(a) 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.
(b) Insanity causing discharge. 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.
[26 FR 1589, Feb. 24, 1961]
Notes of Decisions
Cited in
22
cases (
5 in the last 5 years), 1992–2023 · leading case:
Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022).
Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022).
· cites it 4× “A regula- tion, 38 C.F.R. § 3.354 (a), implements the statutory insan- ity exception.”
Henry L. Gardner v. Erik K. Shinseki, 22 Vet. App. 415 (Vet. App. 2009).
· cites it 8× “Gardner argues that the Board’s statement of reasons or bases for its determination that he was not insane at the time he committed the offenses that led to his discharge is inadequate because the Board failed to apply the VA standard for determining insanity set out in 38…”
Struck v. Brown, 9 Vet. App. 145 (Vet. App. 1996).
· cites it 5× “140 (1991); and (2) determination of whether the appellant was insane within the meaning of 38 C.F.R. § 3.354 (a) (1995). R. at 158-59.”
Zang v. Brown, 8 Vet. App. 246 (Vet. App. 1995).
· cites it 6× “38 C.F.R. § 3.354 (a) (1994). Section 3.302 of title 38, Code of Federal Regulations, entitled “Service connection for mental unsoundness in suicide” (emphasis added), provides: *251 (a) General.”
Stringham v. Brown, 8 Vet. App. 445 (Vet. App. 1995).
· cites it 3× “In addition, 38 C.F.R. § 3.354 (b), which apparently is directed at insanity determinations under section 3.”
Drosky v. Brown, 10 Vet. App. 251 (Vet. App. 1997).
“246, 252-53 (1995) (noting that regulation, as written in 38 C.F.R. § 3.354 using the term “or”, “appear[ed] to provide for three independent instances of insanity”); see also Johnson (Gary) v.”
Cropper v. Brown, 6 Vet. App. 450 (Vet. App. 1994).
“38 C.F.R. § 3.354 (1993). Thus, the statute sets out the authority for allowing veterans benefits where a party has received an OTH discharge but has been adjudged insane, and the regulations simply define the term “insanity.”
Helige v. Principi, 4 Vet. App. 32 (Vet. App. 1993).
· cites it 2× “The definition of insanity for the purposes of an offense leading to a court-martial or discharge is contained in 38 C.F.R. § 3.354 (1991). On March 16, 1989, the veteran attempted to reopen his claim for VA benefits (this time for entitlement to service-connected disability…”
Beck v. West, 13 Vet. App. 535 (Vet. App. 2000).
“§ 5303 (b) and its implementing regulation, 38 C.F.R. § 3.354 (b) (1999), a service member who is insane at the time of the acts that led to an OTH discharge retains eligibility for veterans benefits.”
Charlotte A. Bowling & Kevin D. Appling v. Denis McDonough (Vet. App. 2021).
· cites it 8× “Bowling's appeal was referred to a panel of the Court to address her argument that the definition of "insanity" in 38 C.F.R. § 3.354 (a) is unconstitutional because it denies claimants due process of law.”
Stanton v. McDonough (Fed. Cir. 2023).
· cites it 6× “12 (b), as defined by 38 C.F.R. § 3.354 (a). SAppx. 87–88. The Board stated that his 2 The January 2019 Board decision is not in the ap- pellate record before us.”
— 38 C.F.R. § 3.354(a) — 1 case
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