Citation Nr: 23018024 Decision Date: 03/22/23 Archive Date: 03/22/23 DOCKET NO. 17-53 036 DATE: March 22, 2023 ORDER The character of the appellant's discharge from active military service for the period from November 10, 1999, to December 20, 2002, is a bar to the receipt of VA benefits, other than health care under Chapter 17, Title 38 United States Code; the appeal is denied. FINDINGS OF FACTS 1. The appellant served in the United States Army from November 10, 1999, to December 20, 2002, for which he received a discharge under other than honorable conditions (UOTHC). 2. The appellant's discharge UOTHC was the result of willful and persistent misconduct. 3. There has been no removal of any bar to VA benefits via an upgrade to the appellant's character of discharge. 4. The appellant was not insane at the time of the misconduct for which he received his discharge. CONCLUSION OF LAW The character of the appellant's discharge from service for the period from November 10, 1999, to December 20, 2002, is a bar to his receipt of VA benefits, other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. §§ 101(2), 5103, 5103A, 5303; 38 C.F.R. §§ 3.1(d), 3.12, 3.159, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served in the United States Army from November 10, 1999, to December 20, 2002, from which he was separated UOTHC for misconduct. See DD Form 214. The appellant was afforded an August 2021 Board hearing before the undesigned, and a transcript has been associated with the record. See Hearing Transcript. In November 2022 the Board remanded the appeal in order to obtain a VA opinion as to whether the Veteran was insane at the time of the offenses leading to his UOTHC discharge. See BVA Decision. An opinion was obtained in January 2023, such that there has been substantial compliance with the remand directives. See VA Examination Mental Disorders DBQ; see Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance, not absolute compliance, is required for remands). In its administrative decision, the agency of original jurisdiction (AOJ) determined that the appellant's service for the period from November 10, 1999, to December 20, 2002, was dishonorable for VA purpose and therefore acted as a bar to entitlement to eligibility to VA benefits. The question for the Board is whether the appellant's character of discharge is a bar to the receipt of VA compensation 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). VA determined the character of the appellant's discharge from service is a bar to the receipt of VA compensation benefits under 38 C.F.R. § 3.12(d)(4). Under 38 C.F.R. § 3.12(d)(4), a discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. Such discharge is a 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. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Additionally, a discharge because of a minor offense will not be considered willful and persistent if service was otherwise honest, faithful, and meritorious. Service treatment records show that on a medical prescreening form the Veteran reported in September 1999 previously having used marijuana. See STR-Medical. Military personnel records show that in October 1999 the Veteran initialed acknowledgment that usage of drugs or marijuana would disqualify him for the Military Occupational Specialties and indicated that he understood the Army's policy on alcohol and drug abuse, and the need to prevent it. See Military Personnel Record. The Veteran admitted to experimental use of tetrahydrocannabinol on 5 occasions from January 1998 to March 1999. See DPRIS Response. On October 6, 2001, the Veteran was counseled for failing his Army Physical Fitness Test (APFT) runs with the platoon in Kosovo. See DPRIS Response. On October 16, 2001, he was again counseled after his second failure of the APFT. On January 11, 2001, he again failed the APFT and was counseled for such. On January 30, 2002, the Veteran was counseled for falling out of company and platoon physical test runs. See STR-Medical. On March 25, 2002, the Veteran was counseled for his appearance in uniform and being late. Again, on March 26, 2002, the Veteran was counseled for his appearance in uniform. In an April 5, 2002, sworn statement the Veteran admitted using illegal drugs on April 15, 2001, December 14, 2001, March 16 and 30, 2002. See DPRIS Response. The Veteran reported that he knew the ecstasy and marijuana were illegal but felt like trying it. An April 8, 2002, criminal investigative division report showed the Veteran had wrongfully distributed, possessed, and used ecstasy as well as wrongfully used marijuana. In April 2002 the Veteran was treated inpatient and assessed as having adjustment disorder and antisocial personality disorder. See STR-Medical. An April 10, 2002, disciplinary counseling form indicated that he was recommended for a field grade Article 15 for several controlled substances violations to which he had admitted. See STR-Medical. Specifically, he admitted to wrongful use/possession and distribution of ecstasy and wrongful use/possession of marijuana. The Veteran's personnel records show that on April 18, 2002, he was charged with violating Article 112a under the Uniform Code of Military Justice (UCMJ) for wrongful use, possession, etc., of controlled substances. An April 22, 2002, Record of Proceeding indicated that on or about March 20, 2002, he wrongfully used marijuana, in violation of Article 112a, UCMJ. See Military Personnel Record. A continuation of the charging sheet referenced an April 15, 2001, wrongful use of ecstasy and a March 16, 2002, wrongful distribution of one pill of ecstasy. In May 2002 a Record of Proceedings Under Article 15, UCMJ indicated the Veteran failed to obey a lawful order from a senior noncommissioned officer to stay away from a Mrs. H., in violation of Article 91. His punishment included partial forfeiture of pay, extra duties and restrictions. See Military Personnel Record. Service treatment records show that in May 2002 the Veteran ingested all his Prozac, which he reported was to prevent going to the field rather than a suicide attempt, however, he was sent to the emergency room for suicidality with intent or imminent plan. See STR-Medical. He was upset he was being punished after having an affair with another soldier's wife. Then, on May 3, 2002, he was charged with violating Article 91, for insubordinate conduct towards a noncommissioned officer. On September 1, 2002, the Veteran was counseled for failure to obey an order by a Non-Commissioned Officer when he was seen with another soldier's wife even though it had been explained to him why he could not be with her on August 20, 2002. See STR-Medical. Service treatment records from October 2002 show that the Veteran reported having depression or excessive worry, being evaluated for a mental condition, attempted suicide, and using illegal drugs. See STR-Medical. The examiner indicated that the Veteran had four visits to mental health and had been treated for anger management. The Veteran underwent a mental status evaluation when he was being considered for discharge due to misconduct, and it was determined that his behavior was normal, he was fully alert and oriented, with unremarkable mood or affect, clear thinking process, normal thought content and good memory. As such, the psychiatrist determined that the Veteran had the mental capacity to understand and participate in proceedings, was mentally responsible, and met retention requirements. He was psychiatrically cleared for any administrative action deemed appropriate by command. On October 2, 2002, the Veteran was counseled for failure to be at his appointed place of duty. See STR-Medical. A November 6, 2002, Request for legal processing indicated that the Veteran should be discharged UOTHC due to commission of a serious offense. See Military Personnel Record. The Veteran was considered to consistently do drugs and have no desire to be in the Army and had two Article 15s within 3 months. A November 20, 2002, memorandum recommended separation because the soldier admitted use of marijuana and ecstasy, and possession and distribution of ecstasy. See Military Personnel Record. Further, the Veteran was noted to have disobeyed a lawful order given to him by a senior noncommissioned officer on two occasions. It was noted that the Veteran had been awarded an Army Service Ribbon and National Defense Service Ribbon. Nevertheless, he was recommended for an UOTHC discharge. A memorandum for separation was prepared December 4, 2002, indicating that the Veteran would be issued an UOTHC discharge, and reduced to the lower enlisted grade. The Major General indicated that the soldier's conduct was prejudicial to the good order and discipline of the installation. See Military Personnel Record. Another memorandum of the same date indicated that the Veteran had been notified on November 20, 2002, that he was subject to separation for abuse of illegal drugs, to wit, use of marijuana, possession and distribution of ecstasy and disobeying a noncommissioned officer. Further, the Veteran submitted an unconditional waiver, which was approved by the Staff Judge Advocate. An August 2014 psychosocial assessment indicated that the Veteran was sent to a psychiatric ward at Fort Stewart before his discharge in 2003 and given psychotropic medications for what was reported to be borderline schizophrenia. See STR-Medical. The Veteran reported being treated for alcohol abuse while in the Army in 2002 and receiving no psychiatric treatment since discharge. The Veteran reported that because he dated a woman who was married to another soldier, and helped her get a divorce, he was given the option of a misconduct charge for adultery or an other than honorable discharge, and he took the latter. He reported being humiliated in front of the troops. The Veteran described being part of a peacekeeping mission in Kosovo when 9/11 occurred, and getting into full battle rattle, red alert status. This examiner indicated that the Veteran met criteria for major depressive disorder, appeared to have a problem with alcohol abuse, and a rule out for borderline personality disorder seemed appropriate. DSM-5 diagnoses were of unspecified psychotic disorder, major depression recurrent, PTSD, alcohol use disorder and rule out borderline personality disorder. An April 2015 Administrative Decision determined that the Veteran's character of discharge was considered under other than honorable conditions for VA purposes, due to willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4). See Administrative Decision. The decision determined that the offenses from April 2002 for wrongful use, possession of controlled substances, and May 2002 insubordinate conduct towards a noncommissioned officer were not minor and constituted willful and persistent misconduct. At his hearing, the Veteran confirmed that he has never applied for an upgrade to his service with the Army Discharge Review Board. See Hearing Transcript. The representative raised the issue of insanity as a defense to the willful and persistent misconduct discharge. As such, in November 2022 the Board remanded the claim and the Veteran was afforded a January 2023 VA examination for mental disorders, which is discussed in detail below. See VA Examination Mental Disorders DBQ. The determination as to whether a discharge is based on willful and persistent misconduct is a matter of fact to be determined by the Board. See Stringham v. Brown, 8 Vet. App. 445, 447 (1995); see also 38 C.F.R. § 20.1303. Under 38 C.F.R. § 3.1(n), the term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). The Board finds that the appellant's repeated disciplinary infractions to include his marijuana and ecstasy use, and failure to obey lawful orders, especially considering his sworn statement that he knew such drug use was wrong, demonstrates both willful and persistent misconduct, which involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Having reviewed the relevant evidence of record, the Board finds the appellant's discharge under conditions other than honorable is based on offenses involving willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4). These were not isolated or minor offenses, and the Veteran's service was not otherwise honest, faithful, and meritorious service. Indeed, the Veteran's disciplinary record shows that he was counseled on multiple occasions. Under these circumstances, the appellant's character of discharge is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d). An exception to the bar to VA benefits under 38 C.F.R. § 3.12(d) is if the appellant was insane at the time he committed the offenses that lead to his discharge. Regarding the defense of insanity, an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) 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). In May 1997, the 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 normal method of behavior could best be 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, 62 Fed. Reg. 37955 (1997). The opinion provided guidance with regard to the phrases "interferes with the peace of society," "become antisocial," "accepted standards of the community," and "social customs of the community." Generally, insane behavior includes a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the individual is unable to understand the nature, full import, and consequences of his acts; he is a danger to himself or others. He is rendered incapable of managing himself or his affairs, a concept akin to the level of incompetency generally supporting appointment of a guardian. The term "constitutionally psychopathic" refers to a condition that may be described as an antisocial personality disorder. The term "become antisocial" refers to the development of behavior that is hostile or harmful to others in a manner that deviates sharply from the social norm and that is not attributable to a personality disorder. Id. Pursuant to the Board remand, a VA opinion was provided as to the likelihood that the Veteran's conduct leading to discharge was due to insanity, and based on the record review and examination the opinion provided is accorded great probative value. The January 2023 VA examiner provided a negative nexus opinion. See VA Examination Mental Disorders DBQ. Specifically, the examiner opined it was as likely as not that the Veteran had a diagnosis of unspecified depressive disorder in the service, reasoning that he attempted suicide in service, and service treatment records show that a depressive diagnosis was considered. The examiner also opined that it was less likely than not that due to disease the Veteran exhibited more or less prolonged deviation from his normal method of behavior concurrent with his misconduct. It was also less likely than not that due to disease he interfered with the peace of society concurrent with his misconduct in the service. Further, it was less likely than not that due to disease he departed (became antisocial) from the accepted standards of the community to which by birth and eduction he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his misconduct in service. The examiner reasoned that the Veteran had used marijuana prior to service, which delayed his entry into service. See VA Examination Mental Disorders DBQ. The Veteran then used drugs while in the service, for which he was punished. There was no evidence of psychosis in the service treatment records, although there was evidence of possible depression and or personality disorder that led to a suicide attempt and hospitalization. After the service, the Veteran had experienced psychotic symptoms which appeared to be mainly in the context of substance use. There was not compelling evidence of psychotic symptoms present during service that would support insanity defined as a condition involving conduct which deviates severely form the social norm or interferes grossly with the capacity to meet the ordinary demands of life. The examiner also took noted of the VA General Counsel's holding that behavior which is generally attributable to a particular substance-abuse disorder does not exemplify the severe deviation from the social norm or gross nature of conduct which is generally considered to fall within the scope of the term insanity and therefore, does not constitute insane behavior under 38 C.F.R. § 3.354(a); see VA Examination Mental Disorders DBQ. Outside of the context of substance use, the examiner opined that there was no evidence found in the record to indicate the Veteran did not have a sense of reality while in service. Further, the Board notes that the mental status examination at the time of discharge indicated that the Veteran's behavior was normal, he was fully alert and oriented, with unremarkable mood or affect, clear thinking process, normal thought content and good memory. As such, the psychiatrist determined that the Veteran had the mental capacity to understand and participate in proceedings, was mentally responsible, and met retention requirements. He was psychiatrically cleared for any administrative action deemed appropriate by command. See STR-Medical. The Board finds the weight of the evidence is against finding that the appellant had a deviation from his normal method of behavior, interfered with the peace of society, or lacked the adaptability to make further adjustment to the social customs of the community in which he resided. Thus, the insanity exception to the bar to VA benefits is not applicable. Further, as noted, there has been no removal of any bar to VA benefits via an upgrade to the appellant's character of discharge. Under these circumstances, the Board must conclude that that the character of the appellant's discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code, and that, thus, the claim on appeal must be denied. There is no reasonable doubt to be resolved in the appellant's favor on any matter material to this determination. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.