Citation Nr: 22016757 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-38 031 DATE: March 23, 2022 ORDER The character of the Appellant's discharge from active service for the period from August 12, 2008 through June 29, 2009, constitutes a bar to the award of Department of Veterans Affairs (VA) benefits, other than health care under 38 U.S.C. Chapter 17, and the appeal is denied. REMANDED Service connection for treatment purposes only under 38 U.S.C. Chapter 17 for epilepsy is remanded. FINDINGS OF FACT 1. The Appellant had service from August 12, 2008 through June 29, 2009 and received an under other than honorable conditions discharge for misconduct. 2. During his service, the Appellant was absent without leave (AWOL) from January 23, 2009 to April 30, 2009. 3. The Appellant was charged with violation of Article 86 (AWOL), under the Uniform Code of Military Justice (UCMJ), for being AWOL from January 23, 2009 to April 30, 2009. The Appellant submitted a request for discharge in lieu of facing a court martial, which was subsequently approved, who directed that the Appellant receive an under Other than Honorable (OTH) conditions discharge. He was discharged on June 29, 2009. 4. The misconduct committed by the Appellant during service was willful and persistent and did not consist of minor offenses offset by otherwise honest, faithful, and meritorious service. 5. The evidence does not support a finding that the Appellant was insane at the time of the offenses leading up to his discharge from service. 6. The evidence does not indicate that the Appellant's discharge has been reviewed or upgraded by the Department of the Army Board of Correction of Military Records. CONCLUSION OF LAW The character of the Appellant's service for the period from August 12, 2008 through June 29, 2009, is a bar to VA benefits, other than health care under 38 U.S.C. Chapter 17. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty from August 12, 2008, through June 29, 2009. He was discharged in lieu of court martial for misconduct, to include a period of being AWOL and given an "Other Than Honorable Conditions" discharge. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2017 administrative decision and a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. Character of Discharge VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service. 38 C.F.R. § 3.203(a); Spencer v. West, 13. Vet. App. 376, 380 (2000). When 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." See Holmes v. Brown, 10 Vet. App. 38, 40 (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). A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars to establishing entitlement to 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). In this instance, there is no suggestion that a statutory bar precludes entitlement to VA benefits. Rather, there is a regulatory bar to establishing entitlement to VA benefits. As is relevant here, under VA regulations, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); (4) willful and persistent misconduct (including a discharge under other than honorable conditions, if it is determined it was issued because of willful and persistent misconduct; however, 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). A discharge because of a minor offense will not be considered willful and persistent misconduct if the veteran's service was otherwise honest, faithful, and meritorious. Id. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge 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 or release from service under any of the above conditions specified in 38 C.F.R. § 3.12 is a 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). 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. As discussed below, the appellant's periods of AWOL do not consist of a period of at least 180 days, so the "compelling circumstances" defense does not apply in this case. 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 he 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). The character of the Appellant's discharge from active service for the period from August 12, 2008 through June 29, 2009, constitutes a bar to the award of VA compensation benefits. The Appellant is seeking entitlement to VA benefits based on his service from August 12, 2008 through June 29, 2009. Specifically, he has argued that he had compelling reasons for going AWOL, and therefore his character of discharge should entitle him to veteran status and should not be a bar to VA benefits. In this case, the Appellant entered active duty service in the United States Army in August 2008 for a period of three years. The service separation form shows that the Appellant was discharged on June 29, 2009, under Chapter 10, Army Regulation 635-200, in lieu of court martial. He was discharged under Other Than Honorable Conditions. The Appellant's service separation form includes a separation code of KFS, which is the code for a discharge in lieu of court martial. A review of the Appellant's service personnel records (SPRs) indicates one incident of misconduct in violation of the Uniform Code of Military Justice (UCMJ), namely that the Appellant absented himself from his unit by going AWOL from January 23, 2009 to April 30, 2009, for a total of 98 days. The Appellant was dropped from rolls as a deserter in February 2009. Following the Appellant's return to military control, the Appellant's commander charged him with being AWOL from January 23, 2009 to April 30, 2009 and recommended that the Appellant face a Special Court Martial. The Appellant's personnel records further show that he consulted with an attorney and requested discharge under other than honorable conditions to escape trial by court-martial in May 2009. The record reflects that the Appellant submitted a Request for Discharge in Lieu of Trial by Courts-Martial, under the provisions of Chapter 10, AR 635-200. The May 2009 request for discharge indicates that the appellant was advised by counsel in this matter. Additionally, the Appellant waived all defenses, to include any compelling circumstances or other justification, for the charged misconduct. The Appellant indicated that he made this request voluntarily and understood that he might receive an "Other Than Honorable Conditions" discharge certificate and lose VA benefits. The Board notes that the Veteran testified he was told to "just sign this paper and you should be fine, just take it up with the VA when you get out." He also stated that he did not have a lawyer. However, the request for discharge in lieu of trial by court martial, clearly indicates that the appellant may be ineligible for many or all VA benefits, was signed and initialed by the Veteran, and signed by the attorney representing him. In May 2009, the Appellant's commander recommended approval of the request for discharge in lieu of court martial. In his recommendation memorandum, the command noted that "punishment can be expected to have a minimal rehabilitative effect." Further, he believed that "a discharge at this time to be in the best interest of all concerned." In June 2009, the Commander US Army Garrison, Ft. Knox, approved the discharge under the provisions of Chapter 10, AR 635-200 and directed that the appellant be discharged under Other Than Honorable Conditions. The Appellant testified that he accidently sent the application for an upgraded character of discharge to himself rather than the Department of the Army Board for the Correction of Military Records. He further stated that he was working to correct this mistake. However, there is no evidence of record that he has applied to the Department of the Army Board for the Correction of Military Records for an upgraded character of discharge or that such an application, if submitted, has been successful. The Appellant contends that he went AWOL because of the death of his mother, the need to care for his younger brothers, and the impending birth of his daughter. He further claims that prior to returning from his AWOL status, he called his assigned station and notified them of his circumstances. The weight of the evidence supports a finding that the Appellant's discharge occurred as the result of willful and persistent misconduct, which is a regulatory bar to VA benefits. The Appellant's SPRs reflect he was AWOL from January 23, 2009 to April 30, 2009. He was also dropped from the rolls as a deserter in February 2009 as a result of being AWOL in excess of 30 days. The matter was referred for trial for a special court martial. The record reflects that the Appellant requested a discharge for the good of the service in lieu of trial by court martial. The Appellant indicated that he made this request voluntarily and understood that he might receive an "Other Than Honorable" discharge certificate and lose VA benefits. The Appellant's DD 214 reflects a discharge of "Under Other Than Honorable Conditions" and specifies an administrative discharge, under Army Regulation 635-200, chapter 10, for discharge in lieu of court martial. In light of the foregoing, the Board finds that the Appellant's discharge was a result of his instance of AWOL which demonstrates willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445 (1995). Instances of AWOL are "the type of offenses that would interfere with [the] appellant's military duties, indeed preclude their performance, and thus could not constitute a minor offense." Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994). The Appellant exhibited willful actions that led to the charges against him, including willfully absenting himself from his military unit without authority. The Board finds this period of AWOL to constitute a pattern of willful and persistent misconduct. Thus, the Appellant's discharge is considered to be dishonorable for VA benefits purposes. See 38 C.F.R. § 3.12(d). The Appellant has argued that his in-service misconduct was neither willful nor persistent. However, his only support for this is that he called his duty station to inform them of his situation. He testified that he only spoke to someone at the front desk and did not speak to an officer. He does not contend that he sought permission prior to going AWOL. 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). The Board finds that the Appellant's conduct shows he went AWOL despite the illegality of such behavior. The Board also finds, as did the Appellant's chain of command, that his in-service misconduct was not minor, but it instead fundamentally interfered with his service duties. The Board has considered if there are any other reasons to set aside the statutory and regulatory bars to VA benefits, including because the Appellant was insane at the time of the offense leading to the discharge or he received an upgrade in his discharge by a discharge review board established under 38 U.S.C. § 1153. See 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(h). As explained above, there is no evidence that the Veteran has applied for or been granted an upgrade to the character of his discharge. Therefore, there has been no removal of any bar to VA benefits via an upgrade to the Appellant's character of discharge. The only remaining defense to this regulatory bar to benefits is if the Appellant was insane at the time of committing the offenses causing discharge or release. However, such a defense to this bar has not been raised by the Appellant, his representative, or the record. The Appellant has not argued that he was insane during service, and the Board otherwise finds the evidence does not support a finding that the Appellant was insane when he engaged in the pattern of misconduct that resulted in his discharge from service. He did not complain of any psychiatric symptoms at the time of his separation from service. Thus, further consideration in this regard is not necessary. In sum, the foregoing evidence shows that the Appellant accepted an undesirable discharge in lieu of trial by court martial as a result of being AWOL, which resulted in a discharge for willful and persistent misconduct and is a regulatory bar to VA benefits, and such a status has not been remediated either by an upgraded discharge or a finding of insanity at the time of his offense. 38 C.F.R. § 3.12(d). Based on the foregoing, the Board finds that the Appellant's discharge from service on June 29, 2009, under other than honorable conditions, was issued because of an instance of AWOL, January 23, 2009 to April 30, 2009, for periods of 98 days, which constitutes willful and persistent misconduct. Additionally, the evidence fails to show that the Appellant was insane for VA purposes under 38 C.F.R. § 3.354. Therefore, the Appellant's character of discharge from the period of service from August 12, 2008 through June 29, 2009, is a bar to VA compensation benefits, as the other than honorable 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 greater weight of the evidence is against the claim, thus the benefit of the doubt doctrine is not for application. REASONS FOR REMAND Service connection for treatment purposes only under 38 U.S.C. chapter 17 for epilepsy is remanded. Here, the Veteran submitted an opinion from his private treating physician that stated stress from military life could have been a cause of the Veteran's epilepsy. While this statement alone is not sufficient to grant the Veteran's claim, it is sufficient to trigger VA's duty to assist in obtaining an examination and opinion regarding the nature and etiology of the Veteran's epilepsy. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his epilepsy. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Did the Veteran's epilepsy have its onset in service or is at least as likely as not related to service, including the fainting spell or fall the Veteran contends happened in service? Provide a rationale to support the opinion(s). 2. Readjudicate the claim on appeal. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, Associate Counsel