Citation Nr: 22013465 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 12-17 347 DATE: March 9, 2022 REMANDED Whether the character of the Appellant's discharge from service for the period from August 21, 1986, through January 24, 1989, constitutes a bar to the receipt of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The Appellant served on active duty with the United States Navy from August 1986 to January 1989; the character of this service is the subject of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits. After a March 2021 remand from the United States Court of Appeals for Veterans Claims, this case was before the Board in August 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. Whether the character of the Appellant's discharge from service for the period from August 21, 1986, through January 24, 1989, constitutes a bar to the receipt of VA benefits is remanded. The record currently contains one decision made by the Naval Discharge Review Board (NDRB) in 2002, denying the Appellant's request to upgrade the other than honorable discharge. However, the Appellant testified at the January 2014 Board hearing that he applied to the Department of the Navy for an upgrade in the character of discharge at least twice. The August 2021 Board remand requested that the Agency of Original Jurisdiction (AOLJ) attempt to obtain any records associated with requests made by the Appellant to the Board for Correction of Naval Records (BCNR) to upgrade the character of discharge. The remand requests included an opportunity for the Appellant to submit additional evidence in support of the applications. While the AOJ sent the Appellant letters inviting him to submit evidence that would assist in locating any additional upgrade applications and subsequent decisions, the AOJ stopped development after receiving no response from the Appellant. The AOJ did not attempt to ask the Department of the Navy directly for any records associated with the Appellant's discharge upgrade applications, appearing to rely instead upon a June 2018 National Personnel Records Center request for all available personnel records, including those pertaining to any discharge reviews. As the RO did not attempt to obtain any records directly from the service department, the Board finds that substantial compliance with the remand directive has not been achieved, and another remand is necessary to attempt to obtain all records relevant to any and all discharge upgrade applications the Appellant has made. Stegall v. West, 11 Vet. App. 268 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). The matter is REMANDED for the following action: 1. Allow the Appellant the opportunity to provide further information or evidence regarding when and with which entity he requested an upgrade to the other than honorable discharge. 2. Then, attempt to obtain any records relevant to all requests the Appellant made to the Department of the Navy for an upgraded discharge that are not already of record. Requests for records should be made to the appropriate repositories, including but not limited to the service department, specifically the Naval Discharge Review Board and the Board for Correction of Naval Records. Associate any new documents with the claims file. All attempts should be documented in the claims file. If the above described records are unavailable, the Appellant's file must be documented to that effect and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.