Citation Nr: 21028902
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 17-38 068
DATE: May 12, 2021

ORDER

The character of the appellant's discharge from service is a bar to entitlement to Department of Veterans Affairs (VA) benefits and the appeal is denied.

FINDINGS OF FACT

1. The appellant served on active duty from June 28, 1967 to December 6, 1974 but received an under Other Than Honorable conditions (OTH) discharge at separation.

2. During the appellant's active duty, he was absent without official leave (AWOL) for a continuous period of more than 180 days.

3. Compelling circumstances did not warrant the appellant's prolonged unauthorized absence.

4. 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 offenses.

CONCLUSION OF LAW

The character of the appellant's active service is a bar to VA benefits. 38 U.S.C. §§ 101, 5103, 5103A, 5107, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.159, 3.354.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant served on active duty from June 28, 1967 to December 6, 1974. He was discharged in lieu of court martial for misconduct, to include 1828 days of being Absent without Leave (AWOL) and given an under Other than Honorable (OTH) conditions discharge.

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2017 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California.

In March 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record.

1. Whether the appellant's character of discharge from service is a bar to VA benefits.

The appellant seeks recognition as a Veteran for VA purposes. The appellant contends that, despite his OTH Discharge, he should be entitled to VA benefits.

Relevant Law

In order to qualify for VA benefits, a claimant must first establish Veteran status, as defined under applicable statutory and regulatory definitions. Frasure v. Principi, 18 Vet. App. 379 (2004). The term Veteran is defined as a service member who was discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1. Where VA determines that a person's discharge from service was under dishonorable conditions, the payment of pension, compensation or dependency and indemnity compensation, based on that period of service, is barred. 38 C.F.R. § 3.12. The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a).

An OTH discharge is not necessarily tantamount to a dishonorable discharge and a bar to VA benefits. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12; Camarena v. Brown, 6 Vet. App. 565 (1994). It is dishonorable when a person is 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 person requested his 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, unless there were compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c).

Benefits are not payable where the former service member was discharged or released under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.

(i) Length and character of service exclusive of the period of prolonged AWOL. 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.

(ii) Reasons for going AWOL. Reasons 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 person himself or herself, 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.

(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities.

Additionally, a discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d).

A discharge because of one of the above-identified offenses will not be a bar if it is found that the person was insane at the time of committing the offense causing the discharge. 38 C.F.R. § 3.12(b). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed 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. 38 C.F.R. § 3.354; VAOPGCPREC 20-97 (1997), 62 Fed. Reg. 37955 (1997).

The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996).

Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service and character of discharge. VA does not have the authority to alter the findings of the service department; the claimant's recourse is with the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Harvey v. Brown, 6 Vet. App. 416, 424 (1994).

Once the evidence has been assembled, it is the Board's responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Appellant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual History

The appellant joined the United States Army on June 28, 1967, at the age of 20 years of age. He attended basic training and was awarded a Military Occupational Specialty (MOS) of 64B for Heavy Vehicle Driver. The appellant served in the Republic of Vietnam from September 1968 to August 1969. 

His DD-214 reflects a prolonged period of unauthorized absence. Specifically, the appellant was AWOL from November 12, 1969 to November 15, 1974. On November 15, 1974, he was returned to military control after being apprehended by civilian authorities. The appellant was AWOL for a duration of 1828 days.

Upon his return, the appellant was charged for his period of AWOL, terminated by apprehension, with a recommendation of prosecution at Special Court Martial.

The Appellant's service personnel records and service separation form show that, after consulting with military legal counsel, he requested a discharge under conditions other than honorable in lieu of trial by court-martial after being charged with violating Article 86 of the Uniform Code of Military Justice for his period of AWOL.

In his November 1974 request for discharge in lieu of court martial, the appellant offered an explanation for his periods of AWOL. Specifically, he stated that he had family difficulties, as well as property loss and vehicle accident, which led him to go AWOL. He also stated that "everything was going wrong for me...I just couldn't come back to the Army." He indicated that he considered returning to the Army on several occasions but decided against it so that he could remain with his new wife.

The General Court Martial Convening Authority (GCMCA) considered the appellant's assertions and, nonetheless approved the request for discharge in lieu of court martial. In doing so, the GCMCA ordered that the appellant's service be characterized as under Other Than Honorable conditions.

In April 1982, the Army Discharge Review Board (ADRB) considered the appellant's request for an upgrade to his OTH discharge. The ADRB reviewed the appellant's service records, ratings, and military history, to include his period of AWOL, as well as his contentions regarding the family situation which led him to decide to leave his unit without proper authorization and so remain absent for a total of 1828 days. The ADRB determined that the appellant's character of discharge was appropriate to his quality of service and denied his request.

In a March 2017 Administrative Decision, the RO determined that the appellant's discharge from active service from June 28, 1967 to December 6, 1974 was a discharge not under conditions other than dishonorable and was therefore a bar to VA benefits. That decision included a reference that there was no indication of insanity at the time of the offenses. The Board notes that the decision includes an erroneous notation that the appellant's service was honorable and not a bar to VA benefits.

In a January 2017 statement, the appellant provided his reasons for his prolonged period of AWOL. He stated

In June of 1967, I enlisted in the U.S. Army. I took basic training at Ft. Gordon, GA and AIT at Ft. Jackson, SC. My first duty assignment was at Ft. Stewart, GA. In February 1968 I returned home on leave and was married...In August of 1968 I went on a 30-day leave back home since I was on orders to go to Vietnam in September. I went to Vietnam and was initially assigned as a truck driver hauling heavy equipment...On January 28, 1969, I was in a convoy hauling 750 pound bombs. While in convoy a little 9-year-old girl ran across in front of my truck, I couldn't stop the truck as I was carrying 60,000 lbs. and I ran over the little girl. Although the accident was investigated and I was cleared of any fault, I have been tormented by the incident ever since...Since I enlisted (rather than was drafted) they tried to get me closer to home on reassignment from Vietnam but that didn't happen. I was subsequently stationed at Ft. Carson, CO and was given a 30-day leave to return home (and had to deal with a family situation). I was extremely upset, and I had to file for divorce. I returned to Ft. Carson and was given 10 additional days leave to straighten out some personal issues. 

I drove back to PA and wrecked my car and was so upset about everything (Vietnam, the accident, Hawaii, my (family situation), and the divorce) that I didn't return to Ft. Carson. Five years later the Military Police came to my workplace in PA and picked me up and took me to Ft. Dix, NJ. Since I had served my time honorably in Vietnam, they decided to settle for an undesirable discharge. I was fearful and ashamed to return to Ft. Carson and getting picked up was a relief. I enlisted and served my country well throughout my tour in Vietnam. I endured a lot of traumatic events while serving the U.S. Army in my early twenties and I didn't do everything right. I served honorably in combat and believe that I should be given the benefit of the doubt and awarded service-connected disabilities being sought.

The Veteran's testimony did not add anything substantively new to the above statement.

Analysis

After carefully reviewing the evidence of record, the Board finds that the character of the Appellant's discharge is a bar to his receipt of VA benefits, due to his prolonged period of AWOL without compelling circumstances, and his acceptance of an OTH discharge in lieu of trial by court-martial. 38 C.F.R. § 3.12(d). The evidence indicates that the appellant was AWOL for a duration of 1828 days. The Board notes that the appellant was discharged from service in December 1974 under other than honorable conditions; specifically, an administrative discharge due to conduct triable by court-martial. Therefore, the Appellant's discharge is dishonorable.

The Board finds that the Appellant's service personnel records clearly justify his OTH discharge from military service on the basis of going AWOL for a continuous period of 1828 days. Accordingly, the Appellant is statutorily barred from establishing entitlement to VA benefits because of his being AWOL for a continuous period of greater than 180 days. 38 C.F.R. § 3.12(c)(6). However, the Board will address the potential defenses to this statutory bar on the basis of the existence of compelling circumstances and insanity. See 38 C.F.R. § 3.12 (b), (c).

Because the appellant was discharged under other than honorable conditions as a result of being AWOL for more than 180 days, he is statutorily barred from receiving VA benefits. As outlined, however, an exception is outlined in 38 C.F.R. § 3.12(c)(6) that states that "[t]his bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence." The regulation outlines various factors to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Upon review of the facts of this case and with consideration to the outlined factors, the Board finds that compelling circumstances did not warrant the appellant's prolonged unauthorized absence during his period of active service.

As to the factor outlined in 38 C.F.R. § 3.12(c)(6)(i), regarding length of service exclusive of the periods of AWOL, the appellant's DD 214 reflects that he had two years, four months, and 14 days of total active service, which equates to approximately 867 days. The appellant's service records indicate that he was promoted twice, attaining the rank of Specialist-4 (SP4), with satisfactory or higher ratings. Overall, there is evidence indicating that the appellant's service, exclusive of the period of AWOL, was of quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

As to the factor outlined in 38 C.F.R. § 3.1(c)(6)(ii), regarding reasons for going AWOL, as outlined in detail above, the appellant asserts that he went AWOL as a result of marital and family problems. As such, this situation appears to be a type of family emergency provided for in 38 C.F.R. § 3.12(c)(6)(ii).

With respect to the provision that "[t]he reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity," the appellant was 20 years old at the start of the period of AWOL. Regarding cultural background, STRs referenced that he was born in the U.S., that his race was "Caucasian" and that his ethnic group was "none" or "Other." It is unclear to the Board what, if any, impact these factors had on the appellant's reasons for going AWOL.

As to education level, the Appellant completed high school in 1965. As to judgmental maturity, it is not entirely clear as to the level of judgmental maturity present during the relevant period. The appellant did, however, enter into marriage, rental agreements and vehicle purchases during his service. He also had been employed prior to his enlistment. Presumably, the appellant's judgmental maturity at the time could be considered average for his age.

With respect to the provision regarding "[h]ardship or suffering incurred during overseas service," the appellant asserts that he went AWOL after receipt of a "Dear John" letter from his wife and to obtain a divorce. The Board has "carefully and sympathetically considered" this hardship "in evaluating the [Veteran's] state of mind at the time the prolonged AWOL period began," discussed in more detail below.

As to the factor outlined in 38 C.F.R. § 3.12(c)(6)(iii), regarding if a valid legal defense exists for the absence which would have precluded a conviction for AWOL, this does not appear to be present in this case. In this regard, the Board notes that the appellant requested discharge for the good of the service and acknowledged that he may be discharged under other than honorable conditions. That the appellant requested this discharge rather than face administrative proceedings strongly suggests that he did not have a valid legal defense which would have precluded a conviction for being AWOL.

Overall, the Board has considered the outlined factors in 38 C.F.R. § 3.12(c)(6)(i)-(iii). The Board has also considered the appellant's reasons for going AWOL based on "how the situation appeared" to the appellant. The Board acknowledges that some of the outlined factors in 38 C.F.R. § 3.12(c)(6)(i)-(iii) weigh in favor of finding compelling circumstances for the appellant's period of prolonged AWOL, as discussed above. The Board finds, however, that, for the reasons outlined below, the overall evidence weighs against finding that there were compelling circumstances to warrant the appellant's period of prolonged AWOL.

The Board concedes that, based on family illness and/or death or other family obligation, some period of absence from work, to include the military, may be appropriate. It is unclear to the Board, however, why any such period of absence would need to be without leave. The appellant testified that he had requested and been granted leave on several occasions to deal with his family situation. Additionally, his command also granted leave for a financial situation. Furthermore, it appears that the appellant had been accruing leave during his service and could have used additional leave to address these issues on a short-term basis.

It is also significant that the appellant did not return to military control of his own volition. He was apprehended by civilian authorities. During his Board testimony, the appellant testified that he was employed and there is no indication of any attempts to contact military authorities to return to the Army, after the resolution of his marital difficulties. 

Facing court-martial charges, he met with legal counsel and acknowledged the effect that a request for discharge would have in his civilian life and on VA benefits. He decided to submit a request for discharge in lieu of court-martial. In doing so, he admitted his guilt to the offense of AWOL and waived all legal defenses to his misconduct.

The Board is sympathetic to the appellant regarding the difficult family situation that he had to endure while serving in the Army. However, the appellant's actions of remaining absent at the expiration of approved leave, without requesting additional leave, and remaining in an AWOL status until his apprehension by civil authorities, indicate a decision to permanently remain away from the Army.

Overall, for the reasons outlined above, the Board does not find that the reasons reported for going on prolonged AWOL presented compelling circumstances.

The Board also notes that 38 C.F.R. § 3.12(b) provides, essentially, that if a veteran was insane at the time of committing an offense causing discharge under that regulation (as relevant here, based on being AWOL for a continuous period of at least 180 days), this would not be a bar to VA benefits. Insanity has a specific definition for VA purposes, as outlined in 38 C.F.R. § 3.354. This definition provides that an insane person is one who exhibits due to disease: a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or 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. See also Zang v. Brown, 8 Vet. App. 246 (1995) (holding that the phrase "due to disease" applies to all three circumstances in 38 C.F.R. § 3.354(a)). 

The appellant and his representative have not presented any argument that any of the three circumstances in the regulation were applicable to the appellant at the time he was AWOL and the Board finds that the evidence does not otherwise indicate that any of the three circumstances are applicable. Here, the evidence of record does not suggest, nor has the appellant asserted that the appellant was insane as defined by VA regulation. 

In sum, the Board finds that the appellant was discharged from his period of active service under other than honorable conditions as a result of being AWOL for a continuous period of at least 180 days. The Board further finds that compelling circumstances did not warrant the appellant's prolonged unauthorized absence. As such, the Board concludes that VA benefits are not payable based on the appellant's period of active service. 38 U.S.C. § 5303; 38 C.F.R. § 3.12.

Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

Thomas H. O'Shay

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.