Case: 21-1973 Document: 34 Page: 1 Filed: 12/19/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`KRISTOPHER CRANFORD,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2021-1973
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-6580, Judge Joseph L. Falvey,
`Jr.
`
`______________________
`
`Decided: December 19, 2022
`______________________
`
`KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
`KS, argued for claimant-appellant.
`
` KYLE SHANE BECKRICH, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
`MCCARTHY; EVAN SCOTT GRANT, Y. KEN LEE, Office of Gen-
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.
`______________________
`
`

`

`Case: 21-1973 Document: 34 Page: 2 Filed: 12/19/2022
`
`2
`
`CRANFORD v. MCDONOUGH
`
`
`Before REYNA, HUGHES, and STOLL, Circuit Judges.
`Opinion for the court filed by Circuit Judge HUGHES.
`Concurring Opinion filed by Circuit Judge REYNA.
`HUGHES, Circuit Judge.
`Kristopher Cranford appeals a decision by the United
`States Court of Appeals for Veterans Claims affirming the
`denial of his request for benefits. Because Mr. Cranford is
`not a “veteran” entitled to receive benefits under 38 U.S.C.
`§ 101(2), we affirm.
`
`I
`Mr. Cranford is a former service member for the United
`States Army. In 2011, while on active duty, he was charged
`with possession and use of Spice, an unregulated intoxi-
`cant, in violation of a lawful general order. Captain Lucas
`Lease recommended that Mr. Cranford be tried by general
`court-martial and forwarded the charges to Lieutenant
`Colonel (LTC) Erick Sweet. Cranford v. McDonough,
`No. 19-6580, 2021 WL 787510, at *1 (Vet. App. Mar. 2,
`2021). LTC Sweet received the charges and recommended
`that a pretrial investigating officer be appointed. Id.
`In response, Mr. Cranford submitted a request to be
`discharged in lieu of trial by court-martial. Id. In that doc-
`ument, Mr. Cranford stated that he “underst[oo]d that [he]
`may request discharge in lieu of trial by court-martial be-
`cause . . . [the] charges . . . against [him] under the Uni-
`form Code of Military Justice [(UCMJ)] . . . authorize the
`imposition of a bad conduct or dishonorable discharge.” Id.
`(final alteration in original). Mr. Cranford further admitted
`guilt for at least one of the charges and acknowledged that,
`by accepting a discharge in lieu of trial by general court-
`martial, he would instead qualify for an “other than honor-
`able” (OTH) discharge, potentially barring him from receiv-
`ing benefits. Id.
`
`

`

`Case: 21-1973 Document: 34 Page: 3 Filed: 12/19/2022
`
`CRANFORD v. MCDONOUGH
`
`3
`
`Captain Lease and LTC Sweet recommended that Mr.
`Cranford’s request for discharge be approved. Id. at *2. The
`general court-martial convening authority agreed and or-
`dered that Mr. Cranford receive an OTH discharge in lieu
`of trial. Id. Mr. Cranford was then separated from service.
`Mr. Cranford later filed a request for benefits with a
`Veterans Affairs (VA) regional office. The regional office de-
`nied that request on the grounds that Mr. Cranford’s dis-
`charge status barred him
`from receiving benefits.
`Cranford, 2021 WL 787510, at *2. Mr. Cranford then filed
`a Notice of Disagreement, to which the VA responded with
`a Statement of the Case affirming its prior determination.
`Id.
`
`Mr. Cranford appealed the VA’s decision to the Board
`of Veterans’ Appeals. Id. The Board affirmed the denial of
`benefits based on Mr. Cranford’s OTH discharge, reasoning
`that Mr. Cranford had requested the OTH discharge to es-
`cape trial by general court-martial. Applying 38 C.F.R.
`§ 3.12(d)(1), the Board concluded that Mr. Cranford had
`been discharged under dishonorable conditions and was
`thus ineligible for benefits as a non-veteran under
`38 U.S.C. § 101(2).
`Mr. Cranford appealed the Board’s decision to the Vet-
`erans Court, arguing that (1) the Board mischaracterized
`his discharge as being “in lieu of a general court-martial,”
`instead
`of a
`summary
`court-martial, Cranford,
`2021 WL 787510, at *2
`(emphasis added), and
`(2)
`§ 3.12(d)(1) did not apply to him because he had accepted
`an OTH discharge, not an “undesirable discharge,” id.
`The Veterans Court rejected both arguments, reason-
`ing that (1) Mr. Cranford had been referred for a general
`court-martial, since he had acknowledged as much in his
`request for discharge, id. at *2–3, and (2) an OTH dis-
`charge accepted in lieu of a general court-martial is equiv-
`alent to an undesirable discharge—despite the military
`service departments’ shift in terminology, id. at *3–4
`
`

`

`Case: 21-1973 Document: 34 Page: 4 Filed: 12/19/2022
`
`4
`
`CRANFORD v. MCDONOUGH
`
`Mr. Cranford appeals. We have jurisdiction under
`38 U.S.C. § 7292.
`
`II
`At issue in this appeal is whether the service depart-
`ments’ shift in terminology from “undesirable” to “OTH”
`discharge affects Mr. Cranford’s eligibility for benefits un-
`der 38 C.F.R. § 3.12(d)(1).1 Under 38 U.S.C. § 7292(a), we
`have jurisdiction to review the Veterans Court’s interpre-
`tation of that regulation. We review questions of statutory
`and regulatory interpretation de novo. Martinez-Bodon v.
`McDonough, 28 F.4th 1241, 1243 (Fed. Cir. 2022).
`A
`38 U.S.C. § 101(2) defines a veteran as a “person who
`served . . . and who was discharged or released therefrom
`under conditions other than dishonorable.” The Secretary
`of the VA has the “authority to prescribe all rules and reg-
`ulations which are necessary or appropriate to carry out
`the laws administered by the department and are con-
`sistent with those laws.” 38 U.S.C. § 501(a). The nature of
`this rulemaking authority
`is
`“broad.” Snyder v.
`McDonough, 1 F.4th 996, 1003 (Fed. Cir. 2021). Apart from
`certain statutory bars, the Secretary has discretion to de-
`fine what conditions fall outside “conditions other than dis-
`honorable,” and thus bar a former service member from
`receiving benefits. Garvey v. Wilkie, 972 F.3d 1333, 1340
`(Fed. Cir. 2020) (holding that “the VA has authority to de-
`fine the term [‘conditions other than dishonorable’] con-
`sistent with Congressional purpose.”).
`In promulgating 38 C.F.R. § 3.12(d), the Secretary of
`the VA used this broad rulemaking authority to define
`
`
`1 Mr. Cranford did not appeal the Veterans’ Court’s
`determination that he was facing a general court-martial
`when he accepted discharge.
`
`

`

`Case: 21-1973 Document: 34 Page: 5 Filed: 12/19/2022
`
`CRANFORD v. MCDONOUGH
`
`5
`
`which discharges are issued under dishonorable condi-
`tions. See Character of Discharge, 41 Fed. Reg. 12,656
`(Mar. 26, 1976) (“The Veterans Administration is charged
`with the responsibility of determining whether such dis-
`charges were granted under conditions other than dishon-
`orable. The provisions of § 3.12(d) were established for the
`purpose of making such determinations.”). Under
`§ 3.12(d)(1), one discharge issued under dishonorable con-
`ditions is “[a]cceptance of an undesirable discharge to es-
`cape trial by general court-martial.” 28 Fed. Reg. 123 (Jan.
`4, 1963). The VA has understood § 3.12(d)(1) to bar service
`members who accepted discharges to avoid general court-
`martial from accessing benefits because such discharges
`are considered “dishonorable” and disqualify those individ-
`uals from the definition of “veteran” in 38 U.S.C. § 101(2).
`See Veterans Benefits: Character of Discharge, 40 Fed.
`Reg. 56,936–37 (Dec. 5, 1975) (currently codified as 38
`C.F.R. § 3.12) (discussing the relationship between § 3.12
`and the legislative bars to benefits, including 38 U.S.C.
`§ 101(2)).
`At the time § 3.12(d)(1) was implemented, the service
`departments used five terms to describe categories of dis-
`charge, including “undesirable discharge.” 41 Fed. Reg.
`12,656; Major Bradley K. Jones, The Gravity of Adminis-
`trative Discharges: A Legal and Empirical Evaluation, 59
`MIL. L. REV. 1, 3 (1973) (citing Army Reg. No. 635-200,
`para. 1–5 (July 15, 1966)). In 1977, after the Vietnam War,
`the service departments stopped using the term “undesira-
`ble” to describe such discharges, opting instead to use the
`“OTH” descriptor to refer to the same class of individuals.
`Update and Clarify Regulatory Bars to Benefits Based on
`Character of Discharge, 85 Fed. Reg. 41,474 (proposed July
`10, 2020).
`The VA did not update § 3.12(d)(1) at the time the ser-
`vice departments shifted terminology, and the regulation
`continues to use the old term. In 2020, the VA proposed to
`clarify § 3.12(d)(1) by replacing “undesirable discharge”
`
`

`

`Case: 21-1973 Document: 34 Page: 6 Filed: 12/19/2022
`
`6
`
`CRANFORD v. MCDONOUGH
`
`with “other than honorable discharge or its equivalent.” 85
`Fed. Reg. 41,474–75. The stated purpose of this update was
`to “conform” to the current terminology used by the service
`departments. Id. at 41,474. The VA has not yet imple-
`mented its proposal.
`
`B
`The only question before us is one of interpretation:
`whether those who accept an OTH discharge in lieu of trial
`by general court-martial are barred from receiving VA ben-
`efits based on the meaning of “undesirable discharge” in
`§ 3.12(d)(1).2, 3 When interpreting a regulation, we start by
`exhausting all traditional tools of interpretation to deter-
`mine whether the plain meaning of the regulation can be
`
`2 The concurrence would have us decide this case
`based on waiver alone. Concurring Op., 5–6. But we decline
`to do so here. The Veterans Court did not rely on waiver as
`a legal basis for its determination, and therefore, we lack
`jurisdiction to consider that issue. 38 U.S.C. § 7292(a)
`(providing jurisdiction to review the Veterans Court’s deci-
`sion “on a rule of law or of any statute or regulation . . . that
`was relied on by the Court in making the decision” (empha-
`sis added)); see also, e.g., Carr v. Wilkie, 961 F.3d 1168,
`1176–77 (Fed. Cir. 2020) (declining to consider an issue
`that was not relied upon by the Veterans Court). In any
`case, the acknowledgment Mr. Cranford made when ac-
`cepting his request for discharge was that “he understood
`that if his request for discharge was accepted, he might be
`discharged under conditions other than honorable and
`that, as a result, he might be ineligible for VA benefits.”
`Cranford, 2021 WL 787510, at *1 (emphasis added). We do
`not view this as an unequivocal waiver of benefits.
`3 Moreover, it is not for this court to decide, as a mat-
`ter of policy, whether veterans who accept an OTH dis-
`charge in lieu of general court-martial should receive VA
`benefits. That is a responsibility for Congress and the VA.
`
`

`

`Case: 21-1973 Document: 34 Page: 7 Filed: 12/19/2022
`
`CRANFORD v. MCDONOUGH
`
`7
`
`discerned or whether it is truly ambiguous. Kisor v. Wilkie,
`139 S. Ct. 2400, 2415 (2019). Here, because we determine
`that the regulation is unambiguous on its face, we need not
`address any non-textual canons of interpretation. Id. at
`2415.
`That § 3.12(d)(1) applies to Mr. Cranford is clear “from
`the text, structure, history, and purpose” of § 3.12(d)(1). Id.
`The VA’s usage of the term “undesirable discharge” has not
`been rendered ambiguous or as having any interpretative
`doubt simply because the service departments have up-
`dated their terminology. See id.
`First, the VA’s recent proposed clarification of
`§ 3.12(d)(1) confirms that “undesirable discharge” is unam-
`biguous. 85 Fed. Reg. 41,474 (proposed July 10, 2020).
`Along with proposed substantive amendments to § 3.12,
`the VA’s proposal recognizes that “undesirable discharge”
`and “OTH discharge” have been understood as equivalents
`for over four decades. Id. (finding that replacing the term
`“undesirable discharge” with “a discharge under other than
`honorable conditions or its equivalent” will simply “con-
`form to the terminology that has been used since 1977.”).
`More than 70 comments were filed in response to the VA’s
`notice of proposal. 86 Fed. Reg. 50,513 (Sept. 9, 2021).
`These comments did not protest that changing “undesira-
`ble” to “OTH” would somehow change the class of individ-
`uals to which it referred. To the contrary, while the
`commenters’ substantive objections varied, the comments
`reflected a general understanding that an OTH discharge
`is equivalent to an undesirable discharge. In other words,
`the definition of “undesirable discharge” was clear; the is-
`sue debated was whether those who fall within that defini-
`tion should be barred from receiving VA benefits.
`Second, the history of the term “undesirable discharge”
`further supports that the term is unambiguous. Although
`the VA determines whether a discharge bars an individual
`from receiving benefits, it is the service departments—not
`
`

`

`Case: 21-1973 Document: 34 Page: 8 Filed: 12/19/2022
`
`8
`
`CRANFORD v. MCDONOUGH
`
`the VA—that provide the terms used for discharges. See 41
`Fed. Reg. 12,655–56 (Mar. 26, 1976) (acknowledging that
`the service departments are responsible for making the dis-
`charge determinations, and the VA is only responsible for
`deciding whether the given discharge disqualifies them
`from receiving benefits). Section 3.12(d)(1) was introduced
`at a time the service departments were still using the term
`“undesirable discharge” to describe a particular class of in-
`dividuals. See, e.g., 32 C.F.R. § 41.6(c) (1961); 32 C.F.R.
`§ 41.3(n) (1967). At that time, the service departments de-
`fined “undesirable discharge” as “separation from the ser-
`vice ‘Under Conditions Other than Honorable.’” 32 C.F.R.
`§ 41.6(c) (1961); see also 32 C.F.R. § 41.3(n) (1967) (defining
`the term as “[s]eparation from an Armed Force under con-
`ditions other than honorable”). It was in this context that
`the VA chose to use this same term in § 3.12(d)(1). In doing
`so, the VA understood “undesirable discharge” to describe
`the same class of individuals designated as “undesirable”
`by the service departments. See 41 Fed. Reg. 12,655–56.
`When the service departments transitioned from the
`term “undesirable discharge” to “OTH discharge” in the
`1970’s, they did not change the class of individuals to which
`the terms refer. Compare 32 C.F.R. § 41.3(n) (1975) (defin-
`ing “Undesirable Discharge” as “[s]eparation from an
`Armed Force under conditions other than honorable”), with
`32 C.F.R. § 41(l) (1977) (“The three characterizations are:
`(1) Honorable, (2) Under Honorable Conditions (General
`Discharge), and (3) Under Other Than Honorable Condi-
`tions (Undesirable Discharge).”). See also, e.g., 32 C.F.R.
`§ 70.9(b)(4)(i) (“An Other than Honorable (formerly unde-
`sirable) Discharge . . .”). The only change was the term the
`service departments used to refer to that class of individu-
`als. The class of individuals itself remained the same, as
`did the meaning of “undesirable discharge” in § 3.12(d)(1).
`Accordingly, all the available evidence points to the
`same unambiguous reading of § 3.12(d)(1): Mr. Cranford’s
`OTH discharge in lieu of trial by court-martial falls within
`
`

