Citation Nr: 21031348
Decision Date: 05/21/21	Archive Date: 05/21/21

DOCKET NO. 18-10 925
DATE: May 21, 2021

ORDER

The issue of whether the character of the appellant's discharge is a bar to VA benefits is dismissed for lack of case or controversy.

FINDINGS OF FACT

1. Subsequent to the filing of his February 2018 substantive appeal, in January 2020 the Naval Board for the Correction of Military Records upgraded the Veteran's character of discharge (COD) from other than honorable conditions (OTH) to "general (under honorable conditions).

2. The DD 214 received by VA in May 2020 reflects the upgraded character of discharge from OTH to general.

3. Thereafter, subsequent rating decisions citing to the May 2020 upgraded DD 214 as evidence awarded entitlement for multiple service-connected claims.

4. April 2021 correspondence reflects that the Veteran requested that VA "disregard the appeal (form 9) submitted on 2/23/2018." Later that month, a follow-up phone call reiterated the Veteran's request, noting that he "would like to discontinue his appeal." 

CONCLUSION OF LAW

As the Veteran's character of discharge has already been upgraded thus removing the bar to entitlement to VA benefits, there is no case or controversy on which the Board must render a decision, and the appeal is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from July 1984 to November 1986.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision.

Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.

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The instant appeal stems from the Veteran's denial of service connection benefits due to his OTH character of service at discharge. Following his February 2018 substantive appeal of the issue as to whether his character of service should serve as a bar to VA benefits, the Veteran was granted an upgraded characterization by the Naval Board for the Correction of Military Records. The Veteran was issued a new DD 214 reflecting the upgraded characterization from OTH to general. 

Because of this recharacterization of service, the RO granted the Veteran's service connection claims in September 2020 and January 2021 rating decisions.  These awards of service connection reflect that the impediment to VA benefits is now moot, as conceded by the Veteran himself in April 2021 correspondence seeking the termination of the appeal.  See also Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).  As there are no remaining allegations of error of fact or law for appellate consideration, the appeal is dismissed. 38 U.S.C. § 7105 (d)(5).

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Marcus J. Colicelli

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.