Citation Nr: 18144703 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-25 961 DATE: October 25, 2018 ORDER Service connection to an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran accepted discharge under other than honorable conditions, in lieu of trial by general court-martial. 2. The Veteran had two consecutive periods of active service; her claim is predicated on events that occurred during her second and last period of service; there is no argument or indication that any current mental health disability is related to the Veteran’s first period of active service. CONCLUSIONS OF LAW 1. The Veteran is considered to have been discharged under dishonorable conditions; she is not eligible for VA benefits based upon her last period of active service. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.12(d). 2. The criteria for service connection to an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. The Veteran appears before the Board on a pro se basis. See June 2015 statement from Veteran (revoking appointment of a veterans service organization as her representative and stating that she was representing herself). Entitlement to service connection to an acquired psychiatric disorder. The Veteran seeks service connection for a mental health disability, claimed as postpartum depression, insomnia, sleep disturbances, sexual harassment, and posttraumatic stress disorder (PTSD). See October 2013 fully developed claim. In an April 2014 statement, the Veteran indicated that she developed behavioral and psychological issues following her deployment to Mogadishu (Somalia). According to the Veteran, in Somalia she experienced fear of hostile military or terrorist activity, and following her tour of duty in Somalia she began to experience panic attacks and intrusive memories of her service there. Per the Veteran, these symptoms resulted in performance issues, which exposed her to disciplinary action, to include action under the Uniform Code of Military Justice (UCMJ). She stated that she decided to terminate her service due to her mental health symptoms. The Veteran has stated that she has had psychological problems since service. In a separate statement, the Veteran indicated that she was forced to have a sexual relationship with a superior, became pregnant, was transferred back to the U.S. from Somalia due to her pregnancy, and subsequently underwent an abortion, a chain of events that resulted in continuous and intense stress and a mental breakdown. She reiterated these assertions in a December 2014 statement. A December 2014 private treatment note shows diagnoses of PTSD, major depressive disorder (moderate to severe), and panic disorder with agoraphobia. The Veteran’s DD-214 reflects that she had two immediately consecutive periods of service: from April 21, 1987, to September 17, 1991, and from September 18, 1991 to July 11, 1994. The DD-214 further indicates that the Veteran was discharged under other than honorable condition, in lieu of trial by court-martial. In this regard, military personnel records reflect that in March 1994 the Veteran was charged with violation of two articles of the UCMJ, for events that took place in February 1994. See February 1994 report from the Army Criminal Investigation Command, in Military Personnel Records, at 11. Trial by general court-martial was recommended. In June 1994, the Veteran requested discharge in lieu of trial by court-martial. This request was approved, and the Veteran was discharged under other than honorable conditions. The Board notes that, during a December 2014 private psychiatric examination, the Veteran indicated that the charges against her for violation of two articles of the UCMJ were due to false accusations, and that she had been vindicated of any charges at the time. These statements from the Veteran lack credibility, as they are contradicted by her military personnel records, to which the Board assigns a higher probative value. As noted above, the Veteran’s claim is based on events that took place during her service in Somalia. Military personnel records show that she served in Somalia at two different times: from January 24, 1993, to February 15, 1993, and from October 16, 1993, to February 20, 1994. These dates fall squarely within the Veteran’s second period of service. As already mentioned, the Veteran was discharged from this period of service under other than honorable conditions. *** To qualify for VA benefits, a claimant must have had active service and been discharged therefrom under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Under 38 C.F.R. § 3.12(d), acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. As discussed above, the evidence establishes that the Veteran was charged with violation of two articles of the UCMJ and that she requested discharge in lieu of trial by court-martial. Therefore, she is considered to have been discharged under dishonorable conditions. 38 C.F.R. § 3.12(d). Consequently, she does not qualify for VA benefits. The Board acknowledges that a discharge under dishonorable conditions does not constitute a bar to VA benefits if there was another period of qualifying service upon which a claim could be predicated. See VAOPGCPREC 61-91 (July 17, 1991). In this case, however, while the Veteran had two periods of service, her claim is predicated on events that occurred during her second period of service. The Board further acknowledges that insanity is a defense to a statutory or regulatory bar to payment of benefits. 38 C.F.R. § 3.12(b). An insane person is defined, as an individual who, due to disease, exhibits a prolonged deviation from his or her normal method of behavior, interferes with the peace of society, or lacks the adaptability to make further adjustments to the social customs of his or her community. See 38 C.F.R. § 3.354(a); VAOPGCPREC 20-97 (May 22, 1997). In this case, however, there is no argument or indication that the Veteran was insane, as defined by VA, at the time she committed the offense that led to her discharge. The Board acknowledges the Veteran’s statement that she experienced fear of hostile military or terrorist activity during her second deployment to Somalia. See April 2014 statements. There is, however, no argument or indication that these experiences caused the Veteran to become insane, as defined by VA. See, e.g., December 2014 private evaluation (noting normal tone with no flight of ideas looseness of association, circumstantial thought, or auditory/visual/tactile hallucinations). The Board has also considered the Veteran’s assertion that she became pregnant and had an abortion during service. The Veteran has stated that she discovered that she was pregnant during a pregnancy test that was administered to her during one of her tours in Somalia. Service treatment records, however, are silent for a pregnancy (or, for that matter, an abortion) during or around the periods during which she served in Somalia. These include records of routine OB-GYN clinic visits from March 1993 and March 1994. The Board finds that these medical records have more probative value that the Veteran’s statements in this regard. Thus, the weight of the evidence is against a finding that the Veteran became pregnant during or around the periods during which she served in Somalia. The Board acknowledges that the Veteran referenced postpartum depression in the October 2013 claim. As just discussed, the weight of the evidence is against a finding that the Veteran became pregnant during or around the periods during which she served in Somalia. Notwithstanding, service treatment records indicate that the Veteran gave birth to a baby boy in June 1989, during her first period of service. There is, however, no indication that the Veteran’s current mental health diagnoses are etiologically related to an episode of postpartum depression. Significantly, the December 2014 private psychiatric assessment, which includes a detailed narrative of the Veteran’s mental health history, is silent regarding postpartum depression or any current symptoms related to such an episode. Finally, the Board acknowledges the Veteran’s assertion that she experienced military sexual trauma. As mentioned, the Veteran has asserted that she was forced to have a sexual relationship with a supervisor. Her statements in this regard indicate that this occurred around one of the Veteran’s deployments to Somalia, that is, during her second period of service. Further, there is no argument or indication that the events occurred during her first period of service. As already discussed, the Veteran was discharged from her second period of service under dishonorable conditions. Thus, she is not entitled to VA compensation for any mental health disability predicated on events that occurred during that period. Notwithstanding the above, the Veteran should be aware that she may nonetheless be eligible for VA treatment for all physical and mental health conditions determined to be related to military sexual trauma. See U.S. Dep’t of Veterans Affairs, Veterans Health Admin. (VHA) Directive 2010-033, Military Sexual Trauma (MST) Programming, ¶ 3 (July 13, 2010). See also 38 U.S.C. § 1720D(a). She is encouraged to contact a VA veteran service representative for guidance, if so desired. *** In sum, as the Veteran’s claim of service connection for a mental health disability is predicated on events that occurred during her second period of service and she was discharged from that period of service under dishonorable conditions, she is barred from receiving VA compensation for her claimed disability. As there is no indication that her claimed disability is related to a prior period of service, the Board must deny her claim of service connection for a mental health disability. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel