Petition for Writ of Certiorari — Diana Garvey, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

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App. 1

APPENDIX A

United States Court of Appeals

for the Federal Circuit

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DIANA GARVEY,

Claimant-Appellant

ROBERT WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2020-1128

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Appeal from the United States Court of Appeals

for Veterans Claims in No. 18-5059, Senior Judge Robert N. Davis.

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Decided: August 27, 2020

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ROBERT C. BROWN, JR., Norman, OK, for claimantappellant.

AMANDA TANTUM, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for respondent-appellee. Also represented by ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE,

App. 2

Ofﬁce of General Counsel, United States Department

of Veterans Affairs, Washington, DC.

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Before LOURIE, SCHALL, and DYK, Circuit Judges.

DYK, Circuit Judge.

Diana Garvey is the widow of John P. Garvey. Mr.

Garvey served in the Army from 1966 to 1970. Mrs.

Garvey sought dependency and indemnity compensation and death pension benefits on the basis of Mr.

Garvey’s Army service. The Department of Veterans

Affairs (“VA”) denied Mrs. Garvey’s claim because Mr.

Garvey was discharged from the Army for “willful and

persistent misconduct,” and thus he was ineligible for

beneﬁts under the applicable regulation. See 38 C.F.R.

§ 3.12(d)(4). Mrs. Garvey now challenges the validity of

Rule 3.12(d)(4) as being contrary to 38 U.S.C. § 5303.

We hold that the regulation is consistent with, and

authorized by, the statute. Section 5303, contrary to

Mrs. Garvey’s assertion, is not the exclusive test for

beneﬁts eligibility. A former servicemember is ineligible for beneﬁts unless he or she is a “veteran” as deﬁned in 38 U.S.C. § 101(2). To be a “veteran” under

section 101(2), a former servicemember must have

been discharged “under conditions other than dishonorable.” Id. The VA was authorized to define a discharge

for willful and persistent misconduct as a discharge

under “dishonorable conditions.” See 38 C.F.R. § 3.12.

We therefore afﬁrm.

App. 3

BACKGROUND

John P. Garvey served in the U.S. Army from February 1966 to May 1970. After training, Mr. Garvey

was posted to Germany, where he served until November 1967. While in Germany, Mr. Garvey was punished

under Article 15 of the Uniform Code of Military Justice for “disorderly conduct” in an incident with a German taxi driver.1 J.A. 74. However, Mr. Garvey’s service

record indicates that his “conduct” and “efﬁciency”

while in Germany were “[e]xc[ellent].” J.A. 10.

Beginning in December 1967, Mr. Garvey was

posted to Vietnam, where his record deteriorated signiﬁcantly. In June 1968, Mr. Garvey was convicted by

special court-martial of possessing four pounds of cannabis with intent to sell. He was sentenced 90 days of

conﬁnement, ordered to forfeit a portion of his pay, and

reduced in rank. In November 1968, Mr. Garvey was

convicted by special court-martial of being absent

without leave (“AWOL”) from September 9, 1968, to October 1, 1968. In June 1969, he was convicted by special

court-martial of being AWOL from April 18, 1969, to

June 5, 1969. For each of these convictions he was

given a suspended sentence of conﬁnement and ordered to forfeit a portion of his pay. In April 1970, Mr.

Garvey was convicted by special court-martial of being

AWOL from February 16, 1970, to April 1, 1970. For

Article 15 authorizes commanding ofﬁcers to impose certain “disciplinary punishments for minor offenses without the intervention of a court-martial.” 10 U.S.C. § 815(b).

App. 4

this conviction, he was sentenced to ﬁve months of conﬁnement and again forfeited a portion of his pay.

Because of these events of misconduct, Mr. Garvey

was discharged as unﬁt for service on May 13, 1970,

with an “Undesirable Discharge.”2 J.A. 32. He waived

consideration of his case before a board of officers

and acknowledged that he “may be ineligible for

many or all beneﬁts as a veteran under both Federal

and State laws.” J.A. 66. On June 23, 1977, under the

Special Discharge Review Program, a procedure by

which Vietnam-era servicemembers could have their

discharge status upgraded if they met certain criteria,

Mr. Garvey’s discharge status was upgraded to “Under

Honorable Conditions (General).” J.A. 35. However, on

August 1, 1978, a Discharge Review Board found that

Mr. Garvey would not have been entitled to an upgrade

under generally applicable standards. The apparent effect of this ﬁnding was to prevent Mr. Garvey from receiving beneﬁts on the basis of his upgraded status. See

38 U.S.C. § 5303(e); 38 C.F.R. § 3.12(h).

Claimant-appellant Diana Garvey married Mr.

Garvey on November 10, 1979. Mr. Garvey died on August 13, 2010. On September 4, 2012, Mrs. Garvey applied for dependency and indemnity compensation and

death pension beneﬁts on the basis of Mr. Garvey’s service.

On August 28, 2018, the Board of Veterans’ Appeals (“Board”) denied Mrs. Garvey’s claim. The Board

We capitalize formal discharge status (e.g., Honorable, Dishonorable, Undesirable, etc.).

App. 5

concluded that Mr. Garvey was ineligible for beneﬁts

because he was discharged for “willful and persistent

misconduct,” which under 38 C.F.R. § 3.12(d)(4) is a

bar to beneﬁts. On September 30, 2019, the United

States Court of Appeals for Veterans Claims (“Veterans Court”) afﬁrmed the Board’s decision, rejecting

Mrs. Garvey’s contention that the “willful and persistent misconduct” bar, section 3.12(d)(4), is contrary to

statute.

Mrs. Garvey appealed to this court. We have jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

On review of a decision from the Veterans Court,

this court “shall decide all relevant questions of law,

including interpreting constitutional and statutory

provisions.” 38 U.S.C. § 7292(d)(1). This court “shall

hold unlawful and set aside any regulation . . . that

was relied upon in the decision of the [Veterans Court]

that [this court] ﬁnds to be . . . not in accordance with

law.” Id. § 7292(d)(1)(A).

On appeal Mrs. Garvey does not dispute that Mr.

Garvey was discharged for willful and persistent misconduct, or that this rendered him ineligible for beneﬁts under the regulation, but renews her argument

that the “willful and persistent misconduct” bar is contrary to statute.

App. 6

We have previously upheld the regulation in a

two-paragraph non-precedential decision that affirmed

the Veterans Court. Camarena v. Brown, 60 F.3d 843

(Fed. Cir. 1995). We now address the issue in a precedential decision.

We begin with a summary of the relevant statutes

and regulations. For purposes of eligibility for veterans’ beneﬁts, section 101(2) deﬁnes a “veteran” as “a

person who served in the active military, naval, or air

service, and who was discharged or released therefrom

under conditions other than dishonorable.” 38 U.S.C.

§ 101(2). Section 5303(a) lists several situations, such

as discharge due to general court-martial or desertion,

in which a former servicemember is barred from receiving veterans’ beneﬁts.3 Section 5303 does not list

Speciﬁcally, section 5303(a) provides that:

The discharge or dismissal [1] by reason of the sentence of a general court-martial of any person from

the Armed Forces, or the discharge of any such person

[2] on the ground that such person was a conscientious

objector who refused to perform military duty or refused to wear the uniform or otherwise to comply with

lawful orders of competent military authority, or [3] as

a deserter, or [4] on the basis of an absence without authority from active duty for a continuous period of at

least one hundred and eighty days if such person was

discharged under conditions other than honorable unless such person demonstrates to the satisfaction of the

Secretary that there are compelling circumstances to

warrant such prolonged unauthorized absence, or [5] of

an ofﬁcer by the acceptance of such ofﬁcer’s resignation

for the good of the service, or [6] (except as provided in

subsection (c)) the discharge of any individual during a

period of hostilities as an alien, shall bar all rights of

App. 7

“willful and persistent misconduct” as one of its statutory bars.

Sections 101 and 5303 are implemented in 38

C.F.R. § 3.12. As relevant here, Rule 3.12(c) provides

that “[b]eneﬁts are not payable” under speciﬁed conditions. These include those listed in section 5303(a).4

Mirroring the “conditions other than dishonorable”

such person under laws administered by the Secretary

[of the VA]. . . .

38 U.S.C. § 5303(a).

Section 3.12(c) states that:

Beneﬁts are not payable where the former service

member was discharged or released under one of the

following conditions:

(1) As a conscientious objector who refused

to perform military duty, wear the uniform,

or comply with lawful order of competent

military authorities.

(2) By reason of the sentence of a general

court-martial.

(3) Resignation by an ofﬁcer for the good of

the service.

(4) As a deserter.

(5) As an alien during a period of hostilities, where it is afﬁrmatively shown that the

former service member requested his or her

release. See § 3.7(b).

(6) By reason of a discharge under other

than honorable conditions issued as a result

of an absence without ofﬁcial leave (AWOL)

for a continuous period of at least 180

days. . . .

38 C.F.R. § 3.12(c).

App. 8

language of section 101(2), Rule 3.12(a) provides

that:

If the former service member did not die in

service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the

claim is based was terminated by discharge

or release under conditions other than dishonorable. (38 U.S.C. 101(2)). A discharge under

honorable conditions is binding on the [VA] as

to character of discharge.

38 C.F.R § 3.12(a) (emphasis added). Rule 3.12(d) further deﬁnes “dishonorable conditions,” providing that:

A discharge or release because of one of the

offenses speciﬁed in this paragraph is considered to have been issued under dishonorable

conditions. . . .

(4) Willful and persistent misconduct. This includes a discharge under

other than honorable conditions, if it

is determined that it was issued because of willful and persistent misconduct. A discharge because of a

minor offense will not, however, be

considered willful and persistent

misconduct if service was otherwise

honest, faithful and meritorious.

Id. § 3.12(d) (emphasis added).

Every servicemember is assigned a status—Honorable, Dishonorable, or an intermediate status—upon

discharge. Under Rule 3.12, a former servicemember’s

App. 9

discharge status might be, but is not necessarily, determinative of eligibility for beneﬁts. A servicemember

with an Honorable discharge is eligible for benefits

because a discharge “under honorable conditions”

is “binding” on the VA as to beneﬁts eligibility. Id.

§ 3.12(a). A servicemember with a Dishonorable discharge is ineligible for beneﬁts because a Dishonorable

discharge is a discharge by sentence of a general courtmartial—a bar to benefits under Rule 3.12(c)(2). A

former servicemember’s discharge status is not determinative, however, when it is neither “under honorable

conditions” nor Dishonorable. The military has issued

several types of discharges of this sort over the years,

including Undesirable, Ordinary, and Without Honor

discharges. Bradford Adams & Dana Montalto, With

Malice Toward None: Revisiting the Historical and

Legal Basis for Excluding Veterans from “Veteran”

Services, 122 Penn. St. L. Rev. 69, 80 (2017). For servicemembers discharged with one of these intermediate statuses, the character of their service governs. The

VA deems servicemembers with an intermediate discharge status who were discharged for “willful and persistent misconduct” to have been discharged under

“dishonorable conditions,” rendering them ineligible

for veterans’ beneﬁts.5 See 38 U.S.C. § 3.12(d)(4).

Discharges for “[m]utiny,” “spying,” and “[a]cceptance of an

undesirable discharge to escape trial by general court-martial”

are also deemed by the VA to “have been issued under dishonorable conditions.” 38 C.F.R. § 3.12(d).

App. 10

Mrs. Garvey contends that the “willful and persistent misconduct” bar in Rule 3.12(d) is contrary to statute. Mrs. Garvey argues that because section 5303(a)

speciﬁes six conditions under which a former servicemember is ineligible for beneﬁts, it was improper for

the VA to add a seventh, unlisted “willful and persistent misconduct” bar. We disagree.

Neither section 5303 nor any other statute provides that section 5303 contains the exclusive list of

conditions for beneﬁts eligibility. On the contrary, the

deﬁnition of “veteran” in section 101(2) expressly limits beneﬁts to those discharged “under conditions other

than dishonorable.” 38 U.S.C. § 101(2). The central

question here is the meaning of this language in section 101(2).

In section 101(2), Congress chose not to use a “Dishonorable discharge” bar. Instead, it used the phrase

“conditions other than dishonorable.” Unlike a Dishonorable discharge, the phrase “conditions other than

dishonorable” is not a term of art in the military.6 In

view of the ambiguity of that phrase, we turn to the

statute’s legislative history to determine its meaning.

Adm’r, Fed. Aviation Admin. v. Robertson, 422 U.S. 255,

There is a statement in the Senate ﬂoor debate on the provision now present in section 101(2) that the phrase “conditions

other than dishonorable” was “well-understood,” 90 Cong. Rec.

3077 (1944), but this appears only to suggest that the core concept

was well understood, not that the full scope of the term was well

understood. Indeed, as described below, Congress left it to the VA

to deﬁne the term by regulation.

App. 11

263 (1975) (reasoning that an “unclear and ambiguous”

statute “compell[ed] resort to the legislative history”).

Section 5303 and the “conditions other than dishonorable” requirement of section 101(2) trace their

origin to the Servicemen’s Readjustment Act of 1944

(“the G.I. Bill”). Pub. L. No. 78-346, 58 Stat. 284; see

generally Adams & Montalto, supra, at 84-85. The G.I.

Bill provided a variety of educational, ﬁnancial, and

other beneﬁts to former servicemembers. However, not

all former servicemembers would be eligible. In the

version of the G.I. Bill ﬁrst introduced in Congress, section 300 barred the provision of beneﬁts to servicemembers discharged for any of several enumerated

reasons, including discharge: (1) by sentence of a courtmartial (e.g., a Dishonorable discharge); (2) for being a

conscientious objector; (3) as a deserter; or (4) of an ofﬁcer by resignation for the good of the service. S. 1767,

78th Cong. § 300 (as introduced, Mar. 13, 1944).7

Speciﬁcally, as relevant here, section 300 stated that:

The discharge or dismissal by reason of the sentence of

a general court-martial of any person from the military

or naval forces, or the discharge of any such person on

the ground that he was a conscientious objector who

refused to perform military duty or refused to wear the

uniform or otherwise to comply with lawful orders of a

competent military authority, or as a deserter, or of an

ofﬁcer by the acceptance of his resignation for the good

of the service, shall bar all rights of such person, based

upon the period of service from which he is so discharged or dismissed, under any laws administered by

the [VA]. . . .

S. 1767, 78th Cong. § 300 (as introduced, Mar. 13, 1944).

App. 12

The Senate committee amended the bill to add a

new section, section 1603, while retaining the statutory bars in section 300. New section 1603 provided

that:

A discharge or release from active service under conditions other than dishonorable shall

be a prerequisite to entitlement to veterans’

beneﬁts provided by this [A]ct. . . .

S. 1767 § 1603 (as reported to the Senate, Mar. 18,

1944). The committee report explained the dual purposes of this provision: to provide beneﬁts to deserving

servicemembers with “honest and faithful or otherwise

meritorious” service even if they did not receive Honorable discharges, but to deny beneﬁts to “unworthy”

former servicemembers even if they were not given a

Dishonorable discharge. S. Rep. No. 78-755, at 15

(1944). Speciﬁcally, the report explained:

The purpose of this section is to provide a uniform basic entitlement contingent upon the

type of release from active military or naval

service. It provides that in order to be entitled

to any veterans’ beneﬁts provided by this act

. . . a veteran must have been discharged or

released from active service under conditions

other than dishonorable. . . . The amendment

would remove a discrepancy in existing law

which has been found to be highly undesirable, . . . relating to hospitalization whereby a

veteran not dishonorably discharged may be

entitled to hospitalization beneﬁts. In practice

it has been found that this permits most unworthy cases to be hospitalized often to the

App. 13

detriment of persons honorably discharged or

discharged under conditions other than dishonorable. It is believed that the hospital facilities of the Veterans’ Administration should

be maintained for veterans whose service was

honest and faithful or otherwise meritorious.

Further, the amendment will correct hardships under existing laws requiring honorable discharge as prerequisite to entitlement.

Many persons who have served faithfully and

even with distinction are released from the

service for relatively minor offenses, receiving

a so-called blue discharge if in the Army or a

similar discharge without honor if in the

Navy. It is the opinion of the committee that

such discharge should not bar entitlement

to benefits otherwise bestowed unless the

offense was such, as for example those mentioned in section 300 of the bill, as to constitute dishonorable conditions. A dishonorable

discharge is effected only as a sentence of

court martial, but in some cases offenders are

released or permitted to resign without trial—

particularly in the case of desertion without

immediate apprehension. In such cases beneﬁts should not be afforded as the conditions

are not less serious than those giving occasion

to dishonorable discharge by court martial.

Id. (emphasis added).

The committee’s amendment was agreed to on the

Senate floor. 90 Cong. Rec. 3075 (1944). There, the

App. 14

sponsor of the G.I. Bill,8 Senator Champ Clark, similarly explained the purpose of the “conditions other

than dishonorable” standard on the Senate ﬂoor where

the committee amendment was adopted. He reasoned

that a person with poor conduct in the service might

nevertheless be discharged without a court-martial

because the military “did not want to take the trouble

to court martial them and give them what they deserved—a dishonorable discharge.” See 90 Cong. Rec.

3077. To Senator Clark, such a servicemember should

not receive beneﬁts. Senator Clark stated that the

“conditions other than dishonorable” language meant

that:

if a man’s service has been dishonorable, if he

has been convicted of larceny or any other

crime or has been convicted of chronic drunkenness or anything else one might think of,

the [VA] will have some discretion with respect to regarding the discharge from the service as dishonorable.

Id. (emphasis added).9 The House of Representatives

version of the G.I. Bill would have restricted beneﬁts

“It is the sponsors that we look to when the meaning of the

statutory words is in doubt.” Edward J. DeBartolo Corp. v. Fla.

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 585

(1988) (quoting N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 66 (1964)).

In the same vein, a later report of the President’s Commission on Veterans’ Pensions, chaired by General Omar Bradley

(VA Administrator from 1945 to 1947), explained that:

The Congress did not want to use the words “honorably

discharged” or “discharged under honorable conditions,”

because it was felt that such an eligibility requirement

App. 15

to those discharged “under honorable conditions.” S.

1767 § 1503 (as passed by the House, May 18, 1944).

However, on the recommendation of the conference

committee, both houses ultimately adopted the Senate’s “conditions other than dishonorable” standard.

H.R. Rep. No. 78-1624, at 26 (1944); 90 Cong. Rec. 5754

(June 12, 1944); 90 Cong. Rec. 5847 (June 13, 1944).

The G.I. Bill was thus enacted with the section 300

bars and the “conditions other than dishonorable” requirement.

