Citation Nr: 21070253 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-43 060 DATE: November 23, 2021 ORDER The character of the Appellant's discharge for the period from July 8, 2009, through October 28, 2012, is not a bar to the payment of Department of Veterans Affairs (VA) benefits; to this limited extent, the appeal is granted. REMANDED Whether the character of the Appellant's discharge for the period from October 29, 2012, through October 21, 2014, is a bar to the payment of VA benefits is remanded. FINDINGS OF FACT 1. The Appellant satisfactorily completed his initial obligation to serve a period of three years and sixteen weeks, from July 8, 2009, through October 28, 2012. 2. The Appellant was not awarded a discharge or release from service for his initial period of service due to an immediate reenlistment in April 2012. CONCLUSION OF LAW 1. The character of the Appellant's discharge for the period from July 8, 2009, through October 28, 2012, is a not bar to the payment of VA benefits. 38 U.S.C. §§ 101(18), 5303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty with the United States Army from July 2009 to October 2014; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. 1. Whether the character of the Appellants discharge for the period from July 8, 2009, through October 28, 2012, is a bar to the payment of VA benefits In order to qualify for VA benefits, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12 (a); 38 U.S.C. § 101(2). The term "discharge or release" includes the satisfactory completion of the period of active service for which a person was obligated at the time of entry into such service where that person, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of its completion but would have, at the time, otherwise been eligible for the award of a discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18). In this case, the Veteran enlisted in the Army effective July 8, 2009, for a period of three years and sixteen weeks, which was scheduled to end October 28, 2012. On April 20, 2012, the Veteran agreed to an immediate reenlistment for a period of four years, and was not issued a discharge at this time. There are no charges and no punishments, non-judicial or by court-martial, in the Veteran's record prior to the completion of his initial period of obligation on October 28, 2012. In April 2012, at the time of his reenlistment, the Veteran was awarded a certificate indicating an honorable discharge for this first period of service. The Board finds that the Veteran, at the time of his completion of initial period of obligation on October 28, 2012, would have been eligible for the award of a discharge or release under conditions other than dishonorable. Therefore, the Veteran is not barred from the receipt of VA benefits based on this period of service. REASONS FOR REMAND 1. Whether the character of the Appellants discharge for the period from October 29, 2012, through October 21, 2014, is a bar to the payment of VA benefits is remanded. Typically, benefits are not payable where, as here, the former servicemember accepted an undesirable discharge to escape trial by general court-martial. 38 C.F.R. § 3.12(d)(1). However, a finding of insanity can lift this bar to benefits. 38 C.F.R. § 3.12(b). Here, the Appellant has filed a claim for service connection for posttraumatic stress disorder (PTSD) stemming from an incident that occurred while deployed to Afghanistan in 2010-2011. He submitted medical records indicating diagnoses of major depressive disorder, PTSD, and generalized anxiety disorder. These records also indicate the Appellant sought mental health treatment in July 2018 for symptoms involving the misconduct that led to his discharge. Given the evidence of record and the Appellant's service connection claim, the Board finds a remand is necessary to obtain a medical opinion as to whether the Appellant was "insane," as defined by VA regulations, at the time of the misconduct that led to his discharge. See Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009) (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 matters are REMANDED for the following action: Obtain a medical opinion from a psychologist or psychiatrist as to whether the Appellant had a mental disorder at the time of the misconduct that resulted in his separation under other than honorable conditions. The need for an in-person examination is left to the discretion of the examiner. Following a review of the claims file, and examination of the Appellant if deemed necessary, the psychologist or psychiatrist should offer an opinion as to whether the Appellant was "insane," as defined by VA regulations, at the time of the misconduct that led to his discharge under other than honorable conditions. The examiner should be advised that 38 C.F.R. § 3.354(a) defines "insanity" 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." The term "insanity" refers to a condition involving conduct which deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. VA's General Counsel has held that behavior which is generally attributable to a particular substance-abuse disorder does not exemplify the severe deviation from the social norm or gross nature of conduct which is generally considered to fall within the scope of the term insanity, and therefore, does not constitute insane behavior under 38 C.F.R. § 3.354(a). After review of the definition of "insanity," the examiner should respond to the following: 1) Did the Appellant, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service? 2) Did the Appellant, due to disease, interfere with the peace of society concurrent with his misconduct in service? (Continued on the next page) 3) Did the Appellant, due to disease, depart (become 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 misconduct in service? A complete medical rationale for all opinions expressed must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.