Case: 20-1128   Document: 33    Page: 1    Filed: 08/27/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   DIANA GARVEY,
                   Claimant-Appellant

                           v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                       2020-1128
                 ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-5059, Senior Judge Robert N.
 Davis.
                ______________________

                Decided: August 27, 2020
                 ______________________

     ROBERT C. BROWN, JR., Norman, OK, for claimant-ap-
 pellant.

     AMANDA TANTUM, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
 ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
 KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of
 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                  ______________________
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 2                                           GARVEY   v. WILKIE




     Before LOURIE, SCHALL, and DYK, Circuit Judges.
 DYK, Circuit Judge.
     Diana Garvey is the widow of John P. Garvey. Mr. Gar-
 vey served in the Army from 1966 to 1970. Mrs. Garvey
 sought dependency and indemnity compensation and death
 pension benefits on the basis of Mr. Garvey’s Army service.
 The Department of Veterans Affairs (“VA”) denied
 Mrs. Garvey’s claim because Mr. Garvey was discharged
 from the Army for “willful and persistent misconduct,” and
 thus he was ineligible for benefits under the applicable reg-
 ulation. See 38 C.F.R. § 3.12(d)(4). Mrs. Garvey now chal-
 lenges the validity of Rule 3.12(d)(4) as being contrary to
 38 U.S.C. § 5303.
      We hold that the regulation is consistent with, and au-
 thorized by, the statute.      Section 5303, contrary to
 Mrs. Garvey’s assertion, is not the exclusive test for bene-
 fits eligibility. 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
 conditions other than dishonorable.” Id. The VA was au-
 thorized to define a discharge for willful and persistent
 misconduct as a discharge under “dishonorable conditions.”
 See 38 C.F.R. § 3.12. We therefore affirm.
                        BACKGROUND
     John P. Garvey served in the U.S. Army from February
 1966 to May 1970. After training, Mr. Garvey was posted
 to Germany, where he served until November 1967. While
 in Germany, Mr. Garvey was punished under Article 15 of
 the Uniform Code of Military Justice for “disorderly
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 GARVEY   v. WILKIE                                          3



 conduct” in an incident with a German taxi driver. 1 J.A.
 74. However, Mr. Garvey’s service record indicates that his
 “conduct” and “efficiency” while in Germany were “[e]xc[el-
 lent].” J.A. 10.
      Beginning in December 1967, Mr. Garvey was posted
 to Vietnam, where his record deteriorated significantly. In
 June 1968, Mr. Garvey was convicted by special court-mar-
 tial of possessing four pounds of cannabis with intent to
 sell. He was sentenced 90 days of confinement, ordered to
 forfeit a portion of his pay, and reduced in rank. In Novem-
 ber 1968, Mr. Garvey was convicted by special court-mar-
 tial of being absent without leave (“AWOL”) from
 September 9, 1968, to October 1, 1968. In June 1969, he
 was convicted by special court-martial of being AWOL from
 April 18, 1969, to June 5, 1969. For each of these convic-
 tions he was given a suspended sentence of confinement
 and ordered to forfeit a portion of his pay. In April 1970,
 Mr. Garvey was convicted by special court-martial of being
 AWOL from February 16, 1970, to April 1, 1970. For this
 conviction, he was sentenced to five months of confinement
 and again forfeited a portion of his pay.
     Because of these events of misconduct, Mr. Garvey was
 discharged as unfit for service on May 13, 1970, with an
 “Undesirable Discharge.” 2 J.A. 32. He waived considera-
 tion of his case before a board of officers and acknowledged
 that he “may be ineligible for many or all benefits as a vet-
 eran under both Federal and State laws.” J.A. 66. On June
 23, 1977, under the Special Discharge Review Program, a


     1   Article 15 authorizes commanding officers to im-
 pose certain “disciplinary punishments for minor offenses
 without the intervention of a court-martial.” 10 U.S.C.
 § 815(b).
     2   We capitalize formal discharge status (e.g., Honor-
 able, Dishonorable, Undesirable, etc.).
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 procedure by which Vietnam-era servicemembers could
 have their discharge status upgraded if they met certain
 criteria, Mr. Garvey’s discharge status was upgraded to
 “Under Honorable Conditions (General).” J.A. 35. How-
 ever, on August 1, 1978, a Discharge Review Board found
 that Mr. Garvey would not have been entitled to an up-
 grade under generally applicable standards. The apparent
 effect of this finding was to prevent Mr. Garvey from re-
 ceiving benefits on the basis of his upgraded status. See 38
 U.S.C. § 5303(e); 38 C.F.R. § 3.12(h).
    Claimant-appellant Diana Garvey married Mr. Garvey
 on November 10, 1979. Mr. Garvey died on August 13,
 2010. On September 4, 2012, Mrs. Garvey applied for de-
 pendency and indemnity compensation and death pension
 benefits on the basis of Mr. Garvey’s service.
     On August 28, 2018, the Board of Veterans’ Appeals
 (“Board”) denied Mrs. Garvey’s claim. The Board con-
 cluded that Mr. Garvey was ineligible for benefits because
 he was discharged for “willful and persistent misconduct,”
 which under 38 C.F.R. § 3.12(d)(4) is a bar to benefits. On
 September 30, 2019, the United States Court of Appeals for
 Veterans Claims (“Veterans Court”) affirmed the Board’s
 decision, rejecting Mrs. Garvey’s contention that the “will-
 ful and persistent misconduct” bar, section 3.12(d)(4), is
 contrary to statute.
     Mrs. Garvey appealed to this court. We have jurisdic-
 tion under 38 U.S.C. § 7292.
                        DISCUSSION
     On review of a decision from the Veterans Court, this
 court “shall decide all relevant questions of law, including
 interpreting constitutional and statutory provisions.” 38
 U.S.C. § 7292(d)(1). This court “shall hold unlawful and set
 aside any regulation . . . that was relied upon in the
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 GARVEY   v. WILKIE                                           5



 decision of the [Veterans Court] that [this court] finds to
 be . . . not in accordance with law.” Id. § 7292(d)(1)(A).
                                 I
     On appeal Mrs. Garvey does not dispute that Mr. Gar-
 vey was discharged for willful and persistent misconduct,
 or that this rendered him ineligible for benefits under the
 regulation, but renews her argument that the “willful and
 persistent misconduct” bar is contrary to statute.
    We have previously upheld the regulation in a two-par-
 agraph non-precedential decision that affirmed the Veter-
 ans Court. Camarena v. Brown, 60 F.3d 843 (Fed. Cir.
 1995). We now address the issue in a precedential decision.
      We begin with a summary of the relevant statutes and
 regulations. For purposes of eligibility for veterans’ bene-
 fits, section 101(2) defines a “veteran” as “a person who
 served in the active military, naval, or air service, and who
 was discharged or released therefrom under conditions
 other than dishonorable.” 38 U.S.C. § 101(2). Sec-
 tion 5303(a) lists several situations, such as discharge due
 to general court-martial or desertion, in which a former
 servicemember is barred from receiving veterans’ bene-
 fits. 3 Section 5303 does not list “willful and persistent mis-
 conduct” as one of its statutory bars.



     3    Specifically, section 5303(a) provides that:
     The discharge or dismissal [1] by reason of the sen-
     tence of a general court-martial of any person from
     the Armed Forces, or the discharge of any such per-
     son [2] on the ground that such person was a con-
     scientious objector who refused to perform military
     duty or refused to wear the uniform or otherwise to
     comply with lawful orders of competent military
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 6                                             GARVEY   v. WILKIE



      Sections 101 and 5303 are implemented in 38 C.F.R.
 § 3.12. As relevant here, Rule 3.12(c) provides that “[b]en-
 efits are not payable” under specified conditions. These in-
 clude those listed in section 5303(a). 4 Mirroring the


     authority, or [3] as a deserter, or [4] on the basis of
     an absence without authority from active duty for
     a continuous period of at least one hundred and
     eighty days if such person was discharged under
     conditions other than honorable unless such person
     demonstrates to the satisfaction of the Secretary
     that there are compelling circumstances to warrant
     such prolonged unauthorized absence, or [5] of an
     officer by the acceptance of such officer’s resigna-
     tion for the good of the service, or [6] (except as pro-
     vided in subsection (c)) the discharge of any
     individual during a period of hostilities as an alien,
     shall bar all rights of such person under laws ad-
     ministered by the Secretary [of the VA]. . . .
 38 U.S.C. § 5303(a).

     4   Section 3.12(c) states that:
     Benefits are not payable where the former service
     member was discharged or released under one of
     the following conditions:
         (1) As a conscientious objector who refused
         to perform military duty, wear the uniform,
         or comply with lawful order of competent
         military authorities.
         (2) By reason of the sentence of a general
         court-martial.
         (3) Resignation by an officer for the good of
         the service.
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 “conditions other than dishonorable” language of sec-
 tion 101(2), Rule 3.12(a) provides that:
     If the former service member did not die in service,
     pension, compensation, or dependency and indem-
     nity compensation is not payable unless the period
     of service on which the claim is based was termi-
     nated by discharge or release under conditions
     other than dishonorable. (38 U.S.C. 101(2)). A dis-
     charge under honorable conditions is binding on
     the [VA] as to character of discharge.
 38 C.F.R § 3.12(a) (emphasis added). Rule 3.12(d) further
 defines “dishonorable conditions,” providing that:
     A discharge or release because of one of the offenses
     specified in this paragraph is considered to have
     been issued under dishonorable conditions. . . .
          (4) Willful and persistent misconduct. This
          includes a discharge under other than hon-
          orable conditions, if it is determined that it
          was issued because of willful and persis-
          tent misconduct. A discharge because of a
          minor offense will not, however, be


          (4) As a deserter.
          (5) As an alien during a period of hostilities,
          where it is affirmatively shown that the
          former service member requested his or her
          release. See § 3.7(b).
          (6) By reason of a discharge under other
          than honorable conditions issued as a re-
          sult of an absence without official leave
          (AWOL) for a continuous period of at least
          180 days. . . .
 38 C.F.R. § 3.12(c).
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 8                                           GARVEY   v. WILKIE



         considered willful and persistent miscon-
         duct if service was otherwise honest, faith-
         ful and meritorious.
 Id. § 3.12(d) (emphasis added).
      Every servicemember is assigned a status—Honorable,
 Dishonorable, or an intermediate status—upon discharge.
 Under Rule 3.12, a former servicemember’s discharge sta-
 tus might be, but is not necessarily, determinative of eligi-
 bility for benefits. A servicemember with an Honorable
 discharge is eligible for benefits because a discharge “under
 honorable conditions” is “binding” on the VA as to benefits
 eligibility. Id. § 3.12(a). A servicemember with a Dishon-
 orable discharge is ineligible for benefits because a Dishon-
 orable discharge is a discharge by sentence of a general
 court-martial—a bar to benefits under Rule 3.12(c)(2). A
 former servicemember’s discharge status is not determina-
 tive, however, when it is neither “under honorable condi-
 tions” nor Dishonorable. The military has issued several
 types of discharges of this sort over the years, including
 Undesirable, Ordinary, and Without Honor discharges.
 Bradford Adams & Dana Montalto, With Malice Toward
 None: Revisiting the Historical and Legal Basis for Exclud-
 ing Veterans from “Veteran” Services, 122 Penn. St. L. Rev.
 69, 80 (2017). For servicemembers discharged with one of
 these intermediate statuses, the character of their service
 governs. The VA deems servicemembers with an interme-
 diate discharge status who were discharged for “willful and
 persistent misconduct” to have been discharged under “dis-
 honorable conditions,” rendering them ineligible for veter-
 ans’ benefits. 5 See 38 U.S.C. § 3.12(d)(4).


     5   Discharges    for   “[m]utiny,”    “spying,”    and
 “[a]cceptance of an undesirable discharge to escape trial by
 general court-martial” are also deemed by the VA to “have
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 GARVEY   v. WILKIE                                          9



                                II
      Mrs. Garvey contends that the “willful and persistent
 misconduct” bar in Rule 3.12(d) is contrary to statute.
 Mrs. Garvey argues that because section 5303(a) specifies
 six conditions under which a former servicemember is inel-
 igible for benefits, it was improper for the VA to add a sev-
 enth, unlisted “willful and persistent misconduct” bar. We
 disagree.
     Neither section 5303 nor any other statute provides
 that section 5303 contains the exclusive list of conditions
 for benefits eligibility. On the contrary, the definition of
 “veteran” in section 101(2) expressly limits benefits to
 those discharged “under conditions other than dishonora-
 ble.” 38 U.S.C. § 101(2). The central question here is the
 meaning of this language in section 101(2).
     In section 101(2), Congress chose not to use a “Dishon-
 orable discharge” bar. Instead, it used the phrase “condi-
 tions other than dishonorable.” Unlike a Dishonorable
 discharge, the phrase “conditions other than dishonorable”
 is not a term of art in the military. 6 In view of the ambigu-
 ity of that phrase, we turn to the statute’s legislative his-
 tory to determine its meaning. Adm’r, Fed. Aviation
 Admin. v. Robertson, 422 U.S. 255, 263 (1975) (reasoning



 been issued under dishonorable conditions.” 38 C.F.R.
 § 3.12(d).
     6    There is a statement in the Senate floor debate on
 the provision now present in section 101(2) that the phrase
 “conditions other than dishonorable” was “well-under-
 stood,” 90 Cong. Rec. 3077 (1944), but this appears only to
 suggest that the core concept was well understood, not that
 the full scope of the term was well understood. Indeed, as
 described below, Congress left it to the VA to define the
 term by regulation.
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 10                                            GARVEY   v. WILKIE



 that an “unclear and ambiguous” statute “compell[ed] re-
 sort to the legislative history”).
      Section 5303 and the “conditions other than dishonor-
 able” requirement of section 101(2) trace their origin to the
 Servicemen’s Readjustment Act of 1944 (“the G.I. Bill”).
 Pub. L. No. 78-346, 58 Stat. 284; see generally Adams &
 Montalto, supra, at 84–85. The G.I. Bill provided a variety
 of educational, financial, and other benefits to former ser-
 vicemembers. However, not all former servicemembers
 would be eligible. In the version of the G.I. Bill first intro-
 duced in Congress, section 300 barred the provision of ben-
 efits to servicemembers discharged for any of several
 enumerated reasons, including discharge: (1) by sentence
 of a court-martial (e.g., a Dishonorable discharge); (2) for
 being a conscientious objector; (3) as a deserter; or (4) of an
 officer by resignation for the good of the service. S. 1767,
 78th Cong. § 300 (as introduced, Mar. 13, 1944). 7



      7   Specifically, as relevant here, section 300 stated
 that:
      The discharge or dismissal by reason of the sen-
      tence of a general court-martial of any person from
      the military or naval forces, or the discharge of any
      such person on the ground that he was a conscien-
      tious objector who refused to perform military duty
      or refused to wear the uniform or otherwise to com-
      ply with lawful orders of a competent military au-
      thority, or as a deserter, or of an officer by the
      acceptance of his resignation for the good of the ser-
      vice, shall bar all rights of such person, based upon
      the period of service from which he is so discharged
      or dismissed, under any laws administered by the
      [VA] . . . .
 S. 1767, 78th Cong. § 300 (as introduced, Mar. 13, 1944).
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 GARVEY   v. WILKIE                                          11



     The Senate committee amended the bill to add a new
 section, section 1603, while retaining the statutory bars in
 section 300. New section 1603 provided that:
     A discharge or release from active service under
     conditions other than dishonorable shall be a pre-
     requisite to entitlement to veterans’ benefits pro-
     vided by this [A]ct . . . .
 S. 1767 § 1603 (as reported to the Senate, Mar. 18, 1944).
 The committee report explained the dual purposes of this
 provision: to provide benefits to deserving servicemembers
 with “honest and faithful or otherwise meritorious” service
 even if they did not receive Honorable discharges, but to
 deny benefits to “unworthy” former servicemembers even if
 they were not given a Dishonorable discharge. S. Rep.
 No. 78-755, at 15 (1944). Specifically, the report explained:
     The purpose of this section is to provide a uniform
     basic entitlement contingent upon the type of re-
     lease from active military or naval service. It pro-
     vides that in order to be entitled to any veterans’
     benefits provided by this act . . . a veteran must
     have been discharged or released from active ser-
     vice under conditions other than dishonorable . . . .
     The amendment would remove a discrepancy in ex-
     isting law which has been found to be highly unde-
     sirable, . . . relating to hospitalization whereby a
     veteran not dishonorably discharged may be enti-
     tled to hospitalization benefits. In practice it has
     been found that this permits most unworthy cases
     to be hospitalized often to the detriment of persons
     honorably discharged or discharged under condi-
     tions other than dishonorable. It is believed that
     the hospital facilities of the Veterans’ Administra-
     tion should be maintained for veterans whose
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 12                                           GARVEY   v. WILKIE



      service was honest and faithful or otherwise meri-
      torious.
      Further, the amendment will correct hardships un-
      der existing laws requiring honorable discharge as
      prerequisite to entitlement. Many persons who
      have served faithfully and even with distinction
      are released from the service for relatively minor
      offenses, receiving a so-called blue discharge if in
      the Army or a similar discharge without honor if in
      the Navy. It is the opinion of the committee that
      such discharge should not bar entitlement to bene-
      fits otherwise bestowed unless the offense was
      such, as for example those mentioned in section
      300 of the bill, as to constitute dishonorable condi-
      tions. A dishonorable discharge is effected only as
      a sentence of court martial, but in some cases of-
      fenders are released or permitted to resign without
      trial—particularly in the case of desertion without
      immediate apprehension. In such cases benefits
      should not be afforded as the conditions are not less
      serious than those giving occasion to dishonorable
      discharge by court martial.
 Id. (emphasis added).
     The committee’s amendment was agreed to on the Sen-
 ate floor. 90 Cong. Rec. 3075 (1944). There, the sponsor of
 the G.I. Bill, 8 Senator Champ Clark, similarly explained
 the purpose of the “conditions other than dishonorable”
 standard on the Senate floor where the committee



      8   “It is the sponsors that we look to when the mean-
 ing of the statutory words is in doubt.” Edward J. DeBar-
 tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
 Council, 485 U.S. 568, 585 (1988) (quoting N.L.R.B. v. Fruit
 & Vegetable Packers & Warehousemen, Local 760, 377 U.S.
 58, 66 (1964)).
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 GARVEY   v. WILKIE                                           13



 amendment was adopted. He reasoned that a person with
 poor conduct in the service might nevertheless be dis-
 charged without a court-martial because the military “did
 not want to take the trouble to court martial them and give
 them what they deserved—a dishonorable discharge.” See
 90 Cong. Rec. 3077. To Senator Clark, such a servicemem-
 ber should not receive benefits. Senator Clark stated that
 the “conditions other than dishonorable” language meant
 that:
     if a man’s service has been dishonorable, if he has
     been convicted of larceny or any other crime or has
     been convicted of chronic drunkenness or anything
     else one might think of, the [VA] will have some
     discretion with respect to regarding the discharge
     from the service as dishonorable.
 Id. (emphasis added). 9 The House of Representatives ver-
 sion of the G.I. Bill would have restricted benefits to those


     9   In the same vein, a later report of the President’s
 Commission on Veterans’ Pensions, chaired by General
 Omar Bradley (VA Administrator from 1945 to 1947), ex-
 plained that:
     The Congress did not want to use the words “hon-
     orably discharged” or “discharged under honorable
     conditions,” because it was felt that such an eligi-
     bility requirement was too restrictive. Neither did
     Congress want to use the words “not dishonorably
     discharged” because such words would have been
     too broad and opened the door to persons who were
     administratively discharged for conduct that was
     in fact dishonorable. The controversy was finally
     resolved by adopting the words “conditions other
     than dishonorable.” . . . . The eligibility of persons
     discharged     with    [neither     Honorable      nor
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 14                                           GARVEY   v. WILKIE



 discharged “under honorable conditions.” S. 1767 § 1503
 (as passed by the House, May 18, 1944). However, on the
 recommendation of the conference committee, both houses
 ultimately adopted the Senate’s “conditions other than dis-
 honorable” standard. H.R. Rep. No. 78-1624, at 26 (1944);
 90 Cong. Rec. 5754 (June 12, 1944); 90 Cong. Rec. 5847
 (June 13, 1944). The G.I. Bill was thus enacted with the
 section 300 bars and the “conditions other than dishonora-
 ble” requirement.
     In enacting the G.I. Bill, Congress intended for benefits
 to be provided to former servicemembers “whose service
 was honest and faithful or otherwise meritorious,” even if
 they were not discharged with Honorable status. S. Rep.
 No. 78-755, at 15. However, benefits were not to be pro-
 vided to former servicemembers whose misconduct was
 “not less serious than those giving occasion to dishonorable
 discharge by court-martial,” even if they did not receive a
 Dishonorable discharge. Id. Congress provided the VA
 with “discretion,” 90 Cong. Rec. 3077, in determining the
 “conditions” under which a former servicemember was
 “[]worthy” of benefits, S. Rep. No. 78-755, at 15. Congress
 did not intend the specific provisions of section 300 to be
 the sole bar to veterans’ benefits.
    Though the section 300 bars are now codified at 38
 U.S.C. § 5303(a) 10 and the “conditions other than


      Dishonorable] discharges was left to a determina-
      tion by the [VA] based on the pertinent facts . . . .
 President’s Comm’n on Veterans’ Pensions, Staff of H.
 Comm. on Veterans’ Affairs, 84th Cong., Rep. On Dis-
 charge Requirements for Veterans’ Benefits 15–16 (Comm.
 Print 1956).
     10  In a 1958 reorganization of veterans’ benefits stat-
 utes, section 300 was codified at 38 U.S.C. § 3103(a). Pub.
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 GARVEY   v. WILKIE                                         15



 dishonorable” requirement is codified at 38 U.S.C.
 § 101(2), 11 the meaning of and relationship between these
 statutory provisions have not materially changed since the
 G.I. Bill’s enactment in 1944. Whether the statute is inter-
 preted to expressly delegate to the VA the interpretation of
 “conditions other than dishonorable,” or instead the dele-
 gation is implicit, we conclude that the VA has authority to
 define the term consistent with the Congressional purpose.
 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
 U.S. 837, 843 (1984) (discussing “express delegation” and
 “implicit” delegation of an interpretive question to an
 agency).
     Since 1946, VA regulations have provided that a dis-
 charge for “willful and persistent misconduct” was under
 “dishonorable conditions,” and thus was a bar to benefits.
 11 Fed. Reg. 12,869, 12,878 (Oct. 31, 1946). The bar has
 existed in its current form—codified at 38 C.F.R.


 L. No. 85-857 § 3103, 72 Stat. 1105, 1230 (1958). In 1991,
 section 3103 was renumbered as 5303. Pub. L. No. 102-40,
 Title IV, § 402(b)(1), 105 Stat. 187, 238–39 (1991).
     11  Section 606 of the House version of the 1944 G.I.
 Bill provided that “[t]he term ‘veteran’ as used in this title
 shall mean a person who served in the active service of the
 armed forces during a period of war in which the United
 States has been or is engaged and who has been discharged
 or released therefrom under honorable conditions.” S. 1767
 § 606 (as passed by the House, May 18, 1944). At confer-
 ence committee, section 606 was moved to section 607 and
 revised to use the “under conditions other than dishonora-
 ble” standard. H.R. Rep. No. 78-1624, at 13. Section 607
 was part of the enacted G.I. Bill. G.I. Bill § 607. The cur-
 rent definition of “veteran,” codified at 38 U.S.C. § 101, de-
 rives from section 607 and was enacted in the 1958
 reorganization of veterans’ benefits statutes. Pub. L. 85-
 857 § 101, 72 Stat. at 1106.
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 16                                          GARVEY   v. WILKIE



 § 3.12(d)(4)—since 1963. 28 Fed. Reg. 123 (Jan. 4, 1963).
 The “willful and persistent misconduct” bar is consistent
 with the statute in denying benefits to those who commit-
 ted serious misconduct even if they did not receive a Dis-
 honorable discharge.
     Our conclusion is further supported by Congress’ 1977
 amendment to what is now section 5303. On April 5, 1977,
 President Carter initiated the Special Discharge Review
 Program. Under the Program, as relevant here, a Vi-
 etnam-era servicemember with a discharge “Under Other
 than Honorable Conditions” could obtain an upgrade to a
 “general discharge under honorable conditions” if a Dis-
 charge Review Board found that “such action is appropri-
 ate based on all of the circumstances of a particular case
 and on the quality of the individual’s civilian records since
 discharge.” Discharge Review Boards, 42 Fed. Reg. 21,308,
 21,310 (Apr. 26, 1977). 12 Because Rule 3.12(a) provides
 that “[a] discharge under honorable conditions is binding
 on the [VA] as to character of discharge,” some service-
 members who were ineligible for benefits (due, for example,
 to the “willful and persistent misconduct” bar), would be-
 come eligible because of their upgrade under the Program.
     Congress concluded that this aspect of the Program
 was unfair because it upgraded Vietnam-era servicemem-
 bers but not other servicemembers, and because it unfairly
 allowed those with problematic service records to obtain
 veterans benefits. S. Rep. No. 95-305, at 3 (1977); 123
 Cong. Rec. 28,193, 28,198 (Sep. 8, 1977). Because of these
 concerns, in 1977, Congress passed an “Act to deny entitle-
 ment to veterans’ benefits to certain persons who would
 otherwise become so entitled solely by virtue of the


      12 Mr. Garvey’s upgrade to an “Under Honorable Con-
 ditions (General)” discharge status was under the Special
 Discharge Review Program.
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 GARVEY   v. WILKIE                                          17



 administrative upgrading under” the Program. Pub. L.
 No. 95-126, 91 Stat. 1106 (“the 1977 Act”). The 1977 Act
 provided, in relevant part, that servicemembers upgraded
 to “a general or honorable discharge” under the Program
 were ineligible for veterans benefits unless, after a case-by-
 case review by a Discharge Review Board, the VA deter-
 mined that the veteran would have received the upgraded
 discharge status even under generally applicable stand-
 ards. Id. 13
     The structure and purpose of the 1977 Act support the
 “willful and persistent misconduct” bar. The Act presup-
 poses that a servicemember discharged under less than
 honorable conditions would, but for his or her upgrade un-
 der the Program, not have been eligible for benefits in at
 least some circumstances. At the time, the “willful and per-
 sistent misconduct” bar had been in force for over three
 decades. See 11 Fed. Reg. at 12,878 (amending regulation
 to add the “willful and persistent misconduct” bar). And


     13  More specifically, the 1977 Act’s exclusion is now
 codified at 38 U.S.C. § 5303(e)(2), which provides:
     Notwithstanding any other provision of law . . . no
     person discharged or released from active military,
     naval, or air service under other than honorable
     conditions who has been awarded a general or hon-
     orable discharge under revised standards for the
     review of discharges . . . as implemented on or after
     April 5, 1977, under the Department of Defense’s
     special discharge review program . . . , shall be en-
     titled to benefits under laws administered by the
     Secretary except upon a determination, based on a
     case-by-case review, under [uniform and histori-
     cally consistent] standards . . . that such person
     would be awarded an upgraded discharge under
     such standards.
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 18                                          GARVEY   v. WILKIE



 Congress was well aware that if the servicemember had
 been discharged for “willful and persistent misconduct” he
 or she would not be not entitled to veterans’ benefits. See,
 e.g., S. Rep. No. 95-305, at 27 (quoting 38 C.F.R. § 3.12
 (1977)); H.R. Rep. No. 95-580, at 9 (same); Eligibility for
 Veterans’ Benefits Pursuant to Discharge Upgradings:
 Hearing Before the Committee on Veterans’ Affairs, 95th
 Cong. 354–55 (1977) (statement of Sen. Thurmond) (same).
 That Congress required an upgraded servicemember to re-
 main subject to the VA’s rules under his or her original dis-
 charge status (absent a specific dispensation) suggests
 approval of those rules, including the “willful and persis-
 tent misconduct” bar.
     We reject Mrs. Garvey’s challenge to the “willful and
 persistent misconduct” regulatory bar.
                        CONCLUSION
     We uphold the VA’s interpretation that a discharge for
 “willful and persistent misconduct” is, under the statute,
 “issued under dishonorable conditions.” See 38 C.F.R.
 § 3.12(d). Mr. Garvey’s discharge was for willful and per-
 sistent misconduct, so Mrs. Garvey is not entitled to veter-
 ans’ benefits. The decision of the Veterans Court is
                        AFFIRMED
