Citation Nr: 18141213 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 14-16 996 DATE: October 10, 2018 ORDER The character of the appellant’s discharge constitutes a bar to VA benefits. FINDING OF FACT 1. The appellant was separated from the service with an other-than-honorable discharge due to frequent incidents of a discreditable nature with civil or military authorities. 2. The preponderance of the competent, credible evidence of record is against a finding that the appellant was insane at the time he committed his incidents of a discreditable nature. CONCLUSION OF LAW The appellant’s other-than-honorable discharge is a bar to an award of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from October 1979 to May 1981. He received an other-than-honorable discharge due to frequent acts of a discreditable nature with civil or military authorities. In March 2017, the appellant testified before the undersigned at the Department of Veterans Affairs (VA) Atlanta, Georgia Regional Office. The appellant contended that he became an alcoholic in service and developed mental health issues for which he was never treated. He argued that inservice alcoholism led to him to commit numerous infractions during which he was, effectively, insane. He concluded that he should not have been held responsible for his actions and maintained that his other-than-honorable discharge should not be considered a bar to VA benefits. Generally, in order to be eligible for VA benefits, a veteran must have been separated from service under conditions other than dishonorable. 38 C.F.R. § 3.12. A discharge or release for certain offenses, such as willful and persistent misconduct, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12 (d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). Separation because of a minor offense is not considered willful and persistent misconduct if a veteran’s service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12 (d)(4). Offenses that interfere with or preclude performance of a veteran’s military duties are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995). However, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the commission of the offense resulting in the discharge. 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), 3.354(b). In this case, the appellant was found to have committed multiple acts of wrongdoing in service. The evidence shows that counseling, non-judicial punishment, and a court martial did not stop the Veteran’s choice of behavior. Such conduct was persistent and certainly not minor. At a special court martial in December 1980, the appellant was found guilty of assault, disorderly conduct, communicating a threat to injure, disrespect, and damage to military property. At an Article 15 proceeding the appellant was found guilty of an assault and communicating a threat. Struck v. Brown, 9 Vet. App. 145 (1996). The appellant was sent to the United States Army Retraining Brigade (USARB), for the purpose of receiving correctional training and treatment necessary to return him to duty. However, during that assignment, he was counseled on numerous occasions for multiple minor violations, as well as more major violations such as failing to follow orders, disorderly conduct, and failure to report for duty. Indeed, in January 1981, he was given non-judicial punishment for the use of provoking words. The appellant has argued that he was impaired by alcoholism and did not understand the consequences of his actions. In effect, he maintains that he was insane and should not have been held accountable. For VA purposes, an “insane” person is one who: (a) while not mentally defective or constitutionally psychopathic, 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. Insanity need not be causally connected to the misconduct that led to the discharge, but it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. Gardner v. Shinseki, 22 Vet. App. 415 (2009). As a layman, the appellant is not competent by training or experience to render a diagnosis of insanity, and he has not submitted any competent, credible evidence to support such a finding. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although he argues that he was impaired by alcoholism at the time of his misconduct, the preponderance of the evidence is against a finding that he had an alcohol problem in service. Further, there is no evidence that the appellant suffered from a psychiatric disorder, to include symptoms of such a disorder in service. His service medical records, including the report of his February 1981 service separation examination, are negative for any complaints or clinical findings of alcohol use or treatment, as well as any sign or diagnosis pertaining to a psychiatric illness. In an April 1981 medical history completed in conjunction with his dental treatment, the appellant specifically denied the use of alcohol. Moreover, it is noted that VA’s General Counsel has held in a binding precedent opinion that 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 for purposes of 38 C.F.R. § 3.354 (a). See VAOPGCPREC 20-97 (May 22, 1997). In addition, his service medical records are negative for any complaints or clinical findings of a psychiatric disorder of any kind. During a January 1981 social work assessment at the USARB, it was noted that he understood right from wrong and could adhere to the right. Indeed, there is absolutely no competent, credible evidence of record that due to a disease the appellant interfered with the peace of society; or that due to a disease he had so departed from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. As such, the appellant was not insane such that his misconduct could be found to be anything other than willful in nature. Inasmuch as the appellant’s conduct was willful and persistent in nature, and he was not insane, his other-than-honorable discharge is a bar to receiving VA benefits. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the appellant’s claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   The appeal is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel