Citation Nr: 21062565 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-25 099 DATE: October 8, 2021 ORDER The character of appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits; to this extent the appeal is denied. FINDINGS OF FACT 1. The appellant's discharge under other than honorable conditions was issued as a result of willful and persistent misconduct. 2. The appellant was not insane, as defined by VA regulations, at the time of the misconduct resulting in his discharge under other than honorable conditions. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits. 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.12, 3.203, 3.301, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty service in the United States Navy from August 2001 to May 2004. The appellant was discharged under other than honorable conditions due to misconduct. The instant matter is on appeal from a July 2012 decision. In October 2019, the appellant testified before the undersigned in a Board videoconference hearing. A transcript of the hearing has been associated with the record. This matter was previously remanded by the Board in August and November 2020 for further development. The agency of original jurisdiction (AOJ) has substantially complied with the previous remand instructions, and the Board finds the evidence of record is sufficient to proceed with a decision on the appeal. As noted in the previous Board decisions, a claimant must first establish "veteran" status in order to qualify for VA compensation benefits. A veteran is defined as 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); 38 C.F.R. § 3.1(d). Thus, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). In this case, the AOJ determined the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct. See July 2012 VA Administrative Decision; see also July 2012 VA notification letter. Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful and meritorious. A discharge because of willful and persistent misconduct is a 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Under 38 C.F.R. § 3.354(a), insanity is defined as one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, 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. The term insanity refers to a condition involving conduct that deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. The appellant entered active duty service in August 2001. The appellant underwent a Health Enrollment Assessment Review (Assessment) in May 2002. The Assessment indicated the appellant reported high-risk behaviors, including frequent and/or excessive alcohol consumption, and indicated the appellant's risk factors included family separation and/or family problems. The appellant underwent a medical examination in June 2002 in which he reported using alcohol products. See June 2002 Report of Medical History. In June 2002, the appellant received the Navy and Marine Corps Achievement Medal for superior performance of duties while serving as the Naval Surface Fire Support Tactical Communications Recorder during fire support qualification in May 2002. The appellant was deployed aboard the U.S.S. Milius in support of Operation Iraqi Freedom (OIF) from December 2002 to April 2003. See July 2003 Post-Deployment Health Assessment. The appellant reported that his health stayed about the same or got better during the deployment. The appellant denied seeing anyone wounded, killed, or dead during the deployment, and denied feeling in great danger of being killed during the deployment. The appellant reported he was not interested in receiving help for a stress, emotional, alcohol, or family problems. The appellant reported that his health in general was "very good." On February 17, 2004, the appellant was directed to report to medical after telling his supervisor that he was stressed to the point that he felt he might hurt himself or someone else. The appellant reported that he was unhappy with his regular military occupational specialty, and that he had multiple family problems. In describing his upbringing, the appellant reported he was removed from his parents as a child, and raised by his grandmother. See also September 2000 DD Form 1966/4. The appellant reported he had not had any contact with his mother, and that his last contact with his father was two years earlier. The appellant reported that his father passed away in 2003. See also Certificate of Death received in October 2019. The appellant reported that his family problems went away when he had gone home on leave in December 2003, and that he wanted to remain at home to help family members that were having difficulties. The appellant reported that he was counseled frequently while on deployment, primarily for disrespect, and that he did not like receiving direction from a petty officer who was of the same age. The appellant reported that he was assigned as a Food Service Attendant, and that he did not like working for the Mess Deck Master at Arms. The appellant reported that he was counseled on several occasions due to periods of unauthorized absence and not doing what he was told, that he had hoped to get caught for smoking marijuana approximately two weeks earlier, and that he had recently purchased items with a credit card that he stole from a fellow shipmate in hopes that he would be kicked out of the Navy. The provider in February 2004 observed that the appellant was withdrawn, though was alert and oriented to person, place, and time, was well-groomed, demonstrated good eye contact and clear speech, and that answers to questions were appropriate and open. The provider indicated the appellant would seek counseling with the Family Services Center/Chaplain upon return to port. Based on the provider's assessment, the appellant was returned to a full duty status. On February 27, 2004, the appellant received nonjudicial punishment for larceny and housebreaking based on his use of a stolen credit card to purchase items. See February 27, 2004 Court Memorandum. The appellant was counseled that he was being retained in the Naval service, but that any further deficiencies in performance and/or conduct may result in disciplinary action and processing for administrative separation. See February 2004 Administrative Counseling and Warning. On April 26, 2004, the appellant received nonjudicial punishment for unauthorized absence, failure to obey a lawful order or regulation, and false official statement. See also May 2004 Recommendation for Administrative Separation. On April 28, 2004, the appellant received nonjudicial punishment for wrongful use of a controlled substance. See Report of Urine Sample Tests (documenting the appellant tested positive for tetrahydrocannabinol (THC) following a urinalysis conducted on April 21, 2004). In May 2004, the appellant's commanding officer recommended the appellant be processed for separation from service due to a pattern of misconduct, drug abuse, and commission of a serious offense. See May 2004 Recommendation for Administrative Separation. The summary of the appellant's offenses included: (1) nonjudicial punishment on February 27, 2004 for larceny and housebreaking; (2) nonjudicial punishment on April 26, 2004 for unauthorized absence, drinking alcohol while armed on watch duty, and false official statement; and (3) nonjudicial punishment on April 28, 2004 for wrongful use of marijuana. The commanding officer recommended the appellant be separated from service with a characterization of service under other than honorable conditions. The appellant underwent a separation medical examination in May 2004. The appellant denied ever having nervous trouble of any sort, frequent trouble sleeping, or depression or excessive worry. See May 2004 Report of Medical History. The appellant denied any significant interval changes in his medical history, and he was found qualified for separation by the medical provider. In May 2004, authority to discharge the appellant was granted. The appellant was discharged effective May 21, 2004 with a characterization of service under other than honorable conditions based on misconduct due to drug abuse. See also DD Form 214. An application to upgrade the appellant's discharge was received by the Naval Discharge Review Board (NDRB) in July 2008. See October 2008 NDRB Discharge Review Decisional Document. The NDRB indicated the appellant sought an upgrade in the characterization of his service based on the positive aspects of his military record, and the contention that his youth, immaturity, and personal problems should mitigate his misconduct. The NDRB noted that the offenses which resulted in the recommendation that the appellant be administratively separated were serious offenses, punishable by a bad conduct or dishonorable discharge had the appellant's commander chosen to pursue a punitive discharge instead of an administrative discharge. The NDRB unanimously voted that a change in the characterization of the appellant's service was not warranted. See also January 2009 NDRB Notice of Decision. In a June 2012 statement, the appellant indicated that he began to experience symptoms of depression and apathy in service following the death of his father and an aunt. See June 2012 VA Form 21-4138. The appellant reported that he was discharged under other than honorable conditions due to marijuana use, which he had started using to help with symptoms of anxiety, stress, and depression. In a March 2013 statement, the appellant reported that he experienced many encounters with hostile forces during his sea service deployment. See March 2013 VA Form 21-4138. Additionally, the appellant reported that he learned of his father's death four months after he had passed away, that he was unable to continue with the right mindset after learning of his father's death, and that all he wanted was to get back home. See also April 2014 statement from D.F. The appellant reported he had difficulty sleeping and irritability, and that he began to drink excessively. Private treatment records associated with the claims file in June 2014 indicate that the appellant has been diagnosed with posttraumatic stress disorder (PTSD). See August 2012 progress note. However, the appellant's initial diagnosis of PTSD was made several years after the appellant was separated from service for misconduct, and appears to have been diagnosed based on the appellant's childhood experiences and dysfunctional family. In November 2015, the appellant's former representative submitted additional evidence and argument in support of the appellant's claim. The appellant's former representative argued that the appellant was insane, as defined by VA regulations, at the time of the misconduct giving rise to his discharge under other than honorable conditions. The former representative argued that the appellant was suffering from PTSD in service, which resulted in a deviation from the appellant's normal method of behavior. Additionally, the former representative noted that under 38 C.F.R. § 3.301(c)(3), the isolated and infrequent use of drugs by itself will not be considered willful misconduct. A February 2015 statement from J.L. was associated with the claims file in November 2015. J.L. reported that he was the appellant's immediate supervisor during their sea service deployment in 2002 and 2003. J.L. reported the appellant learned of the death of two family members while on the deployment, and that the appellant's performance began to decrease. J.L. indicated the appellant was young and immature when he made the "wrong decision," which led to his discharge under dishonorable conditions. A May 2014 private medical opinion from Dr. M.M. was associated with the claims file in November 2015. Dr. M.M. reported that his medical opinion was based on clinical evaluation of the appellant, and a review of the appellant's medical and service records. Dr. M.M. reported there was no apparent record of disciplinary actions or other misconduct prior to February 2004. Dr. M.M. opined that the appellant's current symptoms of PTSD are related to firing missiles in service and the stresses of war. See also online history of the U.S.S. Milius (documenting the launch of Tomahawk Land Attack Missiles in support of OIF in March 2003). Dr. M.M. opined that the appellant's symptoms of PTSD began during his deployment in service, and that his misconduct in service was a manifestation of PTSD symptoms. In a November 2015 Medical Evaluation Report, M.W., Ph.D, opined that the appellant's conduct that resulted in his separation from service was a result of PTSD and mental health condition at that time. Dr. M.W. did not offer an opinion as to whether the appellant's "mental health condition" met the criteria for any diagnosis other than PTSD. Dr. M.W. opined that the appellant's diagnosis of PTSD was related to fear of hostile military action. Dr. M.W. suggested that the appellant used alcohol and drugs in service to self-medicate symptoms of PTSD. Dr. M.W. stated that drugs and alcohol can complicate the symptoms of PTSD by creating other mental health problems, and that an accurate diagnosis becomes more difficult as the original problem, the PTSD, has become compounded. Dr. M.W. indicated the belief that such was the situation in the appellant's case. The appellant sought treatment at a VA Vet Center in February 2017. See VA counseling records received in October 2019. While not documented in service treatment records, the appellant reported that he experienced an incident while serving in a combat zone that was sufficient to knock him down, cover him with debris, or cause injury and/or loss of consciousness. See February 2017 intake assessment. Contrary to the July 2003 Post-Deployment Health Assessment in which the appellant denied feeling in great danger of being killed, the appellant reported that general quarters alarms were constantly announced during his deployment and that he feared he was going to die. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The appellant reported his ship was surrounded by mines, and that he saw boats and people fleeing, little kids drowning, boats capsizing, and possessions being seized during combat deployment. See also July 2003 Post-Deployment Health Assessment (appellant denied seeing anyone wounded, killed, or dead). Upon returning home from the deployment, and after learning of the death of his father and aunt, the appellant reported that he felt like he should have never left. The appellant reported that he began to feel very depressed and began to drink excessively. During the October 2019 Board hearing, the appellant testified that his executive officer informed him in April 2003 that his father had passed away in January 2003, that he became depressed upon returning from his combat deployment, and that learning of his father's death was the catalyst for his behavior that resulted in his separation under other than honorable conditions. See also September 2020 VA Form 21-4138. The appellant testified that his ship was preparing to redeploy within six to eight months, and that he needed to get away at all cost, as he felt like a trapped animal that he would have done anything possible to get out of going on the next deployment. The appellant testified that his acts of misconduct in service were committed with the intent to get in trouble, so that he would be separated from service. The appellant testified that he was not in his right mind and claimed to be insane at the time of his misconduct resulting in his discharge under other than honorable conditions. The appellant testified that nobody reached out to try and help him. Additionally, the appellant described experiences and incidents during his sea service deployment, and that reflecting on such experiences and incidents later in life had affected him. The appellant also described post-service achievements, including earning an undergraduate college degree, working towards a master's degree, earning more than 20 professional certifications, securing civil service employment, and maintaining his marriage of more than 18 years. The Board has considered the entire evidence of record and finds that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct, constituting a bar to the receipt of VA compensation benefits under 38 C.F.R. § 3.12(d)(4). See Stringham v. Brown, 8 Vet. App. 445, 447 (1995) (holding that the determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board). Under 38 C.F.R. § 3.1(n), the term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. While the appellant's DD Form 214 notes that the reason for discharge was based on the appellant's misconduct due to drug abuse, the recommendation for administrative separation and characterization of service under other than honorable conditions included consideration of the other offenses committed by the appellant. See May 2004 Recommendation for Administrative Separation. The appellant's in-service offenses that led to his discharge under other than honorable conditions included: (1) nonjudicial punishment on February 27, 2004 for larceny and housebreaking; (2) nonjudicial punishment on April 26, 2004 for unauthorized absence, drinking alcohol while armed on watch duty, and false official statement; and (3) nonjudicial punishment on April 28, 2004 for wrongful use of marijuana. While the isolated and infrequent use of drugs by itself will not be considered willful misconduct, in this case, the appellant had additional episodes of misconduct that were considered in characterizing his service as under other than honorable conditions. See 38 C.F.R. § 3.301(c)(3). The appellant received nonjudicial punishment in February 2004, and was advised in a formal counseling that any further deficiencies in performance and/or conduct may result in disciplinary action and processing for administrative separation. See February 2004 Administrative Counseling and Warning. The appellant has repeatedly indicated that he committed a string of offenses in service, beginning with the February 2004 nonjudicial punishment for larceny and housebreaking, with the intent that such would result in his separation from service. Accordingly, the Board finds the appellant's repeated disciplinary infractions involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Additionally, the Board finds the appellant's continued pattern of offenses until achieving his desired goal of being separated from service demonstrates persistent misconduct. The Board has considered whether the exception for a discharge because of a minor offense is applicable. As noted above, a discharge for a minor offense will not be considered willful and persistent if service was otherwise honest, faithful and meritorious. See 38 C.F.R. § 3.12(d)(4). The Board recognizes the positive aspects of the appellant's service in the Navy, including the service/unit decorations and the personal award he received. See DD Form 214. Additionally, the Board recognizes there is no record of misconduct prior to the nonjudicial punishment on February 27, 2004. The Board adds that, by the appellant's own admission, he had been counseled frequently while on deployment, primarily for disrespect, as well as being counseled in his assignment as a Food Service Attendant for periods of unauthorized absence and not doing what he was told. See February 17, 2004 service treatment record. The critical question is whether the appellant's discharge was the result of a minor offense. After a review of all the evidence, the Board finds that the offenses that resulted in the appellant's discharge under other than honorable conditions were not minor in nature. The appellant's host of offenses, ranging from larceny and housebreaking, unauthorized absence, drinking alcohol while armed on watch duty, false official statement, and wrongful use of marijuana, were serious offenses. As noted by the NDRB, such offenses may be punishable by a bad conduct discharge or dishonorable discharge under the Uniform Code of Military Justice. The Board finds such misconduct significantly interfered with the appellant's performance of military duties, and the exemption for a "discharge because of a minor offense" is not applicable. With respect to the appellant's contention that he was "insane" at the time of the offenses resulting in his discharge, the U.S. Court of Appeals for Veterans Claims (Court) has held that, in order to constitute insanity for the purposes of 38 C.F.R. § 3.354(a), the claimant's behavior must be "due to disease." See Zang v. Brown, 8 Vet. App. 246, 253 (1995); see also Gardner, 22 Vet. App. at 419 (competent medical evidence is required to establish a diagnosis); see also Beck v. West, 13 Vet. App. 535, 539 (2000) (mental illness is not identical to "insanity"). While competent medical evidence is required to establish a diagnosis that is concurrent with the misconduct, the determination of whether insanity existed at the relevant time is a factual question. See Beck, 13 Vet. App. at 539. Proximate to the time of the appellant's offenses in service, he reported being stressed to the point that he felt he might hurt himself or someone else and dissatisfaction with his job and leadership. See February 2004 service treatment record. The February 2004 medical evaluation supports that the appellant was feeling withdrawn, and wanting to return home. Additionally, the Board finds the appellant's report of symptoms of depression after learning of the death of his father and aunt to be credible. In this regard, the Board is sympathetic to the appellant's family situation at the time; however, the appellant was not given a mental illness diagnosis in service, and was found qualified to remain in a full duty status, despite reporting mental health symptoms at the February 2004 medical evaluation. In support of his claim, the appellant submitted the private medical opinions from Dr. M.M. and Dr. M.W., which are discussed above. Dr. M.M. and Dr. M.W. opined that the appellant had a diagnosis of PTSD at the time of his offenses in service. While both medical opinions base the diagnosis of PTSD on the appellant's alleged fear of hostile military action, the factual assumptions are incomplete and, therefore, inaccurate, as neither opinion addresses contemporaneous evidence in service treatment records in which the appellant reported he never felt in great danger of being killed during the deployment. See July 2003 Post-Deployment Health Assessment. Nor do the opinions address the evidence in which an initial diagnosis of PTSD, made many years after separation from service, was related to the appellant's history of dysfunctional family and effects of childhood experiences. See August 2012 C.N.M.C.S. progress note. Additionally, to the extent that Dr. M.W. suggested the appellant self-medicated symptoms of PTSD with alcohol and drugs in service, she did not appear to consider or discuss service treatment records documenting the appellant's report of frequent and/or excessive alcohol consumption many months prior to his service in theater in December 2002. See May 2002 Health Enrollment Assessment Review. As the above medical opinions do not appear to be consistent with the medical and other evidence of record, the Board finds the medical conclusion that the appellant's behavior at the time of his misconduct in service was due to a diagnosis of PTSD is not supported with sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and with sound reasoning for the conclusion). In addition, the incomplete factual assumptions based on omissions of significant facts also renders the opinions of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). In light of the appellant's contentions and given VA's duty to assist, the appeal was remanded in November 2020 to obtain a medical opinion as to whether the appellant's behavior at the time of the misconduct in service was due to disease. The appellant was afforded a VA examination in March 2021. The VA examiner identified the medical and lay evidence of record he considered in forming his medical opinion, to specifically include statements from the appellant, his spouse, and a fellow service member, service treatment records, the May 2014 medical opinion from Dr. M.M., the November 2015 Medical Evaluation Report from Dr. M.W., and the VA Vet Center counseling records. On examination in March 2021, the examiner took a history from the appellant as to his mental health history, and legal and behavioral history. Consistent with service treatment records, the appellant reported excessive alcohol consumption during his first six months of military service, including drinking to the point of blacking out. The appellant reported excessive drinking within approximately six months of his assignment aboard the U.S.S. Milius, estimating that he would drink about a fifth of whiskey. After learning of the death of his father and aunt while on deployment, the appellant reported feeling increasingly depressed and withdrawn. The appellant reported his alcohol use continued and began to interfere with his work. The appellant reported that, at the time of the misconduct, he experienced symptoms of apathy, feeling numb, and wanting to be alone, that he was hurting after the loss of his father and aunt, that he did not want to redeploy, and that he did not want to lose any more family members. The appellant reported that his drinking drove him to depression. The March 2021 VA examiner opined that the appellant had a diagnosis of severe alcohol use disorder at the time of the offenses resulting in his discharge under other than honorable conditions. The VA examiner indicated the appellant endorsed past symptoms that are consistent with alcohol use disorder, including consumption of alcohol in larger quantities than intended, recurrent failure to fulfill major obligations, continued use despite interpersonal problems, recurrent use in situations in which it is physically hazardous, and continued use despite physical/psychological problems. In this case, the Board assigns probative value to the March 2021 VA examiner's opinion that the appellant had a diagnosis of alcohol use disorder, severe, at the time of the offenses resulting in his discharge under other than honorable conditions. The March 2021 medical opinion is based on a full history and accurate factual assumptions, including as obtained from a thorough review of service personnel and treatment records, lay and medical evidence associated with the claims file, and interview of the appellant. The March 2021 medical opinion is fully articulated with sound rationale for the opinion. With respect to the VA examiner's opinion that the appellant had a diagnosis of alcohol use disorder concurrent with his misconduct, VA's Office of General Counsel has interpreted that behavior which is attributable to a substance-abuse disorder does not constitute insane behavior under 38 C.F.R. § 3.354(a). See VAOPGCPREC 20-97 (noting that conduct which is generally attributable to a substance-abuse disorder, such as failure to fulfill work, school, or home obligations, repeated absences or poor performance, or legal problems, does not exemplify the gross nature of conduct which is generally considered to fall within the scope of the term insanity). Accordingly, insofar as the appellant's behavior at the time of the offenses leading to his discharge is attributable to a diagnosis of alcohol use disorder, such does not constitute insane behavior under 38 C.F.R. § 3.354(a). As a final consideration, the Board recognizes that the appellant has submitted evidence regarding personal and professional achievements following his separation from service. While the Board finds the appellant's post-service achievements to be commendable, those post-service accomplishments do not permit the awarding of VA benefits or have any tendency to show insanity during service or that the service behavior years prior was not willful and persistent. In sum, the Board finds that the appellant's discharge under other than honorable conditions was issued because of willful and persistent misconduct. The evidence of record is against a finding that the exemption for a discharge because of a minor offense is warranted. Additionally, the probative evidence of record is against a finding that the appellant was "insane," as defined by VA regulations, at the time of the offenses resulting in his discharge. Accordingly, the appellant is barred from receiving VA compensation benefits under 38 C.F.R. § 3.12(d)(4), and the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.