Citation Nr: 1324334	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  12-15 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Whether the character of the appellant's discharge from the period of active service from May 9, 1967, to January 29, 1975, is a bar to VA compensation benefits.


REPRESENTATION

Appellant represented by:	Jerome N. Frank Legal Services Organization
	Yale University Law School
	Law Student Intern Laura Keay on Hearing; with 
	Law Student Intern Daniel Driscoll on submissions

WITNESSES AT HEARING ON APPEAL

Veteran and Spouse

ATTORNEY FOR THE BOARD

C. Bruce, Counsel

INTRODUCTION

The appellant had active service in the U.S. Army from May 1967 to January 1975. His awards and decorations include the Vietnam Service Medal and the Purple Heart Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 administrative decision and an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

The appellant testified at a March 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

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 Veteran served on active duty from May 1967 to January 1975 and was discharged under other than honorable conditions.

2. During his first period of active duty, the Veteran was absent without leave (AWOL) a total of more than 2100 days: from June 24, 1968 to August 13, 1968 (150 days); from September 4, 1968 to February 17, 1969 (166 days); from February 20 to June 5, 1969 (105 days); from June 20, 1969 to June 5, 1974 (1810 days).

3. The record reflects that the Veteran was experiencing residuals of a traumatic brain injury, cognitive impairment, anxiety, depression, and posttraumatic stress disorder (PTSD) which caused a prolonged deviation in his normal method of behavior during his period of active duty.

CONCLUSION OF LAW

The character of the appellant's discharge from his period of service from May 1967 to January 1975 is a not bar to the payment of VA monetary benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002 & Supp. 2009); 38 C.F.R. § 3.12, 3.354(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), and implemented by 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

As the Board has granted the full benefit sought with respect to the issue decided appeal, there is no prejudice to the Veteran under VA's duties to notify and assist. As such, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Merits of the Claim

An individual seeking VA benefits must first establish status as a veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The term "veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2).

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) (2012). 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 an absence without official leave (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. 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 for going AWOL. 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 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.

(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph, the defense must go directly to the substantive issue of absence rather than to procedures, technicalities, or formalities.

The Board is not required to simply accept an appellant's statements that he had compelling circumstances for a prolonged period of AWOL. See Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003) (adjudicator permitted to look at totality of evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL).

As to the regulatory bars, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) 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 (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); (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty (examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.).

An act constitutes 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 or release from service under one of the above conditions specified in 38 C.F.R. § 3.12(c) and (d) is a statutory or regulatory 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 or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days.

VA regulations provide that 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).

In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does 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. The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." The opinion also held that behavior which was generally attributable to a substance-abuse disorder did not exemplify the severe deviation from the social norm or the gross nature of conduct which was generally considered to fall within the scope of the term insanity and therefore did not constitute insane behavior. VAOPGCPREC 20-97 (May 22, 1997). The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012).

The burden is on an appellant to submit competent medical evidence that he or she was insane at the time of any offenses. Stringham, 8 Vet. App. at 449. There need be no causal connection between the insanity and the misconduct, but the insanity and the acts leading to the discharge must be concurrent. 38 C.F.R. § 3.354(b).

The appellant argues that there compelling circumstances-family situations including caring for his mother, siblings, wife, and children-that warranted his unauthorized absences and/or that he was insane, as defined by 38 C.F.R. § 3.354. He therefore argues that his discharge under other than honorable conditions should not bar him from receiving VA benefits.

The Veteran's enlistment examination, dated March 1967, reflects a normal evaluation. He reported no nervous trouble of any sort and no depression or anxiety.

Service personnel records reveal that the appellant first went AWOL in June of 1968, although the transcript from his July 1974 court martial did not address this period of AWOL, but rather listed the initial period beginning in September 1968. According to the transcript of the court martial and all other evidence, the appellant was plainly wounded in action against enemy forces while serving in the infantry during the Vietnam conflict. He reported his unit was under attack and he climbed a tree to get a better view of the situation and a mortar hit the tree and blew him out of it. He testified that when he woke up he could not feel anything and was paralyzed. Members of his unit pulled him to safety. He further reported that he was in a hospital in Japan following the incident, and was eventually transferred to St. Albans Naval Hospital. 

The appellant reported and the record supports that he was awarded the Purple Heart Medal in May 1968 while he was stationed at St. Albans Naval Hospital. The award was presented for wounds received in action against armed enemies of the United States on April 26, 1968.

His periods of AWOL started after his arrival at St. Albans Naval Hospital. Records associated with the appellant's incarceration in June 1974 indicated that the appellant had a complicated medical history including back problems, nervousness, numbness and pain in his arms, and migraines. The Veteran was prescribed valium for his nervousness. The appellant noted these symptoms had persisted since his wounds sustained in action in Vietnam. He further noted that it took some time and physical therapy for him to alleviate the paralysis. He used crutches at the July 1974 court martial, as noted in the transcript. It was also noted at his July 1974 hearing that there was no indication that he lacked mental capacity. 

The appellant stated that he was aware that he was absent without permission, but that he left to deal with family situations. The appellant's father was abusive to his mother, so he left to help his mother attain a divorce. He had younger siblings that needing care; and a wife and children that needed his support. He had two children, one with his wife at the time and another that was his child with a previous girlfriend. The girlfriend died in a car accident and the appellant had obtained custody of the child. He had returned to the hospital a few times only to leave again because of family situations. The appellant stated multiple times that he was aware that he did not have permission to leave, but that he had an obligation to his family who needed him.

The appellant underwent a private psychiatric evaluation in July 2011. The psychiatric examination report noted that it is likely that the appellant experienced a traumatic brain injury as a result of his injuries from the explosion that occurred during his service in the Republic of Vietnam. The resultant cognitive impairment may have contributed to the poor judgment that resulted in the appellant's AWOL. The examiner noted that the appellant's symptoms met the criteria under the DSM-IV for PTSD, although he could not determine whether PTSD affected the appellant's decisions or understanding of his relationship to the military during his AWOL. The examiner also noted that the appellant had developed a seizure disorder that his neurologist indicated was likely related to the head trauma experienced as a result of the in-service explosion.

The July 2011 private psychiatrist that examined the appellant noted in a February 2012 letter that after meeting with the appellant for over fifteen hours on several occasions in April and May 2011, he determined that the appellant suffered from several disorders, including a traumatic brain injury, cognitive impairment, anxiety, depression, and PTSD as a result of the in-service explosion that began during his stay at the St. Albans Naval Hospital in 1968. These disorders likely caused prolonged deviation in the appellant's normal method of behavior during the years following his service in Vietnam. 

A February 2013 letter from the appellant's treating neurologist noted that the appellant was under the physician's care for epilepsy and cognitive impairment. The physician opined that the appellant more likely than not had suffered from his epilepsy and memory problems since he sustained a traumatic brain injury during his military service. He noted the appellant currently had major difficulties functioning and performing everyday tasks and was therefore unemployable.

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In short, as the Veteran's 1975 discharge from service was determined to be under other than honorable conditions and no change in the character of discharge has been made by the service department, the determination with respect to the character of the Veteran's discharge is binding on VA.

However, as noted above, insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days. 38 C.F.R. § 3.12(b). After careful review of the record, as well as the applicable case law, the Board has determined that the Veteran's behavior reflects that he was experiencing insanity and his appeal will be granted. 

The law  holds that the definition of insanity under 38 C.F.R. § 3.354(a) is  "expansive." Stringham v. Principi, 3 Vet. App. 560, 561 (1992). As noted above, an insane person is one who, while not mentally defective or constitutionally psychopathic, exhibits a more or less prolonged deviation from his normal method of behavior, interferes with the peace of society, or who has so departed (become antisocial) from the accepted standards of the community 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). Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue. Brown v. Brown, 5 Vet. App. 413 (1993).

The appellant's July 1974 court martial transcript noted that the appellant stated that he understood the consequences of his actions and that he was absent from his assigned duty station without permission. While plainly relevant, his provident plea is not dispositive on the question of whether his actions in service represented a departure from his normal behavior; and analyses of whether a Veteran understood right from wrong or was able to discern the effects of his behavior is not germane to a determination of whether or not he was insane as defined by 38 C.F.R. § 3.354(a). Gardner v. Shinseki, 22 Vet. App. 415, 420 (2009). The Court has also held that that mental illness is not identical to "insanity" (Beck v. West, 13 Vet. App. 535, 539 (2000)) and that there must be competent evidence establishing that an appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995).

Here, the record reflects that up until the time of his combat injury, the appellant was performing his military duties. After the combat injury, he was sent for recuperation at a stateside hospital, and experienced various residuals from the in-service explosion - the record suggests these include traumatic brain injury, cognitive impairment, anxiety, depression, and PTSD. He also currently has epilepsy that his neurologist attributes to the head trauma suffered in the explosion. Most of these disorders began during his stay at the St. Albans Naval Hospital in 1968 and according to the July 2011 private psychiatrist, likely caused prolonged deviation in the appellant's normal method of behavior during the years following his service in Vietnam-a characteristic listed in the definition of insanity at 38 C.F.R. § 3.354(a). 

Most strikingly, the appellant did not absent himself without authority in an apparent attempt to avoid hazardous duty. His military service number preface of "AUS" (Army of the United States) indicates that he was inducted for a two year period of service, and he would have not otherwise have been subject to military control; and there is no indication that after he completed his Vietnam tour he was scheduled to return to the hostile fire zone. 

To state it plainly: there is no evidence to find that the appellant went AWOL with any other effect than to avoid medical treatment.

As noted, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," a claimant for Veterans benefits shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown, 5 Vet. App. at 421.

The appeal will be granted. The character of the Veteran's discharge is not, due to the evidence that he was insane (as defined by 38 C.F.R. § 3.354(a)) at the time of his unauthorized absences, a bar to benefits. See 38 C.F.R. § 3.12(b).


ORDER

Entitlement to VA benefits, based on a period of service from May 1967 to January 1975, is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs