Citation Nr: 18144737 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-19 481A DATE: October 25, 2018 ORDER The character of the late appellant’s discharge constitutes a bar to Department of Veterans Affairs (VA) benefits, to include Dependency and Indemnity Compensation (DIC) benefits to his surviving spouse; the appeal is denied. FINDING OF FACT 1. An original DD Form 214 and personnel records, show that the appellant was discharged from his period of service from April 1968 to March 1971 under “Other Than Honorable Conditions.” 2. The appellant’s request for discharge for the good of the service in lieu of a trial by Court Martial was approved by A.W. Alexander, Commanding Colonel. 3. His discharge was amended on June 10, 1977, under the Department of Defense (DOD) Discharge Review Program (Special) effective April 4, 1977, to reflect a discharge “Under Honorable Conditions” on a revised DD Form 214. The character of discharge was not upgraded by a discharge review board established under 38 U.S.C. § 1153. 4. During service, the appellant was absent without leave (AWOL) from October 7, 1970 to October 11, 1970; November 5, 1970 to December 22, 1970; and December 26, 1970 to February 8, 1971. 5. Due to the appellant’s willful and persistent misconduct, his discharge is considered dishonorable for VA purposes. 6. The most probative competent evidence of record does not show that the Veteran was insane at the time of his in-service willful and persistent misconduct. CONCLUSION OF LAW The character of the appellant’s discharge is under dishonorable conditions and constitutes a bar to his spouse’s receipt of VA death benefits. 38 U.S.C. §§ 101, 1310, 1541, 5107 5303 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.12, 3.102, 3.312, 3.354 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active service from April 1968 to March 1971. He died in July 2014. The claimant is his surviving spouse. 1. Character of Discharge The claimant filed a claim for DIC benefits in February 2014. See claim, February 2014. A necessary prerequisite for eligibility for these benefits is the underlying veteran status of the claimant’s deceased husband. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (providing the requirements for DIC benefits), and 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (providing the requirements for nonservice-connected death pension benefits). For both of these benefits, the term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1. 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). The statutory bars under 38 U.S.C. § 5303 (a) and codified at 38 C.F.R. § 3.12 (c) are not applicable in this case. The regulatory bars under 38 C.F.R. § 3.12 (d) state that a discharge is considered to have been issued under dishonorable conditions for numerous offenses, including willful and persistent misconduct. Specifically, the regulation states that “a discharge under other than honorable conditions” will be considered dishonorable “if it is determined that it was issued because of willful and persistent misconduct.” 38 C.F.R. § 3.12 (d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if the appellant’s service was otherwise honest, faithful, and meritorious. Id. A discharge or release from service under either the statutory or regulatory bars 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). VA’s definition of insanity is set forth in 38 C.F.R. § 3.354 (a) and does not necessarily have the common components of insanity definitions used in criminal cases. See Gardner v. Shinseki, 22 Vet. App. 415, 419-21 (2009). That definition states: An insane person is one (1) 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 (2) who interferes with the peace of society; or (3) who 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 phrase “due to disease” applies to all three circumstances of the insanity definition. Zang v. Brown, 8 Vet. App. 246, 253 (1995). Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. See Beck v. West, 13 Vet. App. 535, 539 (2000). The appellant had active service from April 1968 to March 1971. During active service, he was subject to several punishments. See service personnel records (SPRs). During service, the appellant was AWOL several times: from October 7, 1970 to October 11, 1970; November 5, 1970 to December 22, 1970; and December 26, 1970 to February 8, 1971. This was a total of 97 days. A psychiatric evaluation prior to administrative discharge was requested on January 25, 1970. It was noted that the appellant was pending Special Court Martial (SPCM). See SPRs. The appellant underwent a psychiatric evaluation on January 26, 1970. See service treatment records (STRs), January 26, 1970. The writer noted that the appellant was referred for an evaluation prior to court martial for taking leave in Saigon without proper authorization. The appellant conveyed to the examiner that he was “disgusted” with being unable to leave the country, and decided that from that point on he was going to follow only his own desires and inclinations, and live to satisfy himself. The appellant acknowledged that if this causes problems with the Army, he was willing to suffer the consequences. As an example, the appellant stated that he recently refused to go on duty because he felt ill, and was unable to get a doctor to “put him on quarters.” The appellant stated that he wanted to be discharged. The appellant underwent another psychiatric evaluation on January 28, 1970. See STRs, January 28, 1970. The examiner noted that the appellant was passive aggressive; was very cooperative; denied anxiety, but had some underlying anxiety present; and experienced situational anxiety – not chronic or overt, but present. The appellant expressed that the pending SPCM was unjust, and felt no guilt over his actions, but was willing to accept it. The appellant felt that his chronic bronchitis was not treated properly, and he refused field assignments. The examiner recommended placing the appellant in a rear position, and stated that if the appellant is unable to cope with it, another form of administrative type of action would be necessary. In March 1970, the appellant underwent a SPCM. He was in correctional detention from May 22, 1970, to July 1, 1970. See SPRs. On March 8, 1971, the appellant was recommended for a discharge for the good of the service, UP AR 635-200. Appellant was eligible for Bad Conduct Discharge due to offenses committed, and he was noted to have a record of previous convictions. It was recommended that the appellant be eliminated from the service with an Undesirable Discharge Certificate. See Department of the Army memorandum, March 8, 1971. On March 17, 1971, the appellant’s request for discharge for the good of the service in lieu of a trial by Court Martial was approved by A.W. Alexander, Commanding Colonel. See Department of the Army memorandum, March 17, 1971. The appellant was separated from service in March 1971 on account of his unfitness for service. His DD-214 reflected that he was discharged “Under Conditions Other Than Honorable.” The appellant was noted to have lost 135 days under 10 U.S.C. § 972. See DD-214. In an undated decision, the Army Discharge Review Board did not affirm the upgraded discharge. The Army Discharge Review Board noted the repeated AWOLs, which eventually led to the appellant’s separation from service, and the fact that the appellant’s performance was considered unsatisfactory. Although the appellant was credited with 24 months of satisfactory service, the Army Discharge Review Board did not find these criteria sufficient to warrant affirmation under the Uniform Standards. For that reason, the Army Discharge Review Board voted to deny affirmation pursuant to Public Law 95-126. There is no record that the appellant appealed this decision. See Army Discharge Review Board decision. The appellant’s character of discharge was upgraded to “Under Honorable Conditions” on June 10, 1977 under the DOD Discharge Review Program (Special) effective April 4, 1977, to reflect a discharge “Under Honorable Conditions” on a revised DD Form 214. In a February 1980 administrative decision, VA concluded that the appellant’s discharge was issued under dishonorable conditions. See administrative decision, February 12, 1980. In a March 2016 hearing before the Regional Office (RO) and the Decision Review Officer (DRO), the claimant and her representative stated that she would be entitled to DIC, based on a November 2014 unpublished rating decision, but for the issue concerning the appellant’s character of discharge. See DRO hearing transcript, March 2016. In multiple statements, the claimant stated that the conflicts with authority in active service did not reflect him as a person. She noted that the late appellant was a tremendous help and asset to their community, and was a man who “delighted in the arts, making music, making people happy, and serving his country even to his end as a volunteer for the VA healthcare system in Maryland.” See claimant’s statement, June 2016. Given these facts, and in consideration of the denial by the Army’s Discharge Review Board, the appellant’s discharge remains “Under Conditions Other Than Honorable.” The Board further finds that the appellant’s discharge was a result of his willful and persistent misconduct. Again, the appellant was the subject of one SPCM, which resulted in correctional detention from May 22, 1970, to July 1, 1970, and went AWOL three times, which was going to result in another SPCM. His multiple AWOL periods and conviction are more than mere minor offenses. Accordingly, the appellant’s discharge is considered to be dishonorable for VA benefit purposes. 38 C.F.R. § 3.12 (d) (2017). As noted above, a finding that a discharge was dishonorable is a bar to the payment of benefits unless it is found that the person in question was insane at the time of committing the offense. Id. There are no opinions of record stating that the appellant was insane. His in-service psychiatric evaluation noted that he was anxious (although he denied it) and experienced situational (not chronic) anxiety, but was fit for service. There is no indication that the appellant’s conduct was a deviation from his normal behavior and the accepted standards of his family and community. In contrast, the records developed at the time of the appellant’s discharge show that he was not suffering from a psychiatric disorder – he simply did not wish to be in active service. Weighing all of the evidence, the Board finds that the appellant did not meet VA’s definition of insanity at the time of his multiple in-service offenses. He did not have any diagnosed psychiatric disorders at the time of his offenses (trying to leave for Christmas break and going AWOL three times). As noted above, however, the United States Court of Appeals for Veterans Claims (Court) has concluded that the phrase “due to disease” applies to all three circumstances of the insanity definition; to not apply the disease requirement to each circumstance “would produce an illogical and absurd result.” Zang, 8 Vet. App. at 253. Indeed, if this were not the case, then a person who merely “interfered with the peace of society” or exhibited antisocial behavior would have to be considered insane. Id. Thus, some form of psychiatric disease is required for an appellant to avail himself of the insanity provision. In summary, the Board finds that the appellant’s March 1971 discharge was a result of his persistent and willful misconduct and is considered dishonorable, and that the appellant was not insane at the time of his offense. Because of his dishonorable discharge, he does not have veteran status for VA benefits purposes, and as such the claimant is barred from any applicable VA death benefits. While the Board is sympathetic to the claimant’s loss of her husband, the Board finds that the preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 U.S.C. A. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). The claim is therefore denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel