On August 19, 1968, Henry Gardner USMC was convicted by general court-martial for being absent without leave on several occasions from May through July of 1968. He served time in the Da Nang prison in Vietnam, where he was involved in a prison riot. On January 30, 1969, he was again court-martialed and charged with inciting a riot, participating in a mutiny, and committing an assault. He was deemed to have the requisite mental capacity, found guilty, and sentenced to three years confinement, and given a dishonorable discharge. Gardner v. Shinseki, 22 Vet. App. 415, 417 (2009).
In April 1971, Mr. Gardner was convicted by general court-martial for raising a weapon against a superior officer, among other things, and again received a dishonorable discharge and an additional two years confinement. Approximately July 1971, Mr. Gardner was diagnosed with schizophrenia and transferred to the U.S. Naval Hospital in Philadelphia, PA, for treatment and was released from confinement in favor of hospitalization. Id.
Mr. Gardner later wanted to file for VA disability benefits but was denied because of being dishonorably discharged. He hired an attorney and appealed his case up to the Court of Appeals for Veterans Claims (CAVC). In the above cited case Gardner v. Shinseki, the Court sent Mr. Gardner’s case back to the Board of Veterans’ Appeals (Board) for three reasons: 1) The Board had used portions of the criminal definition of insanity in its decision below instead of using the VA insanity definition 2) The Board did not consider Mr. Gardner’s mental state at the time he received his dishonorable discharge and 3) The Board did not obtain a medical opinion to determine whether Mr. Gardner’s behavior that led to his dishonorable discharge was consistent with schizophrenia and whether Mr. Gardner’s behavior met the regulation VA insanity definition.
Under VA regulation, the Secretary has defined an insane person as a person:
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)
The Board considered whether Mr. Gardner was able to discern the effects of his behavior and whether any disease placed his mental capacity beyond his control.Gardner v. Shinseki, 22 Vet. App. 415, 420 (2009). These are components of the the VA insanity definition found in the Model Penal Code for criminal cases and were improperly applied to Mr. Gardner’s veteran’s benefits case. As such, the Board did not provide adequate reasons and bases to support its decision Mr. Gardner’s dishonorable discharge was not as a result of insanity, or in his case, schizophrenia. The Court of Appeals for Veterans Claims vacated the Board’s decision and remanded it back to the Board.
If you or somebody you know is struggling with the VA and their disability claim, contact the experienced attorneys at Berry Law Firm today at (808) 883-2483 for a free consultation.
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