The disability compensation system implemented by the Department of Veterans Affairs ("VA") is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is "honorable" for VA purposes. For some former servicemembers seeking benefits, using the VA's "insanity defense" to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only "defense" that allows a veteran to get around all statutory and regulatory benefits. It reads as follows:

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.

A cursory reading shows that the insanity defense is anything but clear and straightforward. This Article will examine this issue in three parts. Part I briefly discusses necessary background information, including military discharges and how they are treated by the VA and the military service branches. Part II then explores the construction and history of the VA insanity defense and how it compares to conceptions in the psychological field and corresponding provisions in the criminal defense system. Finally, Part III explains the regulation's usefulness to advocacy in the veterans' benefits system as it is currently constructed.

Document Type


Publication Date

Spring 2022

Publication Information

90 UMKC Law Review 661-674 (2022)