Citation Nr: 20043395 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 12-33 703 DATE: June 26, 2020 REMANDED Whether the character of the Appellant's discharge from military service is a bar to entitlement to benefits under the laws administered by the Department of Veterans Affairs (VA), to include health care benefits authorized under Chapter 17 of Title 38, United States Code, is remanded. REASONS FOR REMAND The Appellant served on active duty from May 21, 2001 to November 5, 2004 and was separated from service with a Bad Conduct Discharge. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2016 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO), in San Diego, California. In March 2020, the Appellant appeared at a hearing before the undersigned Veterans Law Judge and offered testimony in support of his claim. A transcript of the Appellant's hearing testimony has been associated with his claims file. During his March 2020 Board hearing, the Appellant requested an extension of ninety days to provide additional evidence, namely his court martial records and related evidence. In May 2020, the Appellant requested an additional extension of sixty days to provide additional evidence. As discussed below, the Appellant will be afforded an opportunity to provide additional evidence as directed in this REMAND. 1. Whether the character of the Appellant's discharge from military service is a bar to entitlement to benefits under the laws administered by the Department of Veterans Affairs (VA), to include health care benefits authorized under Chapter 17 of Title 38, United States Code, is remanded. A review of the record indicates that the Appellant's military personnel records appear to be incomplete. In this regard, Service Department records reveal that, in February 2003, the Appellant was convicted of unlawful carnal knowledge of a minor, in violation of Article 120 of the Uniform Code of Military Justice, and sentenced to confinement for 11 months, reduction in rank to E-1, and a Bad Conduct Discharge. This determination was based in part on the investigative report by the Naval Criminal Investigative Service (NCIS), which is not part of the current record before the Board. Additionally, in his March 2020 Board hearing, the Appellant asserted that he was intoxicated to the point of being unable to know the difference between right and wrong at the time of his offense, or to recognize the criminality of his conduct. It is also unclear of the current record whether this defense was raised at trial, or whether he underwent a psychiatric evaluation as part of the judicial proceedings against him. The Appellant also asserted that he may have met the definition of insanity, under VA regulations, at the time of his misconduct, due to intoxication. He further stated that there was evidence of intoxication which may have been included in the NCIS investigative report. The Board is of the opinion that a copy of the court martial documents, record of trial, mental status examinations (if any) and the report by the NCIS should be obtained. The matters are REMANDED for the following action: 1. The RO should contact the Appellant and afford him an opportunity to submit any evidence related to his court martial conviction which he may have in his possession. He should also be afforded an opportunity to identify other sources which may have custody of such evidence. 2. The RO should contact the appropriate organization in order to obtain a copy of the Appellant's complete Navy personnel records, court martial documents, record of trial, and the final report of the investigation conducted by NCIS. 3. Thereafter, the RO should readjudicate the claim. If the benefit sought is not granted the Appellant and his representative should be furnished with a supplemental statement of the case and an opportunity to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.