Citation Nr: 21015529 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-64 794 DATE: March 17, 2021 REMANDED The issue of whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Army from April 2002 to November 2005. He received a discharge under other than honorable conditions in lieu of a trial by general court-martial. This matter is on appeal from a July 2013 Regional Office (RO) decision. In January 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. 1. The issue of whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain a complete copy of the appellant’s service department records, as well as obtain a medical opinion with respect to his mental health during service. For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12 (a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) 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. 38 C.F.R. § 3.12 (c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12 (d). In the present case, the appellant was discharged in lieu of a trial by general court-martial, which is a regulatory bar to benefits under 38 C.F.R. § 3.12 (d) (1). 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 he/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). Insanity must be shown to exist, due to disease, only at the time of the commission of the offense leading to discharge, not that insanity caused the misconduct. Beck v. West, 13 Vet. App. 535, 539 (2000). In other words, there need not be a causal connection between the insanity due to disease and the misconduct. See Struck v. Brown, 9 Vet. App. 145, 154 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993) and abrogated on other grounds by Gardner v. Shinseki, 22 Vet. App. 415 (2009); see also VAOPGCPREC 20-97. The Board notes that the appellant’s representative requested that his service be separated into two distinct periods for rating purposes in the January 2021 hearing before the undersigned. Unfortunately, this is not possible as the appellant did not receive a conditional discharge under 38 C.F.R. § 3.13 during his service. He signed a four-year enlistment contract in February 2002. He did not sign a reenlistment contract, nor did he finish his obligated term of service without misconduct. Thus, separating his active duty service into distinct periods is not warranted in this case. After a thorough review of the available record, the Board has identified a number of deficiencies in the appellant’s service department records that should be remedied prior to adjudication on the merits. It appears that only the documents relevant to the facts and circumstances surrounding his discharge were procured, but not his complete service department record. Items missing from the file include documentation from his deployment and his performance reviews. Additionally, his DD-214, as well as corrected DD-215, do not reflect his foreign service time despite orders to Kuwait as provided by the appellant. While the DD-215 updated his medals to include an Iraq Campaign Medal with One Bronze Service Star, the correction did not add the time in which he served abroad. Given the omission of relevant documentation, as well as apparent inaccuracies, the appellant’s complete service department records must be sought on remand. Further, the appellant has asserted that the misconduct underlying his discharge was the result of his deployment overseas, to include changes in his mental health due to medications taken to treat physical injuries. The appellant’s limited personnel record presently before the Board reflects a number of negative counseling reports, a short period of absence without leave, and an investigation into his numerous infractions. The referred general court-martial addressed only a period of unauthorized absence from July 29 to August 2, 2005, and two instances of disobeying a lawful order. Pre-deployment records are unavailable for comparison to determine whether his conduct significantly changed after his deployment. Service treatment records do reflect an ankle injury, as well as a post-deployment back injury, and a significant list of medications taken to treat related symptoms. Post-service records document that the appellant is presently prescribed medication for his mental health and may be receiving private counseling services. Thus, there is sufficient evidence to at least indicate that his mental health may have contributed to the offenses underlying his discharge, and an examination is necessary on remand in order to determine whether he met the VA definition of insanity at that time. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete personnel records. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the appellant must be notified. 2. Attempt to obtain documentation related to the appellant’s application to upgrade the character of his discharge from the Department of the Army. If such cannot be obtained after reasonable efforts, inform the appellant, and allow him an opportunity to provide this documentation. 3. Contact the appellant and the representative of record in order to identify any relevant non-VA treatment records addressing the appellant’s mental health. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the appellant and the representative of record, and afford an opportunity to provide these outstanding records. 4. Following completion of the foregoing, schedule a VA examination by a specialist to assess the appellant’s mental state leading up to his discharge from service. The examination may utilize telehealth or other electronic means of interviewing if social distancing or pandemic restrictions remain in effect. The Board notes that if the requested specialist is not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. The specialist should review the entire claims file, including a copy of this remand. After a thorough review of the record, the specialist should discuss the following: (a.) Acknowledge understanding of the following definition of “insanity” per VA regulations: “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.” (b.) Is it at least as likely as not (a 50 percent or greater probability) that the appellant was insane, per the aforementioned VA regulation, at the time he committed the below offenses leading to his discharge from service? • Unauthorized absence from July 29 to August 2, 2005; and, • Two instances of disobeying a lawful order in July and August 2005. (c.) Please specifically discuss the impact of medications taken during service on the appellant around these in-service offenses. The examination report should specifically state that a review of the record was conducted. The specialist should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and his representative an opportunity to respond, and return the case to the Board. Eric S. Leboff 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.