Citation Nr: 25013169 Decision Date: 10/22/25 Archive Date: 10/22/25 DOCKET NO. 17-26 933 DATE: October 22, 2025 ORDER The character of the Appellant's discharge does not constitute a bar to the receipt of Department of Veterans Affairs (VA) benefits; the appeal is granted. FINDINGS OF FACT 1. The Appellant's in-service misconduct was willful and persistent, and included an unauthorized absence of more than 180 continuous days. 2. The Appellant met VA's definition of insanity at the time of the misconduct leading to discharge. CONCLUSION OF LAW The criteria for establishing status as a veteran for the purposes of receiving VA benefits have been met. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty with the United States Marine Corps from August 1973 to June 1976; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals on appeal from a May 2015 administrative decision issued by the agency of original jurisdiction (AOJ), a VA Regional Office, which determined the Appellant's military service does not entitle him to VA benefits. This case was previously before the Board in November 2020, when the appeal was denied. The Appellant filed a motion for reconsideration, which the Board denied in May 2021. The Appellant then appealed the case to the United States Court of Appeals for Veterans Claims. In August 2023, the Court issued a memorandum decision vacating the Board decision finding that the character of the Appellant's discharge was a bar to the payment of VA benefits, and remanding the case for further proceedings. Since that time, this case was before the Board in April 2024, when it was remanded for development. The case has been returned to the Board for further appellate review. Status as a Veteran 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 a 'veteran' for VA purposes. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term veteran means 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). 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. § 5303; 38 C.F.R. § 3.12(a). There are two types of character of discharge bars establishing entitlement for VA benefits: (1) statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c); and (2) 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: (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 absence without official leave (AWOL) for a continuous period of at least 180 days. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12 (c). A recent amendment to the regulation governing character of discharge updated the regulatory bars enumerated in section 3.12(d). See Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 89 Fed. Reg. 32,361 (April 26, 2024) (codified at 38 C.F.R. pt. 3) (effective June 25, 2024). Under the amended subsection, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of a discharge under other than honorable conditions or its equivalent in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); and (4) willful and persistent misconduct. 38 C.F.R. § 3.12(d). 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. The term "willful misconduct" means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Additionally, for discharges based on willful and persistent misconduct, instances of minor misconduct occurring within two years of each other are defined as persistent; an instance of minor misconduct occurring within two years of more serious misconduct is persistent; and instances of more serious misconduct occurring within five years of each other are persistent. For purposes of the willful and persistent misconduct bar, minor misconduct is misconduct for which the maximum sentence imposable pursuant to the Manual for Courts-Martial United States would not include a dishonorable discharge or confinement for longer than one year if tried by general court-martial. 38 C.F.R. § 3.12(d)(2)(ii) (effective June 25, 2024). The recent amendments to the regulation governing character of discharge allow VA to apply the compelling circumstances exception to cases involving willful and persistent misconduct and offenses involving moral turpitude, formerly only available in cases with absences without official leave (AWOLs) exceeding 180 continuous days. See Update, 89 Fed. Reg. 32,361 (amending 38 C.F.R. § 3.12(d)-(e)). The bar to benefits will not be applied if compelling circumstances mitigate the prolonged AWOL or misconduct at issue. 38 C.F.R. § 3.12(e) (effective June 25, 2024). In a compelling circumstances determination, VA will consider the length and character of service exclusive of the misconduct, the reasons for the misconduct, and whether a valid legal defense would have precluded a conviction under the Uniform Code of Military Justice (UCMJ). Lastly, a finding that a person was 'insane' under VA regulations at the time of the misconduct leading to discharge will lift any bar to benefits enumerated in section 3.12. 38 C.F.R. § 3.12(b). An insane person is defined in VA regulations 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). Although 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 Beck v. West, 13 Vet. App. 535, 539 (2000). Here, the Appellant enlisted in the Marine Corps in August 1973, after completing three years of high school. In June 1974, the Appellant received a nonjudicial punishment (NJP) for communicating a verbal threat. In September 1974, the Appellant received another NJP for unauthorized absence from September 4, 1974, to September 17, 1974; being disrespectful to a superior commissioned officer; and for willful disobedience of a lawful order. In June 1976, the Appellant was charged with unauthorized absence from September 20, 1974, until on or about March 3, 1975, and unauthorized absence from March 5, 1975, until on or about June 10, 1976, which was terminated by apprehension by civilian authorities. the Appellant affirmed that, during this period of absence, he had been arrested and convicted by civil authorities. The Appellant's commander referred the case to trial by special court-martial. The Appellant was placed in pre-trial confinement from June 10, 1976, until June 15, 1976. While he was pending trial, the Appellant requested a discharge for the good of the service in lieu of court martial. The Commanding General reviewed the Appellant's military history, to include his history of misconduct, and approved the separation. The Appellant was discharged from service in June 1976 under other than honorable conditions. In February 2010, the Appellant filed an application with the United States Navy Board for the Correction of Naval Records (BCNR) to upgrade the character of his discharge. He asserted that he was distraught and distressed at the time of his misconduct, which led him to use drugs during this time period. The BCNR determined that the application was incomplete and returned the application without any action taken on his request. The Appellant has not submitted another application. In March 2011 or 2012 (the record is unclear regarding the date), the Appellant volunteered to be screened for a study on PTSD and addiction problems among incarcerated men. Based on his positive screening and test scores, he was assigned a treatment group and attended 90-minute sessions twice a week for 12 weeks. In May 2017, the Appellant submitted a written statement reporting that he experienced a military sexual trauma (MST) during service, and that this caused him to experience psychological symptoms that he self-medicated with alcohol and drugs. The Veteran's private treatment records reflect that, as of December 2017, one of his active diagnoses was unspecified trauma- and stressor-related disorder. In September 2020, VA obtained a VA opinion on the issue of insanity based on a review of the record. The VA psychiatrist opined that it was less likely than not that the Appellant engaged in his misconduct as a result of insanity. The VA examiner 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, or that a psychiatric disability caused the Appellant to depart from accepted standards of his community. The examiner explained that the only evidence of psychiatric symptoms around the time of the misconduct leading to discharge came from the Appellant's own description of the MST he first reported during the course of this appeal. The examiner questioned the credibility of the Appellant's reports given the lack of contemporaneous evidence and the tone of the Appellant's written statement, which the examiner found to be inconsistent, overly detailed, and theatrical. The examiner noted that it was possible the Appellant was a victim of MST, but concluded it was reasonable that his history of criminal conduct and substance use contributed to his misconduct rather than psychological symptoms arising from an MST. In February 2025, the Appellant attended a VA psychiatric examination, at which the examiner identified a current diagnosis of PTSD with symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and suicidal ideation. The examiner opined that the Appellant's PTSD was at least as likely as not caused by the MST stressor in service and that the Appellant expressed feelings of helplessness, anger, confusion, anxiety, and distrust of authority figures following the MST. The examiner opined that the Appellant's misconduct and unauthorized absences following the MST correlated to his feelings that he was unable to get justice from his superior officers, and represented a more or less prolonged deviation from his normal method of behavior as well as interference with the peace of society and an inability to adapt to the social customs of the community in which he resided. In March 2025, the AOJ obtained an addendum opinion. After reviewing the record, the examiner concluded there is no indication that the Appellant is deemed insane. The examiner reasoned that the Appellant had not brought up the issue of insanity, and there is no evidence that he can prove he was mentally incapacitated at the time of the misconduct leading to discharge. After careful review of the evidence of record, the Board finds the Appellant has established status as a veteran in this case. First, the Board finds the Appellant's misconduct in service was willful and persistent. See 38 C.F.R. § 3.12(d)(2)(ii). The Appellant received two NJPs within four months of each other for multiple violations of the Uniform Code of Military Justice, and then left on unauthorized absence for over 160 days followed within days by an unauthorized absence of more than a year. As all these instances of misconduct occurred within two years of each other, they are persistent under VA's definition. See id. As the Appellant had knowledge that these were prohibited actions and undertook them regardless, the misconduct is also willful. The Board further finds that the Appellant was absent without official leave for more than 180 continuous days. See 38 C.F.R. § 3.12(c)(6). His final unauthorized absence was approximately 463 days, from March 1975 to June 1976. Therefore, two bars to benefits are applicable in this case. Next, the Board finds the bars to benefits are lifted as the Appellant was insane at the time he committed the misconduct leading to discharge. The Board acknowledges that two of the three opinions in the record concluded that the Appellant was not insane at the time of the misconduct. However, the Board assigns these very low probative weight for the following reasons. The March 2025 addendum opinion failed to provide a discussion of the criteria outlined in VA's definition of insanity. See 38 C.F.R. § 3.354(a). Rather, the examiner required a higher standard, opining that the Appellant cannot prove he was mentally incapacitated at the time of the misconduct. The Board finds this opinion to be inadequate and to provide no evidence that will assist VA in making this determination. The September 2020 examiner found the Appellant's statements in his written report not to be credible because they were written in a theatrical and overly detailed way. Because the examiner doubted the credibility of that written report, the examiner concluded there was no evidence of psychiatric symptoms contemporaneous to the Appellant's misconduct in service and therefore it was more reasonable that he was simply continuing a history of criminal conduct and substance use rather than experiencing a deviation from his normal behavior due to a psychiatric disorder. The Board finds this opinion to be inadequate because the examiner did not address the other evidence of record demonstrating a current trauma- and stressor-related disorder, such as the Appellant's February 2010 report to the BCNR of distress and self-medication during service, which was not overly detailed or theatrical, or the March 2011 or 2012 medical record documenting treatment in a PTSD group. In contrast, the February 2025 examiner considered the Appellant's current psychiatric diagnosis and, having interviewed him in person, was better able to judge the credibility of his reports. Upon considering the Appellant's reports and post-service diagnosis and treatment, the examiner concluded that feelings of helplessness, anger, confusion, anxiety, and distrust of authority figures were the context for the Appellant's misconduct including communication of a verbal threat, disrespect to a superior officer, and unauthorized absences. The examiner opined that the Appellant, due to these psychiatric symptoms, experienced an inability to adapt to the social customs of the community in which he resided. The Board finds the Appellant's reports of an in-service MST are credible in this case. Although he did not report the MST in official channels until more than 35 years later, the Board finds the record is consistent in reflecting reports of in-service psychiatric symptoms to the BCNR in February 2010 as well as to VA in May 2017 and to private mental health practitioners in March 2011 or 2012 and since at least December 2017. The September 2020 examiner discounted the Appellant's credibility solely on the May 2017 written report, finding it overly detailed and theatrical. While the report does include small details, the Board finds the remainder of the record corroborates the substance of the Appellant's written statement and therefore finds that the style in which it was written is immaterial to the credibility determination. Likewise, the Board finds the February 2025 opinion adequately considers the evidence of record indicating an in-service stressor, such as the post-service treatment for a stressor-related psychiatric disorder, and assigns this opinion significant probative weight. Weighing the three opinions against each other, the Board finds the Appellant met VA's definition of insanity at the time of the misconduct leading to discharge. As the Appellant was insane at the time of the misconduct leading to discharge, the bars based on willful and persistent misconduct and an unauthorized absence of more than 180 continuous days are not applied in this case. Therefore, the Appellant has established status as a veteran for the purposes of receiving VA benefits. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey 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.