Garvey v. Wilkie, No. 20-1128 (Fed. Cir. 2020)Annotate this Case
Garvey served in the Army, 1966-1970. While posted in Germany, Garvey was punished for “disorderly conduct.” Garvey was posted to Vietnam, where he was convicted by special courts-martial of possessing four pounds of cannabis with intent to sell and of being absent without leave three times. Garvey was discharged as unfit for service with an “Undesirable Discharge.” He waived consideration of his case before a board of officers and acknowledged that he “may be ineligible for many or all benefits as a veteran.” In 1977, under the Special Discharge Review Program for Vietnam-era service members, Garvey’s discharge status was upgraded to “Under Honorable Conditions (General).” In 1978, a Discharge Review Board found that Garvey would not have been entitled to an upgrade under generally applicable standards. Garvey died in 2010.
His widow applied for dependency and indemnity compensation and death pension benefits. The Veterans Court and Federal Circuit affirmed the denial of her claim; 38 C.F.R. 3.12(d)(4) is not contrary to 38 U.S.C. 5303, which is not the exclusive test for benefits eligibility. A former service member is ineligible for benefits unless he is a “veteran.” Under 38 U.S.C. 101(2), to be a veteran, a former service member must have been discharged “under conditions other than dishonorable.”The VA was authorized to define a discharge for willful and persistent misconduct as a discharge under “dishonorable conditions.”