Citation Nr: 1335907 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-22 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the character of the appellant's discharge is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The appellant served on active duty from September 1969 to April 1972 and was discharged under conditions other than honorable. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a February 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. The appellant had a continuous period of active duty from September 1969 to April 1972, with confirmed service in the Republic of Vietnam from March 1970 to February 1971. 2. Twice prior to his tour in Vietnam, and several times after, the appellant was absent without leave (AWOL) for short periods of time (less than 180 days); following his tour in Vietnam, his conduct became unsatisfactory ultimately leading to his administrative discharge from active duty. 3. During his tour in Vietnam and for several months following his return, the appellant's active duty service was honest, faithful, meritorious, and of benefit to the Nation as demonstrated by performing service in Vietnam, and throughout his service, for the vast majority of his time, he had excellent conduct and efficiency ratings. 4. Given the appellant's young age, immaturity, and the reasonable fear ahead of a tour in Vietnam during the Vietnam Era, as well as the hardships caused by the overseas wartime service, the Board finds that compelling circumstances are demonstrated to warrant the appellant's initial periods of AWOL, and the post-Vietnam unsatisfactory performance and periods of AWOL. CONCLUSION OF LAW The character of the appellant's service 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the appellant by granting the issue at hand. As such, this decision poses no risk of prejudice to the appellant. 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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 an 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 appellant in this case served in the United States Army from September 1969 through April 1972, with service in the Republic of Vietnam from March 12, 1970, through February 10, 1971. The appellant's service treatment records are not indicative of any combat wounds, or other treatment related to combat. The March 1972 separation examination report shows that the appellant was in good health at the time of separation, without any noted abnormalities. The appellant's service personnel records show that the appellant had various periods of AWOL during his active service, several prior to his deployment to Vietnam. In September 1969, at Fort Polk, Louisiana, the appellant was absent from his training battalion for approximately two days. Article 15 nonjudicial punishment was imposed, which included forfeiture of $19.00 for one month, as well as 14 days of restriction to the company area and extra duty of 2 hours per day for 14 days. In January 1970, at Fort Leonard Wood, Missouri, the appellant failed to report to his appointed place of duty at the time prescribed. Several days later he was cited for breaking his restriction. Article 15 nonjudicial punishment was again imposed. He forfeited $26.00 for one month, was restricted to the company area for 14 days and had extra duty of 2 hours per day for 14 days. The appellant was again AWOL for 22 days from February 12, 1970, until March 6, 1970. Article 15 nonjudicial punishment for this period of AWOL included reduction from "PV2" to "PV1," forfeiture of $40.00 per month for two months, and restriction to the Oakland Army Base, California, for 30 days or until shipment, whichever was earlier. The appellant deployed to the Republic of Vietnam one week after this punishment was imposed. During his tour in Vietnam, there appears to have been no disciplinary problems. The appellant's record of assignments shows that his conduct and efficiency were consistently noted as excellent from the time of his Basic Combat Training in 1969 through until his return from the republic of Vietnam in 1971, after which it was noted as fair conduct and good efficiency. A September 1970 letter within the appellant's service personnel records indicates appreciation by a superior for the appellant's job performance as an ordnance mechanic, to include a high level of skill, duty and enthusiasm. The appellant's DA Form 20 shows his Appointments and Reductions during service. This document confirms a reduction from PV2 to PV1 in October 1969, but then shows that he progressed back to PV2 by November 1969, returned to PV1 in March 1970, which was at the time of his disciplinary action just prior to his deployment. However, by May 1970, the appellant was PV2, and later in May 1970, he was PFC E3. Two months later, in July 1970, the appellant was promoted to Specialist E-4. It was not until 1971 that the appellant again experienced trouble and had a reduction to PFC E3. In particular, following the appellant's tour in Vietnam, several additional AWOL incidents occurred. The appellant was AWOL for one day at the beginning of July 1971, and an additional 13 days later in the same month. The Record of Court-Martial Conviction indicates that the appellant's rank was reduced to PV2 at that time, with the reduction suspended for 90 days. The appellant was again AWOL for 2 days in September 1971 and for an additional 9 days from September 29, 1971, to October 7, 1971. He underwent summary court martial in September 1971. The Record of Court-Martial Conviction for that offense shows that he received oral reprimand by the convening authority. Later, at the time of his undesirable discharge in March 1972, his rank was reduced to PV1. His charges at that time involved failing to report for duty, as well as failure to follow the orders from a superior noncommissioned officer, and using disrespectful language toward another superior noncommissioned officer. He was also accused of and admitted to larceny of a school ring of a fellow soldier. He was recommended for discharge in March 1972 due to being unfit to serve. He was described as not reliable, with a poor attitude, and that he did not meet the minimum standards of reasonable conduct. His discharge was deemed under conditions other than honorable. In May 2009, the appellant sought service connection benefits for bilateral hearing loss and tinnitus. A February 2010 administrative decision deemed his service dishonorable for VA benefits purpose. The appellant appealed this decision. The dispositive issue on appeal concerns whether there are compelling reasons to explain the appellant's unsatisfactory performance and periods of AWOL. In a March 2010 written statement, and at the August 2011 Board videoconference hearing, the appellant and his representative discussed the reasoning behind his pre- and post- Vietnam undesirable behavior. In particular, the appellant explained that his AWOL periods prior to his Vietnam tour were related to a fellow soldier who was attempting to leave the Army. The appellant alleges that he followed the other solder in an attempt to dissuade him from leaving the Army. In particular, the appellant explained that the two had entered the Army in a "buddy" program, which reportedly strongly suggested that they would serve in Germany, rather than Vietnam. The appellant contends that if the "buddy" left the program, then the appellant himself was out of the program, such that when his "buddy" was attempting to leave, he attempted to keep him there. Nonetheless, the appellant and his representative point out, despite the appellant's "buddy" ultimately leaving the Army, the appellant did return and serve out his full term in Vietnam. The appellant was twenty years of age at this time and had entered the service following growing up in a small farming community in Oklahoma. Thus, youth, inexperience and fear are reported to be the reasons behind the initial AWOL period, however, the appellant is noted to have overcome those obstacles and served well in the Republic of Vietnam. The appellant argues that his service in Vietnam, which was the bulk of his time in active service, was honest, faithful, and meritorious, and that it was only after his return from a tour in Vietnam that additional problems started. The appellant's tour in Vietnam, is noted in the record to have included service deemed "excellent" and appreciated by superiors, and which included rapid advancement in rank. It was only after experiencing the commonly known stressors of serving in the Republic of Vietnam in the Vietnam Era that the appellant again found himself in disciplinary trouble, which ultimately led to his administrative discharge from the service. The Board finds the appellant's and his representative's arguments to be persuasive. The appellant entered service at age twenty, with little life experience and admittedly made poor choices, but returned to the Army, despite the departure of his "buddy." He served his tour in Vietnam in exemplary fashion. The record shows that during his tour in Vietnam his performance was deemed "excellent" in his conduct and his DD Form 214 confirms that he received the National Defense Service Medal, one Overseas Service Bar, Sharpshooter and Expert Rifle badges, the Vietnam Campaign Medal, the Vietnam Service Medal, and a Letter of Appreciation. During this difficult tour of duty, the appellant served without issue. The appellant's conduct several months following his return from Vietnam again deteriorated, ultimately leading to his administrative discharge. The record is clear that during the appellant's Vietnam tour, which was nearly half of his entire period of active duty, his service can only be characterized as honest, faithful, meritorious, and of benefit to the Nation. His ratings were, throughout that time, the highest possible to be assigned for both conduct and efficiency, and after that period, it remained noted as fair or good. He rendered a significant benefit to the Nation during his Vietnam service, which was without blemish. The record is also clear that prior to his Vietnam tour, the appellant was young with little life experience, as well as fearful of an impending deployment to Vietnam. Attempting to keep his "buddy" in the service in order to seemingly guarantee a Germany tour of duty, rather than Vietnam, seems a reasonable explanation for his periods of AWOL prior to his deployment. He nonetheless returned and served meritoriously throughout the Vietnam tour. After experiencing the stresses of a Vietnam tour, his unsatisfactory performance and periods of AWOL manifested. 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 initially by youth and fear, and subsequently by Vietnam in-country service as a soldier. The change in his performance upon return from Vietnam must be viewed in light of the emotional toll caused by his service in a foreign land, wherein his life was placed in jeopardy. The Board can find no other reason in the record why the appellant's conduct would so drastically change other than due to the emotional effects of his Vietnam tour of duty. Finally, to the extent to which the appellant's in-service conduct could be deemed willful and persistent misconduct, the Board again finds the misconduct to have been conducted under compelling circumstances, and the appellant's service to have otherwise been honest, faithful and meritorious, such that under 38 C.F.R. § 3.12(d), it was not willful and persistent misconduct. In light of the above, compelling circumstances are demonstrated to warrant the appellant's unsatisfactory performance and periods of AWOL both upon his initial entry into service, as well as following his Vietnam tour. As such, the Board finds that the characterization of the appellant's active duty service does not constitute a bar to VA benefits. ORDER 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