Citation Nr: 21023451 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-04 031 DATE: April 20, 2021 ORDER The character of the Appellant’s discharge from military service is a bar to the receipt of Department of Veterans Affairs (VA) benefits; the appeal is denied. FINDINGS OF FACT 1. During his period of service, the Appellant was subjected to Special Court Martial for offenses including: unauthorized absences by failing to be at his appointed place of duty, disobeying and being disrespectful towards superiors. 2. The Appellant was discharged on September 27, 2009 with a Bad Conduct Discharge (BCD) due to conviction at Special Court Martial. 3. During his period of service, the Appellant’s in-service misconduct was willful and persistent and did not consist of mere minor offenses offset by otherwise honest, faithful, and meritorious service. 4. There has been no removal of any bar to VA benefits via an upgrade to the Appellant’s character of discharge or evidence showing that the Appellant was insane at the time of his offenses. CONCLUSION OF LAW The character of the Appellant’s service, from June 22, 2005 to March 6, 2009, is a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from June 22, 2005 to March 6, 2009. After conviction at a Special Court Martial for misconduct, the Appellant was discharged with a Bad Conduct Discharge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. In December 2020, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In January 2021, the Board remanded the appeal for further development. Whether the Appellant’s character of discharge is a bar to VA benefits. The Appellant seeks recognition as a Veteran for VA purposes. The Appellant contends that, despite his character of discharge, he should be entitled to VA benefits. He also asserts that he had narcolepsy and posttraumatic stress disorder (PTSD) in service which was responsible for his actions leading to his discharge. Relevant Law When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). A veteran is a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Thus, a discharge or release from a period of active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension 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). When a servicemember is given an other than honorable discharge by the service department, VA decides whether the character of such discharge is dishonorable for VA purposes. 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). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of the period of service. 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars and (2) regulatory bars. 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: (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, with certain exceptions. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must 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: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, which includes, generally, conviction of a felony; (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release because of willful and persistent misconduct is also considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). An act is willful misconduct when it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. 38 C.F.R. § 3.1(n). A discharge because of a minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. However, offenses that would interfere with the Appellant’s military duties, and preclude their performance are not minor. Stringham v. Brown, 8 Vet. App. 445 (1995); Cropper v. Brown, 6 Vet. App. 450 (1991). The Board finds that the Appellant’s service does not meet any of the statutory bars listed under 38 C.F.R. § 3.12(c)(1)-(6) such that the reason for his discharge is a bar to the payment of benefits. Specifically, the Appellant was not a conscientious objector, did not undergo a general court-martial, did not resign as an officer for the good of the service, was not a deserter, was not an alien during a period of hostilities, and did not commit absence without official leave (AWOL) for a continuous period of at least 180 days. The Board will next consider the regulatory bars listed in 38 C.F.R. § 3.12(d). A discharge or release under the conditions listed under 38 C.F.R. § 3.12(d) are considered to have been issued under dishonorable conditions, and thus are a bar to the receipt of benefits. The provisions of 38 C.F.R. § 3.12(d) state that 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. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under any of the above conditions specified in 38 C.F.R. § 3.12 is a statutory or regulatory bar to the payment of benefits unless it is found that the person was “insane” at the time of committing the offense causing such discharge or release or unless specifically provided by 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). That is, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Thus, “insanity” is a defense to all statutory and regulatory bars, while “compelling circumstances” is only a defense to the statutory bar involving an AWOL period of at least 180 days. There is one possible exception in this matter to the Appellant being barred from receiving VA benefits for his period of service: if the Appellant is shown to have been “insane” at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who (1) while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more prolonged deviation from his or her normal method of behavior; (2) interferes with the peace of society; or (3) 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). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). However, mental illness is not identical to “insanity.” Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the Appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that “a determination of whether a person is insane is, in effect, a determination of whether the person’s actions were intentional, and, thus, the result of willful misconduct.” Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect an Appellant suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the Appellant to submit competent medical evidence that the Appellant was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, 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 or her normal method of behavior could be best 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 (May 22, 1997). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of Appellant. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The Board has reviewed all the evidence in the Appellant’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000). Factual Background In this case, the Appellant enlisted in the United States Army on June 22, 2005. The service separation form shows that the Appellant was discharged with a Bad Conduct Discharge on March 6, 2009, due to conviction at Special Court Martial for misconduct. The Appellant's service separation form includes a separation code of JJD, which is the discharge code for court martial. The Appellant’s military personnel record indicates numerous incidents of misconduct, to include numerous violations of the Uniform Code of Military Justice (UCMJ). In April 2007, the Appellant was charged with fourteen violations of Article 86, UCMJ, for failing to go to his appointed place of duty, four violations of Article 91, UCMJ, for failing to obey lawful orders, one violation of Article 91, UCMJ, for being disrespectful in his language towards a superior noncommissioned officer in the execution of his duties, and one violation of Article 115, UCMJ, for feigning a sleep disorder in order to avoid duty. The Appellant obtained legal advice from a defense counsel and pled not guilty to all charges. In July 2007, the Special Court Martial convened. After hearing prosecution and defense cases, the court martial panel found the Appellant guilty of the charges of fourteen violations of Article 86, UCMJ, for failing to go to his appointed place of duty, four violations of Article 91, UCMJ, for failing to obey lawful orders, one violation of Article 91, UCMJ, for being disrespectful in his language towards a superior noncommissioned officer in the execution of his duties. The Appellant was found not guilty of one violation of Article 115, UCMJ, for feigning a sleep disorder in order to avoid duty. The Appellant was sentenced to confinement for 30 days, reduction to the rank of E1, and to be discharged with a Bad Conduct Discharge. In July 2008, the Army Court of Criminal Appeals denied the Appellant’s petition to review his court martial conviction and found that “the findings of guilty and the sentence as approved by the convening authority correct in law and fact.” A March 2015 review of the Appellant’s discharge by the Army Board of Correction of Military Records (ABCMR) determined that the Appellant’s characterization of service was appropriate and that an upgrade was not warranted. There is no evidence that the Appellant has filed another application with the United States Army Discharge Review (DRB) or Army Board of Corrections of Military Records (ABCMR). Analysis In this case, the question at hand is whether the Appellant had engaged in willful and persistent misconduct during service. Turning to an analysis of the evidence, the weight of the evidence otherwise supports a finding that the Appellant’s discharge occurred as the result of willful and persistent misconduct. The Appellant’s command attempted numerous rehabilitative efforts to assist the Appellant in dealing with his misconduct, to include counseling. The rehabilitative efforts failed and the Appellant, despite being counselled on the possible adverse consequences of continued misconduct, continued to engage in misconduct. The Appellant’s repeated violations of the UCMJ is consistent with a finding that the Appellant’s misconduct was both willful and persistent. At no time has he expressed a lack of understanding regarding the UCMJ or the nonjudicial and judicial proceedings against him. He also continued engaging in misconduct despite knowing that those actions could result in discharge from service and after receiving counseling. The Appellant was not discharged because of a minor offense, but he was instead discharged as a result of a clear pattern of misconduct that fundamentally interfered with his service duties and resulted in his separation from service for misconduct. His actions led to him missing or being late for assigned duties in a combat zone. He also failed to follow lawful orders from member of his enlisted leadership. The Appellant has asserted that his in-service misconduct was not willful due to his diagnosed sleep disorder. The definition of willful misconduct is an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of the probable consequences. 38 C.F.R. § 3.1(n). Despite the Appellant's contentions, the nature of the underlying in-service misconduct is determinative to the issue on appeal. The Appellant’s misconduct occurred over a six-month period, and he continued to engage in misconduct despite being disciplined on several occasions. The Appellant had incidents of Failure to Repair in October (October 31); two in November (November 9 and 11); two in December (December 1 and 2); four in February (February 13, 15, 22, and 26); five in March (March 2, 3, 24, 27, and 30); and two occasions in April (April 2 and 3). Notably, the Appellant did not have any absences in January. There is also no evidence to indicate that he could not take steps to address or prevent his misconduct, such as having a “battle buddy” wake him, or other steps. To the contrary, the evidence includes interviews with other Soldiers indicating that the Appellant would routinely wake to his alarm clock and would remain in his tent playing video games despite the obligation to report to work at the prescribed time. Additionally, the court martial panel considered the issue of whether the Appellant had a sleep disorder, as indicated in their not guilty finding on the charge of feigning an illness to avoid duty. Despite the presence of a sleep disorder, the court martial panel still determined that the Appellant had committed the offenses of failing to report to his appointed place of duty at the prescribed time. Furthermore, the Appellant has not asserted that his acts of disobeying noncommissioned officers and being disrespectful were not willful. Based on the foregoing, the Board finds that the Appellant’s conduct, which shows the Appellant having numerous unauthorized absences by failing to be at his appointed place of duty at the prescribed time, disobeying superiors, and being disrespectful towards superiors, occurred despite the illegality of such behavior. The Board also finds, as did the Appellant’s chain of command, that the Appellant’s in-service misconduct was not minor, but it instead fundamentally interfered with his service duties, particularly given that the acts occurred in a combat area of operations. Therefore, the Appellant’s discharge is dishonorable. 38 C.F.R. § 3.12(d)(4). However, the Board will address the potential defense to this statutory bar on the basis of insanity. See 38 C.F.R. § 3.12(b). The Board notes that 38 C.F.R. § 3.12(b) provides, essentially, that if an Appellant was insane at the time of committing an offense causing discharge under that regulation (as relevant here, based on willful and persistent misconduct), this would not be a bar to VA benefits. Insanity has a specific definition for VA purposes, as outlined in 38 C.F.R. § 3.354. This definition provides that an insane person is one who 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. See also Zang v. Brown, 8 Vet. App. 246 (1995) (holding that the phrase “due to disease” applies to all three circumstances in 38 C.F.R. § 3.354 (a)). As noted above, the burden is on the Appellant to submit competent medical evidence that the Appellant was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The Appellant has not asserted that he was “insane” at the time of his misconduct. However, he asserts that he has posttraumatic stress disorder (PTSD) which contributed to his misconduct. The Board notes clinical PTSD findings in VA treatment records. However, there is no indication that the Appellant’s PTSD met the definition of insanity under 38 C.F.R. § 3.354, nor has the Appellant submitted competent medical evidence under Stringham. Furthermore, the Appellant has not presented any argument that any of the three circumstances in the regulation were applicable to the Appellant at the time of his misconduct and the Board finds that the evidence does not otherwise indicate that any of the three circumstances are applicable. The remaining evidence of record does not suggest that the Appellant was insane as defined by VA regulation. As noted above, a finding that a discharge was dishonorable is a bar to the payment of benefits unless it is found that the person in question was insane at the time of committing the offense. See 38 C.F.R. § 3.12(b). However, the evidence of record does not establish that the Appellant was insane at the time of his in-service offenses. After reviewing the evidence, the Board finds that the evidence does not demonstrate that the Appellant was considered “insane” as defined under 38 C.F.R. § 3.354. The Appellant’s STRs do not contain any medical records which would support a finding of insanity. During a March 2007 psychiatric evaluation, the evaluating psychologist diagnosed the Appellant with Antisocial Personality Disorder but did not make any findings on the issue of insanity. During a June 2007 physical examination for entrance into confinement, the examining physician noted normal clinical findings related to the Appellant’s mental status. Considering these records, the Board finds that there is no evidence of “a more or less prolonged deviation from his normal method of behavior,” “interfer[ence] with the peace of society,” or being “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. Therefore, the Board finds there is no probative evidence of insanity at the time the offenses in question were committed. Based on the foregoing, the Board finds that the Appellant’s discharge from service on March 27, 2009, was issued because of conviction at Special Court Martial for numerous acts of misconduct, which constitutes willful and persistent misconduct. Therefore, character of discharge from the Appellant’s period of service is a bar to VA compensation benefits, as the discharge was the result of willful and persistent misconduct under 38 C.F.R. § 3.12(d), 3.13, 3.354. The Board finds that the preponderance of the evidence supports those findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In sum, the foregoing evidence shows that the Appellant committed offenses which constitute willful and persistent misconduct which was not offset by otherwise meritorious service. Accordingly, the character of the Appellant’s discharge is a bar to his receipt of VA benefits, and the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KELLI A. KORDICH 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.