Bowling: VA's definition of insanity for character-of-discharge purposes is not unconstitutionally vague

Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022)

HELD: The veterans in this case did not show that 38 C.F.R. § 3.354(a) is unconstitutionally vague.

Summary: 38 C.F.R. § 3.354(a) says: “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.”

The Federal Circuit rejected the argument that the regulation was vague under the Due Process clause because the regulation refers to “objectively describable conduct,” “diseases,” and “causation.” The Court further held that “even if the Board could not grant appellants their requested relief of declaring § 3.354(a) unconstitutionally vague, presenting such evidence to the Board would not be futile.”