Citation Nr: 18148981 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-17 715 DATE: November 8, 2018 ORDER The appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. The appellant’s character of discharge was under other than honorable conditions. 2. During the appellant’s active duty, he was absent without official leave (AWOL) for a continuous period of more than 180 days. 3. Compelling circumstances did not warrant the appellant's prolonged unauthorized absence. CONCLUSION OF LAW The character of the appellant’s discharge is a bar to VA benefits. 38 U.S.C. § 5303 (West 2014); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active service from May 16, 1977 to April 10, 1979. Whether the appellant's character of discharge is a bar to the receipt of VA benefits For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). Benefits are not payable where the former service member was discharged or released under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). 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). The following factors will be 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. 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. (ii) Reasons for going AWOL. 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. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities. The appellant joined the United States Army voluntarily on May 13, 1977. He began his active service on May 16, 1977. He attended basic training at Fort Benning, and was awarded an Military Occupational Specialty (MOS) of 11C1O on July 28, 1977. On September 13, 1977, he was assigned to 2nd BN 36th INF in Germany. His DD-214 reflects that he was granted 40 days of excess leave between March 2, 1978 and April 10, 1979. On April 12, 1978, he went AWOL while on ordinary leave. It was noted that he failed to return from leave to the continental United States (CONUS) on April 10, 1978. On May 12, 1978, he was dropped from rolls (DFR). On May 31, 1978, he surrendered to Military Authorities at Fort Dix, New Jersey. The appellant was AWOL for a duration of 49 days. On June 11, 1978, he went AWOL again. On June 12, 1978, he was DFR. On February 21, 1979, he was apprehended, and returned to Military Authorities. The appellant was AWOL for a duration of 255 days. On March 1, 1979, the appellant was interviewed at the Personnel Control Facility at Fort Dix. He stated that the reason for his first AWOL was that he did not like the Army, so while on ordinary leave he did not return to Germany. He stated that the reason that he departed the second time was that he felt like the Personnel Control Facility was delaying his separation and he needed to be home to care for his mother’s household while she was in Canada settling his grandmother’s estate. He reported that his household consisted of another grandmother who was sick and a 21-year old sister who had to work during the day and could not care for her. It was noted that prior to going AWOL, the appellant had been granted a period of leave in order to think over wanting to get out of the military. It was also noted that after going AWOL he was interviewed at Fort Devens and told that they could not help him get out and that the easiest way to get out was to remain AWOL for 30 or more days. The appellant initially surrendered at the prompting of his mother. He was apprehended after his second period of AWOL because he did not want to return unless the Army could expedite his discharge. He stated that he felt the Army was a waste of time and wanted out as soon as possible. The appellant was separated from service on April 10, 1979 with an other than honorable character of service. In total, he was AWOL for 304 days. He had no awards. Service records show that at the time he entered service in May 1977 his father was deceased and his mother lived in Massachusetts. He also had four sisters, with three of them living in Massachusetts who were approximately 20, 23 and 25 years old. His fourth and oldest sister lived in Canada. The appellant completed nine years of school. His ninth grade transcript reflected that he received two D’s and two F’s At his hearing before the Board in January 2018, the appellant testified that he had turned 17 years old in February 1977, approximately three months prior to entering service in May 1977. He stated that while he was stationed in Germany his grandmother who lived in Canada became very ill and his mother had to go to Canada to care for her, so he had come home on leave. He stated that while he was on leave, he learned that his mother had multiple sclerosis. He stated that with the help of a local politician he tried to get stationed back in the U.S. at Fort Devens to be closer to his mother, but he was not successful. He testified that he made a mistake and should have returned to Germany. Because the appellant was discharged under other than honorable conditions as a result of being AWOL for more than 180 days, he is statutorily barred from receiving VA benefits. As outlined, however, an exception is outlined in 38 C.F.R. § 3.12(c)(6) that states that "[t]his bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence." The regulation outlines various factors to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Upon review of the facts of this case and with consideration to the outlined factors, the Board finds that compelling circumstances did not warrant the Veteran's prolonged unauthorized absence during the May 1977 to April 1979 period of active service. As to the factor outlined in 38 C.F.R. § 3.12(c)(6)(i), regarding length of service exclusive of the periods of AWOL, the appellant's DD 214 for the May 16, 1977 to April 10, 1979 period of active service reflects that he had one year and 24 days of total active service, which equates to approximately 389 days. He was noted to have had 304 days lost from April 11, 1978 through May 30, 1978 and from June 12, 1978 through February 20, 1979. It was also noted that he was granted 40 days of excess leave between March 2, 1978 and April 10, 1979. The DD 214 also reflects that the appellant had seven months and one day of foreign service, presumably all in Germany. Overall, there is evidence indicating that the appellant's service, exclusive of the periods of AWOL, was of quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. As to the factor outlined in 38 C.F.R. § 3.1(c)(6)(ii), regarding reasons for going AWOL, as outlined in detail above, the appellant asserts that he went AWOL as a reaction to finding out that his mother had multiple sclerosis and the circumstances surrounding his grandmothers’ illness/death. This situation appears to be a type of family emergency provided for in 38 C.F.R. § 3.12(c)(6)(ii). With respect to the provision that "[t]he reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity," the appellant was 18 years old at the start of both periods of AWOL. Regarding cultural background, STRs referenced that he was born in the U.S., that his race was "Caucasian” and that his ethnic group was “Other.” It is unclear to the Board what, if any, impact either of these factors had on the appellant's reasons for going AWOL. As to education level, he completed nine years of school with some failing grades. As to judgmental maturity, it is not entirely clear as to the level of judgmental maturity present during the relevant period. The appellant's attorney did reference that the appellant was only 17 years old when he entered service. Presumably, the Veteran's judgmental maturity at the time was at least somewhat immature and he did not have a high school education. With respect to the provision regarding "[h]ardship or suffering incurred during overseas service," the appellant asserts that his grandmother became ill while he was serving overseas in Germany and that he learned that his mother had multiple sclerosis while he was on leave in the U.S., and therefore he did not return to Germany. The Board has "carefully and sympathetically considered" this hardship "in evaluating the [Veteran's] state of mind at the time the prolonged AWOL period began," discussed in more detail below. As to the factor outlined in 38 C.F.R. § 3.12(c)(6)(iii), regarding if a valid legal defense exists for the absence which would have precluded a conviction for AWOL, this does not appear to be present in this case. In this regard, the Board notes that the appellant requested discharge for the good of the service and acknowledged that he may be discharged under other than honorable conditions. That the appellant requested this discharge rather than face administrative proceedings strongly suggests that he did not have a valid legal defense which would have precluded a conviction for being AWOL. Overall, the Board has considered the outlined factors in 38 C.F.R. § 3.12(c)(6)(i)-(iii). The Board has also considered the appellant's reasons for going AWOL based on "how the situation appeared to the" appellant. The Board acknowledges that some of the outlined factors in 38 C.F.R. § 3.12(c)(6)(i)-(iii) weigh in favor of finding compelling circumstances for the appellant's period of prolonged AWOL, as discussed above. The Board finds, however, that, for the reasons outlined below, the overall evidence weighs against finding that there were compelling circumstances to warrant the appellant's period of prolonged AWOL. In this regard, the Board overall does not find that the reasons reported for going on prolonged AWOL presented compelling circumstances. The Board is sympathetic to the appellant regarding the situation involving his grandmother and mother. However, some of the appellant’s statement made during service are inconsistent with his statement made many years later in support of his claim for benefits. For example, during service he reported that the reason for his first period of AWOL from April 11, 1978 through May 30, 1978 was that he did not like the Army, so while on ordinary leave he did not return to Germany. This is inconsistent with his January 2018 testimony that returned home on leave from Germany because his mother had to go to Canada to care for his ill grandmother. Rather, it appears that the appellant had been granted a period of leave in March 1978 in order to think over wanting to get out of the military, but then did not return to Germany from the U.S. when his period of leave ended. On May 31, 1978, he surrendered to Military Authorities at Fort Dix, New Jersey, at the prompting of his mother. Then, less than two weeks later on June 11, 1978 the appellant went AWOL again. He stated that the reason that he departed the second time was that he felt like the Personnel Control Facility was delaying his separation, and he needed to be home to care for his mother’s household while she was in Canada settling his grandmother’s estate. While the appellant testified in January 2018 that during his period of authorized leave he learned that his mother had been diagnosed as having multiple sclerosis, accepting this as true, he did report it as a reason for going AWOL when he was in the service. Instead, at that time he asserted that he had another grandmother who was sick and that his 21-year old sister could not care for her because of her work schedule. However, the Board notes that the appellant had two, other adult sisters living in Massachusetts at that time who may have been able to assist in caring for their mother’s household and their grandmother. It is also significant that during service the appellant stated that he was apprehended after his second period of AWOL because he did not want to return unless the Army could expedite his discharge, and that he felt the Army was a waste of time and wanted out as soon as possible. The Board concedes that, based on family illness and/or death, some period of absence from work, to include the military, may be appropriate. It is unclear to the Board, however, why any such period of absence would need to be without leave. There is no indication that the appellant requested authorized leave so that he could assist in caring for his mother and/or grandmothers, or for a period of mourning. He had, in fact, been granted leave to think over wanting to get out of the military, but then went AWOL. The appellant testified that he attempted to secure a transfer from Germany to Fort Devens with the help of a local politician; however, there is no documentation that he requested authorized leave or a transfer through appropriate military channels. He stated that after going AWOL he was interviewed at Fort Devens and told that they could not help him get out of the service, but he did not mention requesting authorized leave or a transfer to be nearer to his family. He also stated that a JAG officer told him that the easiest way to get out of the military was to remain AWOL for 30 or more days. However, the Board finds it highly unlikely that a JAG officer would advise a servicemember to go AWOL. In any event, for the reasons discussed above, the Board finds the appellant’s statements that he returned home on leave from Germany because of circumstances surrounding his grandmother’s illness/death in Canada, and that he then he went AWOL because of his mother’s diagnosis of multiple sclerosis and needing to care for his mother’s household and another ill grandmother while his mother was away in Canada settling her mother’s estate, not to be credible. The Board does not doubt that the appellant was adversely affected by his mother’s diagnosis of multiple sclerosis and illness and/or death of his grandmothers. However, the most probative evidence shows that he was on authorized leave in the U.S. to think about whether he wanted to stay in the military, but did not return to duty in Germany because he did not like the Army. He again went AWOL and asserted during service that he did so because he needed to care for his mother’s household and another ill grandmother, but as noted above he had older sisters residing in Massachusetts that presumably could have assisted with those matters. Further, after being apprehended after his second period of AWOL he stated that he did not want to return unless the Army could expedite his discharge, and that he felt the Army was a waste of time and wanted out as soon as possible. That the appellant did not like the Army and wanted out does not present compelling circumstances to warrant the prolonged AWOL period. Overall, for the reasons outlined above, the Board finds that compelling circumstances did not warrant the appellant's prolonged unauthorized absence. The Board also notes that 38 C.F.R. § 3.12(b) provides, essentially, that if a veteran was insane at the time of committing an offense causing discharge under that regulation (as relevant here, based on being AWOL for a continuous period of at least 180 days), this would not be a bar to VA benefits. Insanity has a specific definition for VA purposes, as outlined in 38 C.F.R. § 3.354. This definition provides that an insane person is one who exhibits due to disease: a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. See also Zang v. Brown, 8 Vet. App. 246 (1995) (holding that the phrase "due to disease" applies to all three circumstances in 38 C.F.R. § 3.354 (a)). The appellant and his attorney have not presented any argument that any of the three circumstances in the regulation were applicable to the appellant at the time he was AWOL and the Board finds that the evidence does not otherwise indicate that any of the three circumstances are applicable. (Continued on the next page)   In sum, the Board finds that the appellant was discharged from the May 16, 1977 to April 10, 1979 period of active service under other than honorable conditions as a result of being AWOL for a continuous period of at least 180 days. The Board further finds that compelling circumstances did not warrant the appellant's prolonged unauthorized absence. As such, the Board concludes that VA benefits are not payable based on the appellant’s May 16, 1977 to April 10, 1979 period of active service. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke