Citation Nr: 0812329 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-31 768A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from September 19, 2000, to July 23, 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In January 2006, the Board denied the claim. The veteran appealed. In November 2007, the United States Court of Appeals for Veterans Claims granted a joint motion to remand the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran was separated from active duty pursuant to Air Force Instruction (AFI) 36-3208. Paragraph 5.65 of that AFI provides that airmen who do not meet the fitness standards in AFI 10-248, may be discharged when the failure resulted from a cause which was within their control. See http://www.e- publishing.af.mil/shared/media/epubs/AFI36-3208.pdf. The logical implications of AFI 36-3208 are that if the failure was not within an airman's control, discharge under AFI 36- 3208 was inappropriate. If, however, the airman had the ability to control their own fitness, discharge was appropriate if the airman failed to meet Air Force standards. It is noted further that attachment 13 to AFI 10-248, appears to provide that administrative separation of an enlisted man for failure to attain physical fitness standards requires evidence that the airman have been unable to maintain physical fitness for at least one year prior to the administrative separation. See http://www.e- publishing.af.mil/shared/media/epubs/AFI10-248.pdf. The logical implication of this directive is that discharge from active duty under AFI 36-3208 required a prolonged period of unfitness over which the airman had control. The joint motion finds, however, that even when considering the available DD Form 214 which lists AFI 36-3208, and separation program designator JCR (weight control failure), as the separation authority and separation code, that the record on appeal failed to include any documentation which would allow VA to determine whether the appellant's discharge from service was voluntary or involuntary. Hence, further development is required. Therefore, this case is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center and request that they provide a copy of the appellant's complete service personnel record, to specifically include any and all records documenting his failure to meet Air Force physical fitness standards, and any and all records otherwise pertaining to the veteran's discharge from active duty. Available weight or physical fitness counseling records, if available, should also be added to the claims file. All efforts to secure these records must be documented in the claims file. 2. Pursuant to the Joint Motion the RO must contact the United States Air Force Personnel Command, Randolph Air Force Base, Texas, and provide them a copy of the appellant's DD Form 214, as well as copies of all other documents pertaining to the appellant's separation from active duty under AFI 36-3208, separation program designator JCR (weight control failure). Following the Command's review of these documents the Command is respectfully requested to advise VA whether on the date of the veteran's separation from active duty his separation was voluntary or involuntary. The Command is respectfully requested to provide the rationale behind any finding made. If the Command finds that the veteran was voluntarily separated from active duty, the basis for the Air Force's use of AFI 36-3208, as well as separation program designator JCR as the bases for the veteran's discharge on the DD Form 214 should be explained. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).