appellant's approximate 11/2 years of active duty service can only be characterized as honest, faithful, meritorious and of benefit to the Nation. He distinguished himself as early as basic training as being selected for the Officer of the Day. He rendered exceptional benefit to the Nation during his Vietnam service with combat service resulting in awards of the Army Commendation Medal, the Bronze Medal and the CIB. His record includes a commendation letter from the Commander in Chief of the United States Army. His conduct and efficiency ratings were all excellent. The record is also clear that, upon his return from Vietnam service, the Appellant's conduct and efficiency ratings suddenly became unsatisfactory, led to two Article 15 punishments and a 728 day of AWOL. Thus, the dispositive issue on appeal concerns whether there are compelling reasons to explain the Appellant's unsatisfactory performance and prolonged period of AWOL. Here, the Board finds that compelling reasons exist to justify the Appellant's unsatisfactory performance and prolonged period of AWOL following his return from Vietnam. Upon his return, the Appellant was 20 years old having only a high school education and lack of a family support network. He had just endured extreme combat circumstances in Vietnam. His extended tour of duty in another country precluded him from maintaining personal relations with his girlfriend, who began relations with another man. He had been stationed in Fort Jackson, South Carolina which did not allow for easy home visitations in Savannah, Georgia. The Appellant and his spouse also describe the Appellant as being emotionally disturbed due to his combat experiences and substance abuse. The Appellant's state of mind at the time of his unsatisfactory performance and subsequent AWOL must be viewed sympathetically in light of the hardships caused by both overseas service and extensive combat service. The sudden change in his performance upon return from Vietnam must be viewed in light of the physical and emotional toll caused by his extensive combat service in a foreign land, wherein his life was placed in jeopardy on multiple occasions. In light of the above, the Board finds that compelling circumstances are demonstrated to warrant the Appellant's unsatisfactory performance and prolonged period of AWOL following his return from Vietnam. As such, the Board finds that the characterization of the Appellant's active duty service from November 2, 1967 to June 21, 1972 does not constitute a bar to VA benefits. ORDER The appeal is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs