Citation Nr: 0308865 Decision Date: 05/09/03 Archive Date: 05/20/03 DOCKET NO. 98-00 195 ) DATE ) ) On appeal from the Department of Veterans' Affairs (VA) Regeional Office (RO) in Columbia, South Carolina THE ISSUE Whether the appellant's character of discharge from military service is a bar to VA benefits. REPRESENTATION Appellant represented by: Paul C. Hilburn ATTORNEY FOR THE BOARD G. Zills, Associate Counsel INTRODUCTION The appellant served on active duty from September 1954 to March 1956. This case comes before the Board of Veterans' Appeals (Board) from a July 1997 administrative decision by the RO which held that the character of the appellant's discharge from active service was a bar to VA benefits. In September 1999, the Board remanded the case to the RO for additional evidentiary development. FINDINGS OF FACT The appellant's active military service from September 1954 to March 1956 was terminated by issuance of an other-than- honorable (undesirable) discharge. The evidence fails to show that the character of that discharge was not dishonorable for VA benefits purposes. CONCLUSION OF LAW The appellant's discharge from service was under dishonorable conditions and constitutes a bar to VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2002); 38 C.F.R. § 3.12 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The only available service record is a Certification of Military Service dated in July 1996, which notes that the appellant served in the Army from September 1954 to March 1956, and he received an undesirable discharge as a private. The National Personnel Records Center (NPRC) has indicated that all his other service personnel and medical records were destroyed in a fire at that facility in 1973. The RO, both before and after the Board's remand, made repeated but unsuccessful attempts to obtain any other records from the service department. The appellant was asked to submit any relevant service documents he might have, but he had none. In 1997, the appellant filed a claim for service connection for various conditions. In statements dated from 1997 to 2002, the appellant and his representative essentially related that the appellant was given an undesirable discharge because he was absent without leave (AWOL) for two weeks. He alleged that he used the chain of command to seek permission to leave, but was unsuccessful. He stated that at the time he went AWOL, his wife was in the hospital and not expected to live. He indicated that he was unable to get help from the Red Cross, and felt that going AWOL was his only option. He stated that he reported back in two weeks and was given an undesirable discharge. The appellant also submitted a death certificate for his mother, showing she died in September 1955 The file shows that through correspondence, the RO's decision, the statement of the case, and the supplemental statement of the case, the appellant has been notified of the evidence necessary to substantiate his claim. Unfortunately, his service records were destroyed in the 1973 fire at the NPRC, and further attempts to obtain the records would be futile. There appear to be no other alternative records concerning the appellant's character of discharge from service. Under the circumstances, the VA has satisfied the notice and duty to assist provisions of the law. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. To be considered a "veteran" for the purpose of qualifying for VA benefits, a former serviceman must have had active duty and been discharged or released therefrom under conditions "other than dishonorable." Compensation and most other VA benefits are barred if they are claimed with reference to a period of service which is found to be dishonorable for VA purposes. When a serviceman is given an other-than-honorable discharge by the service department (such as is the case with the undesirable discharge given to the appellant in the present case), the VA decides whether the character of such discharge is dishonorable for VA purposes. There are a number of listed reasons why an other- than-honorable discharge may be considered dishonorable for VA purposes, and among the reasons are acceptance of an undesirable discharge to escape trial by general court martial, mutiny or spying, an offense involving moral turpitude, willful and persistent misconduct, and certain homosexual acts. 38 U.S.C.A. §§ 101(2), 5303; 38 C.F.R. § 3.12 The burden is on the appellant to establish, by a preponderance of the evidence, that he is a "veteran" (with a qualifying dischrage), and the reasonable doubt doctrine does not apply to this question. See, e.g., Holmes v. Brown, 10 Vet. App. 38 (1997); Aguilar v. Derwinski, 2 Vet. App. 21 (1991). Available evidence only shows that the appellant has an undesirable discharge, and the reason for that discharge is unknown. No official service records are available, despite VA attempts to obtain them. The Board cannot rule favorably for the appellant just because the detailed service records leading to the undesirable discharge are no longer available. The appellant has made contentions, but he has submitted no credible independent evidence which might show that his undesirable discharge was given for reasons which might not be considered dishonorable for VA purposes. The Board finds that the appellant has not met his burden of establishing by a preponderance of the evidence that he is entitled to status as a veteran. Based on available evidence, the Board concludes that the appellant's undesirable discharge from military service must be considered dishonorable for VA purposes, and thus the character of that discharge is a bar to VA benefits. ORDER The character of the appellant's discharge from service is a bar to VA benefits. The appeal is denied. ____________________________________________ L. W. TOBIN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.