Citation Nr: 21063642 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-06 765A DATE: October 15, 2021 ORDER The appellant's character of discharge constitutes a bar to payment of Department of Veterans Affairs (VA) benefits for this period of service. FINDING OF FACT 1. The appellant's character of discharge was under other than honorable conditions. 2. During his period of service, the appellant was convicted by a state court of attempted murder and illegal transportation of a firearm across state lines and sentenced to twenty-five years of confinement. 3. In April 1999, the appellant was administratively separated from the United States Army with an under other than honorable (OTH) conditions discharge by reason of misconduct due to commission of a serious offense and civil conviction. 4. A February 2014 administrative decision determined that the appellant's discharge was dishonorable for VA purposes due to his civil conviction. The administrative decision further determined that he was entitled to treatment under 38 U.S.C. Chapter 17 for disabilities determined to be service-connected. 5. The appellant's discharge under other than honorable conditions was the result of an offense involving moral turpitude. 6. 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 discharge is a bar to the payment of VA compensation benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from May 1997 to April 1999, at which time he received a discharge under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2018 and April 2020, the Board remanded the appeal for further development. 1. Whether the appellant's character of discharge from service is a bar to VA benefits. The appellant seeks "veteran" status due to his military service in the United States Army. He contends that he was recommended for a general discharge and that he served honorably, thereby entitling him to VA compensation benefits. Relevant Laws and Regulations Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "Veteran" means "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars and regulatory bars. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a former service member was discharged or released under one of the following conditions: as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court-martial; resignation by an officer for the good of the service; as a deserter; as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days with certain exceptions as afforded in the regulation. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must then determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions: acceptance of undesirable discharge in lieu of trial by general court- martial; mutiny or spying; offense involving moral turpitude; willful and persistent misconduct; and homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. Id. 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 term "moral turpitude" is not defined in 38 C.F.R. § 3.12(d)(3), but it is defined in Black's Law Dictionary as "conduct that is contrary to justice, honesty, or morality." Black's Law Dictionary (8th ed. 2004). Additionally, in a published advisory opinion, VA's General Counsel indicated that moral turpitude is the element of a willful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. See VAOPGCPREC 6-87 (Fed. 5, 1988). Furthermore, 38 C.F.R. § 3.12(d)(3) indicated that an offense involving moral turpitude generally includes a conviction of a felony. If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the claimant was insane. 38 U.S.C. § 5303(b). The burden is on the claimant to submit competent medical evidence that he was insane at the time of his/her offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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 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 claimant 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 claimant to submit competent medical evidence that he/she 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). If no statutory or regulatory bar exists, VA will find that the individual qualifies as a claimant because he/she was discharged under conditions other than dishonorable. A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of Veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). Character of Discharge The appellant's personnel records indicate that he enlisted in the United States Army on May 14, 1997. He served as an infantryman, with Military Occupational Specialty (MOS) of 11H. The service separation form shows that the appellant was discharged with an OTH discharge on April 28, 1999, under Army Regulation 635-200, Chapter 14-12c, due to serious misconduct. The appellant's service separation form includes a separation code of JKQ, which is the discharge code for commission of a serious offense. Review of the military personnel records shows instances of misconduct: In April 1998, the appellant received nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) for assault, in violation of Article 128, UCMJ, and wrongful consumption of alcohol by an individual under the age of 21, in violation of Article 134, UCMJ. He was sentenced to restriction for 7 days and extra duty for 7 days. On January 21, 1999, the appellant was charged with attempted murder and illegally transporting a firearm across state lines. The appellant was subsequently tried in the Superior Court, Nashville, Tennessee. He was found guilty was sentenced to twenty-five years of confinement. The appellant unsuccessfully appealed his conviction. In February 1999, the command initiated an administrative separation action against the appellant due to his conviction by civilian authorities. In February 1999, the command notified the appellant that he was being considered for separation from the Army due to his conviction by civilian authorities for misconduct. The company commander further notified him that he was being considered for an OTH discharge. The appellant waived his rights to an administrative separation board. In March 1999, the appellant's company commander recommended that the appellant receive a general discharge. The appellant's battalion and brigade commanders considered the proposed separation action and recommended that the appellant receive an OTH discharge. In April 1999, the appellant's Commanding General and General Court Martial Convening Authority directed that the appellant be separated from service with an OTH discharge. The appellant was separated from service on April 28, 1999. In February 2008, the appellant applied for an upgrade to the character of his discharge by the Army Discharge Review Board. In a December 2008 decision, the ADRB affirmed the appellant's character of discharge. In May 2019, the appellant applied for an upgrade to the character of his discharge by the Army Discharge Review Board. In an October 2019 decision, the ADRB affirmed the appellant's character of discharge. Analysis After review of the record, the Board finds there are no statutory bars to VA benefits in this case. However, the evidence reflects that the appellant was discharged due to misconduct related to a civilian felony conviction, which constitutes an offense involving moral turpitude. As such, there is a regulatory bar to VA benefits in this case. The Board has considered if there are any other reasons to set aside the regulatory bar to VA compensation benefits, including because the appellant was insane at the time of the offenses 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 evidence indicates that there has been no upgrade to the appellant's discharge. Rather, the evidence indicates that the appellant's request for an upgrade to his discharge has been denied. The appellant has also not advanced insanity as a defense in this case. The evidence also does not indicate that the appellant was insane at the time of his misconduct. Moreover, the appellant's service treatment records are entirely negative for any complaints or findings of a psychiatric disorder. The Board also notes that, at no time during service, did the appellant offer such a defense to his attempted murder charge, and there is otherwise no indication in the service treatment or personnel records of the existence of any insanity at the time of the commission of the offense leading to his discharge. Therefore, the Board concludes that there is no basis upon which to conclude that the appellant was insane at the time of committing the offense resulting in his discharge. See 38 C.F.R. § 3.12(b). Based on the foregoing, the Board finds that insanity has not been shown by the evidence of record. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the appellant's character of discharge or evidence showing the appellant was insane at the time of his offense. In sum, the foregoing evidence shows that the appellant was discharged due to misconduct stemming from a civilian felony conviction, which by law constitutes an offense of moral turpitude. This establishes a regulatory bar to VA benefits for the appellant's period of active duty service, 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). Accordingly, the Board finds that the appellant is not a "Veteran" for VA compensation and pension purposes based on service from May 14, 1997 to April 28, 1999, as his character of discharge was other than honorable and is considered to be dishonorable for VA purposes. Therefore, the character of discharge is a bar to VA compensation benefits and his appeal is denied. J. NICHOLS 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.