Citation Nr: A25035212 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240903-470889 DATE: April 16, 2025 REMANDED Whether the character of the Appellant's discharge from service 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 Army from August 1997 to October 1999; the character of this service is the subject of this appeal. The administrative decision on appeal was issued by the agency of original jurisdiction (AOJ) in October 2023. In a timely VA Form 10182 (Decision Review Request: Board Appeal) received in September 2024, the Appellant elected the Direct Review option for this appeal. Therefore, the Board may consider only the evidence in the record at the time of the April 2023 decision. See 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision on appeal, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. See id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the issue on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. See 38 C.F.R. § 3.103(c)(2)(ii). Whether the character of the Appellant's discharge from service constitutes a bar to the receipt of VA benefits is remanded. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of a 'veteran' for VA purposes. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); see 38 C.F.R. § 3.12(a). In October 2023, the AOJ found that the Appellant's discharge was due to willful and persistent misconduct and therefore a bar to benefits, relying on the service personnel records in the claims file to make this determination. However, these records appear to be incomplete, as they contain only the Appellant's enlistment contract, service brief, and documents relating to the Appellant's discharge. The Board finds it was an error in fulfilling VA's duty to assist to rely on incomplete service records to make the character of discharge determination; therefore, a remand is necessary to attempt to obtain a complete set of service personnel records. See 38 C.F.R. § 20.802. Further, in June 2024, amendments to VA's regulation governing character of discharge went into effect for all cases pending before VA that allow consideration of whether there are compelling circumstances to mitigate willful and persistent misconduct leading to discharge. See Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 89 Fed. Reg. 32,361 (April 26, 2024) (codified at 38 C.F.R. § 3.12(d)-(e)). In the Federal Register notice announcing the amendments to the regulation governing character of discharge, VA specified that any claimant with a prior unfavorable character of discharge determination may request a new determination using the amended regulations. Update, 89 Fed. Reg. 32,361, § V. The Board finds the Appellant is entitled to a new character of discharge determination under the amended regulations made by the AOJ in the first instance. On remand, after reviewing any additional service personnel records obtained, a new character of discharge should be made. The matter is REMANDED for the following action: 1. Attempt to obtain from the appropriate repositories any service personnel records that are not already of record, and associate those documents with the claims file. All such attempts should be documented in the claims file. If any additional records are unavailable, the Appellant's file must be documented clearly to that effect and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, review the record and determine whether any further development is required. After completing any identified development, issue a new character of discharge determination using the revised provisions of the regulation. See 38 C.F.R. § 3.12. M. HYLAND 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.