Citation Nr: 20016497 Decision Date: 03/05/20 Archive Date: 03/03/20 DOCKET NO. 15-10 383 DATE: March 5, 2020 ORDER The character of the appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. FINDINGS OF FACT 1. The appellant was discharged from military service in May 1971 under other than honorable conditions. 2. During the appellant’s military service, he was absent without leave (AWOL) on at least four occasions, received an Article 15 non-judicial punishment (NJP) for possession of eleven marijuana cigarettes, and a NJP for failure to go at the time prescribed to his appointed place of duty. 3. The appellant’s discharge was the result of willful and persistent misconduct. 4. The preponderance of the probative evidence of record is against a finding that the appellant was insane at the time of the misconduct for which he received his discharge. CONCLUSION OF LAW The character of the appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had military service from December 1968 to May 1971. He received a discharge under other than honorable conditions due to misconduct. Specifically, the appellant received punishments for being AWOL on four occasions during his military service, possessing eleven marijuana cigarettes, and failure to go at the time prescribed to his appointed place of duty. This matter is on appeal from a March 2014 Regional Office (RO) administrative decision. The appellant appeared before the undersigned Veterans Law Judge at a September 2017 videoconference hearing. In July 2018, the Board reopened and denied the appellant’s claim of whether the character of the Appellant’s discharge is a bar to receipt of VA benefits other than health care under Chapter 17, Title 38, United States Code. The Board found that the appellant committed willful and persistent misconduct, which constitutes a regulatory bar to benefits. The appellant appealed this determination to the Court of Appeals for Veterans Claims (Court). In a May 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the Board’s denial on the grounds that the Board did not adequately consider “compelling circumstances” for the appellant’s in-service periods of AWOL, and remanded the matter to the Board. The issue has returned to the Board for readjudication in line with the purported deficiency noted in the JMPR. 1. The character of the appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code The appellant contends that he had compelling circumstances underlying his in-service misconduct, and, thus, the regulatory bar to VA compensation benefits should be lifted. Alternatively, the appellant asserts that he was insane at the time of the episodes of misconduct underlying his discharge. Legal Authority 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. Applicable laws and regulations provide that 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 statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (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 a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12 (c). If a claimant was discharged for a period of AWOL of at least 180 continuous days, “compelling circumstances” may be weighed in order to determine if the prolonged absence was warranted. These compelling circumstances include: the length and character of service exclusive of the AWOL, reasons for AWOL, and a valid legal defense for the absence which would have precluded a conviction for AWOL. 38 C.F.R. § 3.12 (c) (6). None of the statutory bars apply in this 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 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); see also Cropper v. Brown, 6 Vet. App. 450, 452 453 (1991). Being 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). 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). Factual Background Turning to the facts of this case, the appellant’s enlistment paperwork reflected a previous civilian charge of rape, which was reportedly dismissed. A Federal Bureau of Investigations (FBI) report associated with his personnel file reflects the charge of statutory rape as filed in April 1968, and the last entry occurred in December 1968, immediately prior to the appellant’s enlistment. The appellant’s December 1968 entrance examination indicated a self-report of depression or excessive worry, but a normal psychiatric examination overall. The record shows that the appellant was convicted by summary court-martial of being AWOL from April 30, 1969, to May 9, 1969. In April 1970, the appellant received a NJP for possession of eleven whole marijuana cigarettes while serving in the Republic of Vietnam. The appellant left Vietnam in August 1970, and a request for an extension of his foreign service was denied. In December 1970, NJP was imposed against the appellant for being AWOL from November 27, 1970, to December 11, 1970. In January 1971, a NJP was imposed against the appellant for being AWOL from December 21, 1970, to January 4, 1971. In January 1971, a NJP was imposed against the appellant for failure to go at the time prescribed to his appointed place of duty on January 17, 1971. In March 1971, the appellant was convicted by summary court-martial of being AWOL from February 16, 1971 to March 16, 1971. In conjunction with the discharge proceedings, the appellant underwent a psychiatric examination. The examiner concluded that the appellant was free of significant emotional illness and may be retained or separated from service at the discretion of command. There was a direct examination of the appellant, as well as a review of his past history. There was no indication of a psychiatric disorder that would have prevented administrative action. Upon examination, he was rational, coherent, and oriented as to time, place, and person. There was no indication of psychosis or severe neurosis. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. The appellant “was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.” The appellant’s April 1971 separation examination determined him to be without psychiatric disease, though he self-reported feelings of depression or excessive worry, nervous trouble, and a drug habit. A medical statement associated with his separation examination reported: “A complete review of physical and mental examinations have failed to reveal any defects which would have contributed to the misconduct of [the appellant] … he is physically and mentally fit for duty without profile limitations. He was and is responsible for his acts, able to understand and participate in board proceedings.” The appellant’s personnel records also include a summary of his time lost in service. This summary reflects five periods of AWOL, an additional one from July 2, 1969, to July 29, 1969, which was prior to his deployment to Vietnam. The appellant filed an application for a review of his discharge with the Army Discharge Review board in July 1971. In the application, he reported that he was AWOL for 10 days from April to May 1969 due to “trouble with a girl”. After receiving his orders to Vietnam, he reported that he became ill while on leave, and was AWOL again prior to his eventual deployment. The appellant explained his use of marijuana in Vietnam by highlighting the belief that a majority of soldiers in Vietnam used marijuana at that time, but he was the “one that got caught, and [he feels he] should not be out because of this.” The appellant stated that he was disappointed that his extension to stay in Vietnam was denied, and he was transferred to a base in the United States that was a significant distance from his home. “That was my problem. For the problem at home would interfere with the Military” due to this distance. Before Christmas, the appellant said that he went AWOL again because his “Father was having problems.” As a result, he was denied leave for Christmas. Unhappy with this denial, he went AWOL again over the holidays, and was placed in the stockade when he returned in January 1971. He did not address the reasons for the period of AWOL from February 1971 to March 1971, but stated that he turned himself in after each instance of AWOL, and “faced the trouble.” He believed that his record was not so “bad” as to warrant the discharge he received. The Army Discharge Review Board denied his application in March 1973. In August 1974, the appellant reported that heroin caused all of his periods of AWOL. He stated that he developed the addition after his deployment overseas. The Army Board for Correction of Military Records most recently denied the appellant’s application to upgrade his discharge in February 2003. The appellant’s private treatment records reflect deteriorating memory and “confusional episodes” in October 2010. In August 2012, the appellant’s private physician wrote a letter pertaining to ongoing bankruptcy proceedings. The physician stated that, due to a parietal occipital stroke in April 2012, the appellant was cognitively impaired, and, when combined with his psychiatric history of depression, anxiety, and posttraumatic stress disorder (PTSD), such rendered him unable to participate in bankruptcy proceedings. The appellant has submitted several lay statements from friends and family members describing his demeanor and behavior before, during, and after his military service. These statements attest to a change in behavior after his return from service, and a drug problem following his discharge that was treated during in-patient hospitalization. His friends and family speak to how he turned his life around after service, and his more recent successes. In May 2013, the appellant submitted a statement pertaining to his in-service misconduct. He failed to address the two periods of AWOL prior to his Vietnam deployment. The appellant endorsed significant stress and trauma associated with his combat in Vietnam. He reportedly used drugs to cope with these symptoms. The appellant discussed ongoing “racial confrontations” at the base where he was stationed after his return from Vietnam. He stated that his superior officers were Caucasian, but his First Sergeant was African-American, and he did not feel “comfortable talking to anyone” and things were “confusing”. He also stated that he was denied emergency leave when his father had a heart attack, which caused another period of AWOL. He stated that he “felt like [he] had spent [his] time in war and should have been aloud [sic] to go.” The appellant additionally described his addiction and depression, saying that he had “given up on everything”. A March 2014 administrative decision determined that the character of the appellant’s discharge was dishonorable for VA purposes due to his in-service willful and persistent misconduct. The administrative decision cited his episodes of AWOL, as well as two other NJPs. In his April 2014 Notice of Disagreement, the appellant stated that he had been diagnosed with PTSD and he believed that his PTSD symptoms led to some of the poor decisions in service that led to his discharge. In an August 2015 statement, the appellant said that his first period of AWOL was due to his girlfriend miscarrying his baby. The miscarriage was allegedly caused by a “violent attack” perpetrated by the girlfriend’s parents. The parents also purportedly accused the appellant of rape in this time. The appellant reported that he smoked marijuana and used heroin in Vietnam to deal with his feelings of being scared during combat. He stated that he went AWOL around Christmas 1970 to see his father in the hospital. During his September 2017 Board hearing, the appellant testified that his first period of AWOL was due to his girlfriend’s miscarriage. He testified that he used marijuana to deal with the stresses in Vietnam. The appellant detailed a final mission on his deployment that required him to dispose of ordinances, but abandoned him for three days when he should have been picked up that day. He stated that he went AWOL six months later because he was insecure due to fear from that experience. For his period of AWOL from November to December 1970, he testified that he was scared, but returned when his mother told him he should. For his period of AWOL from December 1970 to January 1971, the appellant stated that his father was hospitalized, and he was worried that his father would die before he could see him. The appellant acknowledged that he did not have authorized leave to see his father, but that his judgment was impaired due to drug use. For his last period of AWOL, he testified that he was having problems with drugs and wanted to get himself together. He also stated that he left because he wanted time off, but knew that such would not be granted if requested. Pertaining to his NJP for failure to report, the appellant testified that, in January 1971, he fell asleep on the side of the road and woke up a couple hours later than he should have and went straight to his assignment. The appellant’s wife, who did not report any history of relevant medical training or experience, testified that the appellant had an abusive father. She testified that the appellant is very anxious, and she believed him to have been depressed in service, though she did not know him during his service, and the couple met around 1989. The appellant testified that he went to in-patient rehabilitation for four months after his discharge. He testified that he has been diagnosed with PTSD by a private provider in 2012, and that he is still in treatment. The appellant stated that he underwent counseling training in a faith-based counseling group, but did not specify the type of counseling or the nature of the training requirements. Following the JMPR, in December 2019, the appellant submitted a declaration pertaining to his childhood and in-service misconduct, as well as a private medical opinion and an appellate brief. The appellant’s declaration discussed his unstable childhood and abusive father. He reported that his first in-service AWOL was to care for his girlfriend after her miscarriage, and the subsequent rape charges against him. Such were purportedly dropped when the girlfriend’s parents did not appear in court. The appellant endorsed significant anxiety and stress associated with his deployment to Vietnam, causing him to use drugs as a coping mechanism, which lead to his NJP for marijuana possession. He went AWOL again after returning from Vietnam as he was struggling with his reported abandonment during his final mission of the deployment. He said his “thoughts were confused” and he did not know where to go for help. The third period of AWOL occurred when his father had a heart attack, and his emergency leave request was denied due to his prior history of AWOL. The NJP for failure to report was purportedly caused by the appellant’s inability to keep “everything together.” He endorsed a deteriorating mental state and use of drugs. The fourth period of AWOL occurred when he was still self-medicating with drugs, and he felt like he was “coming apart”. The appellant also endorsed a general fear for his safety at his assigned base after returning from Vietnam due to “violence and racial tension”. The December 2019 private opinion, authored by a licensed clinical psychologist, primarily discussed the compelling circumstances underlying the appellant’s in-service misconduct. The opinion was based on a review of the file, but not an interview with the appellant. The examiner provided a review of the appellant’s unstable childhood and relationship with his abusive father, as well as the appellant’s in-service infractions underlying his discharge. The examiner then responded to multiple questions regarding the appellant’s condition during service. She opined that it was at least as likely as not that the appellant suffered from PTSD while in Vietnam. It was also at least as likely as not that the events of his childhood, as well as events of his service, contributed to his episodes of misconduct. As a result of his childhood circumstances, the appellant took on adult responsibilities at a young age, and he experienced instability in his living situation. It was also the examiner’s opinion that the appellant was insane at the time of his AWOL. She based this on his prior history of abuse, stating that the appellant experienced increased stress secondary to his combat experiences and childhood trauma. This “contributed to his poor decision making while enlisted.” When discussing the appellant’s first instance of AWOL, the examiner stated that the appellant “wanted to do things differently than his own father,” and thereby felt “compelled to leave in order to be with her.” But rather than “engaging in gross misconduct, [the appellant] was not making an informed choice about what action to take in a crisis situation given the details from his childhood.” The second period of AWOL occurred after he felt abandoned on his final mission of the deployment. The examiner concluded that this incident was a “trigger” for the appellant, and caused him to not make an “informed” choice. The third period of AWOL occurred around the father’s heart attack, and the examiner determined that the appellant, when faced with that crisis situation, made an attempt “to behave in a way that is actually considered to be in accordance with cultural norms.” The appellant was “not able to simultaneously honor his commitments to the Army and his family,” and he went AWOL to “honor his family responsibilities.” The examiner reported that the appellant “argues therefore that his intention in going AWOL was not to engage in willful misconduct but rather to continue to play that role that he had taken on during childhood.” The fourth period of AWOL was explained as another trigger event for his childhood trauma, and the appellant was “attempting to escape a situation” that reminded him of his upbringing, but was “not an instance of misconduct.” The examiner noted also the NJP for possession of marijuana, but did not discuss the failure to report NJP from January 1971. The examiner concluded that the appellant did not develop healthy coping mechanisms due to his childhood, and thus he used drugs to alleviate his stress. In sum, the examiner concluded that there were “compelling circumstances” that lead the appellant to go AWOL four times while in the military. The appellant “was confronted with making a decision to either honor his responsibilities to the military or his family … [and] he decided to honor family responsibilities which resulted in him going AWOL.” The appellant did not apparently intend to willfully engage in misconduct, but rather “to protect himself and behave in a manner that was consistent with his values.” The appellant also, concurrently, “lacked the necessary life experiences and judgment to make informed decisions in times of crisis. He was left with the choice of either protecting himself in two instances and being with family during critical times or remain in dangerous situations and fail to be with family when he felt it was necessary for him to be there.” Concurrently, the examiner also concluded that the “severe and chronic abuse and neglect by his father … interfered with [the appellant’s] ability to make rational choices” in incidents involving his personal life. It was “only under situations of severe duress, such as when there was a conflict between his duties to his family and the military and when he was experiencing triggers of fear, that his ability to carry out his responsibilities and make rational decisions was compromised.” The December 2019 Appellate Brief appears to recognize that “compelling circumstances” do not lift a regulatory bar to VA compensation benefits under the current law. The brief argues that proposed rules were considered in 2004 to extend “compelling circumstances” to periods of AWOL shorter than 180 days, and such should be applied in the present case. The brief proceeds to argue that compelling circumstances warrant lifting the regulatory bar to benefits. A shorter argument pertaining to the appellant’s purported insanity during service is also offered, highlighting the private examiner’s findings pertaining to his unstable childhood and quoted the examiner’s statement regarding insanity as discussed above. Analysis After carefully reviewing the record, the Board finds that the character of the appellant’s discharge is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code, due to his willful and persistent misconduct in service. In this case, the appellant went AWOL on five separate occasions, four of which received either a NJP or a court-martial. Additionally, he was found in possession of eleven marijuana cigarettes and did not report to his appointed place of duty. The record shows that the pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n). These offenses constitute willful and persistent misconduct as they are not merely minor, one-time offenses, and the nature of the offenses interfered with the Appellant’s military duty, as well as precluded consistently satisfactory