Citation Nr: 1707308 Decision Date: 03/09/17 Archive Date: 03/17/17 DOCKET NO. 09-41 992A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the appellant's character of discharge from service is a bar to VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant served on active duty from November 1965 to January 1970. He was discharged Under Conditions other than Honorable. In 1977, the discharge was initially upgraded by an Army Discharge Review Board to Under Honorable Conditions, but the Army Discharge Review Board did not affirm the upgraded discharge under their review standards. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision by the Chicago, Illinois, Regional Office (RO). In May 2013, the Board held that new and material evidence had been received to reopen the claim and remanded the claim for additional development. FINDINGS OF FACT 1. The appellant served on active duty from November 1965 to January 1970, but received an other than honorable discharge at separation. 2. The actions that led to the appellant's discharge from service, including multiple periods of absence without leave (AWOL), constituted willful and persistent misconduct. 3. The competent evidence does not demonstrate that the appellant was insane at the time of the offenses giving rise to the other than honorable discharge. 4. The appellant received a clemency discharge pursuant to Presidential Proclamation 4313, which was not affirmed upon subsequent review by a discharge review board on an individual basis. CONCLUSION OF LAW The character of the appellant's active service is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.159, 3.354 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA also has a duty to assist in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and 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 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where the issue involves the character of a Veteran's discharge, VCAA must inform the claimant of the evidence needed to establish Veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The appellant was initially provided proper notice by letter dated in December 2005. Furthermore, the RO issued the appellant a statement of the case in November 2009 that included all applicable regulations. VA has done everything reasonably possible to assist the appellant with respect to the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). All identified and available treatment records have been secured to the extent possible. VA has obtained a medical opinion concerning the appellant's claim of insanity. When VA provides a claimant an examination or obtains a medical opinion, VA must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the opinion provides the information needed to fairly adjudicate the insanity defense. The examiner reviewed and commented on evidence of record and described the rationale in sufficient detail to enable the Board to make a fully informed decision. Monzingo v Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for the opinion, even when the rationale does not explicitly lay out the examiner's journey from the facts to a conclusion); Acevedo v. Shinseki, 25 Vet. App. 286 (2012). The examiner specifically acknowledged and discussed what the medical evidence of record did and did not show in connection with the claim. The appellant's contentions were addressed. There are no apparent inconsistencies or ambiguities in the opinion. The Board, in its own lay capacity, is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so. Monzingo v Shinseki, 26 Vet. App. 97 (2012). As the opinion has sufficiently informed the Board of the examiner's judgment on the question at issue, the Board finds that the VA medical opinion is adequate. The Board notes that the appellant was not physically examined in connection with this claim. However, the VA examiner explained in the report why physical examination of the appellant was not necessary in this case. In light of the actions of the RO in obtaining the appellant's treatment records, the obtaining of the requested opinion, and the further adjudication of the appeal, the Board finds that there has been substantial compliance with the prior remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further notice or assistance is required to comply with the duties to notify and assist. Accordingly, the Board will proceed to decision. Analysis In order to qualify for VA benefits, a claimant must first establish Veteran status, as defined under applicable statutory and regulatory definitions. Frasure v. Principi, 18 Vet. App. 379 (2004). The term Veteran is defined as a service member who was discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2014); 38 C.F.R. § 3.1 (2016). Where VA determines that a person's discharge from service was under dishonorable conditions, the payment of pension, compensation or dependency and indemnity compensation, based on that period of service, is barred. 38 C.F.R. § 3.12 (2016). 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) (2016). An other than honorable discharge is not necessarily tantamount to a dishonorable discharge and a bar to VA benefits. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C.A. § 5303 (West 2014); 38 C.F.R. § 3.12 (2016); Camarena v. Brown, 6 Vet. App. 565 (1994). It is dishonorable when a person is discharged or released under one of the following conditions: (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 person requested his 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, unless there were compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c) (2016). Additionally, a discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d) (2016). A discharge because of one of the above-identified offenses will not be a bar if it is found that the person was insane at the time of committing the offense causing the discharge. 38 C.F.R. § 3.12(b) (2016). 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 (2016); VAOPGCPREC 20-97 (1997), 62 Fed. Reg. 37955 (1997). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). Behavior which is generally attributable to a substance-abuse disorder 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. Personality disorders do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97 (1997), 62 Fed. Reg. 37955 (1997). The appellant's service personnel records and service separation form show that the appellant accepted a discharge under conditions other than honorable in lieu of trial by court-martial after being absent without official leave (AWOL) from June 1, 1966, to January 19, 1967, and May 5, 1969, to November 19, 1969. In a May 1970 Administrative Decision, the RO determined that the appellant's discharge from active service from November 1965 to January 1970 was a discharge not under conditions other than dishonorable and was therefore a bar to VA benefits. That decision included a reference that there was no indication of insanity at the time of the offenses. The appellant has offered no explanation regarding the multiple periods of AWOL beyond a feeling of nervousness and an intense dislike of a controlling environment. The Board finds that the evidence shows that the periods of AWOL that led to the appellant's discharge were the result of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4) (2016). The acts consisted of several offenses throughout several months of service. Although the regulation provides that if there is "a" (meaning one) minor offense, that will not be considered persistent if service was otherwise honest, faithful, and meritorious, that provision does not excuse a series of offenses. In this case, the appellant has committed a series of offenses, not a single offense. Moreover, AWOL has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. Struck v. Brown, 9 Vet. App. 145 (1996) (affirming a Board finding that two and a half months of AWOL out of nine months of service was willful and persistent misconduct); Stringham v. Brown, 8 Vet. App. 445 (1995) (upholding Board finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming Board finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct). Therefore, the appellant's discharge is dishonorable. The appellant's accredited representative has argued that the appellant was insane at the times he went AWOL. The representative noted recent psychiatric evaluation reports which show assessments of schizoaffective disorder and depression. The representative has suggested that the appellant's psychosis was present during service and caused insanity at the times the appellant went AWOL. The appellant's service treatment records show that he sought treatment at a psychiatric clinic in July 1967 because he was having difficulty adjusting to service and had been AWOL for six months in 1966. The assessment at that time was that he was free from mental disease that would warrant a medical separation. He was seen again in December 1969 for complaints of nervousness when it was noted that he had a history of a personality disorder and schizoid personality. He was given the medication Mellaril. However, on physical examination in connection with his separation from service, psychiatric clinical evaluation was normal. In June 2013, a VA examiner reviewed the claims file. The examiner noted that the appellant had been scheduled for an examination but failed to report. However, the examiner felt it was clear that an opinion could be given based on the precise documentation reviewed. The examiner reviewed the definition of insanity and opined that it was less likely than not that the appellant was insane at the time of the offenses that led to his discharge. The examiner stated that there was no documentation reviewed in the service records that was supportive of insanity, as defined. The examiner placed significance in the May 1970 administrative decision which specifically found no indication of insanity. The examiner also referenced a prior written statement from the appellant in which he shared many details regarding his history prior to and during his service; the examiner related that in so doing, the appellant was sharing his awareness that his early life experiences contributed to his difficulties. The Board places great weight on the opinion of the VA examiner. The opinion of the VA examiner outweighs the statements given by the appellant and representative. As laypersons without the appropriate medical training and expertise, the appellant and representative are simply not competent to state whether he was insane at the times he went AWOL. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.2007). He has not submitted, or indicated the existence of, competent medical evidence that he was insane by disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Zang v. Brown, 8 Vet. App. 246, 254 (1995); VAOPGCPREC 20-97 (1997), 62 Fed. Reg. 37955 (1997). While acknowledging that the appellant was seen at a psychological clinic while on active duty, the fact that the appellant may have been suffering personal stress or psychiatric issues at the time is not enough to lead to a finding of insanity. Beck v. West, 13 Vet. App. 535 (2000). The Board finds that the VA opinion is the most persuasive evidence as it evaluated the evidence in light of the applicable criteria to determine whether the Veteran met the definition of insanity. That evidence was by a medical professional based on a review of evidence and that professional's training and expertise. Accordingly, the Board concludes that the appellant has not met the burden of establishing insanity, and that the preponderance of the evidence weighs against a finding of insanity. Struck v. Brown, 9 Vet. App. 145 (1996); VAOPGCPREC 20-97 (1997), 62 Fed. Reg. 37955 (1997). Thus, the appellant's discharge is considered a discharge under dishonorable conditions, pursuant to 38 C.F.R. § 3.12 (d)(4), and insanity is not an applicable defense. The appellant also contends that his discharge was pardoned by President Ford and is therefore not dishonorable. The Board acknowledges that in July 1975, the appellant was provisionally granted a full and unconditional pardon and clemency discharge pursuant to Presidential Proclamation No. 4313. In July 1977, the appellant's discharge was provisionally upgraded to under honorable conditions. A subsequent review by the Army Discharge Review Board did not affirm that determination. As the Discharge Review Board, pursuant to 10 U.S.C.A. § 1553, did not affirm an upgrade of the appellant's discharge to under honorable conditions on an individual basis, evidence of a clemency discharge pursuant to Presidential Proclamation No. 4313 does not entitle the appellant to receipt of VA pension and compensation benefits. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER The character of the appellant's discharge from service is a bar to entitlement to VA benefits and the appeal is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs