92 Decision Citation: BVA 92-19069 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-51 651 ) DATE ) ) ) THE ISSUE Whether the appellant's character of discharge from service is a bar to Department of Veterans Affairs (VA) benefits, except health care under 38 C.F.R. § 3.360. REPRESENTATION Appellant represented by: Department of Veterans Affairs, Virginia WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from decisions of the VA Regional Office in Roanoke, Virginia (RO). The appellant had active service from October 1966 to September 1970 when he was discharged from service under conditions other than honorable. A May 1991 administrative decision determined that the appellant's period of service was dishonorable for VA benefit purposes, except health care for service-connected disabilities. A notice of disagreement was received in June 1991, and a statement of the case was issued in July 1991. A VA Form 1-9 (Appeal to Board of Veterans' Appeals) was received in August 1991 with a request for a hearing before the BVA. The appellant's representative at the Virginia Department of Veterans Affairs submitted a VA Form 1-646 (Statement of Accredited Representation in Appealed Case) in December 1991. The RO certified the issue on appeal and the case was received at the BVA in December 1991. A hearing was held before a member of the BVA in Washington, D.C., in April 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. He maintains, in substance, that the character of his service between October 1966 and October 1969 was honorable and should not be a bar to VA benefits. He relates that there was no pattern of willful and persistent misconduct prior to the date he would have been eligible for a complete separation from his initial enlistment, but does acknowledge receiving one Article 15 disciplinary action prior to that date, as well as one period of being absent without leave (AWOL). It is asserted that instances of misconduct after October 1969 should not be used to demonstrate willful and persistent misconduct for the period of service prior to October 1969. Reference is made to the provisions of M21-1 (Adjudication Procedure), § 14.01(i) as supporting this contention and position. Therefore, a favorable determination has been requested. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C. § 7104 (1992), it is the decision of the Board following review of all evidence in the appellant's claims file that the evidence does not support the appellant's claim that the character of his discharge from service is not a bar to VA benefits, except health care for service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant enlisted in October 1966 for a period of three years and would have been eligible for an unconditional separation from service on October 20, 1969. 3. The appellant received a conditional discharge in December 1968 to reenlist for a period of six years, and would have been eligible for an unconditional separation from service on December 26, 1974. 4. The appellant was discharged from service in September 1970 for the good of the service under conditions other than honorable. 5. The appellant's discharge from service was due to willful and persistent misconduct. CONCLUSION OF LAW The appellant's character of discharge from service is a bar to VA benefits, except health care for service-connected disabilities. 38 U.S.C. §§ 101(2)(18), 5107 (1992); 38 C.F.R. §§ 3.12(a)(d)(4), 3.l3, 3.15, 3.360 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, we find that the appellant's claim is "well grounded" within the meaning of 38 U.S.C. § 5107(a) (1992). That is, we find that he has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. We are also satisfied that all relevant facts have been properly and sufficiently developed. The basic facts in this case are not in dispute. The appellant enlisted in the United States Army in October 1966 for a period of three years and would have been eligible for an unconditional separation from service on October 20, 1969. Instead, the appellant received a conditional separation from service in December 1968 to permit him to reenlist for a period of six years. He then would have been eligible for an unconditional separation on December 26, 1974, but as a result of several periods of being AWOL, he received a discharge in September 1970 under conditions other than honorable. It is contended that a pattern of willful and persistent misconduct was not demonstrated prior to October 20, 1969, the date the appellant would have been eligible for an unconditional separation from service, and relying on M21-1 § 14.01(i), it is asserted that the appellant's service between October 1966 and October 1969 was honorable, and therefore, not a bar to VA benefits. Were that the situation in this case the appellant would prevail, but we believe that the facts do not support this position. What is overlooked, put simply, is that on October 20, 1969, the appellant had not completed his period of obligated military service. The appellant's pattern of misconduct began in July 1969 with a nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for failure to repair. Admittedly a minor offense which would not, by itself, constitute willful and persistent misconduct. On August 2, 1969, the appellant went AWOL until October 19, 1969, and was in civilian confinement until October 21, 1969, a period of 81 days. Those 81 days are not counted in computing the appellant's active service, 38 C.F.R. § 3.15, and the appellant essentially had an additional 80 days of service to perform beyond his separation date of October 20, 1969, due to his time lost. Seven days of countable service were performed before the appellant again went AWOL on October 29, 1969, to December 7, 1969, for an additional 40 days of time lost. Thus, when the appellant's AWOL ended on December 7, 1969, he still had 73 days remaining on his period of obligated military service to be eligible for a complete separation from service. The appellant then served 63 days before again going AWOL on February 9, 1970, to May 8, 1970, a period of 86 days. Seven days were then credited to the veteran's obligated period of service before he went AWOL on May 16, 1970, to June 2, 1970, 18 days. He was in confinement from June 4, 1970, to June 22, 1970, and AWOL from June 25, 1970, to July 15, 1970. It is clear from this recitation of the dates the appellant served and the time he lost that he never completed his three-year obligation of service until well past the date he was originally eligible for an unconditional separation from service in October l969. As such, all of the appellant's periods of AWOL can be considered in determining whether his discharge was due to willful and persistent misconduct. Accordingly, we conclude that to be the case. ORDER The appellant's character of discharge from service is a bar to VA benefits, except health care for service-connected disabilities, and the benefit sought on appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. ROBERT D. PHILIPP FRANCIS F. TALBOT Continued on Next Page NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.