BVA9508266 DOCKET NO. 93-07 938 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether the appellant would have been eligible for discharge or release under conditions other than dishonorable at the expiration of the two-year period from his initial term of enlistment. 2. Whether the appellant's discharge from service in April 1965 was under conditions other than dishonorable for Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD Neil Reiter, Counsel INTRODUCTION The service department has certified that the serviceman served on active duty from September 25, 1962 to April 1965, and that he was granted a discharge under other than honorable conditions in April 1965. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a February 1992 decision by the Phoenix, Arizona, Regional Office which determined that the appellant was not eligible for complete separation when discharged on June 22, 1964, that he was not eligible for discharge or release under conditions other than dishonorable at the expiration of the initial two-year enlistment period, that the entire period of service constituted one period of service, and that his discharge from service in April 1965 was under dishonorable conditions. The veteran testified at a hearing before a member of the Board sitting at Phoenix, Arizona. CONTENTIONS OF APPELLANT ON APPEAL The veteran claims, in essence, that he should be considered as having had an honorable period of service after serving for two years, as he only had one period of being absent without leave prior to the expiration of his initial two years of service. He contends that there was a mistake relating to his orders concerning a reassignment to a new unit, that he was awaiting, but never received, the orders to go to the new unit, and that he remained on post waiting for such orders. He contends that he should not have been issued a discharge under dishonorable conditions. 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 veteran's claims file. Based on 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 would have been eligible for a discharge or release under conditions other than dishonorable at the expiration of his initial two-period of enlistment. It is the further decision of the Board that the appellant's discharge from service in April 1965 was under dishonorable conditions. FINDINGS OF FACT 1. All relevant evidence which is deemed necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran entered active duty on September 25, 1962, for a two-year period of enlistment, was discharged from duty on June 22, 1964, to reenlist for a period of three years, and was then discharged from service in April 1965 and granted an undesirable discharge. 3. The service department has certified that he was not eligible for complete separation when discharged on June 22, 1964. 4. The serviceman was absent without leave from August 28, 1964, to September 5, 1964, on October 28, 1964, from November 10, 1964, to November 19, 1964, and from December 2, 1964, to January 14, 1965. 5. His discharge from service in April 1965 was the result of numerous, repetitious, and persistent offenses, and he was not insane at the time of committing these offenses. 6. While the appellant had one period of being absent without leave during his initial two-year period of enlistment, his service was otherwise honest, faithful, and meritorious for the period of two years. CONCLUSIONS OF LAW 1. The appellant's willful and persistent misconduct led to his discharge from service in April 1965; his discharge was under dishonorable conditions, as he was not insane at the time of committing these offenses, and is a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5107 (West 1991); 38 C.F.R. § 3.12(a),(b),(d) (1994). 2. The appellant was eligible for a discharge under conditions other than dishonorable at the expiration of his initial two-year enlistment. 38 U.S.C.A. §§ 101(2)(18), 5107; 38 C.F.R. §§ 3.12, 3.13 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts which are deemed necessary for proper adjudication of the present claim have been obtained. I. Background A claim for service connection for a disability allegedly incurred in 1962 was received from the veteran in 1991. He submitted a copy of a DD Form 214 showing that he had served on active duty from September 25, 1962, to June 22, 1964, when he was discharged from service, characterized as honorable. Subsequently, in September 1991, the service department certified that the appellant served on active duty from September 25, 1962, to April 20, 1965, that he had received an other than honorable discharge from service, and that he was not eligible for complete separation when discharged on June 22, 1964. A copy of a DD Form 214 was received showing that the appellant had entered service on June 23, 1964, and was separated from service on April 20, 1965, and the character of his service was listed as under conditions other than honorable. This form showed that he had 110 days lost from service from November 1964 through April 1965. In October 1991, the service department certified that the appellant entered active duty on September 25, 1962, with an initial two-year term of enlistment. The service department certified that the appellant was not eligible for complete separation when he was discharged on June 22, 1964, in order to reenlist, and that his initial two-year period of enlistment would have terminated on September 24, 1964. The service department indicated that time lost included being absent without leave from November 10, 1964, to November 18, 1964, being absent without leave from December 2, 1964, to January 13, 1965, and being in confinement from February 11, 1965, to April 9, 1965. Service records show that the appellant was absent without leave from August 28, 1964, to September 5, 1964, that he received judicial punishment on September 15, 1964, and that his punishment was 14 days extra training. He was absent without leave for four hours on October 28, 1964, and he received nonjudicial punishment on October 29, 1964, which included restriction to the company area for 14 days and extra duty for 14 days. He was convicted at a special court-martial in February 1965 for being absent without leave from November 10, 1964, to November 19, 1964, and for being absent without leave from December 2, 1964, to January 14, 1965. His punishment included hard labor for six months. The service records show a statement from a supervisor, dated in March 1965, indicating that, under his command, the appellant had received two nonjudicial punishments for being absent without leave, and that a special courts-martial was being prepared when the appellant again went absent without leave. He indicated that someone else took command of the company in late December 1964, but during his command of the appellant, he observed the appellant to be immature, untrustworthy, irresponsible, and not amenable to attempts to rehabilitation. He recommended that the appellant be eliminated from service. A statement from a first sergeant, dated in March 1965, indicated that the appellant had been in his platoon since April 1964, that he was poor in performing his duties, that he was disrespectful, and that various talks with the appellant seemed to have no effect. On a psychiatric examination in February 1965, it was noted that the appellant was being examined after being punished on two occasions for being absent without leave, and having a further absent-without-leave period of 35 days. The appellant related that he spent most of the longer period of being absent without leave being with the "basketball team." The appellant stated that he wanted "out of the Army," and that his reenlistment the previous years "puzzled" him as to why he, in fact, reenlisted. He noted that he had been designated to rotate with the 11th Cavalry Division, but that he was absent without leave and did not rotate. He also reported that he had not been paid since June 1964, and that he did not plan to fight board proceedings to discharge him. Mental status examination showed that he appeared tired and dull, and that there was poor motivation for further service. The examiner indicated that it was his opinion that the appellant was mentally responsible, was able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. It was further indicated that the appellant had no mental disease or defect sufficient to warrant disposition through medical channels. Subsequently, the appellant was advised of administrative proceedings to discharge him with an undesirable discharge, and he signed a statement to the effect that he understood the ramifications of an undesirable discharge on his rights. He was then discharged from service in April 1965. At a hearing at the regional office in September 1992, the appellant stated that there was a mix-up in his orders in the summer of 1964, that he was told that he would rotate to a new unit, and that he never received his orders for that new unit. He stated that these problems caused him to be considered absent without leave during the summer of 1964 when, he was at his duty station. He submitted further service records which did indicate his transfer to the 11th Cavalry Regimen and subsequent revocation of these orders. At a hearing before a member of the Board sitting at Phoenix, Arizona, in November 1993, the appellant again noted the misunderstanding relating to his reassignment in the summer of 1964 and indicated that his two-year period of service beginning in September 1962 should be considered as honorable service. II. Analysis VA benefits are not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable, unless it is found that the person was insane at the time of committing the offenses or offense causing such discharge. 38 C.F.R. § 3.12(a)(b). A discharge or release because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). The service department has certified that the appellant was not eligible for complete separation when discharged from service on June 22, 1964, as it was issued to reenlist. 38 C.F.R. § 3.13(a). Accordingly, the first question is whether the appellant's discharge from service in April 1965 was under dishonorable conditions. In this regard, it is noted that the appellant had periods of absence without leave from August 28, 1964, to September 5, 1964, for four hours on October 28, 1964, from November 10, 1964, to November 19, 1964, and from December 2, 1964, to January 14, 1965. His performance was considered unsatisfactory during these last few months. A psychiatric examination failed to show that he had a psychiatric disorder, or that he was insane at the time of committing these acts. The various absences without leave, together with the veteran's unsatisfactory attitude, behavior, and refusal to rehabilitate himself, reflect and demonstrate a consistent pattern of misconduct during his period of service. His repetitious, and persistent offenses, when considered with the other evidence of record, represent a pattern of conduct which constitutes willful and persistent misconduct. 38 C.F.R. § 3.12. As previously indicated, the service department has certified that the appellant was not eligible for complete separation when he was discharged from service on June 22, 1964, and his entire period of service constitutes one period of service for determining the character of his discharge from service. 38 C.F.R. § 3.13(b). There is one exception in a case where no unconditional discharge may have been issued. A person shall be considered to have been unconditionally discharged or released from active duty when he served for the period of time he was initially obligated to service, if he would have been eligible for discharge under conditions other than dishonorable at the expiration of his initial obligation. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.13(c). The service department has certified that the two-year period of the veteran's initial enlistment would have ended on September 24, 1964. In this case, the appellant reenlisted on June 22, 1964, and there is evidence that his period of time from September 1962 through June 1964 was service that was considered honorable. This is confirmed by the DD Form 214 which was issued for this period of service. The appellant did have a period of absence without leave from August 28, 1964, to September 5, 1964. However, this was his only offense during the two-year period of his initial enlistment. He received a nonjudicial punishment, and he needed to serve an additional 14 days as the result of this nonjudicial punishment. However, even if we add the eight days of absence without leave to the termination of his service, from September 24, 1964, the appellant still had only one offense against him in early October 1964. The Board believes that the appellant's service from September 1962 through early October 1964, aside from this one offense, was otherwise honorable and meritorious, and that the record does not show a pattern of misconduct for this period of time. His misconduct multiplied and became persistent commencing from late October 1964, when he began a repeated serious of offenses of being absent without leave. As a result, the Board finds that the appellant was eligible for discharge under other than dishonorable conditions for his initial two-year period of enlistment. 38 U.S.C.A. § 101; 38 C.F.R. §§ 3.12, 3.13. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER The appellant's discharge from service in April 1965 was under dishonorable conditions. To this extent, the benefit sought on appeal is denied. The appellant was eligible to have been unconditionally discharged under conditions other than dishonorable at the termination of his initial two-year obligation of service. To this extent, the appeal is granted. WAYNE M. BRAEUER 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.