Citation Nr: 21024963 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-17 995 DATE: April 27, 2021 REMANDED The issue of whether the character of the appellant’s discharge is a bar to Department of Veterans Affairs (VA) compensation benefits is remanded. REASONS FOR REMAND The appellant had active duty service with the United States Marine Corps from March 1981 to September 1983. He received a discharge under other than honorable conditions due to misconduct. This matter is on appeal from a May 2013 Regional Office (RO) decision. In October 2020, the appellant testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. In November 2020, the Board remanded the appeal for further development. Unfortunately, this case must be remanded to the AOJ in light of actions the appellant has taken during the pendency of this appeal with regard to appeals/claims filed before military service department review boards challenging the type or characterization of his September 1983 OTH discharge. In a May 2013 administrative decision, the AOJ determined that the appellant’s character of discharge was a bar to VA compensation benefits based on the appellant’s in-service misconduct. In May 2014, the appellant submitted to VA an Application for the Review of Discharge from the Armed Forces of the United States, as well as an Application for Correction of Military Record, with supporting documents, including character references and letters in support of his request for discharge upgrade. The Board finds that the appellant’s submission to the NBCNR, if any, could materially impact the adjudication of the character of discharge, as well as the compensation claims. As such, the Board finds that a remand is necessary to determine whether the NBCNR has received and/or decided on the appellant’s request for an upgrade to his discharge. Additionally, in its November 2020 Remand, the Board had directed the AOJ to “obtain copies of those proceedings before the relevant review boards.” While the AOJ pursued military personnel records from the National Personnel Records Center, it is unclear if the AOJ had requested records directly from the NBCNR. Therefore, the Board finds that the AOJ should attempt to obtain these records, including any correspondence from the appellant, and any determinations and associated records regarding the appellant’s character of discharge. While the Board regrets the delay necessitated by remand, further appellate action by VA on this claim must be stayed in light of the appellant’s decision to pursue a claim before the NBCNR. Duro v. Derwinski, 2 Vet. App. 530 (1992); see also 38 U.S.C. §§ 5103(a), 7104(a) (decisions of the Board must be based on all of the evidence that is known to be available). The matters are REMANDED for the following action: 1. Ask the appellant to submit a copy of any completed applications submitted to the Navy Board for Correction of Naval Records or the Navy Discharge Review Board. 2. Contact the service department Board of Correction of Naval Records to determine whether the appellant applied for a character of discharge upgrade, and if so, the service determination on the request. Any documentation pertaining to any such application should be obtained and associated with the claims file. If, after making reasonable efforts to obtain such records they are unable to be secured, produce a formal finding of unavailability and add it to the claims file. Also notify the appellant and his representative and (a) identify the specific records that were unable to be obtained; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken with respect to the claims. The appellant and his representative must then be given an opportunity to respond. 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. JOHN Z. JONES 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.