Robertson v. Gibson

United States Court of Appeals
for the Federal Circuit
______________________

TONY W. ROBERTSON,
Claimant-Appellant,

v.

SLOAN D. GIBSON,
Acting Secretary of Veterans Affairs,
Respondent-Appellee.
______________________

2013-7103
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3521, Judge Margaret C.
Bartley.
______________________

Decided: July 21, 2014
______________________

NATHAN S. MAMMEN, Kirkland & Ellis LLP, of Wash-
ington, DC, argued for claimant-appellant. With him on
the brief was RACHEL E. GOLDSTEIN.

MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. On the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and SCOTT D. AUSTIN, Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
2 ROBERTSON v. GIBSON

Assistant General Counsel, and RACHAEL T. BRANT,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.

MEGAN F. RAYMOND and PAUL M. SCHOENHARD, Ropes
& Gray, LLP, of Washington, DC, for amicus curiae,
National Institute of Military Justice.
______________________

Before O’MALLEY and HUGHES, Circuit Judges. *
HUGHES, Circuit Judge.
During the Vietnam War era and after having served
a period of confinement for being absent without leave,
Tony W. Robertson was discharged from the Army under
conditions other than honorable, a character of discharge
that can foreclose the receipt of veterans’ benefits. He
subsequently participated in President Ford’s clemency
program and received a presidential pardon and a new
clemency discharge. Despite his pardon and clemency
discharge, the Department of Veterans Affairs has con-
tinued to deny Mr. Robertson’s claim for veterans’ bene-
fits. We must decide whether the presidential pardon
precludes the Department of Veterans Affairs from rely-
ing on Mr. Robertson’s underlying misconduct in making
a benefits decision. Because we conclude that the De-
partment of Veterans Affairs properly considered the
misconduct underlying his pardoned offense to deny his
application for benefits, we affirm.
I
Roughly 13,000 civilians and 100,000 service mem-
bers committed draft or military absence offenses during

* Randall R. Rader, who retired from the position of
Circuit Judge on June 30, 2014, did not participate in this
decision.
ROBERTSON v. GIBSON 3

the Vietnam War era. U.S. Presidential Clemency Board,
Report to the President xi (1975) [hereinafter PCB Report],
available at http://catalog.hathitrust.org/Record/
002482729. 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 divi-
siveness” 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, recogniz-
ing 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.
To help administer the program, President Ford es-
tablished a Presidential Clemency Board (PCB). See
Executive Order 11803, 39 Fed. Reg. 33,297, 33,297–98
(Sept. 17, 1974). Its role was to advise the President how
he should exercise his discretion to grant clemency under
Article II, Section 2, of the Constitution. Clemency Pro-
gram Practices and Procedures: Hearings Before the
Subcomm. on Admin. Practice and Procedure of the
Comm. on the Judiciary, 93d Cong. 14 (1975) [hereinafter
PCB Hearings] (statement of Charles E. Goodell, Director,
Presidential Clemency Board), available at
http://catalog.hathitrust.org/Record/003217893.
The PCB was guided by several core principles. For
one, the PCB recognized that the President was granting
clemency, not amnesty, and that clemency was to be
4 ROBERTSON v. GIBSON

determined on a case-by-case basis, not through a categor-
ical approach. Id. at 2–3. Accordingly, the PCB made
findings and recommendations in each case as to whether
the President should grant or deny clemency. Executive
Order 11803, 39 Fed. Reg. at 33,297; see also PCB Report
3; PCB Hearings 42. Among other things, the PCB exam-
ined applications for clemency from former servicemen,
like Mr. Robertson, who received undesirable discharges
for going absent without leave (AWOL) between the date
of the Gulf of Tonkin Resolution (August 4, 1964) and the
date the last American combatant left Vietnam (March
28, 1973). Executive Order 11803, 39 Fed. Reg. at 33,297;
PCB Report xi. In total, 13,589 of approximately 90,000
servicemen discharged for AWOL offenses applied. PCB
Report xiii.
These applicants not only suffered the social stigma
and employability problems caused by having a “bad
paper” discharge, they also carried a federal felony convic-
tion for violating military law. PCB Hearings 15. In part,
President Ford addressed these problems by pardoning
qualified applicants convicted for AWOL offenses. PCB
Report 186. But a pardon under the clemency program
“result[ed] in no more than a partial restoration of an
applicant’s records and rights, blotting out neither the
fact nor the record of his conviction.” Id. “The benefits of
a pardon [were] its restoration of the right to vote, hold
office, hold trade licenses, and enjoy other rights lost or
impaired by a felony conviction.” Id.; see also PCB Ad-
ministrative Procedures and Substantive Standards, 40
Fed. Reg. 12,763, 12,763 (Mar. 21, 1975). In addition,
survey evidence suggested that a pardon under President
Ford’s clemency program would improve employability.
See PCB Report 186.
The President could also upgrade an applicant’s unde-
sirable discharge status at least to a “clemency dis-
charge”—a new type of status created under the program.
Id. at 13, 186–87, 270. Granting a clemency discharge
ROBERTSON v. GIBSON 5

