Citation Nr: 21006884 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-28 104 DATE: February 5, 2021 ORDER Entitlement to recognition that the character of the appellant's service is not a bar to VA benefits is granted. REFERRED The issue of service connection for an acquired psychiatric disorder was the subject of the original claim. It was not adjudicated by the Agency of Original Jurisdiction (AOJ) because of the finding that the character of the Veteran’s discharge is a bar to VA benefits. As the Board finds in favor of the Veteran as to character of discharge, the AOJ must adjudicate the underlying claim of service connection for an acquired psychiatric disorder. FINDING OF FACT The Veteran obtained an upgrade to “honorable” from the Board for Correction of Naval Records for the period of service from October 1968 to May 1969. CONCLUSION OF LAW The character of the Veteran’s discharge is not a bar to receipt of VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously decided by the Board in October 2016 and November 2017. On both occasions, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated each decision. Most recently, the case was remanded by the Board in September 2019 for a medical opinion. 1. Entitlement to recognition that the character of the appellant's service is not a bar to VA benefits In order to qualify for VA benefits, a claimant must demonstrate that he or she is a “veteran” as defined by law. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). By law, a “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). Thus, a discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). The provisions of 38 C.F.R. § 3.12 (b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits. There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c), and regulatory bars listed in 38 C.F.R. § 3.12 (d). The Veteran was previously found to have been barred from receiving VA benefits because of the character of discharge associated with the period of service from October 1968 to May 1969. A Defense Department Form 214 (DD 214) identified the character of his service to be other than honorable. VA subsequently found that one or more of the enumerated bars applied to his service. Since those previous Board decisions, the Veteran obtained an upgrade to his discharge from the Board for Correction of Naval Records. A new DD 214 was issued evidencing this upgrade. The upgraded character of service is “honorable” for the period from October 1968 to May 1969. Since the character of his discharge for the period from August 1966 to October 1968 was already deemed honorable, the entire period of service is honorable. A discharge under honorable conditions is binding on VA as to character of discharge. 38 C.F.R. § 3.12 (a). As the service department has found the Veteran to have had honorable service, there is no bar to VA benefits. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.