Stanton v. McDonough
| Decision Date | 07 April 2023 |
| Docket Number | 2022-2224 |
| Parties | FREEMAN W. STANTON, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee |
| Court | U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in No. 21-2636, Judge Coral Wong Pietsch.
FREEMAN W. STANTON, Deer Lodge, MT, pro se.
DANIEL BERTONI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON CLAUDIA BURKE, PATRICIA M. MCCARTHY; CHRISTOPHER O. ADELOYE BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before REYNA, BRYSON, and TARANTO, Circuit Judges.
Freeman W. Stanton, while on active duty in the Air Force in 1971 went absent without leave (AWOL), first for 7 days and again for 59 days. After his second AWOL period, Mr. Stanton received an "undesirable discharge." In January 1972, he applied for a discharge upgrade, but the Air Force Discharge Review Board denied the request in March 1972. Mr Stanton later filed with the Department of Veterans Affairs (VA) claims for compensation for "spine disabilities" and a "mental disability." The relevant VA regional office denied his claims. So did the Board of Veterans' Appeals. Mr. Stanton then appealed the Board decision to the Court of Appeals for Veterans Claims (Veterans Court), which vacated the Board's decision and remanded. On remand, the Board again denied Mr. Stanton's claims; the Veterans Court then affirmed the Board's decision. Stanton v. McDonough, No. 21-2636, 2022 WL 2447466 (Vet. App. July 6, 2022). We now affirm.
Mr Stanton served on active duty in the Air Force from July 6, 1971, to December 2, 1971. He went AWOL for 7 days in July 1971 and for 59 days from August through October 1971.[1] After his first AWOL period, Mr. Stanton was ordered into correctional custody for 7 days. After his second AWOL period, the Air Force charged him (on November 12, 1971) with violating the Uniform Code of Military Justice, Article 86, and referred him for trial by court-martial. The same day, he requested a discharge for the good of the service.
In a statement submitted with his request, Mr. Stanton explained that, from "January 1971, until [he] entered the service, [he] used LSD about five or six times." SAppx. 39. He added that, "under present regulations," he "would not have been accepted . . . based on the fact that those in the service with pre-service drug use are eligible for either an honorable or general discharge" and "request[ed] that [he] be given general discharge." Id. He also stated that "Mental Hygiene Service has said [he] could be discharged for a character and behavior disorder: emotionally unstable personality based on drug use." Id. Notwithstanding these statements, Mr. Stanton acknowledged that his "request for discharge, if approved, may result in receiving an undesirable discharge under conditions other than honorable." SAppx. 38.
On November 17, 1971, the Assistant Chief of Mental Hygiene Services, by letter, stated that Mr. Stanton was evaluated psychiatrically by the service and "recommended that [Mr. Stanton] be administratively separated from the United States Air Force." SAppx. 40. The letter states that Mr. Stanton "does not have any psychiatric disease or condition which would warrant separation from the service" but that if Mr. Stanton continued in training "his present problem will, in [the Mental Hygiene Service's] opinion continue and might develop into a major psychiatric illness." Id. The letter "diagnos[es]" Mr. Stanton as having an "[e]motionally unstable personality manifested by use of LSD, general inadaptability, and uncontrolled hostility." Id.
On December 2, 1971, the Air Force issued an "undesirable discharge" of Mr. Stanton. SAppx. 41. In January 1972, Mr. Stanton applied for a discharge upgrade, from "Undesirable to Honorable." SAppx. 42. The Air Force Discharge Review Board denied the request in March 1972.
Four decades later, in September 2015, Mr. Stanton filed with VA a claim for compensation for "spine disabilities" and a "mental disability." SAppx. 45-46. The relevant VA regional office denied Mr. Stanton's claims, determining that his discharge was "Undesirable/Other Than Honorable Conditions" due to "willful and persistent misconduct," so he was not entitled to "VA gratuitous benefits under 38 CFR 3.12(d)(4)." SAppx. 47. Mr. Stanton filed a notice of disagreement, in which he contended, among other things, that he was discharged for medical reasons, as opposed to "punitive" reasons, SAppx. 53, suggesting that his conduct was not "willful and persistent." For support, he provided school records (a report card and a psychological report) that, he contended, demonstrate "a pre-existing mental birth condition of mental retardation" and "a mental birth defect." SAppx. 54 (capitalization removed); see also SAppx. 57; SAppx. 58. The regional office maintained its denials in a statement of the case, determining that the discharge was "other than honorable" and "based on willful and persistent misconduct" and that "[i]nsanity is not determined to be at issue." SAppx. 61-62.
Mr. Stanton appealed to the Board, and he included in his appeal a report by a medical advisor for the Air Force Board for the Correction of Military Records from March 2016. The medical advisor "opine[d]" that "the Board may consider an upgrade of discharge to General, under Honorable Conditions, based upon Clemency and his possible unsuitability for service entry." SAppx. 70 (emphasis in original). The Board, in a January 2019 decision, maintained the denials, determining, among other things, that Mr. Stanton was not "insane at the time of the misconduct that led to his discharge" and that he had "not provided medical evidence of psychiatric or psychological treatment for insanity." SAppx. 72 ().[2]
Mr. Stanton then appealed the Board decision to the Veterans Court, which vacated the decision and remanded. The Veterans Court determined that the Board "either vaguely or did not at all address several pieces of evidence and argument" that are "potentially relevant" to whether Mr. Stanton "is entitled to the relief that he seeks." SAppx. 72-73. On remand, Mr. Stanton submitted a March 2018 report from an unnamed psychologist, who recommended in the report that the Air Force "change his discharge summary to Entry Level Separation and his service characterization to Uncharacterized but deny granting his request for an Honorable discharge." SAppx. 78.
The Board again maintained the denial of Mr. Stanton's claims for disability benefits. The Board determined that Mr. Stanton's second absence without leave constituted willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4), stating that, in light of his "previous nonjudicial punishment" for his first AWOL period, the second absence without leave was "deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." SAppx. 83. The Board next determined that Mr. Stanton's misconduct did not fall within the exception for minor offenses where service "was otherwise honest, faithful, and meritorious" because it was "an offense triable by court martial and punishable by confinement and the issuance of a punitive discharge." SAppx. 83-84. The Board also determined that Mr. Stanton was not insane at the time of his second AWOL period, so he did not come within the insanity exception stated in 38 C.F.R. § 3.12(b), as defined by 38 C.F.R. § 3.354(a). SAppx. 87-88. The Board stated that his "intellectual deficit and personality disorder" reported in 1971 "is not a disease for VA compensation purposes" and thus "does not satisfy the definition of insanity under 38 C.F.R. § 3.354(a)." SAppx. 88. Lastly, the Board determined that Mr. Stanton cannot seek relief under the "compelling circumstances" exception of a different provision barring benefits for discharges based on certain misconduct, 38 C.F.R. § 3.12(c)(6), because the provision and its exception only apply to persons discharged based on AWOL periods of at least 180 days and not to persons discharged based on Mr. Stanton's shorter AWOL periods. SAppx. 8889.
The Veterans Court, following Mr. Stanton's post-remand appeal, affirmed the Board's decision. The Veterans Court agreed with the Board's determination that Mr. Stanton's conduct fell within § 3.12(d)(4) and not § 3.12(c)(6), noting that the latter applies only to discharges based on AWOL periods of at least 180 days. Stanton, 2022 WL 2447466, at *7. Likewise, the Veterans Court determined that the Board did not err in finding that Mr. Stanton's second AWOL offense constituted willful and persistent misconduct and was not a minor offense. Id. at *8-11. In particular, the Veterans Court noted that none of the evidence cited by Mr. Stanton-the March 2016 report, the May 2018 report, and the school records-constitutes evidence that Mr. Stanton unintentionally went AWOL for a second time. Id. at *9-11. The Veterans Court then determined that the Board did not err in finding that Mr. Stanton was not insane at the time of his second AWOL period. Id. at *11-15. The Veterans Court specifically rejected Mr. Stanton's interpretation of "insane" as inconsistent with 38 C.F.R. § 3.354(a), determined that the Board addressed all the relevant evidence,[3] and agreed with the Board's finding that Mr. Stanton "was not insane as a result of a 'disease' as defined by VA regulation." Id.
The Veterans Court entered final judgment on August 9, 2022, and Mr. Stanton...
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