Citation Nr: 0005866 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-33 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the claimant's discharge for the period of service from September 1969 to September 1972 was under other than honorable conditions so as to preclude entitlement to Department of Veterans Affairs (VA) benefits. 2. Whether termination of the claimant's nonservice- connected disability pension benefits was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The appellant had active duty training from March to September 1964 and active service from September 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the VA Regional Offices in St. Petersburg, Florida, and Los Angeles, California. The appeal was remanded by the Board in May 1997. FINDINGS OF FACT 1. The appellant was discharged under other than honorable conditions after being absent without leave, beginning in April 1971, for a period greater than 180 days and it is not shown that there were circumstances which would have warranted this prolonged, unauthorized absence, or that the appellant was insane at the time of commission of the offense. 2. The appellant's length and character of service cannot be characterized as honest, faithful, and meritorious and of benefit to the nation. 3. In July 1977 the appellant's military discharge was upgraded to under honorable conditions (general) under the Department of Defense Discharge Review Program (Special). 4. A June 1978 directive reflects that the Army Discharge Review Board determined that the appellant's previously upgraded discharge was not affirmed under the pertinent uniform standards. 5. The appellant is not a veteran who had active military service under conditions other than dishonorable and he was not disabled as a result of his active duty training. CONCLUSIONS OF LAW 1. The 1977 upgrade of the appellant's discharge to under honorable conditions (general) under the Department of Defense Discharge Review Program (Special) did not remove the statutory bar imposed by 38 U.S.C.A. § 5303(a) (West 1991) and 38 C.F.R. § 3.12(c) (1999). 38 U.S.C.A. § 5303(e); 38 C.F.R. § 3.12(h). 2. The appellant was discharged from active service in September 1972 by reason of misconduct including an unwarranted and unauthorized absence of more than 180 days and he was not insane at the time of this offense. 38 U.S.C.A. §§ 101, 5303 (West 1991); 38 C.F.R. § 3.12 (1999). 3. The criteria for basic eligibility for VA pension benefits have not been met. 38 C.F.R. §§ 3.1(d), 3.3, 3.6 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Character of Discharge "A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran." Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). A discharge or release because of an absence without official leave (AWOL) for a continuous period of at least 180 days is considered to have been issued under dishonorable conditions unless there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). One of the appellant's primary contentions is that his discharge has been upgraded. "Generally, a decision by a service department discharge review board to upgrade a person's discharge to honorable or general is sufficient to set aside any bar to VA benefits except a discharge pursuant to a general court martial." D'Amico v. West, 12 Vet. App. 264, 266 (1999). An upgrade under the special discharge review program that became effective, April 5, 1977, is an exception to this rule. D'Amico at 267. For the upgrade to entitle a person to VA compensation or pension benefits it must have been based on a case-by-case review. Id. Following an upgrade by a special discharge review program a second separate determination must be made and if that decision is "not favorable, the person would not be entitled to VA benefits." Id. The appellant's representative has requested that the appeal again be remanded in an attempt to obtain the information requested in the Board's May 1997 remand, citing Stegall v. West, 11 Vet. App. 268 (1998). The record reflects that, on four separate occasions, the RO has attempted to obtain additional information pursuant to the May 1997 remand. Stegall is distinguished from the present case in that Stegall involved an increased rating that was well grounded. In the present case the burden is on the appellant to establish by a preponderance of the evidence that he has attained the status of veteran and he has not yet submitted a well-grounded claim. See Roberts v. West, 13 Vet. App. 185 (1999). The Board further concludes that a careful reading of all of the evidence of record, in its proper context, resolves the queries that were raised in the May 1997 remand. The appellant's DD Form 214 reflects that beginning in late April 1971 the appellant was AWOL through July 1972, a period greater than 180 days. Specification two of a charge relating to a court martial confirms this period of AWOL, as does the 1978 report of the Army Discharge Review Board. The court martial charge was pending at the time of the appellant's discharge from service under conditions other than honorable in September 1972. A correction to the appellant's DD Form 214 reflects that the appellant's discharge was reviewed under Public Law 95-126 and a determination made that recharacterization of service was warranted under Department of Defense Special Discharge Review Program for April 1977. The appellant's discharge was upgraded July 25, 1977, to under honorable conditions (general). The name of the authorizing officer, as reflected on the amended DD Form 214, is Sorenson. The general discharge certificate, reflecting that the appellant's discharge on September 29, 1972, was under honorable conditions, is signed by the same Sorenson. However, in 1978 the appellant's discharge was reviewed by the United States Army Discharge Review Board. The report of this review reflects that in the overall assessment section on September 29, 1972, ADRB (Sic) upgraded to general discharge on the basis of satisfactory SEA tour, age, general aptitude, length of service, education level and possible personal problems. Under the rationale section of the report the Army Discharge Review Board unanimously voted not to affirm the SDRP upgrade under uniform standard noting that the prior review was upgraded on the basis of a Vietnam tour and secondary criteria of age, general aptitude, length of service, educational level and possible personal problems. With consideration of the record as a whole, the Board concludes that the reference to ADRP is a typographical error and that it should read SDRP, i.e., special discharge review board. Further, with respect to the use of the term SEA tour, in light of the rationale section noting that the upgrade was on the basis of a Vietnam tour, the Board concludes that SEA refers to the appellant's tour in Southeast Asia, i.e., Vietnam. Further, in light of the same name, Sorenson, appearing on the general discharge certificate as well as the amended DD Form 214, the Board concludes that the appellant's discharge upgrade effective September 29, 1972, was accomplished by the special discharge review board in July 1977. On the basis of the above analysis the only upgrade of the appellant's discharge was accomplished in July 1977 by the special discharge review board and the review by the Army Discharge Review Board, as required by Public Law 95-1126, resulted in a determination that the appellant did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge was not affirmed. Since the "second decision" was not favorable to the appellant, the service characterization of his discharge for service from September 1969 to September 1972 continues to be under conditions other than honorable for VA purposes. 38 C.F.R. § 3.12(f)(g)(h). The record is uncontroverted that the appellant's AWOL, beginning in April 1971, extended for a period in excess of 180 days. As noted previously benefits are not payable where the appellant was charged or released under this condition. However, this bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. The factors considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence include 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. Reasons for going AWOL that 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, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds or 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. 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. Also, if the person was insane at the time of committing the offense a discharge under this condition would not be a bar to the payment of benefits. 38 C.F.R. § 3.12(b)(c)(6). It is neither contended nor shown that the appellant was insane at the time of his AWOL beginning in April 1971. The report of his July 1972 service separation examination reflects that he was psychiatrically normal. Accordingly, the Board concludes that the appellant was not insane at the time of his AWOL for greater than 180 days beginning in April 1971. With respect to the appellant's length and character of service, exclusive of the period of prolonged AWOL, the Board observes that he entered active duty in September 1969. The appellant's DD Form 214 reflects that his primary military occupational specialty was cook and that he served in Vietnam for 11 months and 3 days. He received the Vietnam Service Medal and Vietnam Campaign Medal with 60 Device. His service in Vietnam was from December 7, 1969, through November 9, 1970. His periods of AWOL included from October 1969 through October 21, 1969, from May 30, 1970, through June 6, 1970, from December 20, 1970, through April 18, 1971, and the period for greater than 180 days beginning April 29, 1971. His total AWOL was 571 days. An April 1972 document, relating to information concerning the appellant's return to military control, reflects that he had been arrested in Canada for property damage over $50 and in July 1972 the appellant requested a discharge for the good of the service after having been advised of the basis for a contemplated trial by court martial including two specifications of AWOL. With consideration of the above, the appellant had 36 months of active service or just under 1100 days. After approximately 13 months of service his first period of AWOL occurred. Following approximately 21 months of service his second period of AWOL occurred and then following approximately 27 months of service he was AWOL for approximately 4 months. Shortly thereafter his period of AWOL for greater than 180 days occurred. In total he was AWOL more than he was present during his entire active service. On the basis of this record, the Board concludes that the appellant's service, exclusive of the period of prolonged AWOL, cannot generally be identified as being of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. Regarding any reasons offered by the appellant for his extended period of AWOL the appellant has not indicated any family emergencies. In this regard, the Board observes that in the appellant's notice of disagreement, received in July 1994, he indicated that his friends and family turned their backs on him when he returned from Vietnam. Therefore, the record does not indicate that the appellant was experiencing a family emergency or obligation as a reason for his AWOL. Rather, the record reflects that the appellant went to Canada for his period of extended AWOL. Neither does the record indicate that the appellant had suffered hardship or participated in combat during his service prior to his AWOL or that he had any other service-incurred or aggravated disability resulting in his extended AWOL. See Holmes v. Brown, 1 Vet. App. 38 (1997). Neither does the record indicate that there was a valid legal defense to the charge of AWOL, noting that all of the evidence of record supports a finding that the appellant was absent during the indicated time frame. The record indicates that the court martial charge was pending at the time the appellant requested the discharge for the good of the service. Accordingly, on the basis of the above analysis there is no evidence of record that there were compelling circumstances to warrant the prolonged unauthorized absence and the appellant was discharged under other than honorable conditions as a result of being AWOL for a continuous period of at least 180 days. II. Pension Termination. The appellant was awarded VA nonservice-connected pension benefits based on service in the Army National Guard from March 1, 1964, to September 2, 1964. His nonservice- connected pension benefits were subsequently terminated based upon a determination that his service in the National Guard from March 1, 1964, to September 2, 1964, was active duty training and not active service. Improved disability pension is a benefit payable by VA to "veterans" of a period or periods of war, including the Vietnam Era. 38 C.F.R. § 3.3(a)(3). A veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). Active military, naval, and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6(a). Active duty means full-time duty in the Armed Forces other than active duty for training. 38 C.F.R. § 3.6(b)(1). All of the official evidence reflects that the appellant's service in the National Guard from March 1, 1964, to September 2, 1964, was active duty training service. See service personnel record relating to National Guard service including appellant's request to be ordered to active duty training, chronological record of military service, and report of separation and record of service in the National Guard. The report of the appellant's September 1964 service separation examination reflects no disabling abnormality and it is neither asserted nor shown that the appellant was disabled from a disease or injury incurred or aggravated in line of duty during his active duty for training. Therefore, his active duty for training does not constitute active service. Based upon this as well as the above analysis reflecting that the appellant's discharge in September 1972 was under conditions other than honorable, the appellant has not attained veteran status and the termination of his pension was appropriate because the appellant is not a veteran and, as such, may not be awarded VA pension benefits. ORDER The character of the appellant's discharge from service for the period from September 1969 to September 1972 constitutes a bar to VA benefits and the appeal with respect to this issue is denied. Termination of the appellant's nonservice-connected VA disability pension award was proper and the appeal with respect to this issue is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals