Citation Nr: 1535218 Decision Date: 08/18/15 Archive Date: 08/20/15 DOCKET NO. 11-04 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The appellant had active military service from September 1980 to February 1987, when he was separated from service with a dishonorable discharge. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 administrative decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In October 2010, the appellant testified before a Decision Review Officer in Nashville, Tennessee. A transcript of that hearing is of record. The appellant was scheduled for a Travel Board hearing in January 2012. In January 2012, prior to the scheduled hearing, the appellant stated that he would not attend. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2015). FINDINGS OF FACT 1. The appellant's discharge from his only period of active service was dishonorable and by reason of a sentence of a general court-martial. 2. The evidence does not support a finding that the appellant was insane at the time of his offenses committed while on active duty and which served as the basis for his dishonorable discharge. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to eligibility for VA compensation benefits. 38 U.S.C.A. §§ 101, 5303 (West 2014); 38 C.F.R. §§ 3.12, 3.13 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Notice was provided to the appellant in December 2009. The claims file includes the appellant's personnel records, to include records from the appellant's general court-martial. The claims file does not include the appellant's service treatment records (STRs) or Social Security Administration (SSA) records. Nevertheless, the Board finds that a remand to obtain such records is not warranted. The appellant testified that he did not have mental health treatment in service; thus, there would be not STRs with regard to such. The appellant has also indicated that his mental health symptoms began after separation from service. 38 C.F.R. § 3.354(b) states that decisions with regard to whether a veteran was insane at the time he committed an offense leading to his court-marital, will be based on all the evidence procurable relating to the period involved. Thus, SSA records more than two years after the in-service offense would not be useful. Based on the foregoing, 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 Veteran in developing the facts pertinent to the claim. Legal Criteria 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. § 5303; 38 C.F.R. § 3.12(a). 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). According to 38 C.F.R. § 3.354(a), 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 (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(b) provides when a rating agency is concerned with determining whether an appellant was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C.A. § 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. See also VAOPGCPREC 20-97 (holding that the term "constitutionally psychopathetic" was synonymous with psychopathetic personality (antisocial personality disorder). Consulting various well-accepted legal authority, General Counsel also noted that the term insanity was more or less synonymous with "psychosis." See Zang v. Brown, 8 Vet. App. 246, 254 (1995) (finding that insanity must be due to a "disease" or that a claimant "did not know or understand the nature or consequences of his act or that what he was doing was wrong"). Analysis The Board has reviewed all of the evidence in the appellant's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant had one period of active service, from September 1980 to February 1987. The record reflects that in April 1984, the appellant was found guilty at court-martial of disobeying a lawful order, violating a general regulation, assault of a noncommissioned officer, communicating a threat, and striking a superior commissioned officer. In November 1984, the United States Army Court of Military Review affirmed the general court-martial findings and the appellant's sentence, which included a dishonorable discharge. The appellant's DD 214 reflects that he was discharged with a dishonorable character of service as a result of a court-martial. In May 2006, the appellant requested to have his dishonorable discharge upgraded to a general, under honorable conditions, discharge. In December 2006, the Department of the Army Board for Corrections of Military Records denied the appellant's request. The appellant has stated that he had honorable service prior to January 1984 and that, therefore, he should be entitled to VA benefits. As noted above, the appellant had only one period of service, from September 1980 to February 1987. The Board acknowledges that the appellant originally enlisted for a period of four years (See DD Form 4/1 dated in July 1980 and DD Form 4/4 dated in September 1980.) However, prior to expiration of this term of service, the appellant was found guilty by a general court-martial in April 1984. After conviction and sentencing, the appellant was placed on excess leave while awaiting review of his case by the military appeals court. In sum, the appellant only had one period of service, and it was terminated by a dishonorable discharge. As noted above, pension, compensation, or dependency and indemnity compensation is not payable unless the term of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. Thus, because his service was terminated by a dishonorable discharge, the appellant is not entitled to benefits. 38 C.F.R. § 3.12(a). In addition, as noted above, a discharge by reason of the sentence of a general court-martial is a bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). The evidence of record does not support a finding that the appellant was insane at the time of committing an offense. His offenses occurred in January 1984. There are no records which support a finding that he was insane at the time of any of the offenses. The appellant's service personnel record does not reflect an indication of insanity. The January 1984 offenses occurred on three different dates within a week of each other. They involve the appellant refusing to clean the dining facility, having in his possession a lock blade knife with a blade longer than 3 inches, striking a noncommissioned officer in the face with a fist, threating to injure another noncommissioned officer by throwing a chair against a wall and making a certain statement, and striking a commissioned officer in the face with a fist. In May 2006 correspondence, the appellant asserted that at the time of the offenses, he felt that the "chain of command was abusing their position to railroad me into a position that I would strike back." He also stated that "I had a reputation of having a short fuse, hot tempered. I state this because it is the core of the situation. I lost it, and I fought back. I regret the whole situation that took place, but I was defending my heritage and myself. As I stated before, I know I did wrong, but I feel that the character of discharge is inappropriate." The appellant testified at a 2010 DRO hearing that in 1986 he was diagnosed with schizophrenia, bipolar, manic depression, and PTSD, and that he is in receipt of SSA benefits based on his mental health disability(ies). Although his testimony was confused at times (i.e. he testified that he did not have mental health problems in service but also that he believed that he had a sudden "mental breakdown" in the mess hall, when he was "beaten after being tied with [his] own belt to the ground."), the overall indication was that he was not treated in service and was not insane at the time of the offenses. The appellant specifically testified that he did not feel that his mental health disabilities were "a problem" in the service and he had not been undiagnosed in service. (See DRO hearing transcript, pages 7 and 11.) There is no competent credible evidence supporting an allegation of a "mental breakdown" and the appellant himself has testified that he was not suffering from a disability in service. Rather, the evidence as a whole, indicates he lost his temper in service but knew what he was doing was wrong. In order for a person to be found to have been insane at the time of committing an in-service offense, the insanity must be such that it legally excuses the acts of misconduct. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995) (holding that the event precipitating an other than honorable discharge and the claimant's insanity "must occur simultaneously"). The evidence does not support a finding that on any of the three occasions of his offenses he was insane. The crux of the appellant's claim is that his service prior to the offenses should have been taken into account when determining the character of his discharge. The Board finds, based on the pertinent regulations noted above, that the appellant's assertions are without merit in this case. The evidence, as noted above, does not support a finding that the appellant was insane at the time of the offenses or that he did not know right from wrong; thus, he is not entitled to an exception to a bar to VA benefits. 38 C.F.R. § 3.12(b). The Board has considered whether the appellant is entitled to health care related benefits authorized by Chapter 17, Title 38, United States Code, but finds that he is not. Care may be available to persons with other than honorable discharges for disability incurred or aggravated during service. However, health-care and related 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), as in the appellant's case, applies. In light of the above, the appellant's dishonorable discharge is a bar to VA benefits, and his appeal is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs