Veteranclaims’s Blog

August 6, 2014

Martin v. McDonald, No. 2013-7097(Decided: August 5, 2014); Willful Misconduct

Excerpt from decision below:
“It is undisputed that the officially declared reason for Mr. Martin’s discharge was “alcohol rehabilitation failure.” But “alcohol rehabilitation failure” cannot be said always to constitute or result from willful misconduct, regardless of circumstances. And neither the Board nor the Veterans Court made any determination of what particular conduct by Mr. Martin constituted misconduct, engaged in with the state of mind required for willfulness, that led to the rehabilitation-failure determination. In the absence of such findings, the denial of benefits cannot be upheld without reliance on an incorrect rule of law that alcohol rehabilitation failure always results from willful misconduct.”
=============================
“CONCLUSION
Because “alcohol rehabilitation failure,” and even alcohol dependence and acts resulting from alcohol dependence, cannot be characterized as being or resulting from willful misconduct in every case, and the Board made no findings pertinent to this particular case, the decision below must be vacated, and the case remanded. If the Secretary continues to deny benefits, the Board, following appropriate procedures for needed record development, should make further factual findings. In that process, it should ensure consistency between assertions or findings
made in this proceeding and those made in disability or other proceedings involving Mr. Martin.”
===========================
United States Court of Appeals for the Federal Circuit
______________________
GROVER MARTIN,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7097
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0375, Judge Alan G. Lance, Sr.
______________________
Decided: August 5, 2014
______________________
GROVER MARTIN, of Mobile, Alabama, pro se.
TARA K. HOGAN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent
appellee. On the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
SCOTT D. AUSTIN, Assistant Director, and KIMBERLY I.
KENNEDY, Trial Attorney. Of counsel on the brief was
MICHELLE D.D. BERNSTEIN, Attorney, United States
Department of Veterans Affairs, of Washington, DC. Of
counsel was JEFFREY D. KLINGMAN, Trial Attorney.
2 MARTIN v. MCDONALD
ALLISON B. JONES, Williams & Connolly LLP, of
Washington, DC, argued for court-appointed amicus
curiae Kannon K. Shanmugam. With her on the brief was
KANNON K. SHANMUGAM.
______________________
Before NEWMAN, CLEVENGER, and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
Grover Martin, a veteran of the United States Army, applied for educational-assistance benefits under 38 U.S.C. § 3011. The Board of Veterans’ Appeals denied the application, concluding that Mr. Martin was ineligible for benefits under section 3011 because the basis for his honorable discharge in 1990 constituted “willful misconduct” as a matter of law. The Court of Appeals for Veterans
Claims affirmed. Martin v. Shinseki, No. 11-0375, 2013 WL 931950 (Vet. App. Mar. 11, 2013).
It is undisputed that the officially declared reason for Mr. Martin’s discharge was “alcohol rehabilitation failure.” But “alcohol rehabilitation failure” cannot be said always to constitute or result from willful misconduct, regardless of circumstances. And neither the Board nor the Veterans Court made any determination of what particular conduct by Mr. Martin constituted misconduct, engaged in with the state of mind required for willfulness, that led to the rehabilitation-failure determination. In the absence of such findings, the denial of benefits cannot be upheld without reliance on an incorrect rule of law that alcohol rehabilitation failure always results from willful misconduct. Accordingly, we vacate the decision below. If the Secretary continues to deny the requested education
benefits, the Veterans Court must further remand for inquiry into what if any willful conduct led to the rehabilitation failure in Mr. Martin’s individual case.
MARTIN v. MCDONALD 3

BACKGROUND
From January 1988 to April 1990, Mr. Martin served
on active duty in the United States Army. When he
sought treatment from the Army’s substance-abuse program
during his service, a doctor working in the program
diagnosed him with alcohol dependence. In August 1989,
Mr. Martin started alcohol-rehabilitation counseling,
which evidently was not successful. On April 27, 1990,
the Army honorably discharged him. As the Secretary
agrees, the officially stated reason—which modified an
initial statement, “alcohol abuse–rehabilitative failure”—
was simply “alcohol rehabilitation failure.” Amicus App.
18-19.1
After his discharge, Mr. Martin applied to the Department
of Veterans Affairs for educational-assistance
benefits under Chapter 30, Title 38, of the United States
Code.2 In August 2008, the VA’s Atlanta regional office
denied his application.
Mr. Martin appealed the denial of his application to
the Board of Veterans’ Appeals, where he argued that he
qualified for education benefits under 38 U.S.C. § 3011.
That section authorizes “basic educational assistance” for
1 “Amicus App.” refers to the appendix to the opening
brief filed by the attorney that this court appointed as
an amicus curiae to support Mr. Martin’s position. The
court thanks appointed counsel and his co-counsel for
commendably developing the position in briefs and at oral
argument.
2 We have no occasion to examine whether Mr.
Martin met regulatory requirements regarding the period
of eligibility for education assistance. See 38 C.F.R. §§
21.7050, 21.7051. The Secretary did not raise an objection
here or before the Veterans Court, and it has therefore
waived such an objection.
4 MARTIN v. MCDONALD
veterans in various circumstances. The only provision
invoked here authorizes benefits for a veteran who was
discharged or released from active duty for certain reasons,
including a service-connected disability, a medical
condition that preexisted his service, hardship, or “a
physical or mental condition that was not characterized
as a disability and did not result from the individual’s
own willful misconduct but did interfere with the individual’s
performance of duty.” Id. § 3011(a)(1)(A)(ii). Mr.
Martin argued to the Board that his discharge for “alcohol
rehabilitation failure” was for a physical or mental condition
that (a) was not the result of willful misconduct but
(b) interfered with the performance of his duties.
The Board denied his application for education benefits
in September 2009. The Board began by stating that
Mr. Martin “was discharged due to alcohol abuse–
rehabilitative failure.” Amicus App. 13. That statement
mistakenly cited the initial reason for discharge, which
had been superseded by “alcohol rehabilitation failure.”
The Board then cited the regulation that defines willful
misconduct, 38 C.F.R. § 3.1(n) (“Willful misconduct means
an act involving conscious wrongdoing or known prohibited
action. . . . It involves deliberate or intentional wrongdoing
with knowledge of or wanton and reckless disregard
of its probable consequences.”). Amicus App. 13. “Additionally,”
the Board said, “the law generally precludes
compensation for primary alcohol and drug abuse disabilities.”
Id. Without more, the Board concluded: “The
record thus indicates that the Veteran was discharged for
alcohol abuse, which is characterized as willful misconduct.”
Id. (emphases added).
The Board never discussed any specific acts by Mr.
Martin, much less evidence that such specific acts
amounted to willful misconduct. The discussion was
entirely generic to “alcohol abuse” (which was not even
the official reason for Mr. Martin’s discharge). Indeed,
the Board twice noted that it was deciding an issue of law,
MARTIN v. MCDONALD 5
not case-specific fact. Id. at 12 (“the issue presented is
one of statutory interpretation and/or the claim is barred
as a matter of law”); id. at 14 (“As the disposition of this
claim is based on the law, and not the facts of the case,
the claim must be denied based on a lack of entitlement
under the law.”).
Mr. Martin appealed to the Veterans Court, which affirmed.
The court correctly identified “alcohol rehabilitation
failure” as the final, official reason for discharge. Id.
at 2. The court then (partly) quoted the Board’s “[t]he
record thus indicates . . .” sentence about alcohol abuse
and stated that Mr. Martin “neither argued nor demonstrated
that the Board’s finding is ‘clearly erroneous.’”
Amicus App. 4. The court added that the Board’s “the law
generally precludes . . .” sentence about alcohol disabilities
was “correct.” Id. Like the Board, the Veterans
Court did not discuss any specific acts by Mr. Martin.
Mr. Martin appeals, invoking this court’s jurisdiction
under 38 U.S.C. § 7292(a).
DISCUSSION
The claim before us is that the Veterans Court committed
a legal error in affirming the Board’s conclusion
that Mr. Martin’s discharge rested on “willful misconduct”
under 38 U.S.C. § 3011(a)(1)(A)(ii), without specific inquiry
into or findings about Mr. Martin’s individual
conduct relating to his “alcohol rehabilitation failure.” We
have jurisdiction to review this claim of legal error. And
we conclude that there was legal error.
A
Our jurisdiction, limited by statute, includes review of
“any interpretation” of “any statute or regulation” that
was relied on in the decision on appeal. 38 U.S.C.
§ 7292(a). We have jurisdiction to determine whether the
Veterans Court misinterpreted the governing statutory
provisions. Waters v. Shinseki, 601 F.3d 1274, 1276 (Fed.
6 MARTIN v. MCDONALD
Cir. 2010). This jurisdiction allows us to determine
whether a Veterans Court decision may have rested on an
incorrect rule of law, Colantonio v. Shinseki, 606 F.3d
1378 (Fed. Cir. 2010), and, moreover, to determine that
the correct rule of law requires factual determinations
missing from the Board’s decision (and perhaps further
factual development), thus precluding Veterans Court
affirmance of the Board’s decision, Hensley v. West, 212
F.3d 1255, 1263-64 (Fed. Cir. 2000).
Here, although the Veterans Court never expressly
stated an interpretation of section 3011(a)(1)(A)(ii), its
decision necessarily rests on the proposition that a determination
of willful misconduct based on alcohol rehabilitation
failure requires no inquiry into, or determinations
of, the claimant’s particular conduct leading to the discharge
for such failure. The Board, as finder of fact, made
no such inquiry or determinations, and of course neither
did the Veterans Court. Indeed, the Board declared that
it was making a legal determination—about “alcohol
abuse–rehabilitative failure”—and did not make findings
about, or even directly address, the final official reason for
discharge, namely, “alcohol rehabilitation failure.” The
Veterans Court, in affirming, thus had no findings before
it about Mr. Martin’s particular conduct leading to his
alcohol rehabilitation failure.
The claim before us is that it is legal error to rule that
willful misconduct is present without an inquiry into and
findings about the particular conduct leading to alcohol
rehabilitation failure. That claim presents a legal question
we may review.
B
We agree with Mr. Martin’s claim of legal error. The
Secretary himself nowhere asserts that alcohol rehabilitation
failure is always based on willful misconduct regardless
of particular circumstances. In any event, we
MARTIN v. MCDONALD 7
conclude that it is not, and that inquiry is required into
the individual’s conduct leading to the failure.
The phrase “willful misconduct,” in its ordinary meaning,
entails three requirements for the Board to find the
phrase applicable. The Board must identify conduct; the
identified conduct must be misconduct; and the identified
misconduct must be willful. Although Congress may of
course give the phrase a special defined meaning, we see
no basis for finding a special meaning here.
It is undisputed that a Veterans Affairs regulation, 38
C.F.R. § 3.1(n), applies to this case. The regulation says
that “[w]illful misconduct means an act involving conscious
wrongdoing or known prohibited action” and adds:
“It involves deliberate or intentional wrongdoing with
knowledge of or wanton and reckless disregard of its
probable consequences.” The three ordinary-meaning
requirements, plus an elaboration of what “willful”
means, are contained in this definition. See Allen v.
Principi, 237 F.3d 1368, 1378 (Fed. Cir. 2001) (“[T]he VA
[has] construed the term . . . to refer to an act of conscious
wrongdoing, involving elements of intent and voluntariness.”)
(citing 52 O.G.C. Prec. Op. 215, 216 (May 23,
1928); 66 O.G.C. Prec. Op. 270, 272 (Feb. 26, 1931)).
It cannot be said that “alcohol rehabilitation failure”
always constitutes or results from willful misconduct so
understood. “Alcohol rehabilitation failure” might not
even refer to conduct at all, but simply to a state of affairs—
namely, a state of mind at the end of a rehabilitation
program that was not the desired one. In any event,
the phrase does not imply that Mr. Martin took any action
he should not have, or failed to take any action that he
should have, that led to the undesired end state. People
fail at many things despite their best efforts. We have
been shown no basis for denying that rehabilitation from
a psychological dependence on alcohol can be one of them.
8 MARTIN v. MCDONALD
An Army regulation quoted by the Secretary distinguishes
a state of mind from conduct in this setting. It
makes clear that one reason a soldier can be deemed to
have failed the Army’s rehabilitation program is a mental
state, namely, lack of “motivation to overcome alcohol . . .
abuse problems,” which the regulation lists separately
from “[f]urther incidents of alcohol . . . abuse” and
“[c]onduct [or] duty performance.” Army Reg. 600-85, ¶ 8-
13. Here, moreover, the Secretary argues that Mr. Martin
failed rehabilitation counseling “for lack of motivation to
abstain from alcohol,” Appellee’s Suppl. Br. 3-4, quoting a
document as indicating that he was “disenrolled for lack
of motivation of abstinence,” id. App. 10 (record of proceedings
from the Army Board for Correction of Medical
Records, referring to a “memorandum” from Mr. Martin’s
commander).
Without more, a finding of an unsuccessful attempt at
rehabilitation addresses only a mental state, not misconduct,
or willful misconduct. During his alcohol rehabilitation,
Mr. Martin could have complied with every directive
and taken every required action, yet still have been
judged to have failed because he did not get his mind
right—he ended the program dependent on alcohol and
unmotivated to forgo it. Such mental states are obviously
associated with certain conduct, but the association is not
a necessary one, and they are in fact distinct, as the
Supreme Court made clear half a century ago in striking
down “a statute which makes the ‘status’ of narcotic
addiction a criminal offense” rather than punishing
associated conduct—i.e., “punish[ing] a person for the use
of narcotics, for their purchase, sale or possession.”
Robinson v. California, 370 U.S. 660, 666 (1962).
The distinction matters because, once the focus turns
to specific conduct, it must be determined not just that
the conduct was misconduct but that it was “willful”
under the standard of “conscious wrongdoing or known
prohibited action.” 38 C.F.R. § 3.1(n). The question is a
MARTIN v. MCDONALD 9
substantial one even as to the most likely form of associated
behavior—namely, continued harmful drinking,
which might be labeled alcohol abuse (though terminology
in this area does not seem stable or uniform). We do not
ourselves draw conclusions about willful misconduct, so
defined, and about drinking that results from alcohol
dependence. It is enough to say here that the Board made
no findings about whether Mr. Martin engaged in abusive
drinking, whether it was willful misconduct if so, and how
any such willful misconduct related to the rehabilitation
failure for which he was discharged.
Such findings are needed because we have been presented
no basis for concluding that drinking alcohol, even
for a person dependent on alcohol, is always willful misconduct
under the governing standard, regardless of
circumstances. Long ago, in an August 13, 1964 VA
Administrator’s Decision No. 988 (entitled “Interpretation
of the Term ‘Willful Misconduct’ As Related to the Residuals
of Chronic Alcoholism”), the VA addressed a number
of alcoholism-related issues, drawing conclusions, for the
time, that point in different directions for different issues.
See Allen v. Principi, 237 F.3d 1368, 1379, reh’g denied,
268 F.3d 1340 (Fed. Cir. 2001) (discussing Decision No.
988); see also Traynor v. Turnage, 485 U.S. 535, 546-47
(1988) (discussing Decision No. 988 and related VA policies).
3 One statement was that alcohol dependence can
3 Congress swiftly overturned the specific result in
Traynor, which had upheld the VA’s conclusion that an
alcoholism-caused disability was the result of “willful
misconduct” and thereby provided no basis for extending
the usual 10-year period for using education benefits. On
November 18, 1988, Congress amended 38 U.S.C. § 105(c)
to say that, for that purpose, “the disabling effects of
chronic alcoholism shall not be considered to be the result
of willful misconduct.” See S. Rep. No. 100-439, at 96
10 MARTIN v. MCDONALD
“develop[] to a point where it is irreversible without
professional help” and “[a]t such time, the person by
himself, may lack the capacity to avoid the continued use
of alcohol.” Amicus App. 21. A similar point may be
implicit in an Army regulation authorizing separation for
“inability” to “participate in, cooperate in, or successfully
complete” a rehabilitation program. Army Reg. 635-200,
§ 9-2 (Sept. 6, 2011) (emphasis added).
Because of the prevalence of alcohol-related problems,
there are numerous disciplined studies and analyses, and
institutions such as the National Institute on Alcohol
Abuse and Alcoholism, devoted to advancing the understanding
of alcohol dependence and its relations to other
disorders and to continued use of alcohol. See Traynor,
485 U.S. at 550-51; id. at 562-64 (Blackmun, J., concurring
in part, dissenting in part) (discussing literature as
of 1988, directly and as described in amicus briefs). How
the soundest assessments relate to the statutory standard
of willfulness, generally or in this case, is not for us to say
here. But the question must be answered to rule on Mr.
Martin’s claim to education benefits. It cannot be passed
over by the Secretary and the Board without fuller and
more careful analysis than we have seen.
Ultimately, the question is a statutory one. It is significant,
therefore, that Congress has taken action indicating
that alcohol abuse and willful misconduct (as
Congress has used the phrase) are not coextensive. Three
veterans’ disability statutes, 38 U.S.C. §§ 105(a), 1110,
and 1131, deny a veteran compensation for any injury or
disease that resulted from the veteran’s “own willful
misconduct or abuse of alcohol or drugs.” (Emphasis
added.) Congress added the “or abuse of alcohol or drugs”
(1988) (“The effect of the Committee bill would be, in part,
to overturn the result in the case of Traynor v. Turnage.”).
See also 38 C.F.R. §§ 21.7020(b)(38), 21.7051(a)(2).
MARTIN v. MCDONALD 11
phrase to the pre-existing “willful misconduct” language
in those three statutes on November 5, 1990—itself
suggesting that not all abuse of alcohol already constituted
willful misconduct. Omnibus Budget Reconciliation
Act of 1990, Pub. L. 101-508, § 8052(a), 104 Stat. 1388,
1388-351 (Nov. 5, 1990). Moreover, on the same day,
Congress introduced what is now the “willful misconduct”
language into the provision at issue here, 38 U.S.C.
§ 3011(a)(1)(A)(ii). National Defense Authorization Act
for Fiscal Year 1991, Pub. L. 101-510, § 562(a)(1), 104
Stat. 1485, 1574 (Nov. 5, 1990). Congress did not include
in this statute the “or abuse of alcohol or drugs” clause it
was adding the same day to other statutes. The contrast
underscores that alcohol abuse does not always constitute
willful misconduct for purposes of denying basic education-
assistance benefits.

CONCLUSION
Because “alcohol rehabilitation failure,” and even alcohol
dependence and acts resulting from alcohol dependence,
cannot be characterized as being or resulting from
willful misconduct in every case, and the Board made no
findings pertinent to this particular case, the decision
below must be vacated, and the case remanded. If the
Secretary continues to deny benefits, the Board, following
appropriate procedures for needed record development,
should make further factual findings. In that process, it
should ensure consistency between assertions or findings
made in this proceeding and those made in disability or
other proceedings involving Mr. Martin.

VACATED AND REMANDED

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