For Veterans Who've Had It With The VA

For Veterans Who've Had It With The VA

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Home > FedCir., Garvey v. Wilkie, No. 2020-1128 (Decided: August 27, 2020); “veteran” as defined in 38 U.S.C. § 101(2); VA was authorized to define a discharge for willful and persistent misconduct as a discharge under “dishonorable conditions.” See 38 C.F.R. § 3.12;

FedCir., Garvey v. Wilkie, No. 2020-1128 (Decided: August 27, 2020); “veteran” as defined in 38 U.S.C. § 101(2); VA was authorized to define a discharge for willful and persistent misconduct as a discharge under “dishonorable conditions.” See 38 C.F.R. § 3.12;

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United States Court of Appeals for the Federal Circuit



DIANA GARVEY, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

2020-1128

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-5059, Senior Judge Robert N. Davis.
__________ Decided: August 27, 2020 __________
ROBERT C. BROWN, JR., Norman, OK, for claimant-ap-pellant. AMANDA TANTUM, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing-ton, DC, for respondent-appellee. Also represented by ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
__________ Case: 20-1128 Document: 33 Page: 1 Filed: 08/27/2020
GARVEY v. WILKIE
2
Before LOURIE, SCHALL, and DYK, Circuit Judges.
DYK, Circuit Judge.
Diana Garvey is the widow of John P. Garvey. Mr. Garvey served in the Army from 1966 to 1970. Mrs. Garvey sought dependency and indemnity compensation and death pension benefits on the basis of Mr. Garvey’s Army service. The Department of Veterans Affairs (“VA”) denied Mrs. Garvey’s claim because Mr. Garvey was discharged from the Army for “willful and persistent misconduct,” and thus he was ineligible for benefits under the applicable regulation. See 38 C.F.R. § 3.12(d)(4). Mrs. Garvey now challenges the validity of Rule 3.12(d)(4) as being contrary to 38 U.S.C. § 5303.
We hold that the regulation is consistent with, and authorized by, the statute. Section 5303, contrary to Mrs. Garvey’s assertion, is not the exclusive test for benefits eligibility. A former servicemember is ineligible for benefits unless he or she is a “veteran”

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FedCir., Garvey v. Wilkie, No. 2020-1128 (Decided: August 27, 2020); "veteran" as defined in 38 U.S.C. § 101(2); VA was authorized to define a discharge for willful and persistent misconduct as a discharge under "dishonorable conditions." See 38 C.F.R. § 3.12;

United States Court of Appeals for the Federal Circuit DIANA GARVEY, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee 2020-1128 Appeal from the United States Court of Appeals for Veterans Claims in No. 18-5059, Senior Judge Robert N. Davis.__________ Decided: August 27, 2020 __________ROBERT C. BROWN, JR., Norman, OK, for claimant-ap-pellant.