Citation Nr: 1801700 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-16 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the question of whether the character of the appellant's discharge for the period of service from April 23, 1971, through April 28, 1976, remains a bar to a grant of compensation benefits. 2. Whether the appellant's discharge under other than honorable conditions constitutes a bar to Department of Veterans Affairs (VA) compensation benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service under honorable conditions from January 16, 1967, through April 22, 1971. He had additional active service from April 23, 1971, through April 28, 1976, and received a discharge under conditions other than honorable for this period of service. He served in Vietnam from September 1971 through April 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2017, the Veteran testified before the Board via a videoconference hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. A November 1984 administrative decision found that the appellant's character of discharge for the period of service from April 23, 1971, through April 28, 1976, was a statutory bar to VA benefits; the appellant was notified of this decision and appellant did not enter a notice of disagreement within one year of notice of the decision. 2. The evidence associated with the claims file subsequent to the November 1984 administrative decision on the character of discharge that was not previously submitted to agency decisionmakers, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 3. The appellant served on active duty from January 1967 to April 1976. 4. During this time, he was AWOL for 126 days, non-consecutively, constituting 3.7 percent of his total service. 5. The remaining 96.3 percent of the Veteran's service was honest, meritorious, and faithful. 6. The Veteran's periods of AWOL do not constitute willful and persistent misconduct. CONCLUSIONS OF LAW 1. The November 1984 administrative decision that the appellant's character of discharge for the period of service from April 23, 1971, through April 28, 1976, was a statutory bar to VA benefits became final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The additional evidence associated with the file since the November 1984 administrative decision on the appellant's character of discharge as a bar to VA benefits is new and material, and the question of character of discharge as a bar to benefits is reopened. 38 U.S.C. §§ 5103, 5103A, 5108, 5303 (2002); 38 C.F.R. §§ 3.12, 3.13, 3.156(a), 3.159 (2017). 3. The appellant's discharge from service in April 1976, under other than honorable conditions, is not considered to be under dishonorable conditions, and, thus, is not a bar to VA monetary benefits. 38 U.S.C. § 5303 (2002); 38 C.F.R. § 3.12 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2002). In an administrative decision dated and issued in November 1984, the RO found that the appellant's character of discharge for the period of service from April 23, 1971, through April 28, 2016 was a statutory bar to VA benefits. See 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(c)(6). The appellant was notified of this decision, and did not enter a notice of disagreement with this decision within one year of notice of the decision. Because the appellant did not file a timely notice of disagreement, the VA's administrative decision regarding character of discharge as a bar to VA benefits became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The August 2012 rating decision on appeal effectively reopened the claim on the question of whether his character of discharge for the period of service from April 23, 1971, through April 28, 2016, was a statutory bar to VA benefits. Regardless of the actions of the RO, the Board has a legal duty to address the "new and material evidence" requirement. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Consequently, the evidence that must be considered in determining whether there is a basis for reopening this claim is that evidence added to the record since the final November 1984 administrative decision. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.110. For claims received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence has been received. At the time of the November 1984 administrative decision, the evidence consisted of the Veteran's service treatment and personnel records. The RO based its determination on this evidence, and a lack of evidence reflecting compelling circumstances for the Veteran's periods of AWOL. At his Board hearing, the Veteran explained that he went AWOL on the documented occasions to be with his wife and newborn child, who lived far away. This is new and material evidence. Accordingly, the matter is reopened. The Veteran entered onto active duty on January 16, 1967, and served through April 22, 1971, and was discharged from that period of service under honorable conditions. He had additional service from April 23, 1971, through April 28, 2016, under other than honorable conditions (OTHC), due to periods of AWOL of totaling 126 days. This appeal ensued because entitlement to compensation benefits for hypertension, type II diabetes, neuropathy and "cholesterol" were denied on the basis that these conditions were presumptively due to the Veteran's period of dishonorable service, which involved his only service in Vietnam. Service connection has been allowed to the extent that entitlement to medical care eligibility under 38 U.S.C., Chapter 17, is established. However, for monetary benefits based on service connection, the period of service on which the entitlement is based must be under conditions other than dishonorable. 38 U.S.C. § 5303 (2002); 38 C.F.R. § 3.12 (2017). In determining the character of a discharge, there are certain types of discharges for which entitlement to VA benefits is barred by statute, including by reason of sentence of general court-martial, as a deserter, or for a discharge under OTHC issued as a result of AWOL for a continuous period of at least 180 days; this latter bar does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c). Such discharges are absolute bars to VA benefits, in the absence of insanity. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(b). The Veteran's discharge under OTHC was based on a period of AWOL of 126 days. Accordingly none of the statutory bars apply. However, by regulation, it is also provided that other types of undesirable discharges are deemed to be under dishonorable conditions, thus barring entitlement to VA monetary benefits. 38 C.F.R. § 3.12(d). In this case, the RO found that the Veteran's service from April 23, 1971, through April 28, 1976, was under dishonorable conditions, as his AWOL constituted willful and persistent misconduct. The applicable regulation provides that a discharge under OTHC is considered to be under dishonorable conditions, when the discharge is issued as a result of willful and persistent misconduct. 38 C.F.R. § 3.12(d) (2017). However, a discharge because of a minor offense will not be considered willful and persistent misconduct if the service was otherwise honest, faithful and meritorious. Id. The United States Court of Appeals for Veterans Claims (Court) has held that if the veteran's misconduct was serious, the veteran's prior service cannot be considered. Winter v. Principi, 4 Vet. App. 29 (1993). In determining whether the veteran's AWOL is serious misconduct, on the one hand, the Court has indicated that unauthorized absence is the type of offense "that would interfere with [an] appellant's military duties, indeed preclude their performance, and thus could not constitute a minor offense." Stringham v. Brown, 8 Vet. App. 445, 448 (1995). However, in instances in which the Court directly addressed whether unauthorized absence constituted willful and persistent misconduct, the Court found the percentage of the time of the appellant's total period of active service that he was AWOL to be significant. See Winter (AWOL for 18 percent of total service), Struck v. Brown, 9 Vet. App. 145 (1996) (AWOL for nearly 30 percent of total service). In this case, the Veteran's 126 days of AWOL comprised only 3.7 percent of his total service. The regulation itself does not specifically address AWOL as willful and persistent misconduct. However, that part of the regulation pertaining to periods of AWOL in excess of 180 days provides that "this bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence." 38 C.F.R. § 3.12(c)(6). While this does not explicitly apply to periods of AWOL for less than 180 days, or to willful and persistent misconduct, such lesser periods of AWOL are not mentioned in the statute or the regulation; thus, the provision for willful and persistent misconduct has been interpreted as applying to lesser periods of AWOL. In interpreting statutes, the individual parts or sections of a statute must be considered with the other parts "so as to produce a harmonious whole." Westerberry v. West, 12 Vet. App. 510 (1999); Lorenzano v. Brown, 4 Vet. App. 446 (1993). Moreover, principles of statutory interpretation apply to interpreting regulations as well. Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994). Given these principles, the regulation pertaining to willful and persistent misconduct, when applied to periods of AWOL for less than 180 days, cannot reasonably be interpreted in such a way as to provide a harsher penalty for a veteran with less than 180 days of AWOL, than would result from AWOL of 180 days or more. Thus, in order to maintain consistency, the criteria for compelling circumstances set forth in 38 C.F.R. § 3.12(c) are relevant to the analysis of whether the Veteran's AWOL constituted willful and persistent misconduct. Factors noted in the regulation to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence include the length and character of service exclusive of the period of prolonged AWOL, which 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 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 should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. 38 C.F.R. § 3.12(c)(6)(ii). At the time of his discharge, the Veteran submitted a statement claiming that he had initially gone AWOL because he felt the need to be at home with his family. He explained that he was "tired of living in the Army." At his Board hearing, the Veteran explained that he went AWOL to be with his young child and wife, and that he frequently drove 1,500 miles round trip during periods of leave to see his family. He noted that he did not go AWOL during his service in Vietnam, and that he had always turned himself into authorities. In total, he spent 126 days AWOL, and had over 4 years of honorable service prior to ever going AWOL. Such service was "honest, faithful and meritorious and of benefit to the Nation." Such circumstances may be considered to be compelling. Thus, given the circumstances surrounding the absence, and that the unauthorized absence constituted 3.7 percent of his overall service, the Board finds that the Veteran's period of AWOL was not willful and persistent misconduct. The Veteran's DD Form 214 documents 126 days of non-consecutive AWOL, with the longest period lasting 28 days. He received an OTHC discharge for his second period of service dating from April 23, 1971, through April 28, 1976. The entirety of the AWOL periods occurred during this period. The Veteran's testimony indicates that his absences related to genuine family obligations. When viewed from the perspective of the Veteran, the circumstances certainly seem compelling. Therefore, none of the other statutory or regulatory bars being applicable, the Veteran's discharge in April 1976 was not under dishonorable conditions and does not constitute a bar to VA benefits. ORDER New and material evidence has been received on the issue of whether the character of the appellant's discharge for the period of service from April 23, 1971, through April 28, 1976, remains a bar to a grant of VA compensation benefits, and the claim is reopened. The appellant's discharge from service in April 1976 was not under dishonorable conditions, and, therefore, does not constitute a bar to VA monetary benefits; the appeal is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs