Citation Nr: 18154118
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-14 202
DATE:	November 29, 2018
ORDER
The appellant’s character of discharge is not a bar to the receipt of Department of Veterans Affairs (VA) benefits.
FINDING OF FACT
The appellant was insane at the time of the conduct that led to his discharge.
CONCLUSION OF LAW
The character of the appellant’s discharge from military service is not a bar to the award of VA benefits other than health care under Chapter 17, Title 38, United States Code. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12.
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant had active service from May 1979 to April 1981. 
In September 2015, a power of attorney (POA) was executed via VA Form 21-22a, listing Samantha Adams, Attorney at Law, as the appellant’s representative. In May 2017, the appellant’s appeal was certified to the Board. Subsequent to the certification of the appellant’s appeal, in correspondence dated in November 2017, the appellant’s representative submitted a letter to the Board indicating that she was withdrawing her representation of the appellant before the VA, and that the appellant had been notified of her intent to withdraw as his representative. Pursuant to 38 C.F.R. § 20.608(b)(2), after an appeal has been certified to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion, and motion must be in writing and must comply with the criteria set forth in 38 C.F.R. § 20.608(b)(2). In accordance with this regulatory provision, the appellant’s representative filed a Motion to Withdraw Representation in November 2017 and review of the submitted Motion reveals that it is compliant with 38 C.F.R. § 20.608(b)(2). That is, the Motion contained those items specified by section 20.608(b)(2); to include an explanation for her decision to withdraw representation of the appellant; the appellant’s name and VA file number; a signed statement indicating that a copy of the motion was sent to the appellant via U.S. mail at his last known address; and proof of filing with the Board’s Principal Deputy Vice Chairman at the correct address. The Motion to Withdraw Representation is granted. No new VA Form 21-22 or 21-22a has been received. Accordingly, the Veteran is unrepresented.
Whether the appellant's character of discharge is a bar to the receipt of VA benefits
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 veteran. 38 U.S.C. §§ 1110, 1131; see Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).
A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c) and regulatory bars listed in 38 C.F.R. § 3.12(d). None of the statutory bars found in 38 C.F.R. § 3.12(c) apply in this case. 
As to the regulatory bars, the provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 
The appellant’s service personnel records show that the appellant was absent without leave (AWOL) from March 17, 1980 to February 17, 1981. He received an other than honorable discharge for conduct triable by a court-martial. During an October 2015 Regional Office hearing, the appellant stated that he was sexually assaulted in service, which led to him being insane during his period of AWOL. 
However, a discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is not a bar to the payment of benefits if the person was insane at the time of committing the offense causing discharge. 38 C.F.R. § 3.12(b). VA regulations define an “insane” person 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). When determining whether a Veteran was insane at the time he committed an offense leading to a court-martial, discharge, or resignation, VA will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. 38 C.F.R. § 3.354(b).
The appellant submitted an October 2015 medical opinion from his VA doctor, Dr. A.M. Dr. A.M. stated that the appellant is diagnosed with posttraumatic stress disorder (PTSD) due to his sexual assault in service. Dr. A.M. also opined that the Veteran was insane at the time that he went AWOL due to the sexual assault in service. 
The Board acknowledges that a finding that the appellant experienced military sexual trauma that led to the behavior that caused his discharge under than other than honorable conditions is insufficient, alone, to conclude that the character of said discharge is not a bar to VA benefits. This is so because under 38 C.F.R. § 3.12, an appellant must be found “insane” before an other-than-honorable discharge may be found not to be a bar to VA compensation benefits.
However, based upon the appellant’s lay statements and Vet Center treatment records, the Board finds that the appellant was insane at the time of the misconduct leading to his discharge. Therefore, his willful and persistent misconduct is not a bar to the receipt of VA benefits. 
 
JENNIFER HWA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Parke 

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