Citation Nr: 0737690 Decision Date: 11/30/07 Archive Date: 12/06/07 DOCKET NO. 05-27 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether the character of the appellant's discharge is a bar to entitlement to Department of Veterans Affairs (VA) compensation benefits. ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The appellant had active service from September 1988 through July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 decision of the VA Regional Office (RO) in North Little Rock, Arkansas, which adjudicated the issue on appeal. FINDINGS OF FACT 1. The appellant was on a period of unauthorized absence from the service for 121 days, from February 4, 1991, through June 5, 1991. 2. Following the appellant's unauthorized absence, he accepted a discharge under other than honorable conditions in lieu of court martial. 3. The appellant does not allege, and the evidence does not show, that he was insane at the time of the offenses that resulted in his discharge. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to VA compensation benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a February 2004 administrative decision, VA decided that "the service member's discharge from service on July 8, 1991, was under conditions which bar entitlement to benefits from the Department of Veterans Affairs (VA) due to acceptance of an undesirable discharge to escape trial by general court martial." The appellant has appealed that decision and is seeking to establish his status as a "veteran" for VA benefits purposes. A veteran is defined as "a person who served in the active military, naval, or air service, and who was discharged or released under conditions under than dishonorable." 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). If a former service member did not die in service, pension, compensation, or dependency or indemnity compensation 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. 38 C.F.R. § 3.12(a). Acceptance of an undesirable discharge to escape trial by general court martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(1). A discharge or release because of willful and persistent misconduct, including discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct, will also be considered a discharge under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. The Board notes that if it is established that the person in question was insane at the time of committing the offense leading to the discharge, that person is not precluded from benefits by that discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). 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 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. However, appellant has not alleged, and the evidence does not show, that he was insane at the time of committing the offenses leading to his discharge. The appellant's DD Form 214, as well as other service personnel records, shows that he was discharged from the military in July 1991 under other than honorable conditions. This followed the appellant's absence without leave from February 4, 1991, through June 5, 1991. He was discharged several days later under other than honorable conditions for the good of the service in lieu of court martial. The appellant does not dispute that he received an other than honorable discharge in lieu of court martial. Rather, he maintains that the discharge was excusable because of a hardship he was under following a family crisis involving his brother being shot execution style in November 1989. The Board notes, however, that the appellant's unauthorized departure from service occurred in February 1991, over a year after his brother's death. In any event, the Board notes that compelling circumstances warranting a prolonged unauthorized absence only applies to the bar to benefits by reason under other than honorable conditions issued as a result of an absence without leave (AWOL) for a continuous period of 180 days under 38 C.F.R. § 3.12(c)(6). In this case, the appellant was AWOL for 121 days. As such, the provisions of 38 C.F.R. § 3.12(c)(6) are not for consideration. In addition, even assuming for the sake of argument that these provisions are applicable, the Board finds that an unauthorized absence over a year after a family crisis would not equate to compelling circumstances. In this case, both 38 C.F.R. § 3.12(d)(1) and 38 C.F.R. § 3.12(d)(4) apply. Following the appellant's apprehension and return to Army custody, he accepted an undesirable discharge for the good of the service in lieu of general court martial. As such, the discharge is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(1). Also, the appellant's AWOL status for 121 days can be considered willful and persistent misconduct. Unauthorized absence is the type of offense that would interfere with and preclude the performance of the appellant's military duties and, thus, cannot be considered a minor offense. Cropper v. Brown, 6 Vet. App. 450, 453 (1994). A period of AWOL as lengthy as the appellant's equates to serious misconduct and, by analogy, was persistent. See Winter v. Principi, 4 Vet. App. 29 (1993) (finding that 32 days AWOL out of 176 days total service equals severe willful misconduct and, by analogy, persistent). Because the appellant's 121-day period of unauthorized absence can be considered willful and persistent misconduct, his discharge is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). The Board thus concludes that there is insufficient evidence to find that the appellant had an honorable period of service between September 22, 1988, and July 8, 1991. As such, the preponderance of the evidence is against his claim. Because the appellant accepted an undesirable discharge in lieu of court martial, and because his 121-day period of AWOL is considered willful and persistent misconduct, his discharge is considered to have been issued under dishonorable conditions. Thus, the appellant is not considered a veteran, thereby barring eligibility to VA compensation benefits. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d), 3.12(a), (d). The Duties to Notify and Assist VA fulfilled its duties to notify and assist the appellant with regard to this appeal of the February 2004 administrative decision. Sufficient evidence is available to reach a decision and the appellant is not prejudiced by appellate review at this time. See 38 U.S.C.A. § 5103(a), 5103A; 38 C.F.R. § 3.159. The November 2003 VA letter informed the appellant that VA would make a decision about the character of his military service and his eligibility for VA benefits. He was provided the pertinent regulations at that time and advised to submit information that would tend to support his claim (such as the events that led to his discharge, etc.). He was not provided with notice of the type of evidence necessary to establish an effective date or disability rating for the benefits requested. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Despite the inadequate notice provided to the appellant on this element, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. As determined, above, the preponderance of the evidence is against a finding that the appellant is a veteran for VA compensation purposes, so any questions as to effective date and disability ratings to be assigned for benefits are rendered moot. Thus, the November 2003 letter satisfied the requirements of 38 C.F.R. § 3.159(b)(1) (2007). VA also has a duty to assist the appellant in substantiating his claim under 38 C.F.R. § 3.159(c), (d) (2007). The claims folder contains the appellant's statements and his service personnel records, including the DD Form 214 denoting his type of separation from service. VA has done everything reasonably possible to assist the appellant. A remand for further development of this issue would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board finds that no further action is needed to meet the requirements of the Veterans Claims Assistance Act of 2000 or the Court. ORDER Eligibility for VA compensation benefits is denied based upon the character of the appellant's discharge. ____________________________________________ DOUGLAS E. MASSEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs