Citation Nr: 21007005 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-09 943 DATE: February 8, 2021 ORDER The Appellant’s character of discharge is a bar to the receipt of VA benefits and the appeal is denied. FINDINGS OF FACT 1. The Appellant was discharged from active duty service in December 1972 following a period of unauthorized absence without leave (AWOL) for 322 days. 2. The Appellant’s character of discharge was upgraded under the Department of Defense (DOD) special discharge review program to a discharge under honorable conditions (general). The character of discharge was upgraded by a discharge review board established under 38 U.S.C. § 1153. 3. The character of discharge upgraded by a discharge review board established under 38 U.S.C. § 1153 removed all regulatory bars under 38 C.F.R. § 3.12(d) but did not remove any statutory bars under 38 C.F.R. § 3.12(c). 4. Compelling circumstances did not warrant the Appellant’s prolonged unauthorized absence. 5. There has been no removal of any statutory bar to VA benefits via an upgrade to the Appellant’s character of discharge or evidence showing that the Appellant was insane at the time of his offense. CONCLUSION OF LAW The Appellant’s character of discharge remains a bar to the receipt of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant had active service in the United States Army from July 1969 to December 1972, with 652 days lost due to AWOL (absence without leave) periods from February 11, 1970, to June 4, 1970; from June 23, 1970, to June 30, 1970; from July 1, 1970, to October 5, 1970; from February 21, 1971, to June 11, 1971; and from July 30, 1971, to June 15, 1972. The service personnel records indicate that the Appellant received a discharge under other than honorable conditions based upon multiple prolonged incidents of AWOL, and severe alcoholism and admitted drug usage. This matter is on appeal from a December 2013 RO administrative decision. In March 2019, the Board reopened and denied the issue presently on appeal. In October 2019, the Court of Appeals for Veterans Claims vacated the Board denial pursuant to a Joint Motion for Partial Remand. The Board remanded this issue in March 2020 in order to obtain additional evidentiary development as indicated by the Joint Motion. The case was subsequently returned to the Board for readjudication. In September 2020, the Board remanded the appeal to the RO for further development. The Board finds that there has been substantial compliance with the development requests. The Appellant appeared before the undersigned Veterans Law Judge at a hearing in August 2018 to present testimony on the issue on appeal. The hearing transcript is of record. 1. Whether the Appellant’s character of discharge is a bar to the receipt of VA benefits. The Appellant seeks recognition as a “Veteran” for VA purposes. For VA 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). That is a threshold question to be answered in every claim for VA benefits concerning the adequacy of a claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars found in 38 U.S.C. § 5303(a), also listed in 38 C.F.R. § 3.12(c); and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). As is relevant here, the statutory bars to benefits included in 38 C.F.R. § 3.12(c) include by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave, also known as AWOL, for a continuous period of at least 180 days. The Appellant entered service in July 1969. The service personnel records document AWOL periods from February 1970 to June 1970, July 1970 to October 1970, February 1971 to June 1971, and July 1971 to June 1972, for a total of 652 days lost. The last of the AWOL periods lasted for 322 days. Therefore, there is a statutory bar to benefits listed in 38 C.F.R. § 3.12(c) that is applicable in this case. The Board acknowledges that the Appellant received a clemency discharge under Presidential Proclamation 4313 in October 1975 and an upgrade to a general discharge, under honorable conditions, under the Department of Defense’s Special Discharge Review Program (SDRP) in June 1977 as shown by a DD Form 2067 dated in June 1977 and a DD Form 215 dated in October 1975. The Army then affirmed the SDRP upgrade on an individual case basis, applying uniform standards in August 1978, as shown in Department of the Army correspondence dated in August 1978. However, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under 38 C.F.R. § 3.12: (1) The President’s directive of January 19, 1977 implementing Presidential Proclamation 4313 of September 16, 1974; (2) the Department of Defense’s (DOD) Special Discharge Review Program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977 that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. 38 C.F.R. § 3.12(h). Moreover, 38 C.F.R. § 3.12(f) specifies that an honorable or general discharge issued prior to October 8, 1977, where the upgrade to a general discharge occurred in June 1977, would set aside any bar to benefits imposed under 38 C.F.R. § 3.12(c) or 38 C.F.R. § 3.12(d), except the bar to benefits derived by reason of the sentence of a general court martial, but specifies that the upgraded discharge must be issued under authority of a discharge review board established under 10 U.S.C. § 1553, and expressly does not include those listed in 38 C.F.R. § 3.12(h), described above. The Appellant’s upgraded discharge was issued under DOD’s Special Discharge Review Program, as is explicitly stated on the Appellant’s revised DD Form 214 and in the Army’s August 1978 correspondence. Therefore, the upgraded discharge is not sufficient to remove any bar to benefits based on the character of discharge. Although the Army Discharge Review Board, established under 10 U.S.C. §1553 then affirmed the SDRP upgrade after October 8, 1977, an honorable or general discharge issued after that date sets aside only the regulatory bars to benefits imposed under 38 C.F.R. § 3.12(d), to include willful and persistent misconduct, but not the statutory bars to benefits imposed under 38 C.F.R. § 3.12(c). 38 C.F.R. § 3.12(g). Despite the Appellant’s upgraded discharge status to general, under honorable conditions, that does not set aside the bar to benefits created by a discharge issued as a result of a continuous period of AWOL for greater than 180 days, as is shown here. Consequently, there are only two possible exceptions to the Appellant being barred from receiving VA benefits: if the Veteran had compelling circumstances for the period of prolonged AWOL or if the Veteran is shown to have been "insane" at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). The bar to benefit entitlement will not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). The length and character of service, exclusive of the period of prolonged AWOL, and the reasons for going AWOL are to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious, and of benefit to the Nation. 38 C.F.R. § 3.12(c)(6)(i). Reasons for going AWOL which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person’s age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the claimant, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person’s state of mind at the time the prolonged AWOL period began. 38 C.F.R. § 3.12(c)(6)(ii). In this case, the Board cannot find that the Appellant’s service outside of the prolonged AWOL from July 1971 to June 1972 was honest, faithful and meritorious. Instead, the record shows four additional, although individually shorter, periods of absence totalling approximately 330 days. In fact, in the period of service from July 31, 1969, to December 6, 1972, the Veteran lost 652 total days due to AWOL. Prior to the beginning of the July 1971 period of AWOL, the Veteran had already accrued approximately 320 days lost of AWOL, which is strong evidence against a finding that the service was otherwise honest, faithful and meritorious, and of benefit to the Nation. The Appellant was 19 at the time he entered service, 20 years old when he first went AWOL, and 21 years old when he entered the last prolonged period of AWOL prior to his discharge. He was 23 years old at the time of his discharge. He had no college education but came from a military family where his father and two brothers also served, as shown in the January 2015 hearing transcript. The Appellant has described the reasons for his AWOL periods in general as relating to alcoholism, drug addiction, and problems in his family. He describes the hospitalization of his father, and the death of two aunts, his grandmother, and his grandfather during his service in statements and the hearing transcript. The Appellant has also described racial tension within his unit in Vietnam, and the stress of combat in Vietnam as reasons for the AWOL periods. However, the Board notes that the Appellant’s initial three AWOL periods occurred before the service in Vietnam. There is also conflict in the record as the Appellant described experiencing racial problems in Vietnam at the DRO hearing in January 2015, but at the time of the discharge proceedings in September 1972 stated, “I got along with the guys in Vietnam real good.” As to the state of the Appellant’s mind at the time of his AWOL period, the Board gives more probative weight to the contemporaneous testimony as opposed to that given more than forty years after the fact. Although the Board sympathizes with the reported deaths in the Appellant’s family occurring during service, those are alleged to have occurred during prior periods of AWOL, not during the final prolonged absence from July 1971 to June 1972. The Appellant has not described a specific family emergency or obligation leading to the final prolonged absence period at the heart of the present appeal, rather only the general description of his father’s continued drinking problem. The father’s drinking problem and its impact on the family is described as a general problem with no specific reason given for why that required the Appellant’s absence from service for 322 days from July 1971 to June 1972. The Appellant cites his own alcohol and drug use as a primary reason for his AWOL, and his representative has raised that his addiction issues could be secondary to the stress of combat or posttraumatic stress disorder (PTSD). At the August 2018 hearing, when asked “Do you feel you were having any mental or emotional issues at the time [of AWOL],” the Appellant responded, “I really don’t....” The Board reiterates that the pattern of AWOL behavior began prior to the Appellant’s tour in Vietnam and any incident of combat-related stress. Therefore, the Board has also considered whether a valid legal defense exists for the Appellant's period of AWOL. The Board finds that the preponderance of the evidence is against a finding that a legal defense exists. Thus, considering the Appellant’s service with multiple periods of AWOL, the lack of competent and credible reasons for going AWOL, and the lack of a valid legal defense to preclude a conviction for AWOL and subsequent desertion, the Board finds there are not compelling circumstances that act as a defense against the statutory bar. The remaining defense to the statutory bar is if the Veteran was insane, under 38 C.F.R. § 3.354, at the time of the misconduct. After reviewing the evidence, the Board finds that the evidence does not demonstrate that the Appellant was considered "insane" as defined under 38 C.F.R. § 3.354. In the July 1969 enlistment physical examination, the Appellant noted no nervous conditions. In a June 1972 separation examination, the Appellant denied any psychiatric disorders, complaints, or symptoms. The service examiner made no clinical findings of any psychiatric condition. In August 1972, the Veteran received mental health treatment for insomnia and anxiety. The record also shows that the Appellant was psychiatrically evaluated near the time of his discharge from service in August 1972 and diagnosed only with severe inadequate personality and habitual alcoholism at that time. No other mental health diagnosis was made. In June 2020, the Appellant was provided a VA mental disorders examination on the issue of sanity. The examiner diagnosed Posttraumatic Stress Disorder (PTSD). On the issue of sanity at the time of the Appellant’s misconduct, the examiner opined that the Appellant was sane at the time of the misconduct. However, the examiner did not provide a sufficient rationale, and that examination is inadequate for adjudication purposes. In December 2020, the RO obtained a VA mental disorders addendum opinion on the issue of sanity. On the issue of sanity at the time of the Appellant’s misconduct, the examiner opined that the Appellant was sane at the time of the misconduct. Specifically, the examiner opined that Acknowledging an understanding of the following definition of “insanity” pursuant to VA regulations, it is my opinion that the Veteran was not insane when he committed the violation of AWOL on five occasions prior to his discharge from the military. Per 1972 proceedings, the Veteran reported that he went AWOL as a result of psychosocial stressors and substance abuse. Per 8/7/1972 Report of Psychiatric Evaluation, “Individual was and is responsible, both to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings” which indicates that he could understand right from wrong at that time. Per 6/26/2020, a behavioral health medical opinion indicated that the Veteran was not insane at the time of his multiple AWOLs. There was no evidence found in the record to contradict this opinion. In this case, the Board assigns that opinion significant probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The December 2020 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Appellant’s service personnel and medical records, and a review of the Appellant’s in-service history, to include the history of alcohol-related misconduct and the diagnosed PTSD. The examiner provided a thorough rationale with supporting evidence for the opinion as to why the Appellant’s misconduct was not due to insanity. Furthermore, there is no contrary medical opinion of record. The Board thus finds that the December 2020 opinion is dispositive of the issue of sanity. The Appellant himself is not competent to attribute the conduct in service to be the product of insanity. The weight of the evidence establishes that the Appellant was sane during his period of service. Although the Appellant asserts that he had PTSD during that time, or some other psychiatric disability, the evidence does not demonstrate that the Appellant was insane as defined by 38 C.F.R. § 3.354(a). A VA mental status addendum opinion proffered in December 2020 found that the Appellant was sane at the time of his misconduct. There is no competent evidence to the contrary to support the Appellant’s claim. The evidence does not indicate that the Appellant had a psychosis or was insane during service. The Board finds that the Appellant’s December 1972 discharge under other than honorable conditions resulted from a period of prolonged AWOL, which was not due to compelling circumstances; and the Appellant was not insane for VA purposes at the time he committed the offenses resulting in his discharge. Therefore, the Board concludes that VA benefits are not payable based on the Appellant’s period of service from July 1969 to December 1972. The character of discharge for that period of service is a bar to benefits based on a continuous period of AWOL for over 180 days. 38 C.F.R. § 3.12(c)(6). The Board finds that the preponderance of the evidence is against a finding that the Veteran’s character of service qualifies for entitlement to VA benefits. Therefore, the underlying claims for benefits remain denied as the character of the Veteran’s service is a bar to VA benefits. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). HARVEY P. ROBERTS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.