Citation Nr: 20007894 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-55 934A DATE: January 30, 2020 REMANDED The issue of whether the Veteran’s character of discharge from service constitutes a bar to Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND Background – Character of Discharge The Veteran served in the United States Navy from September 1966 to May 1970. During his period of service, he earned the National Defense Service Medal and Vietnam Service Medal with two bronze stars. An April 1976 administrative decision indicates that the Veteran received non-judicial punishment for missing movement of his assigned ship on June 19, 1967. He was convicted by special court martial of unauthorized absence from October 28, 1968 until November 3, 1968, and from November 11, 1968 to November 26, 1968, to include missing movement of his assigned ship on October 28, 1968 and November 22, 1968. The Veteran was also convicted by special court martial of unauthorized absence from June 3, 1969 to October 13, 1969 and received non-judicial punishment for unauthorized absence from February 2, 1970 to February 4, 1970. The Veteran was discharged under other than honorable conditions on May 25, 1970. The administrative decision determined that the Veteran’s military service from September 23, 1966 to May 25, 1970 was considered to have been under dishonorable conditions. Subsequently, on January 12, 1976, the Veteran was issued a clemency discharge pursuant to Presidential Proclamation Number 4313, dated September 16, 1974. (As an initial matter, the Board notes that the January 1976 grant of a clemency discharge pursuant to Presidential Proclamation Number 4313 does not remove the bar to the Veteran’s receipt of VA benefits. Unless a discharge review board established under 10 U.S.C. § 1553 determines on an individual case basis that a claimant’s discharge should be upgraded, an honorable or general discharge awarded by Presidential Proclamation 4313 does not remove a bar to benefits. See 38 C.F.R. § 3.12(h).) Insanity The Veteran is seeking compensation for disabilities that he contends are related to service. However, service personnel records indicate the Veteran was discharged from service under conditions other than honorable. Thus, the character of his discharge is a bar to VA benefits. Nonetheless, the Veteran asserts that he was insane at the time he committed the misconduct offenses leading to his other than honorable discharge. A discharge or release from service under any of the conditions specified in 38 C.F.R. § 3.12 is a statutory or 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). For VA purposes, 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 the 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. When a rating agency is concerned with determining whether a claimant was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in 38 C.F.R. § 3.354(a) and § 3.354(b). In this case, although the Board regrets the additional delay, remand is required for further development. At the outset, the Board observes that the Veteran submitted a copy of a June 2019 Application for Correction of Military Record under the Provisions of Title 10, United States Code, Section 1552,DD Form 149. The form indicates that a determination was made by the Board for Correction of Naval Records (BCNR) in a June 2019 decision, for which he is seeking reconsideration. However, documentation of cited BCNR decision is not of record. On remand, any available records pertaining to the Veteran’s requests to upgrade his character of service, to include the June 2019 decision, should be obtained from the Board for Correction of Naval Records. In addition, service treatment records show that the Veteran was initially diagnosed with depressed reaction and referred for a psychiatric evaluation in November 1968. At the time of evaluation, the examiner diagnosed passive-aggressive personality, manifested by resentment of authority, intolerance of stress and frustration, obstructionistic behavior, and inadequate control of hostile feelings. A private medical opinion was provided by Dr. J. G. in October 2019. The evaluator noted the diagnosis of passive-aggressive personality; however, the evaluator indicated that the Veteran’s service treatment records were not supportive of the presence of a personality disorder. Dr. J. G. explained that the presence of symptoms such as “intolerance of stress and frustration” and “inadequate control of hostile feelings” would appear to represent as adjustment disorder in the current diagnostic nomenclature. As behavior which is attributable to a personality disorder does not satisfy the definition of insanity under 38 C.F.R. § 3.354(a), the Board finds that a remand is needed to clarify the Veteran’s in-service diagnosis. Specifically, while Dr. J. G. explained that the presence of symptoms such as “intolerance of stress and frustration” and “inadequate control of hostile feelings” would represent as adjustment disorder in the current diagnostic nomenclature, he failed to address the other noted symptomatology, which included resentment of authority and obstructionistic behavior. As such, an opinion is warranted to clarify the nature of the Veteran’s mental disability during service, to include whether he was insane, for VA purposes, during his period of service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matter is REMANDED for the following action: 1. Request all records associated the Veteran’s applications for Correction of Military Record under the Provisions of Title 10, United States Code, Section 1552, DD Form 149 filed with the Board for Correction of Naval Records, including all final decisions issued therein for incorporation into the record. 2. Schedule the Veteran for a VA examination with the appropriate medical examiner for a VA psychiatric examination. The examiner must review the claims file, to specifically include the Veteran’s service treatment records and lay statements. This review must be noted in the examination report. A detailed history should be obtained regarding the Veteran’s situation, state of mind, and behavior during service, and in particular around the time of any charged misconduct, including periods of unauthorized absence. Following a detailed review of the entire claims file, the examiner is asked to respond to the following: (a.) When the Veteran missed movement of his assigned ship on June 19, 1967 and had unauthorized absence from October 28, 1968 until November 3, 1968, and from November 11, 1968 to November 26, 1968, to include missing movement of his assigned ship on October 28, 1968 and November 22, 1968, did he exhibit a more or less prolonged deviation from his normal method of behavior? (b.) When the Veteran missed movement of his assigned ship on June 19, 1967 and had unauthorized absence from October 28, 1968 until November 3, 1968, and from November 11, 1968 to November 26, 1968, to include missing movement of his assigned ship on October 28, 1968 and November 22, 1968, did he, due to disease, interfere with the peace of society? (c.) When the Veteran missed movement of his assigned ship on June 19, 1967 and had unauthorized absence from October 28, 1968 until November 3, 1968, and from November 11, 1968 to November 26, 1968, to include missing movement of his assigned ship on October 28, 1968 and November 22, 1968, was he, due to disease, so departed (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided? (d.) Was the Veteran otherwise insane at the time in which he missed movement of his assigned ship on June 19, 1967 and had unauthorized absence from October 28, 1968 until November 3, 1968, and from November 11, 1968 to November 26, 1968, to include missing movement of his assigned ship on October 28, 1968 and November 22, 1968, leading to his discharge? In providing the opinions, the examiner must address the findings of the October 2019 private examiner, specifically the finding that the Veteran’s in-service symptomatology would represent as adjustment disorder in the current diagnostic nomenclature. The examiner is advised that an insane person is defined by 38 C.F.R. § 3.354(a) as 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. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, Associate Counsel 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.