Citation Nr: 18160615
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-38 387A
DATE:	December 27, 2018
REMANDED
The issue as to whether the character of discharge from service is a bar to benefits is remanded.
REASONS FOR REMAND
The appellant served on active duty from March 1965 to September 1967.  His initial character of discharge under other than honorable conditions was upgraded by a Department of Defense Special Discharge Review Board (SDRB) in June 1978 to under honorable conditions.  But see 38 C.F.R. § 3.12(h)(2) (2018).  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA).  
1. Whether the character of discharge from service is a bar to benefits is remanded.
Under VA regulations, a discharge or release from service, including as based upon willful and persistent misconduct, is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided.  See 38 C.F.R. § 3.12(b), (d) (2018).  
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.  In determinations involving insanity causing discharge 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.  See 38 C.F.R. § 3.354 (2018).  
Generally, a former service member applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Court has also held that the Board is required to obtain a medical opinion to determine whether a claimant’s behavior during the offenses that led to his discharge was due to psychiatric disability and, if so, whether this constituted insanity under VA regulations. Gardner v. Shinseki, 22 Vet. App. 415 (2009). 
The appellant asserts that his character of discharge from service should not bar VA benefits. He states he had a qualifying psychiatric disorder due to the stress of war under the provisions of 38 C.F.R. § 3.12.  This matter has not been addressed by VA medical opinion.  As such, additional development is required.

The matter is REMANDED for the following action:
Obtain an opinion from an appropriate mental health clinician. Following a review of the complete record, the should address the question of whether the appellant was “insane” at the time of his service discharge in September 1967.  
The clinician is advised that, for VA purposes, 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.
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.
An individual exhibiting such behavior solely as a result of a substance abuse disorder is not considered to be insane. Behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity.
Rationale should be provided with the opinion.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Douglas, Counsel 

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