Citation Nr: 22018683
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 18-17 435
DATE: March 30, 2022

REMANDED

Whether the character of discharge for the Appellant's period of service is a bar to Department of Veterans Affairs benefits, other than health care under Chapter 17, Title 38, United States Code, is remanded.

REASONS FOR REMAND

The Appellant served on active duty from November 1985 through August 1987.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2017 administrative decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which determined that new and material evidence had not been received to reopen the Appellant's claim for recognition as a veteran for VA purposes, which had been denied in a March 1990 administrative decision. In the March 1990 administrative decision, the AOJ determined that the Appellant's military service was "dishonorable" for VA purposes and that he was not entitled to receive VA benefits for his period of service.

The Appellant's character of discharge claim was denied in a March 1990 rating decision. To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. In this case, after the March 1990 decision, new service treatment records were added to the claim that showed the Appellant's complete military service and disciplinary history. Thus, the additional service records were relevant to his character of discharge claim. Accordingly, the Board finds that the provisions of 38 C.F.R. § 3.156(c)(1) apply to the facts of this case because the additional service records were relevant to the claim and new and material evidence is not needed to reopen the Appellant's claim. Instead, the claim is reconsidered.

The Appellant seeks recognition as a veteran for VA purposes. The Board finds that a remand is necessary to fully adjudicate the Appellant's character of discharge claim. The Agency of Original Jurisdiction (AOJ) last adjudicated the Appellant's claims in March 2018. 

Since that time, the Board notes that all correspondence from the AOJ and the Board to the Appellant has been returned by the United States Postal Service as undeliverable. Upon remand, the AOJ should update the Appellant's mailing address and forward any returned mail to the Appellant's new address.

Additionally, in his Form 9, the Appellant noted that he wanted a Board hearing at the local VA office.  However, in an April 2018 Statement in Support of Claim, the Appellant specifically requested a local hearing "before the VA Regional Office" and did not "wish to participate in a Board travel board." It appears that the Appellant was requesting a hearing with the Decision Review Officer (DRO). It is unclear if this request has been properly clarified and addressed by the DRO. 

The matters are REMANDED for the following action:

1. Contact the Appellant and verify his current address. Please update the Appellant's address in all applicable VA databases containing such information accordingly.

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2. Contact the Appellant and clarify if he is requesting a hearing before the DRO for the issue on appeal.

 

 

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael J. O'Connor, 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.