Citation Nr: 0006901 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-27 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether the character of the service member's military discharge precludes entitlement to Department of Veterans Affairs compensation benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty in the United States Army from June 1981 to May 1982. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1995 administrative decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in December 1997 and October 1998. REMAND Unfortunately, this case must be remanded again to the RO in light of actions the appellant has taken during the pendency of this appeal with regard to appeals/claims filed before military service department review boards challenging the type or characterization of his May 1982 undesirable discharge. As the record reflects, the Board remanded this case in December 1997 because the evidence then before the Board indicated that the appellant had filed a claim before the Army Discharge Review Board (ADRB). Further action on his claim before VA was, by necessity, stayed pending the outcome of the ADRB's decision. See e.g. Duro v. Derwinski, 2 Vet. App. 530 (1992). Subsequently, the ADRB issued a decision in May 1998 denying the appellant's claim before that board. At that time, he was advised by the ADRB that he could reapply to the ADRB for a personal hearing and/or apply to the Army Board for Correction of Military Records (ABCMR). Enclosed with the notice of the ADRB's decision was a DD Form 149 to initiate a claim before the ABCMR. Following the Board's second remand of October 1998 to resolve a hearing request matter, the record reflects that the appellant prepared a DD Form 149 to initiate a claim with the ABCMR. This form indicates that he believed his military discharge papers should be corrected to reflect that he received a medical discharge due to psychiatric illness. It appears that the RO was first advised of this matter in October 1999, when the appellant's representative submitted a copy of the Form 149 and other correspondence indicating that the representative had on his behalf filed the Form 149 with the ABCMR in August 1999. While the Board regrets the delay necessitated by another remand, further appellate action by VA on this claim must again be stayed in light of the appellant's decision to pursue a claim before the ABCMR. Duro, supra; see also 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991 & Supp. 1999) (decisions of the Board must be based on all of the evidence that is known to be available). Accordingly, further appellate consideration will be deferred and this case is REMANDED to the RO for the following action: 1. The RO should contact the ABCMR and request complete, legible copies of any final decisions or determinations pertaining to an application and/or appeal filed by the appellant with the ABCMR pertaining to the classification of his release/discharge from the Army. Copies of any documents received from ABCMR should be associated with the claims folder. 2. After completion of the above, the RO should readjudicate the claim with consideration given to all of the evidence of record and any final decision or determination of the ABCMR. If the determination remains adverse to the appellant, furnish a supplemental statement of the case to him and his representative. Accord an appropriate period for response. Thereafter, return to the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).