Citation Nr: 18150329 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 14-34 247 DATE: November 15, 2018 ORDER The appellant's character of discharge is not a bar to the receipt of Department of Veterans Affairs (VA) benefits. FINDING OF FACT There were compelling circumstances to warrant the appellant’s periods of absence without leave. CONCLUSION OF LAW The character of the appellant’s discharge is not a bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active service from March 1987 to January 1988. He received an other than honorable discharge. 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). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars found in 38 U.S.C. 5303(a) and 38 C.F.R. 3.12(c); and (2) regulatory bars listed in 38 C.F.R. 3.12(d). A statutory bar applies 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. In this case, the appellant was not AWOL for a continuous period of at least 180 days. Therefore, the statutory bar does not apply. Under the regulatory bars, a discharge or release because of willful and persistent misconduct, to include a discharge under other than honorable conditions, is considered a dishonorable discharge. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. 3.1(n). An absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). A discharge or release from service under one of the above conditions is a regulatory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C. 5303(b); 38 C.F.R. 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL. The appellant’s service exclusive of his periods of AWOL is of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. The appellant was very young and had just entered the military when his brother, who was also in service, was killed. He had been very close to his brother and felt his brother’s death very deeply. The appellant did not have a valid legal defense for going AWOL. (Continued on next page) 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 against finding compelling circumstances for the appellant’s periods of AWOL. The Board finds that the overall evidence weighs in favor of a finding that there were compelling circumstances to warrant the appellant’s periods of AWOL. Therefore, the appellant’s character of discharge is not a bar to the receipt of VA benefits. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke