Case: 12-7134    Document: 12    Page: 1   Filed: 10/16/2012




          NOTE: This order is nonprecedential.


  mlniteb ~tate~ qcourt of §ppeal~
       for tbe jfeberal qcircuit

                MARCUS c. BUTLER,
                 Claimant-Appellant,
                      v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
                  Respondent-Appellee.


                       2012-7134


   Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-0391, Judge Ronald M.
Holdaway.

     Before LINN, DYK and WALLACH, Circuit Judges.
PER CURIAM.

                       ORDER
    While on active duty in the U.S. Army, Marcus C.
Butler was twice court-martialed and punished after
going absent without official leave (AWOL). In 1970,
Butler was discharged under other than honorable condi-
tions, but he received a clemency discharge in 1977 under
the Department of Defense's special discharge review
program.
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MARCUS BUTLER v. SHINSEKI                                 2
    When Butler applied for Department of Veterans Af-
fairs disability compensation in 1991, however, his claim
was denied. Rogers was informed that despite his clem-
ency discharge, he was nonetheless barred from receiving
benefits because a 1980 discharge review board decision
had found that Butler engaged in willful and persistent
misconduct during service, and was therefore ineligible to
receive benefits. Butler failed to appeal that decision
denying him entitlement to service connection, and it
became final.
    In 1993, Butler sought to reopen his disallowed claim.
In support of his request, Butler argued that he was
insane when he went AWOL, and should not be barred
from receipt of DVA benefits. * That argument was re-
jected, however, on the ground that the evidence submit-
ted did not show the requisite mental state during service
at the time of the offenses in question.
    In 2005, Butler again sought to reopen his claim.
This time, in addition to VA treatment records and other
medical records, Butler testified that he had a mental
breakdown during service after receiving news of personal
troubles back home, and went AWOL only in unsuccessful
attempt to return home to see his ill father.
    The Board of Veterans' Appeals (Board) concluded
that Butler's testimony and the additional evidence
submitted was essentially repetitive of Butler's previous
contentions of insanity, which had already been consid-
ered and rejected. The Board further explained that "the
evidence added to the file since that prior denial does not


   *    If a person was insane at the time of committing
an offense leading to the person's court-martial, dis-
charge, or resignation, the person is not barred from VA
benefits based upon that period of service. 38 U.S.C. §
5303(b); 38 C.F.R. § 3.12(b).
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3                               MARCUS BUTLER   v. SHINSEKI
indicate that the Appellant was 'insane' at the [relevant
times]."
    Butler then appealed to the Court of Appeals for Vet-
erans Claims ("Veterans Court"). In that appeal, Butler
argued that the Board erred by determining that new and
material evidence had not been submitted and, alterna-
tively, that the Board failed to provide an adequate
statement of reasons or basis for its determination.
     The Veterans Court rejected each of Butler's argu-
ments. With regard to the merits of the claim, the Veter-
ans Court explained that the newly submitted evidence by
Butler merely reflected his current medical condition or
was repetitive of evidence in the record and previously
considered and rejected by the Board. With regard to
Butler's reasons or bases argument, the court stated
"[t]he Board's rationale for [its new and material evi-
dence] determination is thorough and allows for effective
judicial review before the court."
    This appeal followed. Our jurisdiction to review deci-
sions of the Veterans Court is limited by statute. Under
38 U.S.C. § 7292(a), this court has jurisdiction over rules
of law or the validity of any statute or regulation, or an
interpretation thereof, relied on by the Veterans Court in
its decision. This court may also entertain challenges to
the validity of a statute or regulation and may interpret
constitutional and statutory provisions as needed for
resolution of the matter. See 38 U.S.C. § 7292(c). In
contrast, except where an appeal presents a constitutional
question, we lack jurisdiction over challenges to factual
determinations or laws or regulations as applied to the
particular case. See 38 U.S.C. § 7292(d)(2).
    Butler asserts that the Veterans Court failed to honor
his clemency discharge. By statute, an honorable or
general discharge awarded under the special discharge
review program does not remove a bar to benefits based
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MARCUS BUTLER v. SHINSEKI                                  4
on persistent and willful misconduct unless a discharge
review board determines that the original discharge
would be upgraded under uniform standards meeting
certain requirements. See 38 U.S.C. § 5303(e); see also 38
C.F.R. § 3.12(h)(2). As the Board noted, despite receiving
clemency discharge status, Butler was informed of an
unfavorable 1980 discharge review board decision that
rendered him ineligible for benefits in a 1982 regional
office decision, and again informed of that information
when his service connection claim was denied in 1991.
Because Butler failed to appeal from that initial decision,
the determination became final.
     Thus, the only issue before the Board and the Veter-
ans Court in the present appeal was whether he had
submitted new and material evidence warranting a
reopening and reconsideration the denial.         However,
"[t]he question of whether evidence in a particular case is
'new and material' is either a 'factual determination'
under section 7292(d)(2)(A) or the application of law to
'the facts of a particular case' under 7292(d)(2)(B) and is,
thus, not within this court's appellate jurisdiction."
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)
(citing Spencer v. Brown, 17 F.3d 368, 374 (Fed. Cir.
1994». Because Butler does not otherwise challenge the
validity or interpretation of an applicable statute or
regulation or any improperly applied rule of law, we
dismiss this appeal for lack of jurisdiction.
   Accordingly,
   IT Is ORDERED THAT:

    (1) The appeal is dismissed.
    (2) Each side shall bear its own costs.
Case: 12-7134       Document: 12    Page: 5   Filed: 10/16/2012




5                                  MARCUS BUTLER   v. SHINSEKI
                                     FOR THE COURT
      OCT 16 2012                     /s/ Jan Horbaly
         Date                        Jan Horbaly
                                     Clerk


cc: Marcus C. Butler
    Matthew P. Roche, Esq.
s25
