Citation Nr: 21070803 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-38 934 DATE: November 26, 2021 ORDER The character of the Veteran's discharge is not a statutory or regulatory bar to the award of Department of Veterans Affairs (VA) benefits; to this extent the appeal is granted. FINDINGS OF FACT 1. Compelling circumstances warranted the Veteran's prolonged absence without official leave (AWOL), which, in part, formed the basis for his administrative discharge under other than honorable conditions. 2. The additional offenses that formed the basis for the Veteran's administrative discharge under other than honorable conditions were minor offenses that did not involve willful misconduct. The Veteran's service was otherwise honest, faithful, and meritorious CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA benefits are met. 38 U.S.C. §§ 101, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.102. REFERRED ISSUES As it relates to the current appeal, the Veteran's March 2013 claim for service-connected disability benefits was denied on the grounds that his discharge under other than honorable conditions is a bar to VA benefits. See March 2013 VA Form 21-526; see also December 2014 VA administrative decision. As discussed further below, the Board finds that a bar to VA benefits no longer exists. Given that the agency of original jurisdiction (AOJ) has not yet addressed the Veteran's service-connected disability claim on the merits, such is referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was in the United States Marine Corps from June 1979 to July 1983. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is of record. During the December 2020 Board hearing, the Veteran and his representative requested a 60-day continuance to obtain additional evidence in support of the current appeal, and waived review by the AOJ. In February 2021, the Veteran submitted additional evidence for the Board's consideration. The character of the Veteran's discharge is not a statutory or regulatory bar to the award of VA benefits. In order to qualify for VA benefits, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a); see also 38 U.S.C. § 101(2). In this case, the AOJ determined that the Veteran's discharge under other than honorable conditions is a bar to VA benefits on the basis of his absence without official leave for a continuous period exceeding 180 days. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6); see also December 2014 VA administrative decision. Factual Background Turning to the particular facts in this case, the Veteran enlisted in the United States Marine Corps and entered active duty at the age of 17. See DD Form 4, Enlistment Agreement. During the Veteran's initial year of service, proficiency evaluations generally reflected that the Veteran could be depended on to discharge regular duties thoroughly and competently. See Marine Corps Order P1070.12, Individual Records Administration Manual. Additionally, during the Veteran's initial year of service, conduct evaluations reflected that the Veteran had no offenses, and that there were no unfavorable impressions as to attitude, interests, cooperation, obedience, courtesy and consideration, or observance of regulations. Id. The Veteran was promoted to the grade of E-2 in December 1979. See Record of Promotions. In June 1980, the Veteran was awarded a Meritorious Mast for outstanding service. The commanding officer commended the Veteran on his performance of duties, military appearance, professionalism and positivity, enthusiasm, and motivation and dedication to duty. The Veteran was promoted to the grade of E-3 in December 1980. The Veteran's first record of disciplinary action was in August 1980. Although there is little information concerning the facts and circumstances surrounding the offense, the Veteran received nonjudicial punishment (NJP) for disobeying a lawful order to "take a run for Saturday." See Offenses and Punishments. In September 1980, the Veteran received NJP for being found asleep in the workplace, and for unauthorized absence from his appointed place of duty for a period of approximately 30 minutes. The Veteran was reported as AWOL for a period of approximately one day in August 1980. In November 1980, the Veteran received NJP for being disrespectful in language and communicating a threat to a noncommissioned officer, and for being found asleep on post. In February 1981, the Veteran was counseled concerning responsibility. In March 1981, the Veteran was counseled on obedience, attitude, cooperation, and respect. The Veteran was AWOL for a period of approximately four days from March 30, 1981 to April 2, 1981. In June 1981, the Veteran was convicted at summary court martial for falling asleep on post and disrespect towards a commissioned officer in March 1981, and for an unauthorized absence of approximately 14 days from May 26, 1981 to June 9, 1981. On September 17, 1981, the Veteran received NJP for unauthorized absence from a dental appointment, unauthorized absence from afternoon field day, and unauthorized absence for a period of approximately one day. On September 21, 1981 the Veteran was AWOL until on or about June 7, 1983 (624 days). The charge for the Veteran's unauthorized absence from September 21, 1981 to June 7, 1983 was referred to special court martial. On June 27, 1983, the Veteran request discharge in lieu of trial by court martial. The Veteran indicated that he did not desire to make a statement regarding his request for discharge. The commanding general approved the Veteran's request for discharge in lieu of trial by court martial with a characterization of service under other than honorable conditions, effective July 1, 1983. See also DD Form 214. In a January 2015 statement, the Veteran indicated that his discharge under other than honorable conditions had continued to trouble him since his separation from service. See correspondence received in June 2016. The Veteran reported that he could have been an outstanding Marine, and that he had intended to make the Marine Corps his career. The Veteran indicated that his service was initially honest, faithful, and meritorious. The Veteran suggested that events occurred in service that led him astray. See also August 2015 notice of disagreement; see also July 2017 VA Form 9. During the December 2020 Board hearing, the Veteran testified that things were very challenging during the period of time that he served, and that he had trouble processing what was going on. With respect to the offenses prior to his extended period of AWOL, the Veteran indicated that he experienced racial tensions and suggested that he was assaulted. See also October 1980 Emergency Care and Treatment medical record. The Veteran indicated he felt disenchantment with his leadership, and that he began to act out in a belligerent manner. Additionally, the Veteran indicated that he believed his behavior and decision-making abilities changed in service due to exposures to toxins in the water at Marine Corps Base Camp Lejeune. See Chronological Record (documenting the Veteran's service at Marine Corps Base Camp Lejeune). With