Friday, March 15, 2013

Robertson v. Shinseki (clemency discharge and entitlement to VA benefits)

Robertson v. Shinseki, docket no. 11-3521 (Vet. App. Mar. 15, 2013) 

Any failure on the part of VA to fully explain its character-of-discharge determination cannot be “clear and unmistakable error” because it is simply a breach of VA’s duty to assist. This case also reaffirmed prior holdings that a Presidential pardon only relieves the legal punishment of a general court-martial conviction, “but does not eliminate the consideration of the conduct” that resulted in conviction. In other words, a clemency discharge does not automatically entitle a veteran to VA benefits. VA is still allowed to consider the conduct that resulted in the discharge when considering eligibility to VA benefits.

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