Citation Nr: 21041998 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-12 419 DATE: July 10, 2021 ORDER The character of the appellant's discharge from service is a bar to the receipt of Department of Veterans Affairs (VA) compensation benefits. FINDINGS OF FACT 1. The character of the appellant's discharge from service was under dishonorable conditions as a result of an offense involving moral turpitude. 2. The appellant was not insane, as defined by VA regulations, at the time of the misconduct that resulted in his discharge under other than honorable conditions. CONCLUSION OF LAW The character of the appellant's discharge from service is a regulatory bar to VA compensation benefits. 38 U.S.C. §§ 101, 3701, 3702, 5303; 38 C.F.R. §§ 3.1, 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served on active duty from April 2009 to April 2013, and was administratively separated with a characterization of service under other than honorable conditions. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2014 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2016, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Procedurally, the Board remanded the appeal for further development in September 2018. Specifically, the Board directed the RO to attempt to obtain the appellant's complete service personnel records, records pertaining to all court proceedings, and any records from the Army Discharge Review Board. It appears there may be some service personnel records, including those pertaining to the circumstances surrounding the appellant's administrative separation from service, that have not been associated with the claims file. However, the Board finds the RO has substantially complied with the previous remand directives, and that further attempts to obtain any missing service personnel records would be futile. In a February 2020 decision, the Board found that the character of the appellant's discharge from service constitutes a bar to the payment of VA benefits. The appellant appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 order, the Court granted the appellant's and the Secretary's joint motion for remand (JMR), vacating and remanding the Board's February 2020 decision. Whether the Appellant's Character of Discharge is a Bar to VA Benefits. In the February 2020 decision, the Board found the character of the appellant's discharge from service was under dishonorable conditions as a result of an offense involving moral turpitude, constituting a bar to VA compensation benefits. See 38 C.F.R. § 3.12. The parties to the December 2020 JMR found that the Board erred by failing to provide an adequate statement of reasons or bases when it did not consider the definition of "moral turpitude" as defined by the 1987 General Counsel's Opinion, VAOPGC 6-87 (July 27, 1987). As discussed in detail below, the Board has considered the entire evidence of record, to specifically include addressing the definition of moral turpitude as defined in VAOPGC 6-87, and finds that the character of the appellant's discharge from service is a bar to VA compensation benefits. Factual Background As noted in the February 2020 Board decision, the appellant entered active duty in April 2009. Service records indicate the appellant completed initial training without incident or disciplinary infraction, and he was assigned to his first duty station in March 2010. See Enlisted Record Brief. Service records document the appellant was seen by the Family Advocacy Program in September 2010. See October 2010 Soldier Assistance Center (SAC) intake. The appellant indicated he was the subject of an ongoing criminal investigation related to allegations of abuse made by his spouse. The appellant reported that he was issued a military protection order. The appellant reported feelings of helplessness about not being able to see his children. In an October 2010 telephone consult with the appellant's commanding officer, the provider noted that the commanding officer reported the appellant was a very good soldier and he was advocating for the appellant to get due process. While it appears the military protection order referenced by the appellant during the October 2010 SAC intake is not of record, the appellant submitted a January 2011 memorandum for the record concerning the military protection order / no contact order. The memorandum stated that "The Army has a duty and obligation to maintain good order and discipline within its own ranks as well as protect the rights, health, and welfare of Soldiers and dependents." The appellant was ordered to have no contact with his spouse without exception until further notice, until such time as the investigation into the allegations of abuse was finalized and disposed of. The order stated the appellant would be notified in writing by his commanding officer or first sergeant when he would be permitted to have contact with his spouse. The appellant was also ordered to have no contact with his children unless authorized in writing by his commanding officer or first sergeant, and that any authorized visitation must be supervised by a noncommissioned officer from the command. The order noted that contact with the appellant's spouse or children included personal meetings, conversations, telephone, cellular phone, email, counseling sessions, religious/social functions, third party or other written correspondence. The order directed the appellant to leave the place of contact immediately if an accidental meeting occurred with his spouse or children, and to report such meetings immediately to his chain of command. The appellant was notified that any violation of the order may be punishable under the Uniform Code of Military Justice. In a November 2010 social work note, the provider indicated the appellant requested to have contact with his spouse. The provider indicated concerns were discussed with the appellant due to his spouse's recent allegations claiming fear of 10 on a 10-point scale, where 10 was fear for life. The provider indicated the appellant was notified that there would be no change to the military protective order until a safe reunification plan was determined for the appellant and his spouse. In a later November 2010 SAC note, the appellant reported his command would not give him any leniency to see his spouse and children over the holidays. The appellant reported he had contact with his spouse by telephone despite the no contact order. In relevant part, the appellant was arraigned and tried by a general court martial in August 2011 for willfully disobeying a lawful command from a superior commissioned officer. In a November 2011 request for clemency, the appellant's defense counsel noted that service members are expected to follow orders with which they may disagree, consider arbitrary, or feel may overly intrude into their personal lives. The defense counsel indicated the appellant made a decision to violate an order given to him by his commanding officer that prevented the appellant from seeing his children for months on end. The defense counsel indicated that the military judge for the general court martial referred to the no contact order preventing the appellant from seeing his children as "cruel and unwarranted," and an unlawful pretrial punishment. In December 2011, the appellant was found guilty of willfully disobeying a lawful command from his superior commissioned officer to not contact or come within 50 feet of his spouse. See December 2011 General Court Martial Order. The appellant was found to have contacted or come within 50 feet of his spouse on divers occasions between on or about November 1, 2010 and on or about December 31, 2010. In March 2012, the appellant underwent a military service physical for the purpose of administrative separation for misconduct. The provider noted the appellant was convicted at court martial for disobeying a military protective order in order to see his children. In an April 2, 2013 legal review of the action to administratively separate the appellant for commission of a serious offense, the staff judge advocate indicated the proposed separation action was legally sufficient. The staff judge advocate noted that the appellant's company commander and battalion commander recommended the appellant be discharged with an other than honorable characterization of service. In an April 18, 2013 memorandum, the commanding general directed the appellant be administratively separated from service under other than honorable conditions. See DD Form 214 (discharging the appellant with a characterization of service under other than honorable conditions for misconduct (serious offense)). In a December 2013 statement, the appellant reported he was discharged for disobeying a lawful order on two occasions. See December 2013 VA Form 21-4138. The appellant indicated that he was restricted from seeing his spouse and children in July 2010 due to his spouse's accusations of abuse. The appellant reported that his requests for permission to see his children every month following the July 2010 restriction were denied by his commanding officer. The appellant reported that he went to see his children for a couple of hours in December 2010. The appellant reported that his spouse and children moved to another state in April 2012, and that he was court-ordered to pay alimony and child support. The appellant reported that his attorney advised him to not pay the alimony. The appellant submitted an undated statement from his family law attorney requesting that his command not pursue nonjudicial punishment (Article 15) for failing to pay court-ordered alimony because of financial hardship. See also March 2013 VA Form 28-1902w (appellant reported misdemeanor for contempt of court). Although not associated with the appellant's service records, the appellant reported that he received an Article 15 for failing to pay court-ordered alimony. The appellant reported that the court approved a motion to stop alimony payments in August 2013, after his separation from service. See also Decree Granting Divorce and Awarding Child Custody received in December 2013. The appellant reported he was administratively separated from service for disobeying the no contact order and for failing to pay court-ordered alimony. While the search for the appellant's complete service personnel records has not revealed additional records pertaining to his failure to pay court-ordered alimony, or the self-reported Article 15 for failing to pay court-ordered alimony, such evidence is unfavorable to the appellant. However, based on the appellant's contentions and the available evidence concerning the facts and circumstances of the appellant's discharge, the decision herein is limited to consideration of the appellant's offense of disobeying a lawful command from his superior commissioned officer. In December 2013, the appellant submitted a statement from a fellow soldier that appears to have been written on the appellant's behalf in connection with his administrative separation proceedings. See February 2013 Memorandum for Record; see also April 2014 VA Form 21-4138. A.P. reported that she worked with the appellant for more than 18 months, and that he was one of the best soldiers in the battalion. A.P. reported the appellant was easy to work with, helpful, and exceeded requirements in the performance of his military duties. A.P. reported the appellant was mistreated by the chain of command, and that he was the subject of unjust bias. During the September 2016 Board hearing, the appellant reported that he received the Army Achievement Medal for being named soldier of the year at his first duty station. The appellant reported that his spouse filed for divorce, and that she contacted his command with over 53 allegations, including rape, molesting his child, and breaking and entering on 23 separate occasions. The appellant reported that his commander issued a no contact order, which included no contact with his children, with the intent of protecting the appellant. The appellant indicated that he was not in the right state of mind and was not thinking clearly when he disobeyed the no contact order to see his children. The appellant indicated that he was receiving mental health treatment at the time he disobeyed the no contact order. The appellant indicated that his mental health provider stated that he would have been able to handle the situation in a better manner were it not for his mental health issues. The appellant indicated that he was desperate to see his children. The appellant reported that, in hindsight, he could have done things differently by going through the proper channels in his chain of command. In this case, the appellant, through his attorney, argues that his offense of disobeying a lawful order does not meet the definition of moral turpitude, and that there are no applicable regulatory bars to his receipt of VA benefits based on character of discharge. See March 2021 Attorney Brief. Law and Analysis A person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. A discharge under other than honorable conditions based upon an offense involving moral turpitude is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(3). Although offenses involving moral turpitude includes, generally, conviction of a felony, the term "offense" suggests a wider range of behaviors. While moral turpitude is not defined in 38 C.F.R. § 3.12(d)(3), VA's Office of General Counsel issued an opinion that defines "moral turpitude" as "a willful act committed without justification or legal excuse which gravely violates accepted moral standards and... would be expected to cause harm or loss to person or property." VAOPGC 6-87 (July 27, 1987). The opinion states that a moral turpitude offense may include conduct that does not result in prosecution or conviction. Id. Here, the appellant does not dispute that his violation of the no contact order was a willful act. See March 2021 Attorney Brief. The appellant's attorney argues that it cannot be said that contacting or visiting with one's children "gravely violates accepted [moral] standards." Additionally, the appellant's attorney argues that there is no indication that anything inappropriate was involved in the appellant's contact with his children. In considering the attorney's argument, the Board finds the offense for which the appellant was convicted at a general court martial is taken out of context. The appellant was convicted of willfully disobeying a lawful command from his superior commissioned officer to not contact or come within 50 feet of his spouse. The general court martial found the appellant guilty of such offense on divers occasions between on or about November 1, 2010 and on or about December 31, 2010. While the appellant reported his purpose in violating the no contact order was to see his children who were in the custody of their mother, in doing so, the appellant had contact with his spouse. The Board adds that during the November through December 2010 timeframe, service treatment records indicate the appellant was seeking to reunite with his spouse. Contrary to the attorney's argument, the Board finds that disobeying a lawful command does gravely violate accepted moral standards. The gravity of the appellant's willful failure to obey a lawful command from his superior commissioned officer is demonstrated by the fact that the appellant was arraigned and tried at the highest level of court martial, generally reserved for felony offenses. In this regard, the Board adds that the VA General Counsel Opinion held that the term "offense" suggests a wider range of behaviors than felony offenses alone, and a moral turpitude offense may include conduct that does not result in prosecution or conviction. VAOPGC 6-87 (July 27, 1987). With respect to whether the appellant's offense is a violation of accepted moral standards, the Board notes that in the appellant's November 2011 request for clemency, his own defense counsel stated that service members are expected to follow orders with which they may disagree, consider arbitrary, or feel may overly intrude into their personal lives. Such evidence supports a finding that the appellant's failure to obey a lawful command violated accepted moral standards. The Board finds the appellant's willful failure to obey the no contact order with his spouse was committed without justification or legal excuse. The Board recognizes and is sympathetic to the appellant's report of feeling desperate to see his children. However, at the time of the appellant's offense it appears his spouse had just recently made allegations claiming fear of 10 on a 10-point scale, where 10 was fear for life. Moreover, there was an ongoing investigation into the reported spousal allegations, including rape, molesting his child, and breaking and entering on numerous occasions. As noted in the no contact order, the Army has a duty and obligation to maintain good order and discipline within its own ranks as well as protect the rights, health, and welfare of Soldiers and dependents. By the appellant's own admission, the no contact order was as much for his own protection as that of his spouse. While the appellant was not charged and/or found guilty of his spouse's allegations of abuse at the August 2011 general court martial, the no contact order with the appellant's spouse (for which the appellant was found guilty of disobeying on divers occasions) was in effect during a time where there was not only an ongoing criminal investigation, but the spouse was also claiming she feared for her life. As such, the Board finds the appellant's report of feeling desperate to see his children does not justify or legally excuse his willful failure to obey the lawful command to have no contact with his spouse. To the extent that the appellant's attorney argues that the appellant's failure to obey the lawful command to have not contact with his spouse would not be expected to cause harm or loss to person or property, as discussed above, the no contact order with the appellant's spouse was in effect during an ongoing criminal investigation into multiple allegations of abuse and the spouse was claiming she feared for her life. Although the appellant was not charged and/or found guilty of his spouse's allegations of abuse at the August 2011 general court martial, the relevant inquiry is whether the failure to obey a lawful command to not have contact with his spouse would be expected to cause harm or loss to person or property at the time of the offense. As noted above, at the time of the offense there was not only an ongoing criminal investigation, but the spouse was also claiming she feared for her life. Under such circumstances, the Board finds it was reasonable to expect that at the time of those allegations the appellant's failure to obey the lawful command to have no contact with his spouse would cause harm or loss to person or property. As a final matter, the Board finds that the evidence of record raises the matter of whether the appellant was "insane" (as defined by VA regulations) at the time of the offense leading to his separation under other than honorable conditions, thereby lifting the bar to the receipt of VA benefits. See 38 C.F.R. § 3.12(b). The appellant's attorney noted that service treatment records document that the appellant reported he was worried about his children at the time of the offense of disobeying a lawful command, and that he was "overwhelmingly helpless" and "does not have control over his emotions." See March 2021 Attorney Brief; see also November 2010 service treatment records. Under VA regulations, insanity is defined as "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). While 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 Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). Assuming the appellant's behavior at the time of the offense of disobeying a lawful order was "due to disease," the Board finds remand is not necessary for a medical opinion as service treatment records document a diagnosis of adjustment disorder concurrent with the misconduct. See November 2010 service treatment records; see also November 2012 Report of Medical History (provider noted a diagnosis of adjustment disorder from November 2010 to November 2011). However, as noted in the February 2020 Board decision, the Court has held that mental illness is not identical to "insanity." See Beck v. West, 13 Vet. App. 535, 539 (2000). The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. See Stringham v. Brown, 8 Vet. App. 445, 448-49 (1995); see also VAOPGCPREC 20-97. Here, the Board finds the particular facts in this case do not support a finding that the appellant was insane at the time of his offense. The term "insanity" refers to a condition involving conduct that deviates severely from the social norm or interferes grossly with the capacity to meet the ordinary demands of life. See VAOPGCPREC 20-97. In consideration of the appellant's behavior at the time of his misconduct that was concurrent with his diagnosis of adjustment disorder, the appellant reported symptoms of overwhelming helplessness, high anxiety, irritability, and feeling like he did not have control over his emotions. In a November 2010 service treatment record, the social worker observed the appellant was very disgruntled. Although the appellant testified at the Board hearing that he was not thinking clearly at the time of his misconduct, the competent medical evidence of record at that time noted the appellant's thought processes were linear and goal directed, he was alert and oriented, neat appearance, no abnormal motor behavior, no hallucinations or delusions, no suicidal or homicidal ideation, good memory and concentration, good judgment and insight, and good eye contact. The Board finds such evidence does not demonstrate the appellant's diagnosis of adjustment disorder was a "severe form of mental disability" as contemplated by 38 C.F.R. § 3.354(a). See VAOPGCPREC 20-97. The weight of evidence is against a finding that the appellant exhibited, due to disease, a more or less prolonged deviation from his normal method of behavior. Although it appears the appellant's failure to obey a lawful command from his superior commissioned officer was a brief deviation from his normal method of behavior, his behavior did not involve conduct that deviated severely from the social norm or interfered grossly with his capacity to meet the ordinary demands of life. As discussed in the February 2020 Board decision and in the decision herein, with the exception of disobeying the no contact order, the evidence demonstrates that at the time of that misconduct the appellant was a good soldier, easy to work with, helpful, and exceeded requirements in the performance of his military duties. Such evidence likewise demonstrates that the appellant did not, due to disease, interfere with the peace of society, or lack the adaptability to adjust to the social customs of his community. In sum, the Board finds the preponderance of evidence is against a finding that the appellant was insane, as defined by VA regulations, at the time of the misconduct resulting in his discharge under other than honorable conditions. 38 C.F.R. §§ 3.12, 3.354. As discussed above, the Board finds that the appellant's discharge was under dishonorable conditions as a result of an offense involving moral turpitude, constituting a bar to the receipt of VA benefits. 38 C.F.R. § 3.12(d)(3). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate 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.