Citation Nr: 21062714
Decision Date: 10/12/21	Archive Date: 10/12/21

DOCKET NO. 17-14 093A
DATE: October 12, 2021

REMANDED

Whether the character of the Appellant's discharge is a bar to VA benefits is remanded.

REASONS FOR REMAND

The Appellant served on active duty with the United States Navy from January 1979 to November 1983, and he received a bad conduct discharge.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits.  

This case was previously before the Board in April 2019, when it was remanded for development and March 2020, when the Board denied the Appellant's claim.  The Appellant appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR).  In May 2021, the Court granted the JMR, vacating the Board's decision and remanding the case for further proceedings.  The case has been returned to the Board at this time for further appellate review.

Whether the character of the Appellant's discharge is a bar to VA benefits is remanded.

In the JMR, the Parties agreed that the March 2020 Board decision failed to address whether there was substantial compliance with the April 2019 Board remand instructions, which directed the RO to obtain the Appellant's service personnel records.  However, it appears the records were incomplete, as only a portion of the May 1983 special court martial proceedings are included in the claims file.

The Board therefore finds there has not been substantial compliance with the remand directive, and another remand is necessary to attempt to obtain a complete set of the Appellant's service personnel records and any records associated with the determination of the character of his discharge.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order).

The matter is REMANDED for the following action:

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Attempt to obtain from the appropriate repositories any service department records, including personnel records, pertaining to the characterization of the Appellant's discharge, that are not already of record, and associate those documents with the claims file.  

All such attempts should be documented in the claims file.  If the above described records are unavailable, the Veteran's file must be documented clearly to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Josey, 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.