Citation Nr: 0002413 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-10 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the character of the appellant's discharge from military service is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The appellant had active military service from August 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The RO has obtained all pertinent evidence necessary for an equitable disposition of this appeal. 2. The appellant's period of service from August 1968 to February 1972 was terminated by an other than honorable discharge. 3. The appellant's offenses leading to his discharge consisted of numerous periods of being absent without leave (AWOL) and constitute willful and persistent misconduct. 4. The appellant was AWOL for a continuous period of at least 180 days; he was not insane at the time that he began his unauthorized absences; and there were no compelling circumstances to warrant the appellant's prolonged periods of AWOL. CONCLUSION OF LAW The character of the appellant's discharge from service constitutes a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5107, 5303 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1, 3.12 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a March 1998 administrative decision, the RO determined that the appellant's discharge from military service was issued under conditions which bar the payment of VA benefits. Accordingly, the issue in this case is one of status, i.e., whether the appellant is a "veteran" as that term is defined by law. 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). Benefits are not payable where the former service member was discharged or released under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). 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 he committed the offense which caused such discharge or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(a),(b); 38 C.F.R. § 3.12(b). The bar to benefit entitlement does not apply if there are compelling circumstances to warrant a prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). In determining whether compelling circumstances warranted the prolonged unauthorized absence, the length and character of service exclusive of the period of the unauthorized absence will be considered. This period should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. Additionally, consideration may be given to reasons offered by the claimant including family emergencies or obligations. These reasons 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 or herself 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. The existence of a valid legal defense that would have precluded conviction for absence without leave is also a factor to be used in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(c)(6)(i-iii). A review of the appellant's written statements show that he asserts that the reason he went AWOL was that he could not take the stress and pressure of his state-side duty and that he was suffering from post-traumatic stress disorder at that time. The appellant's service records show that he was AWOL from March 12 to April 25, 1970, from May 6 to May 7, 1970, from May 25, to June 2, 1970, from June 30 to October 20, 1970, from November 25, 1970, to March 2, 1971, from April 14 to May 20, 1971, and from June 20, 1971, to January 5, 1972. Such violations are not minor offenses because by definition they are the type of offenses that would interfere with the appellant's military duties. See Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). Accordingly, the Board concludes that the evidence shows that the violations for which the appellant received an other than honorable discharge do not constitute minor offenses. 38 C.F.R. § 3.12(d)(4). The service records show no psychiatric problems during service or other reason for the appellant's numerous periods of AWOL. The service records also contain a two-page, written statement from the appellant expressing his request to be discharged from the military. Although the appellant indicated some marital problems during service, there were no compelling reasons for the periods of AWOL. The evidence does not indicate that the appellant had any mental impairment or disorder when he went AWOL leading to his discharge. The appellant has not alleged that he was insane at the time of his AWOL violations, or that his marital problems at that time constituted the type of compelling circumstances as required by law. See Struck v. Brown, 9 Vet. App. 145, 152-54 (1996). None of the evidence submitted on this issue, including numerous lay statements and post- service medical records, shows that the appellant was insane at the time he went AWOL. Accordingly, the Board concludes that the preponderance of the evidence establishes that the appellant was not insane at the time he went AWOL. 38 C.F.R. § 3.12(b). The appellant has argued that he was honorably discharged from his first period of service. His service records show that he enlisted in the U. S. Army on August 22, 1968, for a period of two years. He re-enlisted on July 6, 1969, prior to the expiration of the initial two-year enlistment, for a period of three more years. Although the DD Form 214 shows an honorable discharge from service on July 5, 1969, the appellant's re-enlistment during the first service obligation period resulted in one continuous period of service from August 1968 to February 1972. See Holmes v. Brown, 10 Vet. App. 38, 41 (1997). The appellant's discharge on February 18, 1972, was under conditions other than honorable. Accordingly, that is the character of his discharge from service for the entire period of service from August 1968 to February 1972. Moreover, the service records show that the appellant began going AWOL in March 1970, which was during his initial two-year period of service obligation so even if his first period of service (which would have ended in August 1970) could be viewed as a discrete portion of the appellant's service, the record reflects that some of his AWOL infractions occurred during what would have been part of that first two-year term. See Id. The evidence shows that in January 1998 the appellant completed an application for an upgrade in his character of discharge to the Board for Correction of Military Records. To date the appellant has not informed VA that this application has been decided If the appellant receives an upgrade in his character of discharge, he may submit evidence of the upgrade to the RO and request that his claim be reopened on the basis of new and material evidence. ORDER The character of the appellant's discharge from service constitutes a bar to the payment of VA benefits; therefore, his appeal is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals