Decision Date: 10/31/95 Archive Date: 11/01/95 DOCKET NO. 93-11 751 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs benefits, except for benefits under Chapter 17, Title 38, U.S. Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran had active service from August 1968 to November 1969. He received an other than honorable discharge from service. An appeal has been taken from an April 1991 determination by the Department of Veterans Affairs (VA) Regional Office, Philadelphia, Pennsylvania, that the character of the appellant's discharge from service constituted a bar to the receipt of VA benefits, except for health benefits. The case was initially before the Board of Veterans' Appeals (Board) in July 1994, when it was remanded for further development. The case is again before the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the character of his discharge from service should not constitute a bar to the receipt of VA benefits since he went absent without leave during service in order to be with his mother who was ill with cancer. The appellant's representative notes that the veteran had been diagnosed as having a severe personality disorder during service and asserts that the veteran should be considered insane in accordance with 38 C.F.R. § 3.354. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter and for the following reasons and bases, it is the decision of the Board that the character of the appellant's discharge from military service constitutes a bar to the receipt of VA benefits, except benefits under Chapter 17, 38 U.S. Code. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office to the extent possible. 2. The appellant served on active duty from August 1968 to November 1969. He received an other than honorable discharge from service. 3. The appellant was absent without leave from August 24 to August 26, 1968; from December 1, 1968, to January 7, 1969; from January 21 to January 31, 1969; and from March 6 to July 23, 1969. 4. The appellant received one nonjudicial punishment and two special courts-martial for his periods of absence without leave. 5. The appellant's offenses during his period of military service were willful and persistent. 6. The evidence does not establish that the appellant was insane at the time of commission of any of the inservice offenses. CONCLUSION OF LAW The appellant was discharged from his period of active service because of willful and persistent misconduct and he was not insane at the time of the inservice offenses. His discharge is considered to have been issued under dishonorable conditions. 38 U.S.C.A. §§ 101, 5107 (West 1991); 38 C.F.R. §§ 3.12, 3.354 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed to the extent possible. The Board notes that the question of sanity of the appellant at the time of the inservice offenses was considered by the regional office in the April 1991 administrative determination. Accordingly, a remand for further consideration of that question by the regional office is not considered to be necessary. I. Background The record reflects that the appellant served on active duty from August 1968 to November 1969. He received an other than honorable discharge from service. The appellant's service records reflect that he was absent without leave for the following periods: August 25 to August 26, 1968; December 1, 1968, to January 7, 1969; January 21 to January 31, 1969; and March 6 to July 23, 1969. He was awarded nonjudicial punishment for the period of absence without leave in August 1968 and was awarded two special courts-martial for the remaining periods of absence without leave. The appellant's service medical records reflect that he was afforded a psychiatric evaluation in August 1969. He stated that his parents had been divorced when he was 3 months of age and that he had been expelled from school when he was in the eighth grade. His police record included arrests for various offenses. At 16 1/2 years of age, he had been placed in a boys' school where he had spent the next 1 1/2 years. It was stated that he had done much drinking and had also taken drugs. He stated that his mother currently had cancer. A diagnosis was made of severe antisocial personality disorder. It was indicated that the appellant had been and was currently mentally responsible, both to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. In a statement signed by the appellant in September 1969, he indicated that he had been advised by counsel of the basis for contemplated action to accomplish his separation based on unfitness. He stated that he waived consideration of his case by a board of officers and that he waived representation by appointed counsel. He also indicated that he had no statements to submit in his own behalf. There are of record 1991 statements from the appellant's brother indicating that their mother had told them in about 1968 that she had had cancer and that the appellant had gone home to see how she was doing. He indicated that their mother had died in July 1982. Records from the Wishard Memorial Hospital, received in 1992, reflect that the appellant's mother was treated at that facility for various conditions from 1979 to 1982. The hospital records indicate that she had a history of cervical cancer with severe residual complications dating back to "1965" or "1969"; however, the records reflect that the carcinoma was "in remission." In September 1994, the VA received the record of proceedings of the Army Board for Correction of Military Records in the appellant's case. The appellant had requested that his undesirable discharge be upgraded to an honorable discharge. He stated that he had been young and his mother had been dying of cancer. He reported that he had requested leave, but his request had been denied. His counsel contended that his discharge had been inequitable because there were mitigating factors. It was reported that the appellant only had an eighth grade education and lacked the aptitude to adjust to military service. It was also noted that he had an antisocial personality disorder which reportedly resulted from the stresses of his mother's illness and his deprived background. The Army Board for Correction of Military Records held that the appellant's application had not been submitted within the time required and that he had not presented, and the records did not contain, sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Accordingly, the appellant's application for correction of his military records was denied. The regional office also, pursuant to a July 1994 remand by the Board, asked the service department to provide copies of the actual court-martial records of the appellant conducted in February and August 1969. In August 1994, the service department provided copies of the available records, consisting of special court-martial orders. III. Analysis A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA benefits. 38 U.S.C.A. § 101. A discharge or release from service under certain conditions is considered to have been issued under dishonorable conditions unless it is found that the person was insane at the time of commission of the offenses causing such release or discharge. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.312(d). 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 in the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply the definition in subparagraph (a). 38 C.F.R. § 3.354(b). In addition, the Board notes that in a recent decision by the United States Court of Veterans Appeals, the Court endorsed pertinent provisions in the VA Adjudication Procedure Manual (M21-1) which set out the application of the insanity defense and the application of the definition of insanity. The Court noted that the M21-1 Manual defined insanity as "whether, at the time of commission of the act(s), the veteran was laboring under such a defect of reason, from disease or mental deficiency, as not to know or understand the nature or consequences of the act(s) or that what he or she was doing was wrong." M21-1, Part VI, § 4.10(c). This provision was found by the Court to be consistent with the statute and the regulation in that it restricted the defense to those cases in which the claimant had received an other than honorable discharge due to conduct which was attributable to some defect of reason, from disease or mental deficiency, and which was beyond his control. The defense was not applicable to those cases in which the claimant had received such a discharge due to acts of misconduct over which he ultimately had control, but failed, in fact, to control. This statute, the regulation and the manual were found to require that the insanity must be such that it legally excused the acts of misconduct. That is, there must be a causal connection between the psychiatric disorder and the misconduct. Cropper v. Brown, No. 92-1187 (U.S. Vet. App. May 23, 1994). In this particular case, as indicated previously, the appellant's service records reflect that he was absent without leave from August 25 to August 26, 1968; from December 1, 1968, to January 7, 1969; from January 21, 1969, to January 31, 1969; and from March 6, 1969, to July 23, 1969. He received nonjudicial punishment and two special courts-martial for those offenses. The appellant has maintained that his periods of absence without leave were prompted by a wish to visit his mother who was ill with cancer. However, records from the Wishard Memorial Hospital reflect that the appellant's mother was treated at that facility for various conditions from 1979 to 1982. Although the records indicated that she had a history of cervical cancer dating back to 1965 or 1969, the records also indicate that the carcinoma was in remission. The death of the appellant's mother did not occur until July 1982, which was many years following his military service. Under the circumstances, the Board is unable to conclude that the appellant's repeated and extended periods of absence without leave during service can be excused by the illness of his mother. The appellant was afforded a psychiatric evaluation during service, in August 1969, and it was found that he had a severe antisocial personality disorder. However, the examiner also found that he had been and was currently mentally responsible and able to distinguish right from wrong and adhere to the right and that he had the mental capacity to understand and participate in board proceedings. Thus, the evidence in the Board's judgment does not establish that the appellant had psychiatric impairment of such nature and severity so as to result in diminished capacity to recognize the nature of and refrain from the inservice offenses which led to his separation from military service. In view of the number and duration of the appellant's periods of absence without leave during military service, the Board concludes that those offenses constituted willful and persistent misconduct as contemplated under 38 C.F.R. § 3.312(d). Under such circumstances, it follows that the appellant's discharge from his period of military service was issued under dishonorable conditions and is a bar to the receipt of VA benefits. The Board has carefully reviewed the entire record in this case, including the testimony presented by the appellant at the June 1991 hearing at the regional office; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER The character of the appellant's discharge from military service constitutes a bar to VA benefits except for benefits under Chapter 17, Title 38, U.S. Code. The appeal is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.