BVA9503502 DOCKET NO. 91-47 610 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the character of the appellant's discharge from service is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL 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 a March 1990 administrative decision of the VA Regional Office in Cleveland, Ohio, (RO) which denied the benefit sought on appeal. The appellant, who had active service from February 1968 to July 1970, at which time he was discharged under other than honorable conditions, appealed that decision to the BVA, and the case was initially received at the Board in November 1991. A November 1992 BVA decision remanded the case for further development, and the case was again received at the Board in October 1994. A February 1979 administrative decision concluded that the appellant's discharge for his period of service from February 1968 to July 1970 was considered a bar to VA benefits. The appellant was notified of that determination and of his appellate rights by a letter dated in February 1979. An appeal was not filed. In October 1988, the appellant filed a claim for service connection for post-traumatic stress disorder. This claim has not been adjudicated by the RO and will be referred to the RO for appropriate action in light of this decision on appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. The appellant maintains, in substance, that his service in combat while in Vietnam should entitle him to VA benefits. The appellant reports that he served honestly and faithfully while in Vietnam and received a Bronze Star and Army Commendation Medal as a result of that service. He reports that he had less than a high school education and was only 18 years of age when he went to Vietnam, and that he found it difficult to adjust to peacetime Army service after one year in combat. The appellant suggests that, upon his return from Vietnam, he was suffering from battle fatigue which later developed into post-traumatic stress disorder. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is equally divided in this case and therefore, with resolution of reasonable doubt in the appellant's favor, the appellant's discharge from service is not a bar to VA benefits. FINDINGS OF FACT 1. All obtainable evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's original DD Form 214 shows that the character of his service between February 1968 and July 1970 was described under conditions other than honorable. 3. The U.S. Army Discharge Review Board indicated that the appellant was separated from service in lieu of a special court- martial due to an absence without leave (AWOL) of 246 days. 4. The appellant served in a combat military occupational specialty with a combat unit while in Vietnam from June 1968 to June 1969 and was awarded a Combat Infantryman Badge, Bronze Star Medal and Army Commendation Medal. 5. The appellant's service exclusive of his prolonged AWOL was of such quality and length that it can be categorized as honest, faithful and meritorious and of benefit to the nation. 6. Poor adjustment to stateside military service following the hardship of one year of overseas combat service can be construed as a compelling circumstance to warrant the prolonged unauthorized absence considering the appellant's state of mind, age, cultural background, education level and judgmental maturity. CONCLUSION OF LAW The appellant's character of discharge from service is not a bar to VA benefits. 38 U.S.C.A. §§ 101(2), (18), 5107, 5303 (West 1991); 38 C.F.R. §§ 3.12, 3.102 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the appellant 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. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The Board would also note that the issue as framed at the time of the November 1992 BVA remand decision was in terms of whether new and material evidence had been submitted to reopen a previously denied claim. While the RO did not specifically indicate that the evidence submitted was new and material and sufficient to reopen the previously denied claim, it would appear that the RO has implicitly reopened the claim. In this regard, the Board notes that a July 1991 supplemental statement of the case indicates that all evidence of record had been reviewed and that the original statement of the case provided the appellant with all pertinent laws and regulations. Under these circumstances, the Board finds that the RO's failure to explicitly reopen the appellant's claim was harmless error. Significantly, were the Board to reach the question of whether new and material evidence had been submitted to reopen the previously denied claim, the Board would conclude that such evidence had been submitted. In this regard, most, if not all, of the evidence submitted in connection with the reopened claim pertains to the circumstances surrounding the appellant's prolonged unauthorized absence, evidence which was not of record at the time of the earlier 1979 administrative decision. The evidence for the Board's consideration discloses that the appellant served on active duty from February 1968 to July 1970 and that upon his separation from service, the character of his service was described as under conditions other than honorable. During that time period, the appellant served in Vietnam between June 1968 and June 1969 in a combat military occupational specialty in a combat unit, and was awarded a Combat Infantryman Badge, Bronze Star Medal and Army Commendation Medal. Approximately four months after returning stateside, the appellant went AWOL for a period of 264 days between October 1969 and July 1970. While suggestions or attempts have been made to attribute the appellant's period of prolonged unauthorized absence to symptomatology associated with battle fatigue or post-traumatic stress disorder, there is simply no evidence which demonstrates that the appellant was suffering from any psychiatric defect or impairment at the time he went AWOL in October 1969. Also, it has been suggested that a period of incarceration could explain at least a portion of the appellant's unauthorized absence, but since his period of confinement by civilian authorities appears to have post dated the beginning of his period of AWOL, such legal difficulties do not serve to demonstrate the reason for the prolonged period of unauthorized absence. The Board does find that the five-page VA Form 21-4138 (Statement in Support of Claim) dated in January 1990 from the appellant provides the most candid explanation of the circumstances surrounding his decision to go AWOL. The Board believes that when that explanation is viewed with testimony provided by the appellant, along with corroborating statements from the appellant's family, a basis for a favorable determination has been demonstrated. In essence, the appellant has related difficulty he experienced adjusting to noncombat stateside military service following a year of combat service in Vietnam, service the Board finds was "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) (1994). Statements relating to the appellant's changed behavior and demeanor following his combat service were provided by his mother and sisters. The Board would also note that the record reflects that the appellant had less than a high school education during his period of military service, that he was 17 years old upon entering service, and completed his combat service in Vietnam shortly following his 19th birthday. When the appellant's honest, faithful and meritorious combat service is viewed in terms of the appellant's age, cultural background, educational level and judgmental maturity against his period of prolonged unauthorized absence, the Board finds that there is a question as to whether circumstances existed which warranted the prolonged unauthorized absence. Resolving all reasonable doubt as to this question in the appellant's favor, the Board concludes that the character of the appellant's discharge from service is not a bar to VA benefits. ORDER The appellant's character of discharge from service is not a bar to VA benefits, and the benefit sought on appeal is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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.