Citation Nr: 1802594 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-26 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether the character of the appellant's discharge is a bar to his receipt of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The appellant served on active duty from August 2004 to March 2007 and was discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In May 2012, the appellant presented testimony at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that proceeding is associated with the record. In a November 2017 letter, the Board offered the appellant the opportunity to testify at a hearing before another Veterans Law Judge who would ultimately decide the appeal. See 38 U.S.C. § 7102 (2012); 38 C.F.R. § 20.707 (2017). It was specifically noted that, if he did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed with adjudication of the appeal. To date, no response has been received. The Board remanded the case for further development in June 2014. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. FINDINGS OF FACT 1. In March 2007, the appellant was discharged under other than honorable conditions. 2. The appellant's actions resulting in his discharge under other than honorable conditions constituted willful and persistent misconduct. 3. The appellant was not insane at the time he committed the offenses that led to his discharge. CONCLUSION OF LAW The character of the appellant's discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101(2), 5303(b) (2012); 38 C.F.R. §§ 3.1, 3.12 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis 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). A discharge issued under honorable conditions is binding on VA. 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 38 C.F.R. § 3.12(c); and, regulatory bars listed in 38 C.F.R. § 3.12(d). As to the regulatory bars, a discharge or release because of certain offenses is considered to have been issued under "dishonorable" conditions, unless it is found that the person was insane at the time of committing the offense causing such a discharge. Such offenses include: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, including, generally, conviction of a felony; (4) willful and persistent misconduct, including a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct; but not a discharge because of a minor offense if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d); Stringham v. Brown, 8 Vet. App. 445, 448 (1995) (noting that "offenses that would interfere with [the] appellant's military duties, indeed preclude their performance," such as periods of absence without leave (AWOL), do not constitute minor offenses); Winter v. Principi, 4 Vet. App 29 (1993) (holding that one AWOL offense where the appellant was AWOL 32 days out of his 176-day service time constituted a bar to the payment of VA benefits on the basis of willful and persistent misconduct). As to the statutory bars, benefits are not payable where the former service member was 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 former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (with specified exceptions to this condition). 38 C.F.R. § 3.12(c). 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. The types of behavior identified as insanity in 38 C.F.R. § 3.354(a) do not include a minor episode or episodes of disorderly conduct or eccentricity. 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 authorities defining the scope of the term insanity. The phrase "interferes with the peace of society" in the regulation refers to behavior which disrupted the legal order of society. The term "become antisocial" in the regulation refers 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. The reference in the regulation to "accepted standards of the community to which by birth and education" an individual belonged requires consideration of an individual's ethnic and cultural background and level of education. The regulatory reference to "social customs of the community" in which an individual resided requires assessment of an individual's conduct with regard to the contemporary values and customs of the community at large. VAOPGCPREC 20-97 (May 22, 1997). 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, including antisocial personality disorder, do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97. In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Rather, insane behavior is defined as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, the person is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. VAOPGCPREC 20-97. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VA O.G.C. Prec. 20-97 (May 22, 1997) (clarifying VA's definition of insanity). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the character of the appellant's discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. The appellant's DD Form 214 shows that he served on active duty from August 2004 to March 2007 and was discharged under conditions other than honorable. The narrative reason for discharge was misconduct. The appellant's service personnel records show numerous offenses and punishments during the course of his service. In March 2005, the appellant received nonjudicial punishments for violating Article 77 and Article 92 of the Uniform Code of Military Justice (UCMJ) by instigating the waking of Marines after quiet hours and failing to obey orders to enforce quiet hours. In December 2005, the appellant received counseling for violating Article 134 for willfully and wrongfully exposing his genital area in an indecent manner to public view while deployed to the United States Embassy in Baghdad, Iraq. At that time, the appellant chose not to make a rebuttal of the violation. In January 2006, the appellant received counseling for violating Article 128 for assault when he came into physical contact with his wife during a verbal altercation. The appellant was advised that any further deficiencies in his performance or conduct may result in disciplinary action. He was also notified of the availability of various resources for assistance, including the Family Service Center. In March 2006, the appellant received counseling for failing to make a scheduled appointment at the Camp Lejeune Naval Hospital. In August 2006, the appellant's unit reported him as a deserter after a period of 30 days of absence without leave. The appellant was apprehended by the United States Marshals on October 21, 2006. Thereafter, he was subject to a special court-martial for violating Article 86 for unauthorized absence from on or about July 7, 2006, to October 21, 2006. The appellant pled guilty to the charge of being AWOL and was sentenced to confinement for a period of 120 days. In a September 2011 application for review of discharge, the appellant asserted that he discovered that his spouse was having an extramarital affair during his deployment in Iraq and indicated that he experienced breakdowns as a result of the incident. He also reported attending anger management and substance abuse rehabilitation. The appellant indicated that he experienced difficulty "growing up" during service and should have dealt with his problems rather than "running away." In his October 2011 substantive appeal, the appellant stated that he experienced marital problems during his deployment in Iraq. He also reported having suicidal thoughts during service and recounted an incident where he placed a loaded rifle into his mouth. The appellant asserted that his period of AWOL was a result of his inability to deal with his crippling mental health issues. He also indicated that he felt that he did not have access to resources to improve his mental health and family problems. During a May 2012 hearing, the appellant testified that he experienced mental health and marital problems during service. He recounted an incident during which he informed his commanding officer that he was going to be late for duty due to traffic and poor weather conditions, but he was informed that he was going to receive nonjudicial punishment. Thereafter, he decided to return to his home in Las Vegas and went AWOL. The appellant also testified that he felt that he could not handle returning for an additional deployment to Iraq. He further testified that he knew the consequences of his actions when he went AWOL. See May 2012 Board hearing transcript, at 15. The appellant's post-service VA medical records note diagnoses of posttraumatic stress disorder (PTSD), as well as rule out diagnoses of schizoaffective disorder and bipolar disorder. In a December 2014 VA psychiatric evaluation, the appellant reported having visual and auditory hallucinations that had their onset approximately two or four years earlier. He also recounted that the in-service indecent exposure incident occurred as a result of an individual taking a picture of him leaving a bathroom. As an initial matter, the Board finds that the statutory bars under 38 C.F.R. § 3.12(c) do not apply in this case. In this regard, the appellant's longest period of AWOL was less than 180 days. In addition, although the appellant's unit reported him as a deserter, he was not court martialed for being a deserter. Moreover, the appellant was not a conscientious objector; he was not discharged as the result of a general court-martial; he did not resign as an officer for the good of service; and he was not an alien. Nevertheless, given the facts above, the Board finds that the incidents leading up to the appellant's discharge were sufficiently numerous, willful and persistent in nature as to reflect an ongoing pattern of misconduct. His offenses, including a period of AWOL from July 7, 2006, to October 21, 2006, interfered with his military duties and were not minor in nature. See e.g., Stringham, 8 Vet. App. at 448 (noting that "offenses that would interfere with [the] appellant's military duties, indeed preclude their performance," such as periods of AWOL, do not constitute minor offenses). During the May 2012 hearing, the Veteran testified that he understood the consequences of his actions, but nevertheless remained AWOL. Indeed, he did not voluntarily surrender after his period of AWOL, but was rather apprehended by the United States Marshals. In summary, the Board finds that the appellant's actions in service reflected an ongoing pattern of conduct which was not consistent with the honest, faithful, and meritorious service for which VA benefits are granted. In reaching this determination, the Board has considered the appellant's contention that he suffered from a mental illness during service. The appellant's service treatment records, however, are negative for complaints or findings of a psychiatric disorder. In this regard, the appellant's October 2003 enlistment examination showed a normal psychiatric evaluation. In addition, in a December 2005 post-deployment health assessment, the appellant denied seeking counseling or care for his mental health. He reported having serious conflicts with his spouse, family members, or close friends; however, he denied having any concerns about his health. The appellant subsequently participated in an intensive outpatient treatment program for alcohol dependence from May 2006 to June 2006. Thereafter, an October 2006 confinement examination noted that the appellant's mental status was normal. At that time, the appellant reported having a history of substance abuse treatment, but he denied having a history of psychological problems or current suicidal thoughts. The appellant's March 2007 separation examination also showed a normal clinical psychiatric evaluation. The Board further notes that, at no time during service, did the appellant offer his mental health disorder as a defense to his multiple charges, and there is otherwise no indication in his service treatment or personnel records of the existence of any insanity at the time of the commission of the offenses leading to his discharge. The appellant has not contended otherwise. Moreover, as noted above, 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. The Board finds no indication that the appellant was incapable of determining right from wrong in service. Indeed, during the May 2012 hearing, the appellant specifically testified that he knew the consequences of his actions. See May 2012 Board hearing transcript, at 15. The Board therefore concludes that there is no basis upon which to conclude that the appellant was insane at the time of committing the offenses resulting in his discharge. See 38 C.F.R. § 3.12 (b). Finally, the Board notes that, in February 2013, the Naval Discharge Review Board (NDRB) carefully considered all available evidence, to include the appellant's lay statements and service records, and determined that he was properly and equitably discharged from service. The NDRB noted that the appellant contended that his misconduct was due to immaturity and personal difficulties. However, the NDRB found no evidence to demonstrate that the appellant was not responsible for his conduct or that he should not be held accountable for his actions. Moreover, the NDRB determined that the appellant's personal difficulties did not mitigate or justify the offenses that led to his separation. Under the circumstances of this case, the Board concludes that the preponderance of the evidence is against the claim and the character of the appellant's discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101(2), 5303(b); 38 C.F.R. §§ 3.1, 3.12. ORDER The character of the appellant's discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. The appeal is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs