Veterans who are discharged under Conditions Other Than Honorable often face considerable difficulty earning VA Benefits. Veterans with such discharges will often receive medical care at a VA medical center, and may have a PTSD or other mental health diagnosis directly related to combat service. Those Veterans are oftentimes befuddled and frustrated when the VA denies their service connection claim despite the confirmed combat stressor and current PTSD diagnosis by a VA provider.
Veterans suffering from combat-related mental health issues often return stateside and have any number of issues that can lead to a less than honorable discharge, such as absences without leave or drug use. Such behavior, by itself, does not bar access to benefits. Instead, such behavior is judged against the character of the Veteran’s service in the totality. Generally, a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.
In addition, the behavior leading to discharge does not bar the receipt of benefits where a Veteran was insane at or prior to the time of discharge. Under 38 C.F .R. § 3.12(d), a release or discharge “under other than honorable conditions” will be considered to have been issued under dishonorable conditions if given for “[w]illful and persistent misconduct.” 38 C.F.R. § 3.12(d)(4). However, a discharge for one of the conditions specified in § 3.12 generally will not be a bar to benefits if “the person was insane at the time of committing the offense causing such discharge.” 38 C.F.R. § 3.12(b).
The VA is required to apply its expansive definition of insanity when analyzing whether a Veteran was insane at time of the offenses leading to discharge. Veterans should be mindful where a VA denial applies the more stringent/narrow “criminal” definition of insanity. The VA definition is: “An insane person is one who, while not mentally defective or consitutionally psychopathic … 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.”
If you need to appeal a claim denial, call (504) 235 4075 to speak to an attorney today.