Garvey v. Wilkie

Case: 20-1128 Document: 33 Page: 1 Filed: 08/27/2020

United States Court of Appeals
for the Federal Circuit
______________________

DIANA GARVEY,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2020-1128
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5059, Senior Judge Robert N.
Davis.
______________________

Decided: August 27, 2020
______________________

ROBERT C. BROWN, JR., Norman, OK, for claimant-ap-
pellant.

AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
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2 GARVEY v. WILKIE

Before LOURIE, SCHALL, and DYK, Circuit Judges.
DYK, Circuit Judge.
Diana Garvey is the widow of John P. Garvey. Mr. Gar-
vey 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 reg-
ulation. See 38 C.F.R. § 3.12(d)(4). Mrs. Garvey now chal-
lenges 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 au-
thorized by, the statute. Section 5303, contrary to
Mrs. Garvey’s assertion, is not the exclusive test for bene-
fits 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 au-
thorized 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.
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
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GARVEY v. WILKIE 3

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[el-
lent].” 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-mar-
tial 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 Novem-
ber 1968, Mr. Garvey was convicted by special court-mar-
tial 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 convic-
tions 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 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 considera-
tion of his case before a board of officers and acknowledged
that he “may be ineligible for many or all benefits as a vet-
eran under both Federal and State laws.” J.A. 66. On June
23, 1977, under the Special Discharge Review Program, a

1 Article 15 authorizes commanding officers to im-
pose certain “disciplinary punishments for minor offenses
without the intervention of a court-martial.” 10 U.S.C.
§ 815(b).
2 We capitalize formal discharge status (e.g., Honor-
able, Dishonorable, Undesirable, etc.).
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4 GARVEY v. WILKIE

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. How-
ever, on August 1, 1978, a Discharge Review Board found
that Mr. Garvey would not have been entitled to an up-
grade under generally applicable standards. The apparent
effect of this finding was to prevent Mr. Garvey from re-
ceiving 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 de-
pendency 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 con-
cluded 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 “will-
ful and persistent misconduct” bar, section 3.12(d)(4), is
contrary to statute.
Mrs. Garvey appealed to this court. We have jurisdic-
tion 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
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GARVEY v. WILKIE 5

decision of the [Veterans Court] that [this court] finds to
be . . . not in accordance with law.” Id. § 7292(d)(1)(A).
I
On appeal Mrs. Garvey does not dispute that Mr. Gar-
vey 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.
We have previously upheld the regulation in a two-par-
agraph non-precedential decision that affirmed the Veter-
ans 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’ bene-
fits, 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). Sec-
tion 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’ bene-
fits. 3 Section 5303 does not list “willful and persistent mis-
conduct” as one of its statutory bars.

3 Specifically, section 5303(a) provides that:
The discharge or dismissal [1] by reason of the sen-
tence of a general court-martial of any person from
the Armed Forces, or the discharge of any such per-
son [2] on the ground that such person was a con-
scientious objector who refused to perform military
duty or refused to wear the uniform or otherwise to
comply with lawful orders of competent military
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6 GARVEY v. WILKIE

Sections 101 and 5303 are implemented in 38 C.F.R.
§ 3.12. As relevant here, Rule 3.12(c) provides that “[b]en-
efits are not payable” under specified conditions. These in-
clude those listed in section 5303(a). 4 Mirroring the

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 resigna-
tion for the good of the service, or [6] (except as pro-
vided 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 ad-
ministered by the Secretary [of the VA]. . . .
38 U.S.C. § 5303(a).

4 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.
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GARVEY v. WILKIE 7

“conditions other than dishonorable” language of sec-
tion 101(2), Rule 3.12(a) provides that:
If the former service member did not die in service,
pension, compensation, or dependency and indem-
nity compensation is not payable unless the period
of service on which the claim is based was termi-
nated by discharge or release under conditions
other than dishonorable. (38 U.S.C. 101(2)). A dis-
charge 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 hon-
orable conditions, if it is determined that it
was issued because of willful and persis-
tent misconduct. A discharge because of a
minor offense will not, however, be

(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 re-
sult of an absence without official leave
(AWOL) for a continuous period of at least
180 days. . . .
38 C.F.R. § 3.12(c).
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8 GARVEY v. WILKIE

considered willful and persistent miscon-
duct if service was otherwise honest, faith-
ful 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 discharge sta-
tus might be, but is not necessarily, determinative of eligi-
bility 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 Dishon-
orable discharge is ineligible for benefits because a Dishon-
orable discharge is a discharge by sentence of a general
court-martial—a bar to benefits under Rule 3.12(c)(2). A
former servicemember’s discharge status is not determina-
tive, however, when it is neither “under honorable condi-
tions” 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 Exclud-
ing 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 interme-
diate discharge status who were discharged for “willful and
persistent misconduct” to have been discharged under “dis-
honorable conditions,” rendering them ineligible for veter-
ans’ benefits. 5 See 38 U.S.C. § 3.12(d)(4).

5 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
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GARVEY v. WILKIE 9

II
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 inel-
igible for benefits, it was improper for the VA to add a sev-
enth, 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 dishonora-
ble.” 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 “Dishon-
orable discharge” bar. Instead, it used the phrase “condi-
tions 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 ambigu-
ity of that phrase, we turn to the statute’s legislative his-
tory to determine its meaning. Adm’r, Fed. Aviation
Admin. v. Robertson, 422 U.S. 255, 263 (1975) (reasoning

been issued under dishonorable conditions.” 38 C.F.R.
§ 3.12(d).
6 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-under-
stood,” 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.
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10 GARVEY v. WILKIE

that an “unclear and ambiguous” statute “compell[ed] re-
sort to the legislative history”).
Section 5303 and the “conditions other than dishonor-
able” 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 ser-
vicemembers. However, not all former servicemembers
would be eligible. In the version of the G.I. Bill first intro-
duced in Congress, section 300 barred the provision of ben-
efits to servicemembers discharged for any of several
enumerated reasons, including discharge: (1) by sentence
of a court-martial (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

7 Specifically, as relevant here, section 300 stated
that:
The discharge or dismissal by reason of the sen-
tence 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 conscien-
tious objector who refused to perform military duty
or refused to wear the uniform or otherwise to com-
ply with lawful orders of a competent military au-
thority, or as a deserter, or of an officer by the
acceptance of his resignation for the good of the ser-
vice, 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).
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GARVEY v. WILKIE 11

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 pre-
requisite to entitlement to veterans’ benefits pro-
vided 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 re-
lease from active military or naval service. It pro-
vides that in order to be entitled to any veterans’
benefits provided by this act . . . a veteran must
have been discharged or released from active ser-
vice under conditions other than dishonorable . . . .
The amendment would remove a discrepancy in ex-
isting law which has been found to be highly unde-
sirable, . . . relating to hospitalization whereby a
veteran not dishonorably discharged may be enti-
tled to hospitalization benefits. In practice it has
been found that this permits most unworthy cases
to be hospitalized often to the detriment of persons
honorably discharged or discharged under condi-
tions other than dishonorable. It is believed that
the hospital facilities of the Veterans’ Administra-
tion should be maintained for veterans whose
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12 GARVEY v. WILKIE

service was honest and faithful or otherwise meri-
torious.
Further, the amendment will correct hardships un-
der 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 bene-
fits otherwise bestowed unless the offense was
such, as for example those mentioned in section
300 of the bill, as to constitute dishonorable condi-
tions. A dishonorable discharge is effected only as
a sentence of court martial, but in some cases of-
fenders 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 Sen-
ate floor. 90 Cong. Rec. 3075 (1944). There, the 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

8 “It is the sponsors that we look to when the mean-
ing of the statutory words is in doubt.” Edward J. DeBar-
tolo 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)).
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GARVEY v. WILKIE 13

amendment was adopted. He reasoned that a person with
poor conduct in the service might nevertheless be dis-
charged 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 servicemem-
ber 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 ver-
sion of the G.I. Bill would have restricted benefits to those

9 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), ex-
plained that:
The Congress did not want to use the words “hon-
orably discharged” or “discharged under honorable
conditions,” because it was felt that such an eligi-
bility requirement 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
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14 GARVEY v. WILKIE

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 dis-
honorable” 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 dishonora-
ble” 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 pro-
vided 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 “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] discharges was left to a determina-
tion 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 Dis-
charge Requirements for Veterans’ Benefits 15–16 (Comm.
Print 1956).
10 In a 1958 reorganization of veterans’ benefits stat-
utes, section 300 was codified at 38 U.S.C. § 3103(a). Pub.
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GARVEY v. WILKIE 15

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 inter-
preted to expressly delegate to the VA the interpretation of
“conditions other than dishonorable,” or instead the dele-
gation is implicit, we conclude that the VA has authority to
define the term consistent with the Congressional purpose.
Chevron, U.S.A., Inc. 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 dis-
charge 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.

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).
11 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 confer-
ence committee, section 606 was moved to section 607 and
revised to use the “under conditions other than dishonora-
ble” standard. H.R. Rep. No. 78-1624, at 13. Section 607
was part of the enacted G.I. Bill. G.I. Bill § 607. The cur-
rent definition of “veteran,” codified at 38 U.S.C. § 101, de-
rives from section 607 and was enacted in the 1958
reorganization of veterans’ benefits statutes. Pub. L. 85-
857 § 101, 72 Stat. at 1106.
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16 GARVEY v. WILKIE

§ 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 commit-
ted serious misconduct even if they did not receive a Dis-
honorable 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 Vi-
etnam-era servicemember with a discharge “Under Other
than Honorable Conditions” could obtain an upgrade to a
“general discharge under honorable conditions” if a Dis-
charge Review Board found that “such action is appropri-
ate 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 the [VA] as to character of discharge,” some service-
members who were ineligible for benefits (due, for example,
to the “willful and persistent misconduct” bar), would be-
come eligible because of their upgrade under the Program.
Congress concluded that this aspect of the Program
was unfair because it upgraded Vietnam-era servicemem-
bers but not other servicemembers, and because it unfairly
allowed those with problematic service records to obtain
veterans benefits. S. Rep. No. 95-305, 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 entitle-
ment to veterans’ benefits to certain persons who would
otherwise become so entitled solely by virtue of the

12 Mr. Garvey’s upgrade to an “Under Honorable Con-
ditions (General)” discharge status was under the Special
Discharge Review Program.
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GARVEY v. WILKIE 17

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-by-
case review by a Discharge Review Board, the VA deter-
mined that the veteran would have received the upgraded
discharge status even under generally applicable stand-
ards. Id. 13
The structure and purpose of the 1977 Act support the
“willful and persistent misconduct” bar. The Act presup-
poses that a servicemember discharged under less than
honorable conditions would, but for his or her upgrade un-
der the Program, not have been eligible for benefits in at
least some circumstances. At the time, the “willful and per-
sistent 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

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 hon-
orable discharge under revised standards for the
review of discharges . . . as implemented on or after
April 5, 1977, under the Department of Defense’s
special discharge review program . . . , shall be en-
titled to benefits under laws administered by the
Secretary except upon a determination, based on a
case-by-case review, under [uniform and histori-
cally consistent] standards . . . that such person
would be awarded an upgraded discharge under
such standards.
Case: 20-1128 Document: 33 Page: 18 Filed: 08/27/2020

18 GARVEY v. WILKIE

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. 95-305, 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 re-
main subject to the VA’s rules under his or her original dis-
charge status (absent a specific dispensation) suggests
approval of those rules, including the “willful and persis-
tent misconduct” bar.
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 per-
sistent misconduct, so Mrs. Garvey is not entitled to veter-
ans’ benefits. The decision of the Veterans Court is
AFFIRMED