Citation Nr: 0005680 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-11 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim with respect to whether the character of the claimant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The appellant had active service from March 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. An unappealed April 1980 RO decision held that the character of the claimant's discharge constituted a statutory bar to VA benefits; this decision was continued by an unappealed November 1992 RO decision. 2. Evidence received since the November 1992 decision is new and bears directly and substantially on the matter under consideration, and is so significant that it must be considered in order to fairly decide the claim. 3. Compelling circumstances warranted the appellant's absence without leave from October 1968 to November 1969. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim with respect to whether the character of the claimant's discharge constitutes a statutory bar to VA benefits is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claimant's discharge from the military is not a statutory bar to VA benefits. 38 U.S.C.A. §§ 101, 5107, 5303 (West 1991); 38 C.F.R. § 3.12(c)(6) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An April 1980 RO decision found that the character of the claimant's discharge constitutes a statutory bar to VA benefits under 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(c)(6) on the basis of his absence without authority for a continuous period of 180 days or more. A November 1992 RO decision continued to find that the appellant's discharge constituted a bar to VA benefits. The appellant is now seeking to reopen his claim with respect to whether his discharge constitutes a statutory bar to VA benefits. With respect to this claim, the Board finds, as discussed below, that he has submitted new and material evidence. The evidence of record prior to the November 1992 RO decision included service records reflecting that the appellant had been the subject of a special court-martial resulting in his conviction for being absent without leave from October 20, 1968, until November 18, 1969. The appellant's DD Form 214 reflects that the appellant did not have foreign and/or sea service and that his only decoration was the National Defense Service Medal. A February 1970 service memorandum for review contained a reference to a written statement by the claimant indicating that the reason he was requesting a discharge was for the purpose of trying to save his marriage. Subsequent to the November 1992 RO decision additional evidence has been added to the record including evidence reflecting that the appellant served in Vietnam for almost one year and that during this service he received wounds in combat on three separate occasions for which he was awarded the Purple Heart Medal the first time, and Gold Stars in lieu of the Purple Heart Medal for the second and third wounds. Testimony has also been offered with respect to a fire in the home where the appellant's spouse resided during his active service as well as the appellant's perceived threat to his life prior to his absenting himself in October 1968. If the 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. A discharge under honorable conditions is binding on VA as to the character of discharge. A discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. Benefits are not payable when the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Length and character of service exclusive of the period of prolonged absence. Service exclusive of the period of prolonged absence 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 the absence without leave 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 the absence without leave 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 absence without leave period began. If a claim was previously finally denied, a claimant must submit new and material evidence in order to reopen his claim. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, and which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Under the test established by Elkins v. West, 12 Vet. App. 209 (1999) (en banc), it must first be determined whether the appellant has presented new and material evidence. See Winters v. West, 12 Vet. App. 203 (1999) (en banc). Prior to the November 1992 RO denial there was no evidence of record indicating that the appellant had participated in combat in Vietnam or been awarded the Purple Heart Medal. Neither was there evidence that the home in which the appellant's wife was residing had sustained a fire with considerable damage or that the appellant perceived his life to be in danger immediately prior to his extended absence without leave. In Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998), it was noted that while "not every piece of new evidence is 'material'; we are concerned, however, that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." While the matter currently before the Board does not involve an injury or disability, it does involve circumstances surrounding the appellant's absence for a period greater than 180 days. Considering this, the Board concludes that the new evidence relating to the appellant's service and his extended absence contributes "to a more complete picture of the circumstances surrounding the origin" of his extended period of absence without leave. Id. Therefore, new and material evidence has been submitted and the claim is reopened. 38 U.S.C.A. § 5108. The appellant has offered extensive testimony with respect to an accusation he made while in Vietnam that resulted in the reduction of rank of the officer who led his platoon. He has indicated that upon his return to the United States this individual was present at the same Marine base and the appellant's perception at that time was that the identified individual intended to have him harmed. Testimony has also been offered with respect to a fire that occurred in the home where the appellant's wife was residing that resulted in substantial damage to the first floor, causing his spouse, her grandmother, and her parents to all be required to reside on the upper floor. Testimony has also indicated that the appellant and his spouse had a newborn child that existed coincident with his extended absence without leave as well as indicating that the appellant worked two jobs during this absence to help provide additional support to his family. The appellant has also testified that after risking his life for 11 months and 27 days in Vietnam it was of substantial distress to him to return to the Marine base in the United States and perceive that his life continued to be in danger. The Board observes that at the time of the appellant's entry onto active duty he was 17 years of age, noting that he was born in June 1948 and entered active service in March 1966. The appellant's DD Form 214 also reflects that his education consisted of 2 1/2 years of high school. With consideration of the appellant's combat service, including being wounded on three separate occasions during that service, his perception of continued threat to his life upon his return to the United States, which is deemed to be credible by the Board in light of the appellant's age, educational level and judgmental maturity, as well as the appellant's family circumstances enumerated above, the Board concludes that the evidence is in equipoise with respect to whether or not there were compelling circumstances resulting in the appellant's absence without leave from October 1968 to November 1969. In resolving all doubt in the appellant's behalf, his absence without leave for a continuous period of greater than 180 days was a result of compelling circumstances and this absence does not constitute a statutory bar to VA benefits under 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12. ORDER The claimant's discharge under other than honorable conditions does not constitute a statutory bar to VA benefits and, to this extent, the appeal is granted. REMAND The May 1980 VA administrative decision, continued by the November 1992 decision, reflects that multiple periods of absence without leave were considered and determined to have constituted willful and persistent misconduct. Willful and persistent misconduct would constitute a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(4). In light of the Board's decision above concluding that the absence without leave in excess of 180 days did not constitute a statutory bar, further adjudication with respect to whether or not the appellant's discharge was a result of willful and persistent misconduct is warranted. The record reflects that an attempt has been made to obtain all of the appellant's service personnel records. However, a response from the National Personnel Records Center, received in March 1999, reflects that they were on loan to the military Board for Correction of Naval Records. The appellant's claims file does not contain his service medical records. In light of the above, the appeal is REMANDED to the RO for the following: 1. The RO should request the appellant's complete service medical records, including any psychiatric records, as well as his complete service personnel records. These records should be associated with the claims file. 2. The RO should adjudicate whether the character of the claimant's discharge constitutes a regulatory bar to VA benefits. 3. If the benefit sought on appeal is not granted to the appellant's satisfaction, both the appellant and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the appellant unless he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). U. R. POWELL Member, Board of Veterans' Appeals