Citation Nr: 21075280 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-36 226 DATE: December 20, 2021 ORDER New and material service personnel records have been obtained, and a claim for entitlement to Department of Veterans Affairs (VA) benefits is reopened and reconsidered. REMANDED Whether the character of the Appellant's discharge from service constitutes a bar to payment of VA benefits is remanded. FINDING OF FACT Service personnel records associated with the claims file since the final February 2011 administrative decision relate to an unestablished fact, are not cumulative or redundant of the evidence previously of record, and are sufficient to raise a reasonable possibility of substantiating the claim regarding whether the Appellant's discharge constitutes a bar to the payment of VA benefits. CONCLUSION OF LAW Service personnel records associated with the claims file since the final February 2011 administrative decision are new and material; therefore, the Appellant's claim for entitlement to VA benefits is reopened and reconsidered. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(c), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty with the United States Army from October 1967 to November 1970; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2021. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim for entitlement to VA benefits VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulations do not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to assist to be triggered. Shade v. Shinseki, 24 Vet. App. 100, 117 (2010) (discussing 38 C.F.R. § 3.159). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Importantly, when the new evidence consists of relevant service department records that existed at the time of the prior denial but had not been associated with the claims file, the original claim will be reconsidered instead of reopened, and the date of the prior claim remains the date of the claim. 38 C.F.R. § 3.156(c). The Appellant's underlying service connection claims were originally denied in a February 2011 administrative decision based on a finding that there was no evidence demonstrating insanity at the time of the conduct leading to discharge. The Appellant neither appealed the denial nor submitted evidence within the one year appeal period, and the decision therefore became final. At the time of the February 2011 final administrative decision, only the service personnel records considered to be the facts and circumstances relative to the Appellant's discharge were associated with the file, including a September 1968 special court-martial arising from two periods of absence without official leave (AWOL) in March 1968 to August 1968. Since the administrative decision became final, a larger portion of the Appellant's service personnel records have been associated with his claims file. These records include the Appellant's service brief showing a complete record of the time lost, as well as records relevant to an earlier period of AWOL in February 1968. The Board finds that this evidence relates to an unestablished fact, specifically the length and character of the Appellant's service exclusive of the period of prolonged AWOL in 1969 leading to discharge, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for entitlement to payment of VA benefits. The Appellant's claim is therefore reconsidered under 38 C.F.R. § 3.156(c) and is addressed on the merits below. REASONS FOR REMAND 1. Whether the character of the Appellant's discharge from service constitutes a bar to payment of VA benefits is remanded. 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). The Appellant's discharge was upgraded from under other than honorable conditions (OTH) to a general, under honorable conditions, discharge as part of the Department of Defense's 1977 Special Discharge Review program. However, the Army Discharge Review Board did not affirm this decision upon review of the Appellant's case on an individual basis, meaning that the upgraded discharge does not remove any bar to benefits imposed by VA law and regulations. See 38 C.F.R. § 3.12(h). Therefore, as the Appellant's OTH discharge was issued as a result of an AWOL for a continuous period of more than 180 days, he must either: (1) show that there were compelling circumstances to warrant the prolonged unauthorized absence; (2) show that he was 'insane' for the purposes of VA regulations at the time of the misconduct leading to discharge; or (3) obtain a decision from a board of correction of records established under 30 U.S.C. § 1552 upgrading his discharge. See 38 C.F.R. § 3.12(c)(6). The Appellant has asserted that there were compelling circumstances to warrant his prolonged AWOL, which took place from December 1969 to September 1970. He submitted a detailed psychiatric evaluation describing traumatic experiences while deployed to Vietnam from October 1968 to October 1969 and feelings of panic upon learning he was ordered to return to Vietnam for a second tour, which led to an impulsive decision to go AWOL. Before the Board can analyze the Appellant's argument, including how his assertions regarding hardship suffered overseas reconcile with the length and character of service exclusive of the period of prolonged AWOL, see 38 C.F.R. § 3.12(c)(6)(i)-(ii), a remand is necessary to attempt to complete the record. Although portions of the Appellant's personnel records were added to the claims file after the February 2011 administrative decision became final, it appears there are still service personnel records missing. There are no personnel records in the claims file from the period beginning after the September 1968 special court-martial through his November 1970 discharge, which is documented in the personnel records only by the service brief and original DD 214. The missing records probably and potentially contain records pertaining to discipline for period of AWOL after the Appellant's return from Vietnam, including his request for discharge for the good of the service; efficiency ratings corresponding to his first tour in Vietnam; and orders for a second tour in Vietnam. A remand is necessary to obtain a complete set of personnel records covering the Appellant's entire period of active duty service and subsequent discharge. Next, the Appellant has not specifically asserted that he was insane for the purposes of VA regulations at the time of the misconduct that led to his discharge. The Board notes that the private psychiatric evaluation submitted by the Appellant does offer the opinion that his current PTSD and depression had their onset in service, and contributed to his decision to go AWOL in order to avoid returning to Vietnam. This private opinion does not discuss whether, due to disease, the Appellant engaged in the misconduct that led to his discharge or otherwise meets the definition of insanity in VA regulations. See 38 C.F.R. § 3.354(a). However, a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). On remand, if the Appellant chooses to raise insanity in order to attempt to lift the bar to benefits, he may submit a medical opinion adequately addressing VA's definition of insanity. Finally, the Board also notes that the Appellant and his representative have requested VA upgrade his discharge status or recommend review of his file by the Board for Correction of Military Records. Upgrading a discharge is not within VA's jurisdiction; the appropriate course of action for doing so is submitting a DD Form 293 to the Army Board for Correction of Military Records (ABCMR). The Board notes that an upgrade issued by ABCMR would establish basic eligibility to receive VA benefits, regardless of any final decision made by the Board in this appeal. The matter is REMANDED for the following action: Attempt to obtain the Appellant's complete service personnel records that are not already of record for the period from February 1967 to November 1970 from the appropriate repositories, and associate those documents with the claims file. All such attempts should be documented in the claims file. If the above-described records are unavailable, the file must be documented clearly to that effect and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). JONATHAN B. KRAMER 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.