Citation Nr: 21023178 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-21 384 DATE: April 20, 2021 REMANDED The issue of whether the character of the appellant's discharge constitutes a bar to Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Marine Corps from June 1974 to August 1975. He received a discharge under other than honorable conditions in lieu of a trial by court-martial due to misconduct. This matter is on appeal from a December 2016 Regional Office (RO) decision. In October 2019, the appellant failed to appear before the Board in his scheduled videoconference hearing. He did not present good cause to excuse his absence. As such, the appellant’s hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. 1. The issue of whether the character of the appellant's discharge constitutes a bar to VA benefits is remanded. The Board regrets the additional delay, but remand is necessary prior to adjudication on the merits. Initially, the Board notes that the appellant was not provided with adequate notice of the evidence needed to substantiate his claims prior to adjudication on the merits. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). Where the issue involves the character of discharge, VCAA notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). In the present case, the appellant filed his claim of entitlement to VA benefits in September 2015 with a second claim in December 2016. The RO did not send the appellant VCAA notice regarding the evidence necessary as pertaining to his character of discharge. In fact, the December 2016 denial letter relied on 38 C.F.R. § 3.12 (c) (6) to assert a statutory bar to benefits despite the fact that the appellant was not noted to be absent without leave (AWOL) for 180 or more continuous days during service. This appears to stem from a May 1976 Administrative Decision, authored for the purposes of unemployment benefits, which did not address 38 C.F.R. § 3.12 at all. Additionally, the RO reported that they considered service medical records in their decision, but the claims file does not reflect the presence of any service medical records. Furthermore, the appellant’s service records associated with the claims file are incomplete. The RO previously only requested records pertaining to the facts and circumstances of the appellant’s discharge, but even these records omit pertinent information regarding the underlying charges, to include whether he faced trial by general or special court-martial. Additionally, the record contains no service treatment records, despite the December 2016 notification letter’s assertion otherwise, including any separation examination conducted prior to discharge. Accordingly, remand is necessary in order to obtain the appellant’s complete service department records. The matters are REMANDED for the following action: 1. Send the appellant a VCAA cure letter addressing the aforementioned deficiencies regarding his character of discharge. 2. Attempt to obtain, through all indicated and appropriate sources, the appellant’s complete service treatment and personnel records. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the appellant must be notified. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and his representative an opportunity to respond, and return the case to the Board. S. Sorathia Acting 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.