Citation Nr: 22010902 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-19 858 DATE: February 24, 2022 ORDER Revision of the September 1984 administrative decision finding the Appellant is barred from receiving Department of Veterans Affairs (VA) benefits based on clear and unmistakable error is denied. FINDINGS OF FACT 1. The correct facts were before the adjudicator at the time of the September 1984 administrative decision finding the Appellant is barred from receiving VA benefits. 2. Any error present in the September 1984 administrative decision is not undebatable. 3. VA correctly applied the relevant regulations in effect at the time of the decision. CONCLUSION OF LAW The criteria for establishing clear and unmistakable error in the September 1984 administrative decision finding the Appellant is barred from receiving VA benefits have not been met. 38 U.S.C. § 5019A; 38 C.F.R. §§ 3.12, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty with the United States Army from June 1968 to August 1974; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. The Board notes the Appellant appeared at a Board hearing in March 2021 to offer testimony regarding this appeal; the transcript of this hearing is of record and will be considered in the final decision in this appeal. The Veterans Law Judge who held that hearing is no longer with the Board and therefore cannot participate in the final decision. In December 2021, the Board offered the Appellant an opportunity for a new hearing, which he declined in January 2022. Therefore, the Board will proceed on the merits of the claim without a second hearing, as requested. Whether clear and unmistakable error exists in the September 1984 administrative decision finding the Appellant is barred from receiving VA benefits Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE); only if CUE is found will the prior rating decision be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing VA benefits, a decision implementing the reversal of a prior decision on the grounds of CUE has the same effective date as the corrected decision had. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). There is a three-part test for CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (claimant must show an error that would manifestly change the outcome of a prior decision). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313. "[E]ven where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo, 6 Vet. App. at 43-44. In other words, when there is evidence both supporting and against a previous determination, it is impossible for the claimant to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). Allegations that a previous adjudication improperly weighed and evaluated the evidence of record can never rise to the stringent definition of CUE. The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Russell, 3 Vet. App. at 313-14. Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. The Board first notes that, when the Appellant filed the CUE claim in March 2014, he made a specific claim that VA had not applied the relevant regulation correctly. He did not file any new claim for benefits, unlike his claim for service connection for diabetes mellitus filed in October 2007 or for education benefits filed in December 1983. Therefore, the Board does not find the March 2014 filing to be a claim to reopen any underlying claim for benefits; rather, it is solely a CUE claim. The Appellant contends that the September 1984 administrative decision finding he is not entitled to VA monetary benefits or healthcare contains CUE. Specifically, the Appellant asserts that VA misapplied section 3.12 of the regulations when it found that subsections 3.12(c) and 3.12(g) barred him from the receipt of benefits, because, he asserts, there were compelling circumstances to warrant his prolonged period of absence without official leave (AWOL). Subsection 3.12(c) provides that benefits are not payable where, among other circumstances, the former servicemember was discharged under other than honorable conditions as a result of being AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). Nonetheless, this bar to benefit entitlement will not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. Id. The regulation outlines three factors for use in determining whether there are compelling circumstances: (i) the length and character of service, exclusive of the period of prolonged AWOL; (ii) the reasons for going AWOL; and (iii) whether a valid legal defense exists for the absence which would have precluded conviction for 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. 38 C.F.R. § 3.12(c)(6)(i). Reasons for going AWOL entitled to consideration include family emergencies or obligations, and the reasons should be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. 38 C.F.R. § 3.12(c)(6)(ii). Subsection 3.12(c) also specifies that the bar to benefits is applicable to persons whose discharges were upgraded prior to October 8, 1977, in certain special discharge review programs implemented in January 1977 and April 1977. Subsection 3.12(g) provides that a general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. § 1553, in certain circumstances, sets aside a bar to benefits imposed under subsection 3.12(d), but not any bar imposed by subsection 3.12(c). The substance of these subsections has not changed since September 1984. At the time of the September 1984 administrative decision, the record of evidence showed the Appellant entered active duty in June 1968. Prior to a tour in the Republic of Vietnam from November 1969 to October 1970, the Appellant's service personnel records reflect generally good marks, including a nomination to attend the U.S. Military Academy Preparatory School. The records indicate nonjudicial punishment for two minor offenses in September 1968 and August 1969. In June 1970, he was awarded the Army Commendation Medal for a portion of his service in Vietnam. The Appellant's service personnel records note five periods of AWOL: a period of four days from August 12, 1970, to August 15, 1970; a period of two days from January 6, 1971, to January 7, 1971; a period of five days from January 14, 1971, to January 18, 1971; a period of 24 days from February 1, 1971, to February 24, 1971; and a period of 1,178 days from March 1, 1971, to May 21, 1974. The records reflect the Appellant was apprehended by civilian authorities in May 1974 and returned to Army control. In June 1974, the Appellant requested a discharge for the good of the service. In support of his request, he submitted a statement explaining that, when he returned home on leave in October 1970, his wife asked him for a divorce and took custody of their young son. He reported the divorce became final in January 1971, when his periods of AWOL began, as he attempted to save his marriage and to cope with the emotional aspect of it ending. He reported feeling he was not emotionally stable enough to be a good soldier, and in March 1971, left his post permanently. The discharge was issued in August 1974 with an other than honorable characterization. In April 1983, the Appellant applied to the Army Discharge Review Board (ADRB) for review of his discharge. In September 1983, the ADRB determined the discharge was proper and declined to change the reason for separation, but did upgrade the character of the service to general, under honorable conditions. In the September 1984 administrative decision, the Agency of Original Jurisdiction (AOJ) noted the Appellant's other than honorable discharge after several periods of AWOL, as well as the ADRB's upgrade of his discharge to under honorable conditions. The Appellant had not furnished a statement of compelling circumstances with his claim for educational benefits, but the AOJ took note of the Appellant's June 1974 written statement in support of his request for discharge, which detailed marital difficulties and a divorce that caused a change in his attitude toward life. The AOJ also found that there was no evidence of insanity, which would lift any bar in section 3.12. See 38 C.F.R. § 3.12(b). The Appellant contends that subsection 3.12(g) is not applicable to him because he is not barred under subsection 3.12(c), because the factors for determining whether there are compelling circumstances are in his favor. He asserts that the length and character of his service exclusive of the period of prolonged AWOL was honest, faithful, and meritorious, noting that he completed a tour in Vietnam and was awarded the Army Commendation Medal. He further asserts that his reason for going AWOL was a family emergency, given that his wife was divorcing him. The Appellant contends the AOJ only took into account evidence regarding whether he was experiencing insanity at the time of the prolonged period of AWOL. Finally, the Appellant also argues that the bar in subsection 3.12(c) is not applicable to him because it specifies discharges upgraded in certain programs prior to October 8, 1977, and his discharge was upgraded by the ADRB in 1983. The Board finds the evidence does not establish that CUE exists in the September 1984 administrative decision. First, the Board finds that the correct facts were before the adjudicator at the time of the September 1984 administrative decision. Although the Appellant argues that the AOJ only considered evidence regarding insanity, the administrative decision clearly contemplates the Appellant's description of his divorce, including this information in the recitation of evidence regarding whether there were compelling circumstances to warrant the long period of AWOL. The administrative decision also took into consideration the Appellant's service personnel records, as it notes several periods of AWOL and the written statement cited was included in the personnel records. The Appellant has not presented any evidence that was available at the time of the September 1984 administrative decision that was not considered in making that determination. Next, the Board finds that any error present in VA's determination that there were not compelling circumstances to warrant the prolonged unauthorized absence is not undebatable. See Russell, 3 Vet. App. at 313. Although the Appellant asserts that there were compelling circumstances in his case, as he was going through a divorce and losing custody of his young son, the AOJ weighed that evidence against the Appellant's multiple periods of AWOL, including one prolonged period of AWOL from which he did not surrender but was apprehended by civilian authorities, and found that the Appellant's personal circumstances were not compelling to warrant the prolonged period of absence. There is evidence both supporting and against VA's finding that there were not compelling circumstances in this instance; therefore, the Appellant cannot succeed in showing that any error in this finding is undebatable. Regarding the Appellant's upgraded discharge, the Board finds VA correctly applied subsection 3.12(g). After the AOJ weighed the evidence available and concluded that there were not compelling circumstances to warrant the prolonged unauthorized absence, the bar to payment of benefits in subsection 3.12(c) became applicable to the Appellant. Under subsection 3.12(g), a bar imposed by subsection 3.12(c) is not lifted by a general discharge issued by the ADRB, which is a discharge review board established under 10 U.S.C. § 1553. Because the 3.12(c) bar was applied to the Appellant based on VA's findings, subsection 3.12(g) became applicable as well. The Appellant's argument that subsection 3.12(c) is only applicable to discharges upgraded prior to October 8, 1977 is a misreading of the regulation. While subsection 3.12(c) does indicate that the bar still applies to discharges upgraded in certain discharge review programs prior to October 8, 1977, subsection 3.12(g) unambiguously indicates that the bar imposed in 3.12(c) also continues to apply to discharges upgraded by discharge review boards established under 10 U.S.C. § 1553. For these reasons, the Board finds the September 1984 administrative decision does not contain clear and unmistakable error, and revision is not warranted. As a final note, the Board observes this denial is not the final recourse available to the Appellant. Although the ADRB's upgrade of the Appellant's discharge is not sufficient to lift the bar as this board was established under 10 U.S.C. § 1553, an affirmance of the upgrade by the Army Board for the Correction of Military Records would set aside the bar, as this board was established under 10 U.S.C. § 1552. See 38 C.F.R. § 3.12(e) (discharge upgrade issued through a board for correction of records is final and conclusive on VA). Further, the Appellant could file new and material evidence to reopen the October 2007 service connection claim for diabetes mellitus and thereby seek review of the September 1984 determination regarding status as a veteran as an element of the service connection claim. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.