In enacting the G.I. Bill, Congress intended for

beneﬁts to be provided to former servicemembers

“whose service was honest and faithful or otherwise

meritorious,” even if they were not discharged with

Honorable status. S. Rep. No. 78-755, at 15. However,

beneﬁts were not to be provided to former servicemembers whose misconduct was “not less serious than

those giving occasion to dishonorable discharge by

court-martial,” even if they did not receive a Dishonorable discharge. Id. Congress provided the VA with

was too restrictive. Neither did Congress want to use

the words “not dishonorably discharged” because such

words would have been too broad and opened the door

to persons who were administratively discharged for

conduct that was in fact dishonorable. The controversy

was ﬁnally resolved by adopting the words “conditions

other than dishonorable.”. . . . The eligibility of persons

discharged with [neither Honorable nor Dishonorable]

discharges was left to a determination by the [VA]

based on the pertinent facts. . . .

President’s Comm’n on Veterans’ Pensions, Staff of H. Comm. on

Veterans’ Affairs, 84th Cong., Rep. On Discharge Requirements

for Veterans’ Beneﬁts 15-16 (Comm. Print 1956).

App. 16

“discretion,” 90 Cong. Rec. 3077, in determining the

“conditions” under which a former servicemember was

“[ ] worthy” of beneﬁts, S. Rep. No. 78-755, at 15. Congress did not intend the speciﬁc provisions of section

300 to be the sole bar to veterans’ beneﬁts.

Though the section 300 bars are now codiﬁed at

38 U.S.C. § 5303(a)10 and the “conditions other than

dishonorable” requirement is codified at 38 U.S.C.

§ 101(2),11 the meaning of and relationship between

these statutory provisions have not materially changed

since the G.I. Bill’s enactment in 1944. Whether the

statute is interpreted to expressly delegate to the VA

the interpretation of “conditions other than dishonorable,” or instead the delegation is implicit, we conclude

that the VA has authority to deﬁne the term consistent

with the Congressional purpose. Chevron, U.S.A., Inc.

In a 1958 reorganization of veterans’ beneﬁts statutes, section 300 was codiﬁed at 38 U.S.C. § 3103(a). Pub. L. No. 85-857

§ 3103, 72 Stat. 1105, 1230 (1958). In 1991, section 3103 was renumbered as 5303. Pub. L. No. 102-40, Title IV, § 402(b)(1), 105

Stat. 187, 238-39 (1991).

Section 606 of the House version of the 1944 G.I. Bill provided that “[t]he term ‘veteran’ as used in this title shall mean a

person who served in the active service of the armed forces during

a period of war in which the United States has been or is engaged

and who has been discharged or released therefrom under honorable conditions.” S. 1767 § 606 (as passed by the House, May 18,

1944). At conference committee, section 606 was moved to section

607 and revised to use the “under conditions other than dishonorable” standard. H.R. Rep. No. 78-1624, at 13. Section 607 was part

of the enacted G.I. Bill. G.I. Bill § 607. The current deﬁnition of

“veteran,” codiﬁed at 38 U.S.C. § 101, derives from section 607

and was enacted in the 1958 reorganization of veterans’ beneﬁts

statutes. Pub. L. 858-57 § 101, 72 Stat. at 1106.

App. 17

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)

(discussing “express delegation” and “implicit” delegation of an interpretive question to an agency).

Since 1946, VA regulations have provided that a

discharge for “willful and persistent misconduct” was

under “dishonorable conditions,” and thus was a bar to

beneﬁts. 11 Fed. Reg. 12,869, 12,878 (Oct. 31, 1946).

The bar has existed in its current form—codiﬁed at 38

C.F.R. § 3.12(d)(4)—since 1963. 28 Fed. Reg. 123 (Jan.

4, 1963). The “willful and persistent misconduct” bar is

consistent with the statute in denying beneﬁts to those

who committed serious misconduct even if they did not

receive a Dishonorable discharge.

Our conclusion is further supported by Congress’

1977 amendment to what is now section 5303. On

April 5, 1977, President Carter initiated the Special

Discharge Review Program. Under the Program, as

relevant here, a Vietnam-era servicemember with a

discharge “Under Other than Honorable Conditions”

could obtain an upgrade to a “general discharge under

honorable conditions” if a Discharge Review Board

found that “such action is appropriate based on all of

the circumstances of a particular case and on the quality of the individual’s civilian records since discharge.”

Discharge Review Boards, 42 Fed. Reg. 21,308, 21,310

(Apr. 26, 1977).12 Because Rule 3.12(a) provides that

“[a] discharge under honorable conditions is binding on

Mr. Garvey’s upgrade to an “Under Honorable Conditions

(General)” discharge status was under the Special Discharge Review Program.

App. 18

the [VA] as to character of discharge,” some servicemembers who were ineligible for beneﬁts (due, for example, to the “willful and persistent misconduct” bar),

would become eligible because of their upgrade under

the Program.

Congress concluded that this aspect of the Program was unfair because it upgraded Vietnam-era

servicemembers but not other servicemembers, and

because it unfairly allowed those with problematic service records to obtain veterans beneﬁts. S. Rep. No. 95305, at 3 (1977); 123 Cong. Rec. 28,193, 28,198 (Sep. 8,

1977). Because of these concerns, in 1977, Congress

passed an “Act to deny entitlement to veterans’ beneﬁts to certain persons who would otherwise become so

entitled solely by virtue of the administrative upgrading under” the Program. Pub. L. No. 95-126, 91 Stat.

1106 (“the 1977 Act”). The 1977 Act provided, in relevant part, that servicemembers upgraded to “a general

or honorable discharge” under the Program were ineligible for veterans benefits unless, after a case-bycase review by a Discharge Review Board, the VA

determined that the veteran would have received the

upgraded discharge status even under generally applicable standards. Id.13

More speciﬁcally, the 1977 Act’s exclusion is now codiﬁed

at 38 U.S.C. § 5303(e)(2), which provides:

Notwithstanding any other provision of law . . . no person discharged or released from active military, naval,

or air service under other than honorable conditions

who has been awarded a general or honorable discharge under revised standards for the review of

App. 19

The structure and purpose of the 1977 Act support

the “willful and persistent misconduct” bar. The Act

presupposes that a servicemember discharged under

less than honorable conditions would, but for his or her

upgrade under the Program, not have been eligible for

beneﬁts in at least some circumstances. At the time,

the “willful and persistent misconduct” bar had been in

force for over three decades. See 11 Fed. Reg. at 12,878

(amending regulation to add the “willful and persistent

misconduct” bar). And Congress was well aware that if

the servicemember had been discharged for “willful

and persistent misconduct” he or she would not be not

entitled to veterans’ beneﬁts. See, e.g., S. Rep. No. 95305, at 27 (quoting 38 C.F.R. § 3.12 (1977)); H.R. Rep.

No. 95-580, at 9 (same); Eligibility for Veterans’ Beneﬁts Pursuant to Discharge Upgradings: Hearing Before

the Committee on Veterans’ Affairs, 95th Cong. 354-55

(1977) (statement of Sen. Thurmond) (same). That

Congress required an upgraded servicemember to remain subject to the VA’s rules under his or her original

discharge status (absent a speciﬁc dispensation) suggests approval of those rules, including the “willful and

persistent misconduct” bar.

discharges . . . as implemented on or after April 5,

1977, under the Department of Defense’s special discharge review program . . . , shall be entitled to beneﬁts

under laws administered by the Secretary except upon

a determination, based on a case-by-case review, under

[uniform and historically consistent] standards . . .

that such person would be awarded an upgraded discharge under such standards.

App. 20

We reject Mrs. Garvey’s challenge to the “willful

and persistent misconduct” regulatory bar.

CONCLUSION

We uphold the VA’s interpretation that a discharge

for “willful and persistent misconduct” is, under the

statute, “issued under dishonorable conditions.” See 38

C.F.R. § 3.12(d). Mr. Garvey’s discharge was for willful

and persistent misconduct, so Mrs. Garvey is not entitled to veterans’ beneﬁts. The decision of the Veterans

Court is

AFFIRMED

App. 21

APPENDIX B

Designated for electronic publication only

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No. 18-5059

DIANA GARVEY, APPELLANT,

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE

Before DAVIS, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

DAVIS, Chief Judge: Diana Garvey is the surviving spouse of the late John P. Garvey, who served in the

U.S. Army from February 1966 to May 1970 before receiving a discharge under conditions other than honorable. Mr. Garvey died in August 2010. Mrs. Garvey now

appeals an August 28, 2018, Board of Veterans’ Appeals decision that denied entitlement to VA death

beneﬁts because the Board determined that Mr. Garvey’s discharge was due to willful and persistent misconduct and thus served as a bar to beneﬁts. Because

the Board did not err when it determined that the

character of Mr. Garvey’s discharge served as a bar to

Mrs. Garvey’s claim, the Court will afﬁrm the Board’s

decision.

App. 22

ANALYSIS

To be eligible for VA beneﬁts, a service member

must be a “veteran,” deﬁned by Congress as “a person

who served in the active military, naval, or air service,

and who was discharged or released therefrom under

conditions other than dishonorable.”1 In addition to

this general requirement, Congress has imposed additional bars to the receipt of beneﬁts for any individual

who was (1) discharged or dismissed by reason of the

sentence of a general court martial; (2) discharged as a

conscientious objector who refused to perform military

duty; (3) a deserter; (4) absent without leave for more

than 180 days; (5) an ofﬁcer who resigned for the good

of the service; or (6) discharged during a period of hostilities as an alien.2 VA regulations further provide

that a discharge or release under several additional

circumstances, including a discharge due to willful and

persistent misconduct, “is considered to have been issued under dishonorable conditions.3

Mrs. Garvey presents two arguments on appeal.

First, she contends that VA was without authority to

promulgate its “willful and persistent misconduct” regulation, asserting that Congress speciﬁcally limited

the circumstances that would result in a bar to beneﬁts

to those enumerated in section 5303(a). Second, she argues that the Board’s determination that Mr. Garvey’s

discharge was due to willful and persistent misconduct

38 U.S.C. § 101(2).

38 U.S.C. § 5303(a).

38 C.F.R. § 3.12 (2019).

App. 23

was arbitrary and capricious, because that standard is

not listed in section 5303(a). She does not otherwise

challenge the Board’s decision or its ﬁndings.

In Camarena v. Brown,4 the Court considered arguments nearly identical to those made by Mrs. Garvey and held that § 3.12(d) was valid. Mrs. Carrera

recognizes the binding effect of Camarena, but she contends that “the courts probably made a mistake when

they ruled on this case,”5 because neither this Court

nor the U.S. Court of Appeals for the Federal Circuit

cited Chevron, U.S.A., Inc. v. Natural Resources Defense

Counsel, Inc. (“Chevron”)6 in its analysis. Speciﬁcally,

she asserts that the Court did not properly consider

whether section 5303 was ambiguous and whether

Congress intended the list of bars to beneﬁts in section

5303(a) to be exhaustive.

But although the Court in Camarena did not speciﬁcally cite Chevron, it did consider these issues. After

examining the plain meaning and legislative history of

section 5303, the Court held that

there is simply nothing in [section 5303], nor in

the overall statutory scheme encompassed by

either title 38 of the U.S. Code (Veteran’s Benefits) or title 10 (Armed Services), that would

suggest that the definition of “veteran” was to

6 Vet.App. 565 (1994), aff ’d, 60 F.3d 843 (Fed. Cir. 1995).

Appellant’s Brief at 7.

67 U.S. 837 (1984).

App. 24

be entirely removed from the rulemaking

power of the Secretary of Veterans Affairs.[7]

The Court concluded that, “[w]hether a ‘plain

meaning’ or congressional intent analysis is used, it is

abundantly clear that Congress did not say or intend

to say that only those receiving ‘dishonorable discharges’ would be denied veteran status. We ﬁnd the

regulation valid.”8

Mrs. Garvey has not convinced the Court that

reconsideration of Camarena is warranted or that

§ 3.12(d) is invalid. And because her second argument

is premised on her ﬁrst, she has provided no grounds

to set aside the Board’s decision.9 The Court will, accordingly, afﬁrm the Board’s decision.

II.

CONCLUSION

On consideration of the foregoing, the Court AFFIRMS the Board’s August 28, 2018, decision.

DATED: September 30, 2019

Copies to:

Robert C. Brown, Jr., Esq.

VA General Counsel (027)

Camarena, 6 Vet.App. at 567.

Id. at 568.

See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)

(“An appellant bears the burden of persuasion on appeals to this

Court.”), aff ’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table);

App. 25

APPENDIX C

BOARD OF VETERANS’ APPEALS

DEPARTMENT OF VETERANS AFFAIRS

[SEAL]

IN THE APPEAL OF

DIANA GARVEY

Docket No. 13-18 662A

IN THE CASE OF

JOHN P. GARVEY

REPRESENTED BY

Robert C. Brown, Attorney

DATE:

August 28, 2018

ORDER

As the character of the service member’s discharge is a bar to his surviving spouse’s eligibility for VA death beneﬁts, to include Dependency

and Indemnity Compensation (DIC) beneﬁts and

nonservice-connected death pension beneﬁts,

the appeal is denied.

FINDINGS OF FACT

1. During his active service, the service member was

the subject of one Article 15 punishment and was convicted of four offenses at four separate special courts

martial, and he was discharged from service under

conditions other than honorable.

2. Due to his willful and persistent misconduct, the

service member’s discharge is considered dishonorable

App. 26

for VA purposes, and the most probative competent evidence of record establishes that he was not insane at

the time of his in-service willful and persistent misconduct.

CONCLUSION OF LAW

The character of the service member’s discharge is under dishonorable conditions and constitutes a bar to

the receipt of VA death beneﬁts. 38 U.S.C. §§ 101, 1310,

1541, 5107 5303; 38 C.F.R. §§ 3.1, 3.3, 3.12, 3.102,

3.312, 3.354.

REASONS AND BASES FOR

FINDINGS AND CONCLUSION

The service member served on active duty from February 1966 to May 1970. Because he does not have the

status of a veteran for VA beneﬁts purposes, the Board

shall refer to him as “the service member” throughout

this decision. He was discharged from service “Under

Conditions Other Than Honorable.” He died in August

2010, and the appellant is his surviving spouse.

This matter ﬁrst came before the Board of Veterans’

Appeals (Board) on appeal from a November 2012 decision.

In June 2104, the appellant testiﬁed at a Board hearing.

The Board denied this appeal in a March 2016 decision. The appellant appealed the Board’s decision to

App. 27

the United States Court of Appeals for Veterans

Claims (Court), which issued a memorandum decision

in April 2017 vacating the Board’s decision and remanding the matter for action consistent with the

Court’s decision.

The Board has limited the discussion below to the relevant evidence required to support its ﬁnding of fact

and conclusion of law, as well as to the speciﬁc contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See

Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015);

Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Whether the character of the service member’s

discharge is a bar to his surviving spouse’s eligibility for VA death beneﬁts.

Applicable Law

The appellant ﬁled a claim for both DIC beneﬁts and

nonservice-connected death pension beneﬁts in September 2012. A necessary prerequisite for eligibility for

these beneﬁts is the underlying veteran status of the

appellant’s deceased husband. See 38 U.S.C. § 1310; 38

C.F.R. § 3.312 (providing the requirements for DIC

beneﬁts), and 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (providing the requirements for nonservice-connected death

pension beneﬁts).

For both of these beneﬁts, the term “veteran” means a

person who served in the active military, naval, or air

service, and who was discharged or released therefrom

App. 28

under conditions other than dishonorable. 38 U.S.C.

§ 101(2); 38 C.F.R. § 3.1.

There are two types of character of discharge bars to

establishing entitlement for VA beneﬁts: statutory

bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R.

§ 3.12(c), and regulatory bars listed in 38 C.F.R.

§ 3.12(d).

The statutory bars under 38 U.S.C. § 5303 (a) and codiﬁed at 38 C.F.R. § 3.12(c) are not applicable in this

case. The regulatory bars under 38 C.F.R. § 3.12(d)

state that a discharge is considered to have been issued

under dishonorable conditions for numerous offenses,

including willful and persistent misconduct. Speciﬁcally, the regulation states that “a discharge under

other than honorable conditions” will be considered

dishonorable “if it is determined that it was issued because of willful and persistent misconduct.” 38 C.F.R.

§ 3.12(d)(4).

A discharge because of a minor offense will not be

considered willful and persistent misconduct if the

appellant’s service was otherwise honest, faithful, and

meritorious. Id. A discharge or release from service under either the statutory or regulatory bars is a bar to

the payment of beneﬁts unless it is found that the person was insane at the time of committing the offense.

38 C.F.R. § 3.12(b).

VA’s deﬁnition of insanity is set forth in 38 C.F.R.

§ 3.354(a) and does not necessarily have the common

components of insanity deﬁnitions used in criminal

App. 29

cases. See Gardner v. Shinseki, 22 Vet. App. 415, 41921 (2009). VA’s deﬁnition states:

An insane person is one (1) who, while not

mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits,

due to disease, a more or less prolonged deviation from his normal method of behavior; or

(2) who interferes with the peace of society; or

(3) who has so departed (become antisocial)

from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make

further adjustment to the social customs of

the community in which he resides. 38 C.F.R.

§ 3.354 (a).

The phrase “due to disease” applies to all three circumstances of the insanity deﬁnition. Zang v. Brown, 8 Vet.

App. 246, 253 (1995). Although insanity need not be

causally connected to the misconduct that led to the

discharge, it must be concurrent with that misconduct

and requires competent medical evidence to establish

a diagnosis. See Beck v. West, 13 Vet. App. 535, 539

(2000). The question (and only relevant timeframe) is

whether the claimant was insane at the time he committed the offense. Gardner, 22 Vet. App. at 420-21.

Discussion

In this case, the question for the Board is whether the

service member met VA’s deﬁnition of insanity at the

time of his in-service offenses.

App. 30

The service member served on active duty from February 1966 to May 1970. During that time, he received

numerous punishments for misconduct. In January

1967, he was involved in an incident with a German

taxi driver, which resulted in a charge of disorderly

conduct and forfeiture of $25 in pay. In April 1968, he

was arrested in Vietnam with 4 pounds of marijuana.

He was charged with possession of marijuana and intent to sell marijuana; he was convicted and sentenced

to 90 days of conﬁnement.

Overall, he was convicted of four separate offenses at

four separate courts martial. In June 1968, he was

convicted of possession of 4 pounds of marijuana. He

was sentenced to 3 months of conﬁnement, ordered to

forfeit a portion of his pay, and reduced in rank. In November 1968, he was found to have been absent without leave (AWOL) from September 9, 1968, until

October 1, 1968. He was given a suspended sentence of

conﬁnement and ordered to forfeit a portion of his pay.

In June 1969, he was again convicted of having been

AWOL from April 18, 1969 to June 5, 1969. He was

given a suspended sentence of conﬁnement and ordered to forfeit a portion of his pay. In April 1970, he

was convicted of having been AWOL from February 16,

1970 to April 1, 1970. He was sentenced to 5 months of

conﬁnement and forfeited a portion of his pay.

In April 1970, an Army chaplain determined that the

service member was not amenable to rehabilitation,

and he recommended that service member be discharged from the Army. At a separate April 1970 psychiatric evaluation, two Army physicians stated that

App. 31

service member “was and is mentally responsible to

distinguish right from wrong and adhere to the right.”

They also noted that the service member had no disqualifying mental or physical disease or defect sufﬁcient to warrant discharge through medical channels.

A May 1970 separation document noted the service

member’s four convictions, and found that he had approximately 181 days of bad time due to his multiple

periods of absences and confinement. In May 1970,

the service member was notified that he was to be

discharged as unﬁt for service. The service member

waived consideration of his case before a board of ofﬁcers or for a personal appearance. He acknowledged

that, because of the terms of his discharge, he “may be

ineligible for many or all beneﬁts as a veteran under

both Federal and State laws.” He was terminated from

service under “Other Than Honorable Conditions.”

In April 1977, the service member sought an upgrade

of his discharge from the “DOD Discharge Review Program (Special).” In June 1977, that panel upgraded the

service member’s discharge to “Under Honorable Conditions (General).” The service member was issued a

new DD-214 reﬂecting this change. Subsequently, however, in 1978, the Army’s Discharge Review Board

voted to not afﬁrm the service member’s upgraded discharge, ﬁnding that the under other than honorable

conditions discharge was consistent with the standards of the Army at the time of his discharge, and noting that the service member had 186 days of time lost.

App. 32

At present, the character of his service remains, absent

evidence of insanity, a bar to his (and now his spouse’s)

receipt of VA beneﬁts. See 38 C.F.R. § 3.312(d)(4). The

only way to rebut his current discharge is through a

showing that he was insane at the time of his offenses.

There were initially differing medical opinions as to

this question.

In a September 2006 letter, W.R.R., MD, wrote that the

service member suffered from PTSD, and that his

“symptoms began while he was in Vietnam and started

after the severe rocket attack at Camp Eagle in March

1968.” Dr. W.R.R. went on to state that the service

member’s “PTSD symptoms started before he was discharged from the Army.” Dr. W.R.R. did not, however,

address the question of whether the service member

was insane at the time of his in-service offenses.

The service member, during his lifetime, underwent a

VA examination in August 2008. The examiner determined that the service member’s actions were “characterized by a prolonged period of deviation from his

normal behavior.” The examiner stated that the service

member was “clearly not functioning according to the

accepted standards of the community to which he belonged by birth and education.” The examiner therefore concluded that it is at least as likely as not that,

as it pertains to the service member’s offenses in 1970

“and in the year or so before and after, was functioning

in a way that ﬁts the deﬁnition of insanity.” The examiner did not, however, directly address the service

member’s earlier incidents in 1967 and 1968.

App. 33

In contrast, an April 1970 in-service psychiatric evaluation determined that the service member “was and is

mentally responsible to distinguish right from wrong

and adhere to the right.” That evaluation also noted

that the service member had “ no disqualifying mental

or physical disease or defect sufﬁcient to warrant discharge.”

Additionally, a prior Veterans Health Administration

(VHA) medical opinion was obtained from a psychiatrist in August 2015, which is in the record. However,

it was deemed not adequate.

Speciﬁcally, this matter was previously appealed to the

Court, which determined in the April 2017 memorandum decision, that a new medical opinion was needed

because the prior evidence did not explain whether the

service member’s behavior was potentially aggravated

by his later diagnosis of PTSD, thereby contributing to

his in-service offenses. Moreover, according to the

Court, the evidence did not explain whether his preexisting antisocial behavior possibly contributed to his

inability to conform his conduct to community standards when he committed the in-service offenses. This

was especially concerning to the Court given that VA’s

deﬁnition of “insanity” speciﬁcally includes those who

have become antisocial.

Accordingly, the Board referred the matter to VHA for

a second expert medical opinion. The Board asked two

questions: (1) whether it is at least as likely as not (i.e.,

at least equally probable) that the service member’s

antisocial features were aggravated by his later

App. 34

diagnosed PTSD, and (2) whether it is at least as likely

as not (i.e., at least equally probable) that his antisocial personality rose to the level of “insanity” at the

time of his in-service offense.

The opinion was authored in April 2018. The expert, a

VA staff psychiatrist, gave his opinion that while it is

possible that, if the service member had PTSD at the

time of his service (which was questionable according

to the VHA expert), such could have contributed to

some of the behaviors in question (which the examiner

also noted as questionable); it certainly cannot account

for all of the aforementioned behaviors. Additionally,

the expert went on, while the possible presence of

PTSD cannot adequately explain all behaviors in question, the presence of Antisocial Personality Disorder

can making it, by far, the most likely explanation. As

such, the expert concluded, it was not at least equally

probable that the service member’s antisocial features

were sufﬁciently aggravated by his later diagnosis of

PTSD.

The expert gave an extensive supporting rationale. In

brief, the expert discussed question (2) ﬁrst, starting

off by giving the DSM-5 deﬁnition of Antisocial Personality Disorder and reviewed VA’s deﬁnition of insanity.

The examiner then broke down VA’s deﬁnition and ﬁrst

focused on the “due to” clause. After explaining the distinction between organic/physiologic diseases and personality disorders, the examiner opined that there was

no evidence in the record to suggest that the service

member was suffering from a possible organic issue

to account for his behavior. The expert focused on the

App. 35

in-service psychiatric evaluation conducted in April

1970, which he found important as it was the only evaluation conducted contemporaneous with the events.

The examiner explained that since it was determined

that the service member could distinguish between

right and wrong at that time, he would then not meet

the legal deﬁnition of insanity, and would therefore be

culpable for his actions.

Next, the expert explained that there was not a prolonged deviation from the service member’s normal

method of behavior. The expert explained that one

should exhibit traits of Antisocial Personality Disorder

during childhood or adolescence, which would mean

prior to service in the instant case. The expert then

cited multiple instances in the record supporting this,

including criminal conduct prior the service member’s

entrance into service, plus the fact that he completed

only 2 years of high school. The expert found this important for several reasons, including that the pre-service pattern of behavior strongly suggested that the

speciﬁc behaviors during service were not precipitated

by service. Rather, his in-service behavior was “very

much consistent with his normal pattern of behavior.”

(Emphases in original.)

The expert next discussed the VA insanity deﬁnition

requiring a lack of adaptability to the community’s social customs. Finally, the expert examined the “ not

mentally defective or constitutionally psychopathic”

component. The expert explained that one with Antisocial Personality Disorder would be considered “psychopathic,” which would preclude the service member

App. 36

from meeting VA’s deﬁnition of insanity unless there

was a superimposed psychosis and this service member’s records gave “no indication whatsoever that at

any time (and particularly during the events in question) the [service member] was psychotic.”

The expert then summarized that because the service

member’s actions were not secondary to a disease, nor

were these behaviors a deviation from his normal pattern of behavior, nor did he truly lack the ability to adjust to the social customs of the community in which

he resided, and given the diagnosis of Antisocial Personality Disorder, he would be, by deﬁnition, considered constitutionally psychopathic, which is why the

expert concluded that he did not meet the criteria for

VA’s speciﬁc deﬁnition of insanity.

The expert then discussed his reasoning behind his

negative opinion starting with the Board’s ﬁrst question. The expert stated that while it is certainly possible that if the service member had PTSD at the time of

his service, such a diagnosis could have contributed

to some of the behaviors in question, but the preponderance of the evidence overwhelmingly suggested

that this was not probable. The examiner first deconstructed the positive opinion given by Dr. W.R.R. The

expert particularly focused on the questionable veracity of the statement the service member gave to

Dr. W.R.R., which the expert noted as the sole evidence

supporting the opinion. The expert explained that,

given the service member’s documented propensity

for changing his explanation for his in-service behavior, which was motivated by secondary gain, the

App. 37

statements given to Dr. W.R.R. should have been given

greater scrutiny. The expert then exhaustively and

carefully documented the repeated instances over the

years where the service member “changed his story in

regards to the substantive facts, as well as to assigning

an underlying explanation for his behavior.” The expert found this “overall presentation [ ] very much consistent with the hallmarks of Antisocial Personality

Disorder, rather than that of PTSD.”

The expert found it debatable whether the service

member did have PTSD at the time of any of the inservice events. He noted that some of the events occurred before the PTSD stressful events, including

prior to service. The expert then opined that although

PTSD could possibly have contributed to the service

member’s possession/use of marijuana during service,

it would not account for his attempt to sell the same.

Rather, this would be consistent with Antisocial Personality Disorder. Likewise, while the service member’s AWOLs could possibly be associated with

avoidance symptoms associated with PTSD, “the more

likely explanation is that these were simply a continuation of his antisocial behavior” when considered in the

context of all the other incidents.

The Board ﬁnds this April 2018 VHA expert’s opinion

to be the most persuasive and probative evidence in

this case because it was based on an accurate medical

history and provides an explanation that contains

clear conclusions and supporting data, and because it

addresses the concerns raised in the Court’s April 2017

memorandum decision. See Nieves-Rodriguez v. Peake,

App. 38

22 Vet. App. 295, 304 (2008). As the most probative evidence, it therefore establishes that the service member was not insane at the time of his actions leading to

his discharge.

In an August 2018 brief, the appellant’s attorney representative presented the primary contention. The attorney argued that Congress did not express an intent

for willful and persistent misconduct to be a bar to receipt of VA beneﬁts. Citing Chevron deference, the attorney argued that Congress was not ambiguous when

it enacted § 5303. Rather, VA’s addition of willful and

persistent misconduct to the list of disqualifying acts

added a seventh bar to beneﬁts. Adding this seventh

bar to beneﬁts, according to the attorney, was arbitrary

and capricious.

The attorney next argued that there is a split in the

current precedent. The attorney ﬁrst discussed Camarena v. Brown, 60 F.3d 843 (Fed. Cir. 1995) (per curiam),

which found § 3.12 valid and within VA’s rulemaking

power, including where it considered a discharge to

have been issued under dishonorable conditions if

given for willful and persistent misconduct. In contrast, the attorney next cited Garvey v. Shulkin, No. 161407 (Vet. App. April 11, 2017). In that single judge decision, the Court commented in a footnote that there

was a potential conﬂict between Camarena and Lane

v. Principi, 339 F.3d 1331, 1340-41 (Fed. Cir. 2003). The

Court “acknowledge[d] this potential conﬂict in

caselaw and the need for clariﬁcation[.]”

App. 39

Ultimately, the appellant’s attorney concluded that

there was potential agency overreach in its rulemaking thereby making the “willful and persistent misconduct” clause unenforceable.

The Board appreciates this potential conﬂict in the

Federal Circuit’s jurisprudence. Speciﬁcally, under 38

U.S.C. § 101(2), “[t]he term ‘veteran’ means a person

who served in the active military, naval, or air service,

and who was discharged or released therefrom under

conditions other than dishonorable.” Here, because the

service member here was not released under conditions other than dishonorable, the argument would be

that § 3.12 is invalid to the extent it excludes the service member as a “veteran.” In contrast, 38 U.S.C.

§ 5303 establishes certain bars to VA beneﬁts, including for those including those sentenced under a general-court martial. The Court and Federal Circuit in

Camarena afﬁrmed VA’s rulemaking authority for

§ 3.12, whereas the Court in Garvey highlighted the

potential conﬂict as to whether the promulgating authority for § 3.12 may be 38 U.S.C. § 101(2) rather than

§ 5303. If the promulgating authority is § 101(2) instead of § 5303, the addition of willful and persistent

misconduct as a bar to VA beneﬁts in § 3.12 may represent an impermissible restriction on those who may

be considered a “veteran.”

At present, the Board is without jurisdictional authority to address this potential conﬂict in the jurisprudence. In its decisions, the Board is bound by

applicable statutes, regulations of the Department of

Veterans Affairs and precedent opinions of the General

App. 40

Counsel of the Department of Veterans Affairs. 38

U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Currently, the

Federal Circuit’s decision in Camarena is binding precedent to the extent it afﬁrmed § 3.12 as valid. Thus, the

attorney sets up a legal dispute that must be resolved

by the Court and Federal Circuit.

To conclude, the Board ﬁnds that the preponderance of

the evidence shows that the Veteran’s May 1970 discharge was a result of his persistent and willful misconduct and is considered dishonorable, and that the

Veteran was not insane at the time of his offense. Thus,

the beneﬁt-of-the-doubt doctrine is not applicable. See

38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because of this

discharge, he does not have “veteran” status for VA

beneﬁts purposes, and the appellant is barred from any

applicable VA death beneﬁts. The claim is therefore denied.

/s/ Ryan T. Kessel

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD

C. Bosely, Counsel

App. 41

APPENDIX D

NOTE:

This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

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DIANA GARVEY,

Claimant-Appellant

ROBERT WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2020-1128

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Appeal from the United States Court of Appeals

for Veterans Claims in No. 18-5059, Senior Judge Robert N. Davis.

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ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

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Before PROST, Chief Judge, NEWMAN, LOURIE,

SCHALL*, DYK, MOORE, O’MALLEY, REYNA, WALLACH,

TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges.

PER CURIAM.

* Circuit Judge Schall participated only in the decision on

the petition for panel rehearing.

App. 42

ORDER

Appellant Diana Garvey ﬁled a combined petition

for panel rehearing and rehearing en banc. A response

to the petition was invited by the court and filed by

Appellee Robert Wilkie The petition was referred to

the panel that heard the appeal, and thereafter the

petition for rehearing en banc was referred to the circuit judges who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on December

11, 2020.

FOR THE COURT

December 4, 2020

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 43

APPENDIX E

RELEVANT STATUTES AND REGULATIONS

10 U.S.C. § 815. Art. 15. Commanding officer’s

non-judicial punishment

(a) Under such regulations as the President may

prescribe, and under such additional regulations as

may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this

article with respect to the kind and amount of punishment authorized, the categories of commanding

ofﬁcers and warrant ofﬁcers exercising command authorized to exercise those powers, the applicability of

this article to an accused who demands trial by courtmartial, and the kinds of courts-martial to which the

case may be referred upon such a demand. However,

except in the case of a member attached to or embarked in a vessel, punishment may not be imposed

upon any member of the armed forces under this article if the member has, before the imposition of such

punishment, demanded trial by court-martial in lieu

of such punishment. Under similar regulations, rules

may be prescribed with respect to the suspension of

punishments authorized hereunder. If authorized by

regulations of the Secretary concerned, a commanding

ofﬁcer exercising general court-martial jurisdiction or

an ofﬁcer of general or ﬂag rank in command may delegate his powers under this article to a principal assistant.

(b) Subject to subsection (a), any commanding

officer may, in addition to or in lieu of admonition

App. 44

or reprimand, impose one or more of the following

disciplinary punishments for minor offenses without

the intervention of a court-martial –

(1)

upon ofﬁcers of his command –

(A) restriction to certain speciﬁed limits, with or without suspension from duty, for

not more than 30 consecutive days;

(B) if imposed by an ofﬁcer exercising

general court-martial jurisdiction or an ofﬁcer

of general or ﬂag rank in command –

(i) arrest in quarters for not more

than 30 consecutive days;

(ii) forfeiture of not more than onehalf of one month’s pay per month for two

months;

(iii) restriction to certain speciﬁed

limits, with or without suspension from

duty, for not more than 60 consecutive

days;

(iv) detention of not more than onehalf of one month’s pay per month for

three months;

(2)

upon other personnel of his command –

(A) if imposed upon a person attached to

or embarked in a vessel, conﬁnement for not

more than three consecutive days;

(B) correctional custody for not more

than seven consecutive days;

App. 45

days’ pay;

(D) reduction to the next inferior pay

grade, if the grade from which demoted is

within the promotion authority of the ofﬁcer

imposing the reduction or any ofﬁcer subordinate to the one who imposes the reduction;

(E) extra duties, including fatigue or

other duties, for not more than 14 consecutive

days;

(F) restriction to certain speciﬁed limits, with or without suspension from duty, for

not more than 14 consecutive days;

(G)

detention of not more than 14 days’

pay;

(H) if imposed by an ofﬁcer of the grade

of major or lieutenant commander, or above –

(i) the punishment authorized under clause (A);

(ii) correctional custody for not more

than 30 consecutive days;

(iii) forfeiture of not more than onehalf of one month’s pay per month for two

months;

(iv) reduction to the lowest or any

intermediate pay grade, if the grade from

which demoted is within the promotion

authority of the ofﬁcer imposing the reduction or any ofﬁcer subordinate to the

one who imposes the reduction, but an

App. 46

enlisted member in a pay grade above E-4

may not be reduced more than two pay

grades;

(v) extra duties, including fatigue

or other duties, for not more than 45 consecutive days;

(vi) restrictions to certain speciﬁed

limits, with or without suspension from

duty, for not more than 60 consecutive

days;

(vii) detention of not more than

one-half of one month’s pay per month for

three months.

Detention of pay shall be for a stated period of not

more than one year but if the offender’s term of service

expires earlier, the detention shall terminate upon that

expiration. No two or more of the punishments of arrest in quarters, conﬁnement, correctional custody, extra duties, and restriction may be combined to run

consecutively in the maximum amount imposable for

each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be

combined with detention of pay without an apportionment. For the purposes of this subsection, “correctional

custody” is the physical restraint of a person during

duty or nonduty hours and may include extra duties,

fatigue duties, or hard labor. If practicable, correctional

custody will not be served in immediate association

with persons awaiting trial or held in conﬁnement pursuant to trial by court-martial.

App. 47

members assigned to the unit of which he is in charge

such of the punishments authorized under subsection

(b)(2)(A)-(G) as the Secretary concerned may speciﬁcally prescribe by regulation.

