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Robertson v. Gibson

United States Court of Appeals, Federal Circuit

July 21, 2014

TONY W. ROBERTSON, Claimant-Appellant,
SLOAN D. GIBSON, Acting Secretary of Veterans Affairs, Respondent-Appellee

Appeal from the United States Court of Appeals for Veterans Claims in No. 11-3521, Judge Margaret C. Bartley.

NATHAN S. MAMMEN, Kirkland & Ellis LLP, of Washington, DC, argued for claimant-appellant. With him on the brief was RACHEL E. GOLDSTEIN.

MICHAEL P. GOODMAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and RACHAEL T. BRANT, Attorney, United States Department of Veterans Affairs, of Washington, DC.

MEGAN F. RAYMOND and PAUL M. SCHOENHARD, Ropes & Gray, LLP, of Washington, DC, for amicus curiae, National Institute of Military Justice.

Before O'MALLEY and HUGHES, Circuit Judges.[*]


Page 1352

Hughes, Circuit Judge .

During the Vietnam War era and after having served a period of confinement for being absent without leave, Tony W. Robertson was discharged from the Army under conditions other than honorable, a character of discharge that can foreclose the receipt of veterans' benefits. He subsequently participated in President Ford's clemency program and received a presidential pardon and a new clemency discharge. Despite his pardon and clemency discharge, the Department of Veterans Affairs has continued to deny Mr. Robertson's claim for veterans' benefits. We must decide whether the presidential pardon precludes the Department of Veterans Affairs from relying on Mr. Robertson's underlying misconduct in making a benefits decision. Because we conclude that the Department of Veterans Affairs properly considered the misconduct underlying his pardoned offense to deny his application for benefits, we affirm.

Page 1353


Roughly 13,000 civilians and 100,000 service members committed draft or military absence offenses during the Vietnam War era. U.S. Presidential Clemency Board, Report to the President xi (1975) [hereinafter PCB Report ], available at On September 16, 1974, six weeks after taking office, President Ford announced " a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." Proclamation 4313, 39 Fed. Reg. 33,293, 33,293-95 (Sept. 17, 1974). Its stated purpose was " to bind the Nation's wounds and to heal the scars of divisiveness" inflicted upon American society during the Vietnam War. Id. at 33,293. Accordingly, President Ford declared that Vietnam-era military deserters and draft evaders would be given " the opportunity to earn return to their country, their communities, and their families, upon their agreement to a period of alternate service in the national interest, together with an acknowledgment of their allegiance to the country and its Constitution." Id. The President's program was carefully crafted, recognizing that " [u]nconditional amnesty would have created more ill feeling than it would have eased. Reconciliation was what was needed, and reconciliation could only [have] come from a reasoned middle ground." PCB Report 1.

To help administer the program, President Ford established a Presidential Clemency Board (PCB). See Executive Order 11803, 39 Fed. Reg. 33,297, 33,297-98 (Sept. 17, 1974). Its role was to advise the President how he should exercise his discretion to grant clemency under Article II, Section 2, of the Constitution. Clemency Program Practices and Procedures: Hearings Before the Subcomm. on Admin. Practice and Procedure of the Comm. on the Judiciary, 93d Cong. 14 (1975) [hereinafter PCB Hearings] (statement of Charles E. Goodell, Director, Presidential Clemency Board), available at

The PCB was guided by several core principles. For one, the PCB recognized that the President was granting clemency, not amnesty, and that clemency was to be determined on a case-by-case basis, not through a categorical approach. Id. at 2-3. Accordingly, the PCB made findings and recommendations in each case as to whether the President should grant or deny clemency. Executive Order 11803, 39 Fed. Reg. at 33,297; see also PCB Report 3; PCB Hearings 42. Among other things, the PCB examined applications for clemency from former servicemen, like Mr. Robertson, who received undesirable discharges for going absent without leave (AWOL) between the date of the Gulf of Tonkin Resolution (August 4, 1964) and the date the last American combatant left Vietnam (March 28, 1973). Executive Order 11803, 39 Fed. Reg. at 33,297; PCB Report xi. In total, 13,589 of approximately 90,000 servicemen discharged for AWOL offenses applied. PCB Report xiii.

These applicants not only suffered the social stigma and employability problems caused by having a " bad paper" discharge, they also carried a federal felony conviction for violating military law. PCB Hearings 15. In part, President Ford addressed these problems by pardoning qualified applicants convicted for AWOL offenses. PCB Report 186. But a pardon under the clemency program " result[ed] in no more than a partial restoration of an applicant's records and rights, blotting out neither the fact nor the record of his conviction." Id. " The benefits of a pardon [were] its restoration of the right to vote, hold office, hold trade licenses, and enjoy other rights lost or impaired by a felony conviction." Id.; see also PCB Administrative Procedures and Substantive Standards,

Page 1354

40 Fed. Reg. 12,763, 12,763 (Mar. 21, 1975). In addition, survey evidence suggested that a pardon under President Ford's clemency program would improve employability. See PCB Report 186.

The President could also upgrade an applicant's undesirable discharge status at least to a " clemency discharge" --a new type of status created under the program. Id. at 13, 186-87, 270. Granting a clemency discharge was intended to ensure equal employment opportunities and to remove the stigma of a bad record. Id. at xii, 78, 186-87, 276. It did not confer veterans' benefits. Proclamation 4313, 39 Fed. Reg. at 33,295; PCB Administrative Procedures and Substantive Standards, 40 Fed. Reg. at 12,763; PCB Report xii, 186-87. Nor did it preclude benefits. A clemency discharge was a neutral discharge issued " neither under 'honorable' conditions nor under 'other than honorable' conditions." PCB Report 13. Accordingly, applicants remained eligible to seek veterans' benefits from the Department of Veterans Affairs and to appeal if the VA denied those benefits. Id. Applicants also remained eligible to seek further upgrades to their discharge statuses from the appropriate military review boards. Id.

Although the program generally had no direct effect on an applicant's eligibility for veterans' benefits, the President specifically granted veterans' benefits in about eighty particularly meritorious AWOL cases (approximately 0.6% of all AWOL cases). Id. at 140. These applicants had, at a minimum, creditable service and one or more tours in Vietnam. They were typically decorated soldiers who had been wounded or disabled in combat or whose absences could be excused in light of extraordinary emotional trauma experienced during combat. See id . For the vast majority of applicants, however, the President did not anticipate that the clemency discharge and ...

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