Citation Nr: 18154337
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-10 383
DATE:	November 29, 2018
REMANDED
The issue of whether the character of the Appellant’s service is a bar to receiving Department of Veterans Affairs (VA) benefits is remanded.
REASONS FOR REMAND
VA benefits are not payable when a former service member was discharged or released as a deserter.  38 C.F.R. § 3.12(c)(4).  This bar to benefits does not apply, however, when the former service member was insane at the time of the offense leading to discharge.  38 C.F.R. § 3.12(b).
In this case, the Appellant enlisted into active duty in the United States Army on October 3, 2006, for a 3 year and 18-week period of obligation.  The Appellant entered a period of absent without leave on March 20, 2011, and he was dropped from the rolls and classified as a deserter on June 23, 2011.  Following service, the Appellant applied for VA benefits in November 2012.  
The record currently contains only documentation relating to the Appellant’s October 3, 2006, enlistment contract, and certain documentation associated with the Appellant’s ultimate classification as a deserter.  Further, given that the Appellant enlisted into the Army on October 3, 2006, with an initial period of obligation of 3 years and 18 weeks, the Appellant may have completed an initial honorable period of service.  Additional efforts must be undertaken to obtain a complete copy of the Appellant’s personnel file.    
Additional efforts must similarly be undertaken to obtain a full copy of the Appellant’s service treatment records.  The Appellant’s communications to VA have often been unclear and may represent some form of cognitive or psychological impairment.  For example, in June 2014, the Appellant indicated that he left the service because of paranormal experiences.  The Appellant has otherwise reported being a “hostage” to the voices that he hears and “fighting bad spirits”.  The Agency of Original Jurisdiction (AOJ) should undertake all appropriate efforts to obtain a full copy of the Appellant’s service treatment records to determine whether the Appellant was insane at the time he deserted from service.  
Furthermore, in July 2015, the Veteran submitted an application requesting an upgrade of the character of his discharge.  There is also no indication that the AOJ has undertaken efforts to obtain evidence associated with the determination of such a request or additional evidence submitted in support of such request.  Therefore, on remand, the AOJ should undertake all appropriate efforts to obtain all documentation relating to the Veteran’s application to upgrade the character of his discharge from service.
The matter is REMANDED for the following actions:
1. Undertake all appropriate efforts to obtain a full copy of the Appellant’s personnel and service treatment records.  If the Appellant’s records are unavailable after making all appropriate requests, issue a formal finding documenting the unavailability of such records and inform the Veteran of such unavailability.
2. Request copies of any outstanding records and decisions associated with the Appellant’s application for an upgrade of the character of his discharge from the Department of the Army, to include the underlying records and outcome of any application.  If the Appellant’s records are unavailable after making all appropriate requests, issue a formal finding documenting the unavailability of such records and inform the Veteran of such unavailability.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Flynn