Widow of Veteran Not Eligible for VA Benefits Because Veteran Received Dishonorable Discharge

The United States Court of Appeals for the Federal Circuit held that the widow of veteran was not eligible for VA compensation and death benefits because veteran received a dishonorable discharge. Garvey v. Wilkie (Court of Appeals Federal Circuit 08/28/2020)

John P. Garvey served in the Army from 1966 to 1970. After training, Garvey was posted to Germany, where he served until November 1967. While in Germany, Garvey was punished for “disorderly conduct.” Then, in December 1967, Garvey was posted to Vietnam, where his record deteriorated significantly. Because of events of misconduct, Garvey was discharged as unfit for service in 1970, with an “Undesirable Discharge.”

In 1977, under the Special Discharge Review, Garvey’s discharge status was upgraded to “Under Honorable Conditions (General).” However, in 1978, a Discharge Review Board found that Garvey would not have been entitled to an up-grade under generally applicable standards. As a result, Garvey from prevented from receiving benefits on the basis of his upgraded status.

Diana Garvey married John Garvey in 1979. John Garvey died in 2010. In 2012, Mrs. Garvey applied for dependency and indemnity compensation and death pension benefits on the basis of John Garvey’s service.

In 2018, the Board of Veterans’ Appeals (“Board”) denied Mrs. Garvey’s claim. The Board concluded that her husband was ineligible for benefits because he was discharged for “willful and persistent misconduct,” which under military statutes is a bar to benefits. In 2019, the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirmed the Board’s decision, rejecting Mrs. Garvey’s contention that the “willful and persistent misconduct” bar is contrary to statute.

Mrs. Garvey appealed. On appeal Mrs. Garvey did not dispute that her husband was discharged for willful and persistent misconduct, or that this rendered him ineligible for benefits under the regulations. However, Mrs. Garvey asserted that the statute lists six situations where a former service member is barred from receiving veterans’ benefits but does not list “willful and persistent misconduct” as one of the statutory bars. Therefore, her claim for VA benefits should have been approved.

The United States Court of Appeals for the Federal Circuit affirmed the denial of benefits. The court held that the section cited by Mrs. Garvey is not the exclusive test for benefits ineligibility. Because the VA was authorized to define the discharge status for “willful and persistent misconduct” as under “dishonorable conditions” pursuant to statute, the court said Mrs. Garvey was precluded from benefits. Per the court, the “willful and persistent misconduct” standard is consistent with the mandate of denying benefits to those who committed serious misconduct during service even if the service member did not receive a dishonorable discharge.

The case is annexed here – [gview file=”https://vanarellilaw.com/wp-content/uploads/2020/08/Garvey-v.-Secretary-of-Veterans-Affairs.pdf”]

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