Citation Nr: 21041455 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-53 940 DATE: July 9, 2021 ORDER The character of the appellant's discharge constitutes a statutory bar to Department of Veterans Affairs (VA) benefits. FINDINGS OF FACT 1. The appellant was discharged from active duty service in February 1994 under other than honorable conditions. 2. The appellant resigned as an officer from service for the good of the service following charges relating to a theft at a base exchange in October 1993. 3. The preponderance of the probative evidence of record is against a finding that the appellant was insane at the time of the misconduct underlying her discharge. CONCLUSION OF LAW The character of the appellant's military service discharge is a statutory bar to VA benefits. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had active duty service with the United States Army from October 1990 to February 1994. She received a discharge under other than honorable conditions following her resignation from service in lieu of trial by court-martial. This matter is on appeal from an October 2015 Regional Office (RO) decision. In May 2021, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. The appellant asserts that she is entitled to VA benefits. 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). 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 she was insane at the time of her 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. In the present case, the appellant was commissioned into the Army as an officer. Her initial obligation was for three years, which would have established the end of her service around October 18, 1993. In June 1993, service treatment records reflect a possible diagnosis of an adjustment disorder with nonspecific physical complaints and stress of emotion histrionic traits. This diagnosis followed a short period of inpatient treatment and surgical procedure. Following her discharge from the hospital, records do not reflect other complaints related to her mental health. She underwent a separation examination in September 1993 in advance of her anticipated departure, and the associated psychiatric examination was normal. As she was in the process of separating, on October 9, 1993, the appellant purportedly stole a wallet from the base exchange. She was apprehended and investigated on charges related to larceny and providing a false statement. On October 25, 1993, the appellant voluntarily tendered her resignation for the good of the service in lieu of a trial by court-martial. The resignation was subsequently approved, and she was given an other than honorable discharge. Initially, the Board notes that the appellant provided a DD-214 reflecting an honorable discharge with a discharge date of October 18, 1993. The DD-214 associated with her personnel file reflects an other than honorable discharge with a discharge date of February 1994. Based upon the timeline of events in this case, the Board finds that this first DD-214 is not controlling in the present matter. Due to the appellant's theft from the base exchange approximately one week prior to her scheduled discharge, the Army clearly continued to hold the appellant in service as they investigated the offense. The appellant continued to be referred to by her title as an officer up until the formal acceptance of her resignation in 1994. Personnel records do not reflect discharge memoranda related to this October 18, 1993, discharge. Instead, the memoranda of record documenting the appellant's out-processing only occur after the October 1993 offense and her request for resignation. Thus, it is clear that the Army did not discharge the appellant with an honorable discharge in October 1993, but instead discharged her in February 1994 following her resignation with an other than honorable discharge. Turning to the substantive issues in this case, the nature of the appellant's resignation as an officer from the service constitutes a statutory bar to benefits under 38 C.F.R. § 3.12(c)(3). The only way to overcome this bar to benefits would be a finding of insanity for VA purposes. In conjunction with her claim, the appellant has reported information inconsistent with her military records. In July 2015, she stated that she inadvertently stole a belt from the exchange. She reportedly forgot she was trying one on and did not remove it from her pants before attempting to leave. She believed it was merely an oversight. This contradicts her own statement of record from the investigation, which asserted that she previously purchased a wallet the week before she was detained for theft of the same wallet. She continued to deny the theft of the wallet while in service. In her hearing before the undersigned, she reported alternatively experiencing a mental breakdown or a lapse in judgment at the time of the theft. At that time, she reported having difficulty recalling the nature of the in-service offense. She stated that she was overwhelmed with having a new baby and family difficulties. Post-service records reflect mental health diagnoses, though at least some of the manifestations were related to a physical trauma she experienced after discharge. Contemporaneous service records, however, reflect a normal psychiatric examination immediately prior to the in-service theft. At no point during the investigation proceedings did she assert that she suffered from any sort of mental health symptoms. Instead, she was fully advised and counseled by her legal representative and voluntarily chose to request resignation for the good of the service. Even as she petitioned for an honorable discharge following her resignation, the appellant did not raise the issue of mental health, nor did she admit any guilt in the underlying offense. While the appellant has recently asserted some mental health concerns around the in-service theft, her statements have been inconsistent throughout the record on this issue. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) ("Credibility is determined by the fact finder."). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Such inconsistent statements described above surrounding the in-service offense underlying the appellant's discharge reduce the overall credibility of those statements, particularly with regard to her mental health at the time of the offense. With this reduced credibility, the Board cannot assign substantial probative value to these lay assertions. Instead, the Board finds that the appellant's personnel and service treatment records are afforded significant probative weight overall. These documents were rendered contemporaneously with the events underling the appellant's discharge and do not contain inconsistencies that would call into question their veracity. These documents reflect a normal psychiatric examination immediately preceding the theft, and do not reflect other subjective or objective findings with regard to the appellant's mental health. Investigation documents reflect the appellant's own statements regarding the incident, including her belief that she previously purchased the wallet, but not that she was under any sort of familial pressures at the time that would have caused a lapse in judgment. As the present evidence of record is sufficient to render a decision on the issue of insanity, an examination is not necessary prior to adjudication on this issue. Accordingly, the preponderance of the probative evidence of record fails to indicate that the appellant was insane, per VA regulations, around the time of the commission of the offense underlying her discharge. The Board also notes that the appellant has not received an upgrade in the character of her discharge from her service department. Absent a finding of insanity, which is not the case presently, or an upgrade from her service department, the findings of the service department are controlling. See 38 C.F.R. § 3.203; Spencer v. West, 13 Vet. App. 376, 380 (2000). The appellant is not entitled to VA benefits due to the character of her discharge from service. MICHELLE L. KANE 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.