Citation Nr: A19002062 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190506-8475 DATE: October 18, 2019 ORDER The character of the Appellant’s service is not a bar to receiving Department of Veterans Affairs (VA) benefit. FINDING OF FACT There were compelling circumstances to warrant the prolonged unauthorized absence of the Appellant. CONCLUSION OF LAW The Appellant is not barred from entitlement to VA benefits as a result of the characterization of discharge from active service. 38 U.S.C. §§ 101, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from June 1970 to April 1973. The Appellant selected the Higher-Level Review Lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Act (RAMP) election form. An April 2019 AMA decision decided that the character of the Appellant’s service was a bar to VA benefits. The Appellant timely appealed the April 2019 AMA rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). 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), (18), 5303; 38 C.F.R. § 3.12(a). There are two types of character-of-discharge bars to establishing entitlement to 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). The statutory bars under 38 U.S.C. § 5303(a) are codified in 38 C.F.R. § 3.12(c), which states that benefits are not payable when the former service member was discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reasons of the sentence of a general court-martial; (3) resignation of an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; or (6) by reason of discharge under other than honorable conditions issued as a result of being absent without leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorize absence. In determining whether there are compelling circumstances to warrant a prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c)(6). The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for any of the following offenses: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude; (4) willful and persistent misconduct; or, (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). The Appellant was discharged under conditions other than honorable. In March 1980, his discharge was upgraded to honorable by an Army Discharge Review Board established under 10 U.S.C. § 1553. The record indicates that the Appellant was AWOL for a period greater than 180 continuous days, and he requested discharge for the good of the service to avoid court martial for his period of AWOL. Thus, the Appellant’s bar for benefits would be statutory and the upgrade of his character of discharge does not remove that bar. 38 C.F.R. § 3.12(g). However, the Appellant may be entitled to VA benefits if there were compelling circumstances to warrant his prolonged unauthorized absence. The following factors are considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). 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. 38 C.F.R. § 3.12(c)(6)(i). 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, 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. 38 C.F.R. § 3.12(c)(6)(ii). 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. The defense must go directly to the substantive issue of absence rather than to procedures, technicalities, or formalities. 38 C.F.R. § 3.12(c)(6)(iii). In a March 2010 letter, the Appellant stated that he enlisted in the Army at the age of 16 using a forged birth certificate. The Appellant was stationed in Germany but wished to be transferred to Vietnam. The Appellant was voluntarily discharged for the purpose of reenlistment so that he could select Vietnam as his duty station. Service records indicate that the Appellant arrived in Vietnam at the age of 17. At a January 2012 DRO hearing, the Veteran testified that in Vietnam he saw combat and received an Army Commendation Medal. The Veteran testified that he was under constant rocket and sniper fire and was promoted to a rank of E-4 while in Vietnam. The Veteran’s service records show that he served for ten months in Vietnam with no history of disciplinary actions prior to his AWOL status, and he had twenty-one months of good time prior to going AWOL. The Appellant returned home in March 1972, two days after returning from Vietnam, at the age of 18 on 30-day leave. At a DRO hearing, the Appellant testified that when he returned home, his mother was in the process of divorcing his step-father. The Appellant testified that his step-father was physically abusive and would beat the Appellant’s mother with a closed fist. The Appellant’s brother also testified at the DRO hearing that the step-father was abusive to their mother and three step-siblings, who were one, five, and seven at the time. The step-father resided on a cottage on the same property as the mother and was in possession of multiple firearms. The Appellant’s brother testified that the step-father’s abuse would only stop with physical confrontation and that the step-father would resume his abuse when the Brother or Appellant was not present. The Appellant testified that he decided to stay at home beyond his 30-day leave in order to protect his mother and step-siblings from his abusive step-father. The Appellant was eventually brought to Fort Carson by the Army, but he went AWOL again in order to protect his mother and step-siblings. The Appellant’s also testified that when he was home, he would have anxiety and dreams about Vietnam. He had trouble in crowds of people and felt like he wanted to be back in Vietnam because that’s what he was used to. The Appellant testified that he had a ninth-grade education and received his high school diploma because he served in Vietnam. It is not in dispute that the Appellant was AWOL for a continuous period over 180 days. Considering further whether there were compelling circumstances for the AWOL under the 38 C.F.R. § 3.12(c)(6) guidelines, the Board initially finds significant the Appellant’s young age on entry in service, and that he ended his education in the ninth grade. Furthermore, the Board finds noteworthy that the Appellant’s service prior to going AWOL was without blemish. Finally, the testimony from the Appellant and his brother demonstrated that there was a family emergency that the Appellant felt he needed to address. It is quite understandable that an 18-year-old returning from a combat zone and finding his family being abused would have difficulty deciding whether to return to his service or stay with his family to protect them from further abuse. Considering the foregoing, the Board finds that there were compelling circumstances to warrant the Appellant’s prolonged AWOL, and the character of his discharge is not a bar to his receipt of VA benefits. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.