respect to his period of extended AWOL from September 21, 1981 to June 7, 1983, the Veteran testified that did not return to his duty station because his significant other was experiencing mental illness. The Veteran's witness at the December 2020 Board hearing, L.T., testified that the Veteran went AWOL to take care of his significant other and his son that was born during the Veteran's unauthorized absence. The Veteran testified that he had joined the Marine Corps with a friend, and that he decided to turn himself into military authorities after speaking with his friend. In a statement received by VA in February 2021, Pastor S.D. reported that he and the Veteran had known each other since they were children and joined the Marine Corps together. S.D. reported that the Veteran was a person of integrity, compassion, and great character. S.D. reported that he believed the Veteran's extended period of AWOL was unintentional. S.D. reported that the Veteran was faced with returning to duty, or helping his significant other who had become mentally ill and unstable. S.D. reported that the Veteran chose to help his significant other through her ordeal. In a private psychological evaluation received by VA in February 2021, the psychologists noted that historical data confirmed that the Veteran was exposed to contaminated water with chemicals known as volatile organic compounds (VOCs) at Marine Corps Base Camp Lejeune. The providers reported that VOCs have been proven to cause neurobehavioral effects. The providers reported that the evidence of record was consistent with the Veteran exhibiting odd behavior following his exposure to VOCs that was not indicative of his life pre-service or his first year of service, as described above. The providers reported that such a radical shift in behavior was consistent with neurobehavioral effects from VOC exposure. Law and Analysis Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct. However, a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995). The term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. See 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Additionally, VA benefits are not payable where a former service member was released from service by reason of discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6). This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. The following factors are to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (i) the length and character of service exclusive of the period of prolonged AWOL; (ii) reasons for going AWOL, including consideration of family emergencies or obligations, the service member's age, cultural background, educational level and judgmental maturity; and (iii) whether a valid legal defense exists for the absence which would have precluded a conviction for AWOL. See 38 C.F.R. § 3.12(c)(6). Additionally, consideration is given to how the situation appeared to the person himself, and the person's state of mind at the time the prolonged AWOL period began. 38 C.F.R. § 3.12(c)(6)(ii). Insofar as service records document a history of offenses prior to his period of prolonged AWOL beginning on September 21, 1981, the Board notes that the Veteran did not commit any offenses during his initial year of service, and that he had received commendation on his performance of duties, military appearance, professionalism and positivity, enthusiasm, and motivation and dedication to duty. Such evidence supports a finding that the Veteran's service was otherwise honest, faithful, and meritorious prior to the offenses resulting in his discharge under other than honorable conditions. The Board finds the counseling and nonjudicial punishments received by the Veteran prior to his period of prolonged AWOL were for generally minor offenses. See also Middendorf v. Henry, 425 U.S. 25, 31-32 (1976) (nonjudicial punishment is an administrative method of dealing with the most minor of offenses). Additionally, the Board finds the Veteran credible to report that he was acting out in a belligerent manner in response to racial tensions and disenchantment with leadership. The Board finds that the Veteran's behavior of acting out does not demonstrate that the Veteran committed deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. In reaching the determination that the Veteran's offenses do not demonstrate willful misconduct, the Board has also considered the private psychological evaluation received by VA in February 2021, which reported the Veteran's offenses demonstrated a shift in behavior that was consistent with neurobehavioral effects from VOC exposure. In consideration of whether compelling circumstances warranted the Veteran's prolonged period of AWOL from September 21, 1981 to June 7, 1983, the Board finds the Veteran's initial year of service can be characterized as honest, faithful, and meritorious, and of benefit to the Nation. As discussed above, the Veteran did not commit any offenses during his initial year of service, and he received commendation on his performance of duties, military appearance, professionalism and positivity, enthusiasm, and motivation and dedication to duty. Additionally, the Veteran received a Meritorious Mast during this period of time, and attained the grade of E-3. In considering the Veteran's reasons for going AWOL, the Veteran alluded to racial tensions and disenchantment with leadership leading up to his prolonged unauthorized absence beginning on September 21, 1981. Additionally, the Veteran indicated that he felt forced to go AWOL to take care of his significant other that was mentally ill and unstable. The Board finds that the Veteran's reported reasons for going AWOL are credible. S.D., who grew up with the Veteran and joined the Marine Corps with the Veteran, attested to the Veteran's integrity, compassion, and great character. Such evidence lends support to the finding that the Veteran's reported reasons for going AWOL are credible. Based on the unique facts and circumstances of this particular case, the Board resolves reasonable doubt in favor of the Veteran in finding that compelling circumstances warranted his prolonged unauthorized absence beginning on September 21, 1981. The Board has considered the facts and circumstances described above in reaching this determination, as well as consideration of the Veteran's youth and judgmental maturity. Additionally, with respect to the Veteran's state of mind at the time the prolonged AWOL period began, the Board places weight on the private psychological evaluation in which the psychologists opined that the Veteran demonstrated impaired impulse control that was consistent with neurobehavioral effects from VOC exposure. In sum, based on the particular facts of this case and the evidence received in support of the Veteran's appeal, the Board finds that the bars to VA benefits under 38 U.S.C. § 5303 and 38 C.F.R. § 3.12 are not applicable. Accordingly, the basic eligibility requirement for status as a veteran and entitlement to VA benefits have been met. To this extent, the Veteran's appeal is granted. H.M. WALKER 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.