Citation Nr: 0004445 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-14 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether the character of the appellant's discharge is a bar for purposes of VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The appellant served on active duty from November 1979 to May 1981. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1997 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. FINDINGS OF FACT 1. The appellant's active military service was terminated in May 1981 by a discharge under other than honorable conditions. 2. The appellant's discharge from military service was the result of having been Absent Without Leave (AWOL) for a continuous period of 158 days. 3. The appellant was not insane at the time that he began his unauthorized absence. 4. The appellant's prolonged AWOL period cannot be considered a minor offense. 5. There were no compelling circumstances to warrant the appellant's prolonged period 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); 38 C.F.R. § 3.12 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background In the present case, a review of the appellant's service records shows that he enlisted in the United States Army for a period of three years in November 1979. The appellant went AWOL from October 17, 1980 to March 23, 1981. In April 1981, the appellant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, AR 635-200. In an attachment, dated in April 1981, the appellant stated that he went AWOL due to a family crisis and that he just did not want to stay in the Army. His family crisis included the passing of his foster mother, a pending divorce and financial problems. Before going AWOL, he stated that he attempted to resolve his personal problems by asking his captain for a discharge. In response to the appellant's April 1981 Request for Discharge under the provisions of Chapter 10, AR 635-200, two of the appellant's superior officers, in April 1981, recommended approval and that an Other Than Honorable Discharge Certificate be issued to the appellant. In the opinion of one of these commanding officers, the appellant had no motivation for continued service and would not respond to either counseling or rehabilitation. It was indicated that the appellant was pending a trial for an offense punishable by a Bad Conduct or Dishonorable Discharge. The administrative burdens involved in the court-martial and possible confinement were considered warranted in view of the nature of the offense. The appellant was medically examined and was qualified for separation. There did not appear to be any reasonable grounds to believe that the appellant was presently or at the time of his misconduct mentally defective, deranged, or abnormal. The appellant was subsequently discharged from the service in May 1981 under Other Than Honorable Conditions. In March 1997, the Army Discharge Review Board (ADRB), after careful consideration of the appellant's military records and all other available evidence determined that he was properly and equitably discharged. In making this determination, the ADRB found that the evidence of record showed that the appellant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. The ADRB noted that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-marital. By doing so, the appellant was noted to have admitted guilt to the offense of having been AWOL for more than five months. The ADRB was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Finally, the ADRB considered the appellant's entire record of service for the period under review. It was also noted that the characterization of service for this type of discharge was normally under other than honorable conditions and the applicant was aware of that prior to requesting the discharge. The ADRB, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief. Accordingly, the Secretary of the Army directed that the appellant be advised that his request for a change and/or reason for discharge had been denied. In a September 1997 administrative decision, the RO denied the appellant's claim for VA benefits on the basis that his discharge from the military service was issued under conditions which bar the payment of VA benefits. The appellant appealed this decision. The appellant, at his October 1998 RO hearing in Providence, Rhode Island, testified that during the period he went AWOL from October 1980 to March 1981, he tried to resolve the personal problems he was experiencing at home with his wife. While AWOL, however, the personal problems were not resolved. He tried working several jobs, but his wife ultimately filed for separation. At that point, he turned himself back in at the office at Fort Devens. He stated that they gave him a letter and then told him to turn himself in at the Fort Dix Personnel Control Facility. They told him he would be getting a general, other than honorable discharge that would be upgraded in six months. The appellant also testified that he never received anything in writing about the type of discharge he received and assumed that he would be automatically upgraded. He only discovered that he did not receive the upgrade when he went to a VA hospital for treatment of hepatitis C a few years previously and found out that he had not been upgraded. At the appellant's December 1999 BVA hearing in Washington, D.C., the representative testified that the appellant was required to be on active duty from November 2, 1979 to May 27, 1981, but he went AWOL for approximately 158 days from October 17, 1980 to March 24, 1981. His discharge was under other than honorable conditions. The appellant testified that he went AWOL because he was under a lot of stress, undergoing a separation from his wife, and experiencing financial problems. Further, his foster mother had passed- way. The appellant stated that due to these circumstances, he requested leave. The first time he requested leave he was given 30 days to try to straighten his problems out. He stated that a couple days before this leave period ended, he came back and asked for an extension and also asked for a hardship discharge, but both requests were denied. The appellant also testified that, at the time he went AWOL, he had two children to take care of. He indicated that his main concern at the time he went AWOL was his wife and two kids. He stated that other than going AWOL, he had no disciplinary problems during the period he served in the military. He testified that at the time he went AWOL, his unit did not need him as a combat engineer and that he was not scheduled to be deployed. After his hardship discharge was denied, he was sent to a psychiatrist on post for evaluation and he also went to North Central Massachusetts Mental Health for an independent evaluation. He did this right before he went AWOL. The appellant testified that other than the fact that the aforementioned psychiatric treatment resulted in a finding that he was "very, very angry, there was no psychosis or anything." He also stated that there was no finding of incompetency. He testified that he had no additional AWOL periods. Analysis For purposes of eligibility for VA benefits, a "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Benefits are also 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 for certain offenses, include willful and persistent misconduct, is considered to have been under dishonorable conditions. An exception is provided under that regulation if the discharge was because of a minor offense and service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). Additionally, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense caused the discharge. 38 U.S.C.A. § 5303(b) (West 1991); 38 C.F.R. § 3.12(b) (1996). Further, 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 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; 38 C.F.R. § 3.12(c)(6)(i-iii). As a preliminary matter, the Board observes that the appellant, at his October 1998 RO hearing indicated that some of his service records were missing and that these records would be pertinent to the outcome of his claim. The Board finds that sufficient efforts were taken by the RO to obtain these missing records. In this respect, an August 1997 VA memorandum explained the lengthy process the RO undertook to obtain the aforementioned documents, including requests made to the National Personnel Records Center (NPRC) and the U.S. Army Reserve Personnel Center (ARPERCEN). The appellant was also requested to submit any service records in his possession. In response, the appellant submitted a page from his 201 file. Additionally, in an August 1997 Report of Contact, it was indicated that the appellant was advised by the RO that all efforts were taken to obtain his service medical records, separation papers, and the facts and circumstances surrounding his other than honorable discharge. Further, the appellant was requested by the October 1998 RO hearing officer to submit private treatment records from the Northern Massachusetts Mental Health Facility, from which he claimed he received treatment around the time he went AWOL. (T. at 10) A review, however, of the claims file reveals that these private treatment records were not submitted by either the appellant or his representative. Based on the foregoing, the Board finds that VA has expended sufficient efforts to obtain the appellant's records. A review of the service medical records that are available does not reveal any complaints or findings of a psychiatric nature. Indeed, in March 1981, after returning from the period of unauthorized absence the appellant was seen by a physician and found to exhibit normal behavior, to be fully alert, fully oriented, to have a good memory, and to have a clear thinking process with normal thought content. A review of the appellant's statements, and the transcripts from his October 1998 RO hearing and his December 1999 BVA hearing in Washington, D.C., shows that he asserted the following account of the events leading up to his AWOL period: The appellant reported that he was under a lot of marital stress and experiencing financial problems. Further, he had two children to take care of and his foster mother passed-way. The appellant stated that due to these circumstances, he requested leave. The first time he requested leave he was given 30 days to try to straighten out his problems. He stated that a couple days before this leave period ended, he came back, asked for an extension and requested a hardship discharge, but both these requests were denied. The Board notes that a soldier earns only 30 days of paid leave per year. 10 U.S.C.A. § 701. After his hardship discharge was denied, but before he went AWOL, he was sent to an on-post psychiatrist for evaluation and he also went to North Central Massachusetts Mental Health for an independent evaluation. The appellant testified that other than the fact that the aforementioned psychiatric treatment resulted in a finding that he was "very, very angry, there was no psychosis or anything." He also stated that there was no finding of incompetency. Because the appellant was not given additional leave, he went AWOL for approximately 158 days from October 17, 1980 to March 24, 1981. During that time, he tried working several jobs, but his wife ultimately filed for separation and he turned himself in. Subsequently, the appellant was discharged from the service in May 1981 under Other Than Honorable Conditions. The appellant claims that he saw a psychiatrist on base and sought and independent psychiatrist's opinion just prior to his going AWOL. It therefore appears that he may have intended to argue that he was insane when he went AWOL. An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354 (1999). In addition, the Court has stated that 38 U.S.C.A. § 5303(b) and 38 C.F.R. § 3.354 require that the insanity must be such that it legally excuses the acts of misconduct. Cropper v. Brown, 6 Vet. App. 450, 453-454 (1994). In short, there must be a causal connection between the insanity and the misconduct. Id. As indicated above, the appellant's service medical records and private medical records with respect to his psychiatric treatment are unavailable. However, based on the available evidence of record, the Board finds that the evidence does not show that the appellant was insane at the time he committed the offense that caused his discharge. In this respect, the appellant, himself, testified that the psychiatric treatment he received in the service resulted in a finding that he was angry, but there was "no finding of a psychosis or anything." This testimony concerning the absence of any psychosis is corroborated by the aforementioned May 1981 examination report. Finally, there is no competent evidence that the appellant was insane at the time he went AWOL. Accordingly, the Board concludes that the preponderance of the evidence is against finding that the appellant was insane at the time he went AWOL. 38 C.F.R. § 3.12(b). The appellant has, however, argued that there were compelling circumstances to warrant his prolonged unauthorized absence such that the character of his discharge should not serve as a bar to VA benefits. Specifically, the appellant contends that he was compelled to go AWOL because he was under a lot of stress due to a pending marital separation, financial problems, and the passing away of his foster mother. In this respect, the Board notes that under 38 C.F.R. § 3.12(c)(6)(ii), the reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. The Board finds that, however, that after considering the foregoing criteria, compelling circumstances did not exist which would warrant excusing the prolonged period of AWOL. In this respect, the appellant was granted 30 days of leave in order to straighten out his life. Moreover, based on the appellant's age of 25 at that time, his having a 10th grade education, and his having served approximately one year and two months before he went AWOL, the appellant was mature to justify a finding that the prolonged period of absence without leave constituted a period of persistent and willful misconduct. Hence, the Board concludes that the foregoing evidence does not show that the appellant had either a valid legal defense to his AWOL charge, or that compelling circumstances existed which would have otherwise warranted his prolonged unauthorized absence. Further, at the time of his discharge, the evidence of record reveals that the appellant voluntarily, and in writing, requested separation from the Army. In addition, two of the appellant's superior officers recommended that an Other than Honorable Conditions Discharge be issued to the appellant. Indeed, in the opinion of one the appellant had no motivation for continued service and would not respond to counseling or rehabilitation. Therefore, the Board finds that the appellant's prolonged absence from November 2, 1979 to October 16, 1980 was not a minor offense. Further, none of the appellant's credited service was associated with hardship of foreign service, combat wounds, or service-related disability, factors for consideration in prolonged absences. 38 C.F.R. § 3.12(c)(6). 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 158 days. This type of discharge is clearly a bar to entitlement to VA benefits. 38 U.S.C.A. § 5303(a). 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. In reaching this decision the Board considered the argument that the appellant was a victim of recruiter misconduct prior to beginning his period of active duty service. The Board finds, however, that there is no evidence that the recruiter forced the appellant to go absent without leave, or that he did not have the maturity to choose a less drastic measure. Moreover, even if the recruiter did give the appellant poor advice, the United States Court of Appeals for Veterans Claims has held that "[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits." McTighe v. Brown, 7 Vet. App. 29, 30 (1994), relying upon OPM v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As the character of the appellant's discharge from service constitutes a bar to the payment of VA benefits, the appeal is denied. DEREK R. BROWN Member, Board of Veterans' Appeals