Citation Nr: 1757028 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-02 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the character of the Appellant's discharge from service is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Appellant served on active duty from January 1969 to November 1972, including in combat in the Republic of Vietnam from July1969 to July 1970. He received an other than honorable discharge for this period of active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 administrative decision issued by VA Regional Office (RO) in Winston-Salem, North Carolina, which determined that the character of the Appellant's discharge from service is a bar to VA benefits. The Appellant disagreed with this decision in November 2011. He perfected a timely appeal in December 2013. A videoconference Board hearing was held in August 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. FINDINGS OF FACT 1. During his military service, the Appellant was absent without leave (AWOL) from February 24, 1970, to March 23, 1970, from July 24, 1970, to October 28, 1970, and from March 8, 1971, to October 15, 1972, for a total of approximately 705 days. 2. The Appellant was arraigned and tried before a Summary Court Martial in February 1970; the Court found him guilty of unauthorized absence or AWOL for an unknown period. 3. In May 1970, the Appellant received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from May 12, 1970, to May 19, 1970. 4. While pending trial for a third AWOL charge in October 1972, the Appellant requested an undesirable discharge for the good of the service. 5. In November 1972, the Appellant's request for an undesirable discharge was approved, and he was discharged from active duty under other than honorable conditions. 6. In May 1977, the Department of Defense (DoD) Special Discharge Review Program upgraded the Appellant's original discharge from active duty under other than honorable conditions to a discharge under honorable conditions. 7. In February 1979, the Department of the Army notified the Appellant that: his previous upgraded discharge had been reviewed again by the Army Discharge Review Board as required by Public Law 95-126 and, following this review, he did not qualify for an upgraded discharge under the new uniform standards for discharge review; his prior discharge from active duty under other than honorable conditions was reinstated; and his (reinstated) discharge from active duty under other than honorable conditions was a bar to VA benefits. 8. There are no compelling circumstances to warrant the Appellant's frequent AWOL periods during his active duty. 9. The Appellant's discharge from active service under other than honorable conditions for the period of active duty from January 28, 1969, to November 6, 1972, is considered dishonorable. 10. The Appellant was not insane at the time he committed the offenses which led to his discharge under other than honorable conditions. CONCLUSION OF LAW The character of the Appellant's discharge for his period of active duty from January 1969 to November 1972 is a bar to VA benefits. 38 U.S.C. §§ 101(2), 5303 (West 2012); 38 C.F.R. §§ 3.1(d), 3.3, 3.4, 3.5, 3.12, 3.301, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant contends that he is entitled to VA benefits. He specifically contends that, because his original discharge in November 1972 under other than honorable conditions was upgraded to a discharge under honorable conditions in May 1977, his upgraded discharge from active service is not a bar to receipt of VA benefits. Factual Background and Analysis The Board finds that the preponderance of the evidence supports a determination that the character of the Appellant's discharge is a bar to VA benefits. The Appellant has contended that, because his original discharge in November 1972 under other than honorable conditions was upgraded to a discharge under honorable conditions in May 1977, it is not a bar to receipt of VA benefits. The record evidence does not support the Appellant's assertions regarding his entitlement to VA benefits based on his active service. The Board notes initially that a discharge from active service is considered under other than honorable conditions when it is issued as a result of being AWOL for a continuous period of at least 180 days, unless there were compelling circumstances to warrant the prolonged unauthorized absence. See 38 C.F.R. § 3.12(c) (2017). The Board next notes that a discharge under any of the conditions listed in 38 C.F.R. § 3.12(c) generally is a bar to VA benefits. See 38 C.F.R. § 3.12(b). One of the exceptions to the rule that a dishonorable discharge is a bar to VA benefits occurs when certain requirements are met by a discharge review board established under 10 U.S.C. § 1553 in issuing an upgraded honorable or general discharge on or after October 8, 1977. See 38 C.F.R. § 3.12(g). The bar to VA benefits is not removed unless a discharge review board determines on an individual basis that the original discharge would be upgraded under uniform standards meeting the requirements of 38 C.F.R. § 3.12(g). See 38 C.F.R. § 3.12(h). In this case, the Appellant's DD Form 214 shows that, during his military service, he was AWOL from February 24, 1970, to March 23, 1970, from July 24, 1970, to October 28, 1970, and from March 8, 1971, to October 15, 1972, for a total of 705 days. The Appellant's available service personnel records show that he was arraigned