Citation Nr: 1311006 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-47 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether the character of the appellant's discharge from service is a bar to Department of Veterans Affairs benefits. ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The appellant served on active duty from November 2001 to November 2005 and was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. 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 appellant's service personnel records reflect that after being given a negative evaluation report and counseling record in February 2005, the appellant was transferred to the USS HAWES (FFG 53) in March 2005. They further reflect that from the USS HAWES (FFG 53), in October 2005, the appellant accepted an administrative discharge under other than honorable conditions in lieu of trial by court martial. Neither the October 2005 administrative discharge memorandum, nor any other record in the claims file, indicates whether such court martial was a general or special court martial, or what charges led to such court martial. Also, the record does not contain any evaluation report or record of non-judicial punishment dated during the appellant's service on the USS HAWES (FFG 53) from March 2005 to October 2005. The claims file contains a note from the RO dated in November 2009 indicating that the appellant's "201 file" had been obtained and reviewed, but that the file did not indicate whether the appellant was to have a trial by general or special court martial, or what charges were to be brought fourth. The record further reflects that the appellant has applied to the Department of the Navy Council Review Boards for discharge review. In light of the above, remand of the appeal is warranted for the RO or AMC to attempt to obtain all records regarding the circumstances leading to the appellant's administrative discharge under other than honorable conditions in lieu of trial by court martial, as well as the nature of such court martial. Such records should include any administrative discharge proceedings records, court martial records, evaluation reports or evidence of non-judicial punishment from the USS HAWES (FFG 53) from March 2005 to October 2005, and any other pertinent records. The RO or AMC should attempt to contact any relevant sources for these records including the Secretary of the Navy Council of Review Boards, Navy Personnel Command, and the Commander Naval Surface Force, United States Atlantic Fleet. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records regarding the circumstances leading to the Veteran's administrative discharge under other than honorable conditions in lieu of trial by court martial, as well as the nature of such court martial. Such records should include any administrative discharge proceedings records, court martial records, evaluation reports or evidence of non-judicial punishment from the USS HAWES (FFG 53) from March 2005 to October 2005, and any other pertinent records. Contact any relevant sources for these records, including the following: Department of the Navy Secretary of the Navy Council of Review Boards 720 Kennon Street SE, Suite 309 Washington, DC 20374-5023 Navy Personnel Command 5720 Integrity Drive Millington, TN 38055-3120 Department of the Navy Commander Naval Surface Force United States Atlantic Fleet 1430 Mitscher Avenue Norfolk, VA 23551-2494 All records and/or responses received should be associated with the claims file. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the appellant, and return the appeal to the Board for appellate review, after the appellant has had an adequate opportunity to respond. 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. 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. 2012). _________________________________________________ Mark W. Greenstreet 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).