Citation Nr: 1018167 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 05-04 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether or not the character of the appellant's discharge is a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The appellant had active service from August 1967 to May 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2003 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that determined the appellant's discharge from service pursuant to a sentence by general court-martial constituted a bar to the payment of VA compensation benefits. The appellant is incarcerated. He presented testimony at a hearing via telephone conference in August 2009 before an RO hearing officer. A transcript of the hearing testimony is associated with the claims file. In a decision dated in June 2007, the Board denied the appellant's appeal, and he appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In March 2009, the appellant, through his attorney, and the Secretary of Veterans Affairs, submitted a Joint Motion For Remand (Motion). In an Order dated in March 2009, the Court granted the Motion, vacated the June 2007 Board decision, and remanded the case to the Board for further appellate review consistent with the Motion. In compliance with the Court remand, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, in June 2009 to arrange a hearing. The RO arranged and conducted the hearing noted above and additional development as directed. The RO continued to deny the benefit sought, and returned the case to the Board for further appellate review. The appellant submitted additional evidence for which he did not indicate waiver of initial RO review and consideration. In light of the fact the Board deems it inherently incredible, as explained in the decision below, the Board will not seek a waiver from the appellant or remand for RO consideration. See 38 C.F.R. § 20.1304 (2009). FINDINGS OF FACT 1. The appellant had active military service from August 1967 to May 1969. 2. The appellant was convicted by general court-martial and discharged from active service pursuant to the sentence imposed by that court. 3. The appellant was not insane at the time he committed the in-service offenses of which he was convicted. CONCLUSION OF LAW The appellant's discharge from service pursuant to sentence of a general court-martial is a bar to the payment of VA compensation benefits. 38 U.S.C.A. §§ 101, 5103A, 5107, 5303 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1, 3.12(c)(2), 3.159, 3.354 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the appellant of the information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This assistance includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally, VA has a duty to notify the appellant that he should submit all pertinent evidence in his possession. March 2003 VA correspondence informed the appellant that VA intended to determine whether the character of discharge from his period of service was dishonorable for the purpose of VA benefits. The correspondence provided him with notice of 38 C.F.R. § 3.12, invited him to elaborate on the events leading to his discharge, and advised that he could submit evidence to support his account of the events leading to his discharge (including lay statements from those with personal knowledge of the circumstances). He was advised to send any information as soon as possible. The appellant did not respond. The claim was adjudicated in a September 2003 administrative decision. Finally, VA has secured all available pertinent evidence for which the appellant authorized VA to obtain, and conducted all appropriate development. This includes the service medical and personnel records, and medical treatment records from the Pennsylvania Correctional System. The appellant has not suggested that any outstanding and available pertinent medical records have not been obtained. The Board accordingly finds that remand of the case for further development is not warranted. See 38 C.F.R. § 3.159(c). Background The enlistment package for the appellant contains an August 1967 Form 2981, Application for Determination of Moral Eligibility for Induction. This identified the appellant as having a juvenile delinquency problem as early as 1964 when, at age 14, he was committed to the Glen Mills School for Boys for truancy and incorrigibility. He was released on parole, and recommitted to the Camp Hill School and paroled in November 1966. Service personnel records include General Court-Martial Order Number 12, Headquarters, Ft Huachuca, Arizona, dated in September 1968, which notes that a general court-martial convened in July 1968 and, pursuant to the appellant's pleas, convicted him of two separate two-day absences without leave, two specifications of larceny of $1.00 each from two separate enlisted men, and two specifications of extortion, in violation of Articles 86, 121, and 127, Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 886, 921, and 927). The general court-martial sentenced the appellant to a bad conduct discharge and confinement at hard labor for 10 months. It considered one prior conviction by special court- martial in arriving at the sentence. The convening authority approved the sentence as adjudged. In an April 1969 decision by the United States Army Court of Criminal Appeals (then named the Army Board of Review), the findins and sentence of the general court-martial were affirmed. See Article 66(c), UCMJ (10 U.S.C. § 866(c)). In its affirmation of the conviction and sentence, the Army Court noted that by letter dated in June 1968, the trial defense counsel requested the appellant be afforded a psychiatric examination prior to his trial by Court-Martial. A June 1968 response from the acting chief, Mental Hygiene Consultation Division, Office of the Installation Surgeon, Ft. Huachuca, Arizona, noted the appellant was examined in the stockade. The examiners noted no evidence of mental illness at that time or any indication of any past mental illness. He had been on sick call numerous times while in the stockade. There was no evidence he was suffering from any psychiatric disease or disorder. In summary, the examiners noted that his pattern of behavior continued to be the same in service as it had been in his civilian life. It was opined that: "He is suffering from a severe character disturbance of a sociopathic nature. However, this is not a psychiatric disease or indicative of mental illness." The Board notes the appellant's service medical records do not contain any evidence of treatment or diagnosis of an acquired psychiatric disorder. The May 1969 separation examination revealed that he was psychiatrically normal. The file contains several applications for correction of Army Military Records, including in March 1978, April 1982, July 2003, and February 2004. With the exception of making minor administrative corrections to the General Court-Martial Order, these appeals were all denied by the service. Post-service medical records include records from the Pennsylvania State Correctional System where the appellant is incarcerated. These do not contain any diagnoses of a service incurred mental disorder. March 2003 VA correspondence informed the appellant VA intended to determine whether the character of discharge from his period of service was dishonorable for the purpose of VA benefits. He did not submit any new evidence but continued to refer to service records of file which were considered by the service in its determination. A September 2003 administrative decision determined the appellant's discharge from service was dishonorable for VA benefit purposes. In its determination the RO noted that the issue of mental illness of the appellant was addressed by psychiatric personnel in service. There was no evidence at that time that the appellant was mentally ill. In addition, it was noted that a discharge from service pursuant to sentence by general court-martial was a bar to all rights under law administered by VA. In February 2004, the RO responded to the appellant's notice of disagreement and notified him that he may be asked to advise VA of any other evidence that he thought would help him with his appeal. Thereafter, the appellant did not identify any pertinent information. Legal Criteria When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). A discharge or release by reason of a sentence of a general court-martial is a bar to the payment of VA benefits. 38 C.F.R. § 3.12(c)(2). A discharge under such conditions will not, however, constitute a bar to benefits if the individual was insane at the time of the offense or offenses caused the discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an "insane" person is one 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 who interferes with the peace of society; or who has so departed 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. Analysis The Board has reviewed the documentation described above and finds the appellant was not insane at the time he committed the offenses for which the general court-martial convicted him and imposed a punitive discharge. The appellant in his statements, letters, and testimony at his hearing, has suggested that he manifested a psychiatric disorder during military service for which he sought treatment and which caused his incorrigible behavior. He asserts, or implies, that because of the nature of his in- service psychiatric symptoms he was not responsible for his actions, and the Board should find that his service was under honorable conditions. The appellant has not, however, specifically asserted that he was insane at the time of the commission of the offenses, and neither has he produced any evidence of a diagnosis of any acquired psychiatric disorder in service or at the present time. As already noted, the applicable regulation provides an exception to the bar to benefits only if the individual was insane at the time of the offense or offenses that caused the discharge. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(b). No competent evidence has been presented to even suggest that to be the case. The Court has held that, under the insanity exception, both the acts leading to discharge and the insanity must occur simultaneously. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). The service treatment records do not show the appellant was insane at the time of the conduct leading to his conviction, and there is no medical evidence to the contrary. Indeed, as noted, a June 1968 psychiatric examination in the Ft. Huachuca, AZ, stockade, noted no evidence of mental illness. The examiners noted the appellant's pattern of behavior continued to be the same in service as it had been in his civilian life. He was noted to be suffering from a severe sociopathic character disturbance; which was not a psychiatric disease or indicative of mental illness. See American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION (DSM -IV). At the hearing the appellant essentially asserted he should not be held responsible for his in-service offenses because he labored under that severe sociopathic character disturbance. The Board must, and does, reject the assertion, as it is contrary to applicable law and regulation. Thus, the Board finds the appellant was not insane at the time he committed the offenses of which the general court-martial convicted him. In April 2010, the Board received documents from the appellant which purport to show that in 2010 he is on excess leave awaiting appellate review of his 1968 conviction and sentence by general court martial. The letter submitted by the appellant is on letterhead of the U.S. Army Legal Services Agency, Defense Appellate Division, and is "signed" by a U.S. Army captain as the appellant's trial defense counsel. As noted in the Introduction above, for the reasons set forth infra, the Board finds the submitted documents inherently incredible. First, as set forth above, the appellant's appellate review, as provided for under the UCMJ, was completed by the Army Court of Criminal Appeals in April 1969, as documented by its written decision of that date. His acknowledgement of receipt of that court's decision, and of the length of time he had to petition the then named Court of Military Appeals (now named The United States Court Of Appeals For The Armed Forces) for further appellate review, is also dated in April 1969. There is no evidence he sought further discretionary appellate review. Second, General Court-Martial Order Number 224, dated in March 1969, Headquarters U.S. Army Disciplinary Barracks, Ft. Leavenworth, Kansas, notes the appellant was restored to duty pending completion of appellate review of his conviction. After completion of appellate review, GeneralCourt-Martial Order Number 14, Headquarters First U.S. Army, Ft. George C. Meade, Maryland, dated in May 1969, ordered executed all part's of the appellant's sentence not yet executed, to include the bad conduct discharge as adjudged and affirmed. The above noted evidence compellingly shows the assertions appellant made in his April 2010 letter to the Board to be patently false, and without any credibility whatsoever. Thus, the Board accords them no weight. All of appellant's attempts to have his punitive discharge upgraded by his service were denied. In light of these documented facts, the appellant's bad conduct discharge imposed by general court martial has remained unchanged, and his character of discharge from service is a bar to VA benefits. In light of the above, the appellant's bad conduct discharge by reason of the sentence of a general court martial is a bar to VA benefits, and the appeal is denied. 38 C.F.R. §§ 3.12(c)(2), 3.354. ORDER The character of the appellant's discharge from service bars his receipt of VA benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs