Citation Nr: 21076409 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-34 398A DATE: December 23, 2021 ORDER The character of the Appellant's discharge from service is not a statutory or regulatory bar to the payment of Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. During service, the Appellant was charged with wrongful possession of marijuana, and requested a discharge for the good of the service. 2. The Appellant accepted an undesirable discharge in order to escape trial by general court-martial, and was discharged from military service in February 1971. 3. The Appellant was insane, as defined by VA regulations, at the time of the offenses that resulted in his discharge. CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA benefits have been met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty with the United States Army from February 1969 to February 1971; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 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. The Appellant testified in support of this claim during a hearing before the undersigned Veterans Law Judge in April 2018. This case was previously before the Board in July 2020, when the appeal was denied. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR). In July 2021, the Court granted the JMR, vacating the Board decision denying entitlement to the payment of VA benefits based on the character of discharge, and remanding the case for further proceedings. The case has been returned to the Board at this time for further appellate review. Whether the character of the Appellant's discharge from service constitutes a bar to the payment of VA benefits The Appellant contends that he should be entitled to recognition as a veteran, in order to obtain VA benefits. Alternatively, he asserts that he had psychiatric impairment at the time of his misconduct, sufficient to be considered insane, which would qualify as an exception to the statutory bars to payment of VA benefits. VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). A discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude, which generally includes conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). There are also statutory bars to the payment of benefits, none of which are relevant or applicable in this case. See 38 C.F.R. § 3.12(c). A discharge or release from service under any of the conditions specified in section 3.12 is a bar to the payment of benefits unless it is found that the person was "insane" for the purposes of VA regulations at the time of committing the offense causing such discharge or release, or unless specifically provided by 38 U.S.C. § 5303(b). 38 C.F.R. § 3.12(b). Insanity 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); see also VAOPGCPREC 20 97 (May 22, 1997). Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. VAOPGCPREC 20-97 (May 22, 1997). A determination of the extent to which an individual's behavior must deviate from his or her normal method of behavior is best resolved by adjudicative personnel on a case-by-case basis. Id. 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. See Beck v. West, 13 Vet. App. 535, 539 (2000). Importantly, mental illness is not identical to "insanity." Beck, 13 Vet. App. at 539. An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under 10 U.S.C. § 1552 is final and conclusive on VA. 38 C.F.R. § 3.12(e). Such an action sets aside any prior bar to benefits posed in section 3.12 of VA's regulations. Id. Here, the Appellant served on active duty with the U.S. Army from February 1969 to February 1971. He had combat service in the Republic of Vietnam as an infantryman, where he earned the Combat Infantryman Badge and a Bronze Star. The service records indicate the Appellant was apprehended on October 31, 1970, by members of the military police and investigators of the Criminal Investigation Division for possession of marijuana. The Appellant was found in possession of: one partially burned hand rolled cigarette containing 0.06 grams of marijuana; one plastic bag containing 24.75 grams of marijuana; 41 plastic bags containing a total of 333.40 grams of marijuana; and one brown paper bag containing 0.02 grams of marijuana. In December 1970, an investigator completed the investigation provided for by Article 32 of the Uniform Code of Military Justice. See 10 U.S.C. § 832 (1970). The investigator examined the physical evidence and statements by the military police officers who arrested the Appellant. The investigator recommended trial by general court-martial. The Appellant was charged with one violation of Article 134 for wrongful possession of a controlled substance, specifically 358.23 grams of marijuana. The maximum penalty for a charge of wrongful possession of a controlled substance was a dishonorable discharge and five years of confinement. See 10 U.S.C. §§ 855-58b, 912a. In December 1970, the Appellant's commanding officer forwarded the charge up the chain of command, recommending trial by general court-martial. The commanding officer stated that the court-martial charges would probably not be disposed of by Article 15 or special court-martial processes. In January 1971, the Appellant consulted with a defense attorney and submitted a request for discharge for the good of the service under Chapter 10 of the Army regulations. See AR 635-200. It appears the Appellant lined out the phrase "in lieu of trial by court-martial" in the first paragraph of his request, adjusting the text to read that he was "request[ing] discharge for the good of the service . . . for an offense punishable by a bad conduct or dishonorable discharge." There are no other notes on the document to explain this adjustment, and elsewhere in the document, references are made to the "commander exercising general court-martial jurisdiction over me [the Appellant]." Specifically, the final paragraph of the document notes a "contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge." In support of the Appellant's request for discharge for the good of the service, the commanding captain, lieutenant colonel, and colonel of his unit submitted recommendations for approval. The commanding captain recommended issuing the Appellant a general discharge; the captain noted the Appellant's clean record prior to this charge and his honorable tour in Vietnam. The lieutenant colonel also recommended a general discharge, but reported that the Appellant's behavior in the unit was generally immature and his performance undistinguished, requiring close supervision to maintain a fair level of performance. The colonel recommended an undesirable discharge, noting a growing problem of drug abuse in the service and asserting that those engaged in selling marijuana must be singled out and removed from the military. In January 1971, the General Court-martial Convening Authority approved the Appellant's request for discharge for the good of the service. The Appellant's DD Form 214 reflects a discharge under other than honorable conditions under the separation authority articulated in Army Regulation 635-200, which governs discharges in lieu of court-martial. The separation code also indicates discharge for the good of the service in lieu of court-martial. The Appellant initially filed a claim for VA benefits in August 1971, when he applied for education benefits. An August 1971 administrative decision denied the claim, finding that being apprehended with marijuana to use or sell meant that the offense involved moral turpitude. The Appellant testified at the April 2018 Board hearing that he has sought an upgrade to his other-than-honorable discharge on more than one occasion, though there are no corroborating records in the claims file showing such petitions with a board for correction of records noted in section 3.12(e), which in this case would be either the Army Discharge Review Board (ADRB) or the Army Board of Correction of Military Records (ABCMR). Nature of Appellant's Discharge The Appellant has asserted that his other-than-honorable discharge should not be considered dishonorable for VA benefits purposes because: (1) it was not obtained in order to escape trial by general court-martial; (2) the underlying misconduct did not involve moral turpitude; and (3) the underlying misconduct was not willful and persistent. As for the third argument, the Board is in agreement. The Appellant was only charged with one count of misconduct throughout his military service; there are no prior court-martials or nonjudicial punishments in his personnel records. The Board finds this cannot be described as willful and persistent misconduct. Next, regarding the second argument, the Board finds that the in-service offense did not involve moral turpitude. The regulation includes conviction of a felony as an offense involving moral turpitude. 38 C.F.R. § 3.12(d)(3). Although the possession charge would have carried a maximum sentence of five years, the Board first notes that the Appellant was never tried for the charge he received in December 1970, and therefore was not convicted of a felony. Further, VA's Office of General Counsel issued an opinion that defines "moral turpitude" as "a willful act committed without justification or legal excuse which gravely violates accepted moral standards and . . . would be expected to cause harm or loss to person or property." VAOPGCPREC 6-87 (July 27, 1987). The opinion states that a moral turpitude offense may include conduct that does not result in prosecution or conviction. The Board finds that the Appellant's misconduct in possessing a large amount of marijuana does not rise to this level of gravity. Finally, as to the first argument, the Board finds that the Appellant did accept the other-than-honorable discharge to escape trial by general court-martial. The Appellant asserted that his discharge was not obtained to escape a general court-martial because his charge had not been referred to the convening authority before his request for discharge. The Appellant argues that no general court-martial existed because the referral had not taken place, and therefore he could not escape the general court-martial by requesting a discharge for the good of the service. In support of his argument, the Appellant pointed to the rules governing referral of charges and to the recommendations for a general discharge from two leaders in his chain of command. The Board finds this argument unpersuasive. Although the general court-martial had not been convened prior to the Appellant's request for separation, the Appellant's commanding officer had already forwarded the charges up the chain of command and recommended a trial by general court-martial. The commanding officer had stated in his recommendation that the charges would probably not be disposed of by nonjudicial punishment or a special court-martial. Further, although the Appellant lined out the phrase "in lieu of trial by court-martial" in one paragraph of his request for separation, the remainder of the document clearly indicates that the request was made in the context of the process of a general court-martial. There are references to court-martial jurisdiction throughout the request, and the final paragraph specifies that a court-martial was contemplated for the Appellant for an offense punishable by a bad conduct or dishonorable discharge. The Board notes that only a general court-martial has the authority to impose a dishonorable discharge. 10 U.S.C. §§ 818, 819. Although the general court-martial had not yet been convened at the time the Appellant made his request for separation, the record indicates that, had the Appellant not made this request, he would have proceeded through the general court-martial process. Therefore, the Board finds that the request for discharge for the good of the service was made to escape trial by general court-martial. Further, the Appellant pointed to the two officers in his chain of command that supported approval of the request and recommended a general discharge. Although there was support for a general discharge, the Appellant was ultimately separated an undesirable discharge. The Appellant's request for discharge specified that he was aware an undesirable discharge may be furnished. That some of his supervising officers recommended a general discharge does not affect, after the fact, how his discharge was characterized. Therefore, the Board finds that the Appellant accepted an undesirable discharge to escape trial by general court-martial, and his discharge is considered to have been issued under dishonorable conditions for VA purposes. See 38 C.F.R. § 3.12(d)(1). As the Board has found the Appellant's other-than-honorable discharge to be dishonorable for VA purposes, the Appellant must show either that he was insane at the time of the misconduct that led to his discharge or that a board of correction of records upgraded his discharge to honorable or under honorable conditions. Although the Appellant testified that he has filed for an upgraded discharge, he has not asserted that his discharge was upgraded, nor do any records in the claims file indicate such an upgrade. Therefore, the question remaining before the Board is whether the Appellant was insane at the time of the misconduct that led to his discharge. Insanity If the Appellant is shown to have been "insane" under VA regulations at the time of the offense leading to his discharge, the bar to payment of benefits imposed by the nature of the Appellant's discharge will be lifted. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). In his October 2014 substantive appeal, the Appellant asserted that he believes his experiences in combat in Vietnam led him to drug use to cope with symptoms of PTSD, which was not diagnosed until after service. The Appellant submitted a private psychological evaluation completed in March 2009. The examiner, after performing a clinical evaluation, diagnosed the Veteran with posttraumatic stress disorder (PTSD). The examiner did not provide an opinion on the issue of whether the Appellant was insane at the time of his misconduct or discuss the Appellant's discharge in any manner in the evaluation. The Appellant was provided a VA examination in June 2020 in order to obtain an opinion regarding insanity at the time of the in-service misconduct. The VA examiner opined that it was less likely than not that the Appellant engaged in his misconduct as a result of insanity, because the record reflected fair conduct and efficiency levels during military service. The examiner opined that there was no evidence that the appellant's misconduct was the result of a psychotic disorder, and that the record, including a statement written by the Appellant in support of his request for discharge, did not indicate an individual with a severe psychiatric disorder. The examiner opined that the Appellant's PTSD symptoms were at least as likely as not influencing his behavior, as his personnel records indicated he needed close supervision in order to maintain a fair level of performance, but that these symptoms by themselves were not causing the Appellant to be insane at the time of the misconduct. In September 2021, the Appellant attended another private psychological evaluation. The examiner reviewed the Appellant's claims file and performed a clinical interview with the Appellant. The examiner noted the Appellant's testimony at the Board hearing that he felt he had made a huge mistake regarding his use of marijuana. During the interview, he reported that, at the time of his apprehension, he did not try to hide the marijuana because he did not think it was a big deal, and that marijuana use had been very common while deployed in Vietnam. The examiner opined that the Appellant was experiencing PTSD-related symptoms at the time of his misconduct, and that he was using marijuana to cope with the intrusive thoughts and negative self-perceptions he was having due to his experiences in Vietnam. The examiner further opined that the Appellant was insane under VA's definition at the time of his misconduct because he had so departed from the accepted standards of the community that he lacked the adaptability to adjust to the social customs of the community. The examiner also opined that it is likely as not that the Appellant had diverged from his normal method of behavior in using marijuana to self-medicate his PTSD. Upon review of the evidence of record, the Board finds that the Appellant was insane at the time of the misconduct that led to his discharge. Although the March 2009 private evaluation did identify a diagnosis of PTSD, it does not address the question of insanity. The Board finds the June 2020 VA examination to be inadequate, as it does not apply the correct definition as the basis for the opinion. The examiner opined that there was no evidence of a psychotic disorder or a severe psychiatric disorder, and that the record indicated fair conduct and efficiency levels during service. VA's definition of insanity does not require a certain level of severity of a psychiatric disorder, nor does it require psychosis; rather, the definition of insanity contemplates a prolonged deviation from the service member's normal method of behavior, interference with the peace of society, or a lack of adaptability to adjust to the social customs of the community. See 38 C.F.R. § 3.354(a). The VA examiner discussed the Appellant's PTSD symptoms at the time, but concluded that the symptoms were not causing him to be "insane" at the time of his misconduct. However, the Board does not find this opinion to be probative, as the examiner used an elevated standard to define insanity. The Board finds the September 2021 private evaluation to be persuasive and probative. It is based on the facts of the Veteran's circumstances, both by review of the record and by clinical interview, recites the correct definition of insanity, and offers a discussion with detailed support. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). The September 2021 private examiner opined that the Appellant was insane under VA's definition at the time of his misconduct in service, as he failed to adapt to the standards of his community in using marijuana to cope with his undiagnosed PTSD symptoms. The examiner further opined that this behavior was also a divergence from the Appellant's normal method of behavior. The Board notes that the examiner highlighted details from the record and the Appellant's interview, particularly that the Appellant did not perceive his use of marijuana at the time as a "big deal," but later described it as a huge mistake. As the probative evidence of record indicates that the Appellant was insane at the time of the misconduct that led to his discharge, basic eligibility to received VA benefits is established. M. C. GRAHAM 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.