Citation Nr: 1311227 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-25 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to basic eligibility for dependency and indemnity compensation (DIC). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The deceased service member served on active duty in the United States Marine Corps from May 1951 to August 1954. He died in June 2007. The appellant is the deceased service member's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied entitlement to service connection for the cause of the service member's death. In February 2009 and August 2010 letters, the RO advised the appellant that the service member's character of discharge from May 1951 to August 1954 was under dishonorable conditions that was a bar to entitlement to DIC benefits. The appellant perfected an appeal as to the RO's determinations. In March 2012, the appellant presented sworn testimony during a personal hearing in Houston, Texas, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the VA claims file. In a June 2012 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a December 2012 supplemental statement of the case (SSOC). The VA claims file has been returned to the Board for further appellate proceedings. As will be explained below, the appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant contends that he is entitled to DIC benefits based upon his late father's death as a result of his service in the United States Army from 1948 to 1950. As indicated above, the service member had subsequent active duty service in Marine Corps from May 1951 to August 1954. Only veterans and the surviving spouse, child(ren), or parent(s) of a veteran are eligible to receive pension, compensation, and dependency and indemnity compensation benefits. 38 C.F.R. §§ 3.3, 3.4, 3.5 (2012). A veteran is "a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable." 38 C.F.R. § 3.1(d) (2012). In the June 2012 Remand, the Board recognized an August 1955 Character of Discharge administrative decision in which it was noted that the service member had an honorable discharge for service in the United States Marine Corps from May 1951 to September 1952 and was discharged for re-enlistment purposes and his active duty continued to August 1954. The administrative decision indicated that the service member's discharge from service was under conditions other than honorable due to offenses that constituted willful and persistent misconduct and acts of moral turpitude. As there was no break in service, both periods are considered as one. Thus, both periods of service are considered as a dishonorable discharge. At the March 2012 Board hearing, the appellant testified that his father also served in the Army from April 1948 to March 1950 and provided a service number. See the March 2012 Board hearing transcript, pg. 3. He contends that this was an honorable period of military service upon which VA could rely to grant his DIC claim. As noted in the June 2012 remand, the record includes a Marine Corps Enlistment-Induction Contract and Record completed in September 1952 which noted that the service member had a period of prior enlistment in the Army from April 1948 to March 1950. This record also indicated that the Veteran received a general discharge due to "dependency" and was absent without leave (AWOL) for a period of 126 days. Additionally, the service member's DD-Form 214 for his Marine Corps service from May 1951 to September 1952 indicated that his "Total Net Service Completed for Pay Purposes" was three years and five months, which further suggested a period of prior military service. In the June 2012 Remand, the Board instructed the AMC to contact the National Personnel Records Center (NPRC), the Department of the Army, the National Archives, and any other appropriate federal department, and request verification of the deceased service member's active duty Army service from April 1948 to March 1950 under the service number provided by the appellant at the March 2012 Board hearing. A review of the record demonstrates that the AMC requested the service member's service records only from the National Archives and Records Administration and the Department of the Navy. See the SSOC dated December 2012. Moreover, a review of the June 2012 AMC letter to the National Archives reveals that the AMC failed to request the records under the service number provided by the appellant, as instructed by the June 2012 Board Remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As the Board's remand instructions have not been complied with, the current claim must be remanded so that this may be accomplished. Notably, in June 2012, the appellant submitted a Certification of Military Service in support of his claim, which was issued by the NPRC in June 2012. This Certification of Military Service shows that the service member served in the Army from April 5, 1948 to March 18, 1950 and received a general discharge under honorable conditions. Here, although the appellant has submitted evidence that the service member served in the Army from April 5, 1948 to March 18, 1950, the facts and circumstances of the service member's general discharge for that period of service are not of record. Before the Board can make a decision in this case, it needs to be clarified that all relevant evidence has been considered. Accordingly, in addition to the service member's service treatment and personnel records, the AMC must request records concerning the facts and circumstances of the service member's March 18, 1950 discharge. To this end, the Board reminds the AMC to request such records under the service number listed on the Certification of Military Service, which is consistent with the service number provided by the appellant at the March 2012 Board hearing. See the March 2012 Board hearing transcript, pg. 3. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Department of Army, the National Archives, and/or any other appropriate federal department, and request verification of the deceased service member's United States Army active service from April 5, 1948 to March 18, 1950, under the service number set forth on the Certification of Military Service (include a copy of the Certification with the request). Any and all associated service treatment and service personnel records should also be obtained. If such verification and/or associated service records cannot be provided, a memorandum detailing all efforts to obtain it should be placed in the claims file. 2. Then, readjudicate the appellant's claim for entitlement to basic eligibility for DIC. A specific determination should be made as to whether the service member had qualifying service for VA benefits purposes during the period from April 5, 1948 to March 18, 1950. If the benefits sought on appeal remain denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board as appropriate. 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 by the Court 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 J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).