Citation Nr: 20052019 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 14-21 057 DATE: August 5, 2020 ORDER The character of the appellant’s discharge from military service constitutes a bar for VA benefits; the appeal is denied. FINDING OF FACT 1. The appellant was discharged from military service in May 2005 with a Bad Conduct Discharge. 2. The appellant’s discharge was the result of a special court-martial sentence for one count of being Absent without Leave (AWOL), one count of being disrespectful to a commissioned officer, and one count of being disrespectful to a noncommissioned officer. 3. The appellant’s discharge was the result of willful and persistent misconduct, not due to minor misconduct otherwise offset be service that was otherwise honest, faithful and meritorious. 4. There has been no removal of any bar to VA benefits via an upgrade to the appellant’s character of discharge or evidence showing that the appellant met the characteristics required to be defined as “insane” in accordance with 38 C.F.R. § 3.354 at the time of his misconduct. CONCLUSION OF LAW The character of the appellant’s discharge from military service constitutes a bar for VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant was on active duty from June 2001 to May 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 administrative decision of the VA Regional Office (RO) in Portland, Oregon, which determined that the character of the appellant’s discharge from service was a bar to VA compensation benefits. In February 2017, the appellant testified before the undersigned Veterans Law Judge at a hearing convened at the RO. A transcript of the hearing is included in the record and has been reviewed. In July 2018, the Board remanded the appeal to the RO for further development. 1. Whether the character of the appellant's discharge from military service constitutes a bar for VA benefits. The appellant contends that he should be entitled to recognition as a Veteran, and thereby obtain VA benefits. Alternatively, he asserts that he had psychiatric impairment at the time of his misconduct, sufficient to be considered insane, which would qualify as an exception to the statutory bars under 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Relevant Law VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification, and the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994), A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars establishing entitlement 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). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (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 periods of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the exception to AWOL, a person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits “unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged, unauthorized absence.” 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6). The Board notes that this provision is not applicable to the instant case as the Veteran was not AWOL for a period of at least 180 days. As to the statutory bars listed in 38 C.F.R. § 3.12(c), they are not relevant in the present case. 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 an undesirable discharge to escape trial by general courts-martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); or (4) willful and persistent misconduct (this includes a discharge under “other than honorable conditions,” if it is determined it was issued because of willful and persistent misconduct. A discharge because of a minor offense, however, will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious). 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. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). In any event, a discharge or release from service under any of the above 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 specifically provided by 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). That is, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Thus, “insanity” is a defense to all statutory and regulatory bars, while “compelling circumstances” is only a defense to the statutory bar involving an AWOL period of at least 180 days. Consequently, here, there is only one possible exception to the appellant being barred from receiving VA benefits: if the appellant is shown to have been “insane” at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Mental illness is not identical to “insanity.” Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that “a determination of whether a person is insane is, in effect, a determination of whether the person's actions were intentional, and, thus, the result of willful misconduct.” Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a Veteran suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent medical evidence that the Veteran was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior, which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his or her normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of appellant. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). Factual Background The appellant's service records show that he was discharged in May 2005 with a Bad Conduct Discharge. The service records indicate the following misconduct: In October 2011, the appellant was charged with one count of violation of Article 86 (absent without leave), from September 18, 2003 to October 17, 2003, one count of violation of Article 89 (disrespect to a commissioned officer), and one count of violation of Article 91 (disrespect to a senior noncommissioned officer). The maximum penalty for a charge of AWOL for more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. The maximum penalty for a charge of disrespect to a commissioned officer is a Bad Conduct Discharge, forfeiture of all pay and allowances, and confinement for 1 year. The maximum penalty for a charge of disrespect to a senior noncommissioned officer is a Bad Conduct Discharge, forfeiture of all pay and allowances, and confinement for 6 months. See UCMJ, 10 U.S.C. § 801 et seq., Manual for Courts-Martial, United States, 2002 (MCM). In December 2003, the appellant was subject to a Special Court Martial empowered to sentence the appellant a Bad Conduct Discharge. The appellant pled guilty to the three offenses listed above. The Special Court Martial convicted the appellant and sentenced him to be reduced to the lowest enlisted rank (E1), forfeiture of $730.00 per month for three months, confinement for 90 days, and to be discharged with a Bad Conduct Discharge. The appellant was discharged with a Bad Conduct Discharge, effective May 27, 2005. A March 2005 Department of the Navy Memorandum from the Court of Criminal Appeals review decision, notes “we hold that the evidence he presented post trial does not overcome the presumption of competence at the trial and at the time of his offenses.” The March 2005 memorandum notes that the appellant’s appeal was based on the claim that he was suffering from “psychological condition that existed at the time of the appellant's enlistment” and that his “psychological conditions, pretrial confinement, and medication lead to his guilty pleas;” notes “the member at the time of the alleged criminal conduct did have a mental disorder, but his mental disorder did not impaired his capacity to appreciate the nature and quality or wrongfulness of his conduct. The member did not lack the capacity to conform his conduct to the requirements of the law and does have an abnormality manifested only by repeated criminal or others (sic) antisocial behavior. He does possess sufficient mental capacity to understand the proceeding against him and to intelligently cooperate in his defense.” In the March 2005 memorandum, the Court of Criminal Appeals affirmed the appellant’s conviction and discharge. The appellant’s DD Form 214 reflects a Bad Conduct Discharge due to court-martial conviction. There is no evidence that the appellant has sought an upgrade to his Bad Conduct Discharge with the Department of the Navy Board of Correction of Naval Records (NBCNR). Analysis Initially, the Board finds that the appellant’s conduct, which shows the appellant was AWOL for 29 days and, upon return, disrespectful to his superiors shows a willful disregard for military rules and discipline that occurred despite the illegality of such behavior. The Board notes that “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). Being absent without leave (AWOL) has been found on numerous occasions to constitute willful and persistent misconduct rather than a minor offense. See, e.g., Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board's finding that two and half months of AWOL was willful and persistent misconduct); Stringham, 8 Vet. App. at 445 (upholding the Board's finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board's finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct and, by analogy, persistent misconduct). In this case, the appellant willfully absented himself from his military unit, and upon return was disrespectful to superiors who were attempting to counsel the appellant. The appellant’s chain of command determined that the appellant’s misconduct was sufficiently severe as to warrant criminal prosecution, through a court martial empowered to issue a punitive discharge. Additionally, the seriousness of the offenses is also indicated in the MCM punishments which authorize punishments of confinement for up to a year, as well as a punitive discharge. Having considered the entire record, including the appellant’s contentions, the Board finds that the appellant’s service cannot be characterized as “other than dishonorable” for purpose of VA benefits. The appellant’s discharge was not based on a minor offense. Rather, the appellant's discharge was based on willful and persistent misconduct. Therefore, the Board finds, as did the appellant’s chain of command, that the appellant’s in-service misconduct was not minor, but it instead fundamentally interfered with the appellant’s service duties. Defense to the Regulatory Bar to VA benefits As discussed above, there is only one possible exception to the appellant being barred from receiving VA benefits: if the appellant is shown to have been “insane” at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). For the defense of insanity, there must be competent evidence establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). The Court of Appeals for Veterans Claims has held that “a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct.” Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The appellant has not specifically asserted that he was insane at the time of his misconduct. However, he has asserted that he had psychiatric impairment in service which caused or contributed to his misconduct. In his October 2011 Notice of Disagreement, the appellant asserts that My unit assignment to the barracks detail, and I started being treated from depression and mood swings by naval doctors. The prescription medications were playing havoc with my brain. I do not recall the specific offenses. But do not deny they may have happened. During my courts-martial I do not believe I was provided an adequate defense. Neither of my naval doctors were called as a witness for the defense. I had also asked that my father be allowed to testify in my defense but again this was denied. I did suffer physical injuries while I was on active duty and I did suffer from mental health issues while on active duty. In a March 2011 Statement in Support of Claim, the appellant provided that In 2005 I was discharged from the USMC with a Bad Conduct Discharge. I do not deny that I committed the offenses that I was charged under; they stemmed from my inability to handle the stress of military life. After our deployment in 2004 to Iraq I began to experience mental health issues and sought treatment from the mental health clinic. They gave me some pills and I attempted to deal with irritability and anger and depression but when I was refused a leave period to come home and take care of my pending divorce, I snapped. I have enclosed the court-martial charge sheets for the regional office to see. I was discharged out the USMC with a BCD even though this was my first time that I was in trouble. Since my discharge I have been seeking treatment at the Eugene Vet Center. They have provided me with lifesaving help for my mental health conditions, I am very grateful. I am know asking the VA to grant me a waiver to gain service connection for my mental health issues so I can receive permanent health care. With continuing health care, I think I can lead a normal life; right know I am a mess" The appellant’s service treatment records contain the following psychiatric treatment: An October 2002 treatment note indicates that the appellant sought treatment for headaches with a subsequent diagnosis of migraines. A November 2002 treatment note shows that the appellant sought treatment for headaches following his younger sister's death from cancer and stress for which the provider notes “mood seems depressed” and claimant was assessed with “has (headaches) most likely related to psychosocial issues.” A December 2002 Report of Mental Health Examination performed following the appellant’s return from unauthorized absence (UA) of record; notes appellant’s diagnosis with adjustment disorder with depressed mood and ADHD by history; it also notes “responsible for own actions.” Ship records show he first sought mental care on December 2002 and reported feeling labile mood for last 2 weeks for which he was diagnosed with