Citation Nr: 1120834 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 05-37 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the character of the appellant's military discharge constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The appellant had military service from April 1967 until November 1972. His original DD Form 214 reflects that he had 783 days of lost time due to unauthorized absences, and that he was discharged "under conditions other than hon[orable]." He subsequently obtained a clemency discharge pursuant to Presidential Proclamation 4313, and a DD Form 215 of January 1976 reflects such clemency discharge. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2004 determination of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In a June 2008 decision, the Board held that the character of the appellant's service was a bar to VA benefits. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted an undated Joint Motion for Remand (Joint Motion). By order dated in December 2009, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board accordingly remanded the claim in March 2010 for additional development. The case is now before the Board for final appellate consideration. FINDINGS OF FACT 1. In August 1972, the appellant was convicted at a general court-martial for unauthorized absence from August 13, 1970, to June 24, 1972, and the sentence included a bad conduct discharge; he was separated from service on November 30, 1972 with character of service of under conditions other than honorable 2. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the appellant was insane at the time of the offenses or that there were compelling circumstances such to warrant the prolonged unauthorized absence from service from August 13, 1970, to June 24, 1972. CONCLUSION OF LAW The character of the appellant's service is a bar to VA benefits. 38 U.S.C.A. §§ 101(18), 5103A, 5303 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.12, 3.13, 3.354, 3.360 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in September 2003, VA informed the appellant of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. In June 2006 correspondence, VA informed him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter in SSOCs dated in November 2007 and April 2011, and the appellant therefore has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claim's file contains the appellant's service treatment records, service personnel records, VA and private medical records, lay witness statements, the transcript of a July 2006 hearing before the undersigned Veterans Law Judge, and the appellant's statements in support of his claim. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA requested a medical opinion with respect to whether it was at least as likely as not that the appellant was insane, as defined for VA purposes, at the time of the commission of the acts that led to the court martial and discharge from military service. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed in detail below, in a May 2010 report the VA Chief of Compensation and Pension (Chief) stated in essence that to offer the requested opinion would require mere conjecture and speculation. As the Chief explained the basis for being unable to render the requested opinion without resort to mere speculation, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Jones v. Shinseki, 23 Vet. App. 382 (2010). In April 2011 correspondence, the appellant erroneously states that H. M. was the examiner who gave the May 2010 VA opinion. In fact, as discussed below, Dr. H. M. was only consulted by the Chief, who wrote the actual opinion. The appellant further states that H. M. had been relieved of her duties at the Chicago VA facility due to many inaccuracies in her opinions. In essence, the appellant is arguing that the May 2010 VA medical opinion is without any probative value. As noted above, in the May 2010 opinion the Chief explained the basis for being unable to render the requested opinion without resort to mere speculation. Thus, the opinion appears complete and adequate, and a new examination is not necessary for evaluation of the appellant's claim. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to his claim. Legal Criteria 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); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). "Discharge or release" is defined to include: (A) retirement from the active military, naval, or air service, and (B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable. 38 U.S.C.A. 101(18). The applicable VA regulation 38 C.F.R. § 3.13 provides as follows: (a) A discharge . . . to reenlist is a conditional discharge if it was issued during one of the following periods: ... (2) . . . the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. (b) Except as provided in paragraph (c) of this section, the entire period of service [involving a conditional discharge] constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service ... . (c) Despite the fact that a conditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service, (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. A person discharged under conditions other than honorable on the basis of an absence without leave period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence." 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). 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. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. 38 C.F.R. § 3.12(c)(6)(i-iii). There are two types of character of discharge bars to establishing entitlement to 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). 