Lane v. Principi

16 Vet. App. 78, 2002 U.S. Vet. App. LEXIS 276, 2002 WL 561225
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 16, 2002
Docket99-1769
StatusPublished
Cited by19 cases

This text of 16 Vet. App. 78 (Lane v. Principi) 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
Lane v. Principi, 16 Vet. App. 78, 2002 U.S. Vet. App. LEXIS 276, 2002 WL 561225 (Cal. 2002).

Opinion

FARLEY, Judge:

On appeal is a July 26, 1999, decision of the Board of Veterans’ Appeals (BVA or Board) that found that a July 1997 BVA decision, denying basic eligibility for VA benefits on the basis of the veteran’s character of discharge, was not the product of clear and unmistakable error (CUE). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the July 1999 decision of the Board.

I. BACKGROUND

The veteran served on active duty in the U.S. Army from September 1967 to February 1971. Record (R.) at 2, 20. His service included a tour of duty in Vietnam from March 1968 to March 1969, for which he was awarded a number of medals, including the Bronze Star Medal, the Vietnam Service Medal with one Bronze Service Star, the Vietnam Gallantry Cross with Palm Leaf, the National Defense Service Medal, and the Combat Infantryman Badge. R. at 3, 20, 98. His service medical records reflect that he sought treatment for sleeplessness in October 1969 and March 1970 and was given Librium as a sleep aid. R. at 55, 60. During his January 1971 separation examination, the veteran responded “yes” when asked whether he had experienced “frequent trouble sleeping,” had “frequent or terrifying nightmares,” had “attempted suicide,” and had “coughed up blood.” R. at 71. At the same time, he denied having “nervous trouble of any sort” or “any drug or narcotic habit.” Id. His February 3, 1971, DD214 Discharge Form reflects that he had been absent without leave (AWOL) for 392 days, including one period of 190 consecutive days, and that he was discharged “under other than honorable conditions.” R. at 20.

In an October 1980 VA regional office (RO) “Administrative Decision,” the veteran’s discharge was “considered to have been issued under conditions [that] preclude payment of VA benefits.” R. 111-12. The appellant contested that decision, and, in a July 21, 1997, decision, after VA had apparently misplaced the appeal for many years, the Board determined that the character of the veteran’s discharge barred his entitlement to VA benefits. R. at 333-43. The record before the 1997 Board included evidence that pursuant to Presidential Proclamation No. 4313, in May 1976 the appellant had been issued a clemency discharge, and that in February 1977, the Army Discharge Review Board had up *80 graded his discharge to “under honorable conditions.” R. at 337; see also R. at 86, 89, 98. The Board also had statements from the appellant describing in detail several traumatic incidents that had occurred in Vietnam and his testimony that while in Vietnam, he had become dependent upon drugs, including heroin, to escape the fear of combat, and that upon his return to the United States, he began going AWOL because he could not cope with army life. R. at 338. The record included private medical records showing treatment for a psychiatric disability, including a 1992 diagnosis of post-traumatic stress disorder. Id.

In the 1997 decision, the Board cited 38 U.S.C. § 5303(a) as a bar to benefits under laws administered by VA to a person discharged under conditions other than honorable on the basis of a continuous AWOL period of at least 180 days, unless such person demonstrated that compelling circumstances warranted the prolonged absence. R. at 339. The 1997 Board decision then paraphrased the controlling regulations, stating:

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 [or] 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.

R. at 340 (citing 38 C.F.R. § 3.12(c)(6)(i-iii) (1996)). Among the factors that the Board said it considered were the appellant’s statements that he was only 18 years old when he enlisted; that he was told he would be an administrative clerk but was instead placed in the infantry; that he was given drugs by his fellow soldiers and became dependent upon those drugs to escape his fears of combat; that he had experienced many traumatic incidents while serving in Vietnam; and that his superiors treated him like “dirt.” R. at 338. The BVA found that the veteran’s quality and length of service were honest, faithful, meritorious, and of benefit to the nation, but the BVA concluded, “in light of the totality of the evidence of record,” that there did not exist compelling circumstances to warrant the prolonged AWOL periods. R. at 341-42. To be more specific, the 1997 Board decision stated:

[The appellant’s] combat service certainly would have exposed him to some hardship and/or suffering during overseas service. However, the objective evidence of record, contemporaneous with the appellant’s return from overseas duty[,] fails to document the presence of any circumstances [that] support his assertions regarding drag dependence, difficulty with superiors, or an inability to fulfill his duties as assigned due to being in a “state of confusion.” There are no records of hospitalization or counseling reports to confirm treatment for any psychiatric symptomatology or substance abuse either upon return from overseas or during the time periods in which the appellant was absent from his *81 unit. In fact, the first evidence of record to suggest either the presence of a psychiatric disorder or substance abuse [is dated] 1992, many years after service discharge, and there is no indication within these records to establish the presence of an acquired psychiatric disorder or a substance abuse disorder in 1970 or 1971.

R. at 341.

In the July 1999 BVA decision here on appeal, the Board found that its 1997 decision did not contain CUE. R. at 17. The Board rejected the appellant’s two arguments as to why the 1997 BVA had committed CUE: (1) Its failure to apply 38 C.F.R. § 3.12(e) (2001) (regarding discharge issued through board for correction of records); and (2) its misapplication of 38 C.F.R. § 3.12(c)(6)® and (ii) (factors to consider in determining whether compelling circumstances warranted prolonged AWOL). R. at 12-17.

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Bluebook (online)
16 Vet. App. 78, 2002 U.S. Vet. App. LEXIS 276, 2002 WL 561225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-principi-cavc-2002.