Citation Nr: 21024016 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-48 642 DATE: April 21, 2021 REMANDED The issue of whether the character of the appellant’s discharge from the period from June 3, 1986, to September 18, 1992, constitutes a bar to VA benefits. Service connection for a low back disability. Service connection for posttraumatic stress disorder (PTSD).   REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from May 1980 to June 1983. He reenlisted in June 1986 and was discharged in September 1992 under other than honorable conditions. The instant matter is on appeal from a May 2015 decision. In February 2021, the Veteran testified at a Board hearing. 1. The issue of whether the character of the appellant’s discharge from the period from June 3, 1986, to September 18, 1992, constitutes a bar to VA benefits. For VA purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The threshold question to be answered in every claim for VA benefits concerns the adequacy of the claimant’s service for purposes of establishing basic eligibility. Applicable laws and regulations provide that most 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. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). Health care and disability benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). There are two types of character of discharge bars to establishing entitlement for VA benefits when someone receives an “under other than honorable” conditions discharge: statutory bars and regulatory bars. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). As to the regulatory bars, a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. 38 C.F.R. § 3.12(d). In the present case, the Veteran was discharged following conviction at a special court-martial. While a May 2015 administrative decision determined that his discharge constituted a statutory bar to benefits, this is a misstatement of the applicable law. A statutory bar under 38 C.F.R. § 3.12 (c) is available for discharges following conviction by a general court-martial, not a special court-martial. As the appellant was not subject to a general court-martial, 38 C.F.R. § 3.12(c)(2) does not bar his entitlement to benefits. It is unclear which other statutory or regulatory bar may apply in this situation as alternatives were not addressed in the administrative decision. This uncertainty stems in large part from the absence of critical service department records addressing the Veteran’s discharge. The service department records obtained from the National Personnel Records Center (NPRC) are of poor quality and partially illegible. Those pages that are legible do not address the special court-martial leading to the Veteran’s discharge. The Veteran has reported that he faced charges after he admitted to smoking marijuana on one occasion. Thus, in order to determine which statutory or regulatory bar, if any, applies to the Veteran’s second period of service, the records regarding the special court-martial leading to his discharge must be obtained. Additionally, the Veteran has reported applying for an upgrade in the character of his discharge with his service department. As development is conducted on remand, these records should also be sought, and the Veteran should be afforded an opportunity to provide any findings of his service department. 2. Service connection for a low back disability. 3. Service connection for PTSD. The Veteran’s claims of service connection for a low back disability and PTSD were denied due to the character of his discharge from the second period of service. Accordingly, the Board finds that these issues are intertwined with the resolution of the remanded issue and will also be remanded. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the Veteran’s complete service treatment and personnel records, to include those records associated with his discharge proceedings. 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 Veteran must be notified. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Attempt to obtain any relevant records from the Department of the Navy, to include the Board for Correction of Naval Records and the Naval Discharge Review Board, regarding any application to upgrade the character of the Veteran’s discharge from his second period of service. 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. The Veteran must be notified and afforded reasonable opportunity to provide these records himself. RYAN T. KESSEL 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.