Citation Nr: 21013871 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 08-21 978 DATE: March 10, 2021 REMANDED Whether the character of the Appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code is remanded. REASONS FOR REMAND The Appellant had a period of service from July 1979 to October 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2004 decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has remanded the appeal in May 2011, June 2017, December 2017, and June 2018 for further development. 1. Whether the character of the Appellant’s military service discharge is a bar to VA benefits, other than health care under Chapter 17, Title 38, United States Code is remanded. The Appellant contends that he should be entitled to recognition as a Veteran, and thereby obtain VA benefits. Alternatively, he asserts that he had psychiatric impairment at the time of his misconduct, sufficient to be considered insane, which would qualify as an exception to the regulatory bars under 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(d). In this case, the Appellant enlisted in the United States Navy on July 31, 1979 for a period of four years of active duty. The service separation form shows that the Appellant was discharged on October 2, 1981, with an under Other Than Honorable (OTH) conditions discharge due to misconduct with frequent involvement of a discreditable nature with civilian and military authorities. The Appellant’s service separation form (DD214) includes a separation code of HKA, which is the discharge code for such misconduct. Review of the Appellant’s military personnel records shows the following instances of misconduct: In September 1979, the Appellant was counselled for fraudulent enlistment for failing to disclose pre-service involvement with police. On May 21, 1980, the Appellant was subjected to nonjudicial punishment for violating Article 92, UCMJ, for failure to obey a lawful order, resulting in forfeiture of $75.00 for one month. On July 17, 1980, the Appellant was subjected to nonjudicial punishment for violating Article 92, UCMJ, for failure to obey a lawful order, violating Article 134 for being out of uniform, and violating Article 113 for sleeping on guard duty, resulting in forfeiture of $100.00 for one month and restriction and extra duty for 12 days. On September 24, 1980, the Appellant was subjected to nonjudicial punishment for violating Article 92, UCMJ, for dereliction of duty for sleeping on duty, resulting in restriction to the company area for 14 days and reduction to the pay grade of E-1. On October 12, 1980, the Appellant was subjected to nonjudicial punishment for violating Article 86, UCMJ, for being absent without authorization, violating Article 107, for making a false official statement, and violating Article 134, for breaking restriction. Resulting in restriction to his ship for 30 days. Execution of the restriction punishment was suspended for a period of 6 months at which time unless sooner vacated the punishment will be remitted without further action. On June 8, 1981, the Appellant was subjected to nonjudicial punishment for violating Article 112a, UCMJ, for introducing marijuana onboard a navy vessel for the purpose of sale, resulting in reduction to the pay grade of E-1 and restriction and extra duty for 45 days. In September 16, 1981, the Appellant’s chain of command recommended that the appellant be administratively separated from service for his pattern of misconduct. On September 24, 1981, the Appellant’s General Court Martial Convening Authority approved the administrative separation and ordered that the Appellant be discharged, effective October 2, 1981. In January 2003, the Appellant submitted a request to the Navy Board of Correction of Naval Records (NBCNR) to upgrade his characterization of discharge. The findings of the NBCNR have not been associated with the claims file. As this finding could prove dispositive to the issue at hand, the Board finds that development is warranted on this issue. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant’s claim, to include updated treatment records. 2. Contact the U.S. Department of the Navy Board for Correction of Naval Records (NBCNR) and request copies of any decision on the appellant’s application for an upgraded discharge for his service along with copies of all documents used in this decision. A copy of any correspondence sent to the NBCNR and any reply, to include a negative reply, should be included in the claims file. 3. After completion of the above development and any other additional development deemed necessary, the AOJ should readjudicate the claim. If the claim on appeal remains denied, the AOJ should furnish the appellant and his attorney a supplemental statement of the case and return the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.