Citation Nr: 20002236 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 18-55 065 DATE: January 10, 2020 ORDER The Appellant’s character of discharge constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code. FINDINGS OF FACT 1. The Appellant's discharge was under conditions other than honorable. 2. During the Appellant's period of active military service, he was convicted by civilian authorities for violating a protective order, intimidating a witness, attempted intimidation of a witness or victim, and obstruction of the legal process, as well as discipline for several violations of the Uniform Code of Military Justice (UCMJ). 3. In December 2011, the Appellant was sentenced to 19 months civilian confinement. 4. In July 2012, an administrative separation board determined that the Appellant had engaged in patterns of misconduct, and recommended separation with an OTH discharge. 5. The Appellant's numerous violations of civilian criminal law of the State of Kansas, as well as violations of the UCMJ, represent willful and persistent misconduct which resulted in his discharge under other than honorable conditions. 6. The Appellant's misconduct was willful and persistent, it was not offset by otherwise honest, faithful, and meritorious service, and the Appellant was not insane at the time of those offenses. CONCLUSION OF LAW The character of the Appellant's service is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from November 20, 2007 through September 11, 2012. The Appellant was discharged for patterns of misconduct and given an under Other than Honorable (OTH) conditions discharge. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2016 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Louis, Missouri. In August 2019, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. 1. Whether the Appellant’s character of discharge for the period from November 20, 2007 through September 11, 2012 constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code. The Appellant is seeking entitlement to VA benefits. Specifically, he has asserted that his character of discharge should not be a bar to VA benefits. After a careful review of the evidence of record, the Board finds that the character of the Appellant's discharge from service is a bar to benefits. Applicable Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. See Holmes v. Brown, 10 Vet. App. 38, 40 (1997). A "veteran" is "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(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars and (2) regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a former service member was discharged or released under one of the following conditions: (1) as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (with certain exceptions). 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must then determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions. (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the Veteran was insane. 38 U.S.C. § 530(b). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). 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 insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). The Board has reviewed all the evidence in the Appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis In August 2016, the RO determined that the Appellant engaged in a pattern of willful misconduct and his service from November 20, 2007 through September 11, 2012, was found to be under conditions less than honorable and a bar to VA benefits. The Appellant argues that he served honorably in the United States Army, and his discharge should not be a bar to VA benefits. In considering the evidence of record and the applicable laws and regulations, the Board finds that the weight of the evidence shows that willful and persistent misconduct was demonstrated by the Appellant throughout his period of service. The Appellant’s military personnel record shows that he had been counselled for failing to obey orders and failing to be at his appointed place of duty on several occasions. He had been given a rehabilitative transfer to another unit in 2009 to afford the Appellant another opportunity to rehabilitate his performance. A review of the Appellant's military personnel record further shows that he was discharged for patterns of misconduct. His military personnel records indicate several incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ) and State of Kansas criminal statutes. The violations included the following: In July 2009, the Appellant was arrested for causing bodily harm to Mrs. S. a member of his household and causing physical contact in a rude, insulting or angry manner towards Mrs. J. These charges were subsequently dismissed. In August 2009, the Appellant was arrested by Kansas authorities on the charges of aggravated kidnapping, aggravated battery, criminal threat, reckless driving and driving without a driver’s license. In March 2010, the Appellant pled nolo contendere to the August 2009 charges of (1) violating a protective order, (2) intimidating a witness, and (3) attempted intimidation of a witness or victim. The remaining charges were dismissed. He was sentenced to 12 months confinement for charge (1), 6 months, consecutive to the 12-month confinement sentence, for charge (2), and 30 days for charge (3). He was placed on immediate probation and returned to military control. In November 2010, the Appellant was arrested for two counts of aggravated assault with a deadly weapon. In April 2011, the Appellant was arrested for causing bodily harm to Ms. B. and Mrs. S.; causing physical contact in a rude, insulting or angry manner towards Mrs. S.; illegally entering the dwelling of Mrs. S., with the intent of committing an aggravated battery; illegally restrained Mrs. S.; unlawfully placing a child in a situation where she could be injured; and illegally taking a cell phone from Ms. B.. He was released on a $10,000.00 bond. In April 2011, the Appellant failed to appear at a court hearing. His bond was revoked, and a bench warrant was issued for his arrest. He was arrested and remained in pretrial confinement until his conviction in December 2011. In October 2011, the Appellant was found guilty of obstructing a legal process. In December 2011, he was sentenced to 7 months confinement and 12 months of probation. The judge ordered that this sentence would be occur consecutive to his prior sentence. In December 2011, the Appellant was also convicted of violation of probation resulting from his March 2010 conviction for violating a protective order, intimidating a witness, and attempted intimidation of a witness or victim. He was sentenced to serve 19 months in confinement. In May 2011, the Appellant’s commander initiated an administrative separation action against the Appellant for patterns of misconduct, under Army Regulation 635-200, chapter 14-12c. He elected to have his case adjudicated by an administrative separation board. Due to his confinement and the type of separation selected by the command, the separation could not proceed until his release from civilian confinement in April 2012. The Board met in July 2012 and recommended his separation from service for patterns of misconduct with an OTH discharge. The Appellant was discharged on September 11, 2012, with an under Other than Honorable (OTH) conditions discharge certificate. There is evidence that the Appellant applied to have his discharge reviewed for possible upgrade with the Department of the Army Board of Correction of Military Records (ABCMR). However, there is no evidence that the ABCMR has granted his request. Based on the evidence of record, the Board finds that the Appellant's discharge under other than honorable conditions resulted from willful and persistent misconduct. The evidence shows that the Appellant committed repeated offenses and underwent rehabilitative efforts for disciplinary problems during that same time period. In order for the offenses which led to the Appellant's discharge to be considered minor, so as to warrant an exception to a bar to VA compensation benefits, the offenses must be determined to be such that the commission of the offenses would not have interfered with or precluded the Veteran's military duties. See Stringham v. Brown, 8 Vet. App. 445 (1995). The Board finds that the record reflects that the offenses interfered with the Appellant's military duties because the Appellant’s actions resulted in his confinement by civilian authorities and absence from his unit, detracted from his unit’s operation and resulted in loss of manpower. The Board finds no factual basis upon which to deem the Appellant's offenses as minor or not a pattern of willful or persistent misconduct. The evidence does not show that the Appellant's period of service was otherwise honest, faithful, and meritorious. 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. In this case, the Board finds that the evidence shows that the Appellant was not insane at the time of committing the offenses resulting in his discharge. See 38 C.F.R. § 3.12(b). There is no probative evidence to support the theory that at the time of his misconduct, (1) the appellant had a more or less prolonged deviation from his normal method of behavior; or (2) the appellant interfered with the peace of society; or (3) the appellant had 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 resided. 38 C.F.R. § 3.354(a). Thus, the insanity exception to the bar to VA benefits is not applicable. The Board finds that insanity has not been shown by the evidence of record. While the Appellant and his representative have asserted that he had PTSD or PTSD-like symptoms, there is no medical evidence that the Appellant was diagnosed with PTSD, nor lay evidence of any PTSD-like symptoms in service. The Appellant’s service treatment records indicate that he sought mental health treatment in September 2010 and was diagnosed with an adjustment disorder. The treating mental health clinician returned the Appellant to duty and ordered a follow-up treatment. However, the clinician did not make any findings of severe mental health issues or indications of insanity. Furthermore, there is no indication that the Appellant was insane when he engaged in his misconduct, and he was found to have normal findings related to mental health during his November 2010 discharge examination. There is no evidence showing the Appellant was insane at the time of his offenses, nor had the Veteran, or his counsel, raised insanity at his civilian criminal proceedings or Army administrative separation board hearing. In sum, the foregoing evidence shows that the Appellant’s discharge from willful and persistent misconduct and is a regulatory bar to VA benefits, and such a status has not been remediated either by an upgraded discharge or a finding of insanity at the time of his offenses. 38 C.F.R. § 3.12(d). As the preponderance of the evidence shows that the Appellant engaged in willful and persistent misconduct and was not insane for VA purposes under 38 C.F.R. § 3.354, his character of discharge from service is a bar to payment of VA benefits. The Board finds that the Appellant's September 2012 discharge under other than honorable conditions resulted from willful and persistent misconduct and was not due to a mere minor offense; the Appellant's service was not honest, faithful, and meritorious; and the Appellant was not insane for VA purposes at the time he committed the offenses resulting in his discharge. Accordingly, the character of the Appellant's discharge is a bar to his receipt of VA compensation benefits and the appeal must be denied. There are two types of character of discharge bars to establishing eligibility 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). VA regulations provide that healthcare and related benefits authorized by Chapter 17 of the Title 38 of the United States Code shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions listed in 38 C.F.R. § 3.12(d). The Appellant's discharge for patterns of misconduct indicates "willful and persistent misconduct" and is a discharge under 38 C.F.R. § 3.12(d), and thus does not bar healthcare and related benefits authorized by Chapter 17, although it is considered to have been issued under dishonorable conditions. An August 2016 administrative decision found the Appellant to be entitled to health care under Chapter 17 of Title 38 U.S.C. for any condition found to be service-connected. Therefore, although health care benefits under 38 U.S.C. Chapter 17 are not barred, the Appellant is not entitled to benefits other than under Chapter 17. (Continued on the next page)   As the probative evidence of record fails to establish that Appellant was insane under the § 3.354(a) definition when he committed the acts resulting in his bad conduct discharge, the Appellant's character of discharge remains a bar to his eligibility for VA benefits for this period of service. Given the foregoing, the preponderance of evidence is against the claim; there is no doubt to be resolved, and eligibility to VA benefits, other than health care benefits under 38 U.S.C. Chapter 17, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.