Citation Nr: 22061937 Decision Date: 11/03/22 Archive Date: 11/03/22 DOCKET NO. 17-43 060 DATE: November 3, 2022 ORDER The character of the Veteran's discharge for the period from October 29, 2012, through October 21, 2014, is a bar to Department of Veterans Affairs (VA) benefits; the appeal is denied. FINDINGS OF FACT 1. During his second period of service, the Veteran was discharged from military service and received an under other than honorable (OTH) conditions characterization of service. 2. The Veteran requested a discharge in lieu of a general court-martial following an investigation and charges related to assaulting his son, a child under the age of sixteen, and providing false statements to law enforcement related to the assault. 3. The offenses that led to the Veteran's discharge from service, for which the maximum penalty under the Unform Code of Military Justice (UCMJ) is confinement in excess of one (1) year, constituted an act of moral turpitude. 4. The competent evidence does not demonstrate that the Veteran was insane at the time of the offenses giving rise to the under Other than Honorable conditions (OTH) discharge. 5. There has been no removal of any bar to VA benefits by any upgrade to the Veteran's character of discharge. CONCLUSION OF LAW The character of the Veteran's discharge for the period of active service from October 29, 2012, through October 21, 2014, is a bar to VA benefits for this period of service. 38 U.S.C. § 5303; 38 C.F.R. § 3.12, 3.102, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 8, 2009, through October 28, 2012. In a November 2021 decision, the Board determined that this period was honorable service for VA purposes. The Veteran also served from October 29, 2012, through October 21, 2014. He was discharged from this period of service with an Other Than Honorable (OTH) characterization of service, in lieu of facing a general court martial. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2015 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Board remanded the appeal for further development. 1. Whether the character of the Veteran's discharge for the period from October 29, 2012, through October 21, 2014, is a bar to VA benefits. The Veteran seeks recognition as a Veteran for VA purposes based on his period of service. The Veteran contends that he should be entitled to VA benefits, and that his characterization of discharge is improper. Additionally, he contends that he was suffering from PTSD at the time of his misconduct. Relevant Law VA benefits are not payable unless the period of service upon which the claim was based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as dishonorable by the service department is binding on VA as to character of discharge. 38. C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13. Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 240, 241 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification, and the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994), A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception, such as insanity, applies. 38 C.F.R. § 3.12. Specifically, there are two types of character of discharge bars 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). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (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 AWOL for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the exception to AWOL, a person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged, unauthorized absence." 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(6). 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-martial; (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. 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 VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). Specifically, pursuant to 38 U.S.C. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." 38 U.S.C. § 5303(b). 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(a). When the question is whether an individual was insane at the time of an offense leading to his court-martial or discharge, the rating agency will base its decision on all the evidence procurable relating to the period involved and apply the definition of paragraph (a). 38 C.F.R. § 3.354(b). Mental illness is not identical to "insanity." Beck v. West, 13 Vet. App. 535, 539 (2000). The U.S. Court of Appeals for Veterans Claims (Court) has held that the insanity need only exist at the time of the commission of the offense leading to the person's discharge, and that there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence, though, establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). In addition, the Court held that "a determination of whether a person is insane is, in effect, a determination of whether the person's actions were intentional, and, thus, the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a Veteran suffered from insanity due to disease or that he or she did not know or understand the nature or consequences of his or her acts, or that what he or she was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent medical evidence that the Veteran was insane at the time of the offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). In May 1997, VA General Counsel discussed the intended parameters of the types of behavior, which were defined as insanity under 38 C.F.R. § 3.354(a). It was indicated that behavior involving a minor episode or episodes of disorderly conduct or eccentricity does not fall within the definition of insanity in that regulation. It was further indicated that a determination of the extent to which an individual's behavior must deviate from his or her normal method of behavior could be best resolved by adjudicative personnel on a case-by-case basis in light of the authorities defining the scope of the term insanity. VAOPGCPREC 20-97 (May 22, 1997). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran's service records show that he was discharged in October 2014 with an under Other than Honorable (OTH) conditions discharge. The service records indicate the following misconduct: In July 2013, the Veteran was charged with forgery for illegally modifying his vehicle registration and received adverse counseling from his chain of command. In a July 2013 Child Protective Services (CPS) Record Summary, CPS noted that the Veteran's "son indicated he is afraid of his father because he slaps him, hits him, and spanks him with a belt. He also reported the Veteran choked him once and threw him on a bed. Bruises and marks noted on the child's body. (Doctor) said the child is horribly underweight. The doctor did not feel the child was safe to return to his parents' care. Children placed in respite services." In a July 2013 CPS Record Summary, CPS noted that the Veteran "is violent and appears out of control. Handprint bruises on the back of the child's neck while under care of (the Veteran). It is believed father inflicted the injuries, screams at the child, child cowers with his head down in the father's presence, father is not adequately feeding the child, and child is malnourished and underweight for his age." In a July 2013 CPS Record Summary, CPS noted that the Veteran threatened to belt his son in the presence of the nurses. The Veteran and his partner spank the child with a belt, slap him and punch him as punishment. His children were placed in respite due to bruising and the Veteran's out of control behavior. The Veteran was also belligerent to child and staff at hospital. The Veteran presented as frustrated and easily angered in the hospital. The report further indicates that the Veteran's language was inappropriate in front of his son. The Veteran was charged with assault of a child under the age of 16 and giving a false statement by CID. In January 2014, the Veteran's commanding officer charged the Veteran with assault for unlawfully striking his son in the head with a closed fist, in violation of Article 128, Uniform Code of Military Justice (UCMJ); with making false official statements to law enforcement, in violation of Article 107, UCMJ; and with being AWOL from January 8, 2014, to January 18, 2014, in violation of Article 86, UCMJ. Under the UCMJ, the maximum punishment for violation of Article 128 includes a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years; Article 107 includes a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years; and Article 86 includes a maximum punishment of forfeiture of two-thirds pay per month for 6 months and confinement for 6 months. See Manual for Courts Martial, 2012. The Veteran's chain of command recommended that he face a general court martial for his misconduct. In August 2014, the Veteran consulted with a defense attorney and submitted a request for discharge in lieu of court martial under Chapter 10, Army Regulation 635-200. In September 2014, the General Court Martial Convening Authority approved the Veteran's request for discharge for the good of the service. The Veteran's Certificate of Discharge or Release from Active Duty (DD Form 214) reflects a discharge under other than honorable conditions under the separation authority AR 635-200, Chapter 10 (discharges in lieu of court-martial). The separation code also indicated discharge for the good of the service in lieu of court-martial. There is no evidence that the Veteran has sought an upgrade to his OTH discharge with the Department of the Army Board of Correction of Military Records (ABCMR). Analysis Based on the evidence above, the Board finds that there are two regulatory bars to VA benefits. Specifically, the evidence clearly indicates that the Veteran committed a crime involving moral turpitude, as demonstrated by service records which show that he physically abused his minor son, and he also accepted an undesirable discharge in lieu of trial by general court-martial. 38 C.F.R. § 3.12(d) Therefore, as discussed above, there is only one possible exception to the Veteran being barred from receiving VA benefits: if the Veteran is shown to have been "insane" at the time of the offense. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). For the defense of insanity, there must be competent evidence establishing the appellant was insane at the time of the offenses in question leading to the other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). The Court of Appeals for Veterans Claims has held that "a determination of whether a person is insane is in effect a determination of whether that person's actions were intentional and thus the result of willful misconduct." Id. at 254. The Court further indicated such a determination is not warranted when the record does not reflect a claimant suffered from insanity due to disease or that he did not know or understand the nature or consequences of his acts, or that what he was doing was wrong. Id. Significantly, the burden is on the appellant to submit competent evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The Veteran has not specifically asserted that he was insane at the time of his misconduct, but he has