Citation Nr: 1138397 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 10-40 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the character of the appellant's discharge from military service constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from September 2003 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The December 2007 administrative decision determined that the appellant's service is considered dishonorable for VA purposes, therefore denying the appellant entitlement to VA benefits. The decision also found that the appellant is entitled to health care benefits under Chapter 17, Title 38 U.S.C. for any disabilities determined to be service-connected. In June 2011, the appellant presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's VA claims folder. At the June 2011 hearing, the appellant appeared to raise the issue of entitlement to service connection for the purpose of establishing entitlement to VA dental treatment. See the June 2011 Board hearing transcript, pgs. 7-9. Also, a review of the communications and evidence submitted by the appellant potentially raises the issue of entitlement to service connection for an acquired psychiatric disability for the purpose of establishing eligibility for treatment. Neither of these issues has yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and said issues are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The appellant received a bad conduct discharge from service in September 2006. 2. The appellant received the bad conduct discharge based upon a pattern of willful and persistent misconduct. 3. The competent medical evidence of record does not support a finding that the appellant was insane at the time of the offenses that resulted in his dishonorable discharge. CONCLUSION OF LAW The character of the appellant's discharge from military service is a bar to the award of VA benefits. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. §§ 3.1(d), 3.12 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered whether the notice and development provisions of VA law are applicable to this claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010). As this case involves the legal question regarding whether the appellant has adequate standing to apply for VA benefits, the notice and duty to assist provisions do not apply. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. Notwithstanding the inapplicability of the notice and duty to assist provisions in this case, the RO provided notice to the appellant in correspondence dated July 2007 that notified the appellant of information and evidence necessary to substantiate whether the character of his discharge rendered him ineligible for benefits. The appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge, and he has been provided with every opportunity to submit evidence and argument in support of his claim. Service treatment records, service personnel records, and Social Security Administration (SSA) records have been associated with the claims file. VA has no obligation to provide any further notice or assistance to this claimant. Relevant law and regulations Character of discharge "In order to qualify from VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a 'veteran.'" See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. See 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2011). 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 the regulatory bars listed under 38 C.F.R. § 3.12(d). A discharge or release from service based on one of the conditions found under 38 U.S.C.A. § 5303(a) is a bar to the payment of benefits and is also a bar to benefits under Chapter 17 of Title 38. A discharge or release because of one of the offenses found under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions and is a bar to VA compensation benefits, but not to benefits under Chapter 17 of Title 38. The provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. A honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C.A. § 1533 sets aside a bar to benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), of this section provided that: (1) the discharge is upgraded as a result of an individual case review; (2) the discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval, or air service under conditions other than honorable, and (3) such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying upgraded discharge. 38 C.F.R. § 3.12(g) (2011). 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 set forth in paragraph (g) of this section, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section: (1) the President's directive of January 19, 1977, implementing the Presidential Proclamation 4313 of September 16, 1974; or (2) the Department of Defense's special discharge review program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. See 38 C.F.R. § 3.12(h) (2011). Insanity If it is established to the satisfaction of the Secretary of VA that, at the time of the commission of the offense leading to the person's court-martial or discharge, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b) (2011). A definition of insanity is provided at 38 C.F.R. § 3.354(a). An insane person is one who, while not mentally defective or constitutionally psychopathetic, 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 (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) (2011). According to 38 C.F.R. § 3.354(a), the definition of an insane person does not include an individual who is constitutionally psychopathetic, meaning an individual principally affected by personality disorders. VA General Counsel also pointed out that, in order to constitute insanity for purposes of § 3.354(a), behavior must be "due to a disease." 38 C.F.R. § 3.303(c), states that a personality disorder is not a disease or injury for purposes of VA disability compensation. The U.S. Court of Appeals for Veterans Claims (Court) has held that this regulation is a valid exercise of the authority granted to the Secretary of VA pursuant to 38 U.S.C.A. § 501. Winn v. Brown, 8 Vet. App. 510, 516 (1996). Moreover, General Counsel also found that a substance abuse disorder was a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. General Counsel concluded, consistent with DSM-IV, that behavior which is attributable to a substance-abuse disorder also did not constitute insane behavior under § 3.354(a). Consulting various well-accepted legal authority, General Counsel also noted that the term insanity was more or less synonymous with "psychosis." VAOPGCPREC 20-97. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is required to assess the credibility, and therefore, the probative value, of proffered evidence in the context of the record as a whole). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Factual background The facts of this case are not in substantial dispute. The appellant enlisted in the United States Marine Corps in September 2003 and ultimately received a bad conduct discharge in September 2006. The appellant's service personnel records showed that he received the bad conduct discharge following a special court martial in January 2005, which was affirmed by Department of Navy-Marines Special Court-Martial Supplemental Order in August 2006. The special court martial found the appellant guilty of disrespect toward a noncommissioned officer; three counts of communicating a threat; being drunk and disorderly; and breaking restriction. The sentence adjudged was confinement for 120 days and the bad conduct discharge. The appellant's character of service for the period September 2003 through September 2006 was determined by the December 2007 Cleveland RO administrative decision to be a bar to all benefits administered by VA, exclusive of health care under Chapter 17 of Title 38 U.S. Code for service-connected disabilities. Analysis At issue in the present appeal is whether the appellant's discharge was dishonorable as defined pursuant to 38 C.F.R. § 3.12(d), thus constituting a bar to VA benefits. The Board notes that the appellant and his representative do not appear to dispute the RO's determination that the appellant's discharge was the result of willful and persistent misconduct. Rather, the appellant essentially contends that the offense which resulted in his discharge should not be considered a bar to VA benefits because he was insane at the time the offenses were committed. See the June 2011 Board hearing transcript. Initially, however, the Board will address whether the appellant's discharge was the result of willful misconduct. See 38 C.F.R. 3.12(d) (2011). Accordingly, after a thorough review of the record, the Board must conclude that the appellant's bad conduct discharge was a result of willful and persistent misconduct. A review of the evidence of record shows that the appellant committed a series of offenses during service including insubordination to a noncommissioned officer by being uncooperative and belligerent; being incapacitated for the proper performance of his duties by overindulgence in intoxicating liquor or drugs; and disrespecting a superior commissioned officer. He was punished on two occasions with forfeiture of a sum of money as well as reduction to private; confinement; and restriction. As indicated above, he received a Special Court Martial in January 2005 which found the appellant guilty of disrespect toward a noncommissioned officer; three counts of communicating a threat; being drunk and disorderly; and breaking restriction. The Board is bound by service department determinations regarding the circumstances leading up to the appellant's discharge. As stated, it is apparent that the appellant was separated from service as a direct result of his willful and persistent misconduct as evidenced by the service personnel records on file. The offenses committed by the appellant during service were punishable at court-martial by imprisonment and the issuance of a punitive discharge. In the Board's judgment, the numerous offenses committed in active service rise to the level of persistent and willful misconduct in the eyes of the service department, and thus are a bar to VA benefits. As stated above, a dishonorable discharge is generally a bar to benefits. However, VA regulations provide an exception for cases where it is found that the person was insane at the time of committing the offense which caused his discharge or release. See 38 U.S.C.A. § 5103(b) (West 2002); 38 C.F.R. § 3.12(b) (2011). The Board is aware that it cannot substitute its own medical judgment for that of a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As, however, "insanity" is defined by regulation, and is hence a legal matter, the Board may make its own determination of its existence based on the facts of record. 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. See 38 C.F.R. § 3.354(a) (2011). Consulting various well-accepted legal authority, VA General Counsel has noted that the term insanity is synonymous with psychosis. VAOPGCPREC 20-97. For the reasons expressed below, the Board finds that the preponderance of the evidence is against a finding that the appellant was insane at the time of the conduct for which he was court-martialed and discharged. There is no question that the appellant received psychiatric treatment during his military service. His service records indicate that he was treated for alcohol use in June 2004 and September 2004. Following a substance abuse rehabilitation department screening performed in June 2004 the appellant was restored to full duty. In October 2004, the appellant was noted to have suicidal ideation "with plan to suffocate self, bash head into wall." Also noted at that time was a history of bipolar disorder when he was 15 to 18 for which he was prescribed Prozac, lithium, Wellbutrin, and "many others." Also in October 2004, he was diagnosed with "history of bipolar untreated with increased stress and suicidal ideation with concern patient is serious." The appellant was subsequently diagnosed with personality disorder, NOS, as well as alcohol abuse, and adjustment disorder, NOS. See the service treatment records dated December 2004 and January 2005. The Board additionally recognizes that the appellant received psychiatric treatment following his September 2006 military discharge. He was variously diagnosed with schizophrenia, bipolar disorder, cognitive disorder, posttraumatic stress disorder, major depressive disorder; substance-induced depression, and alcohol dependence. See the private treatment records dated April 2008, December 2008, December 2009, and May 2010. However, mental illness is not identical to insanity. See Beck v. West, 13 Vet. App. 535, 539 (2000). Instead, there must be competent and credible evidence establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. See Zang v. Brown, 8 Vet. App. 246, 254 (1995). Significantly, the burden is on him, not VA, to submit competent and credible medical evidence that he was insane at the time of his offenses. See Stringham, supra. Crucially, although the appellant suffered from psychological problems and personality disorder during his military service, there is no evidence that he was insane at the time of the offenses in question that resulted in his bad conduct discharge. In conjunction with his court-martial, the appellant underwent a psychiatric evaluation in December 2004 at which time the appellant was diagnosed with alcohol abuse, adjustment disorder with mixed disturbance of emotions and conduction, and a primary diagnosis of a personality disorder. Notably, at that time, the appellant was reported to be oriented to person, place, and time with linear thought processes and "no evidence of tangentiality, FOI, looseness of associations or other disturbance." He was also determined not to exhibit "evidence of psychotic thought or other gross impairment." See the service treatment record dated December 2004. Additionally, a psychiatric follow-up in January 2005 noted a continuing diagnosis of personality disorder, NOS, and indicated that the appellant was "psychiatrically stable for separation." The Board finds the service treatment records to be probative as to the issue of insanity as these records document medical findings contemporaneous with events which led to the appellant's bad conduct discharge. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the appellant). The appellant has not produced any evidence from a qualified medical doctor who has expressed an opinion that he was insane at the time of the events which warranted his court-martial. The appellant has been accorded ample opportunity to present competent medical evidence is support of his claim, but he has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). To the extent that the appellant or his representative is contending that the appellant was insane at the time of the events that preceded his military discharge, the Board notes that under certain circumstances lay statements may serve to support a claim. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, at issue in this case is whether there is competent evidence demonstrating that the appellant was insane during his military service. In this regard, neither the appellant nor his representative is competent to comment on medical matters such as psychiatric diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) (2011) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the appellant and his representative in support of the claim are not competent evidence of insanity during the appellant's military service. For the reasons and bases expressed above, the Board finds that the appellant's discharge from military service is considered to have been issued under dishonorable conditions. Accordingly, the appellant's character of discharge constitutes a bar to VA benefits. An exception is not warranted because the appellant was not insane at the time of the commission of the offense which led to his discharge. See 38 C.F.R. § 3.12(b) (2011). Because the law, and not the facts, is dispositive of the issue, the appellant has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The character of the appellant's discharge constitutes a bar to VA benefits. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs