Citation Nr: 1815271 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 13-13 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the character of the Appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under Chapter 17, Title 38, United States Code. ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Appellant served on active duty in the United States Army from September 1976 to July 1978 and was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 letter decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that determined the character of the Appellant's discharge from service was a bar to VA benefits. The RO previously issued decisions on this claim in April 1997 and April 2008, determining that the Appellant's character of discharge was a bar to VA benefits. The Appellant did not submit a notice of disagreement with either decision. It appears that relevant service treatment records were received on the same day that the April 2008 decision was issued. These records pertain to the reason given by the Appellant for going absent without leave (AWOL) and were in existence at the time of the prior decisions. As such, VA will adjudicate the appeal without the need for new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2017). This appeal was before the Board in July 2015, at which time it was remanded for further evidentiary development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. During his military service, the Appellant went absent without leave (AWOL) for two periods: from July 12, 1977 until August 10, 1977, and from August 17, 1977 until March 30, 1978. 2. In April 1978, the Appellant voluntarily requested discharge for the good of the service in-lieu of trial by court-martial; thereafter, the Appellant was discharged from service under other than honorable conditions. 3. There were no compelling circumstances to justify the Appellant's prolonged period of AWOL. 4. The Appellant was not insane at the time of the offense that led to his service discharge. CONCLUSION OF LAW The character of the Appellant's discharge from service constitutes a bar to VA benefits, exclusive of health care under Chapter 17, Title 38, United States Code. 38 U.S.C. § 101, 1131, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant is seeking to be declared eligible for VA benefits. The Appellant was separated from military service in July 1978 under conditions other than honorable. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. 38 U.S.C. § 1131; Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The term 'veteran' means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). 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); 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d). In this case, the applicable regulations are 38 C.F.R. § 3.12(c) and 38 C.F.R. § 3.12(d). The former provides that benefits are not payable where the former service member was discharged or released by reason of the sentence of a general court-martial; as a deserter; or by reason of a discharge 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). The latter provides that a discharge because of willful and persistent misconduct or the acceptance of an undesirable discharge to escape trial by court-martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). VA law dictates that regardless of the character of discharge listed on the DD Form 214, benefits are not payable where the former service member was discharged or released as a result of being AWOL for a continuous period of at least 180 days. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6). This bar to benefit entitlement does not apply if there are compelling circumstances to warrant such prolonged unauthorized absence. Under 38 C.F.R. § 3.12(c)(6)(i-iii), 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 Board is not required to simply accept the Appellant's statements that he had compelling circumstances for a prolonged period of AWOL. See Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003) (holding that the adjudicator is permitted to look at totality of evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL). Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service and character of discharge. VA does not have the authority to alter the findings of the service department; the claimant's recourse is with the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Harvey v. Brown, 6 Vet. App. 416, 424 (1994). The benefit of the doubt standard applies to the question of veteran status. Donnellan v. Shinseki, 24 Vet. App. 167, 175 (2010). After carefully reviewing the evidence of record, the Board finds that the character of the Appellant's discharge is a bar to his receipt of VA benefits, exclusive of health care under Chapter 17, Title 38, United States Code. The Appellant's service personnel records show that he entered active duty service in the Army on September 21, 1976. He was absent without official leave (AWOL) for two periods: from July 12, 1977 until August 10, 1977 (29 days); and from August 17, 1977 until March 30, 1978 (225 days). Service records show that he was charged for both periods of being AWOL under Article 86 of the Uniform Code of Military Justice (UCMJ). After the first period of AWOL, the Appellant received punishment in the form of a reduction in rank, forfeiture of pay, extra duties, and restrictions on movement around base. The Appellant chose not to appeal his punishment. Just seven days later, the Appellant went AWOL again for a more prolonged period, until March 30, 1978. This time, the offense was found to be triable by court-martial. In April 1978, the Appellant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200, which constitutes an administrative separation in-lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Thereafter, on July 13, 1978, the Appellant was discharged for the good of the service under other than honorable conditions. The service records show that the Appellant signed a statement stating that he understood that as a result of an undesirable discharge he may be deprived of many or all benefits administered by the VA. The record also contains a handwritten statement by the Appellant explaining why he should be granted the administrative separation. The statement reads, in part: ". . . the reason for me joining the Army was to see what it was like an[d] I found out that I didn't like it an[d] I [tried] to fight it an[d] stay in . . . I went home on leave an[d] my mother was home alone . . . with no income. When I came back to the Army I felt that they needed me at home . . . I have to get a job. . . . the reason [I requested] a Chapter 10 is because I want to get out of the Army an[d] that seems like the best way to get out." The Board finds that the Appellant's service personnel records clearly justify his undesirable discharge from military service on the basis of going AWOL for a continuous period of 225 days. Accordingly, the Appellant is statutorily barred from establishing entitlement to VA benefits because of his being AWOL for a continuous period of greater than 180 days. 38 C.F.R. § 3.12(c)(6). However, the Board will address the potential defenses to this statutory bar on the basis of the existence of compelling circumstances and insanity. See 38 C.F.R. § 3.12(b),(c). The Appellant contends that there were compelling circumstances that warranted his being AWOL. He contends that his vision was deteriorating and he was not receiving adequate treatment in service, so he left the Army to seek out treatment for his eyes. The Appellant has also stated that he had other health problems during service, including a gunshot wound to the ankle, and that he had asked the Army to release him but was denied. He also stated that once he went AWOL, he was too scared to return. The Board notes that the Appellant's service treatment records confirm that he had various health conditions during service. The September 1976 enlistment examination showed the Appellant to have diminished visual acuity; however, it was deemed "not currently disabling" for VA purposes. His separation examination did not show a change in vision. In June 1977, the Appellant sought treatment at the optometry clinic for complaints of double vision in his left eye and a constant headache. On examination, a corneal scar was noted in the left eye; however, all other findings were within normal limits. In January 1976, the Appellant sought treatment for a gunshot wound to the right ankle. An x-ray showed three to four shotgun pellet fragments in the soft tissue, which were removed. In February 1977, the Appellant was examined in the orthopedic clinic for a knee condition that existed prior to service, and for which he had been receiving physical therapy. The medical record notes that the examining doctor felt that the Appellant should be discharged from service and his treatment discontinued. However, thereafter there is no other mention in the service treatment records of complaint of or treatment for the knee condition, nor any other mention of a medical discharge. The Board acknowledges that the record supports the Appellant's contention that he had diminished visual acuity prior to and during service. The Appellant may, in fact, have felt at the time that his eyes were getting worse and that he needed to seek treatment, however, there is no indication in the service treatment records that he visited the medical clinic more than once for complaints of eye problems. Further, there is no record that the Appellant complained of deteriorating vision or of not receiving adequate treatment by the Army. The Board also notes that there was no change in vision between his enlistment and separation examinations. The record also supports that the Appellant had a pre-existing knee condition that gave him trouble during service, as well as suffered a gunshot wound to his ankle during service. However, again, the Board notes that the record does not indicate that the Appellant ever complained that he was not receiving adequate treatment by the Army, or that he requested a medical discharge and was denied, as he has contended in statements to VA. In a June 2013 statement, the Appellant reported that while AWOL he sought treatment at the Mississippi Regional Center for the Blind and was referred to a Dr. Meyer in Memphis, Tennessee, who performed surgery on his eye. However, Social Security Administration records procured by VA confirm that this referral to Dr. Meyer and subsequent surgery did not occur until December 1992, 14 years after the Appellant was discharged from service. Based on the above, the Board is not convinced by the Appellant's contentions that he felt he had no other choice than to go AWOL to seek treatment for his eye condition and other physical ailments. The service treatment records do not support the Appellant's contention that he was not receiving adequate treatment from the Army and medical records confirm that the Appellant did not actually seek out treatment for his eyes until many years after discharge. The Board finds the Appellant's statement from April 1978 to be much more probative. In his statement explaining why he wanted a Chapter 10 administrative separation in-lieu of trial by court-martial, the Appellant indicated that he did not like being in the Army, and that he did not return from leave because he felt like he needed to stay home with his mother and earn money to help support her. Further, he stated that he wanted to "get out of the Army." This contemporaneous statement contradicts the Appellant's later statements that he went AWOL to seek treatment for his medical conditions. Accordingly, the Board finds that there were no compelling circumstances to justify the Appellant's prolonged period of AWOL. The Board acknowledges that the Appellant understandably felt an obligation to his family; however, the Appellant also had to understand the severe consequences of foregoing his obligation to the Army. After his first period of AWOL, in which he was charged for being absent from his organization for 29 days, he received a significant punishment. In spite of this, he chose to go AWOL once again shortly thereafter. The Board has no choice but to conclude that he knew there would be harsh penalties for going AWOL a second time. Notably, prior to discharge, the Appellant signed a statement stating that he understood that he may be ineligible for many or all benefits administered by VA as result of an undesirable discharge. Therefore, the Board does not accept the Appellant's arguments regarding the existence of compelling circumstances to justify his prolonged period of AWOL. The Board also notes that compelling circumstances are only an exception to the bar to VA benefits imposed under 38 C.F.R. § 3.12(c)(6), relating to a discharge under other than honorable conditions for a period of at least 180 days of AWOL. However, as noted above, the Appellant was not merely discharged under other than honorable conditions as a result of being AWOL; the record shows that he accepted an undesirable discharge to escape trial by court-martial, which is considered under dishonorable conditions pursuant to 38 C.F.R. § 3.12(d)(1). Thus, the Appellant's character of discharge is not a bar to VA benefits merely because he was AWOL for at least 180 days, as described in subsection (c)(6), but also because he accepted an undesirable discharge to escape trial by general court-martial under subsection (d)(1). Therefore, even if the Board accepted the Appellant's arguments regarding compelling circumstances for his prolonged period of AWOL, his discharge still would be dishonorable pursuant to 38 C.F.R. § 3.12(d)(1), and he would not meet the definition of "veteran" for purposes of entitlement to VA benefits. Lastly, despite the absence of compelling circumstances, the Board still must address whether the bar to VA benefits should be overturned, based on the theory that the Appellant was effectively "insane" when he went AWOL during his military service. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all possible statutory and regulatory bars to VA benefits. With regard to the defense of insanity, at the time of the commission of the Appellant's total period of AWOL totaling 254 days, the preponderance of the evidence does not demonstrate that the Appellant was considered "insane" as defined under 38 U.S.C.§ 5303(b) and 38 C.F.R. § 3.12(b). The Appellant's service treatment records do not contain any medical records just prior to, during, or subsequent to the Appellant's period of AWOL which would support a finding of insanity. A history of mental illness was not documented on the Appellant's entrance or separation examinations. Similarly, the claims file does not contain any medical records during, or since, the Appellant's period of AWOL, containing a finding of insanity or any other mental illness. Significantly, an April 1978 statement of approval for discharge written by the Acting Commander of the Appellant's company, stated: "There does not appear to be any reasonable ground to believe that the individual is or was at the time of his misconduct mentally defective, deranged or abnormal." Therefore, the Board finds there is no probative evidence of insanity at the time the offense in question was committed. Based on the foregoing, the Board finds that the Appellant does not have status as a veteran for VA purposes and the character of his discharge constitutes a bar to VA benefits. Accordingly, the appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Appellant's claim, the doctrine is not applicable. (CONTINUED ON NEXT PAGE) ORDER The character of the Appellant's discharge from service constitutes a bar to VA benefits, exclusive of health care under Chapter 17, Title 38, United States Code, and the benefit sought is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs