Citation Nr: 1325551	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  10-00 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Whether the character of the appellant's discharge is a bar to the receipt of Department of Veterans Affairs (VA) benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel 


INTRODUCTION

The appellant served on active duty from April 2001 to September 2005.

A July 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) concluded that the character of the appellant's discharge constituted a bar to the receipt of VA benefits.  The appellant filed a timely appeal to the Board of Veterans' Appeals (Board).

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

There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c)  and regulatory bars listed in 38 C.F.R. § 3.12(d). 

In reviewing the claims file, the Board notes that the July 2009 administrative decision appears to have found that a regulatory bar to VA benefits existed, whereas the statement of the case appears to find that a statutory bar existed.  Clarification is necessary as a matter of due process so the appellant if fully informed of the reasons for denial of his claim. 

With regard to the apparent finding of willful and persistent misconduct, the service department records obtained by the RO show the charges in connection with the appellant's court martial.  However, these records do not show the particulars on which the charges were based.  The appellant has offered his explanation, but the reports of any investigations or documentation of the particular of the offenses from official sources are not included in the claims file.  Appropriate action to obtain any such official records is necessary to allow for eventual fully informed appellate review. 

Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate action to request and associate with the claims file all service department records involving the appellant's court martial, to specifically include any investigation reports and the particulars (dates, names, places, etc.) upon with the charges were based.  

2.  After completion of the above to the extent possible, the RO should review the record.  If the appeal remains denied, the RO should issue an appropriate supplemental statement of the case clarifying the type of bar to VA benefits and reasons and bases for such finding.  After the Veteran and his representative are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 

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).


_________________________________________________
ALAN S. PEEVY
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).