Citation Nr: 21063849 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-24 250A DATE: October 18, 2021 ORDER The character of the discharge is not a bar to the receipt of Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. The appellant manifested a prolonged deviation from his normal method of behavior due to disease concurrently with the conduct leading to his discharge during his period of active service. 2. The appellant was insane, as defined by VA regulations, at the time of the offenses that resulted in his bad conduct discharge by reason of the sentence of a special court martial. CONCLUSION OF LAW The character of discharge from service is not a bar to the award of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from December 1976 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2020 administrative decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin. In this case, the appellant's claim for VA disability benefits was denied on the grounds that the character of his discharge from service is a regulatory bar to the receipt of VA compensation and healthcare benefits based on willful and persistent misconduct as found in a March 2020 VA administrative decision. A Board hearing was held before the undersigned Veterans Law Judge in September 2017, and a transcript of the hearing is of record. In February 2018 and March 2021, the Board remanded the issue on appeal for additional development. 1. Whether the character of discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) monetary and healthcare benefits. The appellant seeks "veteran" status, as defined by VA regulations and as a pre-requisite for VA benefits, for his period of active service in the United States Marine Corps, despite receiving a Bad Conduct discharge from service in July 1982. A "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. §§ 3.1(d), 3.315. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant's service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). 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 are binding and conclusive on 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 (2000); Venturella v. Gober, 11 Vet. App. 240 (1997); Cahall v. Brown, 7 Vet. App. 232 (1994); Duro v. Derwinski, 2 Vet. App. 530 (1992); Soria v. Brown, 118 F.3d 747 (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 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). 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). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined it was issued because of willful and persistent misconduct; however, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious); and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). 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). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). A discharge or release from service because of willful and persistent misconduct 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). An insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his or her normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he or she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he or she resides. 38 C.F.R. § 3.354(a). For the defense of insanity, there must be competent evidence establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. The phrase "due to disease" applies to all three separate components of 38 C.F.R. § 3.354(a) and, thus, the applicable standard is: (1) due to disease, exhibits a more or less prolonged deviation from his or her normal method of behavior; (2) due to disease, interferes with the peace of society; or (3) due to disease, has so departed (become antisocial) from the accepted standards of the community to which by birth and education he or she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he or she resides. Zang v. Brown, 8 Vet. App. 246 (1995). Significantly, the burden is on the appellant to submit competent evidence to support a finding that the appellant was insane. Stringham v. Brown, 8 Vet. App. 445 (1995). A servicemember need not show that insanity caused the misconduct that led to discharge, but must show medical evidence confirming insanity existed during the misconduct in question. Gardner v. Shinseki, 22 Vet. App. 415 (2009). Mental illness is not identical to insanity, and there need be no causal connection between the insanity and the misconduct. However, the acts leading to the discharge and the insanity must be concurrent." Beck v. West, 13 Vet. App. 535 (2000). The Board observes that the issue of whether a servicemember knew right from wrong and was able to discern the effects of the servicemember's behavior is not germane to a determination of whether the servicemember was insane during service as defined by 38 C.F.R. § 3.354(a). Gardner, 22 Vet. App. at 420. The service records document that the appellant entered active duty in February 1976. The first two years of the appellant's enlistment appear to be without any major incident or disciplinary infractions. The appellant received nonjudicial punishment (NJP) in April 1977 for pushing another service member who fell in such a way as to break a glass window, resulting in the destruction of government property. In May 1978, the appellant received NJP for failing to monitor sentry reports. Despite those incidents, the appellant graduated from his military occupational school in the top 20 percent of his class as shown in a May 1977 Report of Separation from Training. In September 1978, the appellant received a Meritorious Mast for participation in an Inspecting General's Inspection. The appellant was reported to have shown outstanding and professional enthusiasm and a high level of personal pride, and was reported to be a credit to the enlisted ranks and an excellent example for fellow Marines. Additionally, from December 1976 to January 1979, the appellant received generally "excellent" proficiency and conduct evaluations. Shortly after the appellant's transfer to a new command in September 1978, service records document a multitude of disciplinary infractions, including NJP in March 1979 and December 1979, a summary court martial in February and May 1980 for a number of offenses, and a special court martial in September 1980 and March 1981 for a number of offenses. The March 1981 special court martial sentenced the appellant to confinement at hard labor for four months, forfeiture of $250.00 per month for four months, and a bad conduct discharge. The appellant reportedly claimed he was not guilty of any of the offenses charged in the March 1981 special court martial that resulted in the bad conduct discharge as shown in a February 1981 Prisoner's Admission Summary Data. The February 1981 Prisoner's Admission Summary indicated the appellant was unable to remain out of trouble long enough to be administratively separated from service, that the appellant blamed his unit for his present difficulties, that the appellant accepted no responsibility for his problems, and that the appellant would probably not function outside of a prison environment. In an April 1981 Request for Clemency, the appellant requested that he receive a general, under honorable conditions, discharge because of his proficiency and conduct marks during service. Additionally, the appellant reported that he did not believe the offenses for which he was convicted warranted a bad conduct discharge. An April 1981 psychiatric evaluation associated with the special court martial proceedings provides very little information concerning the appellant or his mental status. The provider reported only that the appellant demonstrated no signs of psychosis or neurosis, and that the appellant's motivation and potential for honorable service was poor. A June 1981 Prisoner's Progress Summary reported the appellant had neglected to shower and keep himself clean, and that the appellant had made a poor adjustment to confinement. However, it was also reported that the appellant was capable of performing work whenever he chose to do so, with training reports fluctuating from average to outstanding evaluations. In June 1981, the appellant was placed on leave awaiting appellate review of his special court martial sentence to a bad conduct discharge. The appellant's sentence to a bad conduct discharge was executed in July 1982 as shown in a July 1982 Supplementary Special Court Martial Order. The appellant filed an application with the Navy Board of Corrections of Naval Records (NBCNR) to upgrade the character of discharge. In a January 2012 decision, the NBCNR denied the appellant's application, finding that the characterization of the appellant's service was appropriate and did not warrant an upgrade. After a thorough review of the evidence of record, the Board finds that the appellant's circumstances underlying his discharge amounted to willful and persistent misconduct, which constitutes a regulatory bar to VA compensation benefits. However, the competent, probative medical evidence of record establishes that the appellant met the definition of "insanity" at the time of the commission of the underlying offenses. Thus, the regulatory bar to benefits must be lifted. A December 2010 correspondence from the appellant's sister, P.E. reported the appellant was a model Marine when he entered service, and was very proud of being in the service. P.E. stated that the appellant had always been considerate, well-mannered, and never involved in any trouble, except for an incident where he pushed someone in self-defense while still in training in the Marine Corps. P.E. indicated that the family had not heard from the appellant after his transfer to a new command in September 1978. P.E. indicated that she went to the appellant's duty station to find him, and was directed to the correctional facility. P.E. reported that when the appellant came out to see her, he was staggering, shaking his head, repeating himself, and that he appeared deranged, confused, disheveled, and unclean. Shortly after that visit, P.E. reported the appellant arrived home from the Marine Corps, and still appeared, confused, incoherent, disheveled, and unclean. P.E. reported that she took the appellant to a VA hospital to obtain help. P.E. reported the appellant had never talked to family about his experiences in the Marine Corps. Statements from other family members also report that the appellant was a totally different person when he came back from the Marine Corps as shown in an August 2013 letter from D.H., a July 2013 letter from P.E., and a July 2013 letter from U.C. In an April 2011 psychiatric evaluation, Dr. C.B.M. indicated the appellant reported he had been in the service for several years, but was discharged for unclear reasons. Dr. C.B.M. reported it was possible the appellant may have had undiagnosed schizophrenia for a long time, with largely negative symptoms. In an August 2011 psychiatric evaluation, Dr. D.M.L. reported it was possible the onset of the appellant's current diagnosis of schizophrenia occurred when he was in the Marine Corps, and that it would be helpful to review those psychiatric records. Based on the foregoing, the Board remanded the appeal in March 2021 to obtain a medical opinion on the issue of insanity. In a June 2021 psychiatric opinion, the examining psychiatrist, Dr. I.O. opined that the appellant had symptoms of schizophrenia in service and, as a result, exhibited a prolonged deviation from his normal method of behavior. Dr. I.O. provided a VA medical opinion based on the evidence of record as to whether the appellant was insane, as defined by VA regulations, at the time of the misconduct that resulted in his discharge. Specifically, Dr. I.O. opined that At the time of the committed offenses, the Veteran appeared to be exhibiting disease due to a prolonged deviation from his normal method of behavior leading to the bad conduct discharge. Given that the Veteran had previously been cited as "a credit to the enlisted ranks and an excellent example for fellow Marines" and maintained excellent ratings for three years, this shift is likely indicative of a behavioral change for the Veteran, problems associated with the new environment, or both. The Veteran's record suggests that a marked shift occurred in the Veteran's normal method of behavior which likely triggered these offenses. During this and prior evaluations with Drs. L. and Dr. M., the Veteran denied any pattern of hallucinations or delusions (positive symptoms). However, his condition appears to present primarily with negative symptoms (social withdrawal, difficulty with relationships, periodic catatonia, avolition, disorganized thoughts and speech). These negative symptoms are consistent with the behaviors described in the Veteran's records (difficulty with relationships, avolition, and poor hygiene). Given the reports of the Veteran's family upon his return home, his history of employment difficulties, post military psychiatric diagnoses, marked changes in conduct during service, and failure to establish relationships (he has never been married, never dated since the military, and has no children), the Veteran was likely experiencing prodromal symptoms at the time of these offenses. These symptoms are likely the cause of his in-service behavior changes and his subsequent difficulties functioning in a civilian life. Dr. D.G. opined that the appellant demonstrated a more or less prolonged deviation from his normal method of behavior due to his prodromal (early signs or symptoms of an illness that appear before the major signs or symptoms start) symptoms of schizophrenia. In this context, the Board reviews the legal standard for "insanity" as a situation where due to disease, the servicemember exhibits a more or less prolonged deviation from the servicemember's normal method of behavior. The Board has considered the entire record, and finds the evidence is in relative equipoise as to whether the appellant was insane, as defined by VA regulations, at the time of the misconduct that led to separation under other than honorable conditions for commission of a serious offense. Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. Gardner v. Shinseki, 22 Vet. App. 415 (2009). The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. VAOPGCPREC 20-97. In this case, prior to the misconduct that led to separation under other than honorable conditions for commission of a serious offense, the appellant received numerous service awards praising him for exemplary behavior. The appellant served faithfully and honorably for over three years, and he was rated as exceptional on performance evaluations. The Board finds that the appellant's condition at the time of the offenses leading to discharge involved conduct that deviated severely from the social norm and interfered grossly with his capacity to meet the ordinary demands of life, as evidenced by his inability to maintain proper grooming or comply with military directives, as well as other deviations from military and societal norms. Additionally, the evidence indicates that the appellant's behavior and performance deteriorated over time from that of an exceptional and highly functional Marine to one who was unreliable, undisciplined, required constant supervision, and was a detriment to his unit. On this record, the Board finds that the appellant manifested insanity in the form of a prolonged deviation from his normal method of behavior due to prodromal symptoms of schizophrenia concurrently with the conduct leading to his discharge during his period of active service. Therefore, the Board having considered the entire record, and resolving reasonable doubt in favor of the appellant, finds that the appellant was insane, as defined by VA regulation, at the time of the offenses that led to the receipt of a bad conduct discharge. Based on the definition of insanity, the Board must conclude that the appellant met the definition of insanity which is a defense to the willful misconduct bar. In this particular case, the Board finds the evidence of record is at least in equipoise as to whether the appellant meets the definition of insanity under 38 C.F.R. § 3.354(a), where he exhibited, due to disease, a more or less prolonged deviation from his normal method of behavior at the time of the offenses leading to his discharge under other than honorable conditions. Accordingly, the character of discharge is not a bar to the receipt of VA disability compensation benefits. 38 C.F.R. § 3.12(b). Harvey P. Roberts 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.