[00:00:00] Speaker 00:
Okay, our next case is Cranford versus McDonough, 21-1973.

[00:00:07] Speaker 00:
Mr. Duhakis, your reserve is at three or four minutes for rebuttal.

[00:00:12] Speaker 04:
Three minutes, Your Honor.

[00:00:13] Speaker 00:
Three minutes.

[00:00:14] Speaker 00:
Okay, you may begin, sir.

[00:00:16] Speaker 04:
Thank you.

[00:00:16] Speaker 04:
May it please the Court, on behalf of Mr. Cranford, I thank this Court for the opportunity to present his appeal.

[00:00:22] Speaker 04:
This appeal presents this Court with a pure question of regulatory interpretation.

[00:00:27] Speaker 04:
Mr. Cranford does not challenge the VA's authority to promulgate Section 3.12.

[00:00:32] Speaker 04:
Can I ask you this?

[00:00:33] Speaker 04:
Yes, Your Honor.

[00:00:34] Speaker 03:
Are we talking about a difference in the composition of the group or just what the group is named?

[00:00:43] Speaker 04:
The name of it, Your Honor.

[00:00:48] Speaker 03:
The VA doesn't have control over what the Armed Services titles or discharges, right?

[00:00:54] Speaker 03:
Correct, Your Honor.

[00:00:55] Speaker 03:
In your view, every time the Armed Service changed the name of the discharge that applied to this group, until VA catches up,

[00:01:05] Speaker 03:
through whatever administrative procedure they have, and sometimes it takes a long time, the people under the new armed services name would somehow become eligible, even though they're in the exact same group.

[00:01:18] Speaker 04:
Not necessarily, Your Honor.

[00:01:20] Speaker 04:
In this case, yes.

[00:01:21] Speaker 04:
The VA has many tools at its disposal.

[00:01:23] Speaker 03:
No, no.

[00:01:24] Speaker 03:
But isn't that the thrust of your argument is if all we look at is the name, if tomorrow

[00:01:30] Speaker 03:
they decide to change the name and it takes the VA, even if they do it promptly, which they clearly didn't do here, but even if they do it promptly and it takes them a couple years to go through notice and comment update the name, the people in that two-year period will

[00:01:45] Speaker 03:
somehow now not be included in the other category because they were under a different name.

[00:01:50] Speaker 03:
Isn't that the logic of your argument?

[00:01:52] Speaker 04:
That is your honor, but it overlooks the fact that the VA in the regulation has many other ways of barring benefits for this particular service member's conduct or anybody else's.

[00:02:03] Speaker 04:
There's willful and persistent misconduct.

[00:02:04] Speaker 03:
But they don't have to do that, right?

[00:02:06] Speaker 03:
I mean, if what they say is we want to get at this category of people

[00:02:10] Speaker 03:
who essentially took plea bargains to avoid a court martial and we don't think they should get benefits, then they can do that, right?

[00:02:16] Speaker 03:
They don't have to go through a willful misconduct.

[00:02:18] Speaker 03:
They don't have to go through any of these other ways.

[00:02:21] Speaker 03:
They can do that.

[00:02:22] Speaker 03:
That's within their regulatory discretion, right?

[00:02:24] Speaker 04:
They can, Your Honor, with the terms of the regulation and by retaining the undesirable discharge.

[00:02:33] Speaker 03:
If VA had said... I just want to make clear because I wanted to make sure I didn't misunderstand your argument.

[00:02:37] Speaker 03:
You're not saying that somehow the change from undesirable to other than honorable has changed to that group that's referring to.

[00:02:47] Speaker 03:
It's referring to the same group.

[00:02:50] Speaker 04:
Generally speaking, yes, Your Honor.

[00:02:54] Speaker 04:
I think that's a correct statement.

[00:02:56] Speaker 04:
There may be some situations where that may not apply.

[00:02:58] Speaker 04:
But in a general sense, yes, that's a correct statement.

[00:03:02] Speaker 00:
So when there's a problem with particular veterans,

[00:03:05] Speaker 00:
And they're going to be charged under some article and court-martialed.

[00:03:12] Speaker 00:
They have the opportunity to enter some sort of plea agreement to avoid that.

[00:03:17] Speaker 04:
In some cases, yes, Your Honor.

[00:03:19] Speaker 00:
In this case, didn't your client agree in the plea agreement that by accepting the agreement that he was going to be barred from future service benefits?

[00:03:32] Speaker 04:
not exactly your honor he he would he agreed in the war he he had noticed your honor that he may be barred from benefits and when when and that's really why this case is so important because when he was excepting difference would it make it he had received notice that he he would be barred as opposed to me well that may have changed or would change somebody else's deterred decision on whether they were going to accept june this morning here

[00:04:01] Speaker 00:
that the plea was accepted on the potential of being barred and not the certainty.

[00:04:09] Speaker 04:
There's no argument, Your Honor, but the record shows that the terms of the plea agreement was that he may be barred from benefits.

[00:04:18] Speaker 03:
But isn't that just because the military branch is not the one who makes the benefits of the termination?

[00:04:23] Speaker 03:
Correct.

[00:04:23] Speaker 03:
So they're not going to put in the plea agreement.

[00:04:25] Speaker 03:
That's left to the secretary.

[00:04:27] Speaker 03:
But I didn't see that you were arguing this as a lack of notice or confusion.

[00:04:32] Speaker 03:
Because I think to do that, you would have to show that there was some change in the group, or the composition of the group, or that people didn't understand these to be equivalent.

[00:04:43] Speaker 03:
But from my reading of everything that's going on here, including all the comments to the proposed new regulation,

[00:04:51] Speaker 03:
When they refer to this, everybody assumes and agrees that this is the same group of people.

[00:04:56] Speaker 03:
It's people who accept a plea agreement in lieu of a court martial.

[00:05:00] Speaker 03:
And it changed the characterization from undesirable to other than honorable in the seventies.

[00:05:07] Speaker 03:
And there's probably a lot of reasons.

[00:05:09] Speaker 03:
I couldn't dig down far enough, but I'm guessing that it was probably wrapped up in the whole Vietnam era and the way you term people who

[00:05:20] Speaker 03:
went AWOL or deserted and all the pardons.

[00:05:22] Speaker 03:
There's a whole long complicated history.

[00:05:24] Speaker 03:
Maybe you can help me on that.

[00:05:26] Speaker 03:
But it's not a change in the group.

[00:05:29] Speaker 03:
It's a change in the name.

[00:05:31] Speaker 04:
It's not, Your Honor, but as you mentioned.

[00:05:33] Speaker 03:
So let me just to back up one more statement.

[00:05:36] Speaker 03:
You're not suggesting that your client entered into this plea agreement under some misapprehension of what could happen to him under this regulation just because it had a different name.

[00:05:47] Speaker 04:
Speaking well, to start, Your Honor,

[00:05:50] Speaker 04:
The record, we can't argue facts or facts to law here.

[00:05:53] Speaker 04:
So we're stuck with the record as it is.

[00:05:55] Speaker 04:
As far as what was argued at the Veterans Court, that was not argued.

[00:06:00] Speaker 04:
I can tell you for whatever reason, he did not understand and he was speaking with him.

[00:06:07] Speaker 03:
But did it hinge on, I would be very surprised to learn that it hinged on the use of

[00:06:15] Speaker 03:
the words other than honorable rather than undesirable or rather he wasn't given full information from his defense counsel about the ramifications of this.

[00:06:26] Speaker 03:
It's probably the latter.

[00:06:30] Speaker 04:
Most likely, yes, Your Honor.

[00:06:31] Speaker 04:
I mean, most service members don't understand what the law is and they do rely on their attorneys, but the attorneys, of course, are looking at these regulations.

[00:06:39] Speaker 04:
They see the term undesirable discharge.

[00:06:42] Speaker 04:
They do their due diligence.

[00:06:44] Speaker 03:
Are you suggesting that the, I assume it was JAG counsel on both sides, that they didn't understand that other than honorable was the current term rather than undesirable, that it meant the same thing?

[00:06:56] Speaker 03:
I think we're going down a rabbit hole that just wasn't argued and doesn't make a whole lot of sense to me.

[00:07:04] Speaker 03:
All that happened here is the military charted using a different term.

[00:07:08] Speaker 03:
The VA, for whatever reason,

[00:07:11] Speaker 03:
took a long time and still hasn't updated it, partly probably because it's part of a very controversial regulation.

[00:07:17] Speaker 03:
Not on this point, but on a lot of other points, which is my guess is why it's taken since 2020 and they still haven't finalized things.

[00:07:28] Speaker 03:
I mean, I assume you read all the comments.

[00:07:31] Speaker 03:
I mean, there are even comments directed at this particular thing and suggesting that there shouldn't be a regulatory bar to take people who take plea agreements.

[00:07:39] Speaker 03:
But aren't you focusing on just the isolated part of this, the undesirable language, rather than the full phrase and what the full phrase means?

[00:07:49] Speaker 03:
And did VA apply the full phrase properly?

[00:07:51] Speaker 03:
Because it's the in lieu of court-martial part that stayed the same.

[00:07:55] Speaker 03:
And that's really what we're talking about, people who accept discharges in lieu of court-martials, whether it's termed undesirable or

[00:08:04] Speaker 03:
other than honorable.

[00:08:07] Speaker 04:
And had the VA said a discharge in lieu of a court martial, I would agree with you, your honor, but they did not.

[00:08:12] Speaker 04:
They used a very specific term that had a very specific meaning, an undesirable discharge.

[00:08:18] Speaker 04:
Now, whether they're- It still has the same meaning.

[00:08:21] Speaker 04:
It does not, your honor, because there were other types of discharge.

[00:08:25] Speaker 03:
It has the same meaning for this group, people that accept a plea agreement in lieu of discharge.

[00:08:32] Speaker 03:
There are other types of discharges, sure.

[00:08:35] Speaker 03:
But nobody's suggesting that undesirable in lieu of discharge referred to those.

[00:08:40] Speaker 03:
It's undesirable in lieu of discharge other than honorable.

[00:08:43] Speaker 03:
I think you agree.

[00:08:44] Speaker 03:
This is the same group of people.

[00:08:47] Speaker 04:
It is in the global center, but again, we have to interpret the words that the VA used, and we have to recognize... The VA didn't use these words.

[00:08:57] Speaker 03:
The military branches use these words, and they're the ones that change it.

[00:09:01] Speaker 03:
The VA hasn't caught up.

[00:09:03] Speaker 03:
the correction and that's and that's the thrust of our argument is that they failed to do with the logic of that i mean even rational because the is never that if if the air force decides we're going to change from undesirable to under this uh... honorable d is logistically there is no way they can do this in less than you know a year probably so everybody during that year that accepted a plea martial it's a get out of jail free card

[00:09:31] Speaker 04:
Not necessarily, Your Honor.

[00:09:33] Speaker 04:
I disagree with that statement.

[00:09:34] Speaker 03:
Under this provision?

[00:09:35] Speaker 04:
Under this provision would not apply, but there are other provisions.

[00:09:38] Speaker 03:
But in the statute, it suggests that the VA can't continue to bar people that are in the same group, even though the military has changed the name.

[00:09:48] Speaker 04:
Nothing in the statute, your honor, but the regulation is very clear and uses a very specific word.

[00:09:53] Speaker 04:
And we have to interpret the words used.

[00:09:56] Speaker 04:
We can't re-imagine what the regulation should say.

[00:10:00] Speaker 04:
We have to use what the VA said.

[00:10:03] Speaker 04:
And again, if they had used the term any discharge... Why is it re-imagining?

[00:10:06] Speaker 03:
It's referring to the same group that everybody understands to be the same group of people.

[00:10:11] Speaker 03:
There's not a single commoner that I could find in the comments on the proposed regulation

[00:10:17] Speaker 03:
that found any confusion in the change in terminology.

[00:10:21] Speaker 03:
Can you point to any confusion?

[00:10:23] Speaker 03:
You're just making a technical argument, right?

[00:10:25] Speaker 03:
They changed the name so it no longer applies.

[00:10:28] Speaker 03:
That's correct, John, because that discharge cannot... But then that leads to the absurd results that for however long it takes VA to catch up, they can no longer use this bar, even though they intend this bar to apply to the same class of people that the terminology is referring to.

[00:10:46] Speaker 04:
They can't use this provision, Your Honor.

[00:10:48] Speaker 04:
There are other provisions that are available, will form persistent misconduct.

[00:10:54] Speaker 04:
Any number of the other provisions in 3.12, which would allow the VA to bar benefits for this conduct or any similar conduct.

[00:11:05] Speaker 04:
And so by using this specific provision,

[00:11:09] Speaker 04:
for a discharge that does not exist, the VA can't be allowed to redefine a term that already has.

[00:11:17] Speaker 00:
That point right there is where you're seeking relief.

[00:11:20] Speaker 00:
And when I read through the papers and I'm looking as to what remedy you want, it seems to me that it's a remedy that we cannot give you.

[00:11:31] Speaker 00:
We cannot rewrite or write or promulgate the regulation that you're talking about.

[00:11:39] Speaker 00:
That's got to be done by the VA, or if you're talking about the statute, that has to be Congress.

[00:11:47] Speaker 00:
But you're asking us to rewrite the regulation, it appears.

[00:11:51] Speaker 04:
No, Your Honor, the Veterans Court rewrote the regulation and the VA has attempted to rewrite the regulation by turning an undesirable discharge into something else.

[00:12:03] Speaker 04:
What we're asking is that the court read and interpret the words.

[00:12:06] Speaker 03:
Are you really saying turning it into something else or are you just saying renaming it, which is really what happened?

[00:12:11] Speaker 04:
They, well, I think both, Your Honor, but in order to rename it, they must go through the proper procedures in the Administrative Procedures Act and through notice and comment, which they're in the process of doing, as you mentioned.

[00:12:24] Speaker 04:
And they have not done that, and it's been 50 plus years now, or nearly 50 years now, and they just got around to it within the last couple years.

[00:12:33] Speaker 01:
Counsel, I share Judge Hughes's concerns, but I also want to ask about

[00:12:39] Speaker 01:
Even if we were to agree with you, I guess, that the regulation and referring to undesirable discharge, you want us to change that or understand that to be limited to something that no longer exists in that name.

[00:12:54] Speaker 01:
But is that consistent with the statute?

[00:12:56] Speaker 01:
I'm just a little concerned about if we were to accept that interpretation.

[00:13:00] Speaker 01:
Wouldn't that be inconsistent with the statute that very clearly defines a veteran for purposes of veterans benefits as a person who is discharged or released there from

[00:13:08] Speaker 01:
under conditions other than dishonorable.

[00:13:10] Speaker 01:
Why doesn't that statute itself, which the regulation purports to implement, prohibit the interpretation that you're now seeking?

[00:13:20] Speaker 04:
Well, first, the statute does not define what that term means.

[00:13:25] Speaker 01:
But historically, that term has been understood to mean somebody who hasn't accepted a plea bargain to avoid trial by general court martial.

[00:13:37] Speaker 04:
True your honor, but they again the VA and I and I'm just I urged the court to really focus on the actual words that that the VA used if they had used a more broad term like a discharge in lieu of a general court martial We would not be here and mr. Cranford would be out of luck, but they they specifically define a

[00:14:01] Speaker 03:
Discharged?

[00:14:02] Speaker 03:
No, we would be here on a different argument from you, which is the military aren't discharging people in lieu of court martial.

[00:14:10] Speaker 03:
They're discharging them under other than honorable conditions, or that a discharge in lieu of court martial doesn't fall within the statute because it's not other than honorable.

[00:14:22] Speaker 03:
I mean, this is the problem.

[00:14:23] Speaker 03:
You want to elevate it and say, well, they should have used a more general term.

[00:14:27] Speaker 03:
But they get to pick the terminology and as long as everybody understands what class of people they're intending to exclude, then why isn't that good enough?

[00:14:49] Speaker 03:
not the VA.

[00:14:50] Speaker 03:
If the VA used the term that you suggested that doesn't match up with any of the military's terminology, then under your technical argument, they wouldn't fall within either, right?

[00:15:02] Speaker 03:
So just give you that example.

[00:15:04] Speaker 03:
If they said, we exclude people who were discharged in lieu of a court martial, and the military says they're

[00:15:16] Speaker 03:
Because they're the ones that control the DD-214s, right?

[00:15:19] Speaker 03:
And they say they were other than honorably discharged in lieu of court-martial.

[00:15:25] Speaker 03:
If we're looking at the specific names, those are different names, right?

[00:15:29] Speaker 04:
I would not press that argument, Charlie.

[00:15:31] Speaker 03:
I bet you would.

[00:15:32] Speaker 04:
Well, I would not.

[00:15:34] Speaker 04:
A discharge is a discharge.

[00:15:37] Speaker 03:
But it's not.

[00:15:38] Speaker 03:
That's the whole point of this.

[00:15:40] Speaker 03:
A discharge can be honorable.

[00:15:42] Speaker 03:
It can be general.

[00:15:43] Speaker 03:
It can be other than honorable.

[00:15:45] Speaker 03:
It can be a misconduct discharge.

[00:15:48] Speaker 03:
Or it can be dishonorable discharge.

[00:15:51] Speaker 03:
That's why we're in this whole area.

[00:15:52] Speaker 03:
And some of them qualify you.

[00:15:54] Speaker 03:
I think the first two, the middle two are

[00:15:58] Speaker 03:
ambiguous depending on the regular or the middle one and then it's not the bottom two that disqualify you so it is charges not a discharge we have to look at at exactly what it was to be intended to the the group that it's intended to apply to and whether the d eight things that kind of discharge is is a regulatory bar but again happy had been said looked at

[00:16:26] Speaker 03:
I'm just asking, not going to other parts, because they're certainly not forced to go to other parts.

[00:16:33] Speaker 03:
What could they have done if the military changes its name?

[00:16:41] Speaker 03:
All it does is change the name.

[00:16:42] Speaker 03:
It doesn't change the continent of the group.

[00:16:44] Speaker 03:
What could they have done so that there was no gap in coverage under your argument?

[00:16:51] Speaker 04:
Without going to another provision, Your Honor.

[00:16:52] Speaker 03:
Without going to another provision.

[00:16:55] Speaker 04:
In that scenario, nothing.

[00:16:58] Speaker 04:
But again, they look again at the conduct of the former service member at the time of discharge and what led to that discharge.

[00:17:07] Speaker 04:
And if another provision applies, they would be allowed to borrow the benefits.

[00:17:10] Speaker 04:
The secretary has a lot of leeway in determining

[00:17:15] Speaker 04:
whether a regulatory bar exists or not, they have an entire regulation with multiple subsections that could perceivably encounter any situation that they would be faced with.

[00:17:28] Speaker 04:
But the fact of the matter is that the undesirable discharge does not exist.

[00:17:32] Speaker 04:
The VA waited 40 plus years to amend it or attempt to amend it, and instead what they've done is they've attempted to amend it using the M21 provision.

[00:17:43] Speaker 03:
accepted a discharge in lieu of a court martial from 1975 to present is now eligible for veterans benefits and will continue to be eligible until VA finishes this regulation.

[00:17:56] Speaker 03:
So almost 50 years of people who everybody understood shouldn't get benefits will based on your legal argument now get benefits.

[00:18:06] Speaker 04:
Because again, they can still- No, no, no.

[00:18:08] Speaker 03:
I don't want to hear about the other regulations.

[00:18:11] Speaker 03:
Under this regulation- This regulation would not apply to any of them.

[00:18:15] Speaker 03:
Even though VA clearly intended people who took a plea agreement in lieu of a court martial not to get the benefits.

[00:18:21] Speaker 04:
Yes, Your Honor, because they failed to update the regulation, doing it properly.

[00:18:25] Speaker 00:
You're out of time.

[00:18:26] Speaker 00:
I'll reserve your three minutes or rebuttal time.

[00:18:29] Speaker 00:
Thank you.

[00:18:29] Speaker 00:
Thank you, Mr. DeHart.

[00:18:32] Speaker 00:
Mr. Bekrich.

[00:18:34] Speaker 00:
Can you hear us?

[00:18:36] Speaker 00:
And can you see us?

[00:18:38] Speaker 02:
Yes, I can, Your Honor.

[00:18:41] Speaker 00:
Okay, hold just a minute.

[00:18:44] Speaker 00:
Okay, you may proceed.

[00:18:48] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:18:51] Speaker 02:
The Court should affirm the decision of the Veterans Court because Mr. Cranford's discharge under other than honorable conditions and lube a trial by court-martial is considered an undesirable

[00:19:04] Speaker 02:
Section 3.12.

[00:19:06] Speaker 03:
Do you have any update on the proposed regulatory change, why it's taking so long?

[00:19:13] Speaker 03:
I assume it's because the other parts of this regulation are really controversial.

[00:19:17] Speaker 03:
There are some controversial parts that VA is wading through, although this one doesn't seem to be all that controversial.

[00:19:24] Speaker 03:
Have you talked to the people at VA to see if this is going to become final any time soon?

[00:19:31] Speaker 02:
We have obviously discussed the proposed rule in light of this case.

[00:19:37] Speaker ?:
And I don't have an update in terms of when the proposed rule would become final, Your Honor.

[00:19:43] Speaker 02:
But what I do know is that there is no disagreement about what is meant by the term undesirable discharge.

[00:19:49] Speaker 02:
And an undesirable discharge is a release from military service under conditions other than honorable.

[00:19:56] Speaker 02:
Here, Mr. Cranford was released from military service

[00:20:01] Speaker 02:
under conditions other than honorable, and thus his case falls squarely within the regulation section 3.12d.

[00:20:12] Speaker 02:
Because it falls squarely within that, that really is the end of this court's analysis, and she's barred from receiving benefits.

[00:20:21] Speaker 02:
Mr. Cranford,

[00:20:29] Speaker 02:
only approach to what VA intended here.

[00:20:33] Speaker 02:
But there's just no support that the VA intended that a discharge carry a certain name in order for the provision to apply.

[00:20:42] Speaker 02:
In fact, what VA intended to do was decide when a discharge that was not disarmable should be considered disarmable.

[00:20:51] Speaker 02:
And it looks at the facts of various circumstances.

[00:20:54] Speaker 02:
Here, the particular fact is that there is a discharge in lieu

[00:20:58] Speaker 02:
in lieu of trial by court martial.

[00:21:00] Speaker 02:
And as Your Honors pointed out, if Mr. Cranford's position is accepted, then this provision is rendered meaningless for service members who accepted discharges in lieu of court martial for the past almost 50 years.

[00:21:17] Speaker 02:
And that would be the case when really there's no disagreement among courts or among, as Your Honors pointed out, among commenters about what is meant by the term.

[00:21:28] Speaker 02:
undesirable discharge.

[00:21:34] Speaker 02:
I think it's helpful for the court to look at the Camarino v. Brown case cited by the Veterans Court, and that was the case affirmed by this court.

[00:21:43] Speaker 02:
There the court explored the intent of the regulation, and it said that the intent was to give the secretary discretion about when to deny benefits when the discharge was given for conduct less than honorable.

[00:21:58] Speaker 02:
Again, the purpose is to look at the specific circumstances.

[00:22:04] Speaker 02:
Here, the relevant provision is in lieu of trial by court martial and determine whether or not that should be considered dishonorable.

[00:22:13] Speaker 02:
The secretary applied that straightforward provision in this case.

[00:22:19] Speaker 02:
And really that, as I mentioned, that is the end of this court's analysis and the court should affirm the Veterans Court.

[00:22:28] Speaker 02:
Although I don't think it's necessary for this court to reach the issue of deference, I'll quickly address that because we did speak to it in the brief.

[00:22:40] Speaker 03:
Can I ask you, do you think that the difference in names is what makes it potentially ambiguous?

[00:22:46] Speaker 03:
If we find the intent of the regulation to point to a certain group is plain, is the

[00:22:55] Speaker 03:
change in names enough to render it ambiguous, or is it really the intent of the regulation and the language used there?

[00:23:04] Speaker 02:
I don't think that the change in name makes it ambiguous just because there's really no question.

[00:23:14] Speaker 02:
Nobody has questioned for the past 46 years what the meaning of undesirable discharge is, and that is a

[00:23:21] Speaker 02:
a discharge under conditions other than honorable.

[00:23:24] Speaker 02:
So I don't think the change in name creates any sort of ambiguity here.

[00:23:32] Speaker 03:
If we had to get to our, which was where you were going, what qualifies under Kaiser as the authoritative VA interpretation?

[00:23:45] Speaker 02:
I'd like to address that.

[00:23:46] Speaker 02:
I think that we have a couple of things.

[00:23:50] Speaker 02:
We can look at the adjudication procedures manual, the M21, which says forth in very plain terms that an undesirable discharge is called a discharge under conditions other than honorable.

[00:24:07] Speaker 02:
And then we also, that position is reaffirmed by the fact of the proposed rule.

[00:24:21] Speaker 02:
It's just updating it to match the language used by the military services.

[00:24:25] Speaker 03:
Do you have legal support for the idea that a proposed rule can be a definitive interpretation under Kaiser?

[00:24:36] Speaker 02:
Your Honor, I don't.

[00:24:38] Speaker 02:
And just to be clear, I'm not actually proposing that is the basis for the definitive interpretation.

[00:24:45] Speaker 02:
I think it just adds further support to the adjudication procedures manual.

[00:24:51] Speaker 02:
I believe that the manual itself would be the decisive position of the secretary.

[00:25:04] Speaker 02:
And certainly, Your Honor, this is a matter that falls within the expertise

[00:25:09] Speaker 02:
of VA and of the secretary, this is a matter of veterans' benefits and specifically a matter when a discharge should be considered dishonorable for the purposes of determining VA benefits.

[00:25:26] Speaker 02:
And as we pointed out in the brief, the Veterans Court hasn't struggled to interpret this.

[00:25:31] Speaker 02:
To our knowledge, there hasn't been any debate over what undesirable

[00:25:38] Speaker 02:
Mr. Cranford was aware, or should have been aware, of the meaning of the term whenever he entered into his agreement.

[00:25:53] Speaker 02:
If your honors have no further questions, I'll yield the rest of my time to you.

[00:26:00] Speaker 00:
Okay, we thank you much, sir.

[00:26:02] Speaker 00:
I think we have it, so let's go hear back from Mr. DeHawkis, who has three minutes.

[00:26:09] Speaker 00:
Thank you, Mr. Beckerich.

[00:26:11] Speaker 04:
Just a couple of points, Your Honor.

[00:26:13] Speaker 04:
Number one, 101 defines a veteran as one discharge or release under conditions other than dishonorable, and 3.12D defines very specifically, again, that a discharge for one of these offenses shall be considered having been issued under dishonorable conditions, and then it lists undesirable discharge.

[00:26:32] Speaker 04:
So to the point that Judge Hughes was making that, and again, we cannot ignore that there are other

[00:26:39] Speaker 04:
tools for the VA to bar benefits for these folks who are discharged under these types of circumstances.

[00:26:45] Speaker 04:
Just not this one until the VA changes its regulation.

[00:26:51] Speaker 04:
In touching on Camara, that case was specific about willful and persistent misconduct, so I would argue it does not apply to this case.

[00:27:03] Speaker 04:
And the statement that

[00:27:07] Speaker 04:
the VA has always interpreted this way should be read as dicta, as are the other two cases that were cited by the government.

[00:27:15] Speaker 04:
And on the last point, the issue of ambiguity was raised.

[00:27:20] Speaker 04:
I would urge, number one, that there is no authoritative interpretation from the VA should the court determine that there is ambiguity.

[00:27:29] Speaker 03:
Why isn't the M21 authoritative?

[00:27:31] Speaker 04:
The M-21 is not authoritative, Your Honor, because as Kaiser tells us, it must come through the actors, through the methods, through the vehicles that are known to produce authoritative policy.

[00:27:45] Speaker 03:
I mean, but didn't we just find en banc that the M-21 is substantive enough that you can file a petition for a review challenging a provision?

[00:27:52] Speaker 03:
That sounds like it's pretty authoritative to me.

[00:27:56] Speaker 04:
Yes, Your Honor, but that's assuming that it has gone.

[00:27:59] Speaker 04:
It can be authoritative.

[00:28:01] Speaker 04:
challenged, but when it does not follow the proper notice and comment procedures, then it can be invalidated by the court.

[00:28:10] Speaker 03:
Are you suggesting that the only thing that can get our deference is notice and comment rulemaking?

[00:28:15] Speaker 03:
No, Your Honor.

[00:28:16] Speaker 03:
Because if it's notice and comment rulemaking, it's not our, it's Chevron.

[00:28:21] Speaker 04:
No, Your Honor.

[00:28:21] Speaker 04:
That's not what I'm suggesting.

[00:28:22] Speaker 04:
What I'm suggesting is that the M21, for a number of reasons, cannot be authoritative.

[00:28:28] Speaker 04:
And as the court pointed out in, I think it was DAV,

[00:28:31] Speaker 04:
that it can change pretty much at will.

[00:28:34] Speaker 04:
Any person can make the changes.

[00:28:36] Speaker 03:
But it's binding on the regional office adjudicators.

[00:28:40] Speaker 04:
It is, but it's not binding on the board, Your Honor.

[00:28:42] Speaker 03:
But we still found that that was sufficient to make it a rule of the type that's referenced in 502 sufficient for review.

[00:28:51] Speaker 03:
I'm having a hard time to find if it's sufficient for review under 502 how it's not an authoritative interpretation of the secretary.

[00:29:00] Speaker 03:
Because 502 only allows you to challenge authoritative interpretations of the secretary.

[00:29:08] Speaker 04:
That's true, Your Honor.

[00:29:09] Speaker 04:
But because it can change in other

[00:29:12] Speaker 04:
folks at the VBA, not the secretary, can change it pretty much, and it changes on a weekly basis, that it's difficult to allow the M21 to be an authoritative interpretation that falls within the concept of Kaiser.

[00:29:29] Speaker 03:
So you all can file FLAVO II petitions against it, but the VA can't rely on it under our... In most cases, that's correct, Your Honor.

[00:29:41] Speaker 04:
And so, in conclusion, I would ask that the court narrowly interpret an undesirable discharge to mean what it was when VA promulgated the regulation and reversed the bench report.

[00:29:52] Speaker 04:
Thank you, Mr. DeHakos.

[00:29:53] Speaker 00:
We thank the parties for the arguments this morning.

[00:29:55] Speaker 00:
That concludes our hearing.