Citation Nr: 21069285 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 10-30 701 DATE: November 18, 2021 ORDER The Appellant's character of discharge for the period from May 3, 1982 through September 18, 1984, constitutes a bar to payment of Department of Veterans Affairs (VA) benefits; the appeal is denied. FINDINGS OF FACT 1. During the period of the Appellant's active military service, he received nonjudicial punishment for no less than four violations of the Uniform Code of Military Justice (UCMJ), including charges of illegal drug use and two incidents of unauthorized absence, spanning a period of approximately two years. 2. The Appellant's numerous violations of the UCMJ represent willful and persistent misconduct which resulted in his discharge under other than honorable conditions. 3. The Appellant's misconduct was willful and persistent, it was not offset by otherwise honest, faithful, and meritorious service. 4. 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 met the characteristics required to be defined as "insane" in accordance with 38 C.F.R. § 3.354 at the time of his misconduct. CONCLUSION OF LAW The character of the Appellant's service, from May 3, 1982 through September 18, 1984, 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 served on active duty in the United States Navy from May 1982 to September 1984. A Board hearing was held in June 2012, and transcript of the hearing is of record. In an April 2020 letter, VA notified the Appellant that the Veterans Law Judge who conducted the June 2012 hearing is no longer available and that his appeal would be assigned to another Veterans Law Judge for decision. To date, the Appellant has not requested another optional Board hearing. Historically, the Appellant submitted a claim for entitlement to service connection for posttraumatic stress disorder in September 2008. See September 2008 VA Form 21-526. In an August 2009 VA decision, the Appellant's claim was denied on the grounds that VA was unable to obtain proof of the appellant's active military service. The Appellant timely perfected his appeal of the August 2009 VA decision. In May 2014, the Board remanded the issue of entitlement to status as a veteran for purposes of VA benefits. The Board noted that there were serious discrepancies in the identifying information contained on the service discharge record (DD Form 214) and the Appellant's application for VA disability compensation benefits, to include the social security number, the date of birth, dates of service, the enlisted rank upon separation, and reason for separation from service. The Board remanded the appeal for the agency of original jurisdiction (AOJ) to attempt to verify the Appellant's service and, if necessary, to make an initial determination as to whether the Appellant's character of discharge is a bar to VA benefits. In a November 2019 VA administrative decision, the AOJ determined the Appellant served in the United States Navy from May 1982 to September 1984 under an invalid social security number, and not his verified social security number. See January 2018 identification materials; see also October 2019 Social Security Administration National Records Center reply. Additionally, in the November 2019 VA administrative decision, the AOJ determined the character of the Appellant's discharge from service under other than honorable conditions is a bar to the receipt of VA compensation benefits based on willful and persistent misconduct. 1. Whether the Appellant's character of discharge for the period from May 3, 1982 through September 18, 1984 constitutes a bar to payment of VA benefits, other than health care under Chapter 17, Title 38, United States Code. 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 had symptoms of a head injury or other conditions that caused "black-outs" 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). Character of Discharge 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). 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 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 Navy on May 3, 1982. He was discharged under Other than Honorable (OTH) conditions for misconduct. His separation certificate indicates a separation code of HKA for discreditable incidents with civilian or military authorities. A review of the Appellant's service personnel records (SPRs) indicate several incidents of misconduct, to include several violations of the Uniform Code of Military Justice (UCMJ). The violations included the following: In February 1983, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 134 for wrongful use of a habit-forming drug or marijuana. He was found guilty and sentenced to forfeit $286.00 pay per month for two months, to perform extra duty and be restricted to the unit area for 45 days. In September 1983, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 91, for insubordinate conduct, and Article 134 (The specific information related to the Article 134 charge is unavailable). He was found guilty and sentenced to forfeit $50.00 pay per month for one month, to perform extra duty and be restricted to the unit area for 45 days. In February 1984, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 86 for unauthorized absence. He was found guilty and sentenced to be reduced to the rank of E-2 (which was suspended for six months), to forfeit $100.00 pay per month for one month, to perform extra duty for 20 days. In July 1984, the Appellant was subjected to nonjudicial punishment under Article 15, UCMJ, for violating Article 86 for unauthorized absence. He was found guilty and sentenced to be reduced to the rank of E-2, to forfeit $100.00 pay per month for one month, to perform extra duty and be restricted to the unit area for 30 days. In August 1984, the Appellant's company commander initiated an administrative separation action based upon the Appellant's pattern of misconduct. The Appellant's supervisors and chain of command submitted recommendations in support of elimination based on the unsatisfactory nature of the Appellant's duty performance and potential for continued service. In August 1984, the Appellant underwent a command-directed urinalysis which was positive for the use of marijuana. In September 1984, the Commanding Admiral approved the administrative separation and ordered that the Appellant be discharged with an under other than honorable discharge. The Appellant was discharged on May 28, 1984, with an under OTH conditions discharge certificate. There is no evidence that the Appellant has filed an application with the Navy Discharge Review Board 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 Board finds that the Appellant's actions, which resulted in non-judicial punishment and an administrative separation for violations of the UCMJ involving drug use, insubordinate conduct, and unauthorized absences constitute a pattern of willful and persistent misconduct and are a regulatory bar to VA benefits as defined under 38 C.F.R. § 3.12(d)(4). This pattern of misconduct clearly reflects deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). As such, there is a regulatory bar to VA benefits in this case. The Appellant exhibited multiple willful actions that led to the charges against him, including multiple incidents of using illegal drugs despite having been informed of the consequences of illegal drug use during enlistment. He did so even after receiving nonjudicial punishment for his first drug offense. He also engaged in misconduct, to include being absent without authorization, despite being counselled and disciplined by his chain of command. Additionally, the Appellant was under a suspended punishment of reduction in rank from his February 1983 nonjudicial punishment which would take effect in the event of further misconduct. Despite knowledge of the consequences of further misconduct, to include imposition of a reduction in rank, the Appellant engaged in misconduct by being absent without authorization. Here, 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. Therefore, the Appellant's multiple violations of the UCMJ demonstrate willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445 (1995). Moreover, the Board cannot consider the Appellant's offenses 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 (specifically including drug use) 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 due to drug use and unauthorized absences are the type of conduct that would interfere with his military duties. The Board has considered if there are any other reasons to set aside the regulatory bar 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 Appellant asserts that his conduct was affected by a head injury or neurological condition. A 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. For VA purposes, an "insane person" is defined as 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). 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. Beck v. West, 13 Vet. App. 535 (2000); Zang v. Brown, 8 Vet. App. 246 (1995); 38 C.F.R. § 3.354(a). The Board also finds that the Appellant was not insane at the time of his willful and persistent misconduct. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant's other than honorable discharge should not act as a bar to the grant of veterans' benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). The Appellant's service treatment records (STRs) indicate that he was treated in September of 1983 for "black out episode of unknown etiology." He also did not report that they were in any way related to alcohol, but instead noted a motorcycle accident approximately five years prior to September 1983. He noted this accident was the initial inciting event that led to his experiences of intermittent "black-outs." The September 1983 evaluation noted indicated possible diagnoses of "affective disorder" and "mixed personality disorder." The Appellant also had psychiatric evaluation in October 1983 that noted mixed personality disorder with passive aggressive tendencies and possible affective disorder reporting a "two to three-month" history of "black-outs" that "occur at any time during the day or night." Here, the Appellant was specifically evaluated in September 1984 to determine his physical and mental status, and he was cleared to face administrative action. None of the evidence contained in service records prior to separation suggest that the Appellant was insane at that time, or at the time of the offense, nor do any other medical records. A medical examination, conducted in conjunction with the Appellant's separation, found him medically qualified for separation. 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 September 1984 discharge. Based on the evidence of in-service psychiatric symptomology, the AOJ sought a VA opinion from a clinical psychiatrist. In April 2021, a VA examiner conducted a detailed clinical analysis of the Appellant's medical history and provided an opinion that it is less likely than not the Appellant was insane at the time of his in-service misconduct. Specifically, the April 2021 VA psychiatrist opined that Available information, based on STRs, DPRIS, Medical Treatment records, and other contemporaneous records, indicate that claimant suffered from PTSD, anxiety, depression and several substance use disorders including alcohol, cocaine, nicotine and cannabis at different times. Though it is unclear which, aside from substance use disorders, were present during his time in service. His descriptions of trauma range from being service related to incidents that occurred long after service. He also described a head injury sustained prior to service and during service that may have contributed to his black-outs, but given the inconsistencies in both contemporaneous records and more recent records spanning the last decade, it is not possible to determine if it was a contributing factor to his behaviors that result in his Other Than Honorable Discharge. The histories obtained from these records are largely inconsistent with each other. His descriptions at time of enlistment did not include descriptions of teenage alcohol and illicit substance abuse as his later treatment records indicated from his own descriptions. It is not uncommon to withhold this type of information on enlistment paperwork, however, the records contained a significant number of additional discrepancies that were too discrepant to reconcile. The additional history noted from the various Medical Treatment Records, STRs and CAPRI are highly inconsistent with each other and have little to no probative value relating to the question in this matter. Given the number of possible psychopathologies known to cause intermittent "black-out" or dissociative events are limited in number in general, it is unlikely that any aside from substance abuse contributed in this case. The claimant has a long history of substance abuse which he described beginning in his early teenage years from his medical treatment notes dating from (January 2010 to 2020), it is more likely that his black-outs were related to substance abuse and not other forms of psychiatric illness known to cause dissociative episodes. In summary, it is clear from this record that the claimant was experiencing symptoms of substance use disorders, but it not clear that other psychopathology was present at the time of the behaviors that resulted in his Other Than Honorable Discharge. The VA clinical psychiatrist further opined that In a further effort to find in the best interests of the claimant, the undersigned attempted to author an opinion of alternative findings implicating a mental illness or traumatic brain injury as relating to the actions that resulted in his Other Than Honorable Discharge; however, the data was insufficient to support this finding. Based on these statements, he does not fulfill the simultaneity criteria for the VA's definition of insanity. 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. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The evidence indicated that his actions were primarily associated with antisocial personality disorder and the use of illicit substances. Character disorders, such as antisocial personality disorder, are not considered a disease or injury for the purposes of VA disability compensation. Additionally, behavior associated with substance abuse disorder is not generally considered to fall within the scope of the term "insanity." The evidence suggests that the Appellant's behavior was not a more or less prolonged deviation from his normal behavior, as due to disease. Rather, he engaged in misconduct for the majority of his military service, and is consistent with behavior, to include drug use, prior to service. As such, the evidence indicates that the behavior was consistent over time, not a deviation. The evidence also suggests that the Appellant's behavior did not interfere with the peace of society, as due to disease. 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. The Appellant's records are silent as to the presence of a major mental illness or personality disorder in service. The competent medical evidence of record overwhelmingly suggests the Appellant was not insane at the time of his in-service misconduct. Therefore, the Board finds that there is no evidence that suggest the Appellant was insane at the time of his in-service misconduct. Additionally, as noted above, the evidence does not indicate that the Appellant applied for an upgrade to the character of his discharge by the NDRB or NBCNR. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge. In sum, the foregoing evidence shows that the Appellant was discharged as a result of misconduct, to include illegal drug use, insubordinate conduct, and unauthorized absences, 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. KRISTI L. GUNN 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.