BVA9501369 DOCKET NO. 93-06 192 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to the payment of Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Oregon Department of Veterans Affairs ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The appellant had active military service from June 1977 to October 1980. This matter arises from a December 1991 decision rendered by the Portland, Oregon, Regional Office (RO). Therein, it was held that the character of the appellant's discharge from military service constituted a bar to the payment of VA benefits. During the pendency of this appeal, the appellant claimed entitlement to service connection for multiple sclerosis. The RO deferred action on that claim pending appellate review. Appropriate action should now be taken by the RO consistent with the Board of Veterans' Appeals (Board) decision that follows. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in holding that the character of his discharge from military service was a bar to the payment of VA benefits. He contends that his absence without official leave (AWOL) was compelled by his mother. He asserts that, throughout his childhood, his mother had been domineering and coercive, and that he went AWOL at his mother's insistence. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based upon its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant's discharge from military service was under circumstances that constitute a bar to the payment of VA benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The appellant's active military service was terminated in October 1980 by a discharge under other than honorable conditions. 3. The appellant's discharge from military service was the result of AWOL for a continuous period of at least 180 days. 4. The appellant was not insane at the time that he began his unauthorized absence. 5. There were no compelling circumstances to warrant the appellant's prolonged AWOL. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to the payment of VA benefits. 38 U.S.C.A. §§ 5107, 5303 (West 1991); 38 C.F.R. § 3.12(c)(6) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the appellant has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). That is, it is one which is plausible and capable of substantiation. In addition, all relevant facts have been properly developed. Accordingly, no further assistance to the appellant is required in order to comply with the duty to assist him as mandated by law. The appellant began his active military service in June 1977. He first went AWOL on May 23, 1978. He later returned voluntarily on June 29, 1978. However, on July 16, 1978, he again went AWOL. He remained in that status until August 11, 1980, following his apprehension by civilian authorities. Upon his return to military custody, he indicated that he had gone AWOL because he was unable to adjust to military service, that he desired a discharge from service because of family problems, and that if he was returned to duty he would again go AWOL. The appellant then requested, and was granted, a discharge under other than honorable conditions in lieu of prosecution by military authorities. A discharge from military service as the result of AWOL for a continuous period of at least 180 days is a bar to the payment of VA benefits. 38 U.S.C.A. § 5303(a) (West 1991); 38 C.F.R. § 3.12(c)(6). This bar does not apply, however, 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(b) (West 1991). 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) (1993). The appellant does not claim, nor do his service medical records indicate, that he suffered from any mental impairment at any time during military service. The appellant was observed to be normal psychiatrically during the enlistment examination conducted in December 1976. Similarly, during an examination conducted in August 1980, the appellant's mental status was noted to be normal, and he was considered to be mentally responsible and able to distinguish right from wrong. Moreover, the appellant has not claimed compelling circumstances as a matter of law. 38 C.F.R. § 3.12(c)(6)(iii) (1993). Nor does the evidence otherwise indicate that legal circumstances existed which would have precluded a conviction for AWOL. Instead, the appellant has purported that he was compelled to go AWOL as a factual matter. The Board's analysis, therefore, will focus upon that question specifically. The thrust of the appellant's contentions is that his mother compelled him to go AWOL for the period beginning July 16, 1978, and ending August 11, 1980. In support, the appellant offered statements, both oral and written, from relatives who attested to what they considered to be odd, idiosyncratic, and manipulative behavior by the appellant's mother. Though truthful and accurate these might be, none addresses the matter at issue, i.e., the state of mind of the appellant when he went AWOL in July 1978. The only evidence in this regard is that offered by the appellant. At a predetermination hearing conducted at the RO in March 1992, the appellant testified that his mother had been domineering and controlling all of his life, and that he was unable to resist or exercise independent judgment when she ordered him to go AWOL in July 1978. His own testimony, however, belies his contentions. He testified that he first went AWOL in May 1978 after getting involved with the wrong crowd and abusing both alcohol and drugs, and that his mother and father talked him into returning to military control. In addition, he testified that, following his return to military control, he called his mother, and she told him that if "[Y[ou don't like the situation, come home." Rather than compelling the appellant, by his own admission it appears that his mother was simply attempting to be supportive. Such a conclusion is consistent with his mother's previous efforts to return the appellant to military control following his first period of AWOL. As a final matter, the Board notes that the appellant endured no undue hardship during military service, that he did not come from a deprived educational or cultural background, and that no family emergencies existed at the time that he went AWOL in July 1978. In fact, there is nothing of record aside from the appellant's contentions and testimony to support his claim that he was "compelled" to go AWOL. As such, his various assertions appear to be nothing more than self-serving, and not in keeping with the evidence of record. The preponderance of the evidence is against the claim. Accordingly, the benefit-of-the-doubt rule is not for application and there is no basis upon which to grant the benefit sought. ORDER The character of the appellant's discharge from service constitutes a bar to the payment of VA benefits; therefore, his appeal is denied. CHARLES E. HOGEBOOM 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.