Citation Nr: 21061637 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-23 330A DATE: October 4, 2021 REMANDED Whether the character of the appellant's discharge for his period of active duty from February 24, 1969, to January 12, 1977, is a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Army from February 1969 to January 1977, including service in the Republic of Vietnam. The appellant accepted a discharge under other than honorable conditions in lieu of a court martial. The appellant applied for VA compensation benefits in November 2007. See November 2007 VA Form 21-526. In May 2008, the appellant's claim for VA compensation benefits was denied on the grounds that his discharge under other than honorable conditions was issued as a result of absence without official leave (AWOL) for a continuous period of at least 180 days, constituting a bar to the receipt of VA benefits under 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c)(6). In May 2011, the appellant testified before the undersigned at a Travel Board hearing. A transcript of the proceedings has been associated with the record. In February 2014 and June 2017, the Board of Veterans' Appeals (Board) remanded the appeal for additional development. In an August 2019 decision, the Board denied the appeal. The claimant appealed the decision to the Court of Appeals for Veterans Claims (Court). A June 2020 order vacated and remanded the Board's decision in accordance with and a May 2020 Joint Motion for Remand (JMR). In September 2020, the Board remanded the appeal to obtain a new medical opinion as to whether the appellant met the criteria for "insanity" (as defined under 38 C.F.R. § 3.354(a)) at the time of the offense leading to his discharge under other than honorable conditions so as to address the concerns raised by the JMR. The Board regrets the additional delay, but for the reasons discussed further below finds remand is once again necessary before an informed decision can be made. Whether the character of the appellant's discharge for his period of service from February 24, 1969, to January 12, 1977, is a bar to the receipt of VA benefits is remanded. Initially, the Board notes that the facts surrounding this appeal are as follows. The appellant received a waiver prior to his induction in the United States Army for the offenses of being a minor in possession, alias warrants, and being drunk. The appellant entered active duty on February 24, 1969, with a two-year active duty service obligation, and a total military service obligation of six years. See February 1969 Acknowledgement of Service Obligation; see also DD Form 214. The appellant was assigned the military occupational specialty of Light Weapons Infantryman. Service records are silent for any reports of misconduct or disciplinary infraction for approximately the first six months of the appellant's active duty service. Shortly before the appellant was scheduled to deploy to the Republic of Vietnam, the appellant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for a period of AWOL from August 17, 1969, to September 10, 1969 (24 days). In an August 2010 statement, the appellant reported that he was AWOL from August 17, 1969, to September 10, 1969, because he needed to help his then-pregnant spouse get established prior to his assignment in the Republic of Vietnam. See August 2010 VA Form 21-4138; see also May 2011 Board hearing transcript. The appellant reported that he and his spouse were young, anxious, and overwhelmed by the circumstances. The appellant reported that he returned to duty after helping his spouse find a place to live while he was deployed to the Republic of Vietnam. The appellant was deployed to the Republic of Vietnam in September 1969. In November 1969, the appellant was promoted to the grade of E-4. See June 1982 Army Council of Review Boards Case Report. For his service in the Republic of Vietnam, the appellant was awarded the Air Medal for actively participating in more than 25 aerial missions over hostile territory in support of counterinsurgency operations, the National Defense Service Medal, the Vietnam Service Medal with 3 bronze stars, the Republic of Vietnam Campaign Ribbon with Device, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge. See February 1988 Air Medal certificate; see also February 1988 Authorization for Issuance of Awards. In August 1970, the appellant received nonjudicial punishment under Article 15 for entering base during curfew hours without authority. In September 1970, the appellant returned to the United States after his year-long deployment to the Republic of Vietnam. It appears the appellant was assigned to Fort Hood, Texas upon his return from the Republic of Vietnam. In November 1970, the appellant received nonjudicial punishment under Article 15 for being AWOL from November 9-18, 1970 (9 days). In December 1970, the appellant received nonjudicial punishment under Article 15 for being AWOL for approximately one day. Following the completion of his initial two-year active duty service obligation, the appellant received nonjudicial punishment at a United States Army Personnel Control Facility (USAPCF) in Texas in May 1971. In this regard, on May 17, 1971, the appellant signed that he did not appeal the nonjudicial punishment for disobeying a lawful order to tuck his shirt into his trousers and for an unauthorized absence of approximately 5 hours that same day. The appellant's status in the United States Army is not entirely clear after the May 17, 1971, nonjudicial punishment received at a USAPCF in Texas. It appears the appellant contacted the Adjutant General's Office in October 1974 concerning clemency information. See October 1974 Telephone or Verbal Conversation Record (Record). Per the October 1974 Record, the appellant indicated that he may have been discharged. The October 1974 Record indicated there was no record of the appellant in the National Crime Information Center (NCIC). In April 1975, after the appellant's total service obligation of six years would have otherwise expired, a Notice of Unauthorized Absence from the United States Army was distributed by the United States Army Deserter Information Point. On December 2, 1976, the appellant was apprehended by civil authorities and returned to military control. Although service records indicate the appellant was last assigned to a USAPCF in Texas in May 1971, the appellant was reported as dropped from the rolls of Oakland Army Base, Oakland, California on May 30, 1971. See December 1976 Notice of Return of United States Army Member from Unauthorized Absence; see also Record of Assignments (indicating the appellant was reported AWOL and as a deserter effective the same date on May 30, 1971). A December 16, 1976, Charge Sheet erroneously indicated the appellant's initial date of service was August 9, 1969, which would have otherwise indicated that his two-year active duty service commitment ended on August 8, 1971. The appellant was charged with being AWOL from Oakland Army Base from May 30, 1971, to December 2, 1976. Although the appellant was beyond his actual term of service that expired on February 23, 1975, the appellant was placed in a full duty status with entitlement to full pay and allowances from December 2, 1976. See December 23, 1976 Personnel Action. The appellant's immediate commander recommended that the appellant be tried by general court martial for his extended period of AWOL. However, it does not appear there was an actual referral of charges to determine the level of court martial. On December 17, 1976, the appellant requested discharge for the good of the service. In January 1977 correspondence, the appellant's commander indicated the appellant's service records were not available. Based on statement and interview with the appellant, the commander reported the reason for the appellant's excessive AWOL was "personal problems." See also December 1976 Report of Medical History (appellant reported frequent trouble sleeping and nervous trouble). The appellant's request for discharge for the good of the service was approved, and he was separated under other than honorable conditions effective January 12, 1977. The appellant's DD Form 214 notes that the appellant was separated based on temporary records and the appellant's affidavit. In July 1982, the Army Discharge Review Board denied the appellant's application to upgrade his discharge. See also June 1982 Army Council of Review Boards Case Report. In a summary of testimony presented before the Army Discharge Review Board, the appellant reported that he was "nervous, scared, and just wanted to go home" at the time of his extended AWOL. The appellant reported he had medical problems and felt that he should have received help. The appellant reported he had family problems as a result of his assignment in the Republic of Vietnam, which broke up his family and marriage. The appellant reported that he did not seek mental health treatment, but that he wanted to see a psychiatrist. The appellant reported he experienced heavy drug use in 1972. The appellant indicated that he had been informed he was not reported as AWOL, and that he believed he had been discharged. In an October 1991 statement associated with the appellant's application to the Army Board for Correction of Military Records (ABCMR), the appellant reported that he was involved in active combat and exposed to hostile, life-threatening situations during his service in the Republic of Vietnam. The appellant reported he experienced mental health symptoms shortly after his experiences in the Republic of Vietnam that led him to abuse drugs and alcohol, and resulted in aberrant behavior. See July 2009 VA Form 9 (appellant reported his behavior and decisions following service in the Republic of Vietnam were the direct result of combat trauma). In June 2002 correspondence, Counseling Therapist C.J.H. indicated the appellant reported mental health symptoms that had existed since his service in the Republic of Vietnam. The appellant reported involvement in several firefights during his service as a Light Weapons Infantryman during the Vietnam War, as well as having friends killed, and handling enemy wounded and dead. C.J.H. diagnosed the appellant with posttraumatic stress disorder (PTSD) based on his evaluation of the appellant, and in consideration of the traumatic incidents and mental health symptoms reported by the appellant. In June 2005 correspondence, Psychiatrist D.A.O. opined it was likely that PTSD/depression may have played a major role in the appellant's ability to adjust to stateside duty, causing his excessive AWOL upon his return from the Republic of Vietnam. During the May 2011 Board hearing, the appellant testified that he had problems adjusting when he returned from the Republic of Vietnam. The appellant reported symptoms of anxiety, nightmares, sleep impairment, withdrawal from others, and difficulty getting along with others. The appellant reported he reached a point where he was not functioning. The appellant reported that he sedated himself with drugs and alcohol. The June 2020 JMR vacated and remanded the August 2019 Board's decision because the Board's reliance on an August 2016 VA medical report and April 2019 addendum was improper because neither opinion explained why diagnoses of PTSD and/or depression did not cause the appellant to meet any of the three criteria of "insanity" outlined by 38C.F.R. §3.354(a) at the times he went Absent Without Leave (AWOL) during service. Additionally, the JMR vacated and remanded the Board's decision because it found that the VA examiner did not properly why it would be speculative to comment on the appellant's mental condition at the time he went AWOL. In September 2020, the Board remanded the appeal to obtain answers to these questions. In this regard, pursuant to the September 2020 Board remand the appellant was afforded a VA examination in May 2021. Tellingly, the May 2021 VA examiner reported the appellant was not a credible historian regarding his service in the Republic of Vietnam based on his false claims as to having received the Silver Star, Bronze Star Medal, and Combat Infantry Badge due to combat in the Republic of Vietnam and this impression formed the foundation for her medical conclusion that the appellant did not have a mental disorder at the time of the offense (extended AWOL from May 30, 1971, to December 2, 1976) resulting in his discharge under other than honorable conditions. However, while the record shows that the Veteran did not receive any of the claimed combat decoration and awards (see February 1988 Authorization for Issuance of Awards), the Board nonetheless finds that the appellant's report of exposure to hostile and life-threatening situations is consistent with the type and circumstances of the his service as a Light Weapons Infantryman with more than 25 aerial missions over hostile territory in support of counterinsurgency operations and participation in three campaigns during the Vietnam War from September 1969 to September 1970. Moreover, with respect to the examiner's report that the appellant was not a credible historian regarding his combat service, the Court has held that an examination report is inadequate when an examiner makes factual findings or legal determinations in the first instance. See Sizemore v. Principi, 18 Vet. App. 264, 275 (2004). When an examiner makes factual findings or legal determinations in the first instance, a new medical examination may be warranted to "remove whatever taint there may be from [the examiner's] overreaching." Id.; see also VAOPGCPREC 20-97 (The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case). Therefore, the Board finds another remand is necessary to obtain a medical opinion as to whether the appellant's behavior at the time of the offense leading to his discharge under other than honorable conditions was due to insanity as defined by 38C.F.R. §3.354(a) because the May 2021 VA opinion is not adequate. See 38U.S.C. §5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). As an additional consideration, the appellant's representative noted the appellant was eligible for discharge on February 23, 1971. See July 2010 Appellant Brief. The representative has asserted that the appellant's period of service from February 24, 1969, to February 23, 1971, should be considered honorable for the purposes of entitlement to VA benefits. See 38 U.S.C. § 101(18); 38 C.F.R. § 3.13(c); see also May 2011 Board hearing transcript. However, in this case, it does not appear the appellant's continuation on active duty beyond his initial two-year active duty service obligation was the result of an intervening enlistment or reenlistment as specified under 38 U.S.C. § 101(18) and 38 C.F.R. § 3.13(c)(2). To the extent that the appellant has suggested that he had been discharged prior to the period of AWOL reported on May 30, 1971, which resulted in his discharge under other than honorable conditions, the proper recourse for such a determination lies within the relevant service department (in this case the Army). See also 38 C.F.R. § 3.12(c)(6)(iii). Here, the Army Discharge Review Board found there was no information available in the record or supplied by the appellant that would counter a presumption of regularity in the separation process. See June 1982 Army Council of Review Boards Case Report. However, the Board observes that the appellant submitted documents received by VA in October 2020 that indicate the appellant has an application pending before the ABCMR. As the ABCMR records are relevant to the instant appeal, and there is a reasonable possibility that such evidence could help substantiate the Veteran's appeal, the Board finds remand is necessary to attempt to obtain the complete ABCMR records. See 38 C.F.R. § 19.9. The appeal is REMANDED for the following actions: 1. Obtain and associate with the record the appellant's complete Army Discharge Review Board and/or Army Board for Correction of Military Records, to specifically include any evidence and argument submitted by the appellant, as well as any decisional documents considered. Document all attempts to locate such records and any negative responses in the claims file. Notify the appellant and his representative of all efforts made. 2. In order to comply with the JMR, obtain a medical opinion from a qualified examiner as to whether the Veteran was insane for VA purposes at the time of the misconduct underlying January 1977 separation from service, including the 2,047 days of AWOL between August 1969 and December 1976. If the examiner determines that an opinion cannot be provided without an examination, the appellant should be scheduled for a new examination. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In providing the below opinions, the examiner is advised that for VA purposes "[a]n insane person is defined as one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, (1) a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis." Based on a review of the record (and if necessary, a new examination), to include the decision herein, the examiner should respond to the following: (a.) At the time of the AWOL, did the appellant have a psychosis that had been engrafted upon such a basic condition, exhibits, due to that disease, that he had a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? (b.) At the time of the AWOL, did the appellant have a psychosis that had been engrafted upon such a basic condition, exhibits, due to that disease, that it interfered with the peace of society concurrent with his misconduct in service? (c.) At the time of the AWOL, did the appellant have a psychosis that had been engrafted upon such a basic condition, exhibits, due to that disease, that he had a depart (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his misconduct in service? In providing the above opinions, the examiner should consider, among other things, the appellant's December 1976 report of frequent trouble sleeping and nervous trouble; lay statements in support of the appellant's claim; the June 2005 medical opinion from D.A.O; and the appellant's report of exposure to hostile and life-threatening situations while on active duty is consistent with the type and circumstances of his service as a Light Weapons Infantryman with more than 25 aerial missions over hostile territory in support of counterinsurgency operations and participation in three campaigns during the Vietnam War from September 1969 to September 1970. In providing the above opinions, the examiner should not factual findings or legal determinations. The examination report must include a complete rationale for all opinions expressed. In order to comply with the JMR, if an opinion cannot be rendered without resorting to mere speculation as to whether the appellant's behavior at the time of the offense leading to his discharge was due to disease, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.