Citation Nr: 21012720 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-24 250A DATE: March 5, 2021 REMANDED The issue as to whether the character of the appellant’s discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) monetary and healthcare benefits is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from December 1976 to July 1982. A Board hearing was held before the undersigned Veterans Law Judge in September 2017, and a transcript of the hearing is of record. In February 2018, the Board remanded the issue on appeal for additional development. While the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s February 2018 remand directives, for the reasons discussed further below, the Board finds remand is necessary for additional development. In this case, the appellant’s claim for VA disability benefits was denied on the grounds that the character of his discharge from service is a regulatory bar to the receipt of VA compensation and healthcare benefits based on willful and persistent misconduct as found in a March 2020 VA administrative decision. A discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). Such discharge 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 causing such discharge or release. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Here, service records document that the appellant entered active duty in February 1976. The first two years of the appellant’s enlistment appear to be without any major incident or disciplinary infractions. The appellant received nonjudicial punishment (NJP) in April 1977 for pushing another service member who fell in such a way as to break a glass window, resulting in the destruction of government property. In May 1978, the appellant received NJP for failing to monitor sentry reports. Despite those incidents, the appellant graduated from his military occupational school in the top 20 percent of his class as shown in a May 1977 Report of Separation from Training. In September 1978, the appellant received a Meritorious Mast for participation in an Inspecting General’s Inspection. The appellant was reported to have shown outstanding and professional enthusiasm and a high level of personal pride, and was reported to be a credit to the enlisted ranks and an excellent example for fellow Marines. Additionally, from December 1976 to January 1979, the appellant received generally “excellent” proficiency and conduct evaluations. Shortly after the appellant’s transfer to a new command in September 1978, service records document a multitude of disciplinary infractions, including NJP in March 1979 and December 1979, a summary court martial in February and May 1980 for a number of offenses, and a special court martial in September 1980 and March 1981 for a number of offenses. The March 1981 special court martial sentenced the appellant to confinement at hard labor for four months, forfeiture of $250.00 per month for four months, and a bad conduct discharge. The appellant reportedly claimed he was not guilty of any of the offenses charged in the March 1981 special court martial that resulted in his bad conduct discharge as shown in a February 1981 Prisoner’s Admission Summary Data. The February 1981 Prisoner’s Admission Summary indicated the appellant was unable to remain out of trouble long enough to be administratively separated from service, that the appellant blamed his unit for his present difficulties, that the appellant accepted no responsibility for his problems, and that the appellant would probably not function outside of a prison environment. In an April 1981 Request for Clemency, the appellant requested that he receive a general, under honorable conditions, discharge because of his proficiency and conduct marks during service. Additionally, the appellant reported that he did not believe the offenses for which he was convicted warranted a bad conduct discharge. An April 1981 psychiatric evaluation associated with the special court martial proceedings provides very little information concerning the appellant or his mental status. The provider reported only that the appellant demonstrated no signs of psychosis or neurosis, and that the appellant’s motivation and potential for honorable service was poor. A June 1981 Prisoner’s Progress Summary reported the appellant had neglected to shower and keep himself clean, and that the appellant had made a poor adjustment to confinement. However, it was also reported that the appellant was capable of performing his work whenever he chose to do so, with training reports fluctuating from average to outstanding evaluations. In June 1981, the appellant was placed on leave awaiting appellate review of his special court martial sentence to a bad conduct discharge. The appellant’s sentence to a bad conduct discharge was executed in July 1982 as shown in a July 1982 Supplementary Special Court Martial Order. A December 2010 correspondence from the appellant’s sister, P.E. reported the appellant was a model Marine when he entered service, and was very proud of being in the service. P.E. stated that the appellant had always been considerate, well-mannered, and never involved in any trouble, except for an incident where he pushed someone in self-defense while still in training in the Marine Corps. P.E. indicated that the family had not heard from the appellant after his transfer to a new command in September 1978. P.E. indicated that she went to the appellant’s duty station to find him, and was directed to the correctional facility. P.E. reported that when the appellant came out to see her, he was staggering, shaking his head, repeating himself, and that he appeared deranged and confused, and disheveled and unclean. Shortly after that visit, P.E. reported the appellant arrived home from the Marine Corps, and still appeared, confused, incoherent, disheveled, and unclean. P.E. reported that she took the appellant to a VA hospital to obtain help. P.E. reported the appellant had never talked to family about his experiences in the Marine Corps. Statements from other family members also report that the appellant was a totally different person when he came back from the Marine Corps as shown in an August 2013 letter from D.H., a July 2013 letter from P.E., and a July 2013 letter from U.C. In an April 2011 psychiatric evaluation, Dr. C.B.M. indicated the appellant reported he had been in the service for several years, but was discharged for unclear reasons. Dr. C.B.M. reported it was possible the appellant may have had undiagnosed schizophrenia for a long time, with largely negative symptoms. In an August 2011 psychiatric evaluation, Dr. D.M.L. reported it was possible the onset of the appellant’s current diagnosis of schizophrenia occurred when he was in the Marine Corps, and that it would be helpful to review those psychiatric records. Although the service medical records appear to be incomplete, all available service records have been associated with the claims file as shown by an October 2018 Personnel Information Exchange System (PIES) Response. The Board finds the question as to whether the appellant was insane, as defined by VA regulations, at the time of the misconduct resulting in his bad conduct discharge has been raised by the record. 38 C.F.R. § 3.354. 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. Gardner v. Shinseki, 22 Vet. App. 415 (2009). The Board finds that remand is necessary to obtain a medical opinion as to whether the appellant had a mental disorder at the time of his misconduct during service that resulted in insanity, before an informed decision can be made on the question of insanity. Additionally, as the appellant’s sibling indicated in December 2010 correspondence that the appellant received VA treatment pertaining to a mental condition following service, the AOJ should attempt to obtain any VA treatment records on remand. The matters are REMANDED for the following action: 1. Obtain any VA treatment records for the appellant, to include any VA treatment records shortly after separation from service as noted by the Appellant’s sister in December 2010 correspondence. Document all requests for information and responses in the claims file. 2. Then, refer the claims file to a psychologist or psychiatrist. The examiner must review the claims file and should note that review in the report. Following a review of the claims file, a psychologist or psychiatrist should provide a medical opinion as to whether, at the time of the misconduct that led to his bad conduct discharge, the appellant exhibited, due to disease: (1) a more or less prolonged deviation from his normal method of behavior; or (2) interference with the peace of society; or (3) so departed (became antisocial) from the accepted standards of the community to which by birth and education he belonged, that he lacked the adaptability to make further adjustment to the social customs of the community in which he resided. The need for an examination is left to the discretion of the psychologist or psychiatrist. A complete medical rationale for all opinions expressed should be provided. 3. Then, readjudicate the issue on appeal. If any decision is adverse to the Appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate 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.