and tried before a Summary Court Martial in February 1970. The Court found him guilty of unauthorized absence or AWOL for an unknown period. In May 1970, the Appellant received non-judicial punishment under Article 15 of the UCMJ for being AWOL from May 12, 1970, to May 19, 1970. (For reasons which are not clear to the Board, it does not appear that the Appellant's non-judicial punishment under Article 15 of the UCMJ for being AWOL from May 12-19, 1970, is included in the total of 705 days of AWOL noted on his DD Form 214.) The record evidence also shows that, while pending trial for a third AWOL charge in October 1972, the Appellant requested an undesirable discharge for the good of the service. The Appellant specifically was advised at that time that, if he accepted an undesirable discharge for the good of the service, "you will be ineligible for many or all benefits administered by" VA. In November 1972, the Appellant's request for an undesirable discharge was approved and he was discharged from active duty under other than honorable conditions. The Board recognizes that, in May 1977, the DoD Special Discharge Review Program upgraded the Appellant's original discharge from active duty under other than honorable conditions to a discharge under honorable conditions. The Board also recognizes that, in February 1979, the Department of the Army (in this case, the relevant service department) notified the Appellant that his previously upgraded discharge had been reviewed again by the Army Discharge Review Board as required by Public Law 95-126 and, following this review, he did not qualify for an upgraded discharge under the new uniform standards for discharge review. He also was advised in February 1979 that his prior discharge from active duty under other than honorable conditions was reinstated. He finally was advised that his (reinstated) discharge from active duty under other than honorable conditions was a bar to VA benefits. The Board observes in this regard that service department findings are binding and conclusive upon VA for purposes of establishing an Appellant's service and VA has no authority to alter such findings. See 38 C.F.R. § 3.203(a). The Board also observes in this regard that VA has no authority to alter an Appellant's discharge classification; his or her only recourse is with the service department. See Harvey v. Brown, 6 Vet. App. 416 (1994). In other words, the Board is bound by the Army's February 1979 determination that the Appellant's original discharge from active service under other than honorable conditions was valid and not subject to an upgraded discharge under uniform standards for discharge review. See also 38 C.F.R. § 3.12(h). The Board next notes that there are no compelling circumstances to warrant the Appellant's frequent AWOL periods during his active duty. The Appellant testified before the Board in August 2016 repeatedly and vaguely that "someone dropped the ball" regarding the facts and circumstances of his original discharge from active service. See, for example, Board hearing transcript dated August 11, 2016, at pp. 3. Neither the Appellant nor his service representative elaborated on the meaning of this vague statement or how it applied to the Appellant's argument that he is entitled to VA benefits based on his active service. To the extent that an argument can be gleaned from the Appellant's vague testimony, it appears that he may be contending that he had a difficult time in service following his return to the continental United States at the end of his tour of duty in the Republic of Vietnam in July 1970. Id., at pp. 3-4. Again, the Appellant did not elaborate on his vague statements regarding his apparent state of mind after his tour of duty in Vietnam. The Board observes here that a second exception to the general rule barring receipt of VA benefits for persons who receive a discharge from active duty under other than honorable conditions is if that person is found to have been insane at the time he or she committed the act(s) precipitating his discharge or release. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b); see also Zang v. Brown, 8 Vet. App. 246 (1995). There certainly is nothing in the Appellant's Board hearing testimony or other evidence of record to suggest that he was insane at the time he committed the offenses which led to his discharge under other than honorable conditions. The Board also observes that, even assuming for the sake of argument only that he is arguing that he was "insane" at the time of the offenses which led to his discharge from active duty under other than honorable conditions, the burden is on the Appellant to submit sufficient evidence of his insanity. See Stringham v. Brown, 8 Vet. App. 445 (1995). The Appellant has not met this burden in this appeal. The Appellant further has not submitted any evidence which was not previously considered by the AOJ in finding that his November 1972 discharge from active service (subsequently affirmed by the service department in February 1979) was under other than honorable conditions and acts as a bar to VA benefits. In summary, the Board finds that the character of the Appellant's discharge for his period of active duty from January 1969 to November 1972 is a bar to VA benefits. ORDER The character of the Appellant's discharge for his period of active duty from January 1969 to November 1972 is a bar to VA benefits. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs