Citation Nr: 20005195 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-46 875 DATE: January 23, 2020 ORDER The character of the appellant’s service is not a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT Compelling circumstances justified the appellant’s period of absence without leave (AWOL) in excess of 180 days. CONCLUSION OF LAW The character of the appellant’s discharge from service is not a bar to receiving VA compensation benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from March 1988 to April 1992, at which time he received a discharge under other than honorable conditions. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 administrative decision. The appellant participated in a hearing before the undersigned in September 2019, and a transcript of this hearing has been associated with the record. For benefits 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), 3.315. 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 C.F.R. § 3.12(a). A claimant receiving a discharge under conditions other than honorable may be considered to have been discharged under dishonorable conditions in certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. Benefits are not payable when the former service member was discharged under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days unless the former service member demonstrates “compelling circumstances” to warrant a prolonged unauthorized absence. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(b), (c)(6). Turning to the facts in this case, the appellant enlisted into service with the United States Army (Army) on March 11, 1988, for a 4-year period of obligation. On May 9, 1988, the appellant was recognized as an outstanding graduate of basic training, and he was advanced to the rank of E-2 effective May 12, 1988. In a May 30, 1990, Service School Academic Evaluation Report, the appellant was noted to be a “highly dedicated young leader who most definitely will be an asset to his unit”. On February 1, 1989, the appellant was advanced to the rank of E-3. On September 27, 1989, the appellant was awarded a Certificate of Achievement for exceptionally meritorious achievement in support of the communications mission of the 327th Signal Battalion (Airborne) Task Force. The appellant was advanced to the rank of SP-4 on July 1, 1989. On May 14, 1990, the appellant’s Command Sergeant Major provided him with a letter of appreciation, stating that the appellant “performed well on every mission and supported all unit endeavors in an outstanding manner”. The appellant served in Southwest Asia from September 1, 1990, to April 4, 1991. Following the appellant’s return from deployment to Southwest Asia, the appellant went AWOL for a 256-day period beginning on May 6, 1991, and ending with the appellant’s surrender to military authorities on January 17, 1992. A January 23, 1992, Report of Mental Status Evaluation psychiatrically cleared the appellant for any administrative actions that the appellant’s command deemed appropriate. The clinician noted that the appellant’s behavior was normal, and he was fully alert and oriented. The Veteran’s mood was anxious, his thought processes were clear, his thought content was normal, and his memory was good. In his January 29, 1992, self-reported medical history, the appellant stated that he had frequent trouble sleeping, depression, excessive worry, and nervous trouble. The appellant was found, however, to be psychiatrically normal at the time of his January 29, 1992, separation examination. On January 31, 1992, the appellant was charged with a period of AWOL from May 6, 1991, to January 17, 1992. On January 31, 1992, the appellant requested a discharge for the good of the service. In making this request, the appellant acknowledged that he had been charged with the above period of AWOL. The appellant acknowledged that he understood the possible negative consequences of making such a request, and he consulted with counsel in association with making the request. On March 18, 1992, the appellant’s command approved his request for a discharge for the good of the service. The appellant separated from service on April 14, 1992, under other than honorable conditions in lieu of trial by court-martial. The appellant’s service separation document, as revised, shows that he received the Southwest Asia Service Medal with Two Bronze Service Stars, the Kuwait Liberation Medal – Saudi Arabia, the Kuwait Liberation Medal – Kuwait, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon (Primary level), the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanic Badge. Following the appellant’s separation from service, in July 2000, the appellant requested that the Army Discharge Review Board (ADRB) upgrade the characterization of his discharge, noting the quality of his conduct before his period of AWOL. In September 2000, the ADRB unanimously found that the appellant’s discharge was proper as issued. In May 2012, the appellant stated that his friends told him that he had “not been the same” since returning from service in Saudi Arabia. The appellant suspected that he had posttraumatic stress disorder (PTSD). In July 2012, the appellant stated to a clinician that he “could not take it anymore” during his period of AWOL, and he was afraid of being sent back to service in Southwest Asia. The appellant reported feeling anxious that “anything could happen” in the desert, and he witnessed the “devastating” aftermath of a missile attack that that hit an area that he had occupied 48 hours before. In August 2012, the appellant’s sister stated that the appellant slept on her apartment’s floor during his period of AWOL. The appellant’s sister observed that the appellant would “wake up in sweats” during this time with nightmares “at all times of the night”. In January 2013, the appellant argued that he began to feel anxious following his return from deployment, and he decided that he did not wish to return to his unit. In March 2013, the ADRB authorized the reissuance of the appellant’s service separation document to reflect the appellant’s foreign service. In December 2013, the ADRB denied the appellant’s request to upgrade the characterization of his discharge, rejecting the appellant’s argument that his AWOL occurred as the direct result of a psychological disorder that he experienced following his deployment. In June 2016, a VA examiner opined that the appellant was not insane at the time he went AWOL. As a rationale for this opinion, the examiner noted that the appellant’s command deemed him likely unresponsive to punishment. The examiner found that the appellant had not been diagnosed for or received treatment for a mental health disorder during service. The examiner found the appellant’s self-reported difficulties with sleeping and depression were less likely signs of insanity and more likely related to the appellant facing a court-martial. During the appellant’s September 2019 hearing before the undersigned, the appellant stated that he went AWOL because he was afraid of being sent back to serve in Southwest Asia. Turning to an analysis of these facts, absent “compelling circumstances”, the appellant’s period of AWOL in excess of 180 days bars him from receiving VA benefits. The factors considered in determining whether there are “compelling circumstances” warranting the prolonged unauthorized absence include (1) the length and character of service exclusive of the period of prolonged AWOL; (2) reasons for going AWOL; and (3) whether there was a valid legal defense for the absence which would have precluded a conviction for AWOL. 38 C.F.R. § 3.12(c)(6). The Board finds that the length and character of the appellant’s service, exclusive of his period of AWOL from May 6, 1991, to January 17, 1992, was honest, faithful, meritorious, and of benefit to the nation. The appellant served over three years of his four years of contracted service before going AWOL, including a 7-month deployment to Southwest Asia during the Persian Gulf War. During this period of service, the appellant received a number of accelerated promotions in rank, an individualized letter of appreciation from his Command Sergeant Major, and the decorations that are listed on his service separation document. The record shows that the appellant engaged in no instances of misconduct during this time. Thus, the Board finds that the weight of the evidence shows that the appellant’s service exclusive of his prolonged AWOL, which involved decorated service in Southwest Asia, was honest, faithful, meritorious, and of benefit to the nation. With regard to the question of whether the appellant has presented compelling reasons for going AWOL, VA is to consider “carefully and sympathetically” the effects of hardship or suffering that the appellant experienced during overseas service. When completing this analysis, the adjudicator is to consider how the situation would have appeared to the appellant himself. See 38 C.F.R. § 3.12(c)(6)(ii). In this case, the facts show that the appellant went AWOL immediately following his return from deployment. The appellant has argued that he went AWOL because he feared returning to Southwest Asia. Consistent with this argument, upon his return from AWOL to military control, the appellant complained of psychiatric symptoms such as difficulty sleeping, depression, excessive worry, and nervous trouble. The appellant’s sister confirmed that the appellant suffered from sleep difficulties and nightmares during his period of AWOL. Thus, the weight of the evidence is consistent with a finding that the appellant was suffering from a distressed state of mind to an extent that created compelling circumstances warranting the appellant’s prolonged period of AWOL. (Continued on the next page)   In sum, the length and character of the appellant’s service exclusive of his lengthy period of AWOL was honest, faithful, and meritorious and of benefit to the nation. The appellant has presented compelling circumstances providing context for this lengthy period of AWOL. The character of the appellant’s service is not a bar to his receipt of VA benefits. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.