Citation Nr: 1325852 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-23 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether the character of the appellant's discharge is a bar to Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The appellant had active service from June 2007 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Under VA laws and regulations, and for benefits purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). VA benefits are not payable unless the period of service upon which the claim is based was terminated, discharge, or release under conditions other than dishonorable. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12(a) (2012). The appellant's DD Form 214 notes that he was discharged from service under other than honorable conditions due to misconduct. A discharge or release because of willful and persistent misconduct is to be considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). This includes a discharge under other than honorable conditions, if it is determined that it 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. Id. A discharge or release from service because of willful and persistent misconduct is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). At his February 2011 RO hearing, the appellant and his representative stated that the appellant would contact the Department of the Navy, Secretary of the Navy, Council of Review Boards to request a review of his discharge of under other than honorable conditions. In April 2012, the RO received a letter from the Council of Review Boards that requested records from VA because the appellant had requested a review of his discharge. As a result of this letter, VA is on notice that the appellant requested a review of his discharge, and that the Department of the Navy may have responded. VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Further, when VA has actual notice of the existence of relevant Federal records, the duty to assist includes requesting those records. Id. Accordingly, on remand, RO must make attempts to obtain any outstanding records from the Council of Review Boards that are pertinent to the appellant's request for a discharge review, and, if they are unavailable, the appellant should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). Accordingly, the case is REMANDED for the following action: 1. Contact the Department of the Navy, Secretary of the Navy, Council of Review Boards and request all outstanding records pertinent to the appellant's request for a discharge review. The attempts to obtain this information, as well as any negative response, should be documented in the claims folder. If such records are unavailable, the appellant must be provided with notice of this fact in compliance with 38 C.F.R. § 3.159(e)(1). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the appellant submits records that VA was unable to obtain and (4) notice that the appellant is ultimately responsible for providing the evidence. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the claim remains denied, in whole or in part, the appellant and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S. L. Kennedy 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).