Citation Nr: 21014172 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-14 008A DATE: March 11, 2021 REMANDED Whether the character of the late-appellant's service is a bar to VA benefits is remanded. REASONS FOR REMAND The servicemember served on active duty from September 1966 to November 1969. He previously was the appellant in this matter. He passed away in October 2017. His wife has been substituted as the appellant. The servicemember will be referred to as the late-appellant in this decision, and his wife will be referred to as the current appellant. The Board notes that the late-appellant received the Purple Heart Medal for combat service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2004 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in June 2017 for additional development. The requested development has been completed and the case has been returned to the Board for further appellate review. 1. Whether the character of the late-appellant's service is a bar to VA benefits is remanded. While the Board sincerely regrets the additional delay, the Board cannot make a fully-informed decision on the issue of the character of the late-appellant’s service because no VA examiner has opined whether the late-appellant was insane as defined by VA at the time he committed the acts that led to his discharge. VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 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. 38 C.F.R. § 3.12(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.” 38 U.S.C. § 5303(b). Although the late-appellant’s discharge was upgraded from under conditions other than honorable to under honorable conditions, the upgrade was made pursuant to the President’s directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974. VA regulations expressly set forth that a discharge under this situation does not remove any bar to benefits. 38 C.F.R. § 3.12(h)(1). The matters are REMANDED for the following action: 1. Obtain a medical opinion by an appropriate clinician, as to whether the late-appellant (i.e. the servicemember) was insane under VA regulations at the time of the misconduct that led to his discharge. After review of the claims file, the examiner should respond to the following: (a) Was the behavior that led to the late-appellant’s discharge due to psychiatric disability? (b) Was the late-appellant insane (as specified by VA regulations) at the time he committed the misconduct, as detailed above, that led to her discharge in lieu of trial by Special Court Martial? In providing an answer to these questions, the examiner is advised that according to VA regulations, 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. Although an independent review of the claims file is required, the examiner’s attention is called to the following: service treatment records beginning in March 1969 in which the late-appellant asked to see a psychiatrist, was noted to have passive aggressive personality, was becoming more militant as far as civil rights, and underwent a psychiatric evaluation which detailed his symptoms; and statements, including a March 2007 statement, from the late-appellant in which he explained he hit the sergeant because he was under a lot of pressure and was called a very offensive racial slur. A 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. 2. 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 current appellant and her 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. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.