Clarence W. King v. Eric K. Shinseki
26 Vet. App. 484
Vet. App.2014Background
- Clarence W. King served Nov. 22, 1966–Aug. 10, 1967; went AWOL to care for his wife, was court-martialed, confined, and discharged "under conditions other than honorable," later upgraded to "under honorable conditions (general)" by an Army review board.
- Updated DD-214s show "time lost" under 10 U.S.C. § 972 and list only 1 month, 9 days of net active service creditable for pay; eligibility for VA pension requires 90 days of active wartime service.
- King applied for a non-service-connected pension in Jan. 2006; the RO initially granted benefits after obtaining a terse Army verification that "all service information has been verified as correct."
- In Apr.–Jan. 2008 VA proposed and then discontinued pension benefits, concluding the initial award was clear and unmistakable error because King lacked 90 days of creditable service.
- The Board affirmed denial in Feb. 2012, reasoning that days lost under § 972 cannot be counted as active service; King appealed arguing VA failed to satisfy its mandatory duty under 38 C.F.R. § 3.203(c) to obtain a complete statement of service when length of service was in doubt.
Issues
| Issue | King’s Argument | Secretary’s Argument | Held |
|---|---|---|---|
| Whether VA was required to obtain a "complete statement of service" under 38 C.F.R. § 3.203(c) before denying pension where DD-214 did not clearly show 90 days of creditable service | § 3.203(c) mandates VA request a complete statement when length of service may not be met; VA failed to obtain it | § 3.203(b) permitted accepting the DD-214 because it showed 4+ months of service overall; § 3.203(c) not triggered | Court held § 3.203(c) is mandatory; VA had to obtain a complete statement because the DD-214 did not establish 90 days of creditable service and VA’s verification was insufficient |
| Proper scope of "service of 4 months or more" in § 3.203(b) — whether it includes non‑creditable time (e.g., AWOL, § 972 time) | The phrase is limited to creditable service under § 3.15 that counts toward pension eligibility | It includes total service (including time excluded under § 3.15), so VA could rely on overall 4+ months shown | Court held "service of 4 months or more" refers to creditable service that counts toward the 90‑day wartime requirement |
| Whether VA’s prior verification (asking Army only to confirm dates; Army replied "all service information has been verified as correct") satisfied § 3.203(c) | That terse response did not constitute a "complete statement of service" required when eligibility is in doubt | Verification had been requested and received; no further development required | Court held the verification fell short of the § 3.203(c) mandatory requirement and was inadequate |
| Remedy for VA’s failure to follow § 3.203(c) before severing pension | Reinstate the pension because the severance was procedurally defective and void ab initio | VA contends further relief is unnecessary; Army correction board is the remedy for disputes about DD-214 content | Court reversed and remanded, ordering reinstatement of the pension effective Feb. 1, 2008; any new severance must comply with law and obtain the complete service statement |
Key Cases Cited
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir. 2003) (regulation interpretation reviewed de novo)
- Brown v. Gardner, 513 U.S. 115 (1994) (plain meaning of regulatory language controls)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulation when ambiguous)
- Corley v. United States, 556 U.S. 303 (2009) (interpretive canon that statutes/regulations should be construed to give effect to all provisions)
- Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (harmless‑error analysis requires examining omitted records to determine prejudice)
- Schafrath v. Derwinski, 1 Vet.App. 589 (1991) (vacating improper reductions and ordering reinstatement where agency failed to comply with law)
- Brown v. Brown, 5 Vet.App. 413 (1993) (reversing improper reduction of benefits and remanding for reinstatement)