Citation Nr: A21016909 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 201013-117394 DATE: October 19, 2021 REMANDED Whether the character of discharge for the Appellant's period of service is a bar to Department of Veterans Affairs (VA) benefits, other than health care under Chapter 17, Title 38, United States Code, is remanded. REASONS FOR REMAND The Appellant served on active duty from November 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2019 administrative decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which determined that the Appellant's military service from November 2, 1966 to May 29, 1969 was "dishonorable" for VA purposes and that he was not entitled to receive VA benefits for that period of service. The Board notes that the December 2019 administrative decision on appeal was issued after February 19, 2019, thus was subject to the Appeals Modernization Act (AMA). 84 Fed. Reg. 138 (Jan. 18, 2019). In the October 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. 1. Whether the character of discharge for the Appellant's period of service is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code, is remanded. The Appellant seeks to be recognized as a "veteran" for VA purposes. He contends his character of discharge should not be a bar to VA compensation benefits for this period of service. He also contends that he had been suffering from psychiatric impairment in service which contributed to his misconduct. Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Appellant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a). In the present case, the Board finds that the AOJ committed a pre-decisional duty to assist error in not obtaining an examination and opinion. The Appellant's service personnel records indicate the following misconduct: On November 21, 1967, the Appellant was convicted at Special Court Martial for unauthorized absence (AWOL) from June 15, 1967 to June 20, 1967, from July 1, 1967 to July 17, 1967, and from September 2, 1967 to September 5, 1967, in violation of Article 86, Uniform Code of Military Justice (UCMJ), and willfully disobeying lawful order to get out of bed, disobeying order to undress so he can be searched, unlawfully carrying a concealed weapon (knife) and using disrespectful language toward a superior officer, in violation of Article 91, UCMJ. The Appellant was sentenced to reduction to a Private E-1, forfeit $50 per month for three months and confinement to hard labor for three months. On February 21, 1968, the Appellant was again convicted at Special Court Martial for willfully disobeying a lawful order to get up and turn in bedding, disobeying order to get off of the bunk he was seated on, willfully damaging the upper bunk adaptors by twisting the metal frame loose from the metal bunk frame, using disrespectful language toward a superior officer, and wrongfully urinating through the cell doors into the center aisle of cell #3, in violation of Article 91, UCMJ. The Appellant was sentenced to reduction to a Private E-1, forfeit $68 per month for four months, and confinement to hard labor for four months. On October 28, 1968, the Appellant was convicted at Special Court Martial for wrongfully possessing 0.28 grams of marijuana while at a camp in the Republic of Vietnam on September 17, 1968, in violation of Article 134, UCMJ resulting in reduction to Private E-1, confinement to hard labor for six months, and forfeit of $78 pay per month for six months. In May 1969, the Appellant's commander initiated an administrative separation against the Appellant and notified him of his recommendation for discharge under other than honorable conditions for unfitness by reason of misconduct. The Appellant's commander advised the Appellant of his rights and the Appellant, having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. The separation authority directed the Appellant's discharge under other than honorable conditions by reason of unfitness due to misconduct. The Appellant's DD Form 214 shows that he was discharged on May 29, 1969 under other than honorable conditions. There is no evidence that the Appellant has submitted a request to upgrade his discharge to the Department of the Army Discharge Review Board (ADRB). Based on the above, 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. The Appellant has not specifically claimed to be insane at the time that he committed his criminal offenses. However, the Appellant alleges that he had suffered from psychiatric symptoms in service and has a subsequent diagnosis of unspecified trauma-related disorder in December 2018. 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). The Board finds that there is insufficient medical evidence of record to determine whether the appellant was insane at the time his in-service offenses, and the Board is unable to independently make such a medical determination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, given the evidence of record reflecting that the Appellant may have had psychiatric impairment in service, the Board finds that medical development is warranted on the issue of his mental state at the time of the misconduct that led to his May 1969 discharge. The matters are REMANDED for the following action: 1. Schedule the Appellant a VA examination by an appropriate clinician, as to whether the Appellant was insane at the time of the misconduct that led to his May 1969 discharge. Specifically: a. Did the Appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his periods of misconduct during service? b. Did the Appellant, due to disease, interfere with the peace of society concurrent with his periods of misconduct during service? c. Did the Appellant, due to disease, depart (became antisocial) 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 concurrent with his periods of misconduct during service? 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 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. The examiner must provide a complete, well-reasoned rationale for any opinion offered. If a requested opinion pertaining to service connection cannot be rendered without speculation, the examiner must state in the examination report whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. T. MAINELLI 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.