Disciplined in Sophisticated Defense and Insurance Litigation


On January 5, 2017, the United States Court of Appeals for Veterans Claims rejected the assertion by the Veteran’s Administration (VA) and the Board of Veterans Appeals (the Board) that a service member who requested a discharge in Lieu of Court Martial after an unauthorized absence of 42 days was barred from seeking veteran’s benefits for an injury he had suffered on active duty. The Court’s decision in favor of the veteran ended ten years of pro bono litigation that included three separate appeals to the Court, two petitions for extra ordinary relief in response to lengthy unexplained delays in the VA’s action on the claim and three remands for error to the Board and the VA.  More importantly, the decision rejected as without basis the factual assumptions that had been employed by both the VA and the Board to bar benefits to injured service members. 

Mr. Bruce had been awarded another than honorable discharge in 1988 following his request for a discharge to in lieu of trial for his unauthorized absence.  The VA and the Board asserted that Mr. Bruce’s subsequent claim for the consequences of his in-service injury was barred by 38 C.F.R. § 3.12(d)(1). The regulation provides that veterans benefits are not due if the claimant was issued an undesirable discharge to escape trial by General Court Martial.  Mr. Bruce asserted that the regulation did not preclude his status as a veteran because he had never been referred to a General Court Martial and the record contained no evidence that his military superiors ever contemplated referring his unauthorized absence to a General Court Martial.

Given the language of the regulation cited by the VA in its denial, the Court found that a determination of what type of court-martial Mr. Bruce accepted an ther-than-honorable discharge “in lieu of,” was particularly relevant.  The Court repeatedly vacated the Board’s decisions denying Mr. Bruce’s claim for lack of evidence that would support the Board’s assertion that Mr. Bruce had been facing a General Court Martial when he made his discharge request. 

In response to each remand, the VA and the Board repeatedly denied the claim asserting that the offense itself proved that Mr. Bruce had been facing trial by General Court Martial when he made his request.  In the absent any evidence concerning the type of court martial that was contemplated by Mr. Bruce’s military superiors, the VA and the Board asserted that, as Mr. Bruce’s absence was longer than 30 days, he was “subject to a General Court-Martial” because one of the potential punishments contained within the table of maximum punishments for that offense, a dishonorable discharge, could only be administered by a General Court Martial.

In vacating the Board’s latest decision on January 7, 2017, the Court rejected the Board’s assertion that the maximum punishment authorized for Mr. Bruce’s 42 day unauthorized absence established that he requested his discharge to escape trial by General Court Martial.  The Court found that nothing in the Board's decision or in the record on appeal demonstrated or suggested that it was more likely that Mr. Bruce would have faced a General Court Martial rather than a Special Court Martial.  Accordingly, the court found that Mr. Bruce had met his burden of establishing his status as a veteran by an “approximate balance of positive and negative evidence” and remanded the matter for the VA to adjudicate the merits of Mr. Bruce’s claim for entitlement to service connection for his left foot injury. 

By rejecting the VA and the Board’s assertion that the character of the court martial at issue can be established solely on the basis of potential punishments listed in the table of maximum punishments, the Court of Appeals for Veteran’s Claims has ended the VA’s misapplication of 38 C.F.R. § 3.12(d)(1) and opened the door to other veterans whose claims would otherwise have been wrongfully denied. 

It is important to note, however, that the Court’s decision on behalf of Mr. Bruce was based upon the Court’s rejection of the Board’s “factual” findings in this case.  Time will tell whether the VA and the Board of Veterans Appeals will heed the Court’s decision and abandon the factual presumption employed in Mr. Bruce’s case or whether every service member’s claim will have to be fought year by year – as Mr. Bruce was forced to do – on the basis of the same “factual presumption” employed by the VA and the Board in this case.

John V. Garaffa

A Partner at Butler Weihmuller Katz Craig LLP in Tampa, FL. John practices in our Construction, Cyber Losses, Extra-Contractual, First-Party Coverage, and Third-Party Coverage departments.

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