Citation Nr: 1015167 Decision Date: 04/26/10 Archive Date: 05/06/10 DOCKET NO. 08-19 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the character of the appellant's discharge for the period of service from October 1983 to July 1985 is considered a bar to payment of VA benefits. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The appellant had active military service from October 1983 to July 1985 in the United States Army. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which determined that the appellant's character of discharge, under "other than honorable conditions", was a regulatory bar to VA compensation benefits under 38 C.F.R. § 3.12(d). As a preliminary matter, the Board sees the character of discharge bar to VA compensation benefits, however, does not preclude entitlement to VA healthcare under 38 U.S.C.A. Chapter 17. In this vein, in the December 2006 Administrative Decision, the RO determined that the appellant is in fact eligible for VA health care and related benefits under Chapter 17, for any disabilities found to be incurred or aggravated in the line of duty. In this regard, with certain exceptions, Chapter 17 benefits shall be provided to certain former service persons with administrative discharges under "other than honorable conditions", such as the appellant, for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360(a). However, such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. See 38 C.F.R. § 3.360(b). In making determinations of Chapter 17 VA health-care eligibility, the same criteria will be used as are applicable to determinations of 'service incurrence' and 'in line of duty' when there is no character- of-discharge bar. 38 C.F.R. § 3.360(c). Since none of the above § 3.12(c) statutory bars apply in the present case, and the appellant did not receive a bad conduct discharge, he is eligible for Chapter 17 VA health care benefits if his alleged psychiatric and lumbar spine disabilities are found to be incurred or aggravated in the line of duty, notwithstanding any prohibition of VA compensation benefits as discussed below. But it is unclear whether the appellant wishes to pursue entitlement to Chapter 17 VA health care benefits. The RO should request the appellant to clearly indicate what additional claims, if any, he wishes to pursue. The RO should then take appropriate action to adjudicate these claims, if any. FINDINGS OF FACT 1. The appellant served on active duty with the United States Army from October 1983 to July 1985, but received an "other than honorable" discharge upon his separation from service for the "good of the service", due to three periods of absence without leave (AWOL) for 62 days. His periods of AWOL were not minor and constitute willful and persistent misconduct. 2. The probative evidence of record does not demonstrate that the appellant was insane at the time of the AWOL offenses. CONCLUSION OF LAW The character of the appellant's service from October 1983 to July 1985 is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5303 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.159, 3.354 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the appellant dated in June 2006 and July 2006. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his claim; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) recently addressed the adequacy of VCAA notice in cases concerning the character of discharge. See, e.g., Dennis v. Nicholson, 21 Vet. App. 18 (2007). The Board finds that the appellant received adequate VCAA notice by the July 2006 notice letter from the RO prior to the RO's initial decision regarding the character of the appellant's discharge in December 2006. The notice letter made clear that VA was adjudicating the appellant's status as a Veteran prior to discussing the merits of any claims. The appellant was provided a copy of the regulation regarding character of discharge (38 C.F.R. § 3.12). The appellant was told that he would be eligible for VA benefits if VA found that his service was not dishonorable. The appellant was also told to provide information and evidence with respect to the events that led to his discharge and to state why he thought his service was honorable. Most importantly, the appellant has shown actual knowledge as to the character of discharge issue by submitting lay and medical evidence of his reasons for his going AWOL during service as well as recent evidence of his mental health issues, thus inferring an insanity defense. See Mlechick v. Masfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim); Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim."). Furthermore, the July 2006 letter from the RO further advised the appellant of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In any event, the assignment of a disability rating or effective date is not now before the Board, since the threshold, preliminary issue on appeal - the character of the appellant's service, is being denied. Thus, any question as to the rating or effective date to be assigned would be moot. As to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the December 2004 rating decision on appeal. Thus, there is no timing error. As for the duty to assist, the RO has secured the appellant's service treatment records (STRs), service personnel records (SPRs), and private medical evidence as identified and authorized by the appellant. Included with the SPRs are documents from the Army Board for Correction of Military Records (ABCMR). The appellant has submitted personal statements and additional private medical evidence. The appellant has not contended that any additional evidence remains outstanding. Therefore, the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). Governing Law and Regulations for Character of Discharge Under VA laws and regulations, and for benefits purposes, a "Veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2009). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a) (2009). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380, (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification - the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception such as insanity applies. 38 C.F.R. § 3.12 (2009). Specifically, there are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c); and, regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (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 (the regulation provides certain exceptions to this condition). An adjudicator is permitted to look at totality of evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL. Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003). As to the regulatory bars, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions: (1) Acceptance of an undesirable discharge to escape trial by general court- martial; (2) Mutiny or spying; (3) An offense involving moral turpitude (This includes, generally, conviction of a felony); (4) Willful and persistent misconduct (This includes a discharge under "other than honorable conditions", if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious); (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty (examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.). A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). If the Veteran was AWOL which materially interfered with the performance of military duty, the requirements as to line of duty are not met. 38 C.F.R. § 3.1(m)(1). The Court has determined that an absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). Similarly, the Court also affirmed a Board decision which found that 32 days unauthorized absence out of 176 days total service was severe misconduct, and, by analogy, persistent misconduct. Winter v. Principi, 4 Vet. App. 29 (1993). A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory bar to the payment of benefits unless it is found that the person was "insane" at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Thus, "insanity" is a defense to all statutory and regulatory bars. VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) 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(a) (2009). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved, and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Mental illness is not identical to 'insanity.'" Beck v. West, 13 Vet. App. 535, 539 (2000). In addition, the Court has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that "a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham, 8 Vet. App. at 449. In May 1997, the VA General Counsel discussed the intended parameters of the types of behavior which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his normal method of behavior could best be resolved by adjudicative personnel on a case- by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). The VA General Counsel opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." In particular, the term "become antisocial" in 38 C.F.R. § 3.354(a) refers to the development of behavior which is hostile or harmful to others in a manner which deviates sharply from the social norm and which is not attributable to a personality disorder. In order to be considered insane under the departure-from- accepted-standards criteria of section 3.354(a), a person must both deviate from the accepted standards of the community to which he or she belongs by birth and education and be unable to adjust to the social customs of the community in which he or she resides. Id. The opinion also held that behavior which was generally attributable to a substance-abuse disorder did not exemplify the severe deviation from the social norm or the gross nature of conduct which was generally considered to fall within the scope of the term insanity and therefore did not constitute insane behavior. Id. Generally, the predicate for insane behavior within the meaning of VA law and regulations is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import and consequences of his acts, such that he is a danger to himself or others. In effect, he is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. Id It is the claimant's burden to show evidence establishing the requisite character of service by a preponderance of the evidence. Lindsay v. Brown, 9 Vet. App. 225 (1996). Analysis - Character of Discharge The appellant's DD Form 214 reveals that he was discharged from active duty service in July 1985 with a narrative reason given: "for the good of the service." His character of service was designated as "Under Other Than Honorable Conditions." The separation authority was Chapter 10, Army Regulation 635-200, which is a voluntary discharge in lieu of trial by court martial. The separation code was JFS, which means for the good of the service, in lieu of court martial. His military occupational specialty (MOS) is listed as an infantryman. His SPRs reveal he was 18 years of age when he joined the Army, and had completed high school. His SPRs indicate that the he was discharged from active duty service voluntarily for the "good of the service" for going AWOL three times for over 62 days total. Specifically, the appellant had three periods of AWOL: December 10, 1984 to December 11, 1984, December 17, 1984 to December 19, 1984, and April 9, 1985 to June 2, 1985. In May 1985 he was dropped from the rolls due to desertion. In June and July 1985 SPR memorandums to his commanders, it was requested that the appellant be given an "Other Than Honorable" discharge certificate. Trial by special court martial was recommended. Ultimately, his SPRs reveal that the appellant signed a Request for Discharge For the Good of the Service form in July 1985. The appellant waived his separation examination. It was noted that he consulted with counsel prior to signing this form. He accepted the discharge voluntarily under "Other than Honorable" conditions in lieu of trial by court martial proceedings which would have been taken against him. An undated Department of Army letter in his SPRs states that the appellant was barred from entering a particular military installation due to his "misconduct." The December 2006 VA administrative decision on appeal concluded that the above evidence demonstrated there was identifiable pattern of willful and persistent misconduct during service for his three periods of AWOL, which constituted a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(4). The appellant appears to offer the defense of insanity to the regulatory bar of willful misconduct. He maintains that during his three periods of AWOL he was under a lot of pressure due to marital issues, poor treatment from other soldiers including theft of his personal belongings, vandalism of his bunk bed, and generally being singled out and picked on. He believes he has had psychological problems since childhood, in addition to alcohol addiction since age 16. He indicates his preexisting psychological problems were impacted by his military service. He admits that he was not treated for his