Citation Nr: 21000712 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 20-30 598 DATE: January 6, 2021 REMANDED The claim of entitlement to basic eligibility for VA home loan guaranty benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Marine Corps from April 1986 to November 1990. He received a discharge under other than honorable conditions in lieu of a trial by court-martial. This matter is on appeal from an April 2018 decision. 1. The claim of entitlement to basic eligibility for VA home loan guaranty benefits is remanded. A certificate of eligibility for loan guaranty benefits is granted only to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C. §§ 3701 and 3702. A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual’s legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24), 3701; 38 C.F.R. §§ 3.1, 3.6. The term “Veteran” means “a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). 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). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars and regulatory bars. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c), (d). A statutory bar precludes the payment of VA benefits when a former service member was discharged or released under one of the following conditions: as a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; by reason of the sentence of a general court-martial; resignation by an officer for the good of the service; as a deserter; as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days with certain exceptions as afforded in the regulation. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c). If there is no statutory bar, VA must then determine whether there is a regulatory bar to benefits. Regulatory bars are discharges or releases due to one of the following offenses, which are considered to have been issued under dishonorable conditions: acceptance of undesirable discharge in lieu of trial by general court- martial; mutiny or spying; offense involving moral turpitude; willful and persistent misconduct; and homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Id. A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. Id. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not, per se, constitute willful misconduct. 38 C.F.R. § 3.1(n). If a statutory or regulatory bar exists, VA benefits may still be granted if it is established at the time of the offense leading to the discharge that the appellant was insane. 38 U.S.C. § 5303(b). Unfortunately, in the present case, the record is insufficient to adjudicate this issue. The extremely limited evidence of record includes a DD-214, and the procedural documents of the loan guaranty appeal. The DD-214 reflects a discharge under other than honorable conditions in lieu of a trial by court-martial. An internal VA email references a previous administrative decision regarding the character of the appellant’s discharge, but such is not provided with the file. Additionally, none of the appellant’s personnel records have been sought and associated with the claims file. The October 2020 Statement of the Case appears to work around this by vaguely stating that the “VA Service Center had previously reviewed the evidence of the discharge and determined that the circumstances surrounding your discharge required us to consider it to have been issued under dishonorable conditions.” The appellant has not been informed whether there is a statutory bar or regulatory bar to benefits in this case, nor has supportive evidentiary material been provided to sustain this finding. Furthermore, the appellant’s VA Form 21-22 designating his representative, while noted to have been received in November 2018, is also absent from the record. Thus, remand is necessary in order to obtain the necessary documentation to support adjudication of this issue. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the appellant’s personnel and service treatment records. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the appellant must be notified. 2. Associate the VA’s previous administrative decision regarding the character of the appellant’s discharge with the electronic claims file. 3. Associate the appellant’s VA Form 21-22 with the electronic claims file. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, Associate Counsel 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.