                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-7273


                                 ELIJAH SHEPPARD,

                                                           Claimant-Appellant,
                                           v.


           GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


      Elijah Sheppard, of Alexandria, Virginia, pro se.

       L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Deputy Director. Of counsel were David J. Barrans,
Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, United States
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Robert N. Davis
                       NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                       2007-7273

                                  ELIJAH SHEPPARD,

                                                          Claimant-Appellant,

                                           v.

             GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                         Respondent-Appellee.

                            __________________________

                            DECIDED: November 15, 2007
                            __________________________


Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge and GAJARSA, Circuit
Judge.

PER CURIAM.

         Elijah Sheppard appeals the judgment of the United States Court of Appeals for

Veterans Claims, which affirmed the Board of Veterans’ Appeals decision denying

service connection for his disabilities because his discharge under other than honorable

conditions was considered to be under dishonorable conditions for purposes of

entitlement to veteran’s benefits. Sheppard v. Nicholson, No. 05-2495 (Vet. App. July 5,

2007).

         The board found that Sheppard had a history of misconduct and was a “continual

troublemaker.” The board further determined that at his commander’s request,

Sheppard was furnished an Undesirable Discharge. The board then held this
constituted willful and persistent misconduct under 38 C.F.R. § 3.12(d)(4), and

Sheppard’s discharge for this reason is therefore “considered to have been issued

under dishonorable conditions” for the purposes of veterans’ benefits. The Court of

Appeals for Veterans Claims affirmed.

       Whether or not conduct constitutes willful and persistent misconduct is a factual

determination to which the board correctly applied 38 C.F.R. § 3.12(d). Because we

lack authority to review either “a challenge to a factual determination” or “a challenge to

a law or regulation as applied to the facts of a particular case” absent a constitutional

issue, 38 U.S.C. § 7292(d)(2), we dismiss the appeal.




2007-7273                                   2
