Citation Nr: 21012161
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 14-37 521
DATE: March 3, 2021

REMANDED

The petition to reopen the issue of whether the character of the appellant's discharge from service constitutes a bar to receipt of Department of Veterans Affairs (VA) benefits, to include nonservice-connected pension benefits, is remanded.

REASONS FOR REMAND

The appellant had active duty service with the United States Army from October 1967 to March 1970.  He received a discharge under other than honorable conditions in lieu of a trial by court-martial.  This matter is on appeal from an April 2012 Regional Office (RO) decision.  The Board remanded this issue in March 2020 in order to obtain a complete copy of the appellant’s personnel record, as well as documentation regarding the reported upgrade to his discharge by the Army. 

1. The petition to reopen the issue of whether the character of the appellant's discharge from service constitutes a bar to receipt of VA benefits, to include nonservice-connected pension benefits, is remanded.

The Board regrets the additional delay, but remand is again necessary in order to comply with previous remand instructions. 

In March 2020, the Board instructed the RO to request copies of all records and decisions from the Army pertaining to the reported upgrade to the appellant’s discharge.  The appellant was initially discharged under other than honorable conditions, but a subsequent DD-214 reflects discharge under honorable conditions.  Personnel files contain notations that suggest this second DD-214 was altered, though there is no indication as to why.  Unfortunately, it does not appear that the RO attempted to obtain documentation from the Army regarding any upgrade, nor was a formal finding of unavailability issued prior to returning the case to the Board.  Thus, remand is again necessary in order to afford substantial compliance with previous remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Request from the Army copies of all records and/or decisions associated with the reported upgrade of the appellant’s character of discharge from service.  If such records are unavailable after making all reasonable and appropriate attempts, issue a formal finding of unavailability, and inform the appellant.  Afford reasonable opportunity for the appellant to respond before returning the case to the Board.

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	H. Fisher, 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.