Citation Nr: 1802106 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether the character of the appellant's discharge from service is a bar to eligibility for VA benefits, to include whether he was insane. ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The appellant served on active duty from December 2004 to February 2008. He was given a Bad Conduct from the U.S. Marine Corps following a a long period of Unauthorized Absence (UA) and a special court-martial. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in December 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The evidence is at least in equipoise that the appellant was insane at the time of his period of unauthorized absence (UA), and that this contributed to his bad conduct discharge from service via special court-martial. CONCLUSION OF LAW The criteria for status as a Veteran and entitlement to VA benefits have been met. 38 U.S.C. §§ 101, 107, 5107, 5303 (2012); 38 C.F.R. §§ 3.1, 3.12, 3.354 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist In this case, the Board notes that the pertinent law is determinative of the appellant's claim. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). This case is based on the question of whether the appellant's discharge is a bar to the receipt of VA benefits under the law. Therefore, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VA's duty to notify and assist are not applicable. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); 38 C.F.R. § 3.159 (d). As such, no further action is required. Character and Circumstances of Discharge 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. 38 U.S.C. § 1110; Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see Robertson v. Shinseki, 26 Vet. App. 169, 174 (2013), aff'd sub nom. Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014) ("A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran."). The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 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. § 101(18); 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a), and regulatory bars listed in 38 C.F.R. § 3.12(c) and 38 C.F.R. § 3.12(d). A discharge or release from service under one 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. 38 C.F.R. § 3.12(b). The Court has held that the benefit of the doubt standard applies to the question of veteran status. Donnellan v. Shinseki, 24 Vet. App. 167, 175 (2010). Statutory bars to benefits listed under 38 U.S.C. § 5303 include discharge or dismissal by reason of the sentence of a general court-martial, on the ground that such a person was a conscientious objector, or as a deserter, or on the basis of an unauthorized absence (UA) for a continuous period of at least one hundred and eighty days. 38 U.S.C. § 5303(a). However, if the evidence establishes to the satisfaction of the Secretary that the person was insane at the time of the commission of the offense leading to the discharge, resignation, or court-martial, that person is not precluded from receiving benefits from VA. 38 U.S.C. § 5303(b). VA regulations define an "insane" person as one who: (a) 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 (b) interferes with the peace of society; or (c) 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). The condition of 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, 153-54 (1996). However, the burden is on the appellant to submit sufficient evidence of his insanity. Struck, 9 Vet. App. at 154; Helige v. Principi, 4 Vet. App. 32, 34 (1993). To do so, the appellant must submit competent medical evidence that he was insane at the time of his offense. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Facts and Analysis The record shows that the appellant served in the Republic of Iraq for 7 months and was involved in combat operations. He received the Combat Action Ribbon and has supplied stressor statements related to incidents in service, to include a comrade being shot by a sniper just a few feet from him and helping to rescue an individual injured in an explosion. After his deployment he returned home on leave and has stated that he discovered his wife was pregnant with another man's child. He dealt with marital issues as well as nightmares and flashbacks to combat. He did not return from leave on time and was UA for 31 days. The appellant stated that when he turned himself in he reported his PTSD symptoms and was not provided any medical care, but was referred for discipline. A few days later he again went UA and was gone for 184 days. During his period of UA the appellant stated that he was using drugs to include methamphetamines. (See Correspondence, 11/24/2009; NOD, 10/03/2011.) The appellant was tried in a special court-martial and received a reduction in rank, a sentence of confinement for 75 days with partial time suspended, and a Bad Conduct Discharge. (See Military Personnel Record, 10/09/2009.) His charges at the special court-martial included violation of Article 86 of the UCMJ (UA from November 2006 to May 2007). The appellant's Bad Conduct Discharge from service is a bar to eligibility for VA benefits unless it is shown that he was legally insane at the time of the conduct which resulted in the discharge, in this case his UA periods. The Board has considered all of the evidence of record, to include the appellant's service in combat in Iraq, his statements regarding his PTSD stressors, and the Combat Action Ribbon received by the appellant. The Board notes that a June 2007 in-service mental health treatment record from Camp Pendleton reflects an assessment of chronic, moderate PTSD (secondary to childhood and combat trauma). The Board also notes that the RO obtained a medical opinion based on the evidence in the file in July 2015. (See Legacy Content Manager, C&P Exam, 07/27/2015.) The mental health professional provided an opinion that the appellant's PTSD caused him to deviate from the normal standard of behavior from 14 years of age to this UA. The VA staff psychologist noted that the appellant appeared to have been behaving relatively well and achieving relative success in his life at that time, prior to his deployment. To that extent, was insane at the time of his UA. (Id. at 9-10.) In light of the positive July 2015 VA medical opinion and the evidence demonstrating that the appellant experienced PTSD symptoms during his period of service, the Board finds that the evidence is at least in equipoise on the question of whether the appellant was insane, as defined in 38 C.F.R. § 3.354, to the satisfaction of the Secretary. As such, under the provisions of 38 C.F.R. § 3.12(b), the fact that the appellant received a Bad Conduct Discharge as a result of a court-martial is not a bar to the payment of VA benefits. ORDER The appellant's character and circumstances of his discharge are not a bar to entitlement to VA benefits because he was insane at the time of his UA. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs