Citation Nr: 21002909
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 19-04 031
DATE: January 19, 2021

REMANDED

Whether the appellant’s character of discharge is a bar to VA benefits is remanded.

REASONS FOR REMAND

The appellant served on active duty from June 22, 2005 to March 6, 2009.  After conviction at a Special Court Martial for misconduct, the appellant was discharged with a Bad Conduct Discharge.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin.

In December 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file.

Whether the appellant’s character of discharge is a bar to VA benefits is remanded.

In his December 2020 Board hearing testimony, the appellant reported that he had applied to have his discharge characterization upgraded to honorable.

Based on the forgoing, the Board finds that a remand is warranted for the RO to obtain the current status of the appellant’s character of discharge application from the Army Board for Correction of Military Records.

A copy of the Army Board of Corrections of Military Records decision, if any, along with any available supporting documentation, must be requested and associated with the claims file. The appellant is strongly urged to provide such information if it is in his possession. 

The matters are REMANDED for the following action:

1. Ask the appellant to submit a copy of any completed applications submitted to the Army Board for Correction of Military Records.

2. Contact the service department and/or records custodian(s), to include the Army Board for Correction of Military Records, with a request for the status of any pending application, if any, to upgrade the appellant’s character of discharge.

All reasonable attempts should be made to obtain such records. 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, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3. Thereafter, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case with a reasonable time to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order.

 

 

KELLI A. KORDICH

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.