Citation Nr: 21067671 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 20-22 588 DATE: November 5, 2021 ORDER The character of the Appellant's discharge from active duty service for the period from January 1992 to February 1995 is not a bar to the payment of Department of Veterans Affairs (VA) benefits; the appeal is granted. FINDINGS OF FACT 1. The Appellant's discharge for the period of active duty service from January 1992 to February 1995 was initially characterized as under other than honorable conditions by reason of misconduct. 2. In April 2019, the Appellant requested an upgrade of the character of his discharge for the period from January 1992 to February 1995, and, in November 2020, the discharge for this period was upgraded to honorable. 3. The Appellant's DD Form 214 for the period from January 1992 to February 1995 reflects that he received an honorable discharge for this period of service. CONCLUSION OF LAW The character of the Appellant's discharge for the period of active duty service from January 1992 to February 1995 is not a bar to entitlement of VA benefits. 38 U.S.C. § 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty with the United States Navy from September 1987 to September 1990 and from February 1971 to October 1974. For the first period of service, the Appellant received an honorable discharge, and the character of the second period of service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's second period of military service is dishonorable for VA purposes. 1. Whether the character of the Appellant's discharge for the period of active duty service from January 1992 to February 1995 is a bar to the payment of VA benefits VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority 10 U.S.C. § 1552 is final and conclusive on VA. The action of the board sets aside any prior bar to benefits imposed under section 3.12 of VA's regulations. 38 C.F.R. § 3.12(e). The record reflects the Appellant had two periods of active duty service with the Navy. The first period was from September 1987 to September 1990, and the Appellant received an honorable discharge. The second period was from January 1992 to February 1995, and the Appellant received a discharge under other than honorable conditions due to misconduct. During this second period of service, the Appellant received non-judicial punishments for violations of the Uniform Code of Military Justice, including failure to go to appointed place of duty and failure to obey barracks regulations in January 1992, and wrongful use of marijuana in May 1994. In December 1994, the Appellant was recommended for administrative separation for misconduct due to drug use, and in February 1992, he was discharged with an other than honorable discharge by reason of misconduct. In July 2017, the Appellant filed a claim for disability benefits. As a result, in April 2018, VA issued an administrative decision finding that the Appellant's service for the period from January 1992 to February 1995 is considered dishonorable for VA purposes and is not eligible for payment of VA benefits. In April 2019, the Appellant filed an application with the Board of Correction of Naval Records (BCNR) to upgrade his character of discharge for his second period of service. Although all the documents relevant to this petition are not in the record, the Appellant's corrected DD Form 214 indicates the character of service was upgraded by the BCNR in response to an application filed in April 2019, with an effective date for the corrective action in November 2020. Further, the Appellant submitted a January 2021 letter from the Department of the Navy indicating that a corrected DD Form 214 was issued. Most importantly, the corrected DD Form 214 indicates the character of discharge for the period from January 1992 to February 1995 is honorable. As noted above, an honorable discharge issued by the BCNR is binding on VA, and sets aside any prior bar to VA benefits. 38 C.F.R. § 3.12(e). Therefore, the Appellant's character of discharge for the period of service from January 1992 to February 1995 is honorable, and is not a bar to benefits issued by the VA. Emily Tamlyn 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.