adjustment disorder with depressed mood for which he was referred to the ship’s chaplain. In a May 2003, treatment note, the appellant report that he was suffering from stress due to issues in his personal life. In a July 2003, the appellant was diagnosed with insomnia. In an August 2003 treatment note, the appellant reported a new life stressor of a speeding ticket for which he was charged by police for evading. In a September 2003, the appellant reported that he was suffering from persistent insomnia. The treating psychiatrist diagnosed the appellant with an axis 1 diagnosis of major depressive disorder, single episode, moderate and anxiety disorder with axis 2 diagnosis of borderline personality traits. A September 2003 Psychiatric Evaluation notes onset of depression and anxiety approximately 6 months following enlistment; notes problems with insomnia, notes denial of any psychosis; multiple stressors including pending divorce noted; notes report of significant pre-service psychopathology including suicide attempt at age 17 (“he cut his wrists in a suicide attempt to ‘see what would happen'”); also notes “heavy ecstasy use” at age 17; notes diagnosis with MDD, anxiety disorder NOS, ADHD and borderline personality traits. In November 2003, upon confinement for legal processing, he underwent a psychological evaluation and given an axis 1 diagnoses of anxiety disorder order with occupational problem and partner relational problem. The report reflects that the appellant had no disqualifying mental defects sufficient to warrant disposition through medical channels. Additionally, the report reflects that the appellant was mentally responsible, both to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in the legal proceedings. A December 2003 mental health consult notes a diagnosis of anxiety disorder NOS & Major Depressive Disorder. The treating psychiatrist also prescribed Buspar for anxiety. Following his discharge, the appellant has sought mental health treatment for several conditions, to include major depressive disorder and issues with anger management. In June 2020, the appellant underwent a VA examination in order to determine if he was insane, by VA regulations, at the time of the commission of the offenses underling his discharge. The appellant was diagnosed with several psychiatric conditions, including adjustment disorder and major depressive disorder. His history of reported in-service symptomatology were reviewed, in addition to significant post-service treatment records. After a thorough review of the records, the examiner concluded that the appellant was not insane at the time of his in-service misconduct underlying his discharge. The VA examiner opined that it was less likely than not that the appellant engaged in his misconduct as a result of insanity. The VA examiner also opined that there was no evidence that the appellant’s misconduct was the result of a psychiatric disorder, that a psychiatric disability at that time caused a prolonged deviation from normal behaviors, and that a psychiatric disability caused the appellant to depart from accepted standards of his community. Specifically, the VA examiner opined that he did not find any compelling evidence to suggest the (appellant) experienced any psychosis/loss of reality at the time of the events referenced in the examination request. The examiner reviewed multiple medical records (both government/DOD and non-government) none of which referenced any history of psychosis. The examiner did not find any compelling evidence to suggest that the (appellant’s) “normal method of behavior” at the time of the events referenced in the examination request compromised his capacity to conform his actions to the relevant regulations/law. The (appellant’s) records clearly document significant pre-service psychopathology as well as continued mental health issues while on an active duty status. However, mental health examinations conducted both before and following the misconduct suggest adequate mental status including the absence of any diagnosable condition definitively rendering the (appellant) unable to control/conform his actions. The examiner finds it particularly noteworthy that a contemporary psychiatric examination referenced in the (appellant’s) appeal determined that “the member at the time of the alleged criminal conduct did have a mental disorder, but his mental disorder did not impair his capacity to appreciate the nature and quality or wrongfulness of his conduct. The member did not lack the capacity to conform his conduct to the requirements of the law and does have an abnormality manifested only by repeated criminal or others (sic) antisocial behavior. He does possess sufficient mental capacity to understand the proceeding against him and to intelligently cooperate in his defense.” Based on the review of the current available records the examiner was unable to find any evidence to counter this conclusion. The Board finds the opinion of the VA examiner who conducted the June 2020 VA examination to be the most probative. The June 2020 examiner specifically commented on the criteria that must be met to conform to the definition of insanity under 38 C.F.R. § 3.354(a). Furthermore, this examiner provided a thorough rationale for the opinion that the appellant, while suffering from some psychiatric issues, was not insane at the time he went AWOL and later disregarded military authority based on a review of the appellant’s service treatment records, specifically commenting on the evidence of record related to the time frame around his misconduct. The Board acknowledges that the evidence which notes that the appellant was experiencing depression which may have caused him to experience diminished capacity. However, psychological disorders do not, on their own, constitute insanity. As such, the Board finds that the appellant was not insane at the time of his misconduct in September and October 2003. Therefore, the insanity exception does not apply, and the appellant is barred from receiving VA benefits. The Board is sympathetic to the appellant. He experienced stress from his military service and is dealing with ongoing psychiatric issues. However, the evidence does not support a finding that would overcome the regulatory bars listed in 38 C.F.R. § 3.12(d), specifically that the appellant’s Bad Conduct Discharge was due to conviction at special court-martial for commission of willful and persistent misconduct. (Continued on the next page)   Therefore, based on all the above evidence, the Board finds that the appellant's active military service is considered a bar to VA benefits as his Bad Conduct Discharge was due to willful and persistent misconduct. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C. TRUEBA 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.