Robertson v. Gibson, 759 F.3d 1351 (July 21, 2014)
CLEMENCY DISCHARGE & VA BENEFITS
Held: The language of a clemency discharge must be read in the context of the program through which it was issued, and, when read in that context, such “pardon does not preclude the VA from considering the conduct underlying [a] less than honorable discharge” when assessing entitlement to VA benefits. 759 F.3d at 1357.
This case affirms the CAVC’s holding in Robertson v. Shinseki, 26 Vet.App. 169 (2013). The veteran in this case received an other-than-honorable discharge after two periods of AWOL, the last one for over 300 days. He received a presidential pardon and clemency discharge under President Ford’s clemency program and applied for VA benefits. He was repeatedly denied based on VA’s review of the circumstances surrounding his discharge. The CAVC affirmed the Board’s denial, and the veteran appealed to the Federal Circuit. The Federal Circuit framed the issue as “whether the clemency discharge and presidential pardon received by Mr. Robertson removed any potential bar to benefits caused by the misconduct that led to his discharge under other than honorable conditions.” Id. at 1356. The Court found that the “pardon was intended to have limited effect with respect to his entitlement to veterans’ benefits” and held that while pardoned individuals can apply for and appeal denials of VA benefits, the pardon itself does not prevent VA from considering the conduct that resulted in the other-than-honorable discharge when determining entitlement to VA benefits. Id. at 1358.