Wednesday, September 3, 2014

King (Clarence) v. Shineseki

King (Clarence) v. Shineseki, 26 Vet.App. 484 (Mar. 21, 2014)
VA regulation describes the procedures and evidence necessary to verify a veteran’s service that is required prior to determining whether the veteran meets the 90-day active service requirement for pension. Failure to follow the regulatory procedure is error.

Veteran was absent without leave for several months during his active service due to his wife’s ongoing recovery from surgery. When he finally surrendered, he was convicted in a court martial and sentenced to confinement and labor. He served his sentence and was discharged “under conditions other than honorable.” He requested a discharge upgrade and was granted a “general” discharge by the Army Discharge Review Board. The Board issued a new DD Form 214, showing one month and days of active service.

The veteran was subsequently awarded nonservice-connected pension benefits, but VA later severed the benefits because it determined that he did not have 90 days of creditable wartime service to qualify for pension. The veteran appealed, arguing that VA was required to follow procedures outlined in 38 C.F.R. § 3.203(c) to obtain a statement from the Army regarding the nature of his service.

The CAVC reversed, finding that this regulation allows VA to accept a DD 214 if it establishes, on its face, the requisite period of service. However, if the DD 214 does not show the requisite period of service, VA must seek verification from the service department and, in cases where the veteran’s service is at issue, VA must obtain “a complete statement of service” from the service department. Because VA did not obtain a complete statement of service from the Army, the Court held that the Board erred by failing to follow the procedures required by 38 C.F.R. § 3.203. The Court thus voided the decision and remanded for reinstatement of the veteran’s pension.

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