[00:00:00] Speaker 04: 22-1607, Grounds versus McDonough. [00:00:05] Speaker 04: Attorney Carpenter, you have reserved five minutes of time for rebuttal. [00:00:09] Speaker 04: Is that correct? [00:00:09] Speaker 04: I have, Your Honor. [00:00:10] Speaker 04: Thank you very much. [00:00:11] Speaker 04: All right. [00:00:11] Speaker 04: You may start, please. [00:00:12] Speaker 03: May it please the court, Count Carpenter, appearing on behalf of Linda Grounds. [00:00:16] Speaker 03: Linda Grounds is the substitute appellant for her husband, Mr. Grounds, who died during the course of the proceedings. [00:00:24] Speaker 03: She was lawfully substituted in this matter. [00:00:26] Speaker 03: This appeal presents an issue of statutory interpretation of 38 USC 5303A. [00:00:32] Speaker 03: Mrs. Grounds relies upon the well-established rule of statutory interpretation that if the intent of Congress is clear, that that's the end of the matter, for both the court as well as the agency must give effect [00:00:49] Speaker 03: to the unambiguously expressed intent of Congress. [00:00:53] Speaker 04: Your argument, you're trying to persuade the court to disregard 38 CFR 3.12. [00:01:01] Speaker 03: Not to disregard it, Your Honor, but to find as a matter of law that it cannot be applied by the VA, as it did in this case, as a basis to make an independent determination. [00:01:14] Speaker 04: Are you arguing that the VA made an incorrect application of that regulation? [00:01:20] Speaker 03: That they were prevented by law from applying that application because Congress speaks directly to what the circumstances are [00:01:30] Speaker 03: when a person is AWOL for 180 days continuously. [00:01:35] Speaker 03: And when a person is AWOL for more than 180 days, that person is considered, even if they have a other than honorable discharge, to be barred from VA benefits. [00:01:47] Speaker 03: That is a statutory bar, and the VA cannot create a subset of regulatory bars when Congress has made the determination that the only circumstance in which a [00:01:59] Speaker 03: a service member is going to be barred from benefits is if AWOLs are for more than 180 continuous days. [00:02:06] Speaker 01: Why are we not bound to follow our precedent in Garvey, which I read is addressing the very issue you just raised for us. [00:02:19] Speaker 03: Well, with respect, Your Honor, Garvey is both distinguishable and not controlling. [00:02:24] Speaker 03: Garvey was a direct invalidity challenge. [00:02:27] Speaker 03: Mrs. Grounds did not challenge the validity of 3.12. [00:02:32] Speaker 03: What Mrs. Grounds did was to say to the court that the board erred as a matter of law by not following the mandate of the statute and by resorting to the regulation. [00:02:45] Speaker 01: And that the regulation... Here, before us. [00:02:48] Speaker 01: What you're doing, because it's got to be a legal issue, is you have to challenge the validity of that regulation. [00:02:55] Speaker 01: You're challenging the regulation and saying that can't be applied in light of the statute, which I think is the same argument that you made previously in Garvey. [00:03:07] Speaker 03: No, Your Honor. [00:03:08] Speaker 03: It was a facial attack to the validity of the regulation. [00:03:13] Speaker 03: That the regulation itself, the entirety of that regulation, was inconsistent. [00:03:19] Speaker 03: We are talking only here about the subset of that regulation. [00:03:23] Speaker 04: But you're building an attack here as well. [00:03:25] Speaker 04: Maybe not facial, as you put it. [00:03:28] Speaker 04: But you're still attacking the application of the regulation. [00:03:31] Speaker 03: well let me come in from slightly earlier below we presented an issue to the veterans court of statutory interpretation asking for the court to find that the statute controlled and not the regulation instead of addressing that issue the veterans court relied upon the regulation is that not going to be over because in garvey we were looking at invalidating the regulation [00:03:59] Speaker 03: We are not looking at invalidating the regulation. [00:04:01] Speaker 02: But if the regulation is valid, how can you prevail? [00:04:06] Speaker 02: Because it doesn't apply. [00:04:08] Speaker 02: As I understand it, the regulation allows the VA to determine that shorter periods of AWOL time, shorter than 180 days, can be a regulatory bar to getting veterans' benefits. [00:04:22] Speaker 02: Well, with respect to... If that's valid, [00:04:25] Speaker 02: then how do you prevail? [00:04:26] Speaker 03: But that's a misunderstanding of what the regulation actually says. [00:04:30] Speaker 03: What the regulation actually says is that a discharge or release because of offenses specified in paragraph D are considered to be issued under dishonorable conditions. [00:04:44] Speaker 02: So the willful and persistent misconduct that was found here is based on the repeated shorter periods of absence without leave, correct? [00:04:53] Speaker 03: Right, and the record in this case [00:04:55] Speaker 03: confirms that he was not discharged on the basis of those violations. [00:05:03] Speaker 03: To the contrary, he took personal responsibility for both his behavior and his conduct and asked his command for a discharge in lieu of, excuse me, for the good of the service. [00:05:18] Speaker 01: So you're saying his discharge wasn't because [00:05:21] Speaker 01: of one of the offenses. [00:05:22] Speaker 01: Rather, his discharge was because of his agreement. [00:05:26] Speaker 01: Correct. [00:05:27] Speaker 01: But it feels like application of the regulation to the facts of the case, which is something we wouldn't have jurisdiction over. [00:05:36] Speaker 03: Well, with respect, Your Honor, I believe that the distinction here is it is a question of law as to whether or not the statute controls the outcome [00:05:43] Speaker 03: of the determination by the secretary. [00:05:49] Speaker 03: Did the secretary exceed his authority under the regulation to take action to make a determination that this discharge should be considered under dishonorable condition? [00:06:01] Speaker 02: I don't think I understand that distinction you're making. [00:06:05] Speaker 02: If the issue you're presenting is does 5303 apply or does 3.12 apply, [00:06:13] Speaker 02: then we've already decided that 3.12 can't apply. [00:06:17] Speaker 02: That was Garvey, right? [00:06:21] Speaker 03: No, Garvey simply upheld the validity of that regulation. [00:06:26] Speaker 03: to make determinations as to willful and persistent misconduct. [00:06:31] Speaker 02: Right, because it further said that 5303 is not the exclusive basis on which the VA can determine that someone is not eligible for benefits, right? [00:06:41] Speaker 03: That's correct, Your Honor. [00:06:42] Speaker 03: But under the purview of the definition of the regulation of the offenses, the offenses were willful and persistent misconduct. [00:06:51] Speaker 03: These were offenses that occurred, but were never prosecuted. [00:06:56] Speaker 03: And as a result, there was no conviction. [00:06:58] Speaker 03: There was no due process determination that he had in fact been AWOL without justification. [00:07:05] Speaker 03: And therefore there is no offense here. [00:07:08] Speaker 03: There is simply a request. [00:07:10] Speaker 02: So I have Judge Stoll's question. [00:07:12] Speaker 02: If that's what this case is about, that's a factual finding that we don't have jurisdiction to review. [00:07:19] Speaker 03: And if I had asked the Veterans Court to make a factual finding, that would be correct, Your Honor. [00:07:25] Speaker 03: The issue that was presented below, the right of judicial review below that is provided by Congress is that a veteran, or in this case, a veteran's surviving spouse, has the right to present a question of law to the court below and get an answer. [00:07:43] Speaker 03: We got no answer. [00:07:44] Speaker 02: I guess I'm still lost on you got the answer in Garvey. [00:07:48] Speaker 02: which is 3.12 is valid. [00:07:50] Speaker 03: Well, with respect to the only answer we got in Garvey was is that the regulation was not invalid. [00:07:56] Speaker 03: Not whether or not the regulation can, as it was in this case, misused. [00:08:01] Speaker 03: If it was misused because the statute controls the outcome, meaning that there cannot be a determination of the underlying conduct as being willful and persistent, because that conduct did not arise to the level [00:08:16] Speaker 03: provided for in the statute. [00:08:18] Speaker 01: The concern I have with your argument is it feels like an end run around our jurisdiction. [00:08:23] Speaker 01: I mean, we've interpreted the regulation. [00:08:26] Speaker 01: We've interpreted the statute. [00:08:28] Speaker 01: We've said that the regulation, that the VA has the authority to have the regulation to have additional requirements for when somebody is entitled to benefits or not. [00:08:40] Speaker 01: And now, if we're going to argue every time [00:08:44] Speaker 01: Every time a district court or any court makes a determination that is incorrect in the law, that raises a legal interpretation of the statute or the regulation. [00:08:55] Speaker 