Citation Nr: 18153742 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-14 558 DATE: November 28, 2018 REMANDED Entitlement to eligibility for Veterans Retraining Assistance Program (VRAP) benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1983 to January 1989 for which he received an honorable discharge, and from January 1989 to January 1991 for which he received an “under other than honorable conditions” discharge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 determination by the Education Center located at a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in April 2015. In October 2015 and March 2018, the Board remanded the appeal for further development. The case has now been returned to the Board for additional appellate consideration. Although the Board regrets the additional delay, for the reasons stated below it finds that further development is still required in this case. 1. Entitlement to eligibility for VRAP benefits is remanded. The VRAP is a component of the VOW to Hire Heroes Act of 2011. VRAP offers up to 12 months of training assistance to unemployed veterans. Participants may pursue an approved program of education offered by a community college or technical school that leads to an associate degree or a certificate (or other similar evidence of the completion of the program of education or training) and is designed to provide training for a high-demand occupation. Pursuant to the VRAP, an eligible veteran must: 1) be at least 35 but not more than 60 years old; 2) be unemployed; 3) have last been discharged under other than dishonorable conditions; 4) not be eligible for any other VA education benefit programs; 5) not be in receipt of VA compensation due to unemployability; and 6) not be, or have been in the last 180 days, enrolled in a Federal or state job training program. Pursuant to Pub. L. No. 112-56, 125 Stat. 713, § 211(k), authority to make payments under VRAP terminated on March 31, 2014. However, as the Veteran’s appeal for VRAP benefits was pending prior to the program’s end date, this matter is still within the Board’s jurisdiction. Under governing law, a discharge or release from service is considered to have been issued under dishonorable conditions in certain circumstances as specified in 38 C.F.R. § 3.12(b) unless it is found that the person was insane at the time of committing the offense causing such discharge or unless otherwise specifically provided by statute. There are two types of character-of-discharge bars to establishing entitlement to VA benefits: “statutory bars” under 38 C.F.R. § 3.12(c) and “regulatory bars” under 38 C.F.R. § 3.12(d). The circumstances of “statutory bars” as defined by 38 C.F.R. § 3.12(c) do not apply to this appeal. Insanity is a defense against either a statutory bar or a regulatory bar. 38 C.F.R. § 3.12(b). A discharge or release because of willful and persistent misconduct, or other specified offenses, is considered to have been issued under dishonorable conditions and is a regulatory bar to establishing entitlement to VA benefits. 38 C.F.R. § 3.12(d)(4). This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. Id. However, “offenses that would interfere with the appellant’s military duty, indeed preclude their performance...are not minor.” Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). In this case, a June 1993 Administrative Decision found the Veteran’s character of discharge for the December 1983 to January 1989 period of active duty was considered to be under honorable conditions for VA purposes, but the character of discharge for January 1989 to January 1991, was considered to be under other than honorable conditions for VA purposes, and a bar to VA benefits. In a December 2017 Administrative Decision, the Veteran’s character of discharge for the January 1989 to January 1991 period of active duty was again considered under other than honorable conditions for VA purposes, and a bar to VA benefits. Further, the narrative reason for separation on the DD Form 214 for that period is listed as “In Lieu of Trial by Court-Martial,” and 38 C.F.R. § 3.12(d)(1) reflects that the acceptance of an undesirable discharge in lieu of trial by general court-martial renders the character of service “dishonorable” for VA purposes. The Board acknowledges that the record reflects the Veteran submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Naval Discharge Review Board (NDRB) in 2013 for a discharge upgrade for his January 1989 to January 1991 period of active duty. In January 2014, the NDRB indicated that it could not review the characterization of his discharge, as it was issued over 15 years prior. The NDRB advised the Veteran to instead petition the Board for Correction of Naval Records (BCNR), and an application form (DD Form 149) was enclosed. The Board remanded the case in October 2015 and March 2018 to determine if the Veteran’s efforts to upgrade his character of discharge had been successful. A July 2018 Report of Contact reflects the BCNR reported that the Veteran’s request had been processed and denied, and indicated there had been no actions since that time. Moreover, the April 2015 denial letter to the Veteran from the BCNR has also been added to the record, which confirms that there was no change in the character of the Veteran’s discharge. The Board notes, however, that the Veteran has indicated that the behavior which resulted in the under than honorable conditions discharge for his January 1989 to January 1991 period of active duty was due to his now service-connected PTSD. Further, there is competent medical evidence in support of this contention, to include a September 2013 private medical opinion. As such, he is invoking the insanity defense as part of this case. 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 (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). In this case, the Board finds it is not clear from the evidence of record whether the Veteran’s behavior at the time of his discharge from the January 1989 to January 1991 period of active duty satisfies the regulatory definition of insanity. Therefore, a remand is required to accord the Veteran a competent medical examination and opinion to clarify this matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)   The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Obtain all outstanding relevant private treatment records. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After completing the above development, arrange for the Veteran to undergo a VA psychiatric examination. All indicated tests and studies are to be performed. The claims folder, including the hearing transcript and a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. A detailed history should be obtained regarding the appellant’s situation, state of mind, and behavior during service, and in particular around the time of any charged misconduct during his second period of service. Following a detailed review of the entire claims file, the examiner is asked to respond to the following: a). Did the Veteran, due to disease including his service-connected PTSD (attributed his first honorable period of service), exhibit a more or less prolonged deviation from his normal method of behavior at the time of any charged misconduct, including times when he was AWOL, or at any other time during his second other than honorable period of military service? c). Did the Veteran, due to disease including his service-connected PTSD (attributed his first honorable period of service), interfere with the peace of society at the time of any charged misconduct, including times when he was AWOL, or at any other time during his second other than honorable period of military service? d). Did the Veteran, due to disease including his service-connected PTSD (attributed his first honorable period of service), become antisocial or 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 resided at the time of any charged misconduct, including times when he was AWOL, or at any other time during his second other than honorable period of military service? In reaching his or her conclusions, the examiner should specifically consider and address the Veteran’s lay statements (both from the detailed history taken at the examination and contained in the claims file, including his hearing testimony) concerning his situation, state of mind, and behavior during service, and in particular around the time of any charged misconduct, including times when he was AWOL. The examiner must include a complete rationale for all opinions expressed. If the examiner finds that a requested opinion cannot be rendered without resorting to speculation, he or she should state the reason for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel