Citation Nr: 21065958 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-23 039 DATE: October 28, 2021 REMANDED Whether the appellant's character of discharge from service constitutes a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a) is remanded. REASONS FOR REMAND The appellant served on active duty from August 1972 to September 1973. He received an under other than honorable conditions discharge in September 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in January 2017 of a Department of Veterans Affairs (VA) Regional Office, in Los Angeles, California. In June 2021, the appellant appeared at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. 1. Whether the appellant's character of discharge from service constitutes a bar to VA benefits, exclusive of health care benefits under Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a) is remanded. The appellant essentially seeks "veteran" status. He contends his character of discharge should not be a bar to VA compensation benefits. The appellant's service records show that he was discharged on September 7, 1973 under other than honorable conditions in lieu of facing court martial due to misconduct. Review of the military personnel records demonstrates the following: The appellant enlisted on August 25, 1972 for a period of 3 years. He successfully completed basic and advanced individual training in his requested military occupational specialty, field wireman. While in advanced individual training, on January 10, 1973, nonjudicial punishment was imposed against the appellant for failing to go to his appointed place of duty at the prescribed time. His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty. On May 14, 1973, the appellant was convicted by a summary court-martial of being disrespectful in language toward his superior noncommissioned officer. He was sentenced to forfeit $200 per month for one month and to serve at hard labor without confinement for 30 days. On May 14, 1973, the convening authority approved the sentence. On May 29, 1973, nonjudicial punishment was imposed against the appellant for disobeying a lawful command. His punishment consisted of a reduction to E-1 and 14 days of restriction. On June 29, 1973, the appellant was convicted by a summary court-martial of being absent without leave (AWOL) from June 4, 1973 to June 11, 1973. He was sentenced to forfeit $100 per month for 1 month and confinement at hard labor for 10 days. On June 29, 1973, the convening authority approved the sentence. Between January 10, 1973 and June 19, 1973, the appellant was counseled on 15 occasions for various infractions which included unsatisfactory performance, breaking restriction, displaying a negative attitude, sleeping on duty and disobeying a lawful order. On July 3, 1973, the appellant's unit commander initiated an action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unfitness for frequent discreditable incidents and an established pattern for shirking. He cited that the appellant had been counseled repeatedly concerning his inability to adapt to social and military standards of conduct and that he had been transferred between sections at least 3 times in order to afford him the opportunity to improve his performance. On July 6, 1973, after consulting with counsel, the appellant waived his rights to a hearing of his case before a board of officers, representation by counsel, and elected not to make a statement in his own behalf. He also acknowledged that he understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter. substantial prejudice in civilian life. On August 17, 1973, the separation authority approved the recommendation for separation and directed that the appellant be furnished an Undesirable Discharge Certificate. Accordingly, the appellant was discharged under other than honorable conditions on September 7, 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to an established pattern of shirking. He had served 11 months and 13 days of total active service with 30 days lost due to AWOL and confinement. In May 1975, the appellant sought a discharge upgrade from the Department of the Army Discharge Review Board (ADRB). The ADRB denied the appellant's request for a discharge upgrade. In October 1978, the ADRB denied the appellant's request for reconsideration of the prior ADRB decision. In December 2001, the appellant sought a discharge upgrade from the Department of the Army Board of Correction of Military Records (ABCMR). The ABCMR denied the appellant's request for a discharge upgrade. Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the 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). Based on the foregoing, the AOJ has determined that the character of the appellant's discharge from service is a bar to his entitlement to VA compensation benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are "compelling circumstances to warrant the prolonged unauthorized absence." 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(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." For purposes related to the character of discharge, 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). In May 1997, the 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 normal method of behavior could best be 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, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. In support of his claim, the appellant's representative submitted a private disability benefits questionnaire and a private psychological evaluation. In the August 2021 evaluation, the private psychologist, Dr. A.N. noted: Based on veteran statements during my interview today, my clinical notes from 2018 evaluation, review of VA records of fitness reports and disciplinary actions, in my opinion, more likely than not, he met the definition of "insane person" at the time of his discharge under CFR 3.354(a). More likely than not, his PTSD played a significant role in how he processed information from the environment/people and how he reacted to them. I did consider his history of learning disability, behavioral issues, and psychiatric treatment history when assessing his state of mind at the time of his discharge. The Board finds the medical opinion of record is inadequate to adjudicate the claim. While noting the definition of insanity, the private psychologist did not apply the elements of 38 C.F.R. § 3.354(a) to the appellant, nor discuss how the appellant's PTSD resulted in, "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." Additionally, the private psychologist did not differentiate between the impacts of the appellant's learning disability and his PTSD on his in-service behavior. As such, this opinion fails to demonstrate that the appellant was insane at the time the offenses were committed. Rather, it seems to only show that the appellant had difficulty processing information from his environment, due to his PTSD and learning disability. As noted above, mental illness does not equate to insanity. Rather, insanity is a high bar and generally encompasses a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties. The opinion also does not address how the examiner came to a finding of insanity given that the appellant was examined by a mental health professional prior to his discharge from service and found to be mentally fit. Given the inadequate reasoning provided, the Board finds that a remand to obtain a VA opinion is necessary. The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 539 (2000) (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). Accordingly, given the evidence of record reflecting that the appellant may have had psychiatric impairment in service, the Board finds that a VA opinion is warranted on the issue of the appellant's mental state at the time of the misconduct that led to his September 1973 discharge under other than honorable conditions. In addition, in the private psychiatric evaluation discussed above, the appellant stated that he has been in receipt of Social Security Administration (SSA) disability since 2004. The Board notes that the file does not contain any of the medical or hearing records associated with the award of SSA benefits. The Board notes that, where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). As the record suggests that the appellant is in receipt of SSA benefits which may be relevant to the claim on appeal, the Board finds that attempts to obtain and associate with the claims file any relevant outstanding SSA records should be made. Id. at 1323; see also Baker v. West, 11 Vet. App. 163, 169 (1998). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding SSA records that are not already associated with the record. If these records are unavailable, a written statement to this effect must also be incorporated into the claims file. 2. After completion of the above, afford the appellant a VA examination and obtain a medical opinion by an appropriate clinician, specifically addressing the question as to whether the appellant was insane under VA regulations at the time of the misconduct that led to his September 1973 discharge under other than honorable conditions. After examination of the appellant and review of his claims file, the examiner should respond to the following: (a) Was the behavior that led to the appellant's discharge in September 1973 due to psychiatric disability? (b) Was the appellant insane at the time he committed the criminal acts, in violation of the Uniform Code of Military Justice (UCMJ), that led to his discharge under other than honorable conditions? In providing an answer to these questions, the examiner is advised that (for the purposes of this matter) an insane person is one who, due to disease, exhibits a more or less prolonged deviation from her 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 she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which she resides. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. The examiner is asked to consider and address the July 2018 and August 2021 findings of Dr. A.N., as discussed above. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Caroline B. Fleming 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.