Citation Nr: 1327201 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-10 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been presented to reopen the issue of the character of the appellant's discharge from military service. 2. Whether the character of the appellant's discharge from service is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his brother-in-law ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The appellant served on active duty from August 1967 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 administrative decision of the Philadelphia, Pennsylvania the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. In an administrative decision in May 1989, the RO determined that the character of the appellant's discharge from military service was a bar to the receipt of VA benefits other than health care benefits under 38 U.S.C. Chapter 17; after the appellant was notified of the adverse determination and of his procedural and appellate rights via correspondence dated in May 1989, he did not appeal the decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the appellant. 2. The additional evidence received since the May 1989 administrative decision relates to an unestablished fact necessary to substantiate the claim that the appellant had a qualifying period of honorable service for VA benefits. 3. The appellant had a continuous period of active duty from August 1967 to November 1970. 4. For the time period from August 1967 to May 1968, the appellant's active duty service was honest, faithful, meritorious and of benefit to the Nation as demonstrated by performing service in Vietnam and having, for the vast majority of this time, excellent conduct and efficiency ratings. 5. After being wounded in May 1968, the appellant's conduct and efficiency ratings suddenly became unsatisfactory, led to three Article 15 punishments and periods of being absent without leave (AWOL). 6. Given the appellant's young age, immaturity, and limited education, the hardships caused by overseas service, and the emotional and physical consequences of receiving extensive shrapnel wounds, the Board finds that compelling circumstances are demonstrated to warrant the appellant's unsatisfactory performance and periods of AWOL following his injuries. CONCLUSIONS OF LAW 1. The criteria to reopen the issue of the character of the appellant's discharge from military service have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The character of the appellant's service from August 1967 to November 1970 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 CONCLUSIONS The Duty to Notify and the Duty to Assist Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 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, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue on appeal. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The service treatment records reveal that the appellant was wounded by an eight inch rocket in May 1968 and sustained multiple shell fragment wounds, mainly to the right side of his body. He was hospitalized for more than 35 days. The service personnel records reveal that, from August 1967 to May 1968, the appellant's conduct and efficiency ratings were primarily excellent with one evaluation of good. After the appellant's wounding, his efficiency ratings were primarily unsatisfactory. The records also demonstrate that the appellant was found to be AWOL at different times subsequent to May 1968 but never prior to that time. An August 1969 Special Processing Detachment finding demonstrates that the appellant was convicted of robbery in March 1969 and sentenced to a indeterminate term of not less than one year and not more than 20 years. The appellant had no record of prior court-martials. He had received three Article 15's for being AWOL. The appellant was AWOL for 7 hours and 45 minutes in September 1968. He was AWOL for one hour and 20 minutes in October 1968. He was also AWOL from November 24, 1968 to December 9, 1968. A March 1971 Administrative decision reveals it was determined that the appellant had enlisted in the army in August 1967. He was discharged on November 21, 1968 for the purpose of immediate re-enlistment which was accomplished on November 22, 1968. The appellant was discharged under conditions "other than honorable" in November 1970. The service department issued a statement that the appellant was not eligible for complete separation when discharged on November 21, 1968. The appellant was convicted of a felony, armed robbery, in March 1969 and was sentenced to an indeterminate prison term of one to twenty years. The appellant was examined by a medical doctor and no evidence of organic damage to the brain, nervous system, or incompetency to stand trial. It was noted that a veteran's discharge because of a felony will be considered to have been issued under dishonorable conditions. The administrative decision resulted in a finding that the appellant's discharge was under dishonorable conditions and that he was barred from all rights and benefits administered by VA based upon his active duty service from August 1967 to November 1970. In August 1977, the appellant was informed that his discharge had been reviewed under the provisions of the Presidential Proclamation 4313. The result of the review was that it was determined the appellant's case meets the criteria established by the President and, accordingly, the Army Discharge Review Board has determined that the appellant's discharge had been upgraded to Under Honorable Conditions. A January 1981 administrative decision referenced the August 1977 upgrade of the appellant's discharge to Under Honorable Conditions. It was also noted that, in August 1978, the character of the appellant's discharge was re-evaluated under the provisions of Public Law 95-126 and it was determined that the appellant's upgraded discharge was denied upon second review. The January 1981 administrative decision resulted in a conclusion that the appellant's discharge from August 1967 to November 1970 was issued under dishonorable conditions due to the appellant's conviction of a felony and was a bar to all VA benefits except health care. In November 1988, the appellant's representative submitted a statement claiming that the March 1971 and January 1981 Character of Discharge determinations contained clear and unmistakable error (CUE) due to the fact that both decision were based on a finding that the appellant was discharged due to his conviction of a felony. In an April 1989 Administrative Decision, it was determined that the appellant was not discharged from the Army as the result of the felony conviction. However, it was further held that the appellant's actions with regard to his several instances of being AWOL must be considered willful and persistent misconduct and that his service from August 1967 to November 1970 was under dishonorable conditions. In February 2007, the RO denied the appellant's claim of entitlement to VA benefits. It was determined that the appellant's military service didn't entitle him to VA benefits. In January 2010, the appellant submitted his most recent application for VA benefits. In July 2011, the appellant testified at a hearing before the Board in July 2011 that he received wounds to the right temple, right side of the neck, right side of the chest, right shoulder, right wrist, to the back of both hands, two wounds to his rib cage, wounds to his stomach, to the right knee, the left flank, the left knee, the right ankle and the back of the head in May 1968. He was hospitalized for seven months after the injury. He was discharged from his first period of service around the time of his discharge from the hospital. He reenlisted in order to receive training in aircraft turbines. The Veteran testified that at the time of his re-enlistment, he was having a lot of problems with the company he was assigned to at Fort Riley due to the medication he was on and his state of mind. He was very paranoid at that time and was on four different types of medication. The Veteran reported that he was put on physical profile because he was unable to perform any duties due to the wounds. He testified that his platoon sergeant was giving him a hard time because he could not work. During the time when he went AWOL, his father was very sick having recently experienced a stroke. The Veteran testified that he requested leave due to him to help with his father but the leave was denied, so he just left to help with his father. The longest period of going AWOL was approximately nine months. During that time, he testified that he did not even know where he was, he just wandered, and began to drink due to the pain from his shrapnel injuries. The Veteran stated that the alcohol interacted with his medication causing him to have bouts of not knowing what he had done for five or more hours. The Veteran testified that during that time, he was 19 with an eighth grade education, had been born and raised on a farm, and he did not know how to cope. He knew he needed help but he did not know where to get it. The Veteran testified that he was unable to function physically for approximately six years after discharge. He reported that he was charged with armed robbery, which he pled guilty to as part of a plea bargain, but he denied that he committed the robbery. Whether New And Material Evidence Has Been Presented To Reopen The Issue Of The Character Of The Appellant's Discharge From Military Service A determination by the RO becomes final if not appealed within one year of the date of the notice of the adverse determination, except a claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108, 7105. 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). In determining whether the evidence is new and material, the basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence has been received to reopen the Veteran's claim of entitlement to VA benefits. The prior final denial of the claim was based on the fact that the Veteran's discharge was a bar to VA benefits other than treatment for injuries which occurred during active duty. Subsequent to the prior final denial, the Veteran testified before the Board as to his mental and physical status after he was wounded in May 1968. He reported difficulty with mentation after his combat injury and how he turned to alcohol to cope with the pain of his wounds. He reported that these problems were the cause of his going AWOL. The Veteran's testimony satisfies the definition of new and material evidence. 38 C.F.R. § 3.156(a); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992). The extent of the Veteran's difficulties dealing with the sequelae of his wounds was not of record at the time of the prior final denial. Additionally, the Veteran's testimony goes to the Veteran's state of mind when he went AWOL. This evidence is new as it was not of record at the time of the prior final denial. Additionally, the evidence is material as it tends to demonstrate that the actions for which the Veteran went AWOL should be sympathetically considered as they flowed from his significant injuries sustained as a result of a rocket explosion. The Board finds this evidence by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim regarding whether the character of the appellant's discharge is a bar to the receipt of VA monetary benefits, and raises a reasonable possibility of substantiating the claim. As new and material evidence has been received, the claim as to whether the character of the appellant's discharge from service is a bar to VA benefits has been reopened. Whether The Character Of The Appellant's Discharge From Service Is A Bar To VA Benefits. 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 are 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 are evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. Consideration is given to how the situation appeared to the person 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 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 record is clear that prior to substantial injuries he sustained in May 1968, the appellant's active duty service can only be characterized as honest, faithful, meritorious, and of benefit to the Nation. His ratings were, for the vast majority of the time, the highest possible to be assigned for both conduct and efficiency. He rendered benefit to the Nation during his Vietnam service which was without blemish. The record is also clear that, after being wounded, the appellant's conduct and efficiency ratings suddenly became unsatisfactory, led to Article 15 punishments and he started going AWOL on different occasions. Thus, the dispositive issue on appeal concerns whether there are compelling reasons to explain the appellant's unsatisfactory performance and periods of AWOL. Here, the Board finds that compelling reasons exist to justify the appellant's unsatisfactory performance and periods of AWOL following his wounding in Vietnam. The appellant was 19 years old having only an 8th grade education when he was severely wounded. He was on physical profile for his injuries. He was being harassed by his sergeant due to an inability to perform any military duties. The appellant's family members reported on how the Veteran had changed after his wounding. The appellant's state of mind at the time of his unsatisfactory performance and subsequent periods of AWOL must be viewed sympathetically in light of the hardships caused by both overseas service and due to his extensive combat wounds. The sudden change in his performance upon return from Vietnam must be viewed in light of the physical and emotional toll caused by his service in a foreign land, wherein his life was placed in jeopardy and he was severely wounded. The Board can find no other reason in the record why the appellant's conduct would so drastically change other than due to the physical and emotional effects of the multiple shrapnel wounds. In light of the above, compelling circumstances are demonstrated to warrant the appellant's unsatisfactory performance and periods of AWOL following his injuries in May 1969. As such, the Board finds that the characterization of the appellant's active duty service from August 1967 to November 1970 does not constitute a bar to VA benefits. ORDER As new and material evidence has been presented, the issue of whether the character of the appellant's discharge from military service is a bar to benefits administered by VA is reopened. The character of the appellant's discharge is not considered a bar to payment of VA benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs