Citation Nr: 0002917 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-19 509A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the claimant's character of discharge constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The claimant had active service from May 1968 to March 1971. His character of service upon discharge was under other than honorable conditions. This appeal arises from an August 1997 letter in which the VA Regional Office (RO) told the claimant that his character of service barred eligibility to VA benefits. FINDINGS OF FACT 1. The claimant had active service from May 1968 to March 1971; he was discharged under other than honorable conditions. 2. The DD-Form 214 shows that the time lost before normal expiration of term of service was 831 days. 3. The claimant was not insane at the time that he began his unauthorized absences. 4. There were no compelling circumstances to warrant the claimant's prolonged periods of absence without official leave (AWOL). CONCLUSION OF LAW The claimant's discharge from service was under other than honorable conditions and as such, his character of discharge is a bar to entitlement to VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 1991); 38 C.F.R. § 3.12 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claimant asserts that although he went AWOL while in service, his conduct should be excused because he had post- traumatic stress disorder (PTSD) at that time. Accordingly, he has the requisite character of discharge required for entitlement to VA benefits. As in any case, the threshold question that must be resolved with regard to a claim of entitlement to VA benefits is whether the claimant has established eligibility. Before becoming entitled to "status" as a claimant for VA benefits, an appellant has to first demonstrate by a preponderance of the evidence that he or she is a "veteran," or for the person upon whose military service the claim for VA benefits is predicated, "veteran" status is present. Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Only after predicate status is established does a claimant come under the aegis offered by Title 38 to "veterans." Laruan v. West, 11 Vet. App. 80 (1998). If the claimant does not submit the appropriate evidence, the claim fails due to the absence of legal merit or lack of entitlement under the law and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). A "veteran" is defined in title 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." Id. If a former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2). A discharge or release from service where the former service member was discharge by reason of the sentence of a general court-martial, by reason of being a deserter, or by reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days bars entitlement to benefits. 38 C.F.R. § 3.12(c)(2), (4), (6). However, the aforementioned conditions will not bar payment of benefits if there are compelling circumstances to warrant the prolonged unauthorized absence or if it is found that the person was insane at the time of committing the offense causing such discharge or release. See generally 38 C.F.R. § 3.12(b), (c)(6). The former service members' length and character of service and reason for going AWOL will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6)(i)(ii). The evidence consists of two separate DD Form 214's. The first DD Form 214 shows that the claimant was discharged from service in March 1969 and his character of discharge was honorable. The document also shows that the claimant's awards included the National Defense Service Medal and Vietnam Service Medal. The second DD Form 214 shows that the claimant reenlisted into active service that same month, in March 1969, and was discharged in March 1971. The character of discharge from service was under other than honorable conditions. Even though the DD-214 shows that the claimant's awards included the Combat Infantry Badge, it also shows that the claimant's time lost before normal expiration of term of service was 413 days lost under 10 U.S.C. § 972; 66 days from December 1, 1969, to February 4, 1970; 54 days from March 12, 1970, to May 4, 1970; and 298 days from May 20, 1970 to March 9, 1971. The DD-Form 214 does not contain the claimant's signature but contains the signature of the authorizing officer. A Request For Information report, received in January 1975, from the National Personnel Records Center (NPRC) confirms that the claimant had one period of service extending from May 1968 to March 1971 and his character of discharge was other than honorable. It was noted that the claimant was not eligible for complete separation when discharged on March 28, 1969. After reviewing the pertinent evidence of record presented in this case, the Board finds that the claimant's character of discharge constitutes a bar to VA benefits. The claimant's DD-214 reports and the January 1995 NPRC report show that he had one continuous period of active service extending from May 1968 to March 1971 and that in March 1971, he was separated from service with an other than honorable discharge after being AWOL 831 days,- 413 days lost under 10 U.S.C. § 972; 66 days from December 1, 1969, to February 4, 1970; 54 days from March 12, 1970, to May 4, 1970; and 298 days from May 20, 1970 to March 9, 1971 . In view of the foregoing evidence, the Board finds that the claimant's character of discharge from service, other than honorable conditions, is a bar to the receipt of VA benefits. The claimant received the under other than honorable conditions discharge from service by reason of being AWOL for a continuous period of at least 180 days. In this case, the record reflects that the service department has informed the VA and claimant that his discharge from service was under other than honorable conditions, and as such, non-qualifying for VA benefits. Accordingly, the Board, unless otherwise provided, is bound by that determination. See Laruan, v. West, 11 Vet. App. 80; see generally Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board recognizes that the bar to eligibility for VA benefits is inapplicable if there were compelling circumstances to warrant the prolonged unauthorized absence or if the former service member was insane at the time he began the absence. 38 U.S.C.A. § 5303 (a), (b); 38 C.F.R. § 3.12(b), (c)(6). Compelling circumstances include family emergencies or obligations, or similar types of obligations or duties owed to third parties. 38 C.F.R. § 3.12 (c)(6)(ii). In this case, the claimant has not alleged the presence of any compelling circumstances. In fact, in his June 1997 letter, he stated that he went AWOL from Vietnam because he had lost faith and felt that he had given more than he should have. Although he added that at that time he had family problems and that his brother was dying, the claimant has not presented any evidence to support those assertions. The Board further acknowledges that even when assuming the claimant participated in combat prior to his extended period of being AWOL, the extended period of being AWOL bars entitlement to VA benefits. The claimant also argues that he currently has PTSD and had the disorder while in service. VA outpatient treatment reports dated in June 1997 indicate that the claimant was examined for PTSD but a diagnosis was not recorded. In this regard, the statute authorizes the allowing of benefits where a party has received an other than honorable character discharge, "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's . . . discharge, . . . that person was insane. See 38 U.S.C.A. § 5303(b); Struck v. Brown, 9 Vet. App. 145, 151 (1996); Cropper v. Brown, 6 Vet. App. 450, 453 (1994); 38 C.F.R. § 3.54(a) (1999). An insane person is one who, while not mentally defective or constitutionally psychopathic, . . . 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. Struck, 9 Vet. App. at 152. The insanity must only exist at the time of the commission of the offense leading to a person's discharge; there need not be a causal connection between the insanity and misconduct. Id. The Board recognizes that VA medical reports indicate that the claimant complained of symptoms associated with PTSD and was examined for the disorder. Nevertheless, in spite of this evidence, the record does not show that a diagnosis of PTSD has been made and moreover, it does not show that he was insane at the time of going AWOL. In June 1997 the claimant recalled going AWOL because of family concerns, difficulties with his military superiors, and his loss of faith. In consideration of the foregoing, the Board finds that the record does not show that he was insane at that time. The evidence also fails to show that the claimant went AWOL because of compelling circumstances. There is no competent evidence to support the veteran's assertions, which were presented approximately twenty-six years post service. As such, the under other than honorable condition character of discharge remains a bar to VA benefits. Based of the foregoing evidence of record, the Board finds that the preponderance of the evidence fails to show that the claimant is entitled to "status" as a veteran for VA benefits. The record shows that the claimant was released from service under other than honorable conditions, and as such, his character of discharge prohibits entitlement to VA benefits. It is also noted that to the extent the claimant disagrees with actions associated with his character of discharge from active service, the disagreement must be addressed with the service department. Sarmiento v. Brown, 7 Vet. App. 80 (1994). In this case the law is dispositive and as such, the appeal is denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426. ORDER The claimant's character of the discharge from service is a bar to VA benefits; his appeal is denied. V. L. Jordan Member, Board of Veterans' Appeals