On Monday the Court of Appeals for the Federal Circuit rejected a claim for veterans’ benefits by a petitioner who twice went UA from the Army during the Vietnam era, leading first to a special court-martial, and then to a general court-martial where he received a bad-conduct discharge. Prior to his discharge he suffered hearing loss while working with artillery, was hospitalized, and was issued a hearing aid. After his discharge he sought veterans’ benefits for his hearing loss, but the VA denied the claim due to the circumstances of his discharge. The petitioner then participated in President Ford’s clemency program, leading to a clemency discharge and a full pardon, and reapplied for benefits. But the VA again denied the claim, and the Court of Appeals for Veterans Claims affirmed, based on the underlying misconduct. The Federal Circuit affirms the Veterans Court.

The case is Robertson v. Gibson, No. 2013–7103, __ F.3d. __ (Fed. Cir. Jul. 21, 2014) (link to slip op.).

The opinion begins with a history lesson about the clemency program:

On September 16, 1974, six weeks after taking office, President Ford announced “a Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” Proclamation 4313, 39 Fed. Reg. 33,293, 33,293–95 (Sept. 17, 1974). Its stated purpose was “to bind the Nation’s wounds and to heal the scars of divisiveness” inflicted upon American society during the Vietnam War. Id. at 33,293. Accordingly, President Ford declared that Vietnam-era military deserters and draft evaders would be given “the opportunity to earn return to their country, their communities, and their families, upon their agreement to a period of alternate service in the national interest, together with an acknowledgment of their allegiance to the country and its Constitution.” Id. The President’s program was carefully crafted, recognizing that “[u]nconditional amnesty would have created more ill feeling than it would have eased. Reconciliation was what was needed, and reconciliation could only [have] come from a reasoned middle ground.” PCB Report 1.

Slip op. at 3. The petitioner participated in the program and received “full pardon pursuant to an executive grant of conditional clemency.” Slip op. at 8. He “relies heavily on the fact that the document [he recieved] contains the phrase ‘full pardon.'” Slip op. at 11. But the court finds that “when read in context, there can be little doubt that Mr. Robertson’s pardon was intended to have limited effect with respect to his entitlement to veterans’ benefits.” Slip op. at 13. It notes that the petitioner “had not previously acquired any right to veterans’ benefits at the time of his pardon. In fact, whether Mr. Robertson might have been eligible for veterans’ benefits absent his 1967 AWOL conviction is entirely speculative because he had nearly a year remaining on his term of service at the time of his discharge.” Slip op. at 14. And it finds that under President Ford’s clemency program, “entitlement to veterans’ benefits under the program was meant to be the exception, not the rule.” Slip op. at 14.

The court concludes:

Nevertheless, pardoned individuals, like Mr. Robertson, remained eligible to apply for benefits from the VA and to appeal if the VA denied their applications. PCB Report 13. Similarly, applicants remained eligible to seek further upgrades to their discharge statuses from the appropriate military review boards. Id.; see also 10 U.S.C. § 1552 (1970). In fact, Mr. Robertson sought such an upgrade, but the ABCMR noted that “his record of service . . . did not meet the standards of acceptable conduct and performance of duty for Army personnel for the Board to grant his current request.” J.A. 574.

Slip op. at 15.

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