Where a veteran had gone AWOL for a period and then reported back to his unit, his DD Form 214 reflected that he had “lost time” under 10 U.S.C. 972. The Board assumed that this meant that the time could not be counted as active service to qualify him for VA benefits, and without this time the veteran lacked the 90 days necessary to support his pension award. Section 972, however, provides an option for the service branch to compel a soldier to serve out his originally agreed time of service if he has absented himself without leave. If the Army had exercised this option, the veteran would have “made good” the missed time and would have accumulated enough active time to qualify for benefits. Instead, the Army discharged the soldier, later admitting that it had perhaps been less than fair in doing so.
In an appeal advanced by this Firm, the Court of Appeals for Veterans Claims ruled in a precedential decision (meaning that the decision establishes a rule of law and will be published) that the Board had erred in presuming the meaning of the terse reference on the DD Form 214. The Court held that VA’s regulation, 38 C.F.R. 3.203, permits the VA to rely on service department documents if they clearly establish the necessary qualifying service, but where they do not, as in this case, VA has no choice but to inquire of the service department, i.e. the Army, as to the nature and character of the veteran’s service.
The result of the Court’s decision in this case was the restoration of erroneously-revoked pension benefits. Should the VA attempt to revoke the pension again, it will then have to consult with the Army about the meaning of “lost time” in this context. This will confront the Army with the interesting question of how time should be classified when the Army could have compelled further military service, which would have allowed the soldier to earn back the lost AWOL time, but the Army cuts off that opportunity by not compelling extra service. Should the soldier be credited with what he could have earned back if the Army had not forestalled it?
