Citation Nr: 24016331 Decision Date: 04/16/24 Archive Date: 04/16/24 DOCKET NO. 11-09 814 DATE: April 16, 2024 ORDER The appellant's period of active service from June 2004 to April 2008 was valid service for VA service-connected purposes. FINDING OF FACT The appellant manifested insanity - a prolonged deviation from his normal method of behavior due to a mental health disorder - concurrently with the conduct leading to his discharge during his period of active service. CONCLUSION OF LAW The appellant's character of discharge for the period from June 2004 to April 2008 was not a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.156(c), 3.354; Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009); Beck v. West, 13 Vet. App. 535, 539 (2000). REASONS AND BASIS FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from June 2004 to April 2008, including almost one year in Southwest Asia. He was discharged under other than honorable conditions. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, that found the appellant's other-than-honorable discharge was a bar to receipt of VA disability compensation benefits. The appellant was afforded a hearing before the undersigned Veterans Law Judge in March 2023. A transcript of the hearing is associated with the electronic claims file. In December 2015, December 2017, and July 2023, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Whether the character of the appellant's discharge from service constitutes a bar to the receipt of VA benefits, exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code. The appellant essentially seeks "veteran" status. He contends his character of discharge should not be a bar to VA compensation benefits. He also asserts that he was suffering from PTSD at the time of his misconduct. The appellant's service personnel records indicate the following: The appellant enlisted in the United States Marine Corps on June 22, 2004, for a period of four years. He received a pre-service waiver for the disqualifying history of marijuana use. In July 2004, the appellant acknowledged the Marine Corps policy on illegal drug use and alcohol abuse. The appellant served in Operation Iraqi Freedom in Al-Anbar Province, Iraq, from March 2005 to February 2006. In December 2006, the appellant underwent inpatient treatment for alcohol abuse. In December 2006, the appellant sought mental health treatment for PTSD. The treating psychiatrist determined that the appellant was fit for duty and did not render a PTSD diagnosis. In April 2007, the appellant received Non-Judicial Punishment (NJP) for the following offenses: unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ); failure to obey a lawful order, in violation of Article 92, UCMJ; reckless endangerment for hunting while intoxicated, in violation of Article 134, UCMJ; and committing an act of self-harm while intoxicated, in violation of Article 134, UCMJ; and disorderly conduct, in violation of Article 134, UCMJ. He was sentenced to forfeiture of $380.00 pay per month for one month, which was suspended, 14 days of extra duty, and 14 days of restriction to the unit area. In June 2007, the appellant received NJP for the following offenses: unauthorized absence, in violation of Article 86, UCMJ; resisting apprehension, in violation of Article 95, UCMJ; assault, in violation of Article 128, UCMJ; and being drunk and disorderly, in violation of Article 134, UCMJ. He was sentenced to forfeiture of $357.00 pay per month for one month, which was suspended, 14 days of extra duty, and 14 days of restriction to the unit area. In October 2007, the appellant underwent inpatient treatment for alcohol abuse. In December 2007, the appellant was charged with possession of marijuana, in violation of Article 112a, UCMJ. The command referred the case to a Special Court Martial. In a December 2007 pre-trial agreement, the appellant agreed to pled guilty to the charged offense and waive his rights to an administrative separation board, in exchange for a referral of the charge to the Regimental Commander for disposition under NJP. In January 2008, the appellant received NJP for possession of marijuana, in violation of Article 112a, UCMJ. He was sentenced to forfeiture of $751.00 pay per month for two months, which was suspended, 45 days of extra duty, and 45 days of restriction to the unit area. In March 2008, the command initiated administrative separation actions against the appellant due to drug use. After being notified of the pending separation action, the appellant met with legal counsel, and subsequently waived his rights, to include to the right to appear before an administrative separation board and to submit matters in defense or mitigation, thereby accepting no less than an under Other Than Honorable Conditions discharge. In April 2008, the Commanding General approved the proposed separation action and directed that the appellant be given an under Other Than Honorable Conditions discharge. The appellant was discharged under Other Than Honorable Conditions, with a narrative reason of Misconduct - Drug Abuse, on April 21, 2008. The appellant submitted a request for discharge upgrade with the with the Department of the Navy Board of Correction of Naval Records (BCNR). In a June 2011 decision, the BNCR determined that the appellant's character of discharge was appropriate and denied the appellant's request. Service department findings are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the 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). Based on the above, the agency of original jurisdiction (AOJ) determined that the character of the appellant's discharge from service was a bar to his entitlement to VA compensation benefits. The law, however, provides that such a discharge will not be considered a bar to receipt of VA monetary benefits if it is found that the person was insane at the time of committing the offense(s) causing such discharge. 38 U.S.C. § 5303(b); 38 C.F.R. §§ 3.12(b) and 3.354(b). Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." For purposes related to the character of discharge, an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his 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). 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), and indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity did 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. 