asserted that he had psychiatric impairment in service which caused or contributed to his misconduct. However, the Board finds that insanity has not been shown by the evidence of record, despite the Veteran's assertions that his criminal misconduct was related to a psychiatric condition. The Veteran's service treatment records indicate the following: A March 2012 treatment noted indicates "negative depression and PTSD screenings. No anxiety, no emotional lability, no sleep disturbances, no decreased functioning ability, and not thinking about suicide. No homicidal thoughts." A November 2013 treatment note indicates "chief complaint is that his wife wants a divorce, and he has been having suicidal thoughts. Issue is not deployment related. Moderate depression, anxiety, and PTSD symptoms reported related to: The Veteran reports is very difficult to get past when his children were taken away by CPS in the hospital the day after his daughter was born. Mood appeared depressed. (The Veteran) reports he has had CPS/FAP involvement since July 2013 and since his wife and daughter as well as his 5 year-old son from a previous relationship have moved back to Pennsylvania to avoid further investigation and treatment. (The Veteran) reports he confessed to hitting his son, although he denies this happens. (The Veteran) reports marital difficulties due to the physical separation of he and his wife. (The Veteran) would like to be in the same location, but as he is the offender he is not able to, otherwise CPS will get involved again and possibly remove his daughter from the home again. Diagnosis: Adjustment Disorder with depressed mood related to FAP involvement for child abuse, marital discord, physically separated from family." A January 2014 treatment note and hospital admission report indicates "Reason for Admission: SI (suicidal intent) with plan to shoot self during shooting exercise. Precipitant to Crises: AWOL x 10 days (granted leave but then stayed 10 more days, became depressed, reported suicidal ideation at private hospital but because he was active duty, hospital told him he could not be admitted, family brought him back to Ft Drum, and he was admitted to BH (behavioral health) unit), children were recently taken away due to unexplained bruises on 5 year old son while wife was in hospital delivering daughter. He was under investigation for child abuse. Wife told (the Veteran) that if he doesn't get out of the military she will divorce him. Reports he is not depressed when he is with his family. Reported anger, mood swings, high anxiety, and insomnia. No psychosis, mania, or hypomania. Denied problems with drugs or alcohol and negative drug screen. Symptoms are not compatible with a major depressive episode, but with an adjustment disorder with anxious and depressed mood. Improved with trazodone. Had a slight delay in discharge, no HI (homicidal intent) or SI, interacting with staff, swearing and inappropriate adult behaviors, states he is going to go AWOL when he is discharged. (The Veteran) has told staff he just wants out of the military. A January 2014 treatment note indicates that the Veteran "stated his current stressors are notification of Chapter proceedings and being placed on unit watch. As an added stressor, he reports his spouse gave him an ultimatum that if he stays in the military they will divorce. He reported he and spouse are geographically separated and expecting another child. He disclosed in session a detailed history of legal issues which includes: CPS removal of children for suspected child abuse, FAP Case, AWOL from unit, and current initiation for military discharge. Patient described current mood as: "annoyed/frustrated."" The treating psychiatrist diagnosed the Veteran with Adjustment Disorder with Depressed Mood. A February 2014 treatment note indicates that "(the Veteran) seems ready to face the consequences of his actions. (The Veteran) admits he was wrong in being AWOL but didn't know any other way to deal with his struggles at the time. (The Veteran) reports he just wants to get out of the military and hopes for the best possible discharge at this point. (The Veteran) reports his wife told him she was pregnant while on block leave. (The Veteran) stresses some about this as they also have an infant daughter. (The Veteran) continues to deny he abused his son, although he admitted to investigators and case substantiated through family advocacy program. February 2014 treatment notes indicate "treatment focused on current situational stressors to include legal charges, Chapter separation, and geographical separation from his wife with depression and anxiety related to these situational stressors. Things at work are going ok." A March 2014 treatment note indicates that the Veteran "discussed at length the precipitating psychosocial stressors of the alleged child abuse and possible court martial that was associated with his suicidal ideation that resulted in him being admitted to SMC. History: (Patient) reports that starting in May 2013 when his wife moved in, he started to develop problems with irritability with his wife and at work. In August 2013, when she moved out, and there was FAP investigation and allegations of child abuse with him as perpetrator on son he started having problems with concentrating on tasks and would find himself frequently with his mind wandering to worries about his marital situation and occupational problems. He also at that time developed poor energy and restless sleep. He says that for the last six months or so his mood has been labile from periods where he feels ok to angry but that he usually does not have mood swings towards the happy range. His work performance is adequate, but the irritability is causing problems in that last month he snapped on a fellow servicemember and started yelling during PT session. Pt not seen in military BH until FAP in late summer of 2013 and since then has been in regular parenting and anger management classes." The treating psychiatrist diagnosed the Veteran with Adjustment Disorder with mixed disturbance of emotions and conduct, and Unspecified Anxiety Disorder. An April 2014 treatment note indicates that the Veteran reported his "mood was 'peachy, amazing.'" The treating psychologist indicated that "(The Veteran's) mood improved after his father and wife visited and they reconciled the relationship. Thriving since their visit. Improved rapport with legal representative also. (The Veteran) is relieved that his FAP case has been closed and can now focus on self-improvement, without the interference of 'mandatory therapy.' Continued to report improved relationship with S/O and related improved mood, thinking, behavior, and work functioning." June 2014 treatment notes indicates that the Veteran "continues to be devoid of mood or anxiety issues. Discussed current occupational stressors and feelings towards being alone from his family. Processed his interpersonal relationships at work. Patient brought up some of his combat trauma stories which we discussed. He denies criteria for PTSD and we normalized his upsetting memories from deployment. He says he is not feeling stressed about court case. Sleep remains good." A July 2014 treatment note indicates that the Veteran "continues to be devoid of mood or anxiety issues. He finds work aggravating but keeps himself busy and feels the day goes by quickly. He sleeps about 8hrs per night and feels his energy level is good. We did some psychodynamic work in regards to the roots of this with his abusive mother. Pt reports that he still feels he is under stress with legal action pending." An August 2014 treatment note indicates that that the Veteran reported that His wife had the baby, and he was allowed paternity leave. Grandmother died while he was on leave, and he was present when she died. He is having a difficult time with her death. (The Veteran) reports he did not want to come back to Fort Drum and would rather stay with his family, but knew he had to do the right thing in order for the best chance for his future. (The Veteran) continues to await for his court martial trial. (The Veteran) reports his sleep is overall well except when his neighbor plays loud music. (The Veteran) continues immature behavior by having loud music competition with the neighbor. Denied significant changes at work and relays he is doing well performance wise. Mood upbeat and smiles appropriately throughout session. A September 2016 treatment note indicates that "He is now receiving a chapter 10 separation and will not go through with the court martial. SM is happy he will begin to clear soon. Denies any mood difficulties or sleep trouble. All treatment goals have been met. Diagnosis: Adjustment disorder with mixed emotions and conduct." A September 2014 treatment note indicates "The patient denies any psychiatric symptoms. Specifically, he denies symptoms of depression, or suicidal or homicidal ideation, anxiety, irritability, or insomnia. The patient is being chaptered out because of allegations of child abuse. MILITARY HISTORY: Time in service 5 years. One deployment, returning in 2011. No firefights and no stressful combat situations. PCL-C score 3 (negative PTSD screen) Diagnosis: Adjustment Disorder with anxiety, in remission." A September 2014 separation examination notes a normal psychiatric evaluation. A September 2014 Report of Medical History for Chapter separation shows that the Veteran denied psychiatric symptoms and mental health treatment denied by history and currently. A September 2014 Report of Medical Assessment shows that he denied being treated for a medical condition since the last exam and denied having suffered any injury or illness while on active duty for which he did not seek medical are. He was not on any medications. No psychiatric conditions noted. A January 2022 VA examination indicates that the Veteran has been diagnosed with PTSD. In order to provide the Veteran an opportunity to succeed on his claim, the RO sought an expert medical opinion to address the Veteran's psychiatric history and to provide an opinion on the issue of insanity. In May 2022, VA obtained an expert medical opinion from a VA clinical psychologist on the issue of whether the Veteran met the definition of insanity under 38 C.F.R. § 3.354(a). As an initial matter, the examiner addressed the Veteran's currently diagnosed PTSD and opined that: While the Veteran was diagnosed with PTSD during the January 2022 Initial PTSD VA examination as related to a traumatic event that he experienced during his Afghanistan deployment, the evidence in his STRs does not support that PTSD related to this traumatic stressor had an onset during his active-duty military service, including at the time the misconduct occurred. Rather, there is no evidence to support onset of PTSD related to the Afghanistan deployment until January 2022. Therefore, his PTSD had a delayed onset sometime after his active-duty military service. Thereafter, the VA clinical psychologist opined that it was less likely than not that the appellant engaged in his misconduct as a result of insanity. The VA psychologist also opined that there was no evidence that the Veteran's misconduct was the result of a psychiatric disorder, that a psychiatric disability at that time caused a prolonged deviation from normal behaviors, and that a psychiatric disability caused the appellant to depart from accepted standards of his community. Specifically, the VA psychologist opined that The evidence shows the Veteran was deployed to Afghanistan June 2010-May 2011 but in March 2012, nearly a year following his deployment, he screened negative for depression and PTSD and had no anxiety, no emotional lability, no sleep disturbances, no decreased functioning ability, and no suicidal or homicidal ideation. It was not until November 2013, after the misconduct occurred in July 2013, that he reported depression, anxiety, and trauma-related symptoms related to situational stressors to include his wife wanting a divorce and his children being taken away by CPS in July 2013, not due to his Afghanistan deployment. While he did screen positive for PTSD on this date (after the misconduct), the stressor causing the trauma- and stressor-related symptoms was his children having been taken away from him by CPS due to the misconduct, not the traumatic event that occurred during his Afghanistan deployment. The STRs from the remainder of his active duty military service consistently document that he was diagnosed with and treated for an Adjustment Disorder and Unspecified Anxiety Disorder related to the aftermath of the misconduct, to include his children being taken from his custody by CPS, FAP investigation, related legal charges and proceedings, facing potential court martial due to these events, Chapter 10 separation, and relationship problems caused by their geographical separation also caused by and related to his misconduct of child abuse. The STRs clearly and consistently document that his Adjustment Disorder and Unspecified Anxiety Disorder developed after and was caused by aftermath of the misconduct, rather than having an onset prior to or at the time of the misconduct. He did report that when his wife moved in with him in May 2013, he became more irritable, which does not meet criteria for an acquired psychiatric disorder. Rather, the evidence does not support the onset of an acquired psychiatric disorder until after the misconduct occurred such that after the misconduct occurred and resulting situational stressors of his children being taken away, his wife moving out, and a FAP (Family Advocacy Program) investigation, he began to experience concentration problems, worry/anxiety about his marital situation and occupational problems, restless sleep, poor energy, and mood lability. Therefore, onset of the Adjustment Disorder was after the misconduct occurred and in response to the aftermath of the misconduct, not present at the time of the misconduct. After he and his wife reconciled and his FAP case was closed around April 2014, he reported his mood was "peachy, amazing," and his mental health provider noted he was thriving, he evidenced improved rapport with his legal representative, and he reported improved mood, thinking, behavior, sleep, and work functioning. Throughout the remainder of his active-duty military service, he was devoid of mood or anxiety issues, and he denied symptoms meeting PTSD criteria. On one occasion in June 2014, he did discuss upsetting memories from his deployment, but he denied symptoms consistent with PTSD, and his mental health provider documented that his upsetting memories from deployment were a normal response to the deployment stressor, meaning he did not have an acquired psychiatric disorder related to his Afghanistan deployment at that time. His Adjustment Disorder, which was related to the situational stressors associated with the aftermath of his misconduct, was documented as being in partial remission by June 2014. Based upon these considerations, the STRs do not support that the Veteran had PTSD, or any other acquired psychiatric disorder, concurrent with (at the time of) his misconduct that resulted in his separation under other than honorable conditions. Rather, his Adjustment Disorder and Unspecified Anxiety Disorder developed as an emotional reaction to the aftermath of the misconduct. Similarly, the July 2018 private medical records that document an inpatient admission related to Major Depressive Disorder, PTSD, and Generalized Anxiety Disorder also related to the misconduct, and not his Afghanistan deployment, as the reason for admission was his son alleged him of child abuse and related vivid dreams that wake him up. Again, the evidence does not support that he had Major Depressive Disorder, PTSD, or Generalized Anxiety Disorder at the time the misconduct occurred. Thereafter, the examiner acknowledged the VA definition of insanity and addressed the elements under as 38 C.F.R. § 3.354(a), as follows. The examiner opined that the Veteran did not, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior concurrent with his misconduct in service. Specifically, the examiner opined that: The evidence does not support that the Veteran had a disease concurrent with his misconduct (see detailed rationale above). Further, the evidence documents that the Veteran had a history of violent and abusive behavior as well as strong emotional reactions with threats of suicide when faced with relationship stressors that pre-existed his military service as documented in a March 2009 social media posting where he threatened suicide after his son's mother ended their romantic relationship and as documented in an April 2009 Temporary Protection from Abuse Order against (the Veteran). This protection order documents his former girlfriend's descriptions of his verbally and physically abusive behaviors, including choking her and leaving marks, consistent with the violent behavior of the misconduct while in service. Therefore, the misconduct in service was not a behavior change for this Veteran, and was not, therefore, a more or less prolonged deviation from his normal method of behavior and did not occur due to disease. The examiner opined that the Veteran did not, due to disease, interfere with the peace of society concurrent with his misconduct in service. Specifically, the examiner opined that: He was not charged with disturbing the peace, but his "out of control behavior" noted as being verbally belligerent to his child and staff at the hospital could be construed as disturbing the peace of society. However, the evidence does not support that the Veteran had a disease concurrent with his misconduct. The examiner opined that the Veteran did not, due to disease, depart (become antisocial) from the accepted standards of the community to which by birth and education he belonged as to lack the adaptability to make further adjustment to the social customs of the community in which he resided concurrent with his misconduct in service. Specifically, the examiner opined that: The evidence does not support that the Veteran had a disease concurrent with his misconduct (see detailed rationale above). While his abusive behavior was antisocial in nature, the Veteran evidenced a history of abusive behavior in early 2009, prior to his military service. He also reported that his mother was abusive to him. Therefore, his abusive behavior is consistent with what he experienced in his family of origin, and was not a departure from what he experienced in the community he belonged to by birth. He was also capable of adapting and changing his behavior based upon the context, as evidenced by non-abusive behavior in other settings outside his home, such as at work in the military setting. Also, while he was verbally threatening to his child in a public setting (i.e., the hospital where the bruises on his son were observed by staff), he refrained from physically abusing his son in public, further indicating ability to adapt and change his behavior based upon the context. Based upon these considerations, the antisocial behavior that occurred as part of his misconduct was a longstanding pattern for the Veteran, was modeled to the Veteran as a child by his mother, and was not due to disease. Ultimately, after conducting a thorough review of the Veteran's personal, military, and psychiatric history, the examiner opined that the appellant did not meet the criteria for insanity at the time of his criminal misconduct as defined by CFR 3.354. The Board finds the opinion of the VA examiner who provided the May 2022 VA opinion to be dispositive of the issue of insanity. The May 2022 clinical psychologist specifically commented on the criteria that must be met to conform to the definition of insanity under 38 C.F.R. § 3.354(a). Furthermore, this psychologist provided a thorough rationale for the opinion that the appellant was not insane at the time of his misconduct based on a review of the Veteran's history, performance and service treatment records, CPS records, as well as the Veteran's lay statements to authorities and statements of military officers. The Board acknowledges that the VA psychologist noted that the Veteran had experienced psychological issues and been diagnosed with acquired psychiatric disorders, to include adjustment disorder and PTSD, following his misconduct. However, the VA psychologist provided a thorough opinion which considered the medical evidence of record, to include service and post-service treatment records. Furthermore, the Board notes that psychological disorders do not, on their own, constitute insanity. As such, the Board finds that the Veteran was not insane at the time of his misconduct. Therefore, the insanity exception does not apply, and the Veteran is barred from receiving VA benefits for this period of service. Additionally, there has been no removal of any bar to VA benefits via an upgrade to the Veteran's character of discharge or evidence showing the Veteran was insane at the time of his offense. The Board is sympathetic to the Veteran. He bears the psychological scars of combat and is dealing with PTSD. However, the evidence does not support a finding that would overcome the regulatory bars listed in 38 C.F.R. § 3.12(d), specifically that the Veteran's OTH discharge was due to acceptance of an undesirable discharge to escape trial by general courts-martial and commission of assault of a child, a crime of moral turpitude. Therefore, based on all the above evidence, the Board finds that the Veteran's active military service from October 29, 2012, through October 21, 2014, is considered a bar to VA benefits as his OTH discharge was due to acceptance of an undesirable discharge to escape trial by general courts-martial and commission of a crime of moral turpitude. (Continued on the next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the character of the Veteran's discharge for the period from October 29, 2012, through October 21, 2014, is a bar to VA benefits is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.J. O'Connor, Counsel 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.