Citation Nr: 1309913 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-39 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the character of the appellant's discharge from service acts as a bar to receipt of Department of Veterans Affairs (VA) gratuitous benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The appellant served on active duty from April 1966 to May 1970, with several periods of time lost due to unauthorized absence and confinement. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 determination by the VA Regional Office (RO) in Los Angeles, California. The appellant sought service connection for several conditions, as well as nonservice-connected pension, in 2006 and 2007. In November 2007, the RO advised the appellant that his claims for VA compensation had been disallowed due to the character of his discharge, which was found to be not honorable for VA purposes. The appellant requested reconsideration and, in October 2008, the RO confirmed the determination. The appellant then perfected an appeal to the Board. The Veteran testified before the undersigned at a Travel Board hearing at the RO in September 2012, and a transcript of that hearing is associated with the claims file. The Board notes that the appellant testified in September 2012 that he had been denied treatment at VA facilities based on the character of his discharge from service. However, the evidence includes VA treatment records for various conditions. Further, the appellant indicated in a May 2008 statement that he had received VA treatment, although he had to pay a fee. As such, the appellant has clearly not been refused all VA treatment based on the character of his discharge. 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 Further development is necessary for a fair adjudication of the issue on appeal. The appellant's initial character of discharge from service was under other than honorable conditions, or undesirable. The Board notes that this was upgraded to general, under honorable conditions, under the Department of Defense Special Discharge Review Program in June 1977, based on an April 1977 application. Generally, a decision by a service-department discharge review board to upgrade a person's discharge to honorable or general is sufficient to set aside any bar to VA benefits, except a discharge by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(f) (2012). However, Congress has decided that such an upgrade does not remove to the bar to VA benefits unless an additional case-by-case review of the discharge reveals that the upgrade was appropriate under uniform, published standards and generally applicable procedures. See 38 C.F.R. § 3.12(h); D'Amico v. West, 209 F.3d 1322, 1323-24 (Fed. Cir. 2000) (citing 38 U.S.C. § 5303(e)(2)(A)). Here, via a preliminary decision in July 1978 and a final decision in August 1978, the Naval Discharge Review Board determined that the appellant did not qualify for upgrading under the new, uniform standards for discharge review. The upgrade to general discharge that he received under the previous review was not changed. In an April 1971 determination for unemployment compensation purposes, VA determined that the character of the appellant's discharge was dishonorable for VA purposes. In September 1994, the appellant's discharge was determined to be a bar to VA loan guaranty benefits. The appellant now seeks service connection or nonservice-connected VA pension benefits. Although the appellant testified in September 2012 that there were no pending applications for an upgrade in the character of his discharge, the evidence of record appears to indicate otherwise. Specifically, he submitted an application for correction of his military records in April 2009 to indicate that he should have received a medical discharge instead of an undesirable discharge. The Department of the Navy, Board for Corrections of Naval Records ("Board for Corrections"), then requested copies of documents from the appellant's VA claims file. In an October 14, 2009 letter, the Board for Corrections indicated the case would be held in abeyance and such documents must be provided within 30 days. VA appears to have provided the documents on October 30, 2009, within the 30-day deadline. However, the claims file contains no indication as to the outcome of this application. This is necessary for a fair adjudication of the issue on appeal. Additionally, the Board notes that the appellant contends that he had psychological problems or posttraumatic stress disorder (PTSD) due to military experiences when he went absent without leave (AWOL) and was confined both before and after his service in Vietnam, which eventually resulted in his discharge. The character of discharge from service will not constitute a bar to VA benefits if the person was insane (as defined by VA) at the time of committing the offense(s) that led to the discharge. See 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b), 3.354(a)-(b); see also Zang v. Brown, 8 Vet. App. 246 (1995); VA Gen. Coun. Prec. 20-97 (May 22, 1997). A diagnosis of insanity must be based on competent medical evidence. Mental illness is not necessarily the same as insanity, and the insanity must be concurrent to the acts that led to discharge. Zang, 8 Vet. App. at 253-55. The appellant has submitted recent private opinions from mental health professionals stating that he currently has PTSD due to military trauma. The evidence of record includes mental health evaluations during service, as well as the appellant's statements and hearing testimony as to the circumstances surrounding his AWOL periods and confinement in service, and his mental status at the time. In particular, the question of mental state or insanity was explained and discussed during the Travel Board hearing. There is no indication of any pertinent outstanding records during or shortly after the appellant's service. If the character of the appellant's discharge has not been upgraded by the Board of Corrections, so as to remove the bar for VA benefits, the evidence of record concerning the appellant's mental status should be considered with adjudication. Accordingly, the case is REMANDED for the following action: 1. Contact the Board of Corrections of Naval Records, or other appropriate entity, to determine the outcome of the appellant's April 2009 application for correction of his records and upgrade in the character of his discharge. 2. Thereafter, readjudicate the issue of whether the character of the appellant's discharge is a bar to VA benefits. If the issue remains denied, issue a supplemental statement of the case to the appellant and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate time for response. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. 2012). _________________________________________________ THOMAS H. O'SHAY Acting 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) (2012).