On March 15, 2013, the Court of Appeals for Veterans Claims (CAVC) published an opinion concerning the effects of a presidential pardon after the veteran was discharged from the Army under conditions the Department of Veterans Affairs (VA) considered “dishonorable” pursuant to 38 U.S.C. § 101(2). A discharge or release that the VA considers “dishonorable” makes the veteran ineligible for VA benefits under Title 38. The opinion can be accessed at Robertson v. Shinseki.
In January 1967, Mr. Robertson was convicted by a general court-martial for absence without official leave (AWOL) for 313 days. He was sentenced to a bad conduct discharge, forfeiture of all pay and allowance, and confinement at hard labor for one year. In July 1976, Mr. Robertson satisfactorily completed President Gerald Ford’s Reconciliation Service Program and was awarded a clemency discharge. Mr. Robertson now argues that the effects of this clemency discharge “blot[ted] out” the underlying conduct for which he was court-martialed.
The CAVC disagreed with Mr. Robertson’s position, “a Presidential pardon relieves the pardonee of the legal disabilities incident to a conviction of an offense (in this case, the legal punishment of a general court-martial conviction), but does not eliminate the consideration of the conduct (being AWOL for 313 days) that led to that conviction.” Consequently, the CAVC affirmed the Board’s decision that Mr. Robertson’s discharge was “dishonorable” pursuant to 38 U.S.C. § 101(2).
If you have a question concerning your eligibility for VA disability compensation, please do not hesitate to contact Fink Rosner Ershow-Levenberg for a free consultation at (732) 382-6070 or through our website at www.finkrosner.com.