Citation Nr: 1334556 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-10 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether new and material evidence has been submitted to reopen the prior decision finding that the Appellant's character of discharge is a bar to VA compensation benefits and whether this claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Mother, Appellant's Father ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Appellant had military service from August 2003 to September 2006. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Board has not only reviewed the Appellant's physical claims file but also the Appellant's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Appellant entered active military service in August 2003 and received a discharge under other than honorable conditions in September 2006. 2. A July 2008 RO decision found that the character of the Appellant's discharge under other than honorable conditions and constitutes a bar to VA benefits. 3. In February 2010 service treatment records that were not part of the file in July 2008 were associated with the Appellant's file. 4. During his period of active service, the Appellant was absent without official leave (AWOL) for a period of 29 days and a period of 867 days between February 2004 and August 2006. 5. No compelling circumstances have been presented to account for the Appellant's prolonged period of AWOL. 6. There is no indication that the Appellant was insane at the time he went AWOL. CONCLUSIONS OF LAW 1. Since the RO's July 2008 adminstrative decision, relevant service treatment records have been received, thus reconsideration is warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The character of the Appellant's discharge from service is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. § 3.12 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 2009 the Appellant filed a claim to reopen his earlier unfavorable character of discharge determination. The Veteran contends that his periods of AWOL were due to being harassed pending a medical discharge for problems with his feet. In February 2010 service treatment records in the form of radiology reports on the Veteran's left foot from November 2003 and January 2004 were associated with the Veteran's claims file. The records were not part of the file at the time of the July 2008 RO administrative decision that the Appellant's discharge from service was under other than honorable conditions as a result of absence without leave for a continuous period of at least 180 days and is a bar to VA benefits. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board finds that the addition of the new service treatment records to the Veteran's file provides a basis for reconsideration of the Appellant's claim de novo under 38 C.F.R. § 3.156(c). Therefore, finding there is no prejudice to the Appellant in doing so, the Board will consider de novo the Veteran's claim that his character of discharge is not a bar to benefits. Under applicable law, the term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a 00prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 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). The provisions of 38 C.F.R. § 3.12(c) provide, in pertinent part, that benefits are not payable when the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. The bar does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). The factors to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence are: the length and character of service exclusive of the period of prolonged AWOL, reasons for going AWOL, and whether a valid legal defense exists for the absence that would have precluded a conviction for AWOL. Such a discharge is also not 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). Also, a discharge or release because of acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). The Veteran's records reflect that he was charged with a violation of the Uniform Code of Military Justice, Article 86, for being AWOL for 867 days from March 2004 to August 2006. Prior to that period of AWOL he was AWOL for 29 days from February 2004 to March 2004. The Veteran contends that he had trouble with his feet in service for which he sought treatment. He stated that his feet were examined and he was recommended to be medically discharged. He reported that while waiting for his discharge, he was harassed by other members of the unit he was in. Specifically, in a May 2008 statement he reported being screamed at, being ordered to do push-ups, being ordered to climb hills and pick up trash while yelling disparaging things about himself, being woken up in the middle of the night, being told to urinate on a Marine uniform, having to stand off to the side of his platoon at roll call, and missing chow time. He stated that he feared for his life and therefore went AWOL. In a May 2008 statement his parents recounted a similar series of events, stating that the Appellant told them about his foot problems and they saw his fallen arches themselves. An October 2003 certificate recognizes the Appellant for being a platoon high shooter and his DD-214 reflects he was awarded a Good Conduct Medal for the period commencing August 2003. In December 2009 the Appellant had a hearing before the RO at which he explained that when he began having foot trouble he was sent to be medically separated. He reported he received a final physical, was not issued any gear, and was ordered not to train. Shortly after arriving he reported harassment, including being woken up in the middle of the night, hung over the side of a third floor catwalk, told to urinate on a Marine Corps uniform, and being given only one meal a day. He reported he was grabbed but never hit. He said that the first time he went AWOL he left for 29 days during which time he contacted elected officials in Congress seeking assurances he would not be put back in the same situation. However, he said he returned and the hazing began again so he went AWOL again two days later. He continued to seek assistance from members of Congress. He was ultimately apprehended in August 2006. Records show that members of Congress contacted the Marine Corps in 2004 and 2005 regarding the Appellant's complaints of hazing. Service treatment records reflect that the Appellant had left foot x-rays done in November 2003 after reporting he had been having foot pain for a month. He was noted to have plantar fibromatosis. A hallux valgus deformity was identified on January 2004 x-rays. A March 2004 private treatment record reflects a diagnosis of hypermobile foot with midstance pronation and fatigue symptoms. The private podiatrist noted the Veteran reported he was pending a medical board inquiry. Records show that after being apprehended, the Appellant requested and received a separation in lieu of trial by court martial in which he admitted he was AWOL from March 2004 to August 2006. In September 2006 the commanding officer at Camp Pendleton recommended the Appellant's request be approved, stating that he believed there was sufficient extenuating evidence to suggest that the Appellant suffered from physical ailments that caused members of his unit to haze him, making a conviction uncertain. However, in April 2009, the Naval Discharge Review Board declined to change the character of the Veteran's discharge. The Board has considered whether the evidence supports that the Appellant had compelling circumstances to warrant his prolonged period of AWOL, but finds that he did not. While there is no evidence that the character of his service prior to the period of AWOL was negative, the length of his service was just shy of six months, during which time the Veteran reported he completed recruit training and began school of infantry training. He has been consistent in his explanation of his reasons for going AWOL, namely harassment from others in his unit. The record further shows some attempt, at least on the part of his parents, to mitigate his concerns to allow for his return via contacting members of Congress. However, regardless of the veracity of the Appellant's description of the harassment that occurred and the steps taken to seek intervention on his behalf, the undisputed fact remains that the Veteran was AWOL for a consecutive period of more than two years and four months and only returned after being apprehended. The Board finds the circumstances, even as described by the Veteran himself, are not sufficiently compelling to justify such a long period of AWOL. The appellant made no effort to address the situation until he was apprehended (indicating that this AWOL could have go on for many more years, and mostlikely would have). While harassment in the military is an extremely solemn concern, and could justify a limited period of AWOL in certain limited circumstances under VA law, it does not abrogate the appellant from his duty to address the situation, in some manner, once he left his post (and the alleged danger) without authorization. The appellant cannot simply abandon service indefinitely. He had a duty to address the situation in some manner, which he did not do until his apprehension, leading to this situation. The appellant's own statements, overall, to do provide a "compelling" circumstance to warrant the highly prolonged unauthorized absence, only ended by apprehension. Further, the Appellant has not contended and the evidence does not show that he was insane at the time he went AWOL. There is nothing to support such a finding. Therefore, the Board finds 38 C.F.R. § 3.12(c) bars the Appellant from receiving VA benefits as he was discharged under other than honorable conditions as a result of beintg AWOL for a continuous period of at least 180 days and there are no compelling circumstances to justify the absence nor was the Appellant insane at the time. Duties to Notify and Assist 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. 2013); 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a claim including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, only the Appellant's status is at issue. The duty to notify was satisfied by a February 2010 letter from the RO that addressed the required notice elements, including what evidence was needed to reopen the Appellant's claim. The RO readjudicated the Appellant's claim in a March 2010 statement of the case. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Appellant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). Although the RO was unable to obtain the Appellant's complete service treatment records, the Board finds all reasonable efforts to do so have been made. In February 2010 the RO sent the Appellant a letter informing him of what attempts had been made and the failure to obtain records. The letter further requested the Appellant submit any records in his possession or knowledge of the possible location of the records. In any event, for reasons cited above, the facts of this case are not in significant dispute. With the exception of the Appellant's complete service treatment records, the Board is not aware of the existence of any additional or relevant evidence that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER The character of the Appellant's discharge from service is a bar to entitlement to VA compensation benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs