Citation Nr: 0000075 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 97-29 054A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether or not the character of the appellant's discharge is a bar to VA benefits, and if so, whether the appellant was insane at the time of the offenses that caused the discharge. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The appellant served on active duty from May 1968 to August 1970, and was separated from service under conditions other than honorable. This matter initially came to the Board of Veterans' Appeals (Board) from a June 1996 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which determined that there was no evidence that the appellant was insane at the time of his offenses that caused his discharge under conditions other than honorable. A notice of disagreement was received in January 1997. A statement of the case was issued in March 1997. The appellant's substantive appeal, including a request for a personal hearing was received in April 1997. In July 1997, the appellant appeared and testified before a hearing officer at the RO. In March 1999, the appellant appeared and testified at the RO before the undersigned member of the Board. An unappealed May 1979 administrative decision by the RO found that the appellant's discharge was a bar to VA benefits. The RO has treated the current application as a reopened claim, as the veteran has raised the question of his sanity and has submitted medical evidence to support his position. In any event, new and material evidence is not required, as finality as it is understood under 38 U.S.C.A. § 5108 does not apply to decisions denying veteran status. D'Amico v. West, 12 Vet. App. 264 (1999). The appellant is always free to apply for reconsideration of such decisions. The Board will consider the application on the merits, as did the RO. FINDINGS OF FACT 1. The appellant's active military service was terminated in August 1970 by a discharge under other than honorable conditions. 2. The appellant's discharge from military service was the result of being absent without leave (AWOL) for a continuous period of at least 180 days. 3. The appellant was not insane at the time that he began his unauthorized absence. 4. There were no compelling circumstances to warrant the appellant's prolonged period of AWOL. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 101(18), 5303 (West 1991); 38 C.F.R. § 3.12 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The medical records prepared in connection with his induction show that in March 1968, the appellant was diagnosed with neurotic depressive reaction. The examiner noted that the appellant had been upset about becoming incapacitated due to an injury to his finger, and he began to drink rather heavily. He started another job and was able to function fairly well, except he drank at lunchtime. Aside from difficulty sleeping, he did not exhibit somatic signs of depression or suicidal ideation. The examiner opined that the drinking was a severe problem secondary to the depression. Overt signs of psychosis or neurotic disturbance were not elicited. The examiner determined that even though the appellant failed the mental test, he was not retarded to the point that he could not function in service. The service records show that the appellant was AWOL for the following periods: June 1, 1969 to June 14, 1969; June 30, 1969 to August 20, 1969; and from November 15, 1969 to June 21, 1970. In June 1970, it was determined that the appellant was to be discharged for the good of the service, and that an undesirable discharge certificate was to be issued. In June 1977, the appellant's discharge was upgraded under a Department of Defense Discharge Review Program (Special). The discharge of under conditions other than honorable was upgraded to under honorable conditions. However, in 1978 the United States Army Discharge Review Board determined that the appellant would not qualify for an upgrade under the New Uniform Standards for Discharge. In a May 1979 administrative decision, the RO determined that the appellant's discharge in August 1970 is a bar to VA benefits for the period of his service from May 1968 to August 1970, except for insurance rights. It was further decided that he was not entitled to health care under Chapter 17 of Title 38 USC. In an October 1995 letter from the executive director at the Woodward Mental Health Center, it was noted that the appellant's case records had been destroyed. There was a notation that he had been admitted to Woodward's program in January 1965, and left the program in March 1965. At that time, he was diagnosed with passive-aggressive personality. Also, at that time, the mental health program was considered a school for emotionally troubled children. In an October 1995 letter from the Otisville Correctional Facility, it was noted that there were not any records of the appellant's stay at the school. In a November 1995 letter from a program director and physician with the Southeast Nassau Guidance Center, it was noted that the appellant was treated by that agency from 1980 to 1981, in 1984, in 1991, and in 1994. It was noted that the appellant had a history of chronic alcohol dependence, as well as abuse of cannabis, cocaine and psychoactive substance in 1994. The appellant reported that his substance abuse history was related to psychological and emotional problems dating back to the eighth grade when he was sent to Otisville State Training School for Boys. He also noted that he was discharged to Woodward Mental Health Center when he was 15 years old for psychiatric treatment. He claimed that he abused substances to self-medicate his psychological and emotional problems. A VA examination was conducted in November 1995. The appellant recounted his history of difficulties during his childhood and teenage years. He reported that during service, he did not like the place and that people made fun of him. He had problems with the others and the officers. He requested help for his emotional problems. He was not allowed to see a physician and a sergeant threatened to beat him. He could no longer cope, and went AWOL. He ended up going to New York and abused alcohol, heroin and barbiturates. He developed hepatitis and was treated at St. Albans Naval Hospital. When his condition improved, he was arrested and brought to Fort Dix. He was then separated from service and given an undesirable discharge. Since that time, it was upgraded and he has been working. However, he had problems maintaining employment and continued problems with alcohol and substance abuse. The examiner observed that the appellant was casually dressed and neat in appearance, and that he was spontaneous, talkative, coherent and relevant. He mostly discussed the emotional and learning problems he had prior to his entry into service. The examiner noted the history of alcohol and substance abuse, as well as a history of shakes, blackouts and seizures. There was no evidence of panic attacks, phobias, obsessive/compulsive disorders, psychosis, major depression or psychothymia. He was well oriented. Memory was good and retention recall was intact on testing. The examiner diagnosed alcohol dependence, polysubstance abuse in partial remission, and rule out residual ADHD and learning disorder not otherwise specified. During his hearings in 1997 and 1999, the appellant testified regarding an incident where he had blacked out or was not conscious of his actions and was wearing a jacket that belonged to someone else. He recalled that he needed an NCO's jacket to purchase liquor from a store. He was arrested and jailed. A psychological assessment had not been conducted. He went AWOL after that incident, and the appellant's father recalled that he came home on a pass around 1969 or 1970. The appellant went to a physician because he became ill and had to be hospitalized. The physician who treated him is deceased. He was treated at St. Albans Naval Hospital for at least several months. During his hearing in 1999, he testified that he had be hospitalized and treated for infectious hepatitis he contracted when he had a tattoo colored over. He was taken back to the Brooklyn Naval Yard and was beaten. He then faced charges for being AWOL. He testified that the AWOL period included the time he spent at the hospital and the time he spent facing charges for his absence. Since service, he has been treated for psychiatric disorders, but was not certain what his particular diagnoses are. During service, he had asked for medical help and had to go on sick call. However, the first sergeant would go along and threaten him when he expressed doubts about his fitness for service. He testified that he had psychiatric problems prior to his entry into service and that those problems were aggravated during service. Legal Analysis As an initial matter, the issue in this case is one of status, i.e., whether the appellant is a "veteran" as that term is defined by law. 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.A. § 101(2) (West 1991). Benefits are not payable where the former service member was discharged or released under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6) (1999). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time he committed the offense which caused such discharge or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(a),(b) (West 1991); 38 C.F.R. § 3.12(b) (1999). As discussed, the appellant received an upgraded discharge in 1977 under a special discharge review program. Under 38 C.F.R. § 3.12(c)(6), an honorable or general discharge awarded under the Department of Defense's special discharge review program effective April 5, 1977, as noted under 38 C.F.R. § 3.12(h)(2), does not remove the bar to benefits, unless a discharge review board, established under 10 U.S.C. 1553, determines an upgrade would be awarded under the uniform standards set forth in 38 C.F.R. § 3.12(g). That is not the case here since in 1978 the United States Army Discharge Review Board determined that the appellant would not qualify for an upgrade under the New Uniform Standards for Discharge. The bar to benefit entitlement does not apply if there are compelling circumstances to warrant a prolonged unauthorized absence. 38 C.F.R. § 3.12(c)(6) (1999). In determining whether compelling circumstances warranted the prolonged unauthorized absence, the length and character of service exclusive of the period of the unauthorized absence will be considered. This period should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the nation. Additionally, consideration may be given to reasons offered by the claimant including family emergencies or obligations. These reasons 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 person himself or herself 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. The existence of a valid legal defense that would have precluded conviction for absence without leave is also a factor to be used in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence. 38 U.S.C.A. § 5303 (West 1991); 38 C.F.R. § 3.12(c)(6)(i-iii) (1999). In this case, the appellant has argued that he was hospitalized due to infectious hepatitis and that he was insane when he went AWOL. Regarding the period of hospitalization, a review of the service records shows that in August 1969, the appellant absented himself from his organization at the U.S. Naval Hospital in St. Albans, New York. However, the AWOL period that corresponds with this record was not the period that was in excess of 180 days. Here, the records show that the appellant was AWOL from November 15, 1969 to June 21, 1970, and the evidence of record is void with regard to demonstrating that there were compelling reasons that warranted the appellant's absence. 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 (1999). In addition, the Board notes that with regard to insanity, the United States Court of Appeals for Veterans Claims (Court), has held that the statute requires that the insanity exist only at the time of the commission of an offense leading to a person's discharge and not that insanity must cause the misconduct. That is, there need not be a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). In this case, the evidence indicates that the appellant had been admitted to psychiatric programs prior to his entry into service, and that passive-aggressive personality was diagnosed in 1965. When he entered service in 1968, a diagnosis of neurotic depressive reaction was made. At that time, overt signs of psychosis or neurotic disturbance were not elicited. Therefore, it is clear that the appellant had psychiatric problems when he entered into service. However, the evidence contains no competent medical opinions which indicate that the appellant was insane at the time he went AWOL. His own opinion is not competent in this respect. The applicable law is clear that a showing of neurological impairment or a psychiatric disorder is not per se equivalent to a showing of insanity, and none of the evidence of record contains medical opinions that demonstrate that the appellant was insane at the time he went AWOL for a period in excess of 180 days. Therefore, it is reasonable to conclude that the appellant was not insane at the time he went AWOL in excess of 180 days. In summary, the foregoing evidence does not show that the appellant was insane at the time he went AWOL for a period of more than 180 days, or that there were compelling circumstances for him to have done so. Accordingly, there is no applicable exception to the general rule that an other than honorable discharge is a bar to VA benefits. 38 C.F.R. § 3.12(c)(6) (1999). As noted above, the appellant was AWOL at various periods of his service, and none of his service was associated with hardship of foreign service, combat wounds, or service- related disability, which are factors for consideration in prolonged absences. Therefore, the Board finds that for the period that the appellant was not absent, his service was characterized by behavior that is not consistent with the honest, faithful, and meritorious service for which VA benefits were intended. The evidence of record leaves no doubt that the appellant was discharged under other than honorable conditions, and that he was absent without official leave for a continuous period of at least 180 days. This type of discharge is clearly a bar to entitlement to VA benefits. Based upon the evidence of record, the Board finds that the appellant was not insane at the time he went AWOL for more than 180 days, and that compelling circumstances have not been shown which warrant his prolonged unauthorized absence. Accordingly, the appeal is denied. ORDER The character of the appellant's discharge from service constitutes a bar to the payment of VA benefits; therefore, the appeal is denied. J. E. Day Member, Board of Veterans' Appeals