Citation Nr: 1329869 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-09 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether the appellant is eligible for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, to include whether his character of discharge is a bar to receipt of Department of Veterans Affairs benefits. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran's service on active duty has not been verified. The appellant, who is the husband of the Veteran, also served on active duty; he served in the Army from July 1973 to March 1975 and was discharged under conditions other than honorable. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision of the VA Regional Office (RO) in Muskogee, Oklahoma, which found the appellant's character of discharge to be a bar to his receipt of VA benefits. He perfected an appeal of that determination. In August 2011 a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if action on his part is required. REMAND The appellant filed an application for Chapter 35 DEA benefits in January 2010. Although he also served on active duty, he applied for VA education benefits as the dependent of his wife, a Veteran. Records show that he served one period of active service from July 1973 to March 1975, and that his release or discharge was under conditions other than honorable. The threshold question in this case is whether the character of the appellant's discharge from active service bars him from receipt of VA benefits. In its April 2010 administrative decision, the RO determined that the appellant's other than honorable discharge was not honorable and thus a bar to his receipt of VA benefits. As explained further in a statement of the case (SOC) issued to the appellant in February 2011, his release/discharge from service was due to willful and persistent misconduct from repeated AWOL and a conviction by a civil court, which was considered to be a release/discharge under dishonorable conditions. VA law provides that under 38 C.F.R. § 3.1, a "Veteran" is a person who served in the active military, naval, or air service and who was discharged under conditions other than dishonorable. There are both statutory bars and regulatory bars to the receipt of VA benefits. See 38 C.F.R. § 3.12(c), (d). Pertinent to the appellant, a discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). Further, if a person eligible to receive Chapter 35 DEA served with the Armed Forces, his/her release/discharge from each period of service must have been under conditions other than dishonorable. 38 C.F.R. § 21.3042(b). The appellant argues in statements and testimony that his discharge from service was not characterized in a fair and proper way. He explained that he requested to be discharged due to personal hardship related to timely receiving his pay in order to support his family. He also claimed that his discharge should have been on medical grounds, as he later learned that he had bipolar disorder. Upon review of the appellant's education folder (which was forwarded to the Board), the Board found that the appellant's service treatment and personnel records are largely absent, and that such records could bear on the determination of whether his discharge/release from service was due to persistent and willful misconduct. It is not known whether there is a claims file for the appellant, which may or may not contain such service records (a copy of a June 1975 VA letter in the education folder suggests that the appellant previously filed a claim for VA benefits, which was denied based on his character of discharge). Thus, prior to consideration of his claim further development (to obtain his service treatment and personnel records, to include a specific request for all records related to the appellant's release/discharge from service in March 1975) is needed. In addition, it is not clear that the RO has met its duty to notify the appellant of the information and evidence not of record that is necessary to substantiate his application, that VA will seek to provide, and that he is expected to provide, in accordance with 38 U.S.C. § 5103; 38 C.F.R. § 21.1031. Accordingly, the case is REMANDED for the following: 1. Send the appellant notice, informing him of any information and evidence not of record (a) that is necessary to substantiate the claim for Chapter 35 DEA benefits, to specifically include evidence to show his discharge from military service was not because of willful and persistent misconduct (e.g., a discharge due to a minor offense is not considered willful and persistent misconduct); (b) that VA will seek to provide; and (c) that the claimant is expected to provide. Such notice should also inform the appellant that insanity is a defense to a regulatory bar to receipt of VA benefits (see 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b)) and provide him with the regulatory definition of insanity (38 C.F.R. § 3.354(a)). 2. Associate the appellant's claims file, if one exists, with the education folder. If there is a claims file for the appellant, should ensure that it contains the appellant's service treatment and personnel records are, to include all records related to his release/discharge from service. If a claims file does not exist, the RO should obtain from the appropriate federal repository the appellant's service treatment and personnel records. The request should include a specific request for all service department records related to the appellant's release/discharge from service. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination (for the record) that such records do not exist or that further efforts to obtain such records would be futile. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 C.F.R. § 3.159(e). 3. After the above development is completed, review the expanded claims file together with any additional evidence submitted by the appellant, and readjudicate the matter of whether the appellant eligibility for Chapter 35 DEA benefits, to include determining whether his character of discharge from service is a bar to his receipt of VA benefits. If the benefit sought remains denied, furnish the appellant a supplemental SOC and return the case (with its expanded claims file) to the Board. 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 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). _________________________________________________ George R. Senyk 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 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2013).