Citation Nr: 21062940 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-26 530 DATE: October 12, 2021 ORDER The Appellant's character of discharge constitutes a bar to the payment of Department of Veterans Affairs (VA) compensation benefits; the appeal is denied. FINDINGS OF FACT 1. The Appellant was discharged from service 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 two occasions for being disrespectful to a senior noncommissioned officer and for being absent without leave (AWOL). He was also convicted at a Summary Court Martial for failing to obey lawful orders. He had an additional period of being absent without leave (AWOL), He was also charged with failing to obey lawful orders of a commissioned officer with charges referred for trial by Special Court Martial. 3. On December 8, 1970, the Appellant submitted a request for discharge in lieu of a trial by court martial and was discharged on January 7, 1971, 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 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 FINDINGS AND CONCLUSION The Appellant had active duty service with the United States Marine Corps from April 1969 to January 1971, including service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2014 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Chicago, Illinois. In that decision, the RO granted Chapter 17 healthcare benefits for service-connected conditions which occurred during the Appellant's period of service. In August 2019, the Appellant testified before the undersigned in a Travel Board hearing. In November 2019, the Board remanded the appeal to the Regional Office (RO) for further development. 1. Whether the character of the Appellant's discharge from service constitutes a bar to the award of VA compensation benefits. 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 was subjected to racial discrimination and maltreatment which led to malicious prosecutions for misconduct. Alternatively, he asserts 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). 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 opinion 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 Marine Corps on April 28, 1969. He earned the military occupational specialty of motor vehicle operator (3531). He served in the Republic of Vietnam and earned the Vietnam Service Medal. 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 July 1969, the Appellant was subjected to nonjudicial punishment for violating Article 89 for being disrespectful to a senior noncommissioned officer. He was found guilty and sentenced to forfeit $20.00 pay per month for one month, and seven days of correctional confinement. In April 1970, the Appellant was subjected to nonjudicial punishment for violating Article 86 for being absent without leave (AWOL) from March 16, 1970 to March 23, 1970. He was found guilty and sentenced to fourteen days of restriction. The Appellant was AWOL from July 28, 1970 to August 12, 1970. The Appellant's SPRs do not indicate a disposition for this offense. In October 1970, the Appellant was notified that he would be subjected to nonjudicial punishment for violating Article 91 for failure to obey a lawful order. He requested trial by Summary Court Martial. At Summary Court Martial, he was found guilty and sentenced to be reduced to the rank of E-1, to forfeit $90.00 pay per month for one month, and to 30 days of confinement at hard labor. In October 1970, the Appellant was charged for two violations of Article 90, UCMJ, for two incidents of failing to obey lawful orders of a commissioned officer. The commanding officer referred the case for trial by court martial. 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 January 7, 1971. 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 Navy Discharge Review Board (NDRB) or Navy Board of Corrections of Naval Records (NBCNR) 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 Staff Judge Advocate memorandum dated November 1970 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 Form 214 reflects a discharge of under other than honorable conditions and specifies an administrative discharge for the good of the service 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 disobeying lawful orders, being disrespectful to a senior noncommissioned officer and being absent without leave (AWOL) despite having been informed of the UCMJ and adverse consequences of misconduct during initial training. He did so even after receiving nonjudicial punishment for his first offense. 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). Based on the evidence of record, the Board finds that the Appellant's misconduct 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 UCMJ 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 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 including refusal to obey orders and AWOL 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 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 journal articles regarding racism in the military during the Vietnam War era and lay statements in support of his claim. The journal articles indicate a prevalence of racism in the military. However, none of the articles address the Appellant's specific case. The lay statements indicate the Appellant's personal character and role as a member of society. However, the nature of the Appellant's in-service misconduct, not his post-service life, is at issue. As noted above, the evidence does not indicate that the Appellant applied for an upgrade to the character of his discharge by the NDRB and/or NBCNR. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge. The Board notes that the Appellant could still consider submitting an application, to include the lay statements noted above, to the NDRB or NBCNR to upgrade his discharge, and if approved, VA would be bound by such a positive determination from the service department. 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 January 1971 discharge. In contesting the character of his discharge and entitlement to VA benefits, the Appellant asserts that he was insane, as defined by VA regulation, at the time he committed the offenses leading to his discharge from service. The Appellant contends that his PTSD and combat anxiety resulted in his conduct during the offenses that lead to his discharge. The Appellant reported that he was diagnosed with PTSD in 2014. The Appellant submitted private medical records indicating that he was being treated for PTSD. However, the private treatment records do not provide an opinion on whether he was insane at the time of his in-service misconduct. The Appellant's service treatment records (STRs) do not indicate any complaints or treatment for any mental health conditions. Additionally, the Appellant was given a PULHES score of 1 for "S" at April 1969 and May 1970 examinations, suggesting that his psychiatric condition was normal. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In his January 1971 separation examination, the Appellant did not report any mental health issues and the examining physician made no clinical findings related to the Appellant's mental health. The PULHES section was not completed for the January 1971 separation examination. Pursuant to the November 2019 Board remand, the RO obtained an opinion from a VA psychologist, an expert in the mental health field, which opined that the Appellant was not insane at the time of his in-service misconduct. In February 2020, 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 February 2020 VA examiner acknowledged that the Appellant has PTSD, but ultimately concluded that his misconduct was not due to insanity as defined in 38 C.F.R. § 3.354(a). The February 2020 VA psychiatrist opined that The available evidence does not support an inference that the veteran either was or is either mentally defective or constitutionally psychopathic. Although he never finished high school and admittedly had some difficulty mastering his studies, his subsequent employment and his vocabulary during his interview verify a level of cognitive or intellectual functioning at a level substantially above what is considered defective. The record documents a pattern of misconduct during the time when he was in the service that might be consistent with being psychopathic, a condition now identified as antisocial personality disorder. However, the diagnosis requires a pattern of misconduct in childhood which is not found. Further, there is no evidence of misconduct persisting after he left the service. To the contrary, he is described as working in law enforcement capacity for many years. Next, there is no evidence of psychosis. There is no reported family history of major mental illness that would place the veteran in an "at risk" category. His recollection of the events he cites as unjust are clear, succinct, and unambiguous. In my opinion, there is no elusional element to his account. Further, his description of encountering racial prejudice is consistent with more general accounts of such practices reported in news accounts published by the prestigious likes of the New York Times. Psychotic disorders typically persist over the lifetime of the patient. The face-to-face encounter with the veteran confirmed an absence of any psychotic symptoms whatsoever. Accordingly, there is insufficient basis to conclude that due to a disease that the veteran exhibited a more or less prolonged deviation from his normal method of behavior; or that a mental disease led him to interfere with the peace of society; or that a mental disease led him to so depart (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. In my professional opinion, it is less likely than not that the veteran was insane at the time of the offenses that led to his discharge from the Marines under other than honorable conditions. The February 2020 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. Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). The February 2020 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 significant probative weight on the February 2020 medical opinion. The Boards finds that the evidence does not suggest that the Appellant exhibited, due to disease, a more or less prolonged deviation from his normal behavior concurrent with his in-service misconduct. Rather, his misconduct which occurred over the majority of his period of service indicates that he had consistent difficulties with military authorities, and his misconduct was not a deviation from his normal behavior. The evidence also suggests that the Appellant's behavior did not interfere with the peace of society, as due to disease. Rather, the Appellant, while disregarding his orders and responsibilities as a Marine, did not show interference with the peace of society. Further, 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 motor vehicle operator. 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 disobeying lawful orders, which along with three other violations for being disrespectful to a senior noncommissioned officer and being absent without leave (AWOL) over a two year period, 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. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.