Citation Nr: 1323732 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-00 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Palo Alto, California THE ISSUE Eligibility for VA health care benefits under Chapter 17 of Title 38 of the United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant, A.V., and J.M. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The appellant had active service from March 1968 to August 1973. He was discharged from service under other than honorable conditions. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Affairs (Board) from a decision of the VA Medical Center in Palo Alto, California. The appellant was afforded personal hearings at the RO in July 2008 and in July 2010 before the undersigned Veterans Law Judge sitting at Oakland, California. The transcripts are of record. The case was remanded in December 2010 to be held in abeyance until adjudication of the inextricably intertwined issue of new and material evidence to reopen the claim pertaining to the appellant's character of discharge. That having been addressed by separate Board decision, the instant claim is ready to be considered on the merits. FINDINGS OF FACT 1. The appellant entered active military service in March 1968 and received a discharge under other than honorable conditions in August 1973. 2. During his period of active service, the appellant was absent without leave (AWOL) for 898 days. 3. In July 1973, the Veteran applied for, and was granted a discharge for the good of the service under the provisions of Chapter 10, AR 635-200 that entailed an Undesirable Discharge Certificate and forfeiture of "many or all" VA benefits. 4. No significantly compelling circumstances are demonstrated to account for the appellant's prolonged period of AWOL. 5. There is no indication that the appellant was insane at the time that he went AWOL or thereafter. CONCLUSION OF LAW The character of the appellant's discharge as under other than honorable conditions constitutes a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2002 & Supp. 2012); 38 C.F.R. § 3.12 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, only the appellant's status is at issue. The duty to notify was satisfied by a letter dated in December 2007, supplemented by correspondence dated in February 2008 that addressed the required notice elements. He has been afforded two personal hearings and his numerous statements in the record have been carefully considered. For these reasons, the Board may proceed to decide the appeal. There is no evidence of any VA error in assisting the appellant that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Pertinent Law and Regulations Under VA law and regulations, and for benefits purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(d) (2012). A person seeking VA benefits must first establish by a preponderance of the evidence 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). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303 (West 2002 & Supp. 2012); 38 C.F.R. § 3.129(a) (2012). A discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court- martial; (2) mutiny or spying; (3) an offense involving moral turpitude, which generally includes conviction of a felony; (4) willful and persistent misconduct, and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge because of a minor offense will not be considered willful persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12 (d)(4) Generally, if a person receives a discharge under other than honorable conditions that was issued for a period of absence without official leave (AWOL) for a continuous period of at least 180 days, the discharge will serve as a bar to the receipt of VA benefits. 38 C.F.R. § 3.12(c)(6) (2012). The discharge will not serve as a bar if there are compelling circumstances to warrant the prolonged absence. Id. In determining whether there are compelling circumstances to warrant a prolonged absence, the length and character of service exclusive of the period of prolonged AWOL will be considered. 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. Id. Consideration is also given to the reasons offered for going AWOL, including 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, and consideration should be given to how the situation appeared to the person himself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds or 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. Id. A discharge of Under Other Than Honorable conditions will not be a bar if it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). An insane person is one 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 who interferes with the peace of society; or 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) The United States Court of Appeals for Veterans Claims has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet.App. 145 (1996). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior that were defined as insanity in 38 C.F.R. § 3.354(a). It was found that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. See VAOPGCPREC 20-97. Factual Background The appellant had active military service in the United States Army from March 1968 until August 1973. He served in Vietnam from September 1969 to September 1970 and was discharged under conditions other than honorable. He was neither wounded, nor decorated for any combat service. Service treatment records do not reflect any complaints, findings or diagnosis of an acquired psychiatric disorder. His psychiatric status was evaluated as normal in July 1973 for Chapter 10 separation purposes, and it was recorded that he had no complaints. Service personnel records show that he was absent without official leave (AWOL) for four days between July 5, 1968 and July 8, 1968, for five days between September 27, 1968 and October 1, 1968, and for 37 days between August 1, 1969 and September 7, 1969. The appellant's service personnel records further disclose that on or about December 27, 1970, the appellant without authority, and with intent to remain away therefrom permanently, absented himself from his organization and did remain so absent in desertion until on or about June 12, 1973. Charges were preferred and the appellant awaited trial by court-martial for the offence of being AWOL for 29 months. He was advised that he could voluntarily submit a request for discharge for the good of the service under the provisions of Chapter 10, AR 635-200 in lieu of court-martial. Following counseling on June 2, 1973, he signed a statement declaring that "I hate the Army. I'll