38 C.F.R. § 3.12(d) provides that a discharge or release because of one of the offenses specified is considered to have been under dishonorable conditions. One of the conditions, listed at (4), is 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. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under any of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense. According to 38 C.F.R. § 3.354(a), "Definition of Insanity," an insane person is one who, while not mentally defective or constitutionally psychopathetic, except for 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 (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. A determination with respect to insanity will be based upon all of the evidence procurable relating to the period involved. A more complete discussion of the VA definition of insanity is included in a VA General Counsel opinion at VAOPGCPREC 20-97. This opinion states that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did not fall within the definition of insanity in that regulation. It further indicates 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. The phrase "interferes with the peace of society" in the regulation referred to behavior which disrupted the legal order of society. It holds that term "become antisocial" in the regulation referred to the development of behavior which was hostile or harmful to others in a manner which deviated sharply from the social norm and which was not attributable to a personality disorder. It was indicated that the reference in the regulation to "accepted standards of the community to which by birth and education" an individual belonged required consideration of an individual's ethnic and cultural background and level of education. It was stated that the regulatory reference to "social customs of the community" in which an individual resided required assessment of an individual's conduct with regard to the contemporary values and customs of the community at large. Consulting various well-accepted legal authority, the opinion noted that the term insanity was more or less synonymous with "psychosis." Unless a discharge review board established under 10 U.S.C.A. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements of this section, an honorable or general discharge award under Presidential Proclamation No. 4313 does not remove any bar to benefits imposed under this section. 38 C.F.R. § 3.12(h)(1). The same reasoning follows for other upgrades issued without an individual review by a board of corrections. Congress has prescribed in 38 U.S.C.A. § 5303(a) that a discharge or release from service as a result of a sentence of a general court-martial "shall bar all rights of such persons under laws administered by the Secretary based upon the period of service from which discharged or dismissed." 38 U.S.C.A. § 5303(a). The only defense to the statutory bar arises when it is established that the individual was insane at the time of the commission of the offense leading to the court-martial and discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). 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 38 C.F.R. § 3.354(a). This regulation provides for three circumstances which the Court, noting the "obvious drafting defects" of the regulation, indicated should be modified by applying the phrase "due to a disease." Zang v. Brown, 8 Vet. App. 246, 252-53 (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. 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). Legal Analysis The appellant contends that the character of his discharge should not be a bar to his entitlement to VA compensation benefits. He contends in essence that because of the stress of combat he was insane at the time of the August 1970 to June 1972 period of AWOL. At the outset, the Board acknowledges that on November 1, 1975, President Gerald Ford granted the appellant a full pardon and awarded him a clemency discharge under Presidential Proclamation No. 4313. It was noted that such pardon restored any federal civil rights that the veteran lost upon his criminal conviction for his absence offense. It was also noted that the clemency discharge replaced his punitive discharge and should be considered a neutral discharge, neither honorable nor less than honorable. A DD Form 215, correction to DD Form 214, dated in January 1976, shows that the appellant received a clemency discharge. However, as noted under 38 C.F.R. § 3.12(h), upgraded discharge under Presidential Proclamation No. 4313 does not remove a bar to benefits imposed by 38 C.F.R. § 3.12(c). Therefore, the Board finds that the appellant's upgraded discharge under Presidential Proclamation No. 4313 did not remove a bar to VA compensation benefits such as the appellant is seeking in this case. In considering the evidence of record under the law and regulations as set forth above, the Board concludes that the appellant's less than honorable discharge from service is a bar to VA benefits. The regulations clearly state that discharge by reason of sentence of a general court-martial or by reason of a discharge under other than honorable conditions as a result of an absence without leave (AWOL) for a continuous period of at least 180 days is a bar to VA benefits. In this case, the record clearly demonstrates that the appellant was discharged from service under conditions other than honorable after a court martial found that he was guilty of being AWOL from the 3rd Correctional Training Battalion, U. S. Army Correctional Training Facility in Ft. Riley, Kansas from on or about August 13, 1970, to on or about June 24, 1972. The appellant's sentence was that he was to be discharged from the Army with a bad conduct discharge and confined at hard labor for one month. Further, the Board notes that a person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days, which is the case here, is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence." 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The controlling regulation describes factors to be considered in making the "compelling circumstances" determination. The Board must consider various factors, including the quality and length of the appellant's service as well as the reasons the appellant gives for going AWOL. In this regard, the Board notes that the net length of service from April 1967 to November 1972, exclusive of his prior periods of AWOL in 1969 and 1970 and the prolonged period of AWOL from 1970 to 1972, was over two years, and included one year of service in Vietnam from April 30, 1968, to April 29, 1969. The quality of such service, exclusive of the period of prolonged AWOL, is not shown by the evidence to be less than honest, faithful, meritorious, and of benefit to the Nation. 38 C.F.R. § 3.12(c)(6)(i). Indeed, although an October 1968 Military Police Report demonstrates that the appellant carelessly discharged a .45 caliber pistol in August 1968 in Pleiku, Vietnam, causing injury to himself, the record does not reflect that he was subjected to any disciplinary proceedings or negative personnel actions for such incident or any other incident during service, prior to his going AWOL. The Board finds that the evidence of record fails to corroborate that there were compelling circumstances so as to warrant the prolonged AWOL from August 13, 1970 to July 23, 1972. The reasons for the prolonged absence offered by the appellant do not include family emergencies or obligations, or similar types of obligations or duties owed to third parties, but instead pertained to the appellant's desire to avoid continued service in the military. An April 2005 VA outpatient treatment record indicates that the appellant reported that when he returned home from Vietnam, he did not want to be in the military and kept being AWOL. The Board notes that during his July 2006 videoconference hearing, the appellant indicated that after he returned from Vietnam, where he experienced combat, he had had emotional and psychological problems and as a result had to get away and went AWOL. (Transcript (T.) at page (pg.) 10-13). He reiterated such sentiments in various VA outpatient treatment records dated between 2004 and 2007. Additionally, the Board notes that a defense to the statutory bar arises when it is established that the individual was insane at the time of the commission of the offense leading to the court-martial and discharge. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). However, the evidence of record does not establish that the appellant was insane at the time he went AWOL in August 1970 or any of the other times that he went AWOL, including from September 2, 1969 to October 25, 1969 and November 11, 1969 to May 13, 1970. The appellant's service medical records do not show any complaints, symptoms, findings, treatment or diagnoses of a psychiatric disability of any kind. The September 1972 Special Court Martial Order does not make any reference to a defense of insanity. Significantly, the appellant does not now allege that he made such a defense at that time. The appellant's service personnel records reflect that he participated in four counter-offensive and TET campaigns. He has submitted several witness statements indicating that he was in combat. The appellant himself has testified that he was involved in combat. The Board does not doubt his credibility on this issue. Nevertheless, the evidence, overall, does not show that the appellant was insane for VA purposes at the time he went AWOL in August 1970. In so finding, the Board is aware that in an undated statement received in April 2006, a VA psychologist stated that the appellant reported being psychologically depleted when he returned home from Vietnam. The psychologist stated that the appellant was in great need of respite in order to psychologically repair himself. The psychologist stated that the traumatic events the appellant suffered in combat likely overwhelmed his abilities to cope with the stress and shame he felt for his actions. At age 19, the appellant had insufficient experience, training, knowledge or resources to make appropriate decisions. The extreme emotions that existed then interfered with his ability to make logical decisions and the consequences of his actions were remote to his understanding. The psychologist stated that the appellant, probably due to the lack of psychological treatment and support that he needed, went AWOL. He fled as a way to preserve his mental survival. In an April 2011 statement, the same VA psychologist noted that the appellant's service personnel records reflected that the appellant participated in four counter-offensive and TET campaigns, and that a statement from another solider indicted that the appellant served in combat operations. The psychologist stated that the appellant's records showed that he performed his duties honestly, faithfully and meritoriously and of benefit to the United States while in the combat theater. It was the stress of combat, apparently, that impelled the appellant to a prolonged deviation from his normal method of behavior. The psychologist stated that at the time of the offense, the appellant was young, had a 10th grade education level, and his capacity to make appropriate judgments was not mature. The severe combat he had experienced affected him psychologically such that his ability to form judgments was diminished. This diminishment in sound judgment was illustrated by his decision to take a bad conduct discharge rather than complete the four months remaining on his tour. The psychologist stated that reasonable doubt existed as to the appellant's capacity to make sound judgments at that time. This incapacity arose under combat conditions and its sequalae. The Board finds that the probative value of these opinions are outweighed by the May 2010 opinion by the VA Chief of Compensation and Pension. The Chief stated that he had reviewed the appellant's claims file and the Board's remand, and noted that the appellant received a court martial for AWOL. He noted that a court martial is a trial, which would have included any claim by the appellant of insanity at that time. If the appellant had truly believed he was insane at that time, he most likely would have claimed that fact during the trial. The Chief stated that he did not see any evidence of psychiatric diagnosis or treatment during the appellant's military service. On reviewing the appellant VA treatment records, he did not see any diagnosis of insanity. The Chief stated that to fully address the issue of insanity at the time of the trial, a new trial with all the original evidence being presented would be required. The Chief provided the medical opinion that to offer an opinion concerning the appellant's sanity [at the time he went AWOL in August 1970] without the opportunity to hear all the original testimony and hear from the experts at that time would require mere conjecture and speculation. The Chief stated that he had discussed this with Dr. H. M., whom he identified as a diplomate of the American Board of Psychiatry and Neurology and a Diplomate of the American Board of Forensic Psychiatry. The Board finds that the May 2010 VA medical opinion constitutes highly probative evidence that any current medical opinion as to the appellant's mental status at the time he went AWOL, such as those presented by the VA psychologist, would be speculative. The Chief's opinion is based on a review of the appellant's service treatment records, service personnel records, and the September 1972 Special Court Martial Order. It is supported by references to them. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). By contrast, the VA psychologist refers to no objective contemporary medical evidence to support his opinions as to the appellant's mental health at the time the appellant went AWOL in August 1970. Id. The VA psychologist also fails to address the fact that the appellant made no insanity defense at the time of the court martial. The Board also finds that the opinions from the VA psychologist, made decades after the fact, are outweighed by the appellant's contemporary service treatment and personnel records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by a veteran). In this regard, the appellant's contemporaneous service medical records do not show any complaints, symptoms, findings, treatment or diagnoses of a psychiatric disability of any kind. The September 1972 Special Court Martial Order does not make any reference to a defense of insanity. Significantly, the appellant does not now allege that he made such a defense at that time. Further, while the appellant is competent to attest that he had "emotional and psychological problems" following his return from Vietnam in April 1969, the Board finds it significant that there is no evidence that he was determined to have any psychiatric diagnosis at that time, let alone one that showed insanity for VA purposes. The Board is aware that in a 2003 statement, the appellant's mother stated that the appellant was a "nervous wreck" when he returned from Vietnam, and that she took him to a doctor to get tranquillizers. Nevertheless, a prescription of tranquillizers is not evidence of insanity for VA purposes. In addition, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, such as a diagnosis). Thus, the assertions by the appellant's mother do not constitute evidence that he was insane for VA purposes at the time he went AWOL in August 1970. The Board is also aware that the post-service treatment records demonstrate that the appellant currently has a psychiatric disability that has been diagnosed as post-traumatic stress disorder and anxiety disorder. However, there is no evidence that such diagnoses meet the requirements of insanity for the limited purposes of this decision. Nor is there evidence that these diagnoses existed at the time the appellant went AWOL. Thus, considering the evidence of record in light of the above-noted legal criteria, the Board is unable to find that the evidence shows or even sufficiently suggests that the appellant was insane as defined for VA purposes at the time of the commission of the acts that led to his court martial and discharge. While the appellant may, in fact, currently have PTSD or anxiety disorder, 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. In conclusion, the Board finds that the evidence of record does not establish that there were any compelling circumstance to warrant the appellant's prolonged AWOL or that the appellant suffered from insanity due to a disease or that he did not know or understand the nature or consequences of his acts or that what he was doing was wrong at the time of the commission of the offense leading to his discharge. Zang, supra; VAOPGCPREC 20-97. Because the appellant was not insane at the time he went AWOL, the Board finds that the appellant's discharge under conditions other than honorable on the basis of an AWOL period of at least 180 days is a bar to his receipt of VA compensation benefits for his period of service. As a result, he is not eligible for VA compensation benefits as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001). ORDER The character of the appellant's military discharge constitutes a bar to VA benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs