Citation Nr: 21004215
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 17-59 643
DATE: January 26, 2021

ORDER

The character of the Veteran’s service from June 16, 1977, to June 22, 1979, is not a bar to receipt of Department of Veterans Affairs (VA) benefits.

FINDING OF FACT

In December 2020, the Army Board for Correction of Military Records (ABCMR) upgraded the character of the Veteran’s discharge from Other Than Honorable to Honorable.

CONCLUSION OF LAW

The character of the Veteran’s service is not a bar to receipt of VA benefits.  38 U.S.C. § 1552, 5303; 38 C.F.R. § 3.12.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service with the United States Army from June 1977 to June 1979.  She initially received a discharge under Other Than Honorable conditions in lieu of a trial by court-martial.  This matter is on appeal from a September 2014 Regional Office (RO) administrative decision.  

The Veteran initially filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD), hearing loss, and tinnitus.  In the September 2014 denial, the RO did not adjudicate these disabilities on the merits, but instead denied the claim due to the character of the Veteran’s discharge.  Thus, the Board cannot presently address these substantive issues, BUT SUCH SHOULD BE PROMPTLY ADJUDICATED IN THE FIRST INSTANCE BY THE RO FOLLOWING THE GRANT HEREIN.

1. The character of the Veteran’s service from June 16, 1977, to June 22, 1979, is not a bar to receipt of VA benefits

The Veteran entered active duty service in June 1977.  In October 1977, she was raped an assaulted by a fellow soldier.  In the wake of that trauma, the Veteran received nonjudicial punishment (NJP) for disobeying a lawful order in April 1978.  The Veteran was then absent without leave (AWOL) from August 24, 1978, through May 4, 1979.  When she returned to military control, she faced court-martial for her absence.  She requested, and received, an administrative discharge in lieu of trial by court-martial in June 1979.

In September 2014, the RO determined that the character of her discharge was a statutory bar to both VA compensation and health care benefits due to the prolonged nature of her AWOL.  The Veteran stated that she was AWOL due to the trauma of the October 1977 attack, and the resulting fear of Army life and men.

In December 2020, the ABCMR upgraded the character of the Veteran’s discharge to Honorable.  The ABCMR considered the Veteran’s full personnel records, including the detailed investigation report from the October 1977 rape and assault.  Absent from the claims file, though considered by the ABCMR, the Veteran also provided private psychological records purporting to reflect a present diagnosis of PTSD due to her military sexual trauma (MST).  After a thorough review of the record, the ABCMR concluded that there was an “injustice” in the Veteran’s case, which warranted an upgrade in the character of her discharge to Honorable.

An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under 10 U.S.C. § 1552 is final and conclusive on VA.  The action of the board sets aside any prior statutory or regulatory bar to benefits.  38 C.F.R. § 3.12 (e).  In this case, the ABCMR upgraded the character of the Veteran’s discharge to Honorable, which removes the bar to receiving VA compensation and health care benefits.

Accordingly, the claim is granted.

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	H. Fisher, 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.