Citation Nr: 1312339 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-30 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the character of the appellant's service discharge is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Charles Romo, Attorney ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The appellant reportedly served on active duty from March 15, 2004, through March 14, 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which determined that the appellant's military service from March 15, 2004, through March 14, 2008, was under "other than honorable conditions" and he is therefore not entitled to receive VA benefits for that period of service. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND When a person is seeking VA benefits, it must first be shown that the service member, upon whose service such benefits are predicated, has attained the status of Veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term Veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a) (2012). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars and regulatory bars. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c), (d). A discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: acceptance of undesirable discharge in lieu of trial by general court-martial; mutiny or spying; offense involving moral turpitude, this includes, generally, conviction of a felony; willful and persistent misconduct; and homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). A discharge or release because of willful and persistent misconduct will be considered to have been issued under dishonorable conditions. Willful and persistent misconduct includes a discharge under other than honorable conditions, if it is determined that the discharge was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4). Here, the appellant filed a claim for VA compensation/pension benefits in February 2008. However, the RO determined that the appellant is not entitled to VA benefits based on his service with the U.S. Marines from March 2004 to March 2008 because he was discharged under "other than honorable conditions." The record shows that the appellant received counseling during service in April 2005 because he had a severe problem following direct orders; he could not report to work on time; he had an unsatisfactory attitude toward his duties; his military appearance was unsatisfactory; and he had a hygiene problem. An April 2005 "Charge Sheet" shows that the appellant was charged with violation of Article 86 (Absence without leave) six times during March and April 2005, as well as Article 92 (Failure to obey order or regulation). He accepted the charges presented to him in May 2005 and received non-judicial punishment. The RO conducted a virtual inquiry with the Department of Defense in March 2008, and it was learned the appellant was discharged in March 2008 from the U.S. Marine Corps under "other than honorable conditions." As mentioned, the RO, in May 2008, indicated that the appellant is not entitled to VA benefits based on his character of discharge. In so concluding, the RO determined that the appellant's actions in service which led to the Article 86 and 92 violations constituted willful and persistent misconduct. The appellant, through his attorney, disagrees with the RO's decision that his military discharge was not honorable for VA purposes. In January 2009 correspondence, his attorney indicated that the available record discloses no violations of military law subsequent to May 2, 2005, noting that his DD-214 indicates that his Good Conduct Medal period commenced as of that date and that he was a lance corporal at the time of discharge. Although the RO requested the appellant's discharge documents in March 2008, and many documents in that regard have been received, his service personnel record, to include his DD 214, are not of record. Given that the appellant's personnel records are central to the issue of the character of his discharge and the surrounding circumstances, a remand is necessary to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC, or any other appropriate Federal agency or repository, to obtain a complete copy of the appellant's service personnel records, to specifically include his DD-214 for his period of Marine service from March 2004 to March 2008. Document all efforts to obtain these records. If these efforts are unsuccessful, notify the appellant and describe any further action to be taken by the RO with respect to the claim. 2. After completion of the above, readjudicate the claim with application of all appropriate laws and regulations (to include 38 C.F.R. § 3.12) and consideration of all additional information obtained since the issuance of the May 2010 statement of the case (SOC). If the decision remains adverse to the claimant, he and his attorney should be furnished a SSOC and afforded a reasonable period of time within which to respond. 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. 2012). _________________________________________________ P. M. DILORENZO 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).