01: That just feels really odd to me. [00:08:58] Speaker 03: Well, Your Honor, I agree that that would be odd. [00:09:01] Speaker 03: In this case, however, the facts are critically different than the facts were in Garvey. [00:09:08] Speaker 03: And Mrs. Grounds was the [00:09:13] Speaker 03: unintended victim of the application of this regulation. [00:09:19] Speaker 03: And if that regulation could not be applied because the statute controlled, under 501, the secretary has authority to promulgate regulations that are consistent with the laws. [00:09:32] Speaker 03: Now this court has held that 3.12D4 was not invalid because it was globally consistent. [00:09:43] Speaker 03: In this case, we're talking about the specific application of that regulation that directly conflicts with the statutory criteria. [00:09:53] Speaker 03: And the statutory criteria sets out when an AWOL is the basis for a bar to benefits. [00:10:04] Speaker 03: What the statute does is the statute bars benefits. [00:10:09] Speaker 03: What the regulation does is it provides the secretary [00:10:12] Speaker 03: for a separate regulatory authority to review independently whether there were or weren't underlying offenses that could be considered willful and persistent for the discharge to be considered dishonorable. [00:10:28] Speaker 03: His discharge was a voluntary discharge that was made at his request and approved by his command. [00:10:36] Speaker 02: And what authority do we have to review whether [00:10:39] Speaker 02: he was truly discharged for willful and persistent misconduct. [00:10:45] Speaker 02: Is that the kind of thing we have to associate with you? [00:10:47] Speaker 03: That's precisely the point, Your Honor. [00:10:48] Speaker 03: You don't, and the VA does not, because the statute controls. [00:10:55] Speaker 03: The statute says there's only one circumstance in which- But it doesn't say only. [00:11:00] Speaker 02: It says when it's 180 days after a court martial sentence, then you're definitely not eligible for benefits. [00:11:08] Speaker 02: And in Garvey, we were asked, is it the only way you can not be eligible? [00:11:12] Speaker 02: And we said very clearly that's not the only way. [00:11:15] Speaker 03: Well, with respect, Your Honor, that was not what was asked. [00:11:17] Speaker 03: That's what the court told us. [00:11:20] Speaker 03: We were not asked if that was the only. [00:11:23] Speaker 03: We said that it was inconsistent with, that it was a violation of the 501 authority of the secretary to promulgate that rule. [00:11:32] Speaker 01: Does it matter what was asked? [00:11:33] Speaker 01: If this court previously said in Garvey that [00:11:38] Speaker 03: uh... that the statute is not the only way and that he can promulgate regulations it doesn't matter if something else was asked that's actually right now but that does not preclude an appellant from challenging whether or not the statute does under these circumstance apply only if we had simply gotten a decision from the veterans court that's the same thing [00:12:06] Speaker 04: We said, willful and persistent misconduct bar in a rule governing the character of a service member's discharge was not contrary to the statute that specified the conditions. [00:12:18] Speaker 04: We have already ruled on the issue that you are doing. [00:12:21] Speaker 03: Well, with respect, Your Honor, I do not agree. [00:12:25] Speaker 03: What this court ruled on was whether or not willful and persistent misconduct [00:12:29] Speaker 03: The question being asked in this appeal is whether or not, in light of the plain language of 5303A, is AWOL of less than 180 days willful and [00:12:42] Speaker 03: persistent misconduct. [00:12:44] Speaker 04: Can it be? [00:12:44] Speaker 04: And in answering that question, we would look to the statute, to the regulation as well. [00:12:50] Speaker 04: Yes, Your Honor. [00:12:51] Speaker 04: And you do not want us to look at the regulation. [00:12:53] Speaker 03: No, I encourage you to look at the regulation because the regulation does not say what the statute says. [00:12:59] Speaker 03: The regulation is taking upon the Secretary a different role. [00:13:04] Speaker 02: The Secretary, more than three years ago... But you're not challenging the validity of the regulation. [00:13:09] Speaker 02: I beg your pardon? [00:13:09] Speaker 02: You're not challenging the validity of the regulation. [00:13:11] Speaker 03: I am not challenging the validity of the regulation. [00:13:13] Speaker 02: So we have to follow the regulation. [00:13:15] Speaker 03: Well, with respect, the regulation cannot be followed if the statute trumps it as a matter of law. [00:13:23] Speaker 02: Even though it's admittedly a valid regulation. [00:13:25] Speaker 03: Yes, your honor, because under the circumstances described in the regulation, which is the consideration of specific offenses, and those offenses [00:13:35] Speaker 03: do not arise as a matter of law to willful and persistent misconduct. [00:13:40] Speaker 04: And that's the case presented by Mr. Brown. [00:13:45] Speaker 04: Thank you. [00:13:50] Speaker 00: May it please the court. [00:13:51] Speaker 00: The court's decision in Garvey is dispositive. [00:13:53] Speaker 00: The factual distinctions between this case and Garvey raised by Mrs. Grounds have nothing to do with the interpretation of 38 USC 5303A, which is the only issue that Mrs. Grounds has raised in this case, regardless of whether Garvey presented a facial attack on 38 CFR 3.12D4. [00:14:19] Speaker 00: clearly concluded that 5303A is not the exclusive test for benefits eligibility, and the statute therefore does not control the outcome, as Mrs. Grounds' counsel asserts. [00:14:33] Speaker 00: Mrs. Grounds has focused on the absence of a conviction related to Mr. Grounds' periods of AWOL. [00:14:42] Speaker 00: However, the court in Camarena v. Brown certainly considered this question in an unpublished decision, found that the absence of a sentence of a general court martial was not required to borrow benefits based on 38 USC 101-2's definition of a veteran. [00:15:01] Speaker 00: Had Congress meant to require a conviction, it easily could have done so by simply stating that a veteran is anyone other than a person who has received a sentence of [00:15:11] Speaker 00: a dishonorable discharge. [00:15:14] Speaker 00: And if the court has no further questions. [00:15:20] Speaker 02: Well, just one. [00:15:22] Speaker 02: Do we have jurisdiction to reach the question of whether or not the board erred in finding that the discharge here was for willful and persistent misconduct? [00:15:32] Speaker 00: I believe that what Mrs. Grounds is raising is a question of application of law of fact. [00:15:38] Speaker 00: Mrs. Grounds has characterized this as a question of the interpretation of 5303A. [00:15:44] Speaker 00: In that case, the court does have jurisdiction. [00:15:46] Speaker 00: However, reading the briefs and based on the argument, it does sound like the argument is more one of whether 38 CFR 3.1 [00:15:58] Speaker 00: to D4, whether its term willful and persistent misconduct can apply to periods of AWOL of under 180 days here, roughly 130. [00:16:10] Speaker 00: So in that case, the court wouldn't have jurisdiction to determine. [00:16:16] Speaker 04: Do you know whether Mr. Grounds ever applied to get the characterist discharge upgraded? [00:16:21] Speaker 00: I believe that yes, he did. [00:16:23] Speaker 00: I believe three times, I think. [00:16:27] Speaker 00: We noted, and that was denied. [00:16:31] Speaker 00: And I will note that Mrs. Brown's counsel also had argued, I believe that a dishonorable discharge is required, but the language in 102 is conditions other than dishonorable. [00:16:49] Speaker 00: Therefore, the word discharge was specifically not included. [00:16:53] Speaker 00: Conditions was included, as described in the [00:16:57] Speaker 00: the congressional hearings and Senate report that are included in our appendix. [00:17:03] Speaker 04: Are you familiar with the Liberal Consideration Policy issued by the Department of Defense? [00:17:09] Speaker 04: I'm sorry, I didn't quite hear the... Are you familiar with the Liberal Consideration Policy issued by... Was a request for an upgrade made after that policy was implemented? [00:17:24] Speaker 00: It was in 1974, 84 and 2012. [00:17:28] Speaker 00: So I'm not certain when that policy was dated. [00:17:35] Speaker 00: And again, we believe that the court's decision in Garvey is dispositive. [00:17:42] Speaker 00: There is no misinterpretation by the Veterans Court of 38 USC 5303. [00:17:48] Speaker 00: And if the court has no further questions, thank you. [00:17:53] Speaker 00: We request that the court affirm the decision of the Veterans Court. [00:17:59] Speaker 03: I have nothing further, Your Honors. [00:18:01] Speaker 04: Yes, go ahead, Mr. Tucker. [00:18:02] Speaker 03: No, I have nothing further. [00:18:04] Speaker 03: Oh, you don't? [00:18:04] Speaker 03: Okay. [00:18:04] Speaker 03: Unless there's questions. [00:18:05] Speaker 04: Oh, thank you. [00:18:06] Speaker 04: And we thank the audience for their argument. [00:18:09] Speaker 04: I will take this case under advisement.