JAMES G. FAUSONE
LEGAL HELP FOR VETERANS, PLLC
The definition of insanity for purposes of the Department of Veterans Affairs (VA) recently became at issue in a VA compensation benefits case. Henry Gardner v Shinseki, US Court of Appeals for Veterans Claims (March 13, 2009). In that case, the VA used the wrong legal standard and concluded a veteran was ineligible for benefits because of the type of discharge he received. The VA used a criminal definition of insanity rather than the broader statutory definition.
The veteran involved enlisted in the United States Marine Corps and served in four major combat operations while in Vietnam. He is a recipient of the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal with one star and the Vietnam Campaign Medal with Device. The veteran went Absent without Leave (AWOL) while in Vietnam, was apprehended and was in the brig when a race riot broke out. The veteran was subject to a general court-martial on charges of riot, mutiny and assault. He was sentenced to three years hard labor, a dishonorable discharge and forfeiture of all pay and allowances.
A clinical psychologist’s notes in the early 1970s states examination of the veteran reflect:
thoughts of a sadistic, destructive and morbid nature. Such concepts alone suggest pathological trends in the personality. Reality testing is regarded as weak and affect is labile and inappropriate. Consistent with this pattern is his weakness of adaptive efforts and potential for aggressive and at times violent, acting out behavior and low capacity for thoughtful delay of his impulses. There is some tension shown in the protocol but with limited resources for handling it. He is more apt to respond with faulty judgment and loss of control when confronting stressful situations.
In summary the psychologist states the veteran is “a severely maladjusted individual with very little capacity for affective adaptation, but rather with a predisposition for restless, unpredictable, defiant and aggressive behavior of an antisocial nature and who is likely to “blow his lid” at the slightest provocation.”
Another concurrent medical record documents “diagnosis on this individual has been extremely difficult because of his unpredicable, [sic] violent and at times bizarre behavior. His actions at times and some of the materials he has written have strongly been suggestive of psychosis.” However, the Army’s Mental Competency Board found him to be competent to stand trial at his court-martial.
A subsequent transfer summary dated July 7, 1971 states:
A Mental Competency Board dated 17 February 1971, found him competent to stand trial and responsible for his offenses. The findings of that Board re: McNaughten, are still considered to be valid. Continued observation, however, strongly suggests the presence of an affective component to his disorder. . . . Veteran is in need of intensive treatment, including heavy doses of medication which can be given only under strict psychiatric supervision. Many alternatives have been explored without success and ou[r] only remaining disposition is admission to your facility.”
The veteran was convicted and given two years hard labor. The veteran was then diagnosed with Schizophrenia, paranoid type.
By December 1971, a convening authority found:
in view of the Naval Hospital, Philadelphia, Pennsylvania, Medical Board’s finding that the accused’s mental state had deteriorated subsequent to trial to a point of mental incompetency and the concomitant difficulty in executing the sentence, it is disapproved in toto.
The veteran was discharged the next month in January of 1972 and sent to the streets of an urban city in the Midwest.
To be entitled to benefits one must be a “veteran”. Veteran status is lost if one received a dishonorable discharge. See 38 U.S.C. § 101(2). However, if the veteran was insane at the time he committed the offenses that led to his discharge under less than honorable conditions he may be entitled to benefits.
Section 5303(b) states:
[I]f 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.
The Court of Appeals for Veterans Claims (Court) has established that “where a veteran has lost his status as a benefits eligible claimant, he must establish it anew by a preponderance of the evidence.” See Tulingan v. Brown, 9 Vet.App. 484, 487 (1996). The Court has also established that the benefit of the doubt doctrine is not applicable to a determination of that status. See Holmes v. Brown, 10 Vet. App. 38 (1997). The Court has held that both the acts leading to discharge and the insanity must occur simultaneously. Both the existence of insanity and its simultaneous temporal relationship to the commission of an offense must be established to the Secretary’s satisfaction.
38 C.F.R. § 3.354(a) gives the following definition of insanity:
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.
Sub-Section (b) of that Section provides
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 (38 U.S.C. 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. Id.
The Court has also determined that this statute requires “that the insanity exist only ‘at the time of the commission of an offense leading to a person’s . . . discharge’, and not that insanity must cause the misconduct, that is, there need not be a causal connection between the insanity and the misconduct.” See Struck v Brown, 9 Vet.App. 145 (1996), citing Helige v. Principi, 4 Vet. App. 32, 34 (1993)).
The VA Board in Gardner stated that “there is no indication that the veteran’s behavior at the time of his offenses resulted from any disease which placed the appellant’s mental capacity beyond his control.” However, Federal law only requires that the insanity “exist ‘at the time of the commission of an offense leading to a person’s . . . discharge’, and not that insanity must cause the misconduct, that is, there need not be a causal connection between the insanity and the misconduct.” Struck, 9 Vet. App. at 154.
Not only has the Board often used the wrong standard in requiring causation, it looked at the wrong point in time to make that determination. At issue is the veteran’s mental state at the time of the race riot in 1968 as well as during the period of time he was listed as AWOL. The criminal standard, often referred to as the McNaughton rule, which looks at the time of the act, is not controlling on VA benefits.
Insanity was not presented as a defense to the charges brought against the veteran in 1968. VA presumed that failure to assert the defense means insanity did not exist. However, there may be tactical reasons not to assert the defense. Further, the criminal standard is different than the VA definitions. As stated earlier, 38 C.F.R. § 3.152(b) provides:
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 (38 U.S.C. 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section.
The only determination of mental competency in Gardner was done long after the one set of offenses which yielded the veteran’s dishonorable discharge.
That VA’s initial determination was based on the definition of mental competency as defined by the “McNaughton Rule,” a criminal law standard. Under McNaughton, there was a presumption of sanity, unless the defense proved “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”
In 1972, the American Law Institute with the help of legal experts developed a new rule under the Model Penal Code (MPC). This rule was only adopted by about half the states. Under the MPC, a defendant is not responsible for criminal conduct where he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Id.
In 1984, a Federal Rule was adopted under the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Id.
None of these standards, however, is the standard which the VA must apply in making its determination. As stated earlier, Federal law requires only that the insanity of the veteran exist “at the time of the commission of an offense leading to a person’s . . . discharge”, and not that insanity must cause the misconduct. If VA benefits have been denied because of a less than honorable discharge, a veteran or his advocate should consider if veteran status can be established because the veteran was insane at the time he committed the offense leading to court martial or discharge.
The lawyers of Legal Help for Veterans, PLLC briefed the Henry Gardner v Shinseki case and are licensed to practice before the U.S. Court of Appeals for Veterans Claims. Mr. Fausone is a founding partner of that firm found at www.legalhelpforveterans.com.