Citation Nr: 19190888 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 15-17 079 DATE: December 3, 2019 ORDER The claim of entitlement to a Government-furnished headstone or grave marker is granted. FINDINGS OF FACT 1. The Veteran had a period of honorable active duty service from January 1956 to October 1957. He served a second period of active duty from October 1957 to December 1960, where he was discharged under Other than Honorable Conditions. 2. The Veteran, who died after November 1, 1990, is interred in a private cemetery, and his grave is currently marked with a privately-purchased headstone or grave marker. CONCLUSION OF LAW The criteria for entitlement to a Government-furnished headstone or grave marker have been met. 38 U.S.C. § 2306; 38 C.F.R. § 38.631. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1956 to December 1960. His period of service from October 1957 to December 1960 was classified as “other than honorable.” He died in November 2014, and the appellant is the Veteran’s adult daughter. The appellant did not appear for her Travel Board hearing scheduled in April 2018. Therefore, the Board finds that the appellant waived her right to a hearing and will proceed with the adjudication of the appeal on its merits. Government-furnished headstone or grave marker The appellant asserts that she is entitled to a Government-furnished headstone or grave marker for the Veteran’s grave. In relevant part, under 38 U.S.C. § 2306(d), VA shall furnish, when requested, an appropriate Government headstone or marker at the expense of the United States for any individual eligible for burial in a national cemetery (but not buried there), who is buried in a private cemetery, notwithstanding that the grave is marked by a headstone or marker furnished at private expense. Any person classified as a “veteran” is eligible for burial in a national cemetery. 38 U.S.C. § 2402; 38 C.F.R. § 38.620(a). A veteran is “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). After a detailed review of the evidence, the Board determines that the appellant is entitled to a Government-furnished headstone or grave marker for the Veteran. As an initial matter, the Board determines that the Veteran was a “veteran” and therefore eligible for burial in a national cemetery based upon an honorable period of active duty service. Specifically, although the Veteran was discharged “under other than honorable conditions” for his period of service from October 1957 to December 1960, the Veteran’s military personnel records and his DD-214 reflect that he had a prior period of “honorable” service from January 1956 to October 1957. In arriving at this conclusion, the Board observes that Regional Office (RO) initially determined that while the Veteran was issued two DD-214s for two separate periods of service, his service was nevertheless adjudicated as continuous for the purpose of determining that his entire service was “other than honorable.” In support, the RO noted that the Veteran had 3 minor infractions during his first period of service that occurred prior to going AWOL during his second period of service. As such, the RO determined the Veteran’s service from January 1956 to December 1960 was a single period of service because his misconduct was continuous throughout service. However, as an initial matter, the Board finds 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. Thus, VA has no authority to alter the Veteran’s discharge classification. Harvey v. Brown, 6 Vet. App. 416 (1994). Further, to the extent that the RO relied upon the M21-1 adjudication manual, the Board finds that it is not binding on the Board. DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017). In any event, although not binding, the Board observes its conclusion is consistent with the relevant sections of the M21-1. See M21-1, III.v.1.B.1-7. In this case, the M21-1 instructs the RO to combine periods of service only in the event the Veteran did not finish his contractual period of service. M21-1, III.v.1.B.4, 6. However, the Veteran’s DD-214 for his first period of service clearly reflects that his initial obligation was for 3 years. Therefore, his initial term of service ended (January 1959) prior to going AWOL for the period (July to October 1960) that lead to his discharge. Additionally, notwithstanding the aforementioned, the Board is not persuaded that the Veteran’s 3 minor infractions during his first period of service was sufficient to establish a continuous pattern of misconduct. Next, there is no dispute of fact regarding the date of the Veteran’s death in November 2014. Further, the appellant has indicated that the Veteran’s grave is currently marked and is buried in a private cemetery. Therefore, the appellant is entitled to have a Government-furnished headstone or marker for the Veteran’s grave. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Meyer, Associate Counsel