Citation Nr: 21073281
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 18-17 440
DATE: December 8, 2021

REMANDED

Whether the character of the Appellant's discharge from active duty service constitutes a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded.

REASONS FOR REMAND

The Appellant served on active duty with the United States Marine Corps from November 1983 to April 1986, and the service was characterized as under other than honorable conditions.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 administrative decision issued by the Agency of Original Jurisdiction (AOJ) in denial of a claim for service connection for a left knee disability.  The AOJ determined the Appellant's military service does not entitle him to VA benefits.  

In September 2021, the Appellant testified before the undersigned.  A transcript of the hearing has been associated with the record.

Whether the character of the Appellant's discharge from active duty service constitutes a bar to the receipt of VA benefits is remanded.

The claim must be remanded to obtain complete records. 

The Appellant's DD Form 214 shows a discharge under other than honorable conditions for "misconduct  drug abuse."  The AOJ found that the discharge was due to willful and persistent misconduct, which is considered a dishonorable discharge for the purposes of VA benefits.  See 38 C.F.R. § 3.12(d)(4).  

The Appellant has disputed this characterization of discharge, arguing that the infractions in service were discrete instances of minor misbehavior rather than a pattern of willful misconduct.  He has also disputed the charges brought against him in service as " trumped up" due to racial animus, further asserting that the medical evidence did not support the 1985 drug charge.

The service personnel records currently associated with the record do not appear to be complete, and the Board is unable to weigh the Appellant's arguments.  Specifically, the personnel records do not include the records from the three nonjudicial punishments cited as disciplinary history in the Appellant's separation proceedings, nor is it clear whether the drug laboratory report cited as evidence in the second endorsement for administrative separation with the other than honorable characterization.

The Board is unable to determine the character of the Appellant's discharge and a remand is necessary to attempt to obtain a complete set of records.

The matter is REMANDED for the following action:

Take all appropriate action to obtain all service personnel records for the Appellant's period of active duty service from November 1983 to April 1986, including all records relating to any offenses and punishments, such as charge sheets, nonjudicial punishments, court-martial proceedings, and any other evidence considered in processing the Appellant's administrative separation from service.

 

 

M.E. Larkin

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.