Struck v. Brown

9 Vet. App. 145, 1996 U.S. Vet. App. LEXIS 271, 1996 WL 252370
United States Court of Appeals for Veterans Claims·Decided May 14, 1996·No. No. 94-322·Published·Cited by 49 cases

Opinion

STEINBERG, Judge:

The appellant, Kevin J. Struck, appeals a March 16, 1994, Board of Veterans’ Appeals (BVA or Board) decision concluding that the character of his discharge is a bar to benefits from the Department of Veterans Affairs (VA) other than health care and related benefits under chapter 17 of title 38, U.S.Code. Record (R.) at 19. For the reasons that follow, the Court will affirm the BVA decision.

I. Background

The appellant served on active duty with the U.S. Army from February 23 to November 15, 1979. R. at 24. Service medical records (SMRs) do not include his induction examination. At separation, his discharge was described as “under other than honorable conditions” (OTHC) based on “conduct triable by a court-martial”. Ibid. His military records included a charge sheet accusing him of being absent from Fort Benning, Georgia, without authority from July 26, 1979, until October 10,1979. R. at 28-30. A form verifying his AWOL (absent without leave) status from his commanding officer included a notation to a previous Uniform Code of Military Justice (UCMJ) action (under Article 15 thereof). R. at 31.

While he was pending trial by court-martial for the AWOL offense (under UCMJ Article 86) in October 1979, the appellant apparently signed a statement noting, inter alia, that he was voluntarily requesting a discharge for the good of the service; that he acknowledged his guilt of the charge; and that he understood that he might be discharged under OTHC if his request for discharge were accepted. R. at 34-35, 41-42. The form he signed also stated that he understood that, as a result of such a discharge, he would “be deprived of many or all Army benefits”, and “that [he] may be ineligible for many or all benefits administered by [VA]”. R. at 35.

An October 1979 mental health SMR reported the appellant’s statement that he felt that his mind was “falling apart”. R. at 44. The SMR noted that he did not appear delusional and that history included drug abuse with psychiatric hospitalization, and stated: “Mood: angry. Affect: excited. Psychomotor: agitated, pressured speech. [The appellant] reports suicide ideation.... ” Ibid. An impression was deferred pending further evaluation. Ibid. An October 1979 psychiatric evaluation SMR diagnosed the appellant with narcissistic personality disorder. R. at 45. It noted a history of “marked social inadaptability” during his tour in the military, and concluded: “[The appellant’s] condition is part of a character and behavior disorder due to deficiencies in emotional and [148] personality development of such a degree as to seriously impair his function in the military service. He uses poor judgment, is not committed to productive goals and is unmotivated.” Ibid. It noted that at the time of evaluation, “there was no evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition”; that he was “found to be capable of distinguishing right from wrong and of adhering to the right”; and that “[h]e was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings.” Ibid. It was also reported: “At the time of discharge from the hospital!,] the [appellant] was psy-chiatrically cleared for separation from the service under the provisions of the appropriate administrative regulation”. Ibid.

On his October 1979 discharge examination report, the appellant stated that his health was “very poor” and that he would not “allow any Army correctional process to be instituted”. R. at 37. He noted having experienced, inter alia, nervous trouble as well as having been treated for anxiety at Fort Ben-ning and being hospitalized for anxiety at Olive View Hospital (OVH) in Los Angeles, CA. R. at 37-38. He stated: “I’m going insane. I need to get out so I can get the help I need.” R. at 38. A physician’s summary noted the appellant’s “[p]ains in knees [and] ankles” with persistent swelling and weakness, and described him as “[n]ervous, [and having] worries' [and] insomnia about Army life [and] noisy barracks.” Ibid. The physician reported that the appellant “[s]tate[d he] can’t cope [with] Army people [and] routine [and] wants out of Army.” Ibid. No abnormalities, defects, or diagnoses were noted, and he was found qualified for separation. R. at 39-40. His superiors recommended that he be discharged “for the [g]ood of the [s]ervice”, with a “discharge certificate under [OTHC]” based upon a “personal review of [his] request for discharge, pending court-martial charges[,] and rejection of further military service”. R. at 32. The reason for the AWOL (as reported by one of his commanding officers) was an inability to handle the procedures of military training. R. at 43.

Sometime prior to March 1981, the appellant filed a claim with a VA regional office (RO) for VA service-connected disability compensation or non-service-conneeted pension benefits. See R. at 52-53 (the application is not in the record on appeal). A March 1981 letter from the appellant’s grandfather, John Joyce, informed the RO that the appellant was currently a patient in a private psychiatric hospital at the University of Southern California (USC) Medical Center “for treatment and observation of a schizophrenic condition”. R. at 55. Mr. Joyce later wrote VA that he had been issued letters of conservatorship because of the appellant’s mental condition; that there had been an incident while the appellant was in service which had resulted in the destruction of some governmental property valued at $22.26; that the appellant had thereafter been “held in the hospital for psychiatric observation”; and that “anxiety over the pending court[-]martial ... [had] prompted the AWOL”. R. at 57. The letter also stated that the appellant “had suffered a mental breakdown prior to his enlisting in the Army”; that he “was able to go through basic training and complete paratrooper school prior to his problems”; that, because of his problems, he should never have been offered the type of discharge he was given; and that he had not been “mentally capable of signing a release” (waiver of VA benefits) at the time of his discharge. R. at 57-58. At the bottom of this letter, a statement by the appellant requested to have his discharge voided and active duty reinstated or his discharge upgraded. R. at 58.

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Struck v. Brown, 9 Vet. App. 145, 1996 U.S. Vet. App. LEXIS 271, 1996 WL 252370 (Cal. 1996).

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