Professional Documents
Culture Documents
JAMES G. FAUSONE
LEGAL HELP FOR VETERANS, PLLC
Northville, Michigan
The definition of insanity for purposes of the Department of Veterans Affairs (VA)
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
A clinical psychologist’s notes in the early 1970s states examination of the veteran
reflect:
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
The veteran was convicted and given two years hard labor. The veteran was then diagnosed with
The veteran was discharged the next month in January of 1972 and sent to the streets of an urban
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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.
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
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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.
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
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
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
4
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
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
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
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
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“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.
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