Citation Nr: 21024924 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-01 924 DATE: April 26, 2021 ORDER The character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. The appellant was discharged in September 1993 under other than honorable conditions as a result of absence without leave (AWOL) for a continuous period of at least 180 days. 2. The preponderance of the credible, probative evidence of record reflects that compelling circumstances did not cause the appellant’s prolonged unauthorized absence. 3. There has been no removal of any 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 character of the appellant’s military service discharge is a statutory bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty in the United States Army from January 1991 to September 1993. He was discharged under conditions other than honorable due to a period of continuous AWOL greater than 180 days and in lieu of trial by court-martial. The instant matter is on appeal from an August 2016 decision. In February 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. The appellant contends that he is entitled to VA benefits. 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). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the 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). 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). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). If a claimant was discharged for a period of AWOL of at least 180 continuous days, “compelling circumstances” may be weighed in order to determine if the prolonged absence was warranted. These compelling circumstances include: the length and character of service exclusive of the AWOL, reasons for AWOL, and a valid legal defense for the absence which would have precluded a conviction for AWOL. 38 C.F.R. § 3.12(c)(6). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12(d). Per the appellant’s statements associated with the claims file and the hearing before the undersigned, he excelled prior to his AWOL in both basic training and advanced individual training. While he entered service without dependents, he gained one dependent for whom he owed child support within his first year of service. According to the appellant, he applied for an allotment through the Army, but did not hear a response in an expeditious manner despite multiple attempts to follow up on the request. Feeling “betrayed” by the Army, he sought the advice of a retiring noncommissioned officer (NCO). The NCO purportedly told him that, hypothetically, if he left service, they would discharge him after 30 days. As a result, he packed his belongings and left the Army. He reported engaging in normal civilian activities, such as voting and obtaining civilian employment following his departure from the Army. After breaking off an engagement, he went out with a friend, and they were involved in a car accident. Civilian authorities responding to the accident identified the appellant as wanted by the Army, and he returned to military control following convalescence for his injuries. The personnel records associated with the claims file reflect that the appellant enlisted and served for approximately 11 months before going AWOL. His January 1990 enlistment examination did not note preexisting psychiatric issues. When he was found to be AWOL in November 1991, inspection revealed that his personal effects were missing from the company. His duty status was changed to AWOL effective December 3, 1991. In May 1993, he was apprehended by civilian authorities following a motor vehicle accident and hospitalization. Given his prolonged period of AWOL, there was a recommendation for a special court-martial empowered to adjudge a bad conduct discharge. In June 1993, the appellant requested a discharge for the good of the service in lieu of a trial by special court-martial. He declined a separation examination. The request for discharge was approved in August 1993, and he was formally discharged the following month. At the time of his enlistment, the appellant was approximately 22 years old. He reported a high school education. He enlisted for a minimum of three years and 19 weeks of active duty service. He had no prior disciplinary actions against him at the time of his request for discharge. The appellant believes that he was too young to comprehend the importance of his choices at the time of his decision to go AWOL. His chain of command was not as responsive as he desired, and he was living on a small paycheck due to his regular child support requirements. The appellant stated that he “not only continued [his] training, but held [his] legal responsibility of paying support for [his] dependent with very little income,” which was “very difficult.” While AWOL, he worked as a restaurant manager, and engaged in civic activities such as voting. He believes he has learned since this decision, and he gave all he could to the Army prior to his departure. In the present case, the appellant was AWOL from November 1991 to May 1993, a continuous period in excess of 180 days. Thus, a statutory bar to benefits is in place. After a thorough review of the medical and lay evidence of record, the Board finds that compelling circumstances did not justify the appellant’s prolonged AWOL, nor does the evidence establish that he was insane, per VA definition, at the time of his AWOL sufficient to lift the statutory bar to benefits. When considering “compelling circumstances,” regulation directs the Board to consider factors including the length and character of service exclusive of the period of AWOL, the reasons for going AWOL, and whether a valid legal defense exists for the absence. 38 C.F.R. § 3.12(c)(6). To the first factor, the appellant served for less than one year on a three-year contract prior to going AWOL. There is no indication of the record that he had previous nonjudicial punishment or other infractions. The period of AWOL lasted approximately 544 days. While he reported excelling in initial trainings, this period of time did not even amount to one third of his initial active duty obligation before his departure from service. Thus, his service exclusive of the period of AWOL was not of quality and length that it could be characterized as honest, faithful, and meritorious given his subsequent 544 days of AWOL. With respect to the second factor, the Veteran asserts that he had compelling reasons to go AWOL during service. During service, he reported that he left after his chain of command did not timely respond to his requests regarding an allotment after he fathered a child. The Veteran was 23 years old at the beginning of his period of AWOL. By his reports, he was able to succeed in the Army throughout training prior to his departure. The appellant described earning multiple commendations after boot camp and advanced individual training. He reported then acting as the driver for the Company Commander. He stated that he was “career-oriented” and a “model Soldier.” He also expressed a sincere understanding of his legal obligations to his dependent through child support payments. Following his departure, the appellant retained employment as a restaurant manager. In this regard, the appellant was of the appropriate age and maturity level to work diligently in the Army prior to his AWOL without incurring nonjudicial punishment or other infractions. The appellant was also able to attend schooling for his MOS, and he earned commendations for his work. He also endorsed good working relationships with others during service prior to his AWOL. However, when his chain of command failed to respond to approximately three inquiries about his allotment, he felt betrayed. He gave “110 percent” to the Army, but they could not do the same for him. As to the third factor, neither the Veteran nor his representative have asserted that a legal defense exists to preclude a conviction for AWOL. Similarly, the evidence of record fails to establish this element. As there is no indication that the absence could not be validly charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice, the third factor for consideration does not apply in this case. Upon review of the record, the appellant’s reason for going AWOL is not sufficiently compelling to warrant a removal of the statutory bar to benefits. Prior to his AWOL, the appellant, by his own reports, was able to succeed in Army training and earn commendations for his performance. He was of the appropriate age and judgmental maturity to understand how to conform his behavior to Army standards and excel in that system. When he fathered a child during training, he accepted his legal obligations willingly and paid child support despite his limited income. During his period of AWOL, he maintained full time employment with a degree of supervisory responsibilities as a restaurant manager, and he engaged in his civic duty by voting. The appellant did not go overseas despite the ongoing war at the time, and he framed himself as a career-oriented individual who sought years of service with the Army. The appellant went AWOL because he felt betrayed by the Army when his chain of command did not timely reply to his request for an allotment. While prompt communication is important, particularly given the appellant’s ongoing child support payments, there were other avenues of redress within the Army prior to simply abandoning his position. The hypothetical advice of the retiring NCO did not force the appellant out of the Army, nor was AWOL his only opportunity to, presumably, remediate this child support situation. The appellant asked three individuals in his chain of command only once each, and when he did not receive a prompt response, he went AWOL. Such is simply not compelling enough to justify going AWOL for well over one year. Additionally, the appellant did not return to the service of his own free will. But for the car accident, he would have continued working in the civilian sector without turning himself into the Army. He never expressed a desire to remediate his status during his AWOL, nor did he report attempting to initiate discharge proceedings while he was absent. While the Board reviews the appellant’s reasons for AWOL sympathetically, to include consideration of how the situation may have appeared from his perspective, such a perspective does not increase the urgency of his absence. The appellant admitted to having a very limited income after child support payments, but assumed this obligation knowing the gravity of the situation. When he left service, he was able to maintain full-time employment until the car accident and his return to military control. While waiting for a decision on an allotment may have been stressful for the appellant, his decision to go AWOL was grossly out of proportion to the situation he faced. If he truly sought discharge, he could have applied for a hardship discharge, or otherwise worked other avenues to aid in his financial situation. Thus, his reasons for going AWOL is not compelling, and the statutory bar to benefits remained in effect. The Board has considered if there are any other reasons to set aside the statutory bar to VA benefits, including because the appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). The appellant has not sufficiently asserted that he was insane at the time of the commission of the underlying offenses. When asked about his mental state, the most the appellant reported during his hearing before the undersigned is that he would call himself insane for “jump[ing] out of perfectly good airplanes at the age of 21.” The appellant’s service treatment records do not note complaints or diagnoses of psychiatric conditions. He declined a separation examination prior to discharge. He has not claimed significant mental health symptoms outside of age-related maturity concerns. Thus, insanity has not been raised by either the appellant or the record in the present case. (Continued on the next page) Similarly, there is no indication that the appellant received an upgrade to the character of his discharge by a discharge review board. The appellant stated in the hearing before the undersigned that he had not sought an upgrade with his service department, and it was unclear if he would do so at all. The record does not reflect such an application. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the appellant’s character of discharge or evidence showing the appellant was insane at the time of his offense. The appellant may petition to upgrade the character of his discharge with his service department; however, absent a finding of insanity in this case, the determination of the appellant’s service department is controlling. See 38 C.F.R. § 3.203; Spencer v. West, 13 Vet. App. 376, 380 (2000). MARTIN B. PETERS Acting 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.