Citation Nr: 18149725 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 13-20 132 DATE: November 13, 2018 ORDER The appellant's character of discharge is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. FINDINGS OF FACT 1. The misconduct committed by the appellant during service was willful and persistent and did not consist of minor offenses offset by otherwise honest, faithful and meritorious service. 2. The appellant was not insane at the time he committed the in-service misconduct. CONCLUSION OF LAW The character of the appellant’s discharge from service is a bar to VA compensation benefits. 38 U.S.C. 5303; 38 C.F.R. 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had service from August 1983 to June 1986. In a July 2013 VA Form 9, Appeal to the Board, the Veteran requested a Travel Board hearing. In February 2015, the Board remanded the appellant’s claim to allow the appellant the opportunity for a Travel Board hearing. However, the appellant failed to appear for his hearing scheduled in December 2017 and has made no request to reschedule the hearing. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). Whether the appellant's character of discharge is a bar to the receipt of VA benefits Service-connected compensation benefits may be granted to a veteran who has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. Accordingly, a discharge or release from active service under conditions other than dishonorable is generally 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: (1) statutory bars found in 38 U.S.C. 5303(a) and 38 C.F.R. 3.12(c); and (2) regulatory bars listed in 38 C.F.R. 3.12(d). Under the regulatory bars, which are at issue in this appeal, a discharge or release because of willful and persistent misconduct, to include a discharge under other than honorable conditions, is considered a dishonorable discharge. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge 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). An absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). A discharge or release from service under one of the above conditions is a regulatory bar to the payment of benefits, unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C. 5303(b); 38 C.F.R. 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL. VA regulations provide that 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 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). In the process of consulting several well-accepted legal authorities, VA General Counsel has noted that the term insanity was synonymous with psychosis. VAOPGCPREC 20-97 (May 22, 1997). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham, 8 Vet. App. at 449 (1995). Military personnel records (MPRs) reveal that the appellant was convicted by Special Court Martial of three violations of Article 128 of the Uniform Code of Military Justice (UCMJ) and one violation of Article 134 of the UCMJ. The violations of Article 128 were based upon the appellant assaulting a petty officer by striking him in the back with a pool cue and assaulting two petty officers by striking them in the face with his fist. The violation of Article 134 is based upon the appellant threatening to kill another servicemember. Additionally, prior to his conviction by Special Court Martial, the appellant was subject to non-judicial punishments for failing to go and dereliction of duty on December 31, 1985; being absent from his unit and failing to obey on October 31, 1986; and disobedience of a lawful order, breach of peace, and assault on March 26, 1987. The question is whether the appellant’s actions in service constituted willful and persistent misconduct such that his discharge under other than honorable conditions is considered to have been issued under dishonorable conditions. The appeal will be denied. After review of the evidence, including the appellant’s lay statements, the Board finds the appellant had other than honorable service due to his willful and persistent misconduct. The appellant reports that he hard time adjusting to military life due to his mental state and he dealt with it through using alcohol. He stated that the conduct that led to his discharge occurred when he was assaulted by someone while intoxicated and started swinging for whoever was nearby. The appellant was not discharged because of a minor offense. His discharge was due to a pattern of behavior including all the non-judicial punishments and the three offenses he was convicted of by the Special Court Martial. “Offenses that would interfere with [the] appellant’s military duties, indeed preclude their performance ... could not constitute a minor offense.” Stringham, 8 Vet. App at 448; see also Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). The appellant’s statements are unpersuasive in that his actions during service were still willful, intentional, and deliberate. In the April 2011 Notice of Disagreement, the appellant indicated he was seeking an upgrade in the character of service. He has not provided any indication and there is no other evidence that the service department has issued an upgrade in the character of service. The Board finds no indication that the appellant was insane at the time of the misconduct that led to his discharge, including having a deviation from his normal method of behavior, interfered with the peace of society, or lacked the adaptability to make further adjustment to the social customs of the community in which he resided. While the appellant reports psychological stresses, manifestations of psychiatric disorders do not equate to insanity for purposes of 38 U.S.C. § 5303(b) or 38 C.F.R. § 3.12(b). See Beck v. West, 13 Vet. App. 535, 539 (2000); VAOPGCPREC 20-97. Additionally, the appellant has not provided any medical evidence of psychiatric or psychological treatment or insanity. Thus, the insanity exception to the bar to VA benefits is not applicable. The character of his discharge from service is a bar to VA compensation benefits and the appeal will be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke