Citation Nr: 21075792 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-53 764 DATE: December 21, 2021 REMANDED Whether the character of the Appellant's discharge from active military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, to include health care benefits under Chapter 17, Title U.S.C. and 38 C.F.R. § 3.360(a) is remanded. REASONS FOR REMAND The Appellant had active service from March 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 administrative decision by the VA Regional Office (RO), which denied entitlement to VA benefit payments on the basis that Appellant's character of discharge for his period of service from March 1979 to December 1982 was found to be dishonorable for VA purposes, due to evidence of willful and persistent misconduct and the issuance of a Bad Conduct Discharge. In a June 2020 decision, the Board denied the appeal for eligibility for VA benefits. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), which in May 2021 granted a Joint Motion for Remand (JMR) of the parties (VA Secretary and the appellant), vacated the Board's decision, and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the JMR. 1. Whether the character of the Appellant's discharge from active military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits, to include health care benefits under Chapter 17, Title U.S.C. and 38 C.F.R. § 3.360(a) is remanded. The Appellant is seeking entitlement to VA compensation benefits. Specifically, he asserts that he was subjected to harassment due to having Hepatitis C, and that his misconduct was due to being harassed by his naval superiors. Alternatively, he also asserts that the character of discharge was too severe for the misconduct and he deserves to be recognized as a Veteran. In a January 2019 correspondence, the Appellant's representative stated that the appeal should be reviewed based on whether the Appellant was insane when he committed the acts leading to his discharge from military service. 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 veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). A veteran is 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); 38 C.F.R. § 3.1(d). 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). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of the period of service. 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars and (2) regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a former service member was discharged or released under one of the following conditions: (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 a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days, with certain exceptions. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, which includes, generally, conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and 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 when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, offenses that would interfere with the appellant's military duties, and preclude their performance are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1991). The Appellant was given a Bad Conduct Discharge due to misconduct. The RO determined that his service was dishonorable for VA purposes due to willful and persistent misconduct. There are two possible exceptions to the Appellant being barred from receiving VA compensation benefits for service from March 2, 1979, to December 13, 1982. If the Appellant's service was otherwise honest, faithful, and meritorious; or if the Appellant is shown to have been insane at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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 the question is whether an individual was insane at the time of an offense leading to 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 38 C.F.R. § 3.354(a). 38 C.F.R. § 3.354(b). Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 535 (2000). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and 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 establishing the Veteran was insane at the time of the offenses in question leading to the other than honorable discharge. 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. That determination is not warranted when the record does not show that a service member had insanity due to disease or that the service member did not know or understand the nature or consequences of the acts, or that what the service member was doing was wrong. Zang v. Brown, 8 Vet. App. 246 (1995). Significantly, the burden is on the appellant to submit competent medical evidence that the service member was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445 (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 did 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 that person's 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). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the service member was insane. 38 U.S.C. § 530(b). 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 (1995). 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). The insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). Factual Background In this case, the Appellant enlisted in the United States Navy on March 2, 1979, for a period of six years with four years of active duty and the remaining two years in the reserve component. The service separation form shows that the Appellant was discharged on December 13, 1982, with a Bad Conduct Discharge due to conviction at a Special Court Martial for misconduct involving an unauthorized absence and being Absent without Leave (AWOL). The Appellant's service separation form includes a separation code of JJK, which is the discharge code for court martial conviction. Review of the military personnel records shows instances of misconduct: In September 1979, the Appellant received nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) for wrongful possession of a controlled substance, namely hashish, in violation of Article 112a, UCMJ. He was sentenced to restriction to his ship for 30 days, extra duty for 30 days, and forfeiture of $150 per month for one month. In February 1980, the Appellant received nonjudicial punishment under the UCMJ for unauthorized absence for 13 days in violation of Article 86, UCMJ. He was sentenced to extra duty for 45 days, and forfeiture of $100 per month for two months. In July 1980, the Appellant received nonjudicial punishment under the UCMJ for unauthorized absence on three occasions, in violation of Article 86, UCMJ, and disobeying a lawful order, in violation of Article 91, UCMJ. He was sentenced to restriction to his ship for 30 days, extra duty for 30 days, and forfeiture of $100 per month for two months. In July 1980, the Appellant received nonjudicial punishment under the UCMJ for wrongful possession of a controlled substance, namely marijuana, in violation of Article 92, UCMJ. He was sentenced to forfeiture of $50 per month for one month. In August 1980, the Appellant received nonjudicial punishment under the UCMJ for unauthorized absence on six occasions, in violation of Article 86, UCMJ, and wrongfully disposing of military equipment, in violation of Article 109, UCMJ. He was sentenced to restriction to his ship for 45 days, extra duty for 45 days, and forfeiture of $150 per month for two months. In August 1980, the Appellant was counseled by his commander on his misconduct. The commander provided resources to the Appellant and advised him that further misconduct could lead to adverse action, to include charges under the UCMJ and administrative separation from the Navy. In June 1981, the Appellant's chain of command referred him to a Special Court Martial due to further misconduct. He was charged under the UCMJ with unauthorized absence, in violation of Article 86, UCMJ, and missing movement of his naval vessel, in violation of Article 87, UCMJ. He was sentenced to confinement at hard labor for three months, reduction to the rank of E1, and forfeiture of $330 per month for six months. He was also ordered to be discharged from the Naval service with a Bad Conduct Discharge. In September 1981, the Appellant was placed on leave pending appellate review of his conviction. In December 1982, the Appellant's General Court Martial Convening Authority approved the findings of the Special Court Martial and ordered that the Appellant be discharged, effective December 13, 1982. There is no evidence that the Appellant has sought a discharge upgrade from the Navy Board of Correction of Naval Records (NBCNR). Analysis Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the Appellant's discharge occurred as the result of willful and persistent misconduct. The Appellant's command attempted numerous rehabilitative efforts to assist the appellant in dealing with his misconduct, to include counseling. The rehabilitative efforts failed and the Appellant, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct, to include marijuana use, unauthorized absence, and missing movement of his naval vessel. The Appellant's repeated violations of the UCMJ is consistent with a finding that the Appellant's misconduct was both willful and persistent. At no time has he expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against him. He also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The Appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of serious misconduct that fundamentally interfered with his service duties and resulted in his separation from service for misconduct. The Appellant has not argued that his in-service misconduct was neither willful nor persistent. The definition of willful misconduct is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n). Rather, in his August 2017 Notice of Disagreement, the Appellant asserted that his misconduct was due to harassment that he was subjected to in the Navy. The Appellant did not specify how harassment resulted in his illegal use of drugs, or other misconduct, or somehow would support a finding that his actions were not willful or persistent. Despite the Appellant's contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The Appellant's misconduct occurred over a two-year period, and he continued to engage in misconduct despite being disciplined on several occasions. The Board finds that the Appellant's conduct, which shows the appellant using illegal drugs on two occasions, missing deployment of his ship, and numerous unauthorized absences, occurred despite the illegality of such behavior. The Board also finds, as did the Appellant's chain of command, that the Appellant's in-service misconduct was not minor, but it instead fundamentally interfered with his service duties. The only remaining defense to this regulatory bar to benefits is if the Veteran was insane at the time of committing the offenses causing discharge or release. The Appellant has not specifically claimed to be insane at the time that he committed his criminal offenses. However, in a January 2019 correspondence, the Appellant's representative raised the issue of insanity as a defense to the regulatory bar to VA benefits. 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, to afford the Appellant every opportunity to support his claim, the Board finds that a VA examination and opinion is warranted on the issue of the appellant's mental state at the time of the misconduct that led to his December 1982 Bad Conduct Discharge. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant's claim, to include updated VA and non-VA treatment records. 2. After completion of the above, please afford the Appellant a VA examination and obtain a medical opinion by an appropriate clinician, as to whether the Appellant was insane under VA regulations at the time of the misconduct that led to his December 1982 Bad Conduct Discharge. After examination of the Appellant, if deemed necessary by the clinician, 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 December 1982 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), as detailed above, that led to his Bad Conduct Discharge? 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. 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. 3. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Appellant and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. A. MARSH II Acting 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.