was intended to ensure equal employment opportunities
and to remove the stigma of a bad record. Id. at xii, 78,
186–87, 276. It did not confer veterans’ benefits. Procla-
mation 4313, 39 Fed. Reg. at 33,295; PCB Administrative
Procedures and Substantive Standards, 40 Fed. Reg. at
12,763; PCB Report xii, 186–87. Nor did it preclude
benefits. A clemency discharge was a neutral discharge
issued “neither under ‘honorable’ conditions nor under
‘other than honorable’ conditions.” PCB Report 13.
Accordingly, applicants remained eligible to seek veter-
ans’ benefits from the Department of Veterans Affairs and
to appeal if the VA denied those benefits. Id. Applicants
also remained eligible to seek further upgrades to their
discharge statuses from the appropriate military review
boards. Id.
Although the program generally had no direct effect
on an applicant’s eligibility for veterans’ benefits, the
President specifically granted veterans’ benefits in about
eighty particularly meritorious AWOL cases (approxi-
mately 0.6% of all AWOL cases). Id. at 140. These appli-
cants had, at a minimum, creditable service and one or
more tours in Vietnam. They were typically decorated
soldiers who had been wounded or disabled in combat or
whose absences could be excused in light of extraordinary
emotional trauma experienced during combat. See id.
For the vast majority of applicants, however, the Presi-
dent did not anticipate that the clemency discharge and
presidential pardon would provide entitlement to veter-
ans’ benefits. 1 See, e.g., PCB Administrative Procedures

1 Much later, on his last day of office, President
Ford directed the armed forces to provide benefits for
“former service members who were wounded in combat or
who received decorations for valor in combat in Vietnam
and who applied to the clemency program.” Memoran-
dum from Gerald R. Ford, President of the United States,
6 ROBERTSON v. GIBSON

and Substantive Standards, 40 Fed. Reg. at 12,763; PCB
Hearings 17.
II
Mr. Robertson voluntarily enlisted in the Army in Ju-
ly 1963. He was originally stationed in Germany, where
he suffered hearing loss while working with large artil-
lery. Medical professionals in Germany evaluated Mr.
Robertson’s condition and sent him back to the United
States for further treatment.
Following brief hospitalization for his injuries in May
1964, the Army issued Mr. Robertson a hearing aid and
ordered him to report to Fort Lee. When he failed to
report for duty, the Army dropped him from its rolls. Mr.
Robertson turned himself over to the authorities and
pleaded guilty to being AWOL for 39 days. He was con-
victed by a special court-martial of violating Uniform
Code of Military Justice Article 86, 10 U.S.C. § 886. For
that offense, the Army sentenced Mr. Robertson to three
months of hard labor and ordered him to forfeit $50 per
month during that period.
In March 1965, the Army reassigned Mr. Robertson to
Korat, Thailand, to serve as a warehouseman. There,
sometime around September 1965, he conceived a child

to the Secretary of the Army, Secretary of the Air Force,
and Secretary of the Navy (Jan. 19, 1977), available at
http://www.presidency.ucsb.edu/ws/?pid=5576. Congress
responded several months later with legislation “to deny
entitlement to veterans’ benefits to certain persons who
would otherwise become so entitled” due to President
Ford’s directive. Pub. L. No. 95-126, 91 Stat. 1106, 1106
(1977) (codified as amended at 38 U.S.C. § 5303(e)(1)); see
also Character of Discharge, 43 Fed. Reg. 15,152, 15,154
(Apr. 11, 1978) (codified as amended at 38 C.F.R.
§ 3.12(h)(1)).
ROBERTSON v. GIBSON 7

with a Thai woman named No Lee. Mr. Robertson alleg-
edly requested permission to marry Ms. Lee and to bring
her to the United States. According to Mr. Robertson,
however, his superior denied his request, threatening to
strip him of his rank and to confine him to a stockade in
Okinawa, Japan.
Mr. Robertson went AWOL from his post in Korat in
December 1965. According to him, he thought that going
AWOL was the only way to “make things right with [his]
child and [the child’s] mother.” J.A. 221–22, 600. During
his absence, Mr. Robertson joined Ms. Lee’s family in
Thailand and took a job teaching English at a Thai school.
Military police eventually apprehended him in October
1966. He had been AWOL for 313 days.
In January 1967, Mr. Robertson was tried and con-
victed by a general court-martial. As punishment, he
received a bad-conduct discharge. He was also sentenced
to hard labor for one year and ordered to forfeit his pay
and allowances during that time. Mr. Robertson served
his time at Fort Leavenworth and was discharged “Under
Conditions Other Than Honorable” in July 1967.
In January 1974, prior to the announcement of Presi-
dent Ford’s clemency program, Mr. Robertson filed a
claim for veterans’ benefits for his hearing loss. The VA
denied his claim because “[t]he circumstances surround-
ing [his] discharge from service preclude[d] consideration
for any VA benefit.” J.A. 714. The VA advised Mr. Rob-
ertson to appeal his discharge status to the Army Board
for Correction of Military Records (ABCMR).
In November 1975, Mr. Robertson inquired about par-
ticipation in President Ford’s clemency program. The
Selective Service advised him that to be eligible for a “full
pardon” he would have to work 40 hours per week for 3
months, 30 hours per week for 4 months, or 20 hours per
week for 6 months. Mr. Robertson enrolled in the pro-
gram and completed his period of alternative service by
8 ROBERTSON v. GIBSON

working at a landfill. He received a clemency discharge
on July 23, 1976, “in recognition of [his] satisfactory
completion of alternate service pursuant to Presidential
Proclamation 4313.” J.A. 198. On August 16, 1976, Mr.
Robertson also received a “full pardon pursuant to an
executive grant of conditional clemency . . . in furtherance
of Presidential Proclamation 4313.” J.A. 620.
After receiving his clemency discharge and pardon,
Mr. Robertson reapplied for veterans’ benefits in late
1976. The VA again determined that “[t]he circumstances
surrounding [his] discharge from service preclude[d]
consideration for any [VA] benefit.” J.A. 268. That de-
termination became final. Mr. Robertson then sought an
upgrade in discharge status from the ABCMR, which
denied his request in May 1978.
In 1981, Mr. Robertson tried to reopen his claim for
veterans’ benefits. The VA obtained copies of his clemen-
cy discharge and pardon but again denied his claim,
stating that “[t]he clemency discharge you received has no
effect on our previous decision.” J.A. 689. Over the next
25 years, Mr. Robertson renewed his claim five more
times—in 1984, 1991, 1998, 2004, and 2006—each time
with the same result. He did not appeal any of those
decisions, and they all became final.
In November 2007, Mr. Robertson filed yet another
request to reopen his claim, which the VA again denied.
This time, Mr. Robertson filed a notice of disagreement,
and the VA eventually issued a statement of the case.
With his case reopened, Mr. Robertson argued to the
Board of Veterans’ Appeals that the VA committed clear
and unmistakable error by denying his 1974 application
for veterans’ benefits. In Mr. Robertson’s view, the VA
was precluded from relying on his AWOL conviction and
consequent discharge to deny his application for benefits
because his pardon “blotted out” the offense. See J.A.
ROBERTSON v. GIBSON 9

183–85 (citing United States v. Klein, 80 U.S. (13 Wall.)
128, 147 (1871)).
The Board denied Mr. Robertson’s claim, and he ap-
pealed to the Court of Appeals for Veterans Claims. The
Veterans Court affirmed, concluding that the “broad
formulation” of the President’s pardoning power advanced
by Mr. Robertson was “premised on a line of early U.S.
Supreme Court cases” and no longer applied. Robertson v.
Shinseki, 26 Vet. App. 169, 176–79 (2013). Thus, accord-
ing to the Veterans Court, “the legal punishment of a
general court-martial conviction . . . d[id] not eliminate
the consideration of the conduct (being AWOL for 313
days) that led to that conviction.” Id. at 179. Mr. Robert-
son appeals the Veterans Court’s decision.
III
In this case, we must decide whether the clemency
discharge and presidential pardon received by Mr. Rob-
ertson remove any potential bar to benefits caused by the
misconduct that led to his discharge under other than
honorable conditions.
Eligibility for veterans’ benefits is conditioned on a
discharge or release “under conditions other than dishon-
orable.” 38 U.S.C. §§ 310, 331 (1976); 38 C.F.R. § 3.12(a)
(1976). An “honorable” discharge is binding on the VA
and entitles a veteran to benefits. 38 C.F.R. § 3.12(a), (e)
(1976). With respect to less than honorable discharges,
however, the VA must make a factual determination as to
whether a veteran was discharged under conditions other
than dishonorable. See generally id. § 3.12. For example,
veterans found to have been discharged or released for
conscientious objection, desertion, or by reason of a sen-
10 ROBERTSON v. GIBSON

tence of a general court-martial are generally not eligible
for benefits. 2 Id. § 3.12(c).
In this case, Mr. Robertson received a clemency dis-
charge, which is a neutral discharge issued “neither under
‘honorable’ conditions nor under ‘other than honorable’
conditions.” PCB Report 13. Accordingly, the VA was
required to determine whether Mr. Robertson was dis-
charged under conditions other than dishonorable. And,
based on Mr. Robertson’s service record, the Board con-
cluded that “the circumstances surrounding the appel-
lant’s discharge from service precluded consideration for
VA benefits.” J.A. 32. The Board further noted that
“neither the Clemency Discharge nor Full Presidential
Pardon changes the appellant’s character of discharge,
which is the pivotal issue at hand.” J.A. 31.
Mr. Robertson asserts that “[t]his case is about what
it means to be pardoned.” Appellant’s Br. 1. He contends
that his receipt of a “full” pardon and clemency discharge
prohibited the VA from considering his 1967 AWOL
offense and consequent discharge when reviewing his
application for veterans’ benefits. We disagree.
Contrary to Mr. Robertson’s assertion, this case is not
about what it means, generally, to be pardoned. This case
is about what Mr. Robertson’s specific pardon means in
this specific context of veterans’ benefits. See Ex parte
Wells, 59 U.S. (18 How.) 307, 310 (1855) (“Such a thing as

2 Although not applicable at the time of the VA’s
decision in March 1977, effective October 8, 1977, the VA
added that those “discharge[d] under other than honora-
ble conditions issued as a result of an absence without
official leave (AWOL) for a continuous period of at least
180 days” are generally not eligible for benefits. Charac-
ter of Discharge, 43 Fed. Reg. 15,152, 15,153–54 (Apr. 11,
1978) (codified as amended at 38 C.F.R. § 3.12(c)(6)).
ROBERTSON v. GIBSON 11

a pardon without a designation of its kind is not known in
the law. . . . [E]very pardon has its particular denomina-
tion.”). Because it is central to resolution of this case, we
quote the pardon in its entirety:
Gerald R. Ford President of the United States of
America has this day issued unto Tony Wilson
Robertson a full pardon pursuant to an executive
grant of conditional clemency on the thirty-first
day of October 1975 made subject to the perfor-
mance of certain conditions which have been ful-
filled, and has designated, directed and
empowered the attorney general as his repre-
sentative to sign this grant of executive clemency,
in furtherance of Presidential Proclamation 4313
of September 16, 1974, to the above who received
either a punitive or an undesirable discharge from
service in the Armed Forces of the United States
for having violated Article 85, 86, or 87 of the Uni-
form Code of Military Justice between August 4,
1964 and March 28, 1973, inclusive.
In accordance with these instructions and author-
ity I have signed my name and caused the seal of
the Department of Justice be affixed below and af-
firm that this action is the act of the President be-
ing performed at his direction. Done at the City of
Washington, District of Columbia this sixteenth
day of August 1976 by direction of the President.
[Signed by Edward H. Levi, Attorney General].
J.A. 620.
Mr. Robertson relies heavily on the fact that the doc-
ument contains the phrase “full pardon.” 3 Based on that,

3 Mr. Robertson suggests that his pardon was lim-
ited only by “certain conditions which have been fulfilled.”
12 ROBERTSON v. GIBSON

he cites to a line of authority suggesting the VA is pre-
cluded from relying on any of his pardoned misconduct to
deny his claim for veterans’ benefits. The VA responds
with its own interpretation of that line of authority. It
argues that, even in the context of a full pardon, the VA
may consider the underlying misconduct and character of
discharge when determining eligibility for benefits. We
need not resolve that dispute, however, because we con-
clude that the language of the pardon itself requires it to
be read in the context of President Ford’s program. And
when read in the context of that program, Mr. Robertson’s
pardon does not preclude the VA from considering the
conduct underlying his less than honorable discharge.
We begin by examining the plain language of Mr.
Robertson’s pardon, giving the words their ordinary
meaning. Cf. Moskal v. United States, 498 U.S. 103, 108
(1990) (“‘In determining the scope of a statute, we look
first to its language,’ giving the ‘words used’ their ‘ordi-
nary meaning.’” (citations omitted)). Despite using the
phrase “full pardon,” the remainder of the document
contains two limiting phrases. It notes that it is “pursuant
to an executive grant of conditional clemency” and later
references a “grant of executive clemency, in furtherance
of President Proclamation 4313 of September 16, 1974.”
J.A. 620 (emphasis added). Those two references strongly
suggest that Mr. Robertson’s “full pardon” must be read in
the context of the clemency program described by Presi-
dential Proclamation 4313. Accordingly, we cannot read
the pardon in a vacuum, as Mr. Robertson suggests. We
must also look to the nature and purpose of the pardon,

J.A. 620. In his view, the pardon having been granted “in
furtherance of Proclamation 4313” merely authorized the
Attorney General to sign the pardon on the President’s
behalf. Accordingly, Mr. Robertson asserts that his “full
pardon” is not limited in any way.
ROBERTSON v. GIBSON 13

namely, President Ford’s clemency program. Cf. Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774 (1992)
(examining the underlying purposes of the Lanham Act to
help interpret a statute enacted under that Act); Moskal,
498 U.S. at 114 (interpreting a statute based on the “plain
meaning of [its] words” and the “legislative purpose
underlying them”).
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.
See, e.g., PCB Administrative Procedures and Substantive
Standards, 40 Fed. Reg. at 12,763 (“The Veterans Admin-
istration and other agencies may extend veterans’ bene-
fits to some holders of a Clemency Discharge, but it is
contemplated that most will not receive veterans bene-
fits.”); PCB Report 162 (“A special upgrade panel was
created to make unnecessary the referral to the full Board
of cases involving recommendations for veterans’ benefits.
This upgrade referral rate came to be roughly three
percent of the total.”); PCB Hearings 17 (“The bulk of
these cases overwhelmingly would not receive veteran’s
benefits and the board would not recommend that they
do.”). The very rare instances in which the President did
provide veterans’ benefits to clemency program applicants
often involved decorated soldiers who had been wounded,
disabled, or traumatized in combat. See PCB Report 140.
Mr. Robertson was not such an applicant and did not
receive veterans’ benefits.
Mr. Robertson’s pardon does not change that result.
In the PCB’s view, “[a] pardon d[id] not change history,
and it d[id] not compensate for any rights or benefits,
legal or economic, that the individual had already lost.”
PCB Report 12; see also Ex parte Garland, 71 U.S. (4
Wall.) 333, 381 (1866) (“[T]o exclude [a pardoned individ-
ual], by reason of [his] offence, from continuing in the
enjoyment of a previously acquired right, is to enforce a
punishment for that offence notwithstanding the pardon.”
14 ROBERTSON v. GIBSON

(emphasis added)). Mr. Robertson 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.
The position Mr. Robertson advocates would effective-
ly turn President Ford’s clemency program on its head.
Entitlement to veterans’ benefits under the program was
meant to be the exception, not the rule. The President
provided benefits to AWOL offenders in only about 0.6%
of all AWOL cases by upgrading their discharge statuses.
See PCB Report 140. Although the President left the
remaining 99.4% of applicants with the same rights that
were available to them before being pardoned, such as the
right to apply to the VA for benefits, see PCB Report xii,
13, “it [wa]s contemplated that most w[ould] not receive
veterans benefits,” PCB Administrative Procedures and
Substantive Standards, 40 Fed. Reg. at 12,763; see also
PCB Hearings 16–17; Memorandum from Gerald R. Ford,
President of the United States, to the Secretary of the
Army, Secretary of the Air Force, and Secretary of the
Navy (Jan. 19, 1977) [hereinafter Armed Forces Memo-
randum], available at http://www.presidency.ucsb.edu/
ws/?pid=5576 (requesting veterans’ benefits for additional
participants in his clemency program, but only for those
who had been wounded in combat or who had received
decorations for valor in combat).
Under Mr. Robertson’s view, however, entitlement to
benefits under the President’s clemency program would
have been the rule, not the exception. Most applicants
would have been entitled to veterans’ benefits because, if
not for their AWOL offenses, their service records gener-
ally would not have justified a negative character of
discharge determination that would have supported a
denial of benefits. Moreover, if Mr. Robertson’s view were
ROBERTSON v. GIBSON 15

correct, the President would not have singled out particu-
larly deserving applicants to receive veterans’ benefits
under his clemency program. Nor would he have later
requested that veterans’ benefits be given to individuals
who had been wounded in combat or who had received
decorations for valor in combat. See Armed Forces Memo-
randum.
Nevertheless, pardoned individuals, like Mr. Robert-
son, 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.
IV
In view of the foregoing, Mr. Robertson’s pardon did
not preclude the VA from considering his 1967 AWOL
conviction and consequent discharge when determining
that he was not entitled to veterans’ benefits. The deci-
sion of the Veterans Court is therefore affirmed.
AFFIRMED
No costs.