Citation Nr: 1500467 Decision Date: 01/07/15 Archive Date: 01/13/15 DOCKET NO. 10-18 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the character of the appellant's discharge is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The appellant served on active duty from June 1967 to September 1974, which included service in the Republic of Vietnam (Vietnam) from November 1978 to November 1968. The appellant was discharged under conditions other than honorable. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a July 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In August 2014, the appellant and his spouse testified at a hearing before the undersigned. FINDINGS OF FACT 1. The appellant had a continuous period of active duty from June 1967 to February 1969 with confirmed service in Vietnam from November 1967 to November 1968. 2. The appellant went absent without leave (AWOL) in February 1969, which resulted in a loss of 97 days before the normal expiration of his term of service. An additional 39 days were lost from June 1969 to July 1969 and an additional 2256 days were lost from July 1969 to September 1974. 3. Prior to, during, and for the first several months following his return from his tour of duty in Vietnam, the appellant's active duty service was honest, faithful, meritorious, and of benefit to the Nation as demonstrated by a March 1969 commander inquiry that indicates that the appellant's conduct was satisfactory prior to going AWOL. 4. Given the hardships caused by the appellant's overseas wartime service, which include involvement in the Tet Offensive and working at an evacuation hospital in a combat area, and the psychiatric symptoms he experienced as a result of his in-service experiences in addition to his concern for his mother's failing health, the Board finds that compelling circumstances are demonstrated to warrant the appellant's post-Vietnam periods that he went 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 2014); 38 C.F.R. §§ 3.1, 3.12 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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) (West 2014); 38 C.F.R. § 3.12(a) (2014). 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. Notably, 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 "there are compelling circumstances to warrant the 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-ii), 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 that 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 service personnel records show that, consistent with the hearing testimony, the appellant trained as a medical specialist in service and was a litter (stretcher) bearer. Further, his service in Vietnam coincided with the Tet Offensive, which the appellant reports resulted in a 30 to 40 percent increase in casualties. "On September 16, 1974 . . . President Ford announced 'a Program for the Return of Vietnam Era Draft Evaders and Military Deserters.' Proclamation 4313, 39 Fed. Reg. 33,293, 33,293-95 (Sept. 17, 1974)." Robertson v. Gibson, 759 F.3d 1351, 1353 (2014). "To help administer the program, President Ford established a Presidential Clemency Board (PCB). See Executive Order 11803, 39 Fed. Reg. 33,297, 33,297-98 (Sept. 17, 1974)." Id. Under this program, "[t]he President could . . . upgrade an applicant's undesirable discharge status at least to a 'clemency discharge'-a new type of status created under the program. [Presidential Clemency Board, Report to the President 13, 186-87, 270 (1975) [hereinafter PCB Report], available at http://catalog.hathitrust.org/Record/002482729]." Robertson, 759 F.3d at 1354. Granting a clemency discharge was intended to ensure equal employment opportunities and to remove the stigma of a bad record . . . . It did not confer veterans' benefits. . . . Nor did it preclude benefits. A clemency discharge was a neutral discharge issued "neither under 'honorable' conditions nor under 'other than honorable' conditions." . . . Accordingly, applicants remained eligible to seek veterans' benefits from the Department of Veterans Affairs and to appeal if the VA denied those benefits. Id. (citations omitted). Here, in December 2007, the appellant sought service connection for posttraumatic stress disorder (PTSD), diabetes mellitus, neuropathy of the upper and lower extremities, and bilateral hearing loss. A July 2008 administrative decision found his service dishonorable for VA benefits purposes and the appellant appealed this decision. Thus, the dispositive issue on appeal concerns whether there are compelling reasons to explain the appellant's periods of AWOL. The record shows that the appellant served in Vietnam from November 1967 to November 1968 and worked at an evacuation hospital during that period. His military personnel record, to include a March 1969 "Commander's Inquiry of AWOL Soldier," indicates that the appellant's conduct was satisfactory prior to going AWOL. Notwithstanding this assessment, his personnel records also show that, starting in approximately February 1969, three months after his November 1968 return from his tour in Vietnam and three months before the normal expiration of his term of service, he went AWOL. Specifically, 97 days were lost from February 1969 to June 1969, 39 days were lost from June 1969 to July 1969, and an additional 2256 days were lost from July 1969 to September 1974. Due to being AWOL for more than 180 days, the appellant received another than honorable discharge in September 1974. A Clemency Discharge Certificate was issued in November 1975 in recognition of his satisfactory completion of alternate service pursuant to Presidential Proclamation 4313. In writings to VA and during his August 2014 Board hearing, the appellant claimed that the character of his discharge should not be considered a bar to payment of VA benefits. In statements received in March 2008 and during the hearing, the appellant and his spouse discussed the reasoning behind his post-Vietnam AWOLs. Notably, the appellant noted that his father served in World War II and the appellant also intended to fulfill his commitment. The appellant explained that he went AWOL because he wanted to attend to his ill mother and, additionally, he was unable to cope after witnessing the death of fellow soldiers and attending to wounded soldiers at an evacuation hospital. Notably, the appellant's military personnel records include an undated statement in which the appellant reports that he went AWOL due to family obligations, such as caring for his mother, and because he felt "unsettled and confused." The appellant's spouse corroborated this account in a March 2008 statement and during the August 2014 hearing, noting that the appellant was distant upon his return from Vietnam, abused alcohol, and has had nightmares and outbursts since service. In October 2014, non-VA clinician Dr. R.S. diagnosed the appellant with multiple psychiatric disorders, including PTSD and mild cognitive impairment likely due to a long history of alcohol abuse, and noted that the appellant suffers from overwhelming dreams, night terrors, and vivid recall of being chased by the Viet Cong. First, the Board finds that appellant provided competent and credible testimony regarding having problems with observable symptoms of an untreated psychiatric disorder following his return from Vietnam. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In this regard, the Board notes that the postservice record shows that the claimant has been diagnosed with psychiatric disorders and many of his symptoms have been associated with his service in Vietnam. In light of the appellant's credible statements that he wished to fulfill his commitment to the military and his country as his father did, the appellant's satisfactory service in Vietnam before he went AWOL, and the hardship incurred during his service in Vietnam, 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 tour in Vietnam. In addition, to the extent to which the appellant's conduct could be deemed willful and persistent misconduct, the Board 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 foregoing, the Board finds that compelling circumstances are demonstrated to warrant the appellant's periods of AWOL following his tour in Vietnam. As such, the Board also 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; the appeal is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs