26 Vet. App. 169
Vet. App.2013Background
- Robertson appeals an August 1, 2011 Board decision denying CUE in a March 1977 RO decision and denying reopening of a hearing-loss claim based on discharge character.
- Robertson served 1963–1967; two AWOL episodes led to a bad conduct/undesirable discharge; a clemency discharge and Presidential pardon were later issued in mid-1976.
- March 1977 RO decision precluded VA benefits due to discharge status; no consideration of clemency discharge or pardon in that decision is shown.
- ABCMR denied upgrade in May 1978; Robertson repeatedly attempted to reopen (1981, 1984, 1991, 1998, 2004, 2006, 2007–2008).
- VA consistently held clemency discharge/pardon do not automatically entitle benefits; prior denials became final.
- Board upheld denial of CUE and of reopening absent evidence of discharge upgrade; issues were intertwined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 1977 RO decision contains CUE | Robertson contends CUE due to lack of formal character-of-discharge determination and improper consideration of a pardoned conduct. | Robertson bears burden; denial did not manifestly change outcome; CUE not shown. | No CUE in March 1977 decision. |
| Effect of Presidential pardon on VA discharge analysis | Pardon blots out conduct and removes VA bar to benefits. | Pardon relieves legal disabilities but does not erase underlying conduct; did not change outcome. | Pardon does not blot out the conduct for VA purposes; argument fails. |
| Whether Board erred in applying 38 C.F.R. § 3.12(d)(4) and related regs to March 1977 decision | Board misapplied current/retroactive provisions; § 3.12(c)(6) and § 3.12(h) not applicable at the time. | March 1977 decision could be supported under § 3.12(d)(4) as willful/persistent misconduct; § 3.12(h) added later is non-prejudicial. | Board's analysis consistent with law then in effect; cited § 3.12(h) error is harmless. |
| Whether new and material evidence exists to reopen the hearing-loss claim | Clemmency/pardon materials and pardon attorney notes are new and material re: discharge status. | Evidence is not new/material; it restates previously submitted theory about pardon. | No new and material evidence to reopen. |
| Whether any error in Board citation to § 3.12(h) warrants remand | Citation to § 3.12(h) shows error that could affect outcome. | Error is boilerplate and not outcome-determinative; remand not warranted. | Remand not warranted; error harmless. |
Key Cases Cited
- Grover v. West, 12 Vet.App. 109 (1999) (CUE standard and required showing of outcome change)
- Damrel v. Brown, 6 Vet.App. 242 (1994) (CUE elements and timely finality considerations)
- Russell v. Principi, 3 Vet.App. 310 (1992) (en banc; framework for CUE and outcome determinative error)
- Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (must show manifestly changed outcome to prove CUE)
- Eddy v. Brown, 9 Vet.App. 52 (1996) (reasoned discussion of Board determinations and law)
- Hilkert v. West, 12 Vet.App. 149 (1999) (burden on claimant to show error; finality considerations)
- Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (duty to assist; breach not CUE)