Citation Nr: 1125569 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 09-46 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Character of discharge from service for the period from April 3, 2001, to September 19, 2008. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had a period of active duty for training from May 1997 to August 1997. He also had periods of active service from April 3, 1998, to April 2, 2001, and from April 3, 2001, to September 19, 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that, while the Veteran previously was represented by the Military Order of the Purple Heart, in June 2009, before certification of the appeal to the Board, the Military Order of the Purple Heart revoked its power of attorney by way of a letter sent to VA. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's period of active duty for training from May1997 to August 1997 and his period of active service from April 1998 to April 2001 are considered to have been under honorable conditions. At issue here is the character of the Veteran's discharge for his period of service from April 2001 to September 2008. The Veteran's DD Form 214 shows that he received a bad conduct discharge for this period of service and that it was due to a court-martial. Trial documents show that the Veteran was found guilty by a general court-martial for being away without leave on two occasions. As such, under 38 C.F.R. § 3.12 (2010), the Veteran is statutorily barred from VA benefits unless it is found that he was insane at the time that he committed the offense. In that regard, the Board notes that the Veteran has not raised an argument that he was insane at the time that he committed his offenses. In fact, the court-martial trial transcript shows that, while the Veteran's attorney described the Veteran as not thinking clearly and perhaps not being capable of service, he then clarified that this did not mean he wanted to raise the lack of mental responsibility defense by inference. In November 2009, the Veteran submitted a copy of an Application for the Review of Discharge or Dismissal that he stated he had filed to revise or upgrade the character of his discharge. However, the record does not contain the result or outcome of this application. The Board cannot proceed with the Veteran's claim regarding his character of discharge until VA receives information or evidence regarding the outcome of the Veteran's application to the Department of the Army to upgrade his discharge. This must be requested on remand. Furthermore, the Board finds that the Veteran's claim of entitlement to service connection for PTSD is inextricably intertwined with the Veteran's character of discharge claim, since his claimed stressors occurred during the period of service that is at issue here. Accordingly, the case is REMANDED for the following action: 1. Take any necessary steps to obtain documentation regarding the Veteran's November 2009 application to the Department of the Army for review of his discharge or dismissal. This should include contacting the appropriate agency(ies) and requesting documentation from the Veteran, if it is not otherwise obtained. 2. Thereafter, readjudicate the Veteran's claims. If any benefit remains denied, the Veteran should be provided with a supplemental statement of the case and an appropriate period of time to respond, before the appeal is returned to 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MICHAEL A. PAPPAS 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) (2010).