Citation Nr: 20002450 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 18-04 271 DATE: January 10, 2020 ORDER The character of the appellant’s service is a bar to receiving Department of Veterans Affairs (VA) benefits. FINDING OF FACT The appellant requested a discharge from service in order to escape trial by general court-martial, he was discharged from the service under other than honorable conditions pursuant to this request, and he was not insane at any time during service. CONCLUSION OF LAW The character of the Veteran’s discharge from service is a bar to receiving VA compensation benefits. 38 U.S.C. § 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 July 1967 to April 1970, at which time he received a discharge under conditions other than honorable in lieu of trial by general court-martial. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 administrative decision finding that the character of the appellant’s discharge from service was a bar to receiving VA benefits. For benefits purposes, a “veteran” is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.315. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). A discharge or release because of an acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(1). A discharge under dishonorable conditions bars the payment of benefits unless the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so 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). Turning to the facts in this case, the appellant enlisted into service with the United States Marine Corps (Marines) on July 13, 1967, for a 4-year period of obligation. The appellant was convicted by a February 27, 1969 general court-martial of assault by pointing a rifle at the head and body of a Vietnamese woman on September 20, 1968. The appellant was sentenced to forfeiture of $70 pay per month for 3 months, 3 months of confinement at hard labor, and reduction in rank to Private, E-1. On July 17, 1969, the appellant received a non-judicial punishment (NJP) for a period of AWOL from July 1, 1969, to July 3, 1969. The appellant was sentenced to 2 weeks of restriction to limits, 2 weeks of extra duty, and forfeiture of $25. The appellant was convicted by an October 23, 1969, summary court-martial of a charge of AWOL from August 12, 1969, to August 16, 1969. The appellant was sentenced to 30 days of restriction to limits and forfeiture of $50. On January 17, 1970, the appellant received an NJP for a period of AWOL from January 5, 1970, to January 6, 1970. The appellant was sentenced to 30 days of restriction to limits. On March 23, 1970, after consulting with counsel, the appellant requested a discharge for the good of the service in lieu of undergoing trial by general court-martial. The appellant expressed an understanding of the consequences of making such a request. The appellant conceded that he was guilty of a period of AWOL from January 14, 1970, to January 15, 1970, a period of AWOL from February 1, 1970, to March 10, 1970, and breaking restriction to limits on January 9, 1970, and on three occasions on January 10, 1970. The appellant’s command approved his request to separate from the service in lieu of undergoing trial by general court-martial. His April 9, 1970, separation examination found that the appellant was psychiatrically normal, and he was qualified for separation. He separated from service on April 9, 1970, under conditions other than honorable. Service separation documents shows that he lost 75 days of service as the result of periods of AWOL and confinement. The appellant is a recipient of the National Defense Service Medal, the Vietnam Service Medal with one star, the Vietnam Campaign Medal with device, the Combat Action Ribbon, and the Rifle Marksmanship Badge. Following the appellant’s separation from service, he filed his current claim for benefits in April 2015. He argues that he was “not in [his] right mind after Vietnam”. In January 2018, the appellant described the family stresses that he experienced during service, and he stated that he broke his restriction to limits to make phone calls to stay informed about his daughter’s situation. The appellant indicated that he was “totally out of [his] mind” with worries that his spouse would harm his infant daughter. Similarly, in November 2019, the appellant’s representative argued that he experienced distress during service as the result of his combat service in Vietnam and concerns about his spouse and the well-being of his infant daughter. Though the representative conceded that the appellant was “likely not insane”, he was, during service, “understandably greatly distressed and/or traumatized and obviously not in his ‘right mind’”. Turning to an analysis of these facts, the evidence shows that the appellant sought out and accepted an undesirable discharge to escape trial by general court-martial. Absent a finding of insanity, the appellant’s acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. Turning to the definition of “insanity”, an insane person is one who 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. Regarding the question of whether the appellant’s in-service misconduct was a prolonged deviation from his normal method of behavior, the appellant’s pattern of misconduct began in February 1969, approximately a year and a half after his entry into active duty service. Between February 1969 and his April 1970 separation from service, the appellant was found guilty of assault pursuant to a general court-martial, he was AWOL on multiple occasions, and he broke his restriction to limits. At no time during service did the appellant in any way attribute his in-service misconduct to family difficulties or his service in Vietnam. Indeed, the appellant was found to be psychiatrically normal at the time of his separation from service. The Board finds that this in-service misconduct was not a prolonged deviation from the appellant’s normal method of behavior; instead, this misconduct was the appellant’s method of behavior. The appellant’s command made a similar finding during the appellant’s service when it recommended the appellant’s separation from service under other than honorable conditions. The weight of the evidence is similarly against a finding that the appellant’s misconduct interfered with the peace of society. The misconduct was serious in nature and involved one incident of assault, which interfered with the peace of society. With that said, the evidence does not support a finding that this incident of misconduct occurred as the result of a disease, nor did the appellant so argue at any time during service. Instead, the evidence shows that the appellant’s misconduct, while serious, consisted largely of periods of AWOL and breaking his restriction to limits. The appellant’s misconduct did not, due do disease, cause harm to others or interfere with the peace of society. Furthermore, the weight of the evidence is against a finding that the appellant showed a departure from accepted standards causing him to lack adaptability to social customs. A clinician found the appellant to be psychiatrically normal at the time of his separation examination. These normal findings are inconsistent with a finding that the appellant showed a departure from accepted standards causing him to lack adaptability to social customs or the social community in which he resided. Additionally, the appellant’s own post-service justifications of his in-service misconduct, attributing his actions, for example, to family concerns, are similarly inconsistent with a finding that such misconduct occurred as a result of the appellant’s lack of adaptability. In sum, the weight of the evidence is against a finding that the appellant was insane at the time he committed the misconduct that ultimately led him to request a discharge from service in lieu of trial by general court-martial. The appellant’s acceptance of an undesirable discharge in order to escape trial by general court-martial bars him from receiving VA benefits. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.