Citation Nr: 1630531 Decision Date: 08/01/16 Archive Date: 08/11/16 DOCKET NO. 11-24 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Loan Center in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim as to whether the character of the appellant's discharge from service is considered a bar to payment of VA benefits. 2. Whether the character of the appellant's discharge from service is considered a bar to payment of VA benefits. 3. Entitlement to basic eligibility for VA home loan benefits. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The appellant served in the United States Army from June 1977 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision by the Department of Veterans Affairs (VA) Home Loan Eligibility Center in Winston-Salem, North Carolina. That office determined that the appellant's character of discharge, under other than honorable conditions, for conviction of a felony involving moral turpitude, was a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(3). Jurisdiction over the appellant's claims file was subsequently transferred to the Regional Loan Center in Atlanta, Georgia. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appellant requested a Board hearing in his September 2011 substantive appeal (VA Form 9). However, he failed to report for the hearing scheduled in May 2016. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.702(e) (2015). The Board has recharacterized the VA home loan benefits claim on appeal by separating it into three separate issues for independent adjudication. The Board concludes this is the most proper way of handling the appeal. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). FINDINGS OF FACT 1. The appellant served in the Army from June 1977 to August 1992, and was discharged under conditions other than honorable. 2. In a final October 2004 VA administrative decision, the AOJ determined that the character of the appellant's discharge under other than honorable conditions was a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(3). The appellant was notified of the October 2004 VA administrative decision and of his appellate rights, but he did not appeal. There was also no evidence received within one year of the issuance of this decision. 3. The evidence received after the October 2004 VA administrative decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the character of discharge claim, and raises a reasonable possibility of substantiating the claim. 4. The appellant's DD Form 214 confirms that prior to completion of his terms of enlistment, the appellant had immediate reenlistments during earlier periods of service from June 1977 to December 1979, from December 1979 to October 1982, from October 1982 to August 1985, and from August 1985 to January 1989. The evidence does not demonstrate any behavioral or disciplinary problems for these earlier periods of service from June 1977 to January 1989. 5. The character of the appellant's four earlier periods of service extending from June 1977 to January 1989 was other than dishonorable. 6. The character of the appellant's final period of service from January 1989 to August 1992 was considered dishonorable due to conviction of a felony. The competent evidence does not demonstrate that the appellant was insane at the time of the offense. 7. The appellant's active military service in its entirety from June 1977 to August 1992 is not considered to be a single, unbroken dishonorable period of service. CONCLUSIONS OF LAW 1. The October 2004 VA administrative decision, which found that the character of the appellant's discharge was a bar to VA benefits, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2004). 2. The evidence received subsequent to the October 2004 VA administrative decision is new and material, and character of discharge claim is reopened. 38°U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The character of the appellant's initial periods of service from June 1977 to January 1989 was other than dishonorable, and therefore not a bar to VA benefits for the appellant. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5303 (West 2014); 38°C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.159, 3.203, 3.354 (2015). 4. In light of the findings herein, the criteria for basic eligibility for VA home loan benefits have been met. 38 U.S.C.A. §§ 3701, 3702, 5303A (West 2014); 38 C.F.R. § 3.315(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Where the issue on appeal involves the character of an appellant's discharge, VA must inform the appellant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18, 20-21 (2007). In the instant case, review of the claims folder does not reveal compliance with VA's duties to notify and assist. In any event, with regard to the new and material evidence, character of discharge, and VA home loan benefit issues, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the reopening and allowance of all the issues, any error is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. New and Material Evidence for Character of Discharge In an earlier October 2004 VA administrative decision, the AOJ found that the character of the appellant's discharge was a bar to VA benefits for his entire time in service in the Army from June 1977 to August 1992. After reviewing the appellant's DD Form 214 and service personnel records (SPRs), the AOJ concluded that the appellant had been discharged "under other than honorable conditions" for his entire period of service due to a civil court conviction in May 1991. Specifically, the appellant pled guilty to and was convicted of the statutory rape of an 11-year old girl, which is a felony offense. He was sentenced to 15 years imprisonment. The AOJ concluded that the appellant's discharge for his entire period of service in the Army from June 1977 to August 1992, for a conviction of a felony involving moral turpitude, was considered to have been issued under dishonorable conditions. This offense is listed as a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(3). By letter dated October 19, 2004, the appellant was notified of the VA administrative decision and of his appellate rights, but he did not submit a notice of disagreement, or new and material evidence, within one year of the notice of decision. Therefore, the October 2004 VA administrative decision became final for the character of discharge issue. That decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§°3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2004). The appellant filed his claim to reopen his character of discharge issue in February 2011, based on his submission of a VA Form 26-1880, Request for Determination of Eligibility and Available Loan Guaranty Entitlement. The AOJ did not officially reopen the new and material evidence claim for character of discharge and consider it on the merits in either the February 2011 decision on appeal or the June 2011 Statement of the Case (SOC). Regardless of the AOJ's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the AOJ is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the character of discharge issue before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In fact, the Federal Circuit has held that the new and material evidence requirement is applicable to cases involving character of discharge for VA benefits purposes. D'Amico v. West, 209 F.3d 1322 (2000). A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Shade, 24 Vet. App. at. at 117. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Board finds that new and material evidence has been received for the character of discharge issue, since the time of the final October 2004 VA administrative decision. See 38 C.F.R. § 3.156(a). Specifically, the appellant has provided additional, detailed lay statements contending that he had four prior periods of honorable service - specifically, from June 1977 to December 1979, from December 1979 to October 1982, from October 1982 to August 1985, and from August 1985 to January 1989. Each of these periods ended only because of intervening reenlistments by the appellant. Otherwise, he asserts he would have received an unconditional, honorable discharge for each time period. He believes that his entire period of service from June 1977 to August 1992 should not constitute one period of unbroken, dishonorable service. In other words, he maintains only his final period of service from January 1989 to August 1992 should be considerable as dishonorable for purposes of entitlement to VA benefits, with the other prior periods honorable. See February 2011 NOD; September 2011 VA Form 9; February 2013 revised NOD; July 2013 Veteran's statement. Assuming the credibility of the appellant's lay statements for purposes of reopening, the Board finds that this additional lay evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the character of discharge claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Court has held that a lay statement, when competent, can be material for purposes of reopening a claim. Shade, 24 Vet. App. at 122. Accordingly, the Board concludes that new and material evidence has been presented to reopen the appellant's previously denied claim for character of discharge. III. Character of Discharge Under VA laws and regulations, and for VA 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 2014); 38 C.F.R. § 3.1(d) (2015). 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. § 101(18); 38 C.F.R. § 3.12(a). A "discharge" or "release" includes retirement from the active military, naval, or air service. 38 C.F.R. § 3.1(h). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Service department findings (i.e., the Army, Navy and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380, (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999). VA has no authority to alter the claimant's discharge classification - the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). In the case of Tagupa v. McDonald, 27 Vet. App. 95, 101 (2014), the Court held that verification of periods of service must be made to the appropriate service department, (here the Department of the Army), and VA cannot rely upon a negative response from the National Personnel Records Center (NPRC) to determine whether as claimant has qualifying service under 38 C.F.R. § 3.203. However, in the present case, the Board has reviewed the appellant's SPRs, which reveal that the Department of the Army issued a January 1992 Memorandum regarding the period of service to which the appellant's dishonorable discharge applies. As this determination was made by the service department (Department of the Army), the Court's recent holding in Tagupa is not applicable, and no further development is required from the service department in the present case. A dishonorable discharge, a statutory bar, or a regulatory bar deprives the claimant of all gratuitous VA benefits. Such a discharge, statutory bar, or regulatory bar is binding on VA as to the character of discharge unless an exception such as insanity applies. 38 C.F.R. § 3.12. An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge and, thereby, a bar to VA benefits. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12; Camarena v. Brown, 6 Vet. App. 565, 567-68 (1994) (finding that 38 C.F.R. § 3.12 does not limit "dishonorable conditions" to only those cases where dishonorable discharge was adjudged). Specifically, there are two types of character of discharge bars: 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). These statutory and regulatory bars prevent entitlement to VA benefits. As to the regulatory bars, 38 C.F.R. § 3.12(d) provides that a discharge or release because of one of the offenses specified is considered to have been under dishonorable conditions. In the present case, the relevant offense is listed at 38°C.F.R. § 3.12(d)(3) - an offense involving moral turpitude (generally including conviction of a felony). The term "moral turpitude" is not defined in 38 C.F.R. § 3.12(d), but is defined in Black's Law Dictionary as "conduct that is contrary to justice, honesty, or morality." Black's Law Dictionary (8th ed. 2004). Additionally, in a published advisory opinion, VA's General Counsel indicated that moral turpitude is the element of a wilful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. See VAOPGCADV 6-87 (Feb. 5, 1988). In any event, a discharge or release from service under any of the conditions specified in 38 C.F.R. § 3.12(d), such as an offense involving moral turpitude, is a regulatory bar to the payment of benefits unless it is found that the person was "insane" at the time of committing the offense causing such discharge or release or unless otherwise specifically provided. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). That is, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. Id. Thus, "insanity" is a defense to all regulatory bars. VA regulations provide that an insane person is one (1) who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or (2) who interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). The burden is on the appellant to submit competent medical evidence that he was insane at the time of his offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). A person seeking VA benefits must first establish by a preponderance of the evidence 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 AOJ has determined in the present case that the character of the appellant's discharge was a bar to VA benefits for his entire time in service in the Army from June 1977 to August 1992. After reviewing the appellant's DD Form 214 and his SPRs, the Board sees that the appellant was discharged "under other than honorable conditions" due to a civil court conviction in May 1991. His separation code was "JKB" (civil court conviction). The separation authority was Army Regulation 635-200, Chapter 14, Section 11 - an active duty enlisted administrative separation for a civilian conviction. Specifically, SPRs extensively document that in May 1991 the appellant pled guilty to and was convicted of the statutory rape of an 11-year old girl, which is a felony offense. He was sentenced to 15 years imprisonment. Based on this evidence, the AOJ concluded that the appellant's discharge for his entire period of service in the Army from June 1977 to August 1992, for a conviction of a felony involving moral turpitude, was considered to have been issued under dishonorable conditions. It is correct this offense is a regulatory bar to VA benefits under 38 C.F.R. § 3.12(d)(3). That is, the Board agrees that the appellant's crime of statutory rape of an 11-year old girl was a wilful act committed without justification or legal excuse, which gravely violates moral standards and which, by reasonable calculation, would be expected to cause harm or loss to person or property. See VAOPGCADV 6-87 (Feb. 5, 1988). Consequently, it is clear that the appellant was discharged from the Army in August 1992 due to an offense involving moral turpitude, which constitutes a dishonorable discharge and a regulatory bar to VA benefits under 38°C.F.R. § 3.12(d)(3). Moreover, there is no indication in the record or allegation from the appellant that he was insane during the commission of this offense. See 38°C.F.R. § 3.354(a). Thus, insanity is not a defense to his dishonorable discharge in the present case. However, the appellant's argument centers on his assertion that prior to his dishonorable discharge in August 1992, he had four earlier periods of honorable service - specifically, from June 1977 to December 1979, from December 1979 to October 1982, from October 1982 to August 1985, and from August 1985 to January 1989. Each of these periods ended only because of intervening reenlistments by the appellant. Otherwise, absent these intervening reenlistments, he states he would have received an unconditional, honorable discharge for each earlier time period. He believes that his entire period of service from June 1977 to August 1992 should not constitute one period of dishonorable, unbroken service. In other words, he maintains only his final period of service from January 1989 to August 1992 should be considerable as dishonorable for purposes of entitlement to VA benefits, with the earlier periods considered honorable. The appellant does not dispute that his conviction for a felony offense in May 1991 renders his final period of service from January 1989 to August 1992 as dishonorable. However, he has requested that his four periods of service prior to January 1989 (i.e., from June 1977 to January 1989) be considered separate, honorable periods of service. See February 2011 NOD; September 2011 VA Form 9; February 2013 revised NOD; July 2013 Veteran's statement. On this issue, the Board has reviewed the appellant's personal statements, DD Form 214, and SPRs. From this review, the Board observes that the appellant entered service as an enlisted man in June 1977. He did not serve as a commissioned officer. His DD Form 214 confirms that he had immediate reenlistments during the earlier time periods of service from June 1977 to December 1979, from December 1979 to October 1982, from October 1982 to August 1985, and from August 1985 to January 1989. His SPRs do not demonstrate any behavioral or disciplinary problems for these earlier periods of service from June 1977 to January 1989. However, SPRs indicate that the Department of the Army issued several January 1992 Memorandums in which it recommended the Veteran be discharged from service with an "Other Than Honorable Discharge Certificate" due to his civilian conviction for statutory rape. But most importantly, one of these January 1992 Memorandums from the Department of the Army specifically delineates his date of enlistment for the "other than honorable" discharge as "January 12, 1989." It was noted the appellant had "prior service" before January 12, 1989, of 11 years, 7 months, and 8 days. In other words, this Army Memorandum strongly suggests that only his final period of service from January 1989 to August 1992 was under "other than honorable" conditions. The Board emphasizes that service department findings (i.e., the Army, Navy and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000). VA regulation addresses this type of factual situation. That is, a discharge to reenlist is deemed a "conditional" discharge if it was issued during peacetime service prior to the date the person was eligible for an unconditional discharge. 38°C.F.R. § 3.13(a)(3). Therefore, under this circumstance, the entire period of service constitutes one period of service, due to the conditional discharges, and entitlement will be determined by the character of the final termination of such period of service. See 38 C.F.R. § 3.13(b). However, an exception is provided in 38 C.F.R. § 3.13(c). The exception provided is that despite the fact that a conditional discharge or discharges may have been issued (such as the case here), a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met: (1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) The person was not discharged or released from such service at the time of completing that period of obligation, due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c). See also 38°U.S.C.A. § 101(18). If all three requirements are met, the entire period of service does not constitute one period of service and, instead, the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. VAOGCPREC 8-2000 (July 25, 2000). What this means is that, although the general rule provides that continuous reenlistments prior to expiration of the entire period of any given enlistment is generally to be considered as a single lengthy enlistment, an exception is provided when a person actually completes an entire period required by an enlistment, and there is no evidence of misconduct or other basis for the award of a discharge under conditions other than honorable during that enlistment period. Applying this regulation to the facts of the present case, the exception to the general rule applies. At the outset, generally, the entire period of service for the appellant from June 1977 to August 1992 would constitute one period of service and entitlement to VA benefits would be determined by the character of the final termination of such period of active service, which in this case was dishonorable. See 38 C.F.R. § 3.13(a), (b). In this regard, as noted above, the appellant was discharged under dishonorable circumstances for the entire period of service from June 1977 to August 1992, according to the AOJ. However, as for the exception listed under 38 C.F.R. § 3.13(c), the Board finds that the appellant meets all three elements of the criteria for the exception - (1), (2), and (3). That is, the exception applies here, resulting in multiple separate and distinct periods of service, because the appellant (1) served for the full period of the initial service obligation (which he clearly did as he served for over 11 years in total); (2) was not discharged due to his intervening reenlistments in December 1979, October 1982, August 1985, and January 1989; and (3) was eligible for a discharge or release under conditions other than dishonorable except for the intervening enlistments. 38 C.F.R. § 3.13(c). It follows that the character of the appellant's four earlier periods of service from June 1977 to December 1979, from December 1979 to October 1982, from October 1982 to August 1985, and from August 1985 to January 1989 were other than dishonorable. There is no evidence in his SPRs of any behavioral or disciplinary problems for these earlier periods of service from June 1977 to January 1989; in other words, there is no evidence of earlier dishonorable service. Each of these periods ended only because of intervening reenlistments by the appellant. It was not until his conviction in May 1991 that he had any problems. Thus, the appellant's entire service cannot be viewed, for VA purposes, as one, single period, and the character of the final termination of service in August 1992 cannot render him ineligible for VA benefits during his four earlier periods of service dated from June 1977 to January 1989. See 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.13(c). In summary, the appellant, in order to reenlist in the Army, was discharged on four occasions (December 1979, October 1982, August 1985, and January 1989), prior to completion of his terms of enlistment. Nevertheless, under 38 C.F.R. § 3.13(c), he may be deemed unconditionally and honorably discharged from service on these occasions. The character of the appellant's service that ended in December 1979, October 1982, August 1985, and January 1989 is not a bar to VA benefits for the appellant. As such, the appellant qualifies as a "veteran" for the periods of service extending from June 1977 to January 1989, and therefore is eligible to receive any VA benefits he qualifies for based upon these periods of service. See 38 C.F.R. §°3.1(d). He has established his "veteran" status from June 1977 to January 1989 by a preponderance of the evidence. Holmes, 10 Vet. App. at 40. IV. VA Home Loan Guaranty Benefits In order to be eligible for certain VA benefits, a service member must generally perform a "minimum duty" requirement: either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. 38 U.S.C.A. § 5303A(b)(1). However, there are situations in which the basic eligibility requirements for VA benefits as set forth under 38 U.S.C.A. § 5303A do not apply. For instance, the provisions do not apply to a person who is discharged or released from active duty for a disability incurred or aggravated in line of duty, or to a person who has a disability that the Secretary has determined to be compensable under chapter 11 of the applicable title. 38 U.S.C.A. § 5303A (b)(3) (B)-(C). The provisions are also inapplicable to VA home loan benefits where certain factors are met, such as: a discharge or release for the convenience of the government; a discharge or release for a medical condition that preexisted service and is not service-connected; an involuntary discharge or release for the convenience of the government based on reduction in force; or, a discharge or release for a physical or mental condition not characterized as a disability that interfered with performance of duty. 38 U.S.C.A. § 5303A(b)(3)(F)(i-iv). In addition, a certificate of eligibility for VA home loan guaranty benefits is granted to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C.A. §§°3701 and 3702 (West 2014). Basic eligibility for VA home loan benefits are outlined in 38 U.S.C.A. § 3702. Pursuant to this statute, the following veterans are eligible for VA housing loan benefits: (A) each veteran who served on active duty at any time during World War II, the Korean conflict, or the Vietnam era and whose total service was for 90 days or more; (B) each veteran who after September 15, 1940, was discharged or released from a period of active duty for a service-connected disability; (C) each veteran, other than a veteran described in clause (A) or (B) of this paragraph, who (i) served after July 25, 1947, for a period of more than 180 days and was discharged or released therefrom under conditions other than dishonorable; or (ii) has served more than 180 days in active duty status and continues on active duty without a break therein; (D) each veteran who served on active duty for 90 days or more at any time during the Persian Gulf War, other than a veteran ineligible for benefits under this title by reason of section 5303A(b); (E) each veteran described in section 3701(b)(5) this title; (F) each veteran who was discharged or released from a period of active duty of 90 days or more by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10). 38 U.S.C.A. §§°3701, 3702(a)(1), (2) (West 2014) (emphasis added); 38 C.F.R. § 3.315(b). In light of the findings above, the appellant's active service meets the legal criteria for basic eligibility for VA housing loan benefits set forth at 38 U.S.C.A. § 3702 and 38 C.F.R. § 3.315(b). In particular, the record clearly indicates that he served on active duty from June 1977 to January 1989 under conditions other than dishonorable - thus, he served after July 25, 1947, for a period of more than 180 days and was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C.A. § 3702(a)(2)(C)(i). Under these circumstances, the legal criteria for basic eligibility for VA home loan benefits have been met. 38°U.S.C.A. §§ 3701, 3702, 5303A (West 2014). ORDER New and material evidence having been submitted, the issue of the character of the appellant's discharge for purposes of entitlement to VA benefits is reopened, and to this extent only, the appeal is granted. The character of the appellant's discharge for the periods of service from June 1977 to January 1989 is not a bar to entitlement to VA benefits; to this extent only, the appeal is granted for these periods of service. Entitlement to basic eligibility for VA home loan benefits is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs