Brandon Smith