(d) The ofﬁcer who imposes the punishment authorized in subsection (b), or his successor in command, may, at any time, suspend probationally any

part or amount of the unexecuted punishment imposed

and may suspend probationally a reduction in grade or

a forfeiture imposed under subsection (b), whether or

not executed. In addition, he may, at any time, remit or

mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part

the punishment, whether executed or unexecuted, and

restore all rights, privileges, and property affected. He

may also mitigate reduction in grade to forfeiture or

detention of pay. When mitigating –

(1)

arrest in quarters to restriction;

(2)

conﬁnement to correctional custody;

(3) correctional custody or conﬁnement to

extra duties or restriction, or both; or

(4)

extra duties to restriction;

the mitigated punishment shall not be for a

greater period than the punishment mitigated. When

mitigating forfeiture of pay to detention of pay, the

amount of the detention shall not be greater than the

amount of the forfeiture. When mitigating reduction in

grade to forfeiture or detention of pay, the amount of

App. 48

the forfeiture or detention shall not be greater than the

amount that could have been imposed initially under

this article by the ofﬁcer who imposed the punishment

mitigated.

(e) A person punished under this article who considers his punishment unjust or disproportionate to

the offense may, through the proper channel, appeal

to the next superior authority. The appeal shall be

promptly forwarded and decided, but the person punished may in the meantime be required to undergo the

punishment adjudged. The superior authority may exercise the same powers with respect to the punishment

imposed as may be exercised under subsection (d) by

the ofﬁcer who imposed the punishment. Before acting

on an appeal from a punishment of –

(1)

days;

arrest in quarters for more than seven

(2)

days;

correctional custody for more than seven

(3)

forfeiture of more than seven days’ pay;

(4) reduction of one or more pay grades from

the fourth or a higher pay grade;

(5)

extra duties for more than 14 days;

(6)

restriction for more than 14 days; or

(7)

detention of more than 14 days’ pay;

the authority who is to act on the appeal shall refer the case to a judge advocate or a lawyer of the Department of Homeland Security for consideration and

App. 49

advice, and may so refer the case upon appeal from any

punishment imposed under subsection (b).

(f ) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious

crime or offense growing out of the same act or omission, and not properly punishable under this article;

but the fact that a disciplinary punishment has been

enforced may be shown by the accused upon trial, and

when so shown shall be considered in determining the

measure of punishment to be adjudged in the event of

a ﬁnding of guilty.

(g) The Secretary concerned may, by regulation,

prescribe the form of records to be kept of proceedings

under this article and may also prescribe that certain

categories of those proceedings shall be in writing.

10 U.S.C. § 822. Art. 22. Who may convene general courts-martial

(a)

General courts-martial may be convened by –

(1)

the President of the United States;

(2)

the Secretary of Defense;

(3) the commanding ofﬁcer of a uniﬁed or

speciﬁed combatant command;

(4)

the Secretary concerned;

App. 50

(5) the commanding officer of an Army Group,

an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps;

(6) the commander of a ﬂeet; the commanding ofﬁcer of a naval station or larger shore activity of the Navy beyond the United States;

(7) the commanding ofﬁcer of an air command, an air force, an air division, or a separate

wing of the Air Force or Marine Corps;

(8) any other commanding ofﬁcer designated

by the Secretary concerned; or

(9) any other commanding ofﬁcer in any of

the armed forces when empowered by the President.

(b) If any such commanding ofﬁcer is an accuser,

the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered desirable by him.

10 U.S.C. § 823. Art. 23. Who may convene special courts-martial

(a)

Special courts-martial may be convened by –

(1) any person who may convene a general

court-martial;

(2) the commanding ofﬁcer of a district, garrison, fort, camp, station, Air Force base, auxiliary

App. 51

air ﬁeld, or other place where members of the

Army or the Air Force are on duty;

(3) the commanding ofﬁcer of a brigade, regiment, detached battalion, or corresponding unit of

the Army;

(4) the commanding ofﬁcer of a wing, group,

or separate squadron of the Air Force;

(5) the commanding ofﬁcer of any naval or

Coast Guard vessel, shipyard, base, or station; the

commanding ofﬁcer of any Marine brigade, regiment, detached battalion, or corresponding unit;

the commanding ofﬁcer of any Marine barracks,

wing, group, separate squadron, station, base, auxiliary air ﬁeld, or other place where members of

the Marine Corps are on duty;

(6) the commanding ofﬁcer of any separate

or detached command or group of detached units

of any of the armed forces placed under a single

commander for this purpose; or

(7) the commanding ofﬁcer or ofﬁcer in

charge of any other command when empowered by

the Secretary concerned.

(b) If any such ofﬁcer is an accuser, the court

shall be convened by superior competent authority,

and may in any case be convened by such authority if

considered advisable by him.

App. 52

Servicemen’s Readjustment Act (1946)

TITLE I

CHAPTER III—REVIEWING AUTHORITY

SEC. 300. The discharge or dismissal by reason of

the sentence of a general court martial of any person

from the military or naval forces, or the discharge of

any such person on the ground that he was a conscientious objector who refused to perform military duty or

refused to wear the uniform or otherwise to comply

with lawful orders of competent military authority, or

as a deserter, or of an ofﬁcer by the acceptance of his

resignation for the good of the service, shall bar all

rights of such person, based upon the period of service

from which he is so discharged or dismissed, under any

laws administered by the Veterans’ Administration :

Provided, That in the case of any such person, if it be

established to the satisfaction of the Administrator

that at the time of the commission of the offense such

person was insane, he shall not be precluded from beneﬁts to which he is otherwise entitled under the laws

administered by the Veterans’ Administration : And

provided further, That this section shall not apply to

any war risk, Government (converted) or national service life-insurance policy.

App. 53

TITLE VI

CHAPTER XV—GENERAL ADMINISTRATIVE

AND PENAL PROVISIONS

SEC. 1503. A discharge or release from active service under conditions other than dishonorable shall be

a prerequisite to entitlement to veterans’ beneﬁts provided by this Act or Public Law Numbered 2, Seventythird Congress, as amended.

38 U.S.C. § 697c. Discharge or release as prerequisite to benefits (1946).

A discharge or release from active service under

conditions other than dishonorable shall be a prerequisite to entitlement to veterans’ beneﬁts provided by

this chapter or sections 701-703, 704, 105, 706, 707710, 712-715. 717, 718, 720, and 721 of this title.

38 U.S.C. § 101. Definitions

For the purposes of this title –

(2) The term “veteran” means a person who

served in the active military, naval, or air service, and

App. 54

who was discharged or released therefrom under conditions other than dishonorable.

38 U.S.C. § 501. Rules and regulations

(a) The Secretary has authority to prescribe all

rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including –

(1) regulations with respect to the nature

and extent of proof and evidence and the method

of taking and furnishing them in order to establish

the right to beneﬁts under such laws;

(2) the forms of application by claimants under such laws;

(3) the methods of making investigations

and medical examinations; and

(4) the manner and form of adjudications

and awards.

38 U.S.C. § 1310. Deaths entitling survivors to

dependency and indemnity compensation

(a) When any veteran dies after December 31,

1956, from a service-connected or compensable disability, the Secretary shall pay dependency and

App. 55

indemnity compensation to such veteran’s surviving

spouse, children, and parents. The standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter

11 of this title.

(b) Dependency and indemnity compensation

shall not be paid to the surviving spouse, children, or

parents of any veteran dying after December 31, 1956,

unless such veteran (1) was discharged or released under conditions other than dishonorable from the period

of active military, naval, or air service in which the disability causing such veteran’s death was incurred or

aggravated, or (2) died while in the active military, naval, or air service.

38 U.S.C. § 1541. Surviving spouses of veterans

of a period of war

(a) The Secretary shall pay to the surviving

spouse of each veteran of a period of war who met the

service requirements prescribed in section 1521(j) of

this title, or who at the time of death was receiving (or

entitled to receive) compensation or retirement pay for

a service-connected disability, pension at the rate prescribed by this section, as increased from time to time

under section 5312 of this title.

App. 56

38 U.S.C. § 5303. Certain bars to benefits

(a) The discharge or dismissal by reason of the

sentence of a general court-martial of any person from

the Armed Forces, or the discharge of any such person

on the ground that such person was a conscientious objector who refused to perform military duty or refused

to wear the uniform or otherwise to comply with lawful

orders of competent military authority, or as a deserter,

or on the basis of an absence without authority from

active duty for a continuous period of at least one hundred and eighty days if such person was discharged

under conditions other than honorable unless such

person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence, or of an

ofﬁcer by the acceptance of such ofﬁcer’s resignation

for the good of the service, or (except as provided in

subsection (c)) the discharge of any individual during

a period of hostilities as an alien, shall bar all rights of

such person under laws administered by the Secretary

based upon the period of service from which discharged

or dismissed, notwithstanding any action subsequent

to the date of such discharge by a board established

pursuant to section 1553 of title 10.

(e)(1) Notwithstanding any other provision of

law, (A) no beneﬁts under laws administered by the

Secretary shall be provided, as a result of a change in

or new issuance of a discharge under section 1553 of

title 10, except upon a case-by-case review by the board

App. 57

of review concerned, subject to review by the Secretary

concerned, under such section, of all the evidence and

factors in each case under published uniform standards (which shall be historically consistent with criteria for determining honorable service and shall not

include any criterion for automatically granting or

denying such change or issuance) and procedures generally applicable to all persons administratively discharged or released from active military, naval, or air

service under other than honorable conditions; and

(B) any such person shall be afforded an opportunity

to apply for such review under such section 1553 for a

period of time terminating not less than one year after

the date on which such uniform standards and procedures are promulgated and published.

(2)

Notwithstanding any other provision of law –

(A) no person discharged or released from

active military, naval, or air service under other

than honorable conditions who has been awarded

a general or honorable discharge under revised

standards for the review of discharges, (i) as implemented by the President’s directive of January

19, 1977, initiating further action with respect to

the President’s Proclamation 4313 of September

16, 1974, (ii) as implemented on or after April 5,

1977, under the Department of Defense’s special

discharge review program, or (iii) as implemented

subsequent to April 5, 1977, and not made applicable to all persons administratively discharged or

released from active military, naval, or air service

under other than honorable conditions, shall be

entitled to beneﬁts under laws administered by

App. 58

the Secretary except upon a determination, based

on a case-by-case review, under standards (meeting the requirements of paragraph (1) of this subsection) applied by the board of review concerned

under section 1553 of title 10, subject to review by

the Secretary concerned, that such person would

be awarded an upgraded discharge under such

standards; and

(B) such determination shall be made by

such board (i) on an expedited basis after notiﬁcation by the Department to the Secretary concerned

that such person has received, is in receipt of, or

has applied for such benefits or after a written

request is made by such person or such determination, (ii) on its own initiative before October 9,

1978, in any case where a general or honorable discharge has been awarded before October 9, 1977,

under revised standards referred to in clause

(A)(i), (ii), or (iii) of this paragraph, or (iii) on its

own initiative at the time a general or honorable

discharge is so awarded in any case where a general or honorable discharge is awarded after October 8, 1977.

If such board makes a preliminary determination

that such person would not have been awarded an upgraded discharge under standards meeting the requirements of paragraph (1) of this subsection, such person

shall be entitled to an appearance before the board, as

provided for in section 1553(c) of title 10, prior to a ﬁnal

determination on such question and shall be given

written notice by the board of such preliminary determination and of the right to such appearance. The

Secretary shall, as soon as administratively feasible,

App. 59

notify the appropriate board of review of the receipt of

beneﬁts under laws administered by the Secretary, or

of the application for such beneﬁts, by any person

awarded an upgraded discharge under revised standards referred to in clause (A)(i), (ii), or (iii) of this

paragraph with respect to whom a favorable determination has not been made under this paragraph.

Department of Veterans Affairs Regulation

(1946)

1064. (A) CHARACTER OF DISCHARGE UNDER

PUBLIC NO. 2, 73D CONGRESS. [AS AMENDED,

AND UNDER PUBLIC NO. 346, 78TH CONGRESS.—

To be entitled to compensation or pension under Veterans Regulation No. 1 (a), as amended, the period of active service upon which claim is based must have been

terminated by discharge or release under conditions

other than dishonorable. In other words beneﬁts under

Public No. 2, 73d Congress, and No. 346, 76th Congress, are barred where the person was discharged under dishonorable conditions. The requirement of the

words “dishonorable conditions” will be deemed to have

been met when it is shown that the discharge or separation from active military or naval service was (1) for

mutiny, (2) spying or (3) for an offense involving moral

turpitude or wilful and persistent misconduct, of which

convicted by a civil or military court: Provided, however, That where service as otherwise honest, faithful

and meritorious a discharge or separation other than

App. 60

dishonorable because of the commission of a minor offense will not be deemed to constitute discharge or separation under dishonorable conditions.

the terms of section 1503, Public No 346, 78th Congress, be a bar to beneﬁts under Public No. 2, 73d Congress, as amended, and Public No. 346, 78th Congress.

as it will be considered the discharge was under dishonorable conditions.

(D) An undesirable or blue discharge issued because of homosexual acts or tendencies generally will

be considered as under dishonorable conditions and a

bar to entitlement under Public No. 2, 73d Congress,

as amended, and Public No. 346, 78th Congress. However, the facts in a particular case nay warrant a different conclusion, in which event the case should be

submitted to central ofﬁce for the attention and consideration of the director of the service concerned. (As

to the effect of alienage see S. & P. R-1001 (J)). (August

9, 1946.)

38 C.F.R. § 3.1 Definitions.

(d) Veteran means a person who served in the

active military, naval, or air service and who was

App. 61

discharged or released under conditions other than

dishonorable.

(n) Willful misconduct means an act involving

conscious wrongdoing or known prohibited action. A

service department finding that injury, disease or

death was not due to misconduct will be binding on the

Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws

administered by the Department of Veterans Affairs.

(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.

(2) Mere technical violation of police regulations

or ordinances will not per se constitute willful misconduct.

(3) Willful misconduct will not be determinative

unless it is the proximate cause of injury, disease or

death. (See §§ 3.301, 3.302.)

38 C.F.R. § 3.12 Character of discharge.

(a) If the former service member did not die in

service, pension, compensation, or dependency and indemnity compensation is not payable unless the period

of service on which the claim is based was terminated

by discharge or release under conditions other than

App. 62

dishonorable. (38 U.S.C. 101(2)). A discharge under

honorable conditions is binding on the Department of

Veterans Affairs as to character of discharge.

service member was discharged or released under one

of the following conditions:

(1) As a conscientious objector who refused to

perform military duty, wear the uniform, or comply

with lawful order of competent military authorities.

(2) By reason of the sentence of a general courtmartial.

(3) Resignation by an ofﬁcer for the good of the

service.

(4)

As a deserter.

(5) As an alien during a period of hostilities,

where it is afﬁrmatively shown that the former service

member requested his or her release. See § 3.7(b).

(6) By reason of a discharge under other than

honorable conditions issued as a result of an absence

without ofﬁcial leave (AWOL) for a continuous period

of at least 180 days. This bar to beneﬁt entitlement

does not apply if there are compelling circumstances to

warrant the prolonged unauthorized absence. This bar

applies to any person awarded an honorable or general

discharge prior to October 8, 1977, under one of the

programs listed in paragraph (h) of this section, and

to any person who prior to October 8, 1977, had not

App. 63

otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term

established basic eligibility to receive Department of

Veterans Affairs benefits means either a Department

of Veterans Affairs determination that an other than

honorable discharge was issued under conditions other

than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under

criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. However,

if a person was discharged or released by reason of the

sentence of a general court-martial, only a ﬁnding of

insanity (paragraph (b) of this section) or a decision of

a board of correction of records established under 10

U.S.C. 1552 can estalish basic eligibility to receive Department of Veterans Affairs beneﬁts. The following

factors will be considered in determining whether

there are compelling circumstances to warrant the prolonged unauthorized absence.

(i) Length and character of service exclusive of

the period of prolonged AWOL. Service exclusive of the

period of prolonged AWOL should generally be of such

quality and length that it can be characterized as honest, faithful and meritorious and of beneﬁt to the Nation.

(ii) Reasons for going AWOL. Reasons which are

entitled to be given consideration when offered by the

claimant include family emergencies or obligations, or

similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated

in terms of the person’s age, cultural background,

App. 64

educational level and judgmental maturity. Consideration should be given to how the situation appeared to

the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat

wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered

in evaluating the person’s state of mind at the time the

prolonged AWOL period began.

(iii) A valid legal defense exists for the absence

which would have precluded a conviction for AWOL.

Compelling circumstances could occur as a matter of

law if the absence could not validly be charged as, or

lead to a conviction of, an offense under the Uniform

Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive

issue of absence rather than to procedures, technicalities or formalities.

(d) A discharge or release because of one of the

offenses speciﬁed in this paragraph is considered to

have been issued under dishonorable conditions.

(1) Acceptance of an undesirable discharge to escape trial by general court-martial.

(2)

Mutiny or spying.

(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.

(4) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of

App. 65

willful and persistent misconduct. A discharge because

of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise

honest, faithful and meritorious.

(5) Homosexual acts involving aggravating circumstances or other factors affecting the performance

of duty. Examples of homosexual acts involving aggravating circumstances or other factors affecting

the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts

or conduct taking place between service members of

disparate rank, grade, or status when a service member has taken advantage of his or her superior rank,

grade, or status.

(e) An honorable discharge or discharge under

honorable conditions issued through a board for correction of records established under authority of 10 U.S.C.

1552 is ﬁnal and conclusive on the Department of Veterans Affairs. The action of the board sets aside any

prior bar to beneﬁts imposed under paragraph (c) or

(d) of this section.

(f ) An honorable or general discharge issued

prior to October 8, 1977, under authority other than

that listed in paragraphs (h)(1), (2) and (3) of this section by a discharge review board established under 10

U.S.C. 1553 set aside any bar to beneﬁts imposed under

paragraph (c) or (d) of this section except the bar contained in paragraph (c)(2) of this section.

App. 66

(g) An honorable or general discharge issued on

or after October 8, 1977, by a discharge review board

established under 10 U.S.C. 1553, sets aside a bar to

beneﬁts imposed under paragraph (d), but not paragraph (c), of this section provided that:

(1) The discharge is upgraded as a result of an

individual case review;

(2) The discharge is upgraded under uniform

published standards and procedures that generally apply to an persons administratively discharged or released from active military, naval or air service under

conditions other than honorable; and

(3) Such standards are consistent with historical

standards for determining honorable service and do

not contain any provision for automatically granting or

denying an upgraded discharge.

(h) Unless a discharge review board established

under 10 U.S.C. 1553 determines on an individual case

basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in

paragraph (g) of this section, an honorable or general

discharge awarded under one of the following programs does not remove any bar to beneﬁts imposed under this section:

(1) The President’s directive of January 19, 1977,

implementing Presidential Proclamation 4313 of September 16, 1974; or

(2) The Department of Defense’s special discharge review program effective April 5, 1977; or

App. 67

(3) Any discharge review program implemented

after April 5, 1977, that does not apply to all persons

administratively discharged or released from active

military service under other than honorable conditions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.