Citation Nr: 21000005 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-44 024 DATE: January 4, 2021 ORDER The Appellant’s character of discharge for the period from March 2, 2001 through December 28, 2004, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits; the appeal is denied. FINDINGS OF FACT 1. The Appellant was discharged from service in December 2004 under other than honorable conditions based on a pattern of willful and persistent misconduct. 2. During service, the Appellant was subjected to nonjudicial punishment on three occasions for the illegal use of controlled substances, to include marijuana and cocaine. He was also charged with illegal use of a controlled substance (marijuana), with charges referred for trial by Special Court Martial. 3. On November 4, 2004, the Appellant submitted a request for discharge in lieu of a trial by court martial and was discharged on December 28, 2004 with an under Other Than Honorable (OTH) conditions discharge. 4. During his period of service, the Appellant’s in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 5. 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 was insane at the time of his offense. CONCLUSION OF LAW The character of the Appellant’s service, from March 2, 2001 through December 28, 2004, is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from March 2, 2001 through December 28, 2004. He was discharged in lieu of court martial for misconduct, to include multiple offenses involving the use of controlled substances and given an under OTH conditions discharge. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Portland, Oregon. In that decision, the RO granted Chapter 17 healthcare benefits for service-connected conditions which occurred during the specified period of service. In his September 2016 substantive appeal, he requested a videoconference hearing before the Board. In an April 2019 correspondence, he then waived the hearing, and the hearing request is deemed withdrawn. 1. Whether the Appellant’s character of discharge for the period from March 2, 2001 through December 28, 2004 constitutes a bar to payment of VA benefits, other than health care under Chapter 17, Title 38, United States Code. The Appellant is seeking entitlement to VA compensation benefits. Specifically, he asserts that his character of discharge should be revised, and he should be allowed entitlement to VA benefits. He has also argued that he had symptoms of posttraumatic stress disorder (PTSD) which contributed to his misconduct. After a careful review of the evidence of record, the Board finds that the character of the Appellant’s discharge from service is a bar to the payment of VA benefits. Relevant Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of a veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). “The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2). The term “discharge or release” includes “the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable.” 38 U.S.C. § 101(18). Character of Discharge 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). The provisions of 38 C.F.R. § 3.12(d) state that 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. A discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. 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). However, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious, or unless it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(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.” 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 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). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). 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 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). 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 Appellant 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). The Board has reviewed all the evidence in the Appellant’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Appellant entered the United States Army on March 2, 2001. He earned the military occupational specialty of medical specialist (91W). During his enlistment process, the Appellant reviewed and signed a Statement of Understanding regarding the Army Alcohol and Drug Abuse policy, which states The illegal use of, narcotics, or prescription drugs, or any use of marijuana or other illegal substances by soldiers can lead, to criminal prosecution and/or discharge under other than honorable conditions. if I am identified for either alcohol or drug abuse, including the use or possession of marijuana, appropriate disciplinary and/or administrative action may. be taken against me. This may include trial by court-martial or administrative separation from the Army. At his enlistment physical, the Appellant denied pre-service illegal drug use. A review of the Appellant’s service personnel records (SPRs) show that he was discharged in lieu of facing trial at a Special Court Martial. His SPRs indicate several incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In April 2002, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 112a for wrongful use of marijuana. He was found guilty and sentenced to be reduced to the rank of E-2, to forfeit $619.00 pay per month for two months (which was suspended for three months), to perform extra duty and be restricted to the unit area for 45 days. In July 2004, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 112a for wrongful use of cocaine. He was found guilty and sentenced to be reduced