`

`Case: 21-1973 Document: 34 Page: 9 Filed: 12/19/2022
`
`CRANFORD v. MCDONOUGH
`
`9
`
`the meaning of and is equivalent to an undesirable dis-
`charge.
`
`III
`We have considered Mr. Cranford’s remaining argu-
`ments and find them unpersuasive. Because the plain
`meaning of § 3.12(d)(1), as implemented by the VA, has not
`changed, we affirm the Veterans Court’s decision to deny
`Mr. Cranford benefits.
`AFFIRMED
`COSTS
`
`No costs.
`
`

`

`Case: 21-1973 Document: 34 Page: 10 Filed: 12/19/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`KRISTOPHER CRANFORD,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2021-1973
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-6580, Judge Joseph L. Falvey,
`Jr.
`
`______________________
`
`REYNA, Circuit Judge, concurring.
`The majority affirms a decision by the U.S. Court of
`Appeals for Veterans Claims affirming the denial of Cran-
`ford’s request for veterans’ benefits. For the following rea-
`sons, I concur only in the result reached.
`I
`The Secretary has broad authority to prescribe rules
`and regulations that are necessary or appropriate to carry
`out the laws administered by the Department of Veterans
`Affairs (“VA”). See Snyder v. McDonough, 1 F.4th 996,
`1003 (Fed. Cir. 2021); 38 U.S.C. § 501(a). Accordingly, the
`Secretary has the authority to determine the conditions
`
`

`

`Case: 21-1973 Document: 34 Page: 11 Filed: 12/19/2022
`
`2
`
`CRANFORD v. MCDONOUGH
`
`under which individuals, other than those who receive dis-
`honorable discharges, might be precluded from receiving
`veterans’ benefits. See Camarena v. Brown, 6 Vet. App.
`565, 567 (1994), aff’d, 60 F.3d 843 (Fed. Cir. 1995).
`The issue presented in this appeal is whether the VA
`can deny benefits under 38 C.F.R. § 3.12(d)(1) where the
`servicemember receives a “discharge under other than hon-
`orable conditions” (“OTH discharge”) in lieu of a trial by
`general court-martial. Under that regulation, a service-
`member’s “[a]cceptance of an undesirable discharge to es-
`cape trial by general court-martial” is considered a
`dishonorable discharge, which thereby constitutes a bar to
`benefits. 38 C.F.R. § 3.12(d)(1) (emphasis added); see
`38 U.S.C. § 101(2).
`In the 1960s, a servicemember separating from service
`could be discharged under one of five discharge characteri-
`zations: honorable, general, undesirable, bad conduct, or
`dishonorable. J.A. 37. A servicemember facing trial by
`general court-martial could request a punitive administra-
`tive discharge (then-characterized as an undesirable dis-
`charge) as a plea bargain to avoid trial and the potential
`consequences of trial. See id.
`This process of issuing punitive administrative dis-
`charges in lieu of trial by court-martial perpetuated the
`wrongful discrimination of minority servicemembers upon
`their return to civilian life. See General Accounting Office,
`FPCD-80-13, Military Discharge Policies and Practices Re-
`sult in Wide Disparities: Congressional Review Is Needed,
`at 71 (1980) (“Those most frequently given less than hon-
`orable discharges [we]re the less educated and minorities,
`who are already at a competitive disadvantage in the labor
`market.”). For example, servicemembers might have been
`fooled into requesting a quick discharge to skip trial when
`the punitive consequences would be more severe than what
`would have otherwise been imposed by a military court.
`See id. at 68 (“In most cases a discharge in lieu of court-
`
`