psychiatric problems or alcoholism during service or for years thereafter. In summary, although the appellant does not specifically discuss insanity as a defense to his unfavorable discharge, the Board finds the evidence of record reasonably raises that issue. See application for Correction of Military Records dated in April 2005, which is contained in his SPRs; personal statements to a Senator, dated in July 2006 and January 2008; and private DeKalb Community Service Board records dated in May 2004 and May 2006. In light of the above evidence, the Board finds that the three AWOL offenses which led to his "Other Than Honorable" discharge were willful and persistent misconduct, a regulatory bar to VA benefits, as defined under 38 C.F.R. § 3.12(d)(4). That is, the record shows that the appellant's pattern of three unauthorized absences precluded him from adequately performing his military duties. In this regard, the Court has determined that an absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. See, e.g., Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board's finding that 2-1/2 months of AWOL out of 9 months (over 27 percent AWOL) of active duty service was willful and persistent misconduct); Stringham, 8 Vet. App. at 448 (affirming the Board's finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter, 4 Vet. App. 29 (affirming the Board's finding that 32 days of AWOL out of 176 days (over 18 percent AWOL) of active duty service was willful and persistent misconduct). His AWOL status on three separate occasions, including his third and final period of AWOL for nearly two months clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). And it cannot be said that his service was "otherwise honest, faithful and meritorious", as a July 1985 letter to his commander notes that approval of his discharge would "improve morale and discipline within the unit." In other words, it appears that the appellant's continued service after July 1985 would clearly have been detrimental to the Army. Therefore, the Board find's the appellant's conduct was indeed willful and persistent misconduct, and therefore his discharge is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d). With regard to the defense of insanity, at the time of the commission of the appellant's three periods of AWOL, the preponderance of the evidence does not demonstrate that the appellant was considered "insane" as defined under 38 U.S.C.A. § 5303(b) and 38 C.F.R. § 3.12(b). The Board acknowledges that private treatment records dated in 2004 and 2005 reveal diagnoses of major depressive disorder and alcohol dependence. In 2004, the appellant was arrested on domestic violence charges and became unemployed. A history of alcohol abuse since age 16 was documented, and it was noted that the appellant underwent rehabilitation treatment in 2000. However, the Board finds it probative that no physician has stated that the appellant had diagnoses of major depression or alcohol abuse during service or that these disorders were of such severity during service as to have rendered the appellant insane at the time he went AWOL on three occasions. The appellant, himself, is not competent to say he was insane during service. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In fact, the appellant has never been adjudicated as incompetent. The appellant's STRs and SPRs are negative for any complaint, treatment, or diagnosis for any of his current psychiatric disorders. His May 1983 enlistment examination is negative for insanity or any other psychiatric problems. In any event, the Board notes that the appellant's current psychiatric diagnoses are not the equivalent of insanity. Therefore, the Board finds there is no probative evidence of insanity at the time the offenses in question were committed. As noted above, mental illness in itself is not identical to 'insanity.'" Beck v. West, 13 Vet. App. 535, 539 (2000). No physician has concluded that at the time of his three periods of AWOL that (1) the appellant had a more or less prolonged deviation from his normal method of behavior; or (2) the appellant interfered with the peace of society; or (3) the appellant had so departed (become antisocial) 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 resided. 38 C.F.R. § 3.354(a). Although he had gone AWOL on three occasions, there were no findings that such behavior was asocial or otherwise hostile or harmful to others in a manner which deviated sharply from the social norm. The appellant has indicated that he went AWOL due to difficulties with other service members and marital problems. While going AWOL is clearly not an accepted standard of the military community, it does not occur infrequently nor does it necessarily indicate that the appellant is insane. In much the same manner as substance abuse, it does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity and therefore does not constitute insane behavior. VAOPGCPREC 20-97 (May 22, 1997). Finally, the record does not show that the appellant had been rendered incompetent or had been incapable of understanding the consequences of his actions in service. While the appellant may, in fact, currently have psychiatric problems, such facts do not establish "insanity" for VA purposes as held by VAOPGCPREC 20-97. Rather, the competent and persuasive evidence on this question tends to establish that he was not then insane. The Board notes that it also appears that in May 2003 and January 2006 decisions ABCMR denied the appellant's requests for an upgrade in his discharge. These documents are contained in the appellant's SPRs. The appellant was also advised in a December 2006 letter that he can request that the service department change or upgrade the character of his discharge. In light of the foregoing, the Board finds that the weight of the evidence does not demonstrate that the appellant was insane when he went AWOL three times during his military service. 38 U.S.C.A. §§ 5303(a); 5107; 38 C.F.R. §§ 3.12(b), 3.102, 3.354, VAOPGCPREC 20-97 (May 22, 1997). Accordingly, the regulatory bar of willful misconduct to VA benefits is confirmed. It follows that the character of his discharge under dishonorable conditions is a bar to his receipt of VA compensation benefits. In short, his claim must be denied. ORDER The character of the appellant's discharge for the period of service from October 1983 to July 1985 remains a bar to payment of VA benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs