## Facts

- Tony W. Robertson enlisted in the U.S. Army in 1963 and suffered a work-related injury that damaged his hearing.
- In 1965, while stationed in Thailand, Robertson went absent without leave (AWOL) so he could marry and live with a Thai woman who was pregnant with his child.
- Robertson remained AWOL for 313 days, was arrested, convicted, and sentenced to confinement and a bad-conduct discharge.
- After his release, Robertson applied to the Veterans Administration (VA) for disability benefits based on his service-related hearing loss; the VA denied the claim because of his bad-conduct discharge.
- Robertson later entered President Gerald Ford’s clemency program for certain Vietnam-era AWOL cases (Proclamation 4313), performed about 600 hours of alternate service, and received a full presidential pardon for the AWOL offense and a “clemency discharge.”
- Robertson asked the Army Board for Correction of Military Records to upgrade the clemency discharge to a more favorable discharge characterization; the board denied the request.
- Relying on his clemency discharge and pardon, Robertson reapplied to the VA for hearing-loss benefits multiple times and was denied each time; he appealed the VA’s eighth denial through the Veterans Court and then to the Federal Circuit.

## Issues

1. Whether a full presidential pardon and clemency discharge issued under President Ford’s clemency program prevent the VA from considering the underlying AWOL misconduct when applying statutory and regulatory bars to veterans’ benefits.
2. Whether a clemency discharge must be treated as a discharge “under conditions other than dishonorable” for VA benefits purposes.

## Decision

- The Federal Circuit affirmed the Veterans Court’s decision upholding the VA’s denial of benefits.
- The court held that the VA may consider the conduct underlying Robertson’s pardoned AWOL offense when determining whether his service qualifies him for benefits.
- The court held that a clemency discharge issued under the Ford program does not automatically establish eligibility for VA benefits or require the VA to treat the claimant’s service as “other than dishonorable.”

## Legal Principles

- A presidential pardon may remove specified legal consequences of a conviction, but it does not erase the historical fact of the conduct, and it does not automatically eliminate collateral eligibility limits in separate statutory schemes.
- VA benefits eligibility depends on the character of service under governing statutes and regulations (including 38 U.S.C. § 5303 and related regulations), and the VA may look to the circumstances of the service, not only the label on a discharge document.
- A “clemency discharge” issued through President Ford’s program is a special discharge and is not the same as an “honorable” or “general under honorable conditions” discharge for all federal purposes, including VA benefits.
- The Ford clemency program provided conditional relief aimed at reintegration; it did not create a general entitlement to veterans’ benefits for all participants.
- When the VA denies benefits based on character-of-service rules, it is making an eligibility determination under veterans’ benefits law rather than imposing criminal punishment for the pardoned offense.

## Conclusion

In Robertson v. Gibson, the Federal Circuit held that Robertson’s Ford-era presidential pardon and clemency discharge did not require the VA to award disability benefits or to ignore the AWOL misconduct underlying his discharge; the VA could continue to treat the misconduct as relevant to statutory and regulatory bars to benefits, and the denial of benefits was affirmed.


Robertson v. Gibson, 759 F.3d 1351 (2014)