Citation Nr: 0006930 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 94-23 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The appellant served on active duty from May 1969 to November 1974. This matter came before the Board of Veterans Appeals (Board) from a May 1994 decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which determined that while new and material evidence had been received to reopen a previously denied claim regarding the character of the appellant's discharge from service, the appellant's discharge from service, even when considering the new evidence, was nevertheless a bar to VA benefits. A notice of disagreement was received in April 1994. A statement of the case was issued in May 1994. A substantive appeal was received in May 1994. A hearing was held at the RO in June 1994. In March 1997, the Board remanded this matter for additional development. It is noted that the Board, in the March 1997 remand, styled this claim as an attempt to reopen a previously denied claim (denied by an administrative decision dated in March 1988) regarding the character of the appellant's discharge from service. However, when the question at issue turns on a legal determination, such as basic eligibility for a benefit or status as a claimant, and not on a factual determination, the new and material analysis is not applicable, as the purported previous "denial" was not a final decision based on a "claim." See Sarmiento v. Brown, 7 Vet. App. 80, 84 (1994) and D'Amico v. West, 12 Vet. App. 357 (1999) (because appellant never attained status of claimant he did not submit any claim, well grounded or otherwise, and therefore there was no finally denied claim which could have been reopened); Laruan v. West, 11 Vet. App. 80 (1998) (en banc), and Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (individual who does not attain status as "claimant" is not entitled to the benefits and protections of title 38); Sabonis v. Brown, 6 Vet. App. 426 (1994), (where there is simply no authority in the law which would permit VA to grant appellant's request for relief when the facts are undisputed, the law not the evidence is dispositive and the claim should be denied or the appeal terminated). In this case, the law, not the facts, is dispositive. Accordingly, the claim will be adjudicated on the merits, not as an attempt to reopen. As such, the issue is styled above. FINDINGS OF FACT 1. The appellant enlisted in the United States Army (Army) in May 1969 on a three-year enlistment; in January 1970, he was discharged for purposes of reenlistment and then reenlisted for another three-year term. 2. The appellant went AWOL (absence without official leave) on two different occasions, from March 28, 1970 to August 1, 1970, and from December 12, 1970 to November 22, 1974. 3. The appellant's active military service was terminated in November 1974 by a discharge under other than honorable conditions; in February 1992, the Secretary of the Army, after reviewing findings and conclusions made by the Army Discharge Review Board in October 1991, changed this discharge to under honorable conditions (General). 4. The appellant was not insane at the time that he began his periods of unauthorized absence. 5. There were no compelling circumstances to warrant the appellant's prolonged periods of AWOL. CONCLUSION OF LAW The appellant's character of discharge from service is a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 101(18), 5303 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.12, 3.13 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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) (West 1991 & Supp. 1999). 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) (West 1991 & Supp. 1999); 38 C.F.R. § 3.12(a) (1999). VA benefits are not payable where 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 unless it is found he or she was insane at the time of committing the offense. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 U.S.C.A. § 5303 (West 1991); 38 C.F.R. § 3.12(c)(6) (1999). 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. The reasons for going AWOL 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 of 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 (West 1991); 38 C.F.R. § 3.12(c)(6)(i-iii) (1999). An honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed by 38 C.F.R. § (c) or (d): (1) The President's directive of January 19, 1977, initiating further action with respect to Presidential Proclamation 4313 of September 16, 1974, or (2) the Department of Defense's Special Discharge Review Program effective April 5, 1977, or (3) any discharge review program implemented after April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval or air service under other than honorable conditions. 38 C.F.R. § 3.12(h) (1999). An honorable or general discharge issued on or after October 8, 1977, by a discharge review board does not set aside a bar to benefits imposed under 38 C.F.R. § 3.12(c) (1999). 38 C.F.R. § 3.12(g) (1999). In the present case, the record shows that the appellant enlisted in the Army in May 1969 on a three-year enlistment. In January 1970, the appellant was discharged for purposes of reenlistment and then reenlisted for another three-year term. Service records show that the appellant served in Vietnam from September 1969 to December 1970 and that he was awarded the Combat Infantryman Badge. Records further show unauthorized periods of absence from March 28, 1970 to August 2, 1970, and from December 12, 1970 to November 22, 1974. The appellant was originally issued a discharge under other than honorable conditions, but in February 1992, the Secretary of the Army, after reviewing findings and conclusions made by the Army Discharge Review Board in October 1991, changed this discharge to under honorable conditions (General). In reviewing the appellant's statements and sworn testimony made since service, it appears that he is contending that after his return to the states from Vietnam in December 1970, he was told to take leave and go home to await orders. He maintains that he never received any orders and that attempts on his part to ascertain his status - including within a month of his return from Vietnam - were unsuccessful with Army personnel at various locations telling him that they did not have his records. However, in a statement signed by the appellant at the time of his discharge in November 1974, he indicates that after leaving Vietnam after two years of combat service, he was afraid of serving stateside. Other evidence of record reflects that he stayed in his hometown area and obtained employment until 1974 at which time he approached the Army with a request for a discharge pursuant to Presidential Proclamation No. 4313, September 16, 1974. At that point, the record reflects that he was told to report to Fort Benjamin Harrison, Indiana, as he was eligible for the program established by the Proclamation. Thereafter, he reported to Fort Benjamin Harrison, was evaluated for the program, and was given his discharge. Initially, the Board notes that during the RO hearing the appellant's representative contended that the appellant actually served two separate periods of active duty, one from May 1969 to January 1970, and the other from January 1970 to November 1974. It is possible - although not clear, from a review of the contention - that this argument is made for the purpose of establishing that the appellant was honorably discharged from one such period. However, as noted above, the record shows that the appellant enlisted in the Army in May 1969 on a three-year enlistment, was discharged in January 1970 for purposes of reenlistment and then reenlisted for another three-year term. The service department has certified that he was not eligible for complete separation in January 1970. It is clear from the record that in May 1972, when the appellant would have completed his initial obligated period of service, he had been AWOL for a continuous period of over 16 months. Thus, the requirements of 38 C.F.R. § 3.13(c) are not met, and under VA regulation, his discharge to reenlist was a conditional discharge, as it was issued prior to the date the appellant was eligible for discharge. As such, the entire period of service (from May 1969 to November 1974) constitutes one period of service. 38 C.F.R. § 3.13(b). Therefore, entitlement to VA benefits will be determined by the character of the final termination of such period of active service. As such, the fact that a DD Form 214 notes that the appellant's January 7, 1970 discharge was characterized as honorable has no bearing in this case (other than possibly factoring in the analysis regarding any compelling circumstances surrounding his periods of AWOL). Further, as noted above, in February 1992 the Secretary of the Army, after reviewing findings and conclusions made by the Army Discharge Review Board, changed this discharge to under honorable conditions (General). However, as also noted above, this upgrade does not set aside a bar to benefits imposed due to a period of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(g), (h) (1999). The Board also notes that there is no evidence of record that the appellant was insane at the time of his periods of AWOL, and it has not been contended otherwise. In fact, his service medical records are negative for complaints of or treatment for psychiatric disorders. The Board concludes that the evidence does not show that the appellant was insane at the times he went AWOL. 38 C.F.R. § 3.12(b) (1999). Further, the appellant has not raised any compelling circumstances which would warrant his prolonged unauthorized absence such that the character of his discharge should not serve as a bar to VA benefits. As noted, he has contended that he went AWOL the second time because he was never told what his orders were despite his attempts for such a determination, and has offered no clear explanation for his initial period of AWOL. Other than the periods of service missed, it appears that the appellant's service was honest, faithful and meritorious, and of benefit to the nation. In this regard, the Board notes that he received the Combat Infantry Badge and has alleged that he was wounded in Vietnam. He has not, however, contended that such things as combat service or combat wounds caused him to go AWOL. Additionally, the appellant has not alleged that a family emergency or obligation forced him to go AWOL. He did indicate during the RO hearing that because he was young, he did not know what to do as far as contacting the Army between 1970 and 1974, that he thought that the Army knew where he was, and that they would "come and get [him]." The Board realizes that the appellant was only 19 years of age when he went AWOL the second time; however, the Board is of the opinion that despite this relatively young age, the appellant could not have thought that he was simply on authorized leave for that substantial amount of time. His explanation that he contacted the Army on several occasions to no avail is not substantiated by the objective evidence of record, and his contentions to the effect that they could not find his records are of suspect credibility, given that his records were readily available when he ultimately sought his discharge. As noted, upon his discharge, the appellant stated that after two years of serving in combat he was afraid to serve stateside; however, he has not elaborated on this particular explanation. The Board again notes that upon returning to the states, he engaged in apparent gainful employment up until being discharged in 1974. The foregoing evidence does not show that the appellant had a valid legal defense to his AWOL charge, or any other compelling reasons warranting his periods of AWOL, even when the facts are evaluated in terms of his age, cultural background, educational level and judgmental maturity. 38 C.F.R. § 3.12(c)(6)(ii) (1999). Accordingly, the Board finds that compelling circumstances have not been shown which warrant his prolonged unauthorized absence. In conclusion, the evidence of record leaves no doubt that the appellant was discharged under other than honorable conditions as the result of an absence without official leave for a continuous period of at least 180 days. This type of discharge is clearly a bar to entitlement to VA benefits. 38 U.S.C.A. § 5303(a) (West 1991). Based upon the evidence of record, the Board finds that the appellant was not insane at the time he committed the offense, and that compelling circumstances have not been shown which warrant his prolonged unauthorized absence. Accordingly, the appeal is denied. ORDER Basic eligibility for VA benefits is not met, and as such, the appeal is denied. D. C. Spickler Member, Board of Veterans' Appeals