Citation Nr: 1756488 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-30 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the Veteran qualifies for education benefits under the Veterans Retraining Assistance Program (VRAP). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran enlisted had an initial period of honorable service, from September 1974 to November 1976. Following his service from November 1976 to February 1978, he was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a denial of eligibility for VRAP benefits. The Veteran was scheduled for a May 2017 hearing before a member of the Board, but did not appear for his requested hearing. FINDINGS OF FACT 1. The Veteran was discharged from his last period of active service under other than honorable conditions. 2. The Veteran's last discharge was due to persistent and willful misconduct. CONCLUSION OF LAW The character of the Veteran's last discharge from service, under other than honorable conditions, is a bar to qualification for VRAP. 38 U.S.C.A. § 5303 (West 2014); 38 C.F.R. § 3.1 (d), 3.12 (2017); VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713 § 211(e)(1)(B) (Nov. 21, 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's DD 214s document that he served from September 1974 to November 1976, with service characterized as honorable. However, for his service from November 1976 to February 1978, his service was characterized as under conditions other than honorable. In a January 1978 Disposition Form, the Veteran voluntarily requested discharge for the good of the service under the provisions for Discharge in Lieu of Trial by Court-Martial, which could authorize the imposition of a bad conduct discharge or a dishonorable discharge. He was notified that the result of such a discharge may cause him to be deprived of virtually all benefits as a veteran. The December 1977 charge sheets documented his commission of leave without absence from September 2, 1977, to November 17, 1977. The request was granted and he was discharged with an other than honorable discharge for his last period of service. As explained in his September 2013 statement of the case, VA denied the Veteran's claim for VRAP benefits, notifying him that he did not qualify because his last discharge was dishonorable. The Veteran appealed, essentially contending that his service from September 1974 to November 1976 (his first period of service) was honorable and not dishonorable. He also provided an explanation for the other than honorable discharge he received for his latter period of service. The Veteran asserted that his grandmother had died of cancer in mid-August 1977. He was AWOL from September 2, 1977 to November 17, 1977. In a September 1980 administrative decision, VA found the discharge for the period of service from September 1974 to February 1978 "is considered to have been under dishonorable conditions for VA purposes and is a bar to VA benefits." VA noted that the Veteran had two periods of unauthorized absence: from January 10, 1977 to February 3, 1977 and from September 2, 1977 to November 17, 1977. He had also made statements in apparent contradiction to the record and had not satisfactorily explained the apparent discrepancies for reasons for going AWOL. The VRAP is a component of the VOW to Hire Heroes Act of 2011. VRAP offers up to 12 months of training assistance to unemployed Veterans. Participants may pursue an approved program of education offered by a community college or technical school that leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training) and is designed to provide training for a high-demand occupation. Pursuant to the VRAP, an eligible Veteran must: 1) be at least 35 but not more than 60 years old; 2) be unemployed; 3) have last been discharged under other than dishonorable conditions; 4) not be eligible for any other VA education benefit programs; 5) not be in receipt of VA compensation due to unemployability; and 6) not be, or have been in the last 180 days, enrolled in a Federal or state job training program. Critically, to participate in the VRAP, an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, §211(e)(1)(B) (Nov. 21, 2011) (emphasis added). A discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances unless it is found that the person was insane at the time of committing the offense causing such discharge or unless otherwise specifically provided by statute. 38 C.F.R. § 3.12(b) There are two types of character-of-discharge bars to establishing entitlement to VA benefits: statutory bars under 38 C.F.R. § 3.12(c) and regulatory bars under 38 C.F.R. § 3.12(d). Insanity is a defense against either a statutory bar or a regulatory bar. The Veteran has not alleged, nor does the record support, a finding of insanity during his second period of service. The circumstances of statutory bars as defined do not apply here because the Veteran was not released from service as a conscientious objector, due to a general court martial, was not an officer, was not a deserter, was not an alien during a period of hostilities, and was not AWOL longer than 180 days. See 38 C.F.R. § 3.12(c). Additionally, the regulatory bars of acceptance of discharge to escape trial by general court-martial, mutiny or spying, moral turpitude, and certain homosexual acts involving aggravating circumstances or other factors affecting the performance of duty do not apply. See 38 C.F.R. § 3.12(d). The remaining regulatory bar is potentially applicable; the RO denied the Veteran VRAP benefits, citing his willful and persistent misconduct. See 38 C.F.R. § 3.12(d). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). However, unauthorized absence is the type of offense that would interfere with and preclude the performance of an appellant's military duties and thus cannot constitute a minor offense. Copper v. Brown, 6 Vet. App. 450, 453 (1994); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming a Board decision that found that 32 days unauthorized absence out of 176 days total service was severe misconduct, and, by analogy, persistent misconduct). Although the Board sympathizes with the Veteran's contentions, in light of these facts and the above holdings, and because the Veteran's periods of AWOL lasted over three months total, the Board finds that the Veteran's conduct may be characterized as willful and persistent misconduct. Accordingly, the Board concurs with the January 1980 decision by VA, which essentially found that the Veteran's most recent discharge was due to persistent and willful misconduct in service. Although the Veteran may have had an honorable first period of service, as listed on one DD 214, the law specifies that to participate in the VRAP, an eligible veteran is one who was last discharged from the Armed Forces under conditions other than dishonorable. See VOW to Hire Heroes Act of 2011, Pub. L. No. 112-56, 125 Stat. 713, § 211(e)(1)(B) (Nov. 21, 2011) (emphasis added). Although the Department of Defense classified the Veteran's second period of service as "other than honorable," VA may, under 38 C.F.R. § 3.12(d)(4), classify it as "dishonorable" for VA benefit purposes. As the Veteran's last period of service was found to be under dishonorable conditions, he is ineligible for VRAP benefits. ORDER Eligibility for VA educational benefits under VRAP is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs