Holmes v. Brown

10 Vet. App. 38, 1997 U.S. Vet. App. LEXIS 10, 1997 WL 10402
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 14, 1997
DocketNo. 95-1073
StatusPublished
Cited by11 cases

This text of 10 Vet. App. 38 (Holmes v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holmes v. Brown, 10 Vet. App. 38, 1997 U.S. Vet. App. LEXIS 10, 1997 WL 10402 (Cal. 1997).

Opinion

NEBEKER, Chief Judge:

The appellant, Teresa J. Holmes, appeals a September 29, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) which found that the character of the service member’s discharge was a statutory bar to entitlement to VA benefits. The appellant submitted an informal brief, and the Secretary submitted a motion for summary affirmance in lieu of a brief. The Court does not find the motion for summary affirmance to be appropriate because the appeal does not meet the criteria for such action under Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Nonetheless, upon due consideration [40]*40of the record and the relevant statutory and regulatory provisions, the Court will affirm the Board’s decision for the following reasons.

I. FACTS

The appellant’s deceased husband, former service member Michael Holmes, served on active duty in the U.S. Army from October 1969 to February 1973. Record (R.) at 21-22. He initially enlisted for a three-year term in October 1969. Ibid. After serving one year and nine months, he was discharged for immediate reenlistment for a six-year period. R. at 22, 124. He served in Vietnam from July 17 through December 30, 1971. Upon returning to the United States, Mr. Holmes was absent without leave (AWOL) from March 1 to March 13,1972, from March 25 to April 5, 1972, and from April 5 to December 11, 1972. R. at 32-33. After his apprehension by military authorities, he reported marital problems as the cause of his AWOL violation. R. at 33. A discharge for the good of the service was recommended by the commanding officer and not disputed by Mr. Holmes. R. at 33, 37-39. He signed a letter acknowledging that, because of the character of his discharge under other than honorable conditions (UOTHC), he might be ineligible for all VA benefits. R. at 37. On February 22, 1973, he was discharged UOTHC. R. at 22.

Mr. Holmes’ first marriage ended while he was in service. R. at 135-36. He obtained a divorce from his second wife in May 1985, and subsequently married the appellant, Mrs. Teresa Holmes, in September 1988. R. at 16. On January 20, 1992, he committed suicide by inflicting a gunshot wound to his head. R. at 13. The death certificate also lists acute alcohol and drug intoxication as contributing factors in his death. Ibid. In February 1992, Mrs. Teresa Holmes filed for dependency and indemnity' compensation (DIC) as the service member’s surviving spouse. R. at 16. The regional office (RO) informed her that her husband’s UOTHC discharge constituted a bar to VA benefits, and she filed a Notice of Disagreement with that decision in October 1992. R. at 103,105. At a personal hearing before the RO, Mrs. Holmes attributed her husband’s in-service problems to his first marriage and his experiences in Vietnam. R. at 135-36. She also submitted two lay statements made by friends of Mr. Holmes, which both suggested that the Vietnam experience brought on his suicide. R. at 155-56. In July 1993, the RO again emphasized that the character of Mr. Holmes’ discharge barred entitlement to the benefits sought. R. at 159-60. Specifically, the decision reasoned that “[t]he serviceman’s pattern of AWOL started prior to ... completion of his original obligation and that his entire period of service from October 16, 1969[,] to February 22, 1973[,] constituted one period of service.” Ibid. Moreover, because his third period of AWOL exceeded the statutory limit of 180 days (38 U.S.C. § 5303), without an upgraded discharge, no entitlement to benefits could be established. Ibid. Mrs. Holmes appealed, and the September 1995 BVA decision here presented for review followed. R. at 3-9.

The Board found that Mr. Holmes’ discharge UOTHC was based on an AWOL period longer than 180 days, that no compelling reasons warranted the prolonged absence, and thus, “the character of the service member’s discharge [barred] entitlement to VA benefits.” R. at 5. Before this Court, Mrs. Holmes argues, inter alia, that because her husband’s first discharge was honorable, she should be awarded DIC benefits on that basis. Alternatively, she submits that the benefit of doubt rule was not applied to her claim. Appellant’s Brief at 1-2.

II. ANALYSIS

A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran. See Aguilar v. Derwinski, 2 Vet.App. 21 (1991) (before applying for benefits, a person must demonstrate, by preponderance of evidence, qualifying service and character of discharge); cf. Tulingan v. Brown, 9 Vet.App. 484, 487 (1996) (“where a veteran has lost his status as a benefits-eligible claimant, he must establish it anew by a preponderance of the evidence”). Section 101(2) of title 38, United [41]*41States Code, defines “veteran” as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” “Discharge or release” is defined to include:

(A) retirement from the active military, naval, or air service, and
(B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable.

38 U.S.C. § 101(18). As to Mrs. Holmes’ argument that her husband’s first period of service should render her eligible for DIC benefits, the Court notes section 101(18) and the applicable VA regulation, which states:

(a) A discharge ... to reenlist is a conditional discharge if it was issued during one of the following periods:
(2) ... the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system.
(b) Except as provided in paragraph (c) of this section, the entire period of service [involving a conditional discharge] constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service.

38 C.F.R. § 3.13 (1995). As the conditions enumerated in subsection (c) are not relevant to this appeal, the Court need not address them. The serviceman reenlisted after serving 21 months of a 36-month term, i.e., before the date when he would have become entitled to an honorable discharge. Thus, it is clear that Mr. Holmes’ entire period of service, for VA purposes, must be viewed as one period, and benefit entitlement arises from “the character of the final termination of such period.” Ibid.

Mrs. Holmes argues that her husband’s first period of service should be considered alone in determining eligibility for benefits.

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Bluebook (online)
10 Vet. App. 38, 1997 U.S. Vet. App. LEXIS 10, 1997 WL 10402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-brown-cavc-1997.