[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 94-322 [ACTIVITY:]{.underline} AUTHORIZATION

[NAME]{.underline}: Struck v. Brown

[ISSUE(S)]{.underline}: Character of Discharge; willful and persistent
misconduct.

[ACTION BY COURT]{.underline}: Affirmance [DECISION DATE]{.underline}:
5/14/96

[BEFORE JUDGES]{.underline}: Nebeker, Kramer, [Steinberg]{.underline}

[FACTS]{.underline}: The appellant served on active duty from February
23, 1979 to November 15, 1979. His discharge was characterized by the
Army as being under other than honorable conditions (OTHC), based on
conduct \"triable by court-martial.\" The appellant was AWOL from July
26, 1979 to October 10, 1979. He also had a previous Article 15 action.
He signed a statement voluntarily requesting a discharge for the good of
the service, the statement mentioned that he understood that his
discharge might be OTHC and that he might be ineligible for many or all
of the benefits administered by VA. He filed for benefits, and in
September 1981, the RO determined that his discharge from service was
under conditions which were a bar to the payment of VA benefits. He
reopened the claim and submitted, through his attorney, medical
evidence. The letter from the attorney claimed that the veteran now had
chronic and disabling schizophrenia which was triggered by the stress-
related military service. This claim to reopen his claim was disallowed
in April 1989. In October 1989, he had a hearing and the hearing officer
concluded that there was insufficient evidence to conclude that the
appellant was insane and unable to distinguish right from wrong at the
time he went AWOL. The RO reiterated those findings in August 1990. The
case was referred to BVA for review. BVA remanded the case to have the
RO consider whether a bar to VA benefits exists on the basis of his OTHC
discharge due to willful and persistent misconduct in light of *Manio v.
Derwinski*, 1 Vet.App 140 and to determine whether the appellant was
insane within the meaning of 38 CFR 3.354(a). A July 1992 RO decision
concluded that the evidence of record did not establish that the
appellant met the definition of insanity as provided in 38 CFR 3.354 at
the time he committed the offenses which led to his OTHC discharge. In
March 1994, BVA affirmed the decision.

[ANALYSIS]{.underline}: The Court affirmed the BVA decision finding that
the appellant had not demonstrated that BVA committed any error in its
finding of fact, conclusions of law, procedural processes and found that
BVA\'s decision provided the necessary reasons and bases.

The Court also noted that in the case *Cropper v. Brown*, 6 Vet.APP at
453-54, the Court had held that section 5303(b) of Title 38 U.S.C.
required that \"the insanity must be such that it legally excuses the
acts of misconduct\" and that \"there must be a causal connection
between the insanity and the misconduct. Because the Court based this
conclusion in part on provisions of M 21-1, which have been superseded,
the Court in this decision concluded that the *Cropper* holding
regarding causation is no longer operative. The Court now holds, as it
did in *Helige v. Principi*, 4 Vet. App. 32, prior to the issuance of
*Cropper*, that the statute requires that \"the insanity exists only at
the time of the commission of an offense leading to a person\'s
discharge, and not that the insanity must cause the misconduct, that is,
there need not be a causal connection between the insanity and the
misconduct.\" This change is in accord with change 14 to M 21-1, Part
VI, 4.10.

[RECOMMENDED VBA ACTION(S)]{.underline}: None. No change is required to
regulations, procedures or policies as the result of this decision.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

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[6/11/96]{.underline}

Yes No Jack Ross Date