performance prior to his discharge. Thus, it cannot be said that the Appellant’s service was otherwise meritorious but for these numerous and significant infractions. The appellant has submitted several lay statements from friends and family members describing his demeanor and behavior before, during, and after his military service. However, none of these statements negates the willful and persistent nature of the appellant’s misconduct or has competent, probative bearing on whether he was insane at the time of the misconduct leading to his discharge. The Board notes that both the JMPR and the appellant’s representative apparently believe that “compelling circumstances” can offset a regulatory bar to benefits due to willful and persistent misconduct under 38 C.F.R. § 3.12 (c) (6). Under current law, consideration of “compelling circumstances” is only found under the provision barring payment of benefits for a period of AWOL of at least 180 continuous days. It does not, by some extension, apply to 38 C.F.R. § 3.12 (d) (4), the provision supporting the current regulatory bar to compensation benefits for willful and persistent misconduct. While the appellant’s representative asserts that it should apply in this instance, and devotes a significant portion of both the December 2019 private opinion and his appellate brief to this exception, such is not presently included in the law and regulations before the Board. The proposed rule cited in the JMPR and the appellate brief, 69 Fed. Reg. 4820 (Jan. 30, 2004), also narrowly sought to amend the statutory bar to benefits under 38 C.F.R. § 3.12 (c), and it did not address any applicability to the regulatory bars of 38 C.F.R. § 3.12 (d). Regardless, the proposed rule from 2004 is not presently codified in statute or regulations. The appellant’s representative argues for an approach that essentially constitutes an argument for equitable relief. Unfortunately, the Board is without authority to grant relief on an equitable basis. See, e.g., 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Rather, the Board is bound by the laws and regulations of the VA. Accordingly, consideration of “compelling circumstances” will not alleviate a regulatory bar to compensation benefits for a discharge considered dishonorable under VA standards for willful and persistent misconduct in service. It is unclear why the JMPR felt vacatur and remand was necessary to consider an inapplicable portion of the current law. There is an exception to the bar to VA benefits under 38 C.F.R. § 3.12 (d) if the appellant was insane at the time he committed the offenses which lead to his discharge. In review, 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; who interferes with the peace of society; or who has so departed 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. The types of behavior identified as insanity in 38 C.F.R. § 3.354 (a) do not include a minor episode or episodes of disorderly conduct or eccentricity. 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 authorities defining the scope of the term insanity. The phrase “interferes with the peace of society” in the regulation refers to behavior which disrupted the legal order of society. The term “become antisocial” in the regulation refers to the development of behavior which was hostile or harmful to others in a manner which deviated sharply from the social norm and which was not attributable to a personality disorder. The reference in the regulation to “accepted standards of the community to which by birth and education” an individual belonged requires consideration of an individual’s ethnic and cultural background and level of education. The regulatory reference to “social customs of the community” in which an individual resided requires assessment of an individual’s conduct with regard to the contemporary values and customs of the community at large. VAOPGCPREC 20-97 (May 22, 1997). Behavior which is generally attributable to a substance abuse disorder does not exemplify the severe deviation from the social norm or the gross nature of conduct which is generally considered to fall within the scope of the term insanity, and, therefore, does not constitute insane behavior. Personality disorders, including antisocial personality disorder, do not satisfy the definition of insanity as contemplated at 38 C.F.R. § 3.354. VAOPGCPREC 20-97. In addition, mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535, 539 (2000). Rather, insane behavior is defined as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, the person is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. VAOPGCPREC 20-97. Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VA O.G.C. Prec. 20-97 (May 22, 1997) (clarifying VA’s definition of insanity). The Board finds that the record, including the appellant’s own statements and the December 2019 private opinion, does not show insanity, as defined under 38 C.F.R. § 3.354 (a). The majority of the appellant’s insanity argument rests on the December 2019 private medical opinion provided after the JMPR. Unfortunately, that opinion focuses primarily on the “compelling circumstances” underlying his in-service episodes of misconduct, and does not adequately address the insanity element or even utilize the appropriate definition of insanity under VA regulations. The examiner also relies heavily on the appellant’s December 2019 declaration, but does not thoroughly consider the in-service psychiatric evaluation in April 1971, or the appellant’s own statements regarding his motivations within the first decade following his discharge. The examiner defines insanity as “acting in a manner that is not consistent with a person’s cultural norms, not having a full understanding of the consequences of one’s behavior.” This is only partially correct, as insanity per VA regulations is either: 1) a more or less prolonged deviation from his normal method of behavior; 2) interference with the peace of society; or 3) a significant departure from accepted standards of the community to which he belongs as to lack the adaptability to make further adjustment. Based upon her definition, the examiner then concludes that the appellant was “insane” because his childhood trauma combined with military stress to cause him to make poor decisions. This does not conform to the VA standards for insanity. In fact, the private examination opinion predominantly articulates rationality in the appellant’s choices underlying his in-service misconduct, save for the NJP for failure to report, which is not adequately explained. In essence, the examiner believes that the appellant, due to his childhood and early onset of the role of adult of his family, chose to prioritize his family over military obligations in two instances of AWOL. For the other two instances of AWOL, as well as the NJP for possession of marijuana, the examiner stated that these events triggered the appellant and he sought to protect himself and behave in a manner that was consistent with his values. He may have “lacked the necessary life experiences and judgment to make informed decisions in times of crisis”, but such does not rise to the level of insanity required to offset a regulatory bar to benefits. The examiner noted at one point that the appellant was actually behaving in a manner that was considered to be in accordance with his cultural norms. Based upon the opinions and explanations provided by the examiner, the appellant’s behavior during his service does not appear to have been a more or less prolonged deviation from his normal behavior, but instead somewhat predictable responses to external stressors and stimuli founded in his extensive history of childhood trauma and combat experience. There is no indication from the private opinion that the appellant’s conduct constituted an interference with the peace of society. Similarly, the examination opinion did not endorse such a significant departure from accepted standards of the community so as to lack the adaptability to make further adjustment. Instead, the examiner provided rationales for each of the appellant’s decisions underlying his misconduct, stemming from either his childhood trauma or his combat stressors in Vietnam. The examiner’s opinions do not support a finding of insanity per VA regulations at the time of the commission of the offenses, and the examiner’s assertion that the appellant exercised poor decision making does not rise to the level of insanity sufficient to set aside his regulatory bar to benefits. As a result of these deficiencies, the Board affords the December 2019 opinion no probative weight as applied to the question of the appellant’s sanity at the time of the commission of his in-service misconduct. While the clinical psychologist is certainly competent to provide an opinion on these issues, the focus of the opinion is on an unrelated standard, and the opinions provided in support of “compelling circumstances” primarily undermine any finding of insanity. While she does assert that the appellant was insane, she utilizes the incorrect standard for insanity, and then essentially equates insanity to “poor decision making”. In contrast, the in-service psychiatric report generated in conjunction with the appellant’s discharge rendered an opinion regarding the appellant’s state of mind after an in-person interview and review of his service records, and ultimately concluded that the appellant was mentally responsible, could distinguish between right and wrong and adhere to the right, and generally had the mental capacity to understand and appreciate his discharge proceedings. There was no finding of emotional illness, psychosis, or severe neurosis. A complete review of his physical and mental examinations failed to reveal any defects which would have contributed to the misconduct underlying his discharge. The Board finds this report competent as it was authored by a mental health specialist and endorsed by an Army psychiatrist. The examination is also probative on the matter of the appellant’s sanity at the time of his offenses as it included a contemporaneous in-person interview, and thorough review of the appellant’s service records. Additionally, a specific finding was rendered regarding the appellant’s state of mind underlying his misconduct. While the appellant has not been afforded a VA examination to assess his mental state at the time of his misconduct, such is not necessary in this case. The Board finds that the appellant’s discharge records include sufficient, competent, and probative medical evidence to decide the claim. Additionally, the December 2019 private medical opinion has been afforded no probative weight overall due to the aforementioned deficiencies. Accordingly, there is no duty to obtain an additional VA medical examination in this instance. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The appellant has repeatedly stated that he suffered from drug addictions, PTSD stressors, and life stressors at the time of the misconduct that led to his discharge. He also self-reported depression or excessive worry, nervous trouble, and a drug habit on his April 1971 separation examination. Through statements of record, the appellant has also endorsed an understanding of his actions, indicating that he knew on at least one occasion that he was not authorized to leave base, and he appreciated the consequences for doing so, but chose to act in that manner anyway. In one instance, he expressed the belief that he was entitled to the leave as he had served in combat. These statements do not evince the standard for insanity required per VA regulations. Additionally, while the appellant attested to ambiguous faith-based counseling training, he did not report relevant medical training or experience that would provide probative weight to his opinions pertaining to any insanity. Similarly, the appellant’s wife testified that she believed the appellant suffered from depression at the time of his active military service, but she has not been shown to have the requisite medical expertise to be deemed competent to retrospectively diagnose a psychiatric disorder. There is no evidence in the record that either the appellant or his wife are licensed medical practitioners who are competent to provide a psychiatric diagnosis, such as depression. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While the appellant is competent to attest to his feelings, he is not competent to report a clinical diagnosis or assert that he was insane at the time of the commission of the underlying offenses. Additionally, even if the appellant’s wife was correct, suffering from depression at the time of the misconduct that led to the appellant’s discharge does not establish insanity. While the appellant may provide competent lay statements regarding his mental state during service, the Board notes that the appellant has also provided inconsistent statements regarding the motivations for at least one period of AWOL. In July 1971, the appellant reported that his first period of AWOL was caused by “trouble with a girl.” In August 1974, he reported that heroin was the cause of all of his periods of AWOL. In August 2015, he reported that he went AWOL when his pregnant girlfriend miscarried following an episode of violence perpetrated by her parents. At this time, the appellant reported that the parents filed rape charges against him, but the FBI report associated with his personnel file only notes a pre-service statutory rape charge, and he admitted on his enlistment form that he had a charge of rape that was previously dismissed. Additionally, many of the more extensive explanations for his in-service infractions were provided following a stroke, which a private physician reported occurred in April 2012, and impaired him cognitively such that he could not participate in bankruptcy proceedings. Private treatment records from October 2010 additionally indicate an onset of “confusional episodes” and a worsening of his memory overall. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (“Credibility is determined by the fact finder.”). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Such inconsistent statements described above surrounding the first instance of AWOL lessen the probative value of the Veteran’s statements. Additionally, the onset of cognitive impairment and worsening memory call into question the validity of the Veteran’s most recent statements not previously reported in his multiple appeals to upgrade the character of his discharge before both the Army Discharge Review Board and the Board for Correction of Military Records. As a result, the Board finds that the appellant’s statements associated with his first period of AWOL, as well as his more recent explanations for his in-service conduct, are entitled to diminished probative weight overall. Additionally, neither the appellant nor his wife has the requisite medical training or experience to competently attest to any insanity underlying the appellant’s in-service misconduct. In sum, the appellant’s multiple periods of AWOL, possession of marijuana, and failure to report to a place of duty at the appointed time constitute willful and persistent misconduct under 38 C.F.R. § 3.12 (d) (4). The preponderance of the competent, credible, and probative evidence of record establishes that the appellant was not insane, as defined by VA regulation, at the time of the commission of the offenses underlying his other than honorable discharge. As such, insanity is not established sufficient to lift this regulatory bar to VA benefits.   As the preponderance of the evidence is against the claim, there is no doubt to be resolved. The character of the appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.