Grounds v. McDonough

Case: 22-1607 Document: 32 Page: 1 Filed: 07/14/2023
United States Court of Appeals
for the Federal Circuit
______________________
LINDA D. GROUNDS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1607
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3115, Judge William S. Green-
berg.
______________________
Decided: July 14, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY; JONATHAN KRISCH, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
______________________
Case: 22-1607 Document: 32 Page: 2 Filed: 07/14/2023
2 GROUNDS v. MCDONOUGH
Before REYNA, STOLL, and STARK, Circuit Judges.
STARK, Circuit Judge.
Linda D. Grounds, the widow of John D. Grounds, ap-
peals a decision of the Court of Appeals for Veterans
Claims (“Veterans Court”), affirming a decision of the
Board of Veterans’ Appeals (“Board”) finding Mr. Grounds
ineligible for veterans benefits. We affirm.
I
Mr. Grounds served in the Army from May 1969 to No-
vember 1972. In October 1972, he was charged with being
absent without leave (“AWOL”) during the periods of April
26 to May 31, 1972, June 13 to August 31, 1972, and Sep-
tember 8 to October 2, 1972. To avoid a trial by court-mar-
tial for these AWOL offenses, Mr. Grounds requested to be
discharged from the Army “for the good of the service.” J.A.
31-32. He explained that his military service was causing
marital and financial problems and, if he were to remain in
the Army, he would continue going AWOL. His command-
ing officers recommended that Mr. Grounds’ discharge re-
quest be granted, because any resulting punishment was
“expected to have minimal rehabilitative effect” and would
provide no benefit to the Army. J.A. 35. On November 1,
1972, Mr. Grounds was discharged “[f]or the good of the
[s]ervice” and “[u]nder conditions other than [h]onorable.”
J.A. 36.
In December 2013, Mr. Grounds filed an application for
veterans benefits. In November 2014, a Veterans Affairs
(“VA”) Regional Office (“RO”) issued a decision finding his
multiple periods of AWOL constituted “willful and persis-
tent misconduct,” rendering him ineligible for benefits un-
der 38 C.F.R. § 3.12(d)(4). Mr. Grounds filed a Notice of
Disagreement in October 2015, challenging the RO’s deci-
sion. After Mr. Grounds passed away in June 2016, Mrs.
Grounds was substituted for him.
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GROUNDS v. MCDONOUGH 3
In January 2020, the Board issued a decision agreeing
with the RO that Mr. Grounds’ multiple periods of AWOL
constituted “a pattern of willful and persistent miscon-
duct.” J.A. 65 (reasoning Mr. Grounds “exhibited multiple
willful actions that led to the charges against him, includ-
ing willfully absenting himself from his military unit with-
out authority . . . even after receiving nonjudicial
punishment for his first AWOL offense”). Thus, the Board
concluded, his discharge was considered “dishonorable” for
VA benefits purposes, rendering him ineligible for such
benefits.
Mrs. Grounds appealed the Board’s decision to the Vet-
erans Court, arguing that “38 U.S.C. § 5303(a) controls as
a matter of law and cannot be superseded by the provisions
of 38 C.F.R. § 3.12(d)(4).” J.A. 8. Section 5303(a) provides
that a veteran is not eligible for benefits if he was “dis-
charge[d] or dismiss[ed] by reason of the sentence of a gen-
eral court-martial . . . on the basis of an absence without
authority from active duty for a continuous period of at
least one hundred and eighty days . . . .” Relying on our
decision in Garvey v. Wilkie, 972 F.3d 1333, 1334 (Fed. Cir.
2020), the Veterans Court rejected Mrs. Grounds’ argu-
ment. Instead, as the Veterans Court explained, section
5303(a) “is not the exclusive test for benefits eligibility,”
adding that 38 C.F.R. § 3.12(d)(4) “is consistent with, and
authorized by,” statute. J.A. 8 (quoting Garvey, 972 F.3d
at 1334). While Mr. Grounds’ misconduct “do[es] not con-
stitute a statutory bar to VA benefits under section 5303,”
nevertheless “the Board did not clearly err in finding that
the veteran’s multiple periods of AWOL constituted a reg-
ulatory bar to VA benefits under 38 C.F.R.
§ 3.12(d)([4]) . . . .” 1 J.A. 8-9 (emphasis added). Thus, the
Veterans Court affirmed the Board’s decision.
1 In some parts of its opinion, the Veterans Court re-
fers to 38 C.F.R. § 3.12(d)(2), which pertains to “[m]utiny
Case: 22-1607 Document: 32 Page: 4 Filed: 07/14/2023
4 GROUNDS v. MCDONOUGH
Mrs. Grounds appeals the decision of the Veterans
Court.
II
We have exclusive, but limited, jurisdiction to review
decisions of the Veterans Court. See 38 U.S.C. § 7292(c);
Sullivan v. McDonald, 815 F.3d 786, 788-89 (Fed. Cir.
2016). “We may review legal questions, including the va-
lidity of any statute or regulation or any interpretation
thereof.” Sullivan, 815 F.3d at 788-89. Such legal deter-
minations are reviewed de novo. See Cushman v. Shinseki,
576 F.3d 1290, 1296 (Fed. Cir. 2009). We may not, how-
ever, review (1) “a challenge to a factual determination” or
(2) “a challenge to a law or regulation as applied to the facts
of a particular case,” unless the appeal presents a constitu-
tional issue. 38 U.S.C. § 7292(d)(2).
III
Mrs. Grounds principally argues that the Veterans
Court misinterpreted 38 U.S.C. § 5303(a). According to
Mrs. Grounds, section 5303(a) does not bar Mr. Grounds
from receiving VA benefits because (1) he was never con-
victed for any AWOL offense and (2) his AWOL periods did
not run 180 days or longer. Thus, Mrs. Grounds argues,
the Veterans Court’s finding that Mr. Grounds’ AWOL of-
fenses amounted to willful and persistent misconduct un-
der section 3.12(d)(4) is inconsistent with section 5303(a).
We agree with Mrs. Grounds to the limited extent that
section 5303(a) does not preclude Mr. Grounds from obtain-
ing VA benefits. Mr. Grounds was not convicted by court
martial – because his request to be discharged “for the good
of the service” was granted instead – and he was not AWOL
or spying.” These are clearly typographical errors. It is
clear from the context that the Veterans Court is referring
throughout to section 3.12(d)(4).
Case: 22-1607 Document: 32 Page: 5 Filed: 07/14/2023
GROUNDS v. MCDONOUGH 5
for a continuous period of at least 180 days. Therefore, the
statute, section 5303(a), does not prohibit Mr. Grounds
from obtaining veterans benefits.
But these facts do not cause us to agree with Mrs.
Grounds that we should reverse the Veterans Court, be-
cause section 5303(a) was not the basis for the denial of
benefits to Mr. Grounds. Instead, the Board’s decision was
grounded on, entirely appropriately, a regulation – specifi-
cally, section 3.12(d)(4). As we held in Garvey, 972 F.3d at
1334, “[s]ection 5303 . . . is not the exclusive test for bene-
fits eligibility.” There we further held, expressly, that sec-
tion 3.12(d)(4) is a permissible additional prohibition on
eligibility for benefits. See id. at 1341. Mrs. Grounds does
not challenge the validity of section 3.12(d)(4), see Appel-
lant’s Brief at 5 (“Mrs. Grounds’s appeal is not a challenge
to the validity of the Secretary’s regulation at 38 C.F.R.
§ 3.12(d).”); see also Oral Arg. at 13:7-14 (“I’m not challeng-
ing the validity of the regulation.”), and we are bound to
follow Garvey. Accordingly, the Board did not err in finding
Mr. Grounds ineligible for benefits pursuant to section
3.12(d)(4).
An additional reason Mr. Grounds is not eligible is that
he does not meet the statutory definition of “veteran” for
benefits purposes. As we observed in Garvey, 972 F.3d at
1334, “[a] former servicemember is ineligible for benefits
unless he or she is a ‘veteran’ as defined in 38 U.S.C.
§ 101(2).” “To be a ‘veteran’ under section 101(2), a former
servicemember must have been discharged ‘under condi-
tions other than dishonorable.’” Id. (quoting 38 U.S.C.
§ 101(2)). Mr. Grounds, however, was not discharged “un-
der conditions other than dishonorable,” because section
3.12(d)(4) provides that “[a] discharge or release because of
. . . [w]illful and persistent misconduct” is a discharge un-
der “dishonorable conditions.” See also J.A. 36 (showing
Mr. Grounds being discharged “[u]nder conditions other
than Honorable”).
Case: 22-1607 Document: 32 Page: 6 Filed: 07/14/2023
6 GROUNDS v. MCDONOUGH
Finally, to the extent Mrs. Grounds is challenging the
factual basis for Mr. Grounds’ discharge – her counsel sug-
gested at oral argument that the RO lacked a record suffi-
cient to find that Mr. Grounds’ discharge was actually due
to his periods of AWOL, see, e.g., Oral Arg. at 4:58-5:28 –
we lack jurisdiction to review this factual finding. See 38
U.S.C. § 7292(d)(2); see also J.A. 8 (Veterans Court conclud-
ing Board’s factual finding was not clearly erroneous).
IV
We have considered Mrs. Grounds’ remaining argu-
ments and find they lack merit. Accordingly, the decision
of the Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.