Citation Nr: 18147482 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 17-31 062 DATE: November 5, 2018 ORDER The character of the Veteran’s discharge from military service constitutes a bar to VA benefits. FINDINGS OF FACT 1. The Veteran was discharged under conditions other than honorable as the result of going absence without official leave (AWOL) for a continuous period of at least 180 days. 2. The evidence does not suggest, and the Appellant has not alleged, that the Veteran was insane at the time he went AWOL. 3. There were no compelling circumstances to justify the Veteran’s prolonged AWOL period. 4. Entitlement to DIC benefits, death pension benefits, and accrued benefits is precluded as a matter of law. CONCLUSION OF LAW The character of the Veteran’s discharge from military service for his period of service from June 1976 to October 1991 is a bar to VA compensation benefits. 38 U.S.C. §§ 101, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12, 3.102 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1976 to October 1991. He was discharged from service "Under Conditions Other Than Honorable." He died in November 2012, and the Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant filed a claim for Dependency and Indemnity Compensation (DIC) benefits in February 2014. The issue on appeal is predicated upon the character of the Veteran’s discharge. As a result of the decision below, the merits of the Appellant’s DIC claim is not addressed in this decision. Character of Discharge Law and Analysis 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. § 101 (18) (2012); 38 C.F.R. § 3.12(a) (2018). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a) (2018). Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a) (2018); Spencer v. West, 13 Vet. App. 376 (2000). A discharge or release from service is a bar to the payment of VA benefits when a discharge under other than honorable conditions is issued as a result of being AWOL for a continuous period of 180 days. 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(b) (2018). 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 of duties owed to third parties. 38 C.F.R. § 3.12(c)(6)(ii) (2018). The reasons for going AWOL should be evaluated in terms of the person’s age, cultural background, educational level, and judgmental maturity. The acceptance of an undesirable discharge to escape trial by general court-martial is considered a discharge under dishonorable conditions for purposes of entitlement to VA benefits. 38 C.F.R. § 3.12(d)(1) (2018). There are two exceptions to the bar to the payment of VA benefits based on the circumstances described above. First, is if it was found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(b) (2018). Second, a dishonorable discharge under subsection (d)(1) is not a bar to VA benefits if an honorable or general discharge is issued through a board for correction of records established under 38 U.S.C. § 1552 or a discharge review board established under 10 U.S.C. § 1553. 38 C.F.R. § 3.12 (e)-(g). The record shows that the Veteran enlisted in the US Army on June 23, 1976 for a period of three years of active duty with a scheduled date of separation of June 22, 1979. He went AWOL from September 12, 1977 to August 25, 1991. He was dropped from rolls on October 12, 1977. The Veteran was apprehended by civilian authorities on August 25, 1991 in Jacksonville, North Carolina. He provided a statement to regarding the circumstances of going AWOL, stating that he went home to visit his ill mother, wrecked his car, and had no means of returning to his unit, and did not return for fear of what the Army would do. He was discharged on October 18, 1991 under other than honorable conditions. These records further show that he requested discharge for the good of the service in lieu of trial by general court martial under circumstances that could lead to a bad conduct or dishonorable discharge. As noted above, the Veteran was AWOL on September 12, 1977, well before his scheduled date of separation on June 22, 1979, therefore, he does not meet the requirements for an unconditional discharge. See 38 C.F.R. § 3.13(c) (2018). Further, the record is silent for any indication that he was insane at the time he went AWOL, nor is there any evidence that he was issued an honorable or general discharge through a board of correction of records established under 10 U.S.C. § 1552 or a discharge review board established under 10 U.S.C. § 1553. Assuming arguendo that the Veteran’s assertions surrounding his reasons for going and remaining AWOL are true, they do not constitute “compelling circumstances.” His contention was essentially that once his had taken care of his ill mother and wrecked his car, he remained AWOL because he feared being punished. Given his period of service before going AWOL, his service cannot be characterized as otherwise honest, faithful, and meritorious. See 3.12(c)(6) (2018). Additionally, neither the Veteran nor the Appellant provided a valid legal defense that would have precluded a conviction for being AWOL. Thus, the Board does not find the Veteran’s reasons for going and remaining AWOL to be a compelling circumstance to justify his prolonged period of being AWOL. (Continued on the next page)   Accordingly, the Board finds the Veteran’s discharge under conditions other than honorable conditions constitutes a bar to VA benefits. The Appellant has not presented any evidence qualifying as an exception to the bar to the payment of VA benefits. Therefore, the preponderance of the evidence is against the claim; there is no doubt to be resolved. The character of the Veteran’s service is a bar to benefits and the award of benefits is not warranted. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel