Citation Nr: 1813834 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 10-11 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to show that the character of the deceased's service constitutes a bar to Department of Veterans Affairs (VA) benefits, to include the appellant's claim of service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1967 to June 1971. Among other awards and decorations, he is in receipt of the Purple Heart for combat service in the Republic of Vietnam. The Veteran died in March 1983 at the age of 34. The appellant is the Veteran's widow. This is the Veteran's only period of active service and the character of discharge from this period of service is the primary subject of the present claim. By way of history, the Veteran initially received a discharge under conditions other than honorable as a result of sentence by a general court-martial for unauthorized absence from September 1969 to November 1970, for a period of 428 days. Service personnel records document that the discharge was then changed to a general discharge pursuant to presidential memorandum dated January 19, 1977. This directive implemented Presidential Proclamation 4313 pertaining to upgrades for the purpose of establishing a program of clemency for some Vietnam-era military absentees. See 38 C.F.R. § 3.12(h)(1)(2017); see also Robertson v. Gibson 759 F.3d 1351 (2014)(describing history and intent of clemency program as it relates to entitlement to VA benefits). A March 1978 Navy Discharge Review Board then reviewed the Veteran's general discharge under Public Law 95-126 and determined that this characterization of service was warranted by the January 1977 presidential memorandum. The Review Board's decision became final. The original DD Form 214 was cancelled and superseded. It appears as though the new character of service designation should read General Discharge based upon the Navy Review Board's findings; however, the corrected DD Form 214 reflects character of service as "Under Honorable Conditions." The reason for this change is uncertain, but the designation of an honorable discharge is clear. Furthermore, in either case, under either a general discharge or an honorable discharge, the deceased has met the regulatory definition of a "Veteran" as a person serving in the active military, naval, or air service, and who was discharged under conditions other than dishonorable. 38 U.S.C. § 101(2)(2012). The appellant requested a personal hearing before the Board in March 2010. In November 2013, she was scheduled for the requested Travel Board hearing, but cancelled her appearance at the hearing, and her request for a hearing was considered withdrawn. See Board remand, March 2014. The appellant has indicated no subsequent desire for a Board hearing on this matter, thus the Board proceeds with the appeal. 38 C.F.R. § 20.704(e) (2017). The Board notes that as further development is required, thus necessitating an additional remand at this time, if the appellant did not intend to withdraw her request for a hearing, and desires to provide personal testimony before a Veterans Law Judge on this matter, she may still elect to request a hearing for this purpose if she so chooses. This appeal was subject to a prior remand by the Board in March 2014 to ensure compliance with due process requirements. Unfortunately, there has not been adequate compliance with those remand instructions, and an additional remand is necessary at this time. Thus, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand by the Board confers a right to the appellant, as a matter of law, to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2014, the Board instructed the Regional Office (RO) and/or Appeals Management Office (AMO) to provide adequate notice of what type of evidence would be needed to substantiate the claim. The supplied notice later in March 2014 was not adequate as it did not explain what evidence would be required to show that the character of the deceased's service does not constitute a bar to VA benefits. Furthermore, the Board instructed that the remanded claim should be re-adjudicated only after an earlier referred claim of clear and unmistakable error (CUE) in an RO decision was initially adjudicated regarding administrative decisions that the Veteran's character of discharge presented a bar to VA benefits. The adjudication of that CUE claim has not yet happened according to the record. Therefore, based upon the right conveyed by the Board's prior remand, an additional remand is necessary to complete these steps. The appellant has also recently asserted that remand is warranted to obtain service personnel and service treatment records, not currently associated with the claims file, to assist her in substantiating the present claim. VA's duty to assist requires exhaustive efforts to ensure all identified records in the custody of a Federal department or agency, including VA or the relevant service department, are associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2017). For the sake of clarity, the Board notes that the decision remaining at this time is not based merely on which set of words is used to describe the character of the Veteran's service on the DD Form 214. Indeed, the corrected DD-214 reflects that he received an upgrade to an honorable discharge, but this is not a definitive answer for the purposes of VA benefits entitlement because the regulations governing character of discharge specifically exclude even honorable discharges from removing a bar to benefits when that discharge is a result of the type of presidential clemency program used in some cases, particularly when discharge is due to conviction by general court-martial. See 38 C.F.R. § 3.12 (g), (h)(1)(2017). Instead, the Board must evaluate the regulations that prohibit payment of VA benefits in light of all the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Take all appropriate steps to obtain the Veteran's service personnel and service treatment records and associate these records with the claims file. Such attempts to obtain these records should be documented in the electronic claims record. Once obtained, a copy of these documents should be provided to the appellant and her representative. If any such record is determined to be unavailable, the documentation used in making that determination should be set forth in the claims file. 2. Notify the appellant that to show that the character of the Veteran's service does not constitute a bar to VA benefits, she may submit evidence that at the time of his unauthorized absence from September 1969 to November 1970 that led to his conviction by court-martial, the Veteran was insane. Include notification that for VA purposes, an insane person is, in general terms, one who while not necessarily mentally defective or psychopathic, exhibits a prolonged deviation from his normal method of behavior due to mental illness; or who interferes with the peace of society; or who has become so antisocial as to be removed from the accepted standards of the community to which he belongs. 3. Adjudicate the claim of clear and unmistakable error in prior RO administrative decisions, as raised by the appellant's representative in a January 2008 Statement in Support of Claim. 4. Undertake any other development deemed warranted, and then readjudicate the appellant's claim on the basis of the additional evidence. If a benefit sought on appeal is not granted, provide the appellant and her representative with a Supplemental Statement of the Case, then return the appeal 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).