Citation Nr: 20052993 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 20-10 076 DATE: August 10, 2020 REMANDED Whether the character of the appellant’s discharge from military service constitutes a bar for VA benefits is remanded. REASONS FOR REMAND The appellant served on active duty from August 5, 1999, to September 27, 2001. He was discharged for commission of a serious offense and given an under Other than Honorable (OTH) conditions discharge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 administrative decision of the VA Regional Office (RO) in Denver, Colorado, which determined that the character of the Appellant’s discharge from service was a bar to VA compensation benefits. 1. Whether the character of the appellant’s discharge from military service constitutes a bar for VA benefits is remanded. The appellant essentially seeks “veteran” status. He contends his character of discharge should not be a bar to VA compensation benefits. The appellant entered the United States Army on August 5, 1999 for a period of six years. He served until September 27, 2001. He had a total of two years, one month, and twenty-seven days of service. The appellant’s service records show that he was discharged on September 27, 2001 under other than honorable conditions due to commission of a serious offense. The appellant’s service records show the following misconduct: In December 2000, the appellant was subjected to nonjudicial punishment under Article 15 (UCMJ) for one violation of Article 112a for illegal use of a controlled substance, i.e. marijuana. He was sentenced to be reduced to the rank of E-1 (suspended from six months), to perform 45 days of extra duty, to be restricted to the company area for 45 days, and to forfeit $585.00 per month for two months. In April 2001, the appellant was subjected to supplementary action under Article 15 (UCMJ) for one violation of Article 112a for illegal use of a controlled substance, i.e. marijuana. The previously imposed punishment of reduction to the rank of E-1 which had been suspended from six months was effectuated and the appellant was reduced to the rank of E-1 effective April 10, 2001. In May 2001, the appellant was subjected to nonjudicial punishment for one violation of Article 121 (larceny) for stealing government property, one violation of Article 128 (assault) for assaulting another soldier, and one violation of Article 134 (solicitation to commit an offense) for soliciting another soldier to sell the stolen government property. He was sentenced to perform 45 days of extra duty, to be restricted to the West Food Hood area for 45 days, and to forfeit $482.00 per month for two months (suspended for six months). In August 2001, the appellant’s commander notified the appellant that he was recommending that the appellant be administratively separated from military service for commission of a serious offense. On August 28, 2001, the appellant waived his rights to receive legal counsel from an Army defense counsel and to submit matters in his defense. The appellant’s chain of command recommended that he be administratively discharged with an under other than honorable conditions discharge. In September 2001, the General Court Martial Convening Authority approved the administrative separation and ordered that the appellant be discharged with an under other than honorable conditions discharge, effective September 27, 2001. The appellant’s DD Form 214 reflects an OTH discharge due to misconduct. His separation code is listed as JKK, further reflecting drug use. There has been no upgrade to the appellant’s discharge by the Department of the Army Discharge Review Board or the Army Board of Correction of Military Records (ABCMR). Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have the 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). However, in his January 2020 VA Form 9, Appeal to the Board of Veterans Appeals, the appellant asserted that he had submitted a request to the ABCMR and the “results should post soon.” The Board finds that remand is necessary to obtain any information related to the appellant’s application for discharge upgrade from the ABCMR. Based on the above, the AOJ has determined that the character of the appellant’s discharge from service is a bar to his entitlement to VA compensation benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are “compelling circumstances to warrant the prolonged unauthorized absence.” 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated.” For purposes related to the character of discharge, 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). In May 1997, the 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 normal method of behavior could best be 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, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases “interferes with the peace of society,” “become antisocial,” “accepted standards of the community,” and “social customs of the community.” Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term “constitutionally psychopathic” refers to a condition that may be described as an antisocial personality disorder. The term “become antisocial” refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. The appellant has not specifically claimed to be insane at the time that he committed his criminal offenses. However, the appellant has asserted that he had suffered from psychiatric symptoms from an inservice event and subsequent discharge. In a February 2019 VA examination, the examiner noted that the appellant “discussed that this event (theft of truck and discharge) was the source and onset of his depressive and anxiety symptoms.” In a February 2019 VA examination, the examiner noted that Veteran's Schizoaffective Disorder and Stimulant Use Disorder developed following his stressful incident of his truck being stolen while in service (12/3/00). Veteran's Schizoaffective Disorder and Stimulant Use Disorder are more likely than not incurred in or caused by his in-service stressor of getting his truck stolen and then having an Other Than Honorable Discharge from the military. However, the February 2019 VA examiner also noted that the appellant’s “records do not specifically identify the source or onset of his mental health conditions.” Current treatment records show that he has been diagnosed with schizophrenia, schizoaffective disorder and stimulant use disorder in January 2018 and February 2019, respectively. The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant’s behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 539 (2000) (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). Accordingly, given the evidence of record reflecting that the appellant may have had psychiatric impairment in service, the Board finds that a VA examination and opinion is warranted on the issue of the appellant's mental state at the time of the misconduct that led to his September 2001 discharge under other than honorable conditions. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the appellant's claim, to include updated VA and non-VA treatment records. 2. Contact the Army Discharge Review Board and obtain any records pertaining to the Veteran's claimed request for discharge upgrade, as noted in his January 2020 Form 9. 3. After completion of the above, please afford the appellant a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the appellant was insane under VA regulations at the time of the misconduct that led to his September 2001 discharge under other than honorable conditions. After examination of the appellant and review of his claims file, the examiner should respond to the following: (a) Was the behavior that led to the appellant's discharge in September 2001 due to psychiatric disability? (b) Was the appellant insane at the time he committed the acts, in violation of the Uniform Code of Military Justice (UCMJ) of larceny, assault, solicitation, and illegal use of controlled substances that led to his discharge under other than honorable conditions? In providing an answer to these questions, the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease, exhibits 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. 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. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the appellant and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. T. MAINELLI 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.