Citation Nr: 24005641
Decision Date: 02/02/24	Archive Date: 02/02/24

DOCKET NO. 20-20 959
DATE: February 2, 2024

ORDER

The character of the Veteran's service in the United States Navy from July 20, 1990, to July 30, 1993, is not a bar to receipt of Department of Veterans Affairs (VA) benefits; the claim is granted.

FINDING OF FACT

In May 2022, the Board for Correction of Naval Records (BCNR) upgraded the character of the Veteran's discharge from Under Other Than Honorable Conditions, to General (Under Honorable Conditions).

CONCLUSION OF LAW

The character of the Veteran's service is not a bar to receipt of VA benefits.  38 U.S.C. § 1552, 5303; 38 C.F.R. § 3.12.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Navy from July 1990 to July 1993.  He initially received a discharge Under Other Than Honorable Conditions, which has recently been upgraded to General, Under Honorable Conditions, by the Board for Correction of Naval Records (BCNR) pursuant to 10 U.S.C. § 1552.  See DD Forms 214.

He was afforded a Board hearing before the undersigned in October 2022.  A transcript is of record.  See Hearing Transcript.

The Veteran initially filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST).  See December 2017 VA 21-526EZ, Fully Developed Claim.  In the March 2018 denial, the agency of original jurisdiction (AOJ) did not adjudicate this disability on the merits, but instead denied the claim due to the character of the Veteran's discharge.  See March 2018 Administrative Decision.  In February 2019 the AOJ granted service connection for treatment purposes for PTSD.  See February 2019 Rating Decision-Narrative.  Thus, the Board cannot presently address the substantive issue, but the AOJ should promptly adjudicate entitlement to service connection for PTSD in the first instance following the grant herein.

1. Whether the character of the Veteran's service from July 20, 1990, to July 30, 1993, is a bar to receipt of VA benefits

In March 2018, the AOJ determined that the character of his discharge was a regulatory bar to VA compensation benefits due to willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4).  See Administrative Decision.  

In May 2022, the BCNR upgraded the character of the Veteran's discharge to General, Under Honorable Conditions.  See Military Personnel Record.  The BCNR found there was sufficient evidence to support that the Veteran suffered from a mental health condition while in service, incurred due to MST, noting the misconduct occurred after the assault and that the totality of the circumstances warranted relief in the interests of justice.  As such, they recommended and issued a new DD Form 214 under Secretarial Authority.  

An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under 10 U.S.C. § 1552 is final and conclusive on VA.  The action of the board sets aside any prior statutory or regulatory bar to benefits.  38 C.F.R. § 3.12(e).  In this case, the BCNR upgraded the character of the Veteran's discharge to General (Under Honorable Conditions) which removes the bar to receiving VA benefits.

Accordingly, the claim is granted.

 

 

TIFFANY DAWSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Barner, 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.