Citation Nr: 21013747 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-30 966 DATE: March 10, 2021 REMANDED Whether the character of the Appellant’s discharge is a bar to the receipt of VA compensation and pension benefits is remanded. REASONS FOR REMAND The Appellant served on active duty from March 26, 1971 to December 7, 1971. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2017 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio. A February 1979 VA administration decision determined that the Appellant’s Character of Discharge was under other than honorable conditions and was dishonorable for VA purposes and is considered a bar to VA benefits with no health care. The determination was based on the Appellant’s period of AWOL for 193 days, which is more than 180 days of AWOL. The Board finally denied this claim in April 1999. The Appellant then filed a new disability claim on the VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits that was received on November 30, 2016. He also submitted supportive documents regarding the claim. The VA notification letter dated March 10, 2017, denied the claim for reconsideration for the Character of Discharge. He submitted a VA Form 21-0958, Notice of Disagreement on March 31, 2017, with the denial of the claim for reconsideration for the Character of Discharge. In October 2019, the Board determined that new and material evidence had been received sufficient to warrant reopening the claim and remanded the claim for further development. 1. Whether the character of the Appellant’s discharge is a bar to the receipt of VA compensation and pension benefits is remanded. Unfortunately, this case must be remanded to the AOJ in light of actions the Appellant has taken during the pendency of this appeal with regard to appeals/claims filed before military service department review boards challenging the type or characterization of his December 1971 under Other than Honorable conditions discharge. The Appellant essentially seeks “veteran” status. He contends his character of discharge should not be a bar to VA compensation benefits, and that he had been suffering from psychiatric impairment, due to an assault which resulted in a traumatic brain injury, in service which contributed to his misconduct. In a September 2020 administrative decision, the AOJ determined that the Appellant’s character of discharge was a bar to VA benefits, to include compensation benefits, based on the Appellant’s in-service misconduct involving a period of prolonged AWOL. Turning to the evidence of record, the Appellant’s service personnel records show that he was discharged in December 1971 with an under OTH discharge. The service records indicate that the Appellant had the following misconduct: In April 1971, the Appellant was subjected to nonjudicial punishment for being Absent without Leave (AWOL), from April 5, 1971 to April 12, 1971, in violation of Article 86, Uniform Code of Military Justice (UCMJ). In November 1971, the Appellant was charged with being AWOL, from April 17, 1971 to October 27, 1971, in violation of Article 86, UCMJ, and placed into pre-trial confinement. On November 3, 1971, the Appellant submitted a request for discharge in lieu of standing trial at court-martial. On December 2, 1971, the command approved the Appellant’s voluntary request and he was discharged with an undesirable characterization of service. The Appellant filed a request to upgrade his character of discharge, with the Army Discharge Review Board. In an April 1990 decision, the ADRB affirmed the Appellant’s character of discharge and denied his request. There is evidence that the Appellant filed a request to upgrade his character of discharge, with the Army Board of Correction of Military Records in November 2020. Based on the above, the AOJ has determined that the character of the Appellant’s discharge from service is a bar to his entitlement to VA compensation benefits. However, the law provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge or, for a prolonged period of AWOL, if there are “compelling circumstances to warrant the prolonged unauthorized absence.” 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b), (c)(6) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated.” For purposes related to the character of discharge, 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). In May 1997, the 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 does 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 his normal method of behavior could best be 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, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases “interferes with the peace of society,” “become antisocial,” “accepted standards of the community,” and “social customs of the community.” Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term “constitutionally psychopathic” refers to a condition that may be described as an antisocial personality disorder. The term “become antisocial” refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. In this case, the Appellant has not specifically claimed to be insane at the time that he committed his criminal offenses. However, the Appellant alleges that he had suffered from psychiatric symptoms due to an assault in service. The Board notes that the Appellant’s service treatment records (STRs) of limited value on this matter. They consist largely of an entrance examination, immunizations, and routine medical care. There is no evidence that the mental health evaluation conducted during service considered the possibility that the Appellant was suffering from a psychiatric condition. In an August 1992 note, the examining psychiatrist opined that the Veteran had psychiatric symptoms and cognitive deficiencies as a result of organic brain syndrome. In a January 2017 correspondence, a private neuropsychologist diagnosed the Appellant with TBI and noted psychiatric symptoms with functional impacts. However, the clinician did not provide an opinion on the issue of insanity at the time of the Appellant’s misconduct. 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). Therefore, given the contentions raised, the Board finds that development is warranted regarding the Appellant’s mental state at the time of the misconduct that led to his December 1971 discharge. The record also reflects that the Appellant initiated a claim with the Army Board of Corrections of Military Records (ABCMR). In a February 2020 correspondence, the Appellant stated that he submitted a request for a discharge upgrade to the ABCMR but had not received a final ABCMR determination. The Board finds that the Appellant’s submission to the ABCMR could materially impact the adjudication of the character of discharge claim. As such, the Board finds that a remand is necessary to determine whether the ABCMR has received and/or made a decision on the Appellant’s request for an upgrade to his discharge. While the Board regrets the delay necessitated by remand, further appellate action by VA on this claim must be stayed in light of the Appellant’s decision to pursue a claim before the ABCMR. Duro, supra; see also 38 U.S.C. §§ 5103(a), 7104(a) (decisions of the Board must be based on all of the evidence that is known to be available). As this finding could prove dispositive to the issue at hand, the Board finds that development is warranted on this issue. The matters are REMANDED for the following action: 1. Inform the Appellant that he may request copies of his ABCMR application and related documents from the ABCMR. Request that the Appellant provide VA a copy of his application to the ABCMR and any findings pertaining to the application for discharge upgrade. 2. Contact the ABCMR and request complete, legible copies of any final decisions or determinations pertaining to an application and/or appeal filed by the appellant with the ABCMR pertaining to the classification of his release/discharge from the Army. Copies of any documents received from ABCMR should be associated with the claims folder. 3. After completion of the above, if necessary, afford the Appellant a VA examination by an appropriate clinician, as to whether the Appellant was insane at the time of the misconduct that led to his December 1971 discharge. Specifically, the examiner should address the following: (a) Was the behavior that led to the Appellant's discharge in December 1971 due to psychiatric disability? (b) Was the Appellant insane at the time he engaged in the misconduct, detailed above, that led to his December 1971 OTH 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. The examiner must provide a complete, well-reasoned rationale for any opinion offered. If a requested opinion pertaining to service connection cannot be rendered without speculation, the examiner must state in the examination report whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. (continued on the next page) 4. After undertaking any further development deemed warranted, readjudicate the Appellant’s claim. If the claim remains denied, furnish the Appellant (and his representative) a supplemental statement of the case (SSOC) and afford him appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.