Citation Nr: 22017714 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 13-33 888A DATE: March 25, 2022 ORDER The character of the appellant's discharge from military service constitutes a bar for VA benefits; the appeal is denied. FINDINGS OF FACT 1. The appellant was discharged from military service in October 1974 with an under Other than Honorable Conditions (OTH) Discharge for willful misconduct due to unauthorized absence. 2. The appellant's discharge was the result of his request for discharge in lieu of facing court martial for a period of being Absent without Leave (AWOL). 3. The appellant was AWOL for a period of 1,794 days. He returned from AWOL due to apprehension by federal law enforcement authorities. 4. The appellant's discharge was upgraded from undesirable to Under Other Than Honorable (OTH) conditions pursuant to Presidential Proclamation 4313. 5. Compelling circumstances did not warrant the appellant's prolonged unauthorized absence. 6. 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 met the characteristics required to be defined as "insane" in accordance with 38 C.F.R. § 3.354 at the time of his misconduct. CONCLUSION OF LAW The character of the appellant's discharge from military service constitutes a bar for VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from October 1967 and was discharged in October 1974. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The appellant provided testimony at a December 2016 Board hearing. The hearing transcript is of record. In November 2017, the Board remanded the appeal to the RO for further development. In December 2020, the Board denied the appeal. Thereafter, the appellant appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In November 2021, the Court issued an order that vacated the Board's decision and remanded the appellant's claim in compliance with the Parties' Joint Motion for Remand (JMR). 1. Whether the character of the appellant's discharge from military service constitutes a bar for VA benefits. The appellant contends that he should be entitled to recognition as a Veteran, and thereby obtain VA benefits. Alternatively, he asserts that he had psychiatric impairment at the time of his misconduct, sufficient to be considered insane, which would qualify as an exception to the statutory bars under 38 U.S.C. § 5303(b); 38C.F.R. §3.12(b). 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). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). 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). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification, and the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars 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 to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38C.F.R. §3.12(c): (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 periods of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of discharge other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the exception to AWOL, a person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such person 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 Board notes that this provision is applicable to the instant case as the Veteran was discharged for being AWOL for a period of at least 180 days. 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 an undesirable discharge to escape trial by general courts-martial; (2) mutiny or spying; (3) an offense involving moral turpitude (including, generally, conviction of a felony); or (4) willful and persistent misconduct (this includes a discharge under "other than honorable conditions," if it is determined it was issued because of willful and persistent misconduct. A discharge because of a minor offense, however, will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious). 38 C.F.R. § 3.12(d). 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 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). In any event, 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. Alternatively, a bar to VA benefits imposed under 38 C.F.R. § 3.12(d) may be set aside when certain requirements are met by a discharge review board established under 10 U.S.C. § 1553 in issuing an upgraded honorable or general discharge on or after October 8, 1977. 38 C.F.R. § 3.12(g). If the same certain requirements are satisfied, the bar to VA benefits also is removed when an upgraded honorable or general discharge is issued under: (1) The President's directive of January 19, 1977, initiating further action with respect to Presidential Proclamation 4313 of September 16, 1974; or (2) the Department of Defense's Special Discharge Review Program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval, or air service under other than honorable conditions. 38 C.F.R. § 3.12(h). In this case, the appellant's discharge was upgraded from undesirable to under Other Than Honorable conditions. He did not receive an honorable or general discharge under Presidential Proclamation 4313. Despite the appellant's upgraded discharge under Other Than Honorable conditions, that does not set aside the bar to benefits created by a discharge issued as a result of a continuous period of AWOL for greater than 180 days, as is shown here. Consequently, there are only two possible exceptions to the appellant being barred from receiving VA benefits: if the appellant had compelling circumstances for the period of prolonged AWOL or 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). 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 Veteran 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 a Veteran 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 Veteran 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). Factual Background The appellant's service records show that he was discharged in October 1974 with an Under Other Than Honorable (OTH) Conditions Discharge. The service records indicate the following misconduct: In June 1969, the appellant was charged at nonjudicial punishment with one count of violation of Article 86 (unauthorized absence) of the Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty on May30, 1969. His company commander convicted the appellant and ordered that he be reduced to the rank of Private First Class (E3). In June 1969, the appellant was charged at nonjudicial punishment with one count of violation of Article 86 (unauthorized absence) of the Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty on May 30, 1969. His company commander convicted the appellant and ordered that he be reduced to the rank of Private (E2). In August 1969, the appellant was charged at nonjudicial punishment with one count of violation of Article 86 (unauthorized absence) of the Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty on May 30, 1969. The company commander convicted the appellant and sentenced him to forfeiture of $25.00 per month for one month and to be restricted to the unit area for 7 days. In October 1969, the appellant was charged at nonjudicial punishment with one count of violation of Article 86 (absent without leave) of the Uniform Code of Military Justice (UCMJ), from August 30, 1969, to October 18, 1969. The company commander convicted the appellant and sentenced him to forfeiture of $63.00 per month for one month and to perform extra duties for 45 days. In November 1969, the appellant departed his unit without authorization. He was subsequently determined to be AWOL. On November 12, 1969, he was noted as a deserter. On September 18, 1974, he was apprehended by the Federal Bureau of Investigation. At the time of his apprehension, the appellant had been AWOL for 1,794 days. Upon his return, the appellant was charged with AWOL, subject to a Court Martial empowered to sentence the appellant a Bad Conduct Discharge. On October 8, 1974, the appellant requested a discharge for the good of the service. In doing so, he agreed to complete 10 months of alternative service. In his application, he stated I understand that my absence is characterized as a willful and persistent unauthorized absence which renders me triable under the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge. I am making this request of my own free will and have not been subject to any coercion whatsoever by any person. I understand that I will be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. I have been advised and understand the adverse nature of such a discharge and the possible consequences thereof. In this regard I acknowledge that as a result of the issuance of such a discharge I will be deprived of all service benefits that I will be ineligible for all benefits administered by the Veterans Administration and that I may be deprived of my rights and benefits as a veteran under both Federal and State Law. Following service, on October 24, 1975, in recognition of completion of alternate service, and consistent with Presidential Proclamation 4313, the Army awarded the appellant a clemency discharge with an OTH characterization of service. In June 1993, the appellant sought an upgrade to his OTH Discharge with the Department of the Army Board of Correction of Military Records (ABCMR). In May 1994, the ABCMR determined that the appellant's discharge was proper as issued and that no change was warranted. In February 2002, the appellant sought reconsideration of his request for an upgrade to his OTH Discharge with the ABCMR. In September 2002, the ABCMR denied his request for reconsideration. In September 2010, the appellant sought reconsideration of his request for an upgrade to his OTH Discharge with the ABCMR. In March 2011, the ABCMR denied his request for reconsideration. Analysis Turning to an analysis of these facts, as an initial matter, the Board finds that the 1975 grant of a clemency discharge pursuant to Presidential Proclamation Number 4313, nor the October 1975 upgrade of the appellant's character of discharge to OTH for the convenience of the government pursuant to the Presidential Memorandum removes the bar to the appellant's receipt of VA benefits. Unless a discharge review board established under 10 U.S.C. § 1553 (in this case, the Army Discharge Review Board) determines on an individual case basis that a claimant's discharge should be upgraded, an honorable or general discharge awarded by the Presidential Proclamation and the Presidential Memorandum does not remove a bar to benefits. See 38 C.F.R. § 3.12(h). In this case, the record does not reflect that a discharge review board has individually determined that the appellant's discharge should be upgraded. To the contrary, in June 1993, 2002, and 2010, the ADRB and ABCMR determined that the appellant did not qualify for an upgrade of the character of his discharge. Thus, the Presidential Proclamation, and any associated pardons and upgrades of discharge, do not themselves render the appellant eligible for VA benefits. Character of Discharge Because the appellant was discharged under other than honorable conditions as a result of being AWOL for more than 180 days, he is statutorily barred from receiving VA benefits. As outlined, however, an exception is outlined in 38 C.F.R. § 3.12(c)(6) that states that "[t]his bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence." The regulation outlines various factors to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Upon review of the facts of this case and with consideration to the outlined factors, the Board finds that compelling circumstances did not warrant the appellant's prolonged unauthorized absence. The bar to benefit entitlement will not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6). The length and character of service, exclusive of the period of prolonged AWOL, and the reasons for going AWOL are to be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious, and of benefit to the Nation. 38 C.F.R. § 3.12(c)(6)(i). Reasons for going AWOL which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the claimant, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. 38 C.F.R. § 3.12(c)(6)(ii). As to the factor outlined in 38 C.F.R. § 3.12 (c)(6)(i), regarding length of service exclusive of the periods of AWOL, the appellant's DD 214 reflects that, absent his periods of AWOL, that he served for a total of one year and nine months of total active service. The DD 214 also reflects that the appellant had served in the Republic of Vietnam and was awarded the Bronze Star Medal, and several other commendations for his service. Overall, there is evidence indicating that the appellant's service, exclusive of the periods of AWOL, was of quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. As to the factor outlined in 38 C.F.R. § 3.1(c)(6)(ii), regarding reasons for going AWOL, as outlined in detail above, the appellant has described the reasons for his AWOL period in general as relating to PTSD, which he self-medicated with alcohol and drugs, residuals of malaria, problems adjusting to civilian society, and concerns over a return to Vietnam. See December 2016 Board Hearing. With respect to the provision that "[t]he reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity," the appellant was 20 at the time he entered service and 22 years old when he entered the last period of AWOL prior to his discharge. He was 27 years old at the time of his discharge. He had completed 11 years of primary education but did not complete high school and did not have any college education. Regarding cultural background, STRs referenced that his race was "Caucasian" and that his ethnic group was "Hispanic." It is unclear to the Board what, if any, impact either of these factors had on the appellant's reasons for going AWOL. The appellant has not raised any specific argument on this point. As to judgmental maturity, it is not entirely clear as to the level of judgmental maturity present during the relevant period. He served as a squad leader and had been promoted during this period. Presumably, the appellant's judgmental maturity at the time was appropriate for his age. With respect to the provision regarding "[h]ardship or suffering incurred during overseas service," the appellant asserts that he suffered from malaria in Vietnam, had experienced traumatic events in combat, and suffered from PTSD. The Board has carefully and sympathetically considered this hardship "in evaluating the [appellant's] state of mind at the time the prolonged AWOL period began," discussed in more detail below. Therefore, the Board has also considered whether a valid legal defense exists for the appellant's period of prolonged AWOL. The Board finds that the weight of the evidence is against a finding that a legal defense exists. The record shows that, in consultation with an attorney, the appellant requested an administrative discharge with the knowledge that he would be discharged under other than honorable conditions, furnished with an Undesirable Discharge Certificate, and that he would be ineligible for VA benefits. An analysis of this evidence indicates that the appellant at no time had a valid legal defense to the charges of AWOL levied against him. Thus, the Board finds that the length and character of the appellant's service was honest, faithful, and meritorious and of benefit to the nation. However, the Board finds that the appellant's reasons for going AWOL, even with consideration of his age, background, and judgmental immaturity, does not amount to a compelling circumstance. The Board finds that there was no valid legal defense for the appellant's absence. For these reasons, the weight of the evidence does not establish compelling circumstances to warrant the prolonged unauthorized absence. Therefore, the appellant's discharge as the result of a period of prolonged AWOL, without compelling circumstances, is dishonorable and bars the payment of benefits unless the appellant was insane at the time that he committed the in-service misconduct. Defense to the Regulatory Bar to VA benefits As discussed above, there is only one possible exception to the appellant being barred from receiving VA benefits: 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). While it is undisputed that the appellant made psychiatric complaints and was psychiatrically assessed during service, mere manifestations or diagnoses of psychiatric disorders are not synonymous with the definition of insanity that governs the analysis of an appellant's character of discharge. See Beck v. West, 13 Vet. App. 535, 539 (2000). 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 departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs so as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. The Board will analyze whether the appellant was insane under any of these criteria. For the defense of insanity, there must be competent evidence 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). The Court of Appeals for Veterans Claims has held that "a determination of whether a person is insane is in effect a determination of whether that 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 a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In the December 2016 Board hearing, the appellant's representative asserted that his client was suffering from "temporary insanity" at the time of his misconduct. The appellant has also asserted that he had psychiatric impairment in service which caused or contributed to his misconduct. In his August 2010 letter, the appellant asserts that Unfortunately, since my return to society (United States) I became mentally affected by it all and for which, even though there were only a few days left until my discharge I fled, something which I never did while I was in Vietnam. The appellant's service treatment records contain the following psychiatric findings: A February 1969 treatment note indicates that the appellant sought treatment for a family issue. The treating psychologist diagnosed the appellant with situational anxiety. An October 1974 Report of Medical History notes that the appellant reported becoming "depressed easily." The examining physician noted that the appellant had a normal psychiatric clinical evaluation. The appellant's STRs do not indicate any other treatment related to his mental health. Following his discharge, the appellant has sought mental health treatment for several conditions, to include PTSD and major depressive disorder and issues with alcohol abuse. In a January 2017 memorandum, a private psychiatrist diagnosed the appellant with posttraumatic stress disorder (PTSD) and opined that (the appellant) is currently in treatment at Baycare Behavioral Health. His records from his previous psychiatric provider Dr. M. have also been reviewed. His diagnosis is Posttraumatic Stress Disorder as, well as Major Depressive Disorder, severe, recurrent...In my opinion his current symptoms are related to his service in Vietnam and per his report severe mental health symptoms did begin during his military service. This opinion addresses the appellant's mental health symptoms. However, the rationale provided does not address the appellant's in-service misconduct nor does it apply the VA definition of insanity to the appellant, and thus cannot sustain a finding of insanity. Rather, insane behavior, as discussed above, is a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. The private opinion provides no indication that the appellant was unable to understand the full nature and consequences of his actions, but instead merely provides a support of a current finding of PTSD without any assertions that his PTSD caused insanity during his in-service offenses. This is insufficient, and due to this limited rationale without full consideration of his in-service misconduct, the private opinion carries no probative weight on the issue of insanity. In July 2019, a VA examiner diagnosed the appellant with Persistent Depressive Disorder and Alcohol Use Disorder in partial remission. However, the examiner did not provide an opine on the issue of whether the appellant met the VA definition of insanity at the time of his misconduct. As such, the Board finds that this opinion is inadequate to adjudicate the issue on appeal. In September 2019, VA obtained a VA psychiatric opinion in order to determine if he was insane, by VA regulations, at the time of the commission of the offenses underlying his discharge. His history of reported in-service symptomatology were reviewed, in addition to significant post-service treatment records. After a thorough review of the records, the examiner concluded that the appellant was not insane at the time of his in-service misconduct underlying his discharge. The VA examiner opined that it was less likely than not that the appellant engaged in his misconduct as a result of insanity. The VA examiner also opined that there was no evidence that the appellant's misconduct was the result of a psychiatric disorder, that a psychiatric disability at that time caused a prolonged deviation from normal behaviors, and that a psychiatric disability caused the appellant to depart from accepted standards of his community. Specifically, the VA examiner opined that The records do not substantiate any mental health issues at the time of his assignment at Fort Carson, Colorado. His own words state that he was angry and resentful that he was not being discharged from Vietnam and was required to stay at Fort Carson until October 1969. In spite of claims of PTSD, his conduct is indicative of willful misconduct not a mental health illness. The Board finds the opinion of the VA examiner who conducted the September 2019 VA examination to be the most probative. The September 2019 examiner specifically commented on the criteria that must be met to conform to the definition of insanity under 38 C.F.R. § 3.354(a). Furthermore, this examiner provided a thorough rationale for the opinion that the appellant was not insane at the time he went AWOL based on a review of the appellant's service treatment records, specifically commenting on the evidence of record related to the time frame around his misconduct. The Board acknowledges that the evidence which notes that the appellant was experiencing situational anxiety, due to his father's illness, which may have caused him to experience diminished capacity. However, psychological disorders do not, on their own, constitute insanity. As such, the Board finds that the appellant was not insane at the time of his misconduct beginning in November 1969. Therefore, the insanity exception does not apply, and the appellant is barred from receiving VA benefits. The Board is sympathetic to the appellant. He experienced combat in Vietnam and performed with valor, as demonstrated by his receipt of the Bronze Star Medal. He also experienced stress from his military service, to include combat trauma and is dealing with ongoing psychiatric issues. However, the evidence does not support a finding that would overcome the statutory bar listed in 38 C.F.R. § 3.12(d), specifically that the appellant's OTH Discharge was due to his prolonged period of AWOL. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the character of the appellant's discharge from service as the result of a period of prolonged AWOL is a bar to payment of VA benefits is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board does not have the authority to grant the appellant's claim on an equitable basis, and it is instead constrained to follow specific provisions of law. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.