do anything (almost) to get out. It they sent me back I'd just split again. I do understand what the undesirable discharge is and will accept one to get out of the Army." It was noted that he had to opportunity to consult with counsel, given extensive information pertaining to the consequences of an undesirable discharge, including the fact that this would deprive him of many or all Army benefits, ineligibility for VA benefits, and rights and benefits as a Veteran under both Federal and State Law. Among other things, the appellant was advised that contrary to what was commonly thought, it was totally false that it was easy to change the undesirable discharge to a favorable one. He was told that only two agencies could change the type of discharge: the Army Discharge Review Board and the Army Board of Corrections of Military Records and that only a small percentage of those applications was favorable. In July 1973, the appellant affixed his signature to a document that all pertinent information had been given to him, and also acknowledged the receipt of advice of counsel concerning discharge for the good of service and a list of Federal veterans' benefits that would be affected by issuance of an Undesirable Discharge Certificate. The following day, he requested discharge for the good the service under the provisions of Chapter 10, AR 635-200 and indicated that he had not been subjected to coercion with respect to this request for discharge. He indicated that he understood that if the request for discharge were accepted, he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and that he had been advised as to the possible effects of an undesirable discharge including those as cited above. He signed a statement dated in July 1973 that, among other things, attested to having 33 months "good time", two Article 15s for being AWOL, one AWOL of 29 months, as well as his prior declaration that he hated the Army and would do anything to get out, etc. The appellant's application for discharge was approved. Following the receipt of a claim, VA, in April 1976, delineated all of his prior unauthorized absences. VA noted that as punishment for the second and third AWOLs, he forfeited $35.00, and forfeited $60.00 for two months with a reduction to the rank of E-1, respectively. It was reported that his discharge from active duty was primarily due to the 898-day AWOL period. The statement that the appellant made that he hated the Army was also considered. VA noted that the appellant did not respond to a March 1976 letter requesting his version of the facts. It was determined that the four periods of AWOL spread out over his entire military career accounted to willful and persistent misconduct, and that he was denied VA and other gratuitous benefits. Post service, the appellant filed claims for VA benefits dating back to 1976. More recently, a claim of service connection for various disorders was received in March 2007. A claim of entitlement to service connection for numerous disabilities including chloracne, depression, nervousness, recurring headaches, a respiratory condition, allergies, a liver disorder, gastrointestinal disability, kidney disease, and joint pain and swelling, etc., was received in December 2007. The appellant filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in 2008. After each claim for benefits, VA sent him a letter advising that the character of his discharge from service was a bar to monetary benefits administered by the Department of Veterans Affairs. Following review of the record and consideration of the extensive evidence, a VA Administrative Decision dated in August 2009 confirmed the appellant's character of discharge from March 4, 1968 to August 1, 1973 as under other than honorable conditions. It was noted that a pattern of willful and persistent misconduct was demonstrated, and that he was AWOL for 898 days during service without a showing of insanity or compelling circumstances to mitigate his conduct. It was determined that the appellant's discharge of under other than honorable conditions was a bar to VA benefits and that he was not entitled to VA health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). The claimant presented testimony on personal hearing in July 2010 in support of the claim attesting to the reasons why he felt he had to go AWOL, including his being 17 at service entrance, family hardship and conflict, experiences in Vietnam and mental issues deriving therefrom, drug use, unwillingness to face conflict with a fellow service member and threats against his life during active duty, etc. He stated that it was not his intention to dessert but that he was afraid of what was going on at Fort Campbell, as well as having family tragedies at home. Legal Analysis The appellant and his Representative assert that the appellant is entitled to VA health care benefits because the claimant's service was not dishonorable and that his discharge under other than honorable conditions does not preclude all VA benefits. The record reflects, however, that the appellant had at least two of the five offenses for a release from service under dishonorable conditions: acceptance of an undesirable discharge to escape trial by general court-martial, and willful and persistent misconduct, as cited above. Only one is needed under 38 C.F.R. § 3.12 (d). The Board points out that prior to his acceptance of an undesirable discharge to escape trial by general court-martial, the appellant was provided detailed information pertaining to the ramifications of such actions, to include that he would become ineligible for VA benefits, among other rights and benefits as a veteran. Service personnel records reflect that following comprehensive advisement relative to the rights and benefits he stood to forfeit by accepting an undesirable discharge, it appears that the appellant understood, and without reservation, accepted discharge under other than honorable conditions, and divestiture of Federal, state and VA benefits. He freely acknowledged this in a signed statement in June 1973. It is telling that upon making the statement, he did not at any time refer to any extenuating circumstances or exigencies as to why he went AWOL. He merely stated that he hated the Army, would do anything to get out, and if retained, would go AWOL again. VA records note that he had failed to respond to a March 1976 letter requesting his version of the facts prior to a final action in this regard. Although he now claims that he did not write the June 1973 statement, and has provided a report from a handwriting expert to bolster that assertion, the fact remains that he endorsed and attested to such by signing more than once. The Board assigns very little weight to the hand writing expert's statement in light of all of the evidence of record. There is no indication that the appellant challenged the accuracy of that document in 1976 or at any time prior to the current claim. Moreover, even assuming that the document is not legitimate, the crucial question in this case is whether there is any proper defense for the appellant's term of unauthorized absence that lasted for more than two years. Records from the Army Discharge Review Board dated in 1978 reflect that the appellant sought an upgrade of his military discharge status as early as 1978. There is no suggestion that the appellant then challenged the legitimacy of the June 1973 statement. Moreover, after considering all the facts, in June 1979, the Army Discharge Review Board determined that the appellant's discharge from service was proper. The claimant has not provided any supporting documentation from either the Army Discharge Review Board or the Board for Correction of Military Records that reflects any change in the status of his discharge since that time. By law, VA benefits are not payable where the former service member was discharged or released under conditions including the following: by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12 (c)(6). In this instance, the reasons for the other than honorable discharge are clearly delineated in the official records. It has been verified that the appellant was AWOL for 898 days during active service that includes a continuous period of AWOL for at least 180 days or more that also bars him from receiving VA benefits under 38 C.F.R. § 3.12(c)(6). There are exceptions available to the appellant that might mitigate the bar from receiving VA benefits: (1) if the appellant is shown to have been "insane" at the time of the offense (38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b); or, (2) if there are "compelling circumstances" to warrant the prolonged period of AWOL. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The Board acknowledges that the appellant served in Vietnam, and Vet Center and private clinical reports in the record have found that he has PTSD. He has indicated that following service, PTSD was implicated in his going AWOL for almost two and half years. The record reflects, however, that the appellant started going AWOL within months of service entrance, and did so on at least three occasions prior to going to Vietnam for which he was afforded non-judicial punishments. As such, it may be found that a pattern of willful and persistent misconduct preceded any alleged combat duty in Vietnam. The evidence preponderates against finding any credible circumstances that warranted AWOL for such an extended period upon consideration of his voluminous contentions, statements, testimony or other evidence the appellant has provided in support of the claim. This includes his minority at the time of service entrance, relationships with other service members, the length and character of his military service, family emergencies or obligations, or similar types of obligations, or hardship or suffering. See 38 C.F.R. § 3.12(c)(6)(i-iii). Overall, the evidence does not show compelling circumstances to justify AWOL of 898 days. Despite the absence of compelling circumstances, the Board still must address whether the bar to VA benefits should be overturned based on the theory that the Appellant was effectively "insane" when he went AWOL for 898 days during his military service. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). "Insanity" is a defense to all possible statutory and regulatory bars to VA benefits. In this instance, service treatment records do not reflect treatment for any psychiatric symptoms, nor is demonstrated that during the period of AWOL from December 1970 to June 1973 that he was considered "insane" as defined under 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). He has not attested to or presented any evidence to the effect that he went AWOL due to mental incapacitation so severe that it was tantamount to insanity. The claims file does not contain any medical opinions to support a finding of insanity during that time. There is no evidence that the appellant has ever been determined to be incompetent or incapable of understanding the consequences of his actions in service. Additionally, no physician has concluded, and no evidence supports the theory, that, at the time of his period of extended AWOL, (1) the Appellant had a more or less prolonged deviation from his normal method of behavior; or (2) the Appellant interfered with the peace of society; or (3) the Appellant had 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 resided. 38 C.F.R. § 3.354(a) Although he was AWOL for around two and half years, there are no findings in the record that such behavior was antisocial or otherwise hostile or harmful to others in a manner that deviated sharply from the social norm. While AWOL is not accepted behavior in the military, it does not occur infrequently nor does a soldier going AWOL indicate that the soldier is insane. Therefore, while the claimant has presented many reasons as to why he went AWOL, they are not found to exemplify the severe deviation from the social norm or the gross nature of conduct that is generally considered to fall within the scope of the term insanity, and therefore, does not constitute insane behavior. VAOPGCPREC 20-97 (May 22, 1997). As such, the Board finds there is no probative evidence of insanity at the time the offense in question (AWOL) was committed. The Board acknowledges the appellant's continuing disagreement with the character of his discharge, as well as his claims for VA benefits. However, the Board is bound by the laws and regulations enacted by Congress. In the instant case, the character of discharge is a bar to entitlement to VA benefits, including service connection at this time. Any disagreement that a claimant may have with his discharge classification must be raised with the Army Board for Correction of Military Records. Harvey v. Brown, 6 Vet.App. 416, 424 (). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the appellant's claim and that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). ORDER The appellant is not eligible for VA health care benefits under Chapter 17, Title 38, United States Code. The appeal is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs