Citation Nr: 1323764 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 11-24 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has received to reopen the claim of whether the appellant's character of discharge is a statutory bar to VA benefits. 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 March 1968 to August 1973. He served in Vietnam from September 1969 to September 1970 and was discharged under conditions other than honorable. In correspondence dated in April 1976, an administrative determination was entered that the appellant was ineligible for Department of Veterans Affairs (VA) benefits because of the character of his discharge from service. He did not appeal this decision and the determination is final. 38 U.S.C.A. § 7105 (West 2002). The appellant subsequently applied for other VA benefits. In a letter dated in November 1984, he was informed that his discharge from service under conditions other than honorable constituted a bar to payment of VA benefits. He was also informed of his right to appeal but did not do so. This determination is final. A claim of entitlement to service connection for various disorders was received from the claimant on June 2001. He was informed by letters dated in May 2003 and February 2004 that the November 1984 decision was final and that new and material evidence was needed to reopen the claim. A notice of disagreement was received in January 2004. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Affairs (Board) from VA agency of original jurisdiction (AOJ) decisions that have declined to reopen the claim of whether the appellant's character of discharge is a statutory bar to VA benefits. The appellant was afforded 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 by Board decision in December 2010. 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. In April 1976, VA determined that the appellant was ineligible for health care and compensation benefits because of the character of his discharge constituted a bar to VA benefits; the appellant did not appeal and this determination is final. 3. In November 1984, VA confirmed the prior 1976 denial that the appellant's character of discharge constituted a bar to VA benefits; the appellant did not appeal and this determination is final. 4. The submissions added to the record since the November 1984 determination are essentially cumulative of the evidence previously of record and do not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 1984 determination concluding that the character of the appellant's discharge was a bar to VA benefits is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. The evidence received since the November 1984 determination is not new and material to reopen the claim of whether the character of the appellant's discharge is a bar to VA benefits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. In a letter dated in December 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim, to include notice of what evidence the claimant could provide in support of the claim and the evidence VA would attempt to obtain. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran 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 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. § 3.312(d). 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. 38 C.F.R. § 3.12(c)(6)(ii) (2012). 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). Factual Background and Legal Analysis The Board has reviewed all the evidence in the appellant's claims file. Although it has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000); and Timberlake v. Gober, 14 Vet.App. 122, 138-30 (2000). In correspondence dated in April 1976, VA administratively determined the appellant was ineligible for VA benefits because of the character of his discharge from service was under Other Than Honorable. He did not appeal this decision and the determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Following the filing of a subsequent claim, the appellant was informed in November 1984 that his discharge from service on August 1, 1973 under Other Than Honorable constituted a bar to payment of VA benefits. He was also informed of his right to appeal but did not do so. This determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 7105(c), once an RO decision becomes final, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA is required to review only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet.App. 273 (1996). The prior evidence of record is important in determining whether evidence is new and material to in deciding whether to reopen a claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Factual Background and Legal Analysis The evidence that was of record at the time of the November 1984 administrative decision included the appellant's service personnel records disclosing that on or about December 27, 1970, the appellant "without authority, and with intent to remain away therefrom permanently, absent[ed] himself from his organization...and did remain so absent in desertion until ... on or about 12 June 1973." The appellant was subsequently brought up on charges and 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. Following counseling in June 2 1973, he signed a statement admitting 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 it was totally false that it was easy to change an 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 they only changed a small percentages of such discharges. 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 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 application was approved. In April 1976, VA noted that the appellant had had unauthorized absences from July 5, 1968 to July 8, 1968, from September 27, 1968 to October 1, 1968, and from August 1, 1969 to September 1, 1969. It was reported that his discharge was primarily due to the 898-day AWOL period. The appellant did not respond to a March 1976 VA letter requesting his version of the facts. The statement that the appellant made that he hated the Army was also considered. It was determined that the four AWOL periods spread out over his entire military career accounted to willful and persistent misconduct, and that he was denied VA and other gratuitous benefits. The appellant submitted a claim of service connection for various disabilities in January 1976. An April 1976 letter informed him his discharge from military service from March 1968 to August 1973 was issued under dishonorable conditions and that as such, he did not qualify for that benefit any other gratuitous benefit under laws administered by VA. A letter was sent to him in April 1984 advising that the JOBS program for which he had applied was similarly denied based on the character of his discharge from service as under other than honorable conditions. In correspondence dated in