Citation Nr: 1341087 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 13-17 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the character of the appellant's discharge is a bar to VA Loan Guaranty eligibility. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The appellant served on active duty from November 1981 to May 1986. His DD-214 reflects that he was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) finding that the appellant's discharge was under other than honorable conditions and thus was a bar to VA home loan benefits, under 38 U.S.C. § 3.12 (2013). The Board notes that the appellant does not currently have a file on the Virtual VA electronic data storage system. 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 Further development is necessary for a fair adjudication of the issue on appeal. The appellant's character of discharge is noted on his DD Form 214 as other than honorable. The appellant submitted a statement in June 2013 asserting that there were compelling circumstances that caused his period of unauthorized absence and led to his discharge under other than honorable conditions, and that his character of discharge should therefore not be a bar to VA Loan Guaranty eligibility. Under VA law 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) (2013). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.129(a) (2013). Generally, if a person receives a discharge under other than honorable conditions that was issued for a period of unauthorized absence for a continuous period of at least 180 days, the discharge will serve as a bar to the receipt of VA benefits. 38 C.F.R. § 3.12(c)(6). This type of discharge will not be a bar if it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). Nor will the discharge serve as a bar if there are compelling circumstances to warrant the prolonged absence. 38 C.F.R. § 3.12(c)(6). In determining whether there are compelling circumstances to warrant a prolonged absence, the length and character of service exclusive of the period of prolonged AWOL will be considered. Service exclusive of the period of prolonged unauthorized absence should generally be of such quality and length that it can be characterized as honest, faithful and meritorious, and of benefit to the Nation. 38 C.F.R. § 3.12(c)(6)(i). Consideration is also given to the reasons offered for going unauthorized absence, including family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for the authorized absence should be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity, and consideration should be given to how the situation appeared to the person himself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds or other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged period of unauthorized absence began. 38 C.F.R. § 3.12(c)(6)(ii). Currently, the Loan Guaranty folder contains no evidence on which the Board can determine the credibility of the appellant's submitted statement or assess whether the character of discharge would be a bar to VA benefits. All available personnel records and service treatment records must be reviewed and considered in order to determine what led to the appellant's discharge from service. The procedural record of the case is also incomplete. A VA document indicates that correspondence in the "WebLgy" database from April and May 2013 was not capable of being viewed and four documents were listed as "irretrievable." The document states that "the Atlanta VA Regional Loan Center has been given specific guidance through an internal work-around to process Appeals and Notice of Disagreements," but there is no explanation of what this "work-around" entails. The folder also does not contain the initial decision or denial letter sent to the appellant. If there is currently a separate claims file or other temporary file in existence for this appellant, it must be combined with the Loan Guaranty folder so that all relevant information may be properly reviewed. Additionally, the May 2013 statement of the case, which stated that no "new and material" evidence had been received, indicates that this issue may have previously adjudicated by VA. There is, however, no evidence of record pertaining to such a prior denial. Without such evidence, the Board is unable to determine whether this case involves a claim to reopen a previously finalized decision or whether it is a new claim. Any documents pertaining to prior claims made by the appellant must also be associated with the Loan Guaranty folder for the current claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should locate and associate with the Loan Guaranty folder any claims files or temporary folders that are being maintained at the RO or any other location on behalf of the appellant. 2. The specific guidance provided to the Atlanta VA Regional Loan Center as an "internal work-around" due to errors in the "WebLgy" database must be provided in writing and associated with the claims file. 3. The RO/AMC should obtain from the appropriate source all of the appellant's service personnel and treatment records. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The appellant must then be given an opportunity to respond. 4. After reviewing the complete summary of the facts, circumstances, and proceedings pertaining to the discharge, VA must issue a formal character of discharge determination. This determination must include a finding on whether the appellant's sanity was involved and whether any period of unauthorized absence was under "compelling circumstances." 5. Thereafter, if the benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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. 2013). _________________________________________________ DEREK R. BROWN 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) (2013).