Citation Nr: 1333948 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-27 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether the character of the appellant's discharge is a bar to VA benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The appellant had active military service from April 1968 through March 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 administrative decision. The appellant initially requested a hearing before a Decision Review Officer on his July 2009 substantive appeal. However in a January 2010 written statement he withdrew his request. 38 C.F.R. § 20.704(e). The Board must note that in reviewing this case the Board has not only reviewed the appellant's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The appellant was discharged under other than honorable conditions as a result of an absence without official leave for a period of over two years. 2. The evidence does not establish compelling circumstances to warrant the appellant's prolonged period of unauthorized absence. CONCLUSION OF LAW The character of the appellant's discharge is a bar to VA benefits. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking to have an administrative decision overturned which concluded that his military service for the period from April 1968 through March 1973 is not honorable for VA purposes, and that his discharge under other than honorable conditions was a bar to the receipt of VA benefits. The appellant's service personnel file was reviewed and reflects the appellant was on an unauthorized absence from December 18, 1970 until he voluntarily surrendered to civil authorities on January 28, 1973. VA regulations provide benefits are not payable when a former service member was discharged under certain conditions, including 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 unless there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). Factors to consider in determining compelling circumstances include length of period of AWOL and reasons for going AWOL. Id. Here, the appellant was AWOL for over two years, well in excess of 180 days. Accordingly his period of AWOL is a bar to VA benefits unless compelling circumstances are found to warrant the prolonged unauthorized absence. In a February 2009 written statement to the VA the appellant explained that he served honorably in Vietnam for approximately one year, and received several medals for this service. After returning from his deployment to Vietnam he was given 30 days leave. During this time he was with a friend who was arrested for dealing drugs and the appellant was also arrested and incarcerated. After his release from incarceration the appellant was transferred to Fort Riley in Kansas several days before Christmas. The appellant requested leave for the holidays since he had not been home for the previous holidays either. The appellant was instructed he would not be authorized leave for awhile. He stated "I just couldn't help it, I had to leave" and consequently went AWOL. In 1973 he voluntarily returned to the Army and was issued an undesirable discharge. The appellant requested a general discharge under honorable conditions from the commanding general in February 1973, however this request was denied. The appellant then elected to receive a discharge under other than honorable conditions in lieu of being court-martialed. The appellant's service personnel records support his account of the events. The record also reflects he requested his discharge be recharacterized by the Army Counsel of Review Boards (ACRB), however in October 1983 the Army Counsel of Review Boards rejected the appellant's request to change his discharge. The ACRB found there was no indication the appellant's ability to serve was impaired for any reason. The appellant's AWOL period was found to be "totally unjustified" and the appellant requested discharge in lieu of trial by courts-martial. In making their decision the ACRB considered the appellant's total record, to include meritorious service in Vietnam. However the ACRB found the appellant's "pattern of willful and persistent misconduct" outweighed his good service in Vietnam. The Board is aware that the reasons for going AWOL should be evaluated in terms of the appellant's age, background, education, and judgmental maturity and hardship during overseas service is to be carefully and sympathetically considered. 38 C.F.R. § 3.12(c)(6)(ii). However, the Board finds that, considering all reasons provided by the appellant, compelling circumstances have not been presented to warrant his prolonged period of unauthorized absence. The Board has considered the appellant's period of overseas service in Vietnam, however the record reflects the appellant encountered disciplinary problems while in Vietnam, including periods of leave without proper authority, suggesting a pattern of persistent misconduct. Additionally, the Board has considered the appellant's statements he initially went AWOL due to a desire to see his family for the holidays. However, the Board also notes the appellant did not initially choose to visit his family during his 30 day period of leave following his overseas deployment, instead initially visited a friend. Moreover, even if the appellant was motivated from a desire to see his family, this does not constitute a family emergency such as considered a compelling circumstance by VA regulations. Finally, a desire to see his family during the holiday season does not explain over two years of AWOL period. Therefore, the Board has carefully considered the appellant's hardships during overseas service in Vietnam, as well as his offered reasons for going AWOL, and has determined these reasons do not constitute compelling circumstances. The appellant's proffered reasons are outweighed by his pattern of persistent misconduct and the excessive length of his AWOL period, over two years. Therefore the Board finds the appellant's discharge under other than honorable conditions was issued as a result of an absence without official leave for a continuous period for over two years without compelling circumstances to warrant the prolonged unauthorized absence. Accordingly he is barred from receiving VA benefits and his claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the present case, required notice was provided by a letter dated in January 2009, which informed the appellant of all the elements required by the Pelegrini II Court as stated above. The letter also informed the appellant his discharge status may be a bar to VA benefits and advised the appellant of types of evidence that may support his claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Here service treatment records and service personnel records have been obtained. Additionally, the appellant was offered the opportunity to testify at a hearing before the Board, but he declined. As discussed above, although he initially requested a hearing before the RO he subsequently withdrew this request in writing. 38 C.F.R. § 20.704(e). As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. ORDER The appellant's claim is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs