Citation Nr: 1323867 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-00 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES Whether the character of the Appellant's discharge from service is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant served on active duty from June 1969 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 administrative decision of the Philadelphia, Pennsylvania VA Regional Office (RO) that determined the appellant's character of discharge was a bar to VA benefits. In May 2013, a Travel Board hearing was held before the undersigned. A transcript of this hearing is associated with the appellant's claims file. As an initial matter, the Board notes that at the time of the May 2013 Travel Board hearing, the issue on appeal was identified as two separate issues, "entitlement to pension, and then also status as a Veteran." However, as was also explained at the May 2013 Travel Board hearing, the instant appeal arose as a preliminary consideration when the appellant filed a claim for VA compensation and pension benefits. See April 2009 VA Form 21-526. His claims for service connection and for nonservice-connected pension benefits have not yet been adjudicated as the threshold issue to be addressed is whether the appellant's character of discharge is a bar to VA benefits. Accordingly, the issue on appeal has been recharacterized as identified on the preceding page. However, in light of the fact that the Board finds herein that the appellant's character of discharge is not a bar to VA benefits, his claims for service connection and for nonservice-connected pension benefits are referred to the Agency of Original Jurisdiction for appropriate action. Finally, the Board notes that it has reviewed both the appellant's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. 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 was inducted into service in June 1969 and was discharged for the good of the service in October 1970 under conditions other than honorable. 2. The character of the appellant's discharge was upgraded to a general discharge in June 1977 under the Department of Defense (DoD) Special Discharge Review Program (SDRP); this decision was upheld in a June 1978 decision by the Department of the Navy's Naval Discharge Review Board on an individual basis. 3. The appellant's discharge from service in October 1970 was not based on an offense listed in 38 C.F.R. § 3.12(c), but was based on an offense listed in 38 C.F.R. § 3.12(d). CONCLUSION OF LAW The character of the appellant's discharge from service is not a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5103, 5103A, 5107, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. See Dennis v. Nicholson, 21 Vet. App. 18 (2007) (addressing the adequacy of VCAA notice in cases concerning the character of discharge). However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Under VA laws 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); 38 C.F.R. § 3.1(d). VA benefits are not payable unless the period of service upon which the claim is based was terminated discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(a). According to 38 C.F.R. § 3.12(c), benefits are not payable when a former service member is discharged or released under one of the six conditions enumerated therein, including where the discharge under other than honorable conditions was 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). This bar to benefits does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence, but will apply to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in 38 C.F.R. § 3.12(h), and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive VA benefits. Id. According to 38 C.F.R. § 3.12(d), there are five offenses for which a discharge or release will be considered to have been issued under dishonorable conditions. Such offenses include the acceptance of an undesirable discharge to escape trial by general court-martial. 38 C.F.R. § 3.12(d)(1). An honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. § 1553, sets aside a bar to benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), provided that certain requirements are met. 38 C.F.R. § 3.12(g)(1)-(3). Unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in 38 C.F.R. § 3.12(g), an honorable or general discharge awarded under the DoD's special discharge review program effective April 5, 1977, does not remove any bar to benefits imposed by 38 C.F.R. § 3.12. 38 C.F.R. § 3.12(h)(2). These provisions of law arose from the enactment of Public Law 95-126, § 1(a) (Oct. 8, 1977), which added 38 U.S.C.A. § 5303(e) and engendered 38 C.F.R. § 3.12(g), (h). The appellant served on active duty from June 1969 to October 1970. His service personnel records show he was discharged under conditions other than honorable, and that the reason for his separation was for the good of the service. Specifically, the appellant admitted to having committed the following offenses in violation of Articles 86 and 92 of the Uniform Code of Military Justice: (1) unauthorized absence from August 4, 1970 to August 30, 1970; (2) unauthorized absence from September 4, 1970 to September 8, 1970; and (3) failure to obey a lawful order. The appellant further agreed to accept an undesirable discharge to avoid a court martial for those aforementioned offenses. In April 1977, the appellant applied to the DoD's SDRP and requested that his undesirable discharge type be upgraded to honorable. On review, the Discharge Review Board determined in June 1977 that "[t]he charges for which [the appellant was discharged], considering a history of 1 [summary court martial] and 2 [non-judicial punishments] in 14 [months] service, most likely would not have resulted in a [bad conduct discharge] if tried by [court martial]; therefore a change [was] appropriate." However, the Discharge Review Board also determined that the appellant's record of service did not warrant characterization as fully honorable, and his discharge was changed instead to a general discharge, under honorable conditions. In a June 1978 letter, the Department of the Navy advised the appellant that his discharge had been reviewed again by the Naval Discharge Review Board (NDRB), as required by Public Law 95-126, and that the NDRB had determined that the change in characterization of his service was warranted under the newly published uniform standards for discharge review. The appellant was subsequently issued a DD Form 215, also in June 1978, stating, "Discharge reviewed under Public Law 95-126 and a determination made that characterization of service is warranted by DOD Directive 1332.28." According to VA's Adjudication Procedural Manual, M21-1MR, Part III, Subpart v, Chapter 1, Section B, para. 11(c), such narrative constitutes a favorable second review. Because the appellant's discharge was upgraded after October 8, 1977, by a discharge review board established under 10 U.S.C. § 1553, and was based on an individual case review, under uniform published standards and procedures consistent with historical standards for determining honorable service, and did not contain a provision for automatically granting or denying an upgraded discharge, 38 C.F.R. § 3.12(g) is for consideration in this claim. The essential question to be addressed then is whether the appellant's discharge was based on an offense listed under 38 C.F.R. § 3.12(c), or an offense listed under 38 C.F.R. § 3.12(d). The critical distinction for purposes of this is appeal is that pursuant to 38 C.F.R. § 3.12(g), a general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. § 1553, sets aside a bar to benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c). Here, the appellant's service personnel records do not show that he was discharged or released as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court martial; as a deserter; as an alien during a period of hostilities, where it was affirmatively shown that he requested his release; or because he was an officer resigning for the good of the service. 38 C.F.R. § 3.12(c)(1)-(5). To the extent that the appellant's service discharge was predicated, in part, on periods of unauthorized absences, the record does not reflect that he was AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). On the contrary, the record (as described above) shows that the appellant was AWOL for 25 days in August 1970 and again for 3 days in September 1970; these were not continuous periods of unauthorized absences. The record does show that the appellant had additional periods of unauthorized absences in service; however, those periods did not form the basis of his discharge from service, other than for it to be noted that he had by that time "accumulated a total of 52 days in an unauthorized status." See October 1970 memorandum from the Staff Judge Advocate to the Commanding General, Request for the appellant's discharge for the good of the service. Significantly, even if the appellant's 52 days of AWOL were considered as a consecutive period, that period of unauthorized absence would still fall short of the 180 continuous days required to be considered an offense under 38 C.F.R. § 3.12(c)(6). Accordingly, the appellant is not barred from the receipt of VA benefits by virtue of any of the conditions listed under 38 C.F.R. § 3.12(c). Instead, the record shows that the appellant was discharged under conditions other than honorable to escape trial by general court-martial. Such offense falls squarely within 38 C.F.R. § 3.12(d) and, in light of the issuance of a general discharge after October 8, 1977, by a discharge review board established under 10 U.S.C. § 1553, it may be set aside. See 38 C.F.R. § 3.12(g). Accordingly, the Board concludes that the character of the appellant's discharge from service is not a bar to his receipt of VA benefits. ORDER The appeal seeking to establish that the character of the appellant's discharge from service is not a bar to VA benefits is granted. ____________________________________________ JAMES RIDGWAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs