Citation Nr: 20045048 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 19-34 773 DATE: July 7, 2020 REMANDED The issue of whether the character of the appellant’s discharge is a bar to VA benefits, is remanded. REASONS FOR REMAND The instant matter is on appeal from a March 2018 administrative decision. The appellant had active duty service with the United States Navy from March 1982 to May 1984 and received a discharge under other than honorable conditions due to willful and persistent misconduct reflected by non-judicial punishments received for violations of the Uniform Code of Military Justice (UCMJ). See April 1984 Recommendation for Separation for misconduct; see also September 1983 Administrative Remarks (“10 Nov 82 Viol Art 121 UCMJ: Making calls from a U.S. Government Phone without authority with intent to defraud…24 Nov 82 Viol Art 134 UCMJ Break restrictions…27 May 1983 Viol Art 91 UCMJ Disobey a lawful order…Viol Art 121 UCMJ Wrongful appropriation); February 1984 Court Memorandum (“CO’s NJP…27 Feb 1984 Viol Art 134 UCMJ…Wrongful Use of Marijuana…Wrongful Use of Cocaine.”) The appellant, in essence, asserts that he is entitled to an exception to the regulatory bar of VA benefits because his discharge misconduct was not willful due to his mental health state at the time of the underlying infractions leading to his discharge. See i.e. September 2018 Notice of Disagreement (NOD) (“there were a lot of extenuating circumstances including severe pain post-op which caused my drug use also because of my impending divorce. I was suffering from depression…they cut a nerve in my knee and to this day I can barely feel my toes”). For VA 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). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Most 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 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12(d). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). Mere technical violation of police regulations or ordinances will not, per se, constitute willful misconduct. 38 C.F.R. § 3.1(n). 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). 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. § 5303(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 or her 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/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he/she resides. 38 C.F.R. § 3.354(a). 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). In viewing the appellant’s arguments broadly, the Board finds that he has argued the following: (1) that his misconduct should not be considered “willful and persistent” pursuant to 38 C.F.R. § 3.12 and/or (2) that he was not responsible for his actions or “un-willful” due to mental-health related insanity pursuant to 38 C.F.R. § 3.354. Service treatment records corroborate the appellant’s reported complications from his September 1983 knee surgery and also reflect that he indicated he was depressed upon discharge. See May 1984 Report of Medical Examination (“knee no ligament laxity…sensation subjective decreased”); see also May 1984 Report of Medical History (“Depression or excessive worry…worry about wife in New York”). On remand he will be afforded a VA medical examination with corresponding opinion regarding whether he was insane at the time of the conduct that led to his discharge. Additionally, the Board notes that the appellant appears to have applied to the Army Discharge Review Board (ADRB) in March 2015, but no materials other than the application have yet been associated with the claims file. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the appellant’s claim, to include updated VA and non-VA treatment records. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the appellant and the representative of record, and afford an opportunity to provide these outstanding records. Document all attempts to assist the appellant with the procurement of these records. 2. Contact the Army Discharge Review Board and obtain any records pertaining to the appellant’s claimed March 2015 request for discharge upgrade. 3. After any additional records are associated with the claims file, schedule the appellant for a VA psychological examination to specifically include an opinion as to whether the appellant was insane for VA purposes at the time of the misconduct underlying the May 1984 separation, including the following UCMJ infractions: - November 1982 violations of Articles 121 and 134 of the UCMJ: Making calls from a U.S. Government Phone without authority with intent to defraud and Breaking restrictions; - May 1983 violations of Articles 91 and 121 of the UCMJ, Disobeying a lawful order and Wrongful appropriation; - February 1984 violations of Article 134 of the UCMJ for Wrongful Use of Marijuana and Cocaine; The examiner is informed that for VA purposes “[a]n insane person is defined 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, (1) a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) 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. 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.” After a review of the claims file, to specifically include the appellant’s lay statements, service treatment records, and private treatment records, the examiner should answer the following: a.) At the time of the above-listed infractions of the UCMJ between November 1982 and February 1984, did the appellant exhibit a more or less prolonged deviation from his normal method of behavior? b.) At the time of the above-listed infractions of the UCMJ between November 1982 and February 1984, did the appellant, due to disease interfere with the peace of society? c.) At the time of the above-listed infractions of the UCMJ between November 1982 and February 1984, was the appellant, due to disease 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? d.) Was the appellant otherwise insane at the time of the above-listed infractions of the UCMJ between November 1982 and February 1984? A rationale should be provided for the opinions which incorporates acknowledgement of the appellant’s lay statements including complications from his left knee surgery and separation from his spouse. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.