Lane v. Principi

• Decision Date: 07 August 2003
• Docket Number: No. 02-7358.,02-7358.
• Citation: 339 F.3d 1331
• Parties: Bruce E. LANE, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

339 F.3d 1331

Bruce E. LANE, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 02-7358.

United States Court of Appeals, Federal Circuit.

DECIDED: August 7, 2003.

Kenneth M. Carpenter, Carpenter, Chartered of Topeka, KS, for claimant-appellant.

Kyle E. Chadwick, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were David M. Cohen, Director; and Martin F. Hockey, Jr., Senior Trial Counsel. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Jamie L. Mueller, Attorney, Department of Veterans Affairs, of Washington, DC.

Before LOURIE, SCHALL, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

Bruce E. Lane served in the United States Army ("Army"). Following his discharge, he applied to the Department of Veterans Affairs ("VA") for benefits. A VA Regional Office ("RO") determined that he was not entitled to benefits because of the character of his discharge. Mr. Lane appealed the RO's decision to the Board of Veterans' Appeals ("Board"), which affirmed the RO's decision. See In re Lane, No. C26 873 648, slip op. at 3 (B.V.A. July 21, 1997) ("Lane I"). Mr. Lane then filed a motion with the Board, alleging that its decision in Lane I contained clear and unmistakable error ("CUE"). Following the Board's denial of his motion, see In re Lane, No. C26 873 648, slip op. at 17 (B.V.A. July 26, 1999) ("Lane II"), Mr. Lane appealed to the United States Court of Appeals for Veterans Claims ("Veterans Court"), which sustained the Board's decision, see Lane v. Principi, 16 Vet.App. 78 (2002) ("Lane III"). Mr. Lane now appeals to us. We affirm.

BACKGROUND

I.

Mr. Lane served on active duty in the Army from September of 1967 to February of 1971. His service included a tour in Vietnam from March of 1968 to March of 1969. After his return from Vietnam, Mr. Lane went absent without official leave ("AWOL") for a total of 392 days, including one period of 190 consecutive days. As a result, he was discharged from the service on February 3, 1971 "under other than honorable conditions."

Mr. Lane's service medical records reflect that he sought treatment for sleeplessness in October of 1969 and March of 1970. In addition, during his separation medical examination, he indicated that he had experienced "Frequent Trouble Sleeping" and "Frequent or Terrifying Nightmares." He also indicated that he had "Attempted Suicide." At the same time, he denied ever having "Nervous Trouble of Any Sort" or "Any Drug or Narcotic Habit."

Following his discharge, Mr. Lane applied for VA benefits. In June of 1971, the Los Angeles RO, referring to Mr. Lane's record of having been AWOL, determined that Mr. Lane's discharge was under other than honorable conditions and, as such, was a bar to benefits. Subsequently, however, in May of 1976, pursuant to a Presidential Proclamation, Mr. Lane received executive clemency and a Clemency Discharge. Thereafter, in February of 1977, the Army Discharge Review Board, established pursuant to 10 U.S.C. § 1553, upgraded his discharge to "under honorable conditions." That action was affirmed by the Discharge Review Board in May of 1978.

In April of 1979, Mr. Lane once again applied for VA benefits, this time to the San Diego RO. Considering his claim, the RO noted that Mr. Lane initially had been discharged under other than honorable conditions for having been AWOL, but that subsequently he had received a Clemency Discharge. The RO determined, however, that the original dishonorable discharge remained a bar to Mr. Lane's receiving VA benefits. Mr. Lane filed a Notice of Disagreement, alleging that he was eligible for VA benefits based on the upgraded discharge issued by the Army Discharge Review Board. In October of 1980, the RO issued another decision confirming its prior decision that Mr. Lane's discharge was "considered to have been issued under conditions which preclude[d] payment of VA benefits." The decision noted that "an honorable or general discharge issued on or after October 8, 1977 by a Discharge Review Board established under 10 USC [§ ]1553 does not set aside any bar to benefits imposed under VAR [§ ]1012(C)(6) [currently 38 C.F.R. § 3.12(c)(6)]." Mr. Lane then appealed to the Board.

II.

In July of 1997, after the RO had apparently misplaced Mr. Lane's appeal for many years, the Board affirmed the RO's decision. Lane I, slip op. at 9-10. The Board held that the character of Mr. Lane's discharge barred him from receiving VA benefits. Id. at 3. In reaching this conclusion, the Board relied on 38 U.S.C. § 5303(a), which states, inter alia:

(a) ... the discharge of any ... person... on the basis of an absence without authority from active duty for a continuous period of at least one hundred and eighty days if such person was discharged under conditions other than honorable unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence ... shall bar all rights of such person under laws administered by the Secretary based upon the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of such discharge by a board established pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added). The Board stated that, pursuant to section 5303(a), it had to determine whether there were compelling circumstances to warrant Mr. Lane's prolonged unauthorized absence. Lane I, slip op. at 7-8. The Board turned to 38 C.F.R. § 3.12(c) for the factors it needed to consider to determine whether such circumstances existed. Id. at 8. Section 3.12(c) provides, inter alia:

(c) Benefits are not payable where the former service member was discharged or released under one of the following conditions:

...

(6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence.... The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.

(i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. 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.

38 C.F.R. § 3.12(c) (emphases added). The Board then applied section 5303(a) and section 3.12(c) to Mr. Lane's case to determine whether there were compelling reasons for his AWOL periods. Lane I, slip op. at 9-10. The Board noted that Mr. Lane pointed to several reasons for going AWOL: when he enlisted in the Army, he was told he would be an administrative clerk but was instead placed in the infantry; he was given drugs by his fellow soldiers in Vietnam and became dependent upon those drugs to escape his fear of combat; and he experienced many traumatic incidents while serving in Vietnam. Mr. Lane stated that, upon his return from Vietnam, his superiors treated him like "dirt," he was addicted to drugs and in a state of confusion, and he could not cope with Army life. As a result, he started going AWOL. Id. at 6.

The Board found that Mr. Lane's service in Vietnam satisfied 38 C.F.R. § 3.12(c)(6)(i), in that it "was `of such quality and length that it ... [could] be characterized as honest, faithful and meritorious and of benefit to the Nation.'" Id. at 9. In addition, the Board determined that Mr. Lane's combat service would have exposed him to some hardship and/or suffering during overseas service. Id. The Board observed, however, that the "objective evidence of record, contemporaneous with ... [Mr. Lane's] return from overseas duty," failed to document the presence of any circumstances which supported Mr. Lane's assertions regarding drug dependence, difficulty with superiors, or an inability to fulfill his duties as assigned due to being in a state of confusion. Id. The Board noted:

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 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.

Id. In sum, the Board found that, in light of the totality of the evidence in the record, it could not conclude that "there were compelling circumstances present upon... [Mr. Lane's] return from overseas which were of such severity as to force ... [him] into leaving his unit and thereby warrant his prolonged periods of unauthorized absence." Id. at 9-10....