November 1984, the appellant was told that the character of his discharge constituted a bar to the payment of VA benefits for him and his survivors and dependents. He was advised of his appeal rights and referred to the Service Department for an upgrade of this discharge status. The appellant submitted a claim of service connection for various disabilities in June 2001. A letter dated in June 2002 advised him that his service was not honorable and that if VA decided that his service was not 'dishonorable' he would be eligible for VA benefits. Evidence received in support of the claim to reopen includes specific chapters from the Uniform Code of Military Justice, maps of Vietnam purportedly showing areas that were sprayed with Agent Orange, a service treatment record dated in December 1970 showing he had been treated after getting into a fight, a service personnel document in which he annotated that he had surrendered to the Army and had not been apprehended, multiple documents pertaining to chemical agents, a copy of a Army Review Board documents dated in 1978 reflected the appellant's attempt to change the character of his discharge to under honorable conditions, and many statements explaining the many challenges he encountered in service that caused him to not return to active duty after a period of leave in December 1970. A DD Form 214 was received reflecting that the appellant was discharged under other than honorable conditions. By letter dated in May 2003, VA informed the appellant that in their decisions dated in April 1976 and November 1984, it was determined that he was discharged under dishonorable conditions that his discharge was a bar to VA benefits. He was advised that the decision in November 1984 was final because he did not appeal the decision within one year of the determination, but that he could reopen the claim by sending in new and material evidence. A notice of disagreement with the May 2003 decision was received in January 2004. Subsequently received were numerous of character references and certificates of merit in support of claim from friends, family members, and various other individuals and organizations attesting to his good character over the years. The appellant's 201 file was received, and testimony was elicited on personal hearing in July 2008 to the effect that he went AWOL in service due to posttraumatic stress disorder (PTSD). During the hearing, the Vet Center Director testified that the appellant was a classic example of a Vietnam Veteran suffering from PTSD. A letter from the Army Discharge Review Board dated in June 1979 was received stating that after careful consideration, it was determined that the appellant was properly discharged and his case was denied. Duplicate service personnel documents were received. The July 2008 report of a board-certified document examiner was submitted concluding that the appellant could be eliminated as the writer of the handwritten material in service. The Board finds that the hand writing expert's statement is not material. First, there is no indication that the appellant challenged the accuracy of that document in 1976 or at any time prior to the current claim. More importantly, the controlling question in this case is whether this evidence provides a proper defense for the appellant's term of unauthorized absence that lasted for more than two years. The claimant presented testimony on personal hearing in July 2010 attesting to the reasons why he felt he had to go AWOL, including minority on 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 he was not his intention to dessert but that he was afraid of what was going on at his base as well as having family tragedies at home. Clinical reports were submitted were also considered. The appellant continued to submit numerous statements in support of the claim along with documents already considered, most recently received in May 2013. After review of the evidence, the Board finds that a great deal of the evidence received since the November 1984 VA decision is new since it was not of record at the time of the 1984 determination. However, the evidence merely confirms and elaborates upon the essential facts of record at the time of the November 1984 decision. This was that the appellant went on a period of extended AWOL beginning in December 1970 that lasted for almost two and one half years. It reflects that when he was brought up on charges, he opted to voluntarily separate from service rather than face a court-martial that might have imposed greater penalty. The additional evidence received reflects that the appellant has been diagnosed with PTSD in recent years but this does not impact the nature of the appellant's discharge from service. There is no evidence or documentation that PTSD resulted in his becoming so mentally incapacitated or that he was "insane" at the time of AWOL, or that there were other substantially compelling circumstances for remaining out of service. In fact, he testified that he got married, worked and went on with his life after his unauthorized absence from service. The record reflects that prior to his service in Vietnam, he went AWOL on at least three prior occasions. The Board thus finds that despite the litany of reasons in his statements and testimony as to why he chose to go AWOL, there is no documentation of any compelling circumstances to warrant his prolonged absence leading to the dishonorable discharge. See 38 C.F.R. §§ 3.12, 3.354. The Board finds that while a great deal of the additional evidence is new, it is not material inasmuch as it does not show that the appellant's discharge was anything other than under conditions other than honorable, or that there were any qualifying mitigating circumstances to reopen the claim. The record reflects that he went before the Army Review Board in 1978 whereupon it was concluded in a 1979 letter that his discharge was proper. He was therefore unsuccessful in changing his discharge status at one of the primary and principle levels of redress. As such, his discharge constitutes a bar to VA benefits. See 38 C.F.R. § 3.12(d) (2012). The additional evidence does not raise a reasonable possibility of substantiating the claim because the bar to VA benefits imposed as a result of the appellant's original discharge of under other than honorable conditions is still in effect. Under these circumstances, the Board must find that new and material evidence to reopen the claim whether the character of the appellant's discharge represents a bar to payment of VA disability compensation benefits has not been received. As such, the November 1984 determination remains final, and the appeal is denied. ORDER New and material evidence has not been received to reopen the appellant's character of discharge determination. The appeal is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs