Citation Nr: 21032625 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-27 449 DATE: May 27, 2021 ORDER The application to establish that the character of the appellant's service is not a bar to VA compensation benefits is denied. REFERRED The issue of entitlement to VA treatment benefits authorized by Chapter 17 of title 38 U.S.C. was raised in the January 2014 Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. At the hearing, the appellant indicated he was trying to continue treatment after his wife's medical benefits were ending. FINDING OF FACT The appellant was discharged due to willful and persistent misconduct and requested a discharge when faced with a trial by court-martial. He was not insane at the time of his offenses. CONCLUSION OF LAW The character of the appellant's discharge is a bar to receipt of VA compensation benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from September 1967 to April 1970. He was awarded the Navy Achievement Medal with a Combat "V" device. The appellant's discharge was characterized as undesirable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the appellant testified during a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Apri 2014, the Board remanded the case, directing VA to contact the Board for Correction of Military Records, to ask appellant to identify treatment providers including Dr. L. and provide authorizations, and to schedule the appellant for a VA examination for a determination on whether the appellant was insane during service. Pursuant to these remand directives, VA contacted the Board for Correction of Naval Records (BCNR), asked the appellant to identify treatment providers, and obtained an opinion on whether the appellant was insane during service. The appellant did not identify any treatment providers or provide authorizations. The April 2015 VA medical opinion regarding sanity substantially addressed the questions posed by the Board. It was adequate because it thoroughly explained its reasoning and considered the appellant's history and lay statements. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board found that VA did not appropriately phrase the request for documents to the BCNR. Accordingly, it remanded the case again in June 2019. Pursuant to the Board remand, VA accurately characterized the request to the BCNR to include a request for any applications submitted in the early 1980s. The response from the BCNR was that there were no records for the appellant. VA also contacted the appellant to ask him to clarify whether the appellant recently filed for a discharge upgrade with the BCNR. VA received no response. 1. Whether the character of the appellant's service is a bar to VA compensation benefits. In the January 2014 Board hearing, the appellant testified that he has been diagnosed with posttraumatic stress disorder (PTSD) and that he had psychiatric symptoms prior to his periods of unauthorized absences (UAs) approximately three to four months before his discharge from service. He also testified as to the reasons for his UAs, which include that his mother was seriously ill with complications of a heart attack and he was afraid she would not live. In order to qualify for VA benefits, a claimant must demonstrate that he or she is a "veteran" as defined by law. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). By law, a "veteran" is defined as "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 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 provisions of 38 C.F.R. § 3.12 (b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits where the discharge is under conditions other than honorable. There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c), and regulatory bars listed in 38 C.F.R. § 3.12 (d). As pertinent to this case, accepting an undesirable discharge or discharge under other than honorable conditions to escape trial by general court-martial, and a discharge because of willful and persistent misconduct, are considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). In addition, benefits are not payable where the former service member was discharged or released by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. An exception exists to the AWOL provision where an appellant "demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged, unauthorized absence." 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6) The evidence in this case shows that the appellant was on an unauthorized absence from June 2, 1969 to July 22, 1969; from July 23, 1969 to January 15, 1970; and from February 24, 1970 to March 11, 1970. He requested a discharge rather than a trial by Court Martial. He had a prior conviction by Summary Court Martial for an unauthorized absence from August 10, 1968 to September 8, 1968, and violation of a lawful general order for being in an off-limits area. He also had two non-judicial punishments for unauthorized absence, failure to go to an appointed place of duty, and failure to obey a lawful command of an officer to go to an appointed ambush site. The appellant amassed 277 days lost time as a result of his unauthorized absences. The first UA occurred April 25, 1968 and ended April 26, 1968. He next went AWOL August 10, 1968 to September 8, 1968, for which he was convicted at the Summary Court Martial. Next, he went AWOL November 12, 1968 to November 18, 1968, then again from June 2, 1969 to July 22, 1969; from July 23, 1969 to January 15, 1970; and from February 24, 1970 to March 11, 1970. The Board finds that the numerous UA's demonstrate willful and persistent misconduct. Furthermore, the evidence shows that the appellant requested a discharge in lieu of trial by a court martial. Thus, there are two regulatory bars to benefits present in this case. He did not have one continuous period of at least 180 days. Accordingly, the statutory bar relating to AWOL and its exception does not apply in this case. The record shows that the appellant did not appeal any of his punishments. He requested the discharge, knowing that his conduct would have been triable by a court-martial. This indicates there were no good reasons for the UAs and other offenses. In other words, it contradicts suggestions that the appellant's conduct was not willful. Further supporting the willfulness conclusion is a March 1970 service department memorandum recommending the undesirable discharge. In this memorandum, the commanding officer stated that the appellant showed an increasing resentment for authority and he required continual supervision to accomplish the most menial tasks. The appellant also argues circumstances such as hospitalization for malaria, his mother's health, and psychiatric issues caused his UA. In a March 2013 statement and in his Board hearing testimony, the Veteran reported that he went AWOL because of a family emergency as his mother had complications of a heart attack. The appellant reported that he was denied leave to see her. He was afraid she would not survive, and indeed, two years later she passed away. The Board finds, however, that this explains only one instance of unauthorized absence. It also does not refute the willfulness aspect of the situation. Rather, it supports willfulness. Furthermore, there is no exception for compelling circumstances with UA's less than 180 days. Next, the record of assignments shows the appellant was hospitalized for malaria from May 30, 1968, to June 10, 1968. This is not one of the time periods for which he was charged with UA. As such, the record does not support that the appellant's argument was AWOL due to malaria. Finally, the March 2013 statement from the appellant's representative indicates that his "moral compass" was in conflict with the U.S. Marine Corps at the time. This statement shows that the appellant's infractions were a conscious choice, rather than something out of his control. For all of the foregoing reasons, the misconduct was willful and persistent. An exception to the bars to benefits is where the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided in 38 U.S.C. § 5303(b). Under 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. 38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet. App. 246, 253 (1995); see also VAOPGCPREC 20-97 (May 22, 1997) (clarifying VA's definition of insanity). 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. See Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354 (a). The appellant does not outright assert that he was insane during service. Rather, the appellant testified at the Board hearing that he had psychiatric symptoms prior to his periods of unauthorized absences approximately three to four months before his discharge from service. VA treatment records dated in June 2014 show he has a diagnosis of PTSD related to his combat service. The Board finds that the preponderance of the evidence is against a finding of insanity. The Board notes that three to four months prior to discharge was December 1969 or January 1970. Importantly, mental illness is not identical to "insanity." Beck v. West, 13 Vet. App. 535, 539 (2000). So even if he had symptoms of anxiety and depression, as he testified to in the Board hearing, that does not necessarily equate to insanity. In this case, the Board finds it does not. First, the appellant had already absented himself without authorization for approximately five months prior to the time he asserts his psychiatric symptoms began. He also had been UA on four other occasions prior to the psychiatric symptoms he reports in the Board hearing. This shows his willful misconduct was well underway at the time he experienced the alleged symptoms of mental illness. Next, an April 2015 VA medical examiner opined it is less likely than not that the appellant's periods of unauthorized absence were the result of an acquired psychiatric disability. The examiner further opined that it is less likely than not that any psychiatric disability caused a prolonged deviation from the appellant's normal behavior or interfered with the peace of society or caused him to so depart 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. The examiner's reasoning is extensive. The examiner explained, in part, that the appellant's administrative discharge documents make no mention of mental health treatment and that all available military personnel records suggest only that his AWOL violations were willful misconduct. The examiner cited in support of this conclusion that the appellant had 8 violations for being AWOL and missed 277 days of service. The examiner further pointed to many subsequent statements by the appellant and third parties that indicate other reasons for his misconduct than his psychiatric condition. The examiner cites the appellant's statement in VA treatment in 2013 and 2014 where he describes several of his AWOL incidents were as a result of having malaria, being assaulted, and getting lost, but never from symptoms of mental illness. The examiner discounted the credibility of the appellant's testimony at the Board hearing because he did not indicate mental health issues until directly asked by the undersigned Veterans Law Judge. The examiner further explained that the appellant did not elaborate on specific symptoms, and that his infractions had been occurring for many months before the time the appellant asserted that his presumptive psychiatric symptoms began. The examiner also cited a March 2013 statement from the appellant's representative explaining the reasons for the appellant's infractions which refer to causes other than psychiatric. Thus, the examiner concluded that the appellant's actions and misconduct were motivated by ordinary circumstances and not mental illness. The Board notes that insanity merely needs to have existed at the time the misconduct was committed. Struck v. Brown, 9 Vet. App. 145 (1996). There does not have to be a causal connection between the insanity and the misconduct. Id. However, in this case, the examiner found that there is no evidence to support that the appellant met the definition of insanity over the multiple AWOL charges over the years in service. In addition, the Board emphasizes that the appellant's assertion that symptoms did not begin until three to four months prior to discharge indicates there were many other instances in which he was not experiencing psychiatric symptoms. VA treatment records support the examiner's opinion and the Board's conclusion. In a February 2013 initial VA psychiatric evaluation with Dr. Listerud, the appellant reported that the reason he received the undesirable discharge was because he wanted to get out of the Marine Corps after his combat tour when he got back to the U.S. June 2014 VA treatment records show that the appellant reported that Dr. Listerud said the appellant was insane four to six months before he went into the service. The treatment note continues that after elaboration, the appellant described frustration over the perceived runaround in obtaining VA benefits and navigating VA healthcare system. The Board notes that Dr. Listerud's treatment notes show no indication that Dr. Listerud concluded that the appellant was insane prior to service, although there is indication that he may have experienced PTSD shortly after separation from service. The actual record of the treatment by Dr. Listerud is more persuasive than the appellant's report of the treatment visit. The treatment visit note is highly detailed and recorded by a medical professional. Reasons given by the appellant in June 2014 VA treatment for the unauthorized absences include being assaulted with a knife while hitchhiking and being assaulted in the barracks. The appellant did not report that any psychiatric symptoms were present or influenced his AWOL circumstances. The Board acknowledges the character reference statements that have been provided by friends and family. These statements are not relevant because they do not address the time during which the appellant was in service. In sum, the preponderance of the evidence shows that the appellant's misconduct in service was willful and persistent and that he was not insane as defined by VA regulations at the time of his misconduct. Accordingly, the character of his service is a bar to VA compensation benefits. H. SEESEL 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.