Citation Nr: 21068775
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 17-44 314
DATE: November 12, 2021

REMANDED

The issue of whether the appellant's character of discharge constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code, is remanded.

REASONS FOR REMAND

The appellant served on active duty from January 2008 to October 2010, at which time he received a discharge under other than honorable conditions (OTH). 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 administrative decision of a VA Regional Office (RO) in Phoenix, Arizona.

The appellant appeared before the undersigned Veterans Law Judge in May 2020 and a transcript of the proceeding has been associated with the record.

The Board previously remanded this matter in July 2020 for further development. The claim is now back before the Board for further appellate adjudication.

1. Whether the appellant's character of discharge constitutes a bar to payment of Department of Veterans Affairs (VA) benefits, exclusive of health care and related benefits authorized under Chapter 17, Title 38, United States Code is remanded.

The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed below.

In a July 2020 Board decision, the Board afforded the appellant an opportunity to submit any documents related to application(s) made to, or decision(s) made by, the Navy Discharge Review Board (NDRB) or Navy Board for Correction of Naval Records (NBCNR). In August 2020 correspondence, the RO requested that the appellant submit any substantiating documents, to include applications for discharge upgrade, to the RO for consideration. To date, it does not appear the appellant or his representative have submitted any NDRB or NBCNR records. 

In order to afford the appellant every opportunity to prove his claim, the Board finds that a remand is necessary to provide the appellant with another opportunity to submit documentation regarding his application for an upgrade to his discharge. 

The Board finds that the appellant's submission to the NDRB and/or NBCNR, if any, could materially impact the adjudication of the character of discharge claim. As such, the Board also finds that a remand is necessary to determine whether the NDRB and/or NBCNR has received and/or rendered a decision on the appellant's request for an upgrade to his discharge.

The matters are REMANDED for the following action:

1. Request that the Appellant provide VA a copy of his application to the NDRB and/or NBCNR and any findings pertaining to the application for discharge upgrade.

2. Contact the NDRB and/or NBCNR and request complete, legible copies of any final decisions or determinations, as well as supporting documents, pertaining to an application and/or appeal filed by the appellant with the NDRB and/or NBCNR pertaining to the classification of his release/discharge from the Army. Copies of any documents received from NDRB and/or NBCNR should be associated with the claims folder.

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael J. O'Connor, 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.