`

`Case: 21-1973 Document: 34 Page: 12 Filed: 12/19/2022
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`CRANFORD v. MCDONOUGH
`
`3
`
`martial is not a bargain for the accused in the long run. . . .
`[M]ilitary courts were far more hesitant to impose a sen-
`tence which included a punitive discharge than were dis-
`charge authorities to approve discharges in lieu of court-
`martial. . . . [W]e question whether they understand its po-
`tential long-term consequences.”).
`In 1976, amidst growing awareness of the harms
`caused by discriminatory discharge practices, the Depart-
`ment of Defense (“DoD”) directed the service branches to
`cease issuing the “undesirable” discharge characterization
`altogether. See id. at 92. The military complied with the
`directive, but it has continued to issue punitive adminis-
`trative discharges in lieu of trial by court-martial, and it
`has characterized those discharges as being issued “under
`other than honorable conditions.” See id.; Cranford v.
`McDonough, No. 19-6580, 2021 WL 787510, at *3–4 (Vet.
`App. Mar. 2, 2021).
`in DoD discharge policy,
`Despite
`the change
`§ 3.12(d)(1) was not amended to reflect the DoD directive.
`As a result, the regulation still employs the old characteri-
`zation term, “undesirable discharge,” instead of “discharge
`under other than honorable conditions.” See 38 C.F.R.
`§ 3.12(d)(1). Based on this agency practice and Cranford’s
`acceptance of an OTH discharge in lieu of trial by court-
`martial,
`the VA denied Cranford benefits under
`§ 3.12(d)(1), and the Board of Veterans’ Appeals (“Board”)
`and U.S. Court of Appeals for Veterans Claims (“Veterans
`Court”) affirmed. See Cranford, 2021 WL 787510, at *3–4.
`On appeal, Cranford’s sole argument is that the Board
`and Veterans Court violated the plain language of
`§ 3.12(d)(1) by barring him from receiving benefits as a re-
`sult of his acceptance of an OTH discharge in lieu of trial
`by general court-martial. Cranford insists that § 3.12(d)(1)
`applies only to discharges characterized as “undesirable,”
`which his was not. See Appellant’s Br. 6–12.
`
`

`

`Case: 21-1973 Document: 34 Page: 13 Filed: 12/19/2022
`
`4
`
`CRANFORD v. MCDONOUGH
`
`II
`I begin my review of § 3.12(d)(1) with the plain lan-
`guage of the regulation and the common meaning of the
`terms. See Aqua Prods., Inc. v. Matal, 872 F.3d 1290, 1316
`(Fed. Cir. 2017) (en banc). Section 3.12(d)(1) provides that
`a discharge is considered to be issued under dishonorable
`conditions if it results from “acceptance of an undesirable
`discharge to escape trial by general court-martial.” See
`also 38 C.F.R. § 3.12(a) (providing that benefits are “not
`payable unless the period of service on which the claim is
`based was terminated by discharge or release under condi-
`tions other than dishonorable”).
`The Veterans Court determined that the purpose of
`§ 3.12(d)(1) is to preclude benefits for those who accept any
`punitive administrative discharge in lieu of a trial by gen-
`eral court-martial. Therefore, according to the Veterans
`Court, the operative trigger of § 3.12(d)(1) depends only on
`the basis for discharge (in lieu of trial by general court-
`martial), not the servicemember’s characterization of ser-
`vice. See Cranford, 2021 WL 787510, at *3.
`Neither the parties nor the Veterans Court have cited
`any legal authority demonstrating why that must be the
`case. Cranford only maintains that § 3.12(d)(1) does not
`apply to him because the military began using the term
`“other than honorable” in place of “undesirable” when issu-
`ing administrative discharges in lieu of court-martial, and
`the Secretary failed to timely update the language of the
`regulation. See Appellant’s Br. 5–6; Oral Arg. 10:30–35
`(“[Q:] You’re just making a technical argument, right?
`They changed the name, so it no longer applies? [A:] That’s
`correct, your Honor . . . .”). And the Secretary only recites
`the Veterans Court’s conclusions without explaining why
`the sole criterion for applying § 3.12(d)(1) should be the ba-
`sis for discharge. See Appellee’s Br. 6–7. In addition, the
`mere fact that the basis of discharge is distinguishable
`from the characterization of service does not explain why
`
`

`

`Case: 21-1973 Document: 34 Page: 14 Filed: 12/19/2022
`
`CRANFORD v. MCDONOUGH
`
`5
`
`one criterion ought to be ignored for the other when both
`are expressed in § 3.12(d)(1).
`The majority fails to resolve these issues. The majority
`first explains that “the VA’s recent proposed clarification of
`§ 3.12(d)(1) confirms that ‘undesirable discharge’ is unam-
`biguous.” Op. 7. But the fact that the proposal is still pend-
`ing, and necessary in the first place, indicates that
`§ 3.12(d)(1) may not be unambiguous. Next, the majority
`reviews the regulatory history, Op. 7–8, but I do not think
`the history is clear enough on the current record to resolve
`the dispute.
`Further, the majority engages in interpretation, with
`the result of deciding policy concerning the scope of veter-
`ans’ benefits, when it is unnecessary to do so. See Guillory
`v. Shinseki, 669 F.3d 1314, 1319 (Fed. Cir. 2012) (declining
`to interpret a regulation where it was unnecessary to re-
`solve the appeal); see also Viale v. Wilkie, 747 F. App’x 843,
`845 n. 1 (Fed. Cir. 2018). I find this particularly concerning
`because the majority opinion results in a regulatory inter-
`pretation that precludes a veteran from receiving benefits,
`but the majority never mentions the pro-veteran canon.
`See Brown v. Gardner, 513 U.S. 115, 118 (1994) (“[I]nter-
`pretive doubt is to be resolved in the veteran’s favor.”); see
`also Hudgens v. McDonald, 823 F.3d 630, 639 (Fed. Cir.
`2016).
`Interpreting § 3.12(d)(1) is unnecessary here because
`Cranford does not dispute that he received notice of, and
`recognized, the consequences of his requested plea bar-
`gain—namely, an OTH discharge and a bar to veterans’
`benefits. See Appellant’s Br. (raising no argument that no-
`tice was inadequate); Oral Arg. 3:24–42 (acknowledging
`that Cranford received notice his request for discharge
`could result in a bar to benefits and that the issue of notice
`was not asserted on appeal). Nor does Cranford argue or
`demonstrate that he was forced into making a hasty or ill-
`informed decision. What Cranford ultimately seeks to
`
`

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`Case: 21-1973 Document: 34 Page: 15 Filed: 12/19/2022
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`6
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`CRANFORD v. MCDONOUGH
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`obtain through this action is access to benefits that the rec-
`ord demonstrates he voluntarily relinquished. He cannot
`escape the fact that in 2011, he requested a plea bargain
`discharge to avoid trial by court-martial, and he acknowl-
`edged that acceptance of his request meant relinquishing
`future entitlement to veterans’ benefits. See Cranford,
`2021 WL 787510, at *1; see also generally Munoz-Perez v.
`Shulkin, 688 F. App’x 930 (Fed. Cir. 2017) (dismissing an
`appeal of a denial of benefits under § 3.12(d)(1), based on
`an OTH discharge in lieu of trial by general court-martial,
`where the appellant failed to identify a due process issue
`by pointing to lack of notice or an opportunity to be heard).
`On this record, I cannot say that the Veterans Court erred
`in affirming the Board’s decision to deny Cranford benefits
`as a result of that plea bargain.
`Thus, while I agree with the majority’s ultimate con-
`clusion, I do not believe is it necessary, or prudent on this
`record, to resolve whether § 3.12(d)(1) applies to an OTH
`discharge. I would instead find that the VA properly de-
`nied benefits to Cranford under the terms of the plea bar-
`gain, in which he accepted the potential loss of benefits and
`a discharge under other than honorable conditions in lieu
`of trial by court-martial.
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