Citation Nr: 21006492 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 07-24 267A DATE: February 4, 2021 ORDER The appellant was insane, per VA regulation, at the time of the commission of the offenses underlying his other than honorable discharge; thus, the regulatory bar to VA compensation benefits has been lifted and the claim is granted. FINDINGS OF FACT 1. The appellant entered active duty in October 2001. 2. During service, he received multiple non-judicial punishments (NJP) for offenses including failure to go to his place of duty, communication of disrespect, communication of a threat, willfully disobeying a lawful order, violation of a lawful general order, and attempted breaking of restriction. 3. The appellant was discharged under other than honorable conditions due to misconduct. 4. October 2006 and November 2020 administrative decisions determined that the appellant’s discharge was dishonorable for VA purposes due to his willful and persistent misconduct. 5. Resolving reasonable doubt in favor of the appellant, he was insane, per VA regulations, at the time of the commission of the acts underlying his discharge. CONCLUSION OF LAW The appellant was insane at the time of the commission of the offenses underlying his other than honorable discharge, and thus the regulatory bar to the payment of VA benefits is lifted. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty service with the United States Navy from October 2001 to September 2002. He received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from an October 2006 Regional Office (RO) decision. This case has a significant procedural history. The Board denied entitlement to benefits in March 2012, November 2014, and June 2016. The Court of Appeals for Veterans Claims (Court) vacated these denials pursuant to Joint Motions for Remand (JMR) in November 2012, July 2015, and March 2017. The Board subsequently remanded this issue again in March 2018 and March 2020 for additional evidentiary development on the issue of insanity. The matter has since returned to the Board for adjudication. 1. The appellant was insane, per VA regulation, at the time of the commission of the offenses underlying his other than honorable discharge; thus, the regulatory bar to VA compensation benefits has been lifted The appellant contends that he is entitled to status as a veteran for purposes of VA compensation benefits as he was “insane,” per VA regulations, at the time of the offenses underlying his other than honorable discharge. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual’s legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101 (2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term “Veteran” means “a person who served in the active military, naval, or air service, and who was discharged or released there from 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). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars and regulatory bars. See 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: as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court-martial; resignation by an officer for the good of the service; as a deserter; as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and 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 as afforded in the regulation. See 38 U.S.C. § 5303 (a); 38 C.F.R. § 3.12 (c). If there is no statutory bar, VA must then 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: acceptance of undesirable discharge in lieu of trial by general court- martial; mutiny or spying; offense involving moral turpitude; willful and persistent misconduct; and homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12 (d). 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 Veteran was insane. 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 or her normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which she resides. 38 C.F.R. § 3.354 (a). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). If no statutory or regulatory bar exists, VA will find that the individual qualifies as a veteran because he was discharged under conditions other than dishonorable. Turning to the facts of this case, the appellant’s DD-214 reflects a discharge under other than honorable conditions due to misconduct. His limited personnel records reflect a number of disciplinary offenses during service. In May 2002, he was found to have failed to go to the appointed place of his duty with multiple specifications. In July 2002, he again received NJP for multiple specifications of failure to go to his appointed place of duty. In August 2002, he received NJP for communication of disrespect and communication of a threat. Later the same month, he willfully disobeyed a lawful order, and again communicated disrespect. In September 2002, he received NJP for attempting to break restriction and violation of a lawful general order. The appellant reported multiple instances of harassment and assault from fellow service members during his service. A June 2002 informal grievance memorandum reflects the details of some of these complaints. Service treatment records also reflect complaints of assault in conjunction with various contusions or bruises. In January 2002, the appellant underwent a mental health evaluation, which did not diagnose him with a psychiatric disorder. In May 2002, the appellant presented for treatment slightly agitated, indicating that he was having difficulty with a service member, and he wanted to kill him. He reported feeling victimized in his division. The diagnosed assessment was homicidal ideation vs. adjustment disorder. At that time, it was felt that he needed to develop better coping skills. A separation examination is not of record. The Naval Discharge Review Board (NDRB) denied upgrading the appellant’s discharge in March 2004 and March 2010. There have been multiple medical opinions of record from both VA and private clinicians. Deficiencies in these previous opinions have been well documented in previous Board decisions, as well as the Court’s JMRs. Thus, the Board will focus on the most recent opinion. In September 2020, a VA examination report was authored based upon a review of the appellant’s extensive file and multiple conflicting medical opinions. The appellant was diagnosed with bipolar disorder, and the examiner concurred with previous opinions substantiating his claimed in-service sexual assault. The examiner stated that the appellant’s diagnosis of bipolar disorder was at least as likely as not incurred in service, but the condition was not appropriately diagnosed or treated at that time. The examiner concluded that the appellant displayed “a more or greater deviation from his normal behavior” during his in-service misconduct, which followed a consistent pattern of dysregulated and abnormal behavior displayed before and after service, but such was distinct from his active duty service behaviors. The appellant also, due to disease, departed from the normally accepted and desired behavior of his community of origin as evidenced by the disciplinary actions taken against him during active duty ultimately resulting in his separation from service. After a thorough review of the evidence of record, the Board finds that the appellant’s circumstances underlying his discharge amounted to willful and persistent misconduct, which constitutes a regulatory bar to VA compensation benefits. However, the competent, probative medical evidence of record establishes that the appellant met the definition of “insanity” at the time of the commission of the underlying offenses; thus, the regulatory bar to benefits must be lifted. The September 2020 medical opinion supports a finding of insanity. While the VA examiner did not find that the appellant met all three aspects of insanity, the regulations do not require that each prong be met. 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 or her normal method of behavior; or who interferes with the peace of society; or who has departed (become antisocial) from the accepted standards of the community to which by birth and education he/she belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he or she resides. 38 C.F.R. § 3.354 (a) (emphasis added). Accordingly, the appellant need not satisfy all three subparts in order to establish insanity. The examiner determined that his behavior displayed a more or greater deviation from his normal behavior during his in-service misconduct, and, due to disease, departed from the normally accepted and desired behavior of his community of origin. As a result, the appellant meets the criteria for a finding of insanity sufficient to remove the regulatory bar to VA compensation benefits. In sum, while the character of the appellant’s discharge was a bar to VA compensation benefits, evidence of record establishes that the appellant met the definition of “insanity” at the time of the commission of the offenses underlying his discharge. The finding of insanity lifts this statutory bar to benefits, and the Board finds that the appellant is entitled to VA compensation benefits. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.