Case: 22-2224 Document: 28 Page: 1 Filed: 04/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FREEMAN W. STANTON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2224
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-2636, Judge Coral Wong Pi-
etsch.
______________________
Decided: April 7, 2023
______________________
FREEMAN W. STANTON, Deer Lodge, MT, pro se.
DANIEL BERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, 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.
Case: 22-2224 Document: 28 Page: 2 Filed: 04/07/2023
2 STANTON v. MCDONOUGH
______________________
Before REYNA, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
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 pe-
riod, 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 re-
gional office denied his claims. So did the Board of Veter-
ans’ Appeals. Mr. Stanton then appealed the Board
decision to the Court of Appeals for Veterans Claims (Vet-
erans Court), which vacated the Board’s decision and re-
manded. 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.
I
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 Oc-
tober 1971. 1 After his first AWOL period, Mr. Stanton was
ordered into correctional custody for 7 days. After his sec-
ond AWOL period, the Air Force charged him (on Novem-
ber 12, 1971) with violating the Uniform Code of Military
1 A number of minor differences in the dates and
counts of days of the AWOL periods appear in the record.
For purposes of this appeal, and without making our own
findings (on a factual matter), we accept the dates and
counts stated by Mr. Stanton. See Mr. Stanton’s Br. at 4.
Case: 22-2224 Document: 28 Page: 3 Filed: 04/07/2023
STANTON v. MCDONOUGH 3
Justice, Article 86, and referred him for trial by court-mar-
tial. 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 “Men-
tal Hygiene Service has said [he] could be discharged for a
character and behavior disorder: emotionally unstable per-
sonality based on drug use.”
Id. Notwithstanding these
statements, Mr. Stanton acknowledged that his “request
for discharge, if approved, may result in receiving an unde-
sirable 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 con-
dition 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 ill-
ness.”
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 “unde-
sirable discharge” of Mr. Stanton. SAppx. 41. In January
1972, Mr. Stanton applied for a discharge upgrade, from
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4 STANTON v. MCDONOUGH
“Undesirable to Honorable.” SAppx. 42. The Air Force Dis-
charge 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 disabili-
ties” and a “mental disability.” SAppx. 45–46. The rele-
vant 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 ben-
efits 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, sug-
gesting 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 re-
moved); see also SAppx. 57; SAppx. 58. The regional office
maintained its denials in a statement of the case, deter-
mining 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 Honor-
able Conditions, based upon Clemency and his possible un-
suitability for service entry.” SAppx. 70 (emphasis in
original). The Board, in a January 2019 decision, main-
tained 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
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STANTON v. MCDONOUGH 5
for insanity.” SAppx. 72 (Veterans Court decision quoting
the Board decision). 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 sum-
mary to Entry Level Separation and his service character-
ization to Uncharacterized but deny granting his request
for an Honorable discharge.” SAppx. 78.
The Board again maintained the denial of Mr. Stan-
ton’s claims for disability benefits. The Board determined
that Mr. Stanton’s second absence without leave consti-
tuted willful and persistent misconduct under
38 C.F.R.
§ 3.12(d)(4), stating that, in light of his “previous nonjudi-
cial punishment” for his first AWOL period, the second ab-
sence without leave was “deliberate or intentional
wrongdoing with knowledge of or wanton and reckless dis-
regard 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 ser-
vice “was otherwise honest, faithful, and meritorious” be-
cause 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
2 The January 2019 Board decision is not in the ap-
pellate record before us.
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6 STANTON v. MCDONOUGH
“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 deter-
mined that Mr. Stanton cannot seek relief under the “com-
pelling circumstances” exception of a different provision
barring benefits for discharges based on certain miscon-
duct,
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. 88–
89.
The Veterans Court, following Mr. Stanton’s post-re-
mand 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 dis-
charges based on AWOL periods of at least 180 days. Stan-
ton,
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 re-
port, the May 2018 report, and the school records—consti-
tutes 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 re-
jected Mr. Stanton’s interpretation of “insane” as incon-
sistent with
38 C.F.R. § 3.354(a), determined that the
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STANTON v. MCDONOUGH 7
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 timely appealed on August 30,
2022.
II
We have jurisdiction over Mr. Stanton’s appeal under
38 U.S.C. § 7292 to “decide all relevant questions of law,”
but we lack jurisdiction to review “a challenge to a factual
determination” or “a challenge to a law or regulation as ap-
plied to the facts of a particular case,” “[e]xcept to the ex-
tent that an appeal . . . presents a constitutional issue.”
38
U.S.C. § 7292(d). We decide those questions of law de novo.
See Van Dermark v. McDonough,
57 F.4th 1374, 1377 (Fed.
Cir. 2023).
A
In Title 38 of the U.S. Code, the term “veteran” is lim-
ited to one “who served in the active military, naval, air, or
space service, and who was discharged or released there-
from under conditions other than dishonorable.”
38 U.S.C.
§ 101(2). Entitlement to compensation for disabilities re-
lated to service is limited to any such “veteran”—indeed, to
a subset of such veterans: The veteran must have been “dis-
charged or released under conditions other than
3 The Veterans Court noted that the Board did not
specifically address particular statements in Mr. Stanton’s
school records, but the court noted that the Board did re-
view the records and presumably considered the state-
ments at issue. Stanton,
2022 WL 2447466, at *14. The
court also determined that, at any rate, nothing in the
“school report card could possibly constitute favorable med-
ical evidence of a diagnosis of a” required disease.
Id.
Case: 22-2224 Document: 28 Page: 8 Filed: 04/07/2023
8 STANTON v. MCDONOUGH
dishonorable from the period of service” relevant to the dis-
ability at issue.
Id. § 1110 (for service during periods of
war); id. § 1131 (for service not during periods of war).
When a former service member is discharged under
honorable conditions, VA must accept the character of the
discharge as honorable, without independently determin-
ing the character of the former service member’s discharge.
38 C.F.R. § 3.12(a). But for other discharges, when pre-
sented with a claim for disability benefits, VA may inde-
pendently review the character of the discharge to
determine whether the discharge was under “dishonora-
ble” conditions or under conditions that nevertheless result
in a bar to disability benefits. See Robertson v. Shinseki,
26 Vet. App. 169, 175 (2013) (describing VA’s practice, as
provided in the VA Adjudication Procedures Manual, of un-
dertaking “a formal character of discharge determination”
in such circumstances), aff’d sub nom. Robertson v. Gibson,
759 F.3d 1351 (Fed. Cir. 2014); see also VA Adjudication
Procedures Manual, X.iv.1.A.1.e. (last updated Feb. 3,
2023).
In conducting a character-of-discharge review, VA
looks to
38 U.S.C. § 5303 and
38 C.F.R. § 3.12. The statu-
tory provision enumerates certain bars to benefits, includ-
ing certain bars applicable to discharges “under conditions
other than honorable,” and then states an insanity excep-
tion to the “preclu[sion] from benefits under laws adminis-
tered by the Secretary based upon the period of service
from which such person was separated.”
38 U.S.C.
§ 5303(a)–(b). The statute also contains a special provision
addressing certain discharges “under conditions other than
honorable” based on “an absence without authority from
active duty for a continuous period of at least one hundred
and eighty days,” unless the Secretary finds “compelling
circumstances to warrant such prolonged unauthorized ab-
sence.”
Id. § 5303(a).
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STANTON v. MCDONOUGH 9
A VA regulation,
38 C.F.R. § 3.12, implements at least
38 U.S.C. §§ 101(2), 1110, 1131, and 5303. It delineates
two main categories of bars to disability benefits. First,
mirroring the language of
38 U.S.C. § 5303(a), subsection
(c) of the regulation identifies discharge conditions that re-
sult in a bar to disability benefits, including a “discharge
under other than honorable conditions issued as a result of
an absence without official leave (AWOL) for a continuous
period of at least 180 days” unless “there are compelling
circumstances to warrant the prolonged unauthorized ab-
sence.”
38 C.F.R. § 3.12(c)(6). Subsection (d) of the regula-
tion separately provides a list of discharges that are
“considered to have been issued under dishonorable condi-
tions” and thus result in a bar to disability benefits.
Id.
§ 3.12(d). One such category of discharges, at issue here,
covers discharges for “[w]illful and persistent misconduct.”
Id. § 3.12(d)(4). Section 3.12(d)(4) further provides that
this category “includes a discharge under other than hon-
orable conditions, if it is determined that it was issued be-
cause of willful and persistent misconduct” but that “[a]
discharge because of a minor offense will not, however, be
considered willful and persistent misconduct if service was
otherwise honest, faithful and meritorious.” Id. Subsec-
tion (b) of the regulation provides an exception, applicable
to all the discharge conditions described in § 3.12, for for-
mer service members found to have been “insane at the
time of committing the offense causing such discharge or
release or unless otherwise specifically provided [by
38
U.S.C. § 5303(b)].”
Id. § 3.12(b).
Although Congress did not define “insane” for purposes
of § 5303(b), VA has defined the term in
38 C.F.R. § 3.354,
which provides:
An insane person is one who, while not mentally
defective or constitutionally psychopathic, except
when a psychosis has been engrafted upon such
basic condition, exhibits, due to disease, a more or
less prolonged deviation from his normal method
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10 STANTON v. MCDONOUGH
of behavior; or who interferes with the peace of so-
ciety; or who has so departed (become antisocial)
from the accepted standards of the community to
which by birth and education he belongs as to lack
the adaptability to make further adjustment to the
social customs of the community in which he re-
sides.
38 C.F.R. § 3.354(a). VA’s General Counsel has also issued
“a wide-ranging precedential opinion” that interprets the
regulation and is binding on the Board under
38 U.S.C.
§ 7104(c). Bowling v. McDonough,
38 F.4th 1051, 1054
(Fed. Cir. 2022) (citing Veterans Affairs Opinion of General
Counsel Prec. 20-97,
1997 WL 34674474 (May 22, 1997)
(Veterans Affairs Opinion)). The opinion, among other
things, notes that
38 C.F.R. § 3.303(c) states that “a per-
sonality disorder is not a disease or injury for purposes of
VA disability compensation” and that, “[b]ecause a person-
ality disorder is not a disease for VA compensation pur-
poses, behavior which is attributable to a personality
disorder does not satisfy the definition of insanity in sec-
tion 3.354(a).” Veterans Affairs Opinion, at *3; see
38
C.F.R. § 3.303(c) (“Congenital or developmental defects, re-
fractive error of the eye, personality disorders and mental
deficiency as such are not diseases or injuries within the
meaning of applicable legislation.”).
B
Mr. Stanton presents four main arguments on appeal.
1
Mr. Stanton suggests that the “compelling circum-
stances” exception of § 3.12(c)(6) (based on § 5303(a)) ap-
plies to periods of AWOL of 180 days or less—like Mr.
Stanton’s periods of 7 and 59 days—and that he has estab-
lished such compelling circumstances. Mr. Stanton’s Br. at
4–5. The first part of that suggestion is a legal contention,
but it is incorrect. Section 3.12(c)(6), by its plain language,
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STANTON v. MCDONOUGH 11
applies only to “an absence without official leave (AWOL)
for a continuous period of at least 180 days.”
38 C.F.R.
§ 3.12(c)(6). As the Veterans Court held long ago, the com-
pelling-circumstances exception of that provision is not an
exception to the 180-day precondition. See Winter v. Prin-
cipi,
4 Vet. App. 29, 31–32 (1993).
The Veterans Court and VA viewed Mr. Stanton’s dis-
charge as falling within § 3.12(d)(4), concerning discharges
for “[w]illful and persistent misconduct,” excepting “dis-
charge because of a minor offense . . . if service was other-
wise honest, faithful and meritorious.”
38 C.F.R.
§ 3.12(d)(4). But Mr. Stanton has not presented us with a
question of legal interpretation concerning that provision.
And fact findings or application of regulatory law to fact
are not within our jurisdiction to review. See Jefferson v.
Principi,
271 F.3d 1072, 1075 (Fed. Cir. 2001); Waltzer v.
Nicholson,
447 F.3d 1378, 1380 (Fed. Cir. 2006).
2
Seeking relief under the “minor offense” exception of
§ 3.12(d)(4), Mr. Stanton contends that he presented
enough evidence of mitigating circumstances that his of-
fense should be considered a minor one. Mr. Stanton’s Br.
at 7. But Mr. Stanton does not point to a misinterpretation
of the provision by the Veterans Court. Instead, he appears
to contend that the record evidence demonstrates that his
offense was minor—which raises only an issue of fact or of
application of regulatory law to fact, over which we have no
jurisdiction. See Jefferson,
271 F.3d at 1075; Waltzer,
447
F.3d at 1380.
3
Mr. Stanton contends that whether a person “know[s]
or understand[s] the nature of his actions is a ‘touchstone’”
of the definition of insanity in
38 C.F.R. § 3.354(a). Mr.
Stanton’s Br. at 6. On that basis, he suggests that he pre-
sented evidence of his insanity such that he “should not
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12 STANTON v. MCDONOUGH
[have] been punished for his misconduct with an unde-
sir[]able discharge.”
Id. at 6–7.
But Mr. Stanton has not shown an error of law. Section
3.354 contains several specific requirements, including
that the former service member “exhibits, due to disease, a
more or less prolonged deviation from his normal method
of behavior,”
38 C.F.R. § 3.354(a), and it has been clarified
in various ways by a General Counsel opinion that binds
the Board. See Bowling, 38 F.4th at 1054. Mr. Stanton has
identified no error in interpretation that affects his case.
And he does not challenge the validity of § 3.354 as a stat-
utory implementation. To the extent Mr. Stanton contends
that he nevertheless satisfied the requirements of § 3.354
when he went AWOL—by arguing, e.g., that “erra[]tic
thought patterns” meet the criteria for “psychiatric dis-
ease” which itself “meets the criteria for a disability,” Mr.
Stanton’s Br. at 7—adjudicating such a contention requires
applying regulatory law to fact, a task outside our jurisdic-
tion. See Jefferson,
271 F.3d at 1075; Waltzer,
447 F.3d at
1380.
4
Mr. Stanton contends that the Veterans Court violated
his “Right to Due Process” by denying his motion to file new
evidence during the pendency of his appeal before the Vet-
erans Court. Mr. Stanton’s Br. at 2, 5–6. The Fifth Amend-
ment provides a right to due process against the federal
government, but we discern no constitutional violation in
the Veterans Court’s denial of Mr. Stanton’s motion. The
Veterans Court has jurisdiction only to review Board deci-
sions “on the record of proceedings before the Secretary and
the Board.”
38 U.S.C. § 7252(b); see also Kyhn v. Shinseki,
716 F.3d 572, 578 (Fed. Cir. 2013). Mr. Stanton had ample
opportunity to develop the factual record before VA and
provided new evidence on several occasions throughout the
claim adjudication process that VA considered. See SAppx.
57–58 (supplying school records); SAppx. 68–70 (supplying
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STANTON v. MCDONOUGH 13
the March 2016 report); SAppx. 76–78 (supplying the May
2018 report). We are aware of no authority suggesting that
the familiar limit on an appellate tribunal’s review of
agency proceedings to the record developed before the
agency constitutes a due process violation when there was
adequate opportunity to develop the factual record before
the agency.
III
We have considered Mr. Stanton’s remaining argu-
ments and find them unpersuasive or to raise issues out-
side our jurisdiction. For the foregoing reasons, we affirm
the Veterans Court’s decision affirming the Board’s post-
remand denial of Mr. Stanton’s claims for benefits.
The parties shall bear their own costs.
AFFIRMED
