Citation Nr: 1228844 Decision Date: 08/22/12 Archive Date: 08/30/12 DOCKET NO. 07-14 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under 38 U.S.C. Chapter 17. REPRESENTATION Appellant represented by: John W. Tilford, Agent WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to January 1975, from December 1976 to December 1980, and from March 1988 to October 1988. He was discharged in October 1988 under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana that determined that the Veteran's character of discharge from his last period of service constituted a bar to VA benefits. The Veteran testified at a hearing before a Decision Review Officer (DRO) in February 2007 and at a hearing before the undersigned Veterans Law Judge in August 2008. In a March 2009 decision, the Board determined that the character of the Veteran's discharge from his last period of service was a bar to VA benefits, exclusive of health care under 38 U.S.C. Chapter 17. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims. In a November 2010 Memorandum Decision, the Court vacated the Board's March 2009 decision and remanded the appeal to the Board for further development. In April 2011, the Board denied the Veteran's claim. The Veteran again appealed the Board decision to the United States Court of Appeals for Veterans Claims. In a May 2012 Memorandum Decision, the Court vacated the Board's April 2011 decision and remanded the appeal to the Board for further development. The basis of the May 2012 Memorandum Decision will be discussed in more depth below. However, the Board notes that to aid in ensuring compliance with the mandatory timeframe required by the Court, a letter providing the Veteran 90 days to respond from the date of receipt of the case by the Board has not been issued by the Board. Kutscherousky v. West, 12 Vet. App. 369 (1999). To ensure compliance, after the case is returned to the Board from the agency of original jurisdiction, a letter will be issued providing 90 days for response. REMAND The Veteran contends that his final period of service should not be a bar to VA benefits, exclusive of health care. The record shows that the Veteran accepted a discharge under other than honorable conditions for his last period of service because he was facing a court martial for being AWOL (absent without leave) for a period of more than thirty days. In the May 2012 Memorandum Decision, the Court determined that VA failed to explicitly request the Veteran's charge sheet or any associated documents indicating what type of court-martial the Veteran was facing when he accepted the undesirable discharge. The Court determined that VA failed to adequately assist the Veteran and required remand to search for the necessary documentation. In the May 2012 Memorandum Decision, the Court provided that VA is required to conduct an expedited record request within six months of the date of the decision to include adding appropriate documentation of the search effort to the Veteran's file. That six month deadline expires on November 21, 2012. Therefore, pursuant to the Court instruction, the Board is instructing that the expedited request for the Veteran's charge sheet and any associated documents must be made. Accordingly, the case is REMANDED for the following action: 1. No later than November 21, 2012, issue an expedited request for the Veteran's charge sheet or any associated documents indicating what type of court-martial the Veteran was facing when he accepted an undesirable discharge in October 1988. The expedited request should be documented in the claims file and if the requested records are not available, a formal finding of unavailability should be issued and associated with the claims file. 2. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case expeditiously to the Litigation Support unit at the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).