to the rank of E-1, to forfeit $596.00 pay per month for one month, to perform extra duty and be restricted to the unit area for 45 days. In October 2004, the Appellant was charged for one count of violating Article 112a, UCMJ, for two incidents of wrongful use of marijuana. The Appellant’s SPRs further show that he consulted with an attorney and requested discharge under other than honorable conditions to escape trial by special court-martial. The record reflects that the Appellant requested a discharge for the good of the service in lieu of trial by court martial. The Appellant indicated that he made this request voluntarily and understood that he might receive an OTH conditions discharge certificate and lose VA benefits. The matter was referred for trial for a special court martial. The reviewing officer noted the Appellant’s pending charges and his prior non-judicial punishment and approved the discharge in lieu of court-martial for the good of the service. The Appellant separated from service on December 28, 2004. His DD-214 lists his discharge character as under conditions other than honorable in lieu of court martial. There is no evidence that the Appellant has filed an application with the Board of Corrections of Military Records (ABCMR) to upgrade his character of discharge. Analysis Character of Discharge After review of the record, the Board finds there is a regulatory bar to VA benefits in this case. The evidence does not reflect that there are any statutory bars in this case. The Appellant was not a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; was not sentenced to discharge by a general court martial; was not AWOL for a period of 180 days; was not an officer who resigned; nor an alien during periods of hostilities, where it is affirmatively shown that the former service member requested his or her release. However, the evidence reflects that the Appellant was discharged in lieu of undergoing a court-martial as a result of willful and persistent misconduct. As such, there is a regulatory bar to VA benefits in this case. The Board notes that the Appellant’s discharge from service does not fall under the regulatory bar listed in 38 C.F.R. § 3.12(d)(1). Although it is undisputed that the Appellant accepted an undesirable discharge in lieu of trial by court-martial, the Transmittal of Court-Martial Charges dated November 2004 indicated that a special court-martial was recommended. There is no indication that the Appellant was charged with a general court-martial. See 10 U.S.C. §§ 818, 819 (a general court-martial has the authority to impose a bad conduct or a dishonorable discharge, while a special court-martial has the authority to impose a bad conduct discharge but not a dishonorable discharge). The record reflects that the Appellant requested a discharge for the good of the service in lieu of trial by special court martial. The Appellant indicated that he made this request voluntarily and understood that he might receive an under other than honorable discharge certificate and lose VA benefits. The Appellant’s DD 214 reflects a discharge of under other than honorable conditions and specifies an administrative discharge for the good of the service, under Army Regulation 635-200, chapter 10, for discharge in lieu of court martial. In light of the foregoing, the Board finds that the Appellant’s discharge was a result of his willful and persistent misconduct. The Appellant exhibited multiple willful actions that led to the charges against him, including multiple incidents of using illegal drugs despite having been informed of the consequences of illegal drug use during enlistment. He did so even after receiving nonjudicial punishment for his first drug offense. In the private treatment sociological opines, as discussed below, the Appellant admitted to further drug use, beyond the incidents which resulted in disciplinary action and subsequent discharge from the Army. Therefore, the Appellant’s multiple violations of the UCMJ demonstrate willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445 (1995). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 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). The Appellant’s representative asserts that the Appellant’s use of illegal drugs should be considered minor misconduct. Specifically, his representative asserts that (the Appellant’s) misconduct was minor because it did not preclude the performance of his military duties. When determining whether misconduct was minor, courts consider whether they “were the types of offenses that would interfere with military duties” or preclude their performance. For example, many offenses within a short period of time or multiple AWOLs causing the veteran to be absent for a significant period of time, may prevent the veteran from performing his or her military duties; therefore, when looked at together, this would not be minor misconduct. (The Appellant’s) conduct did not include any periods of AWOL and did not prevent him from performing his military duties. Despite his challenges coping with the trauma he endured and his subsequent PTSD symptoms, (the Appellant) completed his deployment with honor and prestige and did not miss a single day of duty without authorization. More than two years of disciplinary-action free service separated (the Appellant’s) first NJP from the incidents of alleged drug use that resulted in his discharge and none of the offenses precluded him from performing his duties. Thus, they were minor offenses that are outweighed by his outstanding service. However, the Board finds that the Appellant’s drug abuse on at least four occasions between April 2002 and October 2004 constitutes persistent and willful misconduct, especially in light of the fact that the Appellant was advised on several occasions that repeated violations would likely result in administrative discharge. Moreover, the Board cannot consider the Appellant’s drug abuse violations to be a minor offense under the criteria of 38 C.F.R. § 3.12(d)(4) for several reasons. First, there is a legitimate question as to whether the minor-offense exception can apply to a situation involving multiple offenses. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995). Second, it has been held as a matter of law that offenses (specifically including drug use) which are the type of offense which would interfere with the performance of military duties are not minor offenses. Id. at 448; Cropper v. Brown, 6 Vet. App. 450 at 452 (1994) (partially overruled on other grounds by Struck v. Brown, 9 Vet. App. 145 (1996)). In this case, the Appellant’s misconduct due to drug use on at least four occasions is the type of conduct that would interfere with his military duties. The Appellant also admitted to other illegal drug use during his military service that did not result in nonjudicial punishment or criminal charges. Multiple instances of illegal drug use are “the type of offenses that would interfere with [the] appellant’s military duties, indeed preclude their performance, and thus could not constitute a minor offense.” Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). The Board finds these multiple violations of the UCMJ for use of illegal drugs constitute a pattern of willful and persistent misconduct. Thus, the Appellant’s discharge is considered to be dishonorable for VA benefits purposes. See 38 C.F.R. § 3.12(d). The Board has considered if there are any other reasons to set aside the statutory and regulatory bars to VA benefits, including because the Appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). The Board has also considered the Appellant’s presentation of case law and decisions from the ABCMR in support of his claim. The facts of the cases cited by the Appellant differ from the facts of his own case. Ultimately, prior decisions of the ABCMR regarding other appellants are not binding on the VA. Rather, VA would be bound by an ABCMR decision regarding this Appellant. However, as noted above, the evidence does not indicate that the Appellant applied for an upgrade to the character of his discharge by the ABCMR. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant’s character of discharge. The Board further finds the preponderance of evidence is against a finding that the Appellant was insane at the time he committed the acts that resulted in his December 2004 discharge. The record includes several opinions from experts in the mental health field, none of which suggest the Appellant was insane at the time of his in-service misconduct, to include two private opinions the Appellant submitted on his own behalf. In an April 2011 private opinion provided to a public defender for an unrelated criminal proceeding, Dr. S, a forensic psychologist opined that It is my opinion that (the Appellant) suffers from severe chronic PTSD. His substance abuse was caused by his PTSD (Please note that research supports PTSD as causative in substance abuse) and his Substance Abuse Disorder led to his legal entanglements. It is my opinion that at the time of the instant offense [in 2010] (the Appellant) suffered from a mental disease or defect in the form of severe, chronic PTSD that caused the comorbid diagnosis of Substance Abuse. (The causal nature of PTSD in substance abuse has been known and is reflected in 76-80% co-occurrence rates and leads to a question as to whether his drug use was in fact “voluntary”). His need to deal with both disorders led to his criminal behavior in the past. In a September 2011 sociological evaluation, the evaluating sociologist noted Aside from experimentation with some illegal substances, (the Appellant) said that he did not have any problems with alcohol or substance abuse prior to entering the military. He indicated that his pre-military alcohol use first occurred when he was about 14 or 15 but that it was never something he really liked to do…Regarding pre-military substance abuse, (The Appellant) said that he experimented, with marijuana and speed at the age of 14-15; however, he rarely used these substances during his pre-military period. (The Appellant) said that he had occasionally experimented with drugs prior to deployment to Iraq, but his drug use increased significantly after leaving Iraq. He said that while in the military, post-deployment, he began using Oxycotin, used marijuana, and infrequently used cocaine. He used these drugs, for sleep problems as well as a form of self-medication to deal with other symptoms related to PTSD. As a sociologist, I do not offer a formal diagnosis for posttraumatic stress disorder (PTSD).On the other hand, as a combat veteran who has worked extensively with veterans previously diagnosed with PTSD, and a sociologist who has conducted extensive research on veterans guided by the tenets of the social sciences, I can say without reservation that (the Appellant’s) psychological symptoms are characteristic of the PTSD symptom criteria included in the DSM IV. The evaluating sociologist also opined that “his substance abuse appears to be an approach to self-medication used to address his PTSD symptoms.” These two private providers noted diagnoses or symptoms of PTSD and substance abuse disorder. Yet, they did not make a determination of whether the Appellant was insane at the time of his in-service misconduct. In August 2016, a VA examiner conducted a detailed clinical analysis of the Appellant and provided an opinion that it is less likely than not the Appellant was insane at the time of his in-service misconduct. The August 2016 VA examiner explained the Appellant had illegally used drugs prior to his combat deployment and did so willingly. The August 2016 VA examiner acknowledged that the Appellant has PTSD, but ultimately concluded that the Appellant willingly used illegal substances throughout his career, and his misconduct was not due to insanity as defined in 38 C.F.R. § 3.354(a). The August 2016 VA psychiatrist opined that The (Appellant’s) military service records do not document the (Appellant) having, any difficulties with his duties or having any mental health struggles that would suggest he used substances under duress. He is merely documented as having a disposition of turning to substances when stressed, as evidenced by his pre-deployment drug abuse. He used illicit substances before his military service, before he was deployed, and before he developed PTSD, as well as after. Because the drug use reportedly occurred only three times and, was not persistent or chronic, the drug use, is not considered to have been due to disease and was not caused by insanity as defined above. The (Appellant) himself reported that, he was able to fully focus l00% on his duties and not be affected by his drug use, suggesting he was willful in his choice to use illicit substances. The August 2016 opinion addresses the three grounds for establishing insanity under VA regulations. The Board affords this opinion significant probative value and finds that it is dispositive of the issue on appeal. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The private opinions diagnosed the Appellant with PTSD and indicated that his PTSD may have contributed to his illegal drug use. However, such conclusions were based, at least in part, on an inaccurate factual premise. The findings largely ignored the Appellant’s pre-service drug use, as well as the evidence indicating that the Appellant engaged in his misconduct prior to the events which led to his PTSD diagnosis. Therefore, the Board assigns the private medical opinions no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the private opinions focused on his civilian misconduct, for which he was facing charges in 2011, and did not fully discuss his military misconduct. The private psychologist and sociologist also did not provide opinions regarding whether the Appellant met the VA definition of insanity at the time of misconduct. As such, these opinions carry no probative value in adjudicating the Appellant’s claim. In contrast, the August 2016 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the Appellant’s record and is accompanied by a sufficient explanation as to why the Appellant was not insane under 38 C.F.R. § 3.354(a) at the time of his misconduct. The Board thus places more probative weight on the August 2016 medical opinion. The VA examiner indicated the evidence does not suggest that the Appellant exhibited a more or less prolonged deviation from his normal behavior concurrent with his in-service misconduct. The evidence also suggests that the Appellant’s behavior did not interfere with the peace of society, as due to disease. Rather, he engaged in misconduct prior to the onset of his PTSD, and largely engaged in private use of illegal substances. The Appellant’s military records do not indicate any evidence of other actions or misconduct that represent disruptions to the peace of society. The evidence does not suggest that, due to disease, the Appellant departed from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided during service. Rather the evidence indicates that the Appellant could adjust to the duties and expectations of service as a medic. The Appellant’s records are silent as to the presence of a major mental illness or personality disorder in service. Therefore, the Board finds that there is no evidence that suggest the Appellant was insane at the time of his in-service misconduct. The competent medical evidence of record overwhelmingly suggests the Appellant was not insane at the time of his in-service misconduct. In sum, the foregoing evidence shows that the Appellant accepted an under Other Than Honorable conditions discharge in lieu of trial by court martial as a result of being charged with drug use, which along with three other illegal drug use violations, constitutes a discharge for willful and persistent misconduct. Therefore, the Appellant’s discharge is a regulatory bar to VA benefits, and such a status has not been remediated either by an upgraded discharge or a finding of insanity at the time of his offense. 38 C.F.R. § 3.12(d). As the preponderance of the evidence shows that the Appellant committed the acts constituting willful and persistent misconduct and was not insane for VA purposes under 38 C.F.R. § 3.354, his character of discharge from service is a bar to payment of VA benefits. Accordingly, the character of the Appellant’s discharge is a bar to his receipt of VA compensation benefits and the appeal must be denied. 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.