BVA9501938 DOCKET NO. 93-12 084 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel REMAND This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Togus, Maine, Regional Office (RO). The appellant served in the Rhode Island and Connecticut Army National Guard (ARNG) a total of 13 years, 4 months and 28 days for pay purposes. As a member of the ARNG, he performed inactive duty for training (IDT), including service on March 7 and 8, 1987, and annual active duty for training (ADT), including service from May 2, 1987, through May 17, 1987. VA received the appellant's original application for compensation or pension in March 1991 claiming that he sustained back a injury in May 1987 while on ADT with the Rhode Island ARNG. The RO, in a rating decision dated in September 1991, granted the appellant service connection for lumbosacral strain and assigned a 20 percent disability rating, effective from the date of receipt of his claim. In January 1992, the appellant submitted a notice of disagreement with the assigned rating, and the RO, in a May 1992 rating decision, increased the rating to the currently assigned 40 percent evaluation. The appellant continues his appeal asserting that his back condition is such that more than a 40 percent disability rating was warranted. The Board notes that the appellant received a Report of Separation from the Rhode Island ARNG, after 9 years, 2 months and 19 days service for pay purposes, effective October 10, 1986. This report shows the appellant's rank at separation as Specialist Fourth Class and his pay grade as E-4. On file is a copy of a subsequent Report of Separation from the Rhode Island ARNG showing January 23, 1987, as the day of enlistment for a three year obligation and January 22, 1990, as the date of his separation after 13 years, 4 months and 28 days of service for pay purposes. Notably, this report shows the appellant's rank at separation as Private and his pay grade as E-1. This report also shows that the appellant's character of service for this three- year period was "General (Under other than Honorable Conditions)" (sic), and the authority and reason given were "para 8-26o (sic) NGR 600-200 and Chapter 7, AR 135-178 Unsatisfactory Performance." Significantly, however, discharges issued by the United States Armed Forces do not include a "general discharge under other than honorable conditions." Rather, a general discharge is issued under honorable conditions. The RO's grant of service connection for a back disability was based on injuries the appellant sustained in May 1987, i.e., within the time frame during which the appellant’s service may have been "other than honorable." The appellant’s VA claims file, however, does not contain either clarification of his character of discharge for his last period of ARNG service, or a VA administrative decision pertaining to his eligibility for benefits due to incidents occurring to him during this period. As the Board must always first determine if it has a proper claimant before it, see generally Sarmiento v. Brown, 7 Vet.App. 80, 84 (1994), further development is required. Therefore, this case is REMANDED for the following action: 1. The RO is contact Company G, 126th Aviation, RIARNG, Quonset Armory, North Kingstown, Rhode Island 02852, and request photocopies of the appellant's personnel records. If the requested records are not available at this unit, the RO is to follow-up with a request to the Army National Guard Bureau for these records and incorporate them with the appellant's claims file. Any and all logical leads are to be pursued. 2. The RO is to obtain from the Rhode Island ARNG an accurate classification of the appellant's character of service for the period of January 23, 1987 through January 22, 1990, i.e., was it a "General," or was it an "Other Than Honorable" discharge; obtain a written explanation and reason for the character of service given the appellant for this period of service; and obtain clarification and a written explanation as to the reason for the appellant's decrease in rank and pay grade during this period of enlistment. Copies of any available personnel actions and military board proceedings undertaken concerning the appellant during this period of ARNG service are to be requested and incorporated with the claims file. 3. If the appellant received an "Other Than Honorable" character of discharge for the period of January 23, 1987, through January 22, 1990, the RO is to enter an administrative decision concerning the appellant's eligibility for VA benefits during this three year period of ARNG enlisted service. The issue of entitlement to an increased rating for a lumbosacral strain is deferred. If the decision remains unfavorable to the veteran, he and his representative are to be provided with a supplemental statement of the case and afforded the appropriate period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the claims file, to include the requested additional evidence, is to be returned to the Board for further appellate consideration. _________________________ DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). The Board observes that chapter 7 of AR 135-178 is the chapter prescribing the enlisted members of the United States Army Reserve for misconduct by reason of m infractions, a pattern of misconduct, the commission of a serious offense, and/o authorities.