Gregory v. Brown v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-4508

GREGORY V. BROWN, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 30, 2019)

Gregory V. Brown, pro se.

James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; Christopher W.

Wallace, Deputy Chief Counsel; and Brandon T. Callahan, all of Washington, D.C., were on the

brief for the appellee.

Before BARTLEY, Chief Judge, and GREENBERG and MEREDITH, Judges.

MEREDITH, Judge: The pro se appellant, Gregory V. Brown, appeals an August 8, 2018,

Board of Veterans' Appeals (Board) decision that found that the character of his discharge is a bar

to benefits. Record (R.) at 3-9. This appeal is timely, and the Court has jurisdiction to review the

Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). On June 17, 2019, this matter was

referred to a panel1 of the Court to address an issue of first impression, namely whether a discharge

that triggers a statutory bar to benefits applies to a veteran's entire period of service. We hold that

it does. Accordingly, the Court will affirm the Board's decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from August 10, 1986, to

November 16, 1988. R. at 28. In July 1988, he was charged with violating the Uniform Code of

Military Justice (UCMJ), see R. at 34-40, 581-82, and the record reflects that, on July 27, 1988,

he signed a memorandum prepared by the Department of the Army stating that he was voluntarily

resigning "for the [g]ood of the [s]ervice," R. at 138. His signature on the memorandum indicated

1

On the same date, the Court stayed proceedings for 30 days to permit possible arrangements for

representation of the appellant; however, the appellant remains pro se.

his understanding that his resignation, "if accepted, may be considered as being under other than

honorable conditions." R. at 137. His signature further indicated his understanding that, if his

resignation was accepted, he would not receive separation pay and would be "barred from all

rights, based upon the period of service from which [he would] be separated, under any laws

administered by [VA]," except for provisions not relevant here. R. at 138. On September 2, 1988,

"[t]he recommendation of the Department of the Army Ad Hoc Review Board that the resignation

for the good of the service tendered by" the appellant "be accepted with the issuance of a discharge

under other than honorable conditions" was "approved." R. at 618. The appellant's Department

of Defense Form DD-214, Certificate of Release or Discharge from Active Duty (DD-214),

confirms that on November 16, 1988, he was discharged under other than honorable conditions as

a result of "conduct triable by court-martial." R. at 28. At the time of his discharge, he held the

rank of first lieutenant. Id.

Shortly after his discharge, the appellant filed with VA a claim for benefits for several

disabilities based on injuries sustained in a motorcycle accident on August 23, 1988. R. at

1078-81; see R. at 939. He submitted an altered Form DD-214 that indicated that his discharge

was "honorable." R. at 1075. Based on that DD-214, a VA regional office (RO) granted his claims

for benefits in May 1990. R. at 936-39. He received compensation at a combined 60% rating

beginning the day after his discharge from service. See id.

On November 20, 1995, the appellant contacted VA to request that his full benefits be

resumed after his release from incarceration. R. at 651. A VA employee advised him that there

had been a delay because of "conflicting evidence" regarding the character of his discharge. Id.

At that time, the appellant conceded that his discharge had been under other than honorable

conditions. Id. VA issued a character of discharge determination in March 1996 finding that his

discharge from service under other than honorable conditions constituted a bar to VA benefits.

R. at 581-82. Accordingly, VA terminated his benefits effective December 1, 1995. R. at 587.

In September 2004, the appellant asked VA to review and reconsider his case. R. at 428.

He asserted that he had been given bad legal advice at the time he signed the memorandum

memorializing his intent to resign for the good of the service in that he was told that he "could

reasonably expect" an upgrade of his discharge. Id. The RO advised him in April 2005 that the

character of his discharge barred him from receiving benefits and that he could seek an upgrade of

2

his discharge from the Service Department Discharge Review Board or seek correction of his

records through the Service Department Board for Correction of Military Records. R. at 401-03.

In his May 2005 Notice of Disagreement (NOD), 2 the appellant explained that, in the

spring of 1988, he was passed over for promotion to captain and was "ordered for honorable

discharge pursuant to 10 [U.S.C.] § 3303(d)" not later than August 1, 1988.3 R. at 393.4 He further

stated that, in July 1988, he was charged with a violation of the UCMJ and agreed, on the advice

of an attorney from the Army Judge Advocate General's Corps to resign for the good of the service

pursuant to Army Regulation 635-120, chapter 5. Id. He contended that the original "discharge

authority" was "somehow superseded." Id. He then argued that the character of his discharge

remained honorable under the authority of section 3303(d) until the Army accepted his resignation

for the good of the service in September 1988. Id. Accordingly, he asserted that, because his

in-service motorcycle accident occurred in August 1988—during what he characterizes as the

honorable part of his service—he is entitled to benefits for the disabilities arising from that

accident. Id.

The appellant testified at an RO hearing in July 2012. R. at 219-31. He offered his account

of the events surrounding his resignation and discharge, noting particularly that, at the time of his

August 1988 accident, the Army had not yet accepted his resignation. R. at 222. He argued that

the terms with which he indicated his agreement in his resignation memorandum—specifically,

that he would be barred from benefits "based upon the period of service from which [he was]

separated," R. at 138—meant that he was barred from receiving benefits only for the period of

service preceding the signing of the July 27, 1988, memorandum. R. at 225. He alleged that, but

for the Army's decision to hold him over on active duty rather than accept his immediate

2

In November 2005, VA advised the appellant that his NOD was premature because VA had failed to afford

him "the opportunity to submit additional evidence." R. at 382. In January 2007, VA advised the appellant that,

because he had not responded to the November 2005 letter, VA had to deny his claim. R. at 372. It is unclear from

the record and the parties' briefs whether that denial became final or whether the appellant's May 2005 NOD became

operative upon the January 2007 decision to deny the claim. In any event, there is no dispute between the parties with

respect to the nature of this appeal.

3

The Court notes that 10 U.S.C. § 3303 was repealed and has been recodified at 10 U.S.C. § 631. Subsection

(a) provides, as relevant here, that an Army officer "who holds the grade of first lieutenant and has failed of selection

for promotion to the grade of captain for the second time" shall "be discharged on the date requested by him and

approved by the Secretary of the military department concerned." 10 U.S.C. § 631(a)(1).

4

The copy of this document in the record of proceedings appears to be incomplete. See U.S. VET. APP. R.

28.1(a)(1)(B) (requiring that the record of proceedings contain "any document from the record before the agency cited

in a brief, in its entirety" (emphasis added)).

3

resignation, he would not have suffered an in-service injury. Id. And, because he remained on

active duty beyond the date on which he expressed his understanding that he had forfeited his right

to benefits, his August 1988 injuries were subject to compensation. R. at 226.

In February 2013, the RO again determined that the appellant's character of discharge was

a bar to benefits. R. at 190-92. The appellant filed an NOD with that decision, reiterating his

argument regarding the timing of his resignation with respect to his motorcycle accident, R. at

180-81, and ultimately appealed to the Board, again arguing that his character of discharge did not

apply to the period following July 27, 1988, R. at 139.

In the August 2018 decision on appeal, the Board found that, because the appellant was an

officer discharged for the good of the service, he was statutorily barred from receiving disability

benefits pursuant to 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c). This appeal followed.

II. ANALYSIS

A. Parties' Arguments

In an informal brief that the Court construes liberally, see De Perez v. Derwinski,

2 Vet.App. 85, 86 (1992), the appellant contends that his single period of service may be

bifurcated, with the part during which he sustained the injuries for which he seeks benefits

characterized as honorable.5 Appellant's Informal Brief (Br.) at 1-4. More specifically, he argues

that, until his resignation for the good of the service was accepted by the Army on September 2,

1988, his discharge continued to proceed under honorable conditions pursuant to 10 U.S.C.

§ 631(a)(1). Id. at 1. Alternatively, he asserts that the period from which he is barred from benefits

ended on July 27, 1988, the day he signed the memorandum indicating his understanding of the

effect of his resignation for the good of the service, because there was no reference in the

memorandum "to any future period," id. at 4, and he could not have contemplated that the discharge

under other than honorable conditions would apply to the remainder of his service, id. at 2. In

either case, he argues, because his motorcycle accident occurred in August 1988—after he signed

5

The Court notes that, although the appellant expressly raised this argument to the Board, R. at 139, the

Board did not discuss whether a period of service may be subdivided in this way. Because this is a question of law,

however, the Court may address it de novo and, because we conclude that the appellant's discharge is a bar to benefits,

the Board's reasons-or-bases error is harmless. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc); see also

38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders,

556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the Court's review of Board decisions

and that the burden is on the appellant to show that he or she suffered prejudice as a result of VA error).

4

the memorandum and before the Army accepted his resignation—he is entitled to benefits for the

resulting injuries. Id. at 4. The Secretary argues that the Board's decision is plausible based on

the evidence of record, namely the July 1988 memorandum signed by the appellant and his DD-214

showing that he was discharged as a result of conduct triable by court-martial. Secretary's Br. at

5-12. The Secretary further contends that the appellant has not demonstrated that it was error for

the Board to rely on the character of his discharge. See id. He asks the Court to affirm the Board's

decision. Id. at 11-12.

B. Law

A Board determination regarding the character of a claimant's discharge is a finding of fact

that this Court reviews under the "clearly erroneous" standard of review. See Struck v. Brown,

9 Vet.App. 145, 153 (1996). The interpretation of a statute, however, is a question of law that the

Court reviews de novo, without deference to the Board's interpretation. See Butts, 5 Vet.App. at

539. The statute at issue in this case provides that "[t]he discharge or dismissal . . . of an officer

by the acceptance of such officer's resignation for the good of the service . . . shall bar all rights of

such person under laws administered by the Secretary based upon the period of service from which

discharged or dismissed." 38 U.S.C. § 5303(a); see 38 C.F.R. § 3.12(c)(3) (2019).6

"When a statute is at issue, we begin with the statutory language." McGee v. Peake,

511 F.3d 1352, 1356 (Fed. Cir. 2008); see Williams v. Taylor, 529 U.S. 420, 431 (2000). "The

statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d at 1356; see

Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning

requires examining the specific language at issue and the overall structure of the statute."), aff'd

sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). The "plain

meaning must be given effect unless a 'literal application of [the] statute will produce a result

demonstrably at odds with the intention of its drafters.'" Gardner, 1 Vet.App. at 586-87 (quoting

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see Roper v. Nicholson,

20 Vet.App. 173, 180 (2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007). In assessing the language

of a statute, courts review the overall statutory scheme "'so that effect is given to all its provisions,

so that no part will be inoperative or superfluous, void or insignificant, and so that one section will

6

A resignation for the good of the service will not be considered a bar to benefits where "it is found that the

person was insane at the time of committing the offense causing such discharge or release." 38 C.F.R. § 3.12(b). The

appellant does not contend that he was insane when he committed the violations of the UCMJ that led to his

resignation.

5

not destroy another unless the provision is the result of obvious mistake or error.'" Roper,

20 Vet.App. at 178 (quoting SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION, § 46:06 (6th

ed. 2000)).

C. Discussion

The Board found, and there is no dispute, that the appellant was an officer who was

discharged for the good of the service. There is also no dispute that the appellant seeks benefits

for injuries that occurred during his only period of service. The question for the Court is whether

the character of the appellant's discharge, which is a bar to benefits under section 5303(a), may be

attributed only to either that part of his service between entry and July 27, 1988, or that part of his

service between September 2, 1988, and separation. For our purposes, then, the operative phrase

in section 5303(a) is "based upon the period of service from which discharged or dismissed."

38 U.S.C. § 5303(a) (emphasis added).

In our view, the statute is clear. Although Congress defined the word "discharge" for some

VA purposes, its definition does not apply under the circumstances of this case.7 We may assume,

however, that the word takes on its "'ordinary, contemporary, common meaning,'" which may be

derived from general use dictionaries. Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014)

(quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). "Discharge" means "to dismiss or

release (someone) from a job, esp[ecially] from service in the armed forces." NEW OXFORD

AMERICAN DICTIONARY 494 (3d ed. 2010). In other words, the plain language of the statute means

that the inquiry into whether service is disqualifying under section 5303 is not triggered until an

individual is "dismiss[ed]" or "release[d]" from military service. That language cannot be read as

allowing or requiring an assessment of whether the bar to benefits applies to discrete timeframes

within an individual's military service prior to his or her dismissal or release.8 And, because the

7

In VA's definitional statute, Congress provided:

The term "discharge or release" includes (A) retirement from the active military, naval, or air

service, and (B) the satisfactory completion of the period of active military, naval, or air service for

which a person was obligated at the time of entry into such service in the case of a person who, due

to enlistment or reenlistment, was not awarded a discharge or release from such period of service at

the time of such completion thereof and who, at such time, would otherwise have been eligible for

the award of a discharge or release under conditions other than dishonorable.

38 U.S.C. § 101(18) (emphasis added). The appellant does not contend that he retired or reenlisted.

8

The Court may take judicial notice of the content of a standard DD-214, which is issued to each service

member upon his or her release or discharge from active duty, see 10 U.S.C. § 1168(a), and on which VA relies to

verify a claimant's eligibility for veterans benefits, see 38 C.F.R. § 3.203(a) (2019). See Monzingo v. Shinseki,

26 Vet.App. 97, 103 (2012) (per curiam) ("The Court may take judicial notice of facts of universal notoriety that are

6

bar to benefits applies to "the period of service from which discharged," 38 U.S.C. § 5303(a), it

necessarily covers the entire term of military service that ends in the individual's dismissal or

release. As a result, whether a discharge for the good of the service is a bar to benefits is

determined by the character of discharge assigned at the time the service member is dismissed or

released from service. This is so regardless of whether, during the same period of service, the

claimant had been pursuing a discharge under a discharge authority that would have resulted in a

discharge under honorable conditions, as the appellant has argued is the case here.

In short, where an officer is discharged only once from his or her period of service based

on resignation for the good of the service, and no exceptions apply,9 section 5303(a) operates as a

bar to benefits based on any part of that period of service.10 The appellant does not allege that he

was released from service more than once, and the Board noted that his service ended in November

1988. R. at 5. His DD-214 confirms that he was discharged on November 16, 1988. R. at 28.

Further, the Board found and the appellant's DD-214 reflects that he was a first lieutenant

discharged under other than honorable conditions for the good of the service. R. at 6, 28. For

these reasons, the Court concludes that the Board did not err in finding his discharge a bar to

benefits under section 5303(a). The Court will therefore affirm the Board decision on appeal.

As a final matter, to the extent that the appellant seeks an equitable remedy from the Court

—a finding that his character of discharge is not a bar to benefits—although the relief he seeks "is

not necessarily monetary . . . , [it] is substantive" in that it "may require an outlay of funds" because

VA may in turn resume paying disability compensation for his in-service injuries. Burkhart v.

not subject to reasonable dispute."). That form contains a section titled "Record of Service," which lists the service

member's "Date Entered [Active Duty] This Period" and his or her "Separation Date This Period," DD-214, sec. 12,

as well as the "Type of Separation," the "Character of Service," the "Separation Authority," and a "Narrative Reason

for Separation," DD-214, secs. 23, 24, 25, 28. That the nature and character of discharge, as well as the reason for

separation, are included alongside the service member's dates supports the notion that those characterizations apply to

the entire period of service covered by the DD-214.

9

See, e.g., 38 U.S.C. § 101(18)(B). The Court's decision does not address the situation identified in that

statute.

10

Similarly, a VA regulation provides that, in the case of a conditional discharge followed by a reenlistment,

the entire period of service—both before and after reenlistment—constitutes one period of service under certain

circumstances, and entitlement to benefits is determined "by the character of the final termination of [the] period of

active service." 38 C.F.R. § 3.13(b) (2019) (emphasis added); see Holmes v. Brown, 10 Vet.App. 38, 41-42 (1997),

overruled on other grounds by D'Amico v. West, 209 F.3d 1322 (Fed. Cir. 2000); see also VA Gen. Coun. Prec. 8-2000

(July 25, 2000).

7

Wilkie, 30 Vet.App. 414, 426 (2019). "To give [the appellant] such a win based solely on equity

would expand the scope of our jurisdiction, and we cannot do that." Id.

III. CONCLUSION

After consideration of the parties' pleadings and a review of the record, the Board's

August 8, 2018, decision is AFFIRMED.

8