Citation Nr: 21072901 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-13 488 DATE: December 6, 2021 REMANDED Whether the appellant's character of discharge is considered dishonorable and constitutes a bar to payment of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Navy from October 1976 through February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Decatur, Georgia. In February 2021, the appellant testified at a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. Whether the appellant's character of discharge is considered dishonorable and constitutes a bar to payment of Department of Veterans Affairs (VA) benefits The appellant seeks recognition as a veteran for VA purposes. The appellant contends that his character of discharge has been upgraded to honorable which would entitle him to VA benefits. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Under authority granted in 38 U.S.C. § 501, VA has established requirements for verifying recognized service in the United States Armed Forces for purposes of eligibility for VA benefits. Sarmiento v. Brown, 7 Vet. App. 80, 82-83 (1994). Generally, VA may accept evidence of service submitted by a claimant or sent directly to VA by the service department, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements set forth above, VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). VA is prohibited from finding, on any basis other than a service department document that VA believes to be authentic and accurate, or service department verification, that a particular individual served in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service department findings are binding on the VA for purposes of establishing service in the United States Armed Forces. Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Thus, if the service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In this case, the appellant submitted a Department of Defense (DD) Form 215, dated June 6, 2019, purporting to show that the service department upgraded his characterization of service from Unsuitability to Honorable. The form was faded with several folds. However, there are discrepancies with the content of the form. Specifically, the Department of Defense Instruction Number 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series) indicates that the form will be annotated "to indicate the character of service has been upgraded; the date the application for upgrade was made; and the effective date of the corrective action." See Department of Defense Instruction Number 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series), Change 3, January 2019, page 13, available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133601p.pdf. The DD215 submitted by the appellant did not contain this required information. In his February 2021 Board testimony, the appellant testified that he I petitioned that....all my life I had thought I already had an honorable discharge. Then I found out it was less than honorable or told it was, and then I was in a hearing in 2017, and they had told me I was in the Army, and I never was in the Army. And so I questioned things, and that's when the petition was put in in 2015 because I had heard about it, 2017 when we was at the hearing and they brought up the Army, and I went forward to (my) Congressman. In his February 2021 Board testimony, the appellant further testified that he contacted his Congressman regarding his character of discharge, and he "helped me get the DD 215 to prove it was the Navy and an honorable discharge." Service personnel records show that the appellant received non-judicial punishment for several offenses that included assault, abuse of alcohol on duty, and possession of illegal drugs. An outpatient rehabilitation program was not successful. In an April 2019 Congressional correspondence with VA, the Congressman's aide noted that his constituent stated "he was in the Navy and he was discharged honorably (see attached proof). The decision was based on a guy in the Army who was discharged other-than-honorable." The attached proof only included the appellant's original DD214 and a Certification of Military Service, dated January 13, 2016, which purports to show the appellant's characterization of service is considered honorable. However, the proof provided by the Congressional aide did not include the DD215, nor any reference to contacting the Department of the Navy for assistance or documentation. Additionally, in his September 2017 DRO hearing, the appellant stated that he was pursuing an upgrade to his discharge from the Department of Defense and "had not heard back." The record also includes two Certifications of Military Service, dated October 26, 2012, and January 13, 2016, from the National Personnel Records Center, submitted by the appellant, which indicate an honorable discharge. These documents are inconsistent with the DD214 of record which shows an undesirable discharge. Based on the foregoing, the Board finds that it is unclear of the origin of the submitted DD215 and whether it accurately reflects the appellant's characterization of service as determined by the service department and does not meet the requirements of 38 C.F.R. § 3.203(a). As noted above, when evidence of service is not submitted, or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), the VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). The U.S. Court of Veterans Appeals (Court) has held that the VA is prohibited from finding, on any basis other than through official service department documentation, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As such, a remand is necessary to contact the service department to verify the authenticity of the submitted DD215 and the appellant's character of discharge, to include whether the NBCNR has received and/or made a decision on the appellant's request for an upgrade to his discharge. Duro, supra; see also 38 U.S.C. §§ 5103(a), 7104(a) (decisions of the Board must be based on all of the evidence that is known to be available). As this determination could prove dispositive to the issue at hand, the Board finds that development is warranted on this issue. The matters are REMANDED for the following action: 1. Afford the appellant an opportunity to provide supporting documentation, to include his correspondence with his congressman, which supports his contention that his discharge has been upgraded by the Department of the Navy. 2. Contact the Navy Personnel Command and request a verification of the appellant's character of discharge, to include any DD214s and/or DD215s issued to the appellant, as well as the basis for any such discharge, and any submissions and determinations made by the Navy Discharge Review Board and/or Board of Correction of Naval Records. All requests made and responses received must be associated with the appellant's electronic claims file. J.W. FRANCIS 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.