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). In Zang, the Court clarified that the phrase "due to disease" applies to all 3 separate components of 38 C.F.R. § 3.354 (a) and, thus, the applicable standard is: 1) due to disease, exhibits a more or less prolonged deviation from his or her normal method of behavior; 2) due to disease, interferes with the peace of society; OR 3) due to disease, has so departed (become antisocial) from the accepted standards of the community to which by birth and education he or she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he or she resides. Significantly, the burden is on the Appellant to submit competent evidence of insanity. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). A servicemember need not show that insanity caused the misconduct that led to discharge, but he/she must show medical evidence confirming insanity existed during the misconduct in question. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). Stated another way, "[m]ental illness is not identical to 'insanity,' and there need be no causal connection between the insanity and the misconduct. The acts leading to the discharge and the insanity must, however, be concurrent." Beck v. West, 13 Vet. App. 535, 539 (2000). The Board observes that the issue of whether a servicemember knew right from wrong and was able to discern the effects of his/her behavior is not germane to a determination of whether such servicemember was insane during service as defined by 38 C.F.R. § 3.354(a). Gardner, 22 Vet. App. at 420. 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). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of appellant. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). In a July 2023 Remand, the Board directed that the AOJ should obtain a medical opinion on the issue of whether the appellant was "insane," under the VA definition provided below. Specifically, the Board directed that: The examiner should respond to the following: (a) Was a psychiatric disability the cause or contribute to the behavior that led to the appellant's discharge in April 2008? (b) Was the appellant insane at the time he committed the acts, in violation of the Uniform Code of Military Justice, that led to his discharge under other than honorable conditions? In providing an answer to these questions, the examiner is advised that, for the purposes of this matter, an insane person is one who, due to disease, exhibits 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. An individual exhibiting such behavior solely as a result of antisocial personality disorder is not considered to be insane. In a December 2023 VA opinion, the examining psychologist diagnosed the appellant with PTSD. The psychologist opined that: It is this examiner's opinion that a psychiatric disability did contribute to the behavior that led to the appellant's discharge in April 2008. Prior to his discharge, the (appellant) had a recent history of significant treatment for Alcohol Dependence, Anxiety Disorder NOS, Opioid Abuse, Adjustment Disorder with disturbance of emotions and conduct. Conduct that arose in conjunction with the (appellant's) Alcohol Dependence appears to have been directly responsible for many of the behaviors leading to his discharge. Alcohol Dependence is a formal mental health diagnosis, and it was disabling for this (appellant) around the time shortly prior to his discharge. In addition, the serious conduct offenses began after the (appellant's) return from a deployment to Iraq, where he was exposed to significant traumatic stressors. It is this examiner's opinion that the Alcohol Dependence and other diagnoses rendered during his in-service mental health treatment were more likely than not caused by, or exacerbated by his experiences during the Iraq deployment. Regarding the issue of insanity, the VA examiner opined that: After a review of the records, it is this examiner's opinion that the Veteran was Not Insane at the time he committed the acts that led to his discharge. He did appear to have a disabling mental health diagnosis (Alcohol Dependence), but there is no evidence in his treatment records that the Dependence was so severe that he was unable to "make further adjustment to the social customs of the community in which he resides." In an accompanying December 2023 PTSD examination, the psychologist stated that the appellant had PTSD, which was related to service, but that he "does not currently have a mental health diagnosis that meets VA regulations for insanity." As noted in Beck, VA's definition of insanity is "broad," and there need not be a causal connection between the "insanity" and the misconduct. Beck, 13 Vet. App. at 539 (citing Zang). The VA examiner's opinion did not fully comply with the Board's remand directives. She found that the appellant did not meet the definition of insanity because his alcohol dependence was not severe enough to render him unable to make further adjustments to the social customs in his community. However, the legal standard for "insanity" contemplates that, due to disease, the appellant exhibited a more or less prolonged deviation from his normal method of behavior. The fact that the appellant deviated in a prolonged manner from his normal behavior is a reasonable inference in this case. The VA examiner specifically stated that the appellant's problems with serious misconduct began after his deployment from Iraq. The VA examiner further stated that the appellant's alcohol dependence was caused his experiences in Iraq, and was "directly responsible for many of the behaviors leading to his discharge." She additionally referenced his alcohol dependence, a formal mental health diagnosis, was "disabling" for this appellant "around the time shortly prior to his discharge." (continued on the next page) Based on the definition of insanity as interpreted by Zang, Beck and Gardner, the Board concludes that the appellant met the definition of insanity which is a defense to the willful misconduct bar. The VA examiner's opinion articulates that the appellant's deployment in Iraq caused a mental health disorder, that such mental health disorder was responsible for his behaviors leading to his discharge, and that his misconduct was a deviation from his normal behavior. As such, the Appellant's period of active service from June 2004 to April 2008 was valid service for VA service-connected benefit purposes. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.