Citation Nr: 21074663 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-56 563 DATE: December 16, 2021 ORDER The character of the Veteran's discharge is not a bar to the award of VA gratuitous benefits; to this extent the appeal is granted. FINDING OF FACT In July 2018, the Air Force Board for Correction of Military Records (AFBCMR) directed the Veteran's service record be corrected to reflect that he was discharged with a characterization of service under honorable conditions (general). CONCLUSION OF LAW The criteria for status as a veteran and basic entitlement to VA gratuitous benefits have been met. 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.12. REFERRED MATTER As it relates to the current appeal, the Veteran initially filed a claim for VA disability compensation benefits in March 2014. See March 2014 VA Form 21-526EZ. The Veteran's claim was denied on the grounds that the character of his discharge is a bar to the award of VA gratuitous benefits. See March 2015 VA notification letter; see also D'Amico v. West, 209 F.3d 1322, 1326 (2000) ("[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability"). As discussed further below, the character of the Veteran's discharge no longer constitutes a bar to the award of VA gratuitous benefits. Thus, the "veteran status" element of the Veteran's claim for VA disability compensation benefits has been met. To the extent that any of the other elements of the Veteran's claim for VA disability benefits remain pending, they are referred to the agency of original jurisdiction (AOJ) for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1966 to April 1969. A Board hearing was held before the undersigned Veterans Law Judge in November 2020, and a transcript of the hearing is of record. As an initial matter, the Board observes that an April 1973 VA administrative decision determined that the character of the Veteran's discharge constitutes a bar to the award of VA gratuitous benefits. It appears the April 1973 determination was based on just a portion of the Veteran's service records. See December 1972 VA Form 07-3101 (requesting service records limited to the facts and circumstances surrounding the discharge). However, the Board also observes that the Veteran's complete service personnel and treatment records were associated with the claims file in May 2014. Such records existed at the time of the April 1973 VA administrative decision, and contain additional relevant information pertaining to the issue of whether the character of the Veteran's discharge is a bar to VA benefits. In contrast to the general rule, which only permits claims to be reopened on the submission of new and material evidence, a veteran's claim will be reconsidered when relevant service department records are newly associated with the veteran's claims file. See 38 C.F.R. § 3.156(c). In light of the relevant service records that were newly associated with the Veteran's claims file in May 2014, the Board will reconsider the issue of whether the Veteran's character of discharge is a bar to VA compensation benefits The character of the Veteran's discharge from service is not a bar to the award of VA gratuitous benefits. During the pendency of the current appeal, the AFBCMR determined that the Veteran's service record should be corrected to reflect that he was discharged with a characterization of service under honorable conditions (general). See July 2018 Memorandum for the Chief of Staff, United States Air Force. An honorable discharge or a discharge under honorable conditions issued through a board for correction of records established under 10 U.S.C. § 1552 is final and conclusive on VA. See 38 C.F.R. § 3.12(e). In this case, the action of the AFBCMR sets aside any prior bar to benefits imposed under 38 U.S.C. § 5303 or 38 C.F.R. § 3.12. Accordingly, the character of the Veteran's discharge from service no longer constitutes a bar to the award of VA gratuitous benefits; to this extent the appeal is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate 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.