Citation Nr: 21001108 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-01 873 DATE: January 7, 2021 ORDER The character of the Veteran's service does not serve as a bar to VA benefits and the appeal is granted. FINDING OF FACT The Veteran was discharged honorably as a conscientious objector; and the record does not show the Veteran refused to perform military duty, to wear the uniform, or to comply with lawful orders of competent military authorities. CONCLUSION OF LAW The character of the Veteran's service does not serve as a bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1971, at which time he received an Honorable discharge. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 VA administrative decision. The character of the Veteran's service does not serve as a bar to VA benefits. 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 discharge from military service as a conscientious objector is dishonorable only when the service member refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities. 38 C.F.R. § 3.12(c); VAOPGCPREC 11-93. The Veteran enlisted in the Army in May 1966, compiling an unblemished and highly decorated record over the course of the following four years, including during service in the Republic of Vietnam. See DA Form 66 (“Army Aviator Badge…Ranger Tab…Republic of Vietnam Campaign Mdl w/device 60…Bronze Star Medal…Vietnam Service Mdl w/5 Service Stars”). Following his tour in Vietnam from June 1968 to June 1969, the Veteran reflected on his experiences and applied for discharge based on conscientious objector status in January 1971. See DA Form 2496 (“Vietnam was very much a catalyst. My experiences as a soldier deepened my moral and religious convictions. The dehumanization of people and the destruction bothered me greatly.”) Special Orders dated May 1971 reflect the approval of the Veteran’s request, with the character of service to be designated as Honorable and the reason for discharge as “conscientious objector.” After careful review of the evidence, the Board finds that while the Veteran was discharged from service as a conscientious objector, the record does not establish that he refused to perform military duty, wear the uniform, or otherwise comply with lawful orders of competent military authority. In coming to this determination, the Board acknowledges that the Veteran did note that he opposed both combat and noncombat service in the military as reflected in his application for conscientious objector status which was used as the basis for his denial of benefits in the underlying June 2015 VA administrative decision. However, personnel records reflect that while this request was pending the Veteran did not abstain from his assigned work, as reflected in his final Officer Efficiency Report (OER) covering the period of duty between September 1970 and April 1971. While this final OER was not as overwhelmingly positive as his previous evaluations (as predicted by the Veteran in his conscientious objector application narrative), the report nevertheless did not recount any shirking of duties. Notably, in the portion of the document that evaluated “Demonstrated Performance of Present Duty,” both the rater and the endorser acknowledged the Veteran’s “Performance Of This Duty Meets Minimum Standards,” rather than rating his performance as unsatisfactory. (He served as an off-post housing referral officer.) This evidence does not support a finding that as a conscientious objector the Veteran refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities. Without such misconduct, the Veteran's discharge as a conscientious objector is not dishonorable for VA purposes. Thus, the character of the Veteran’s discharge from service is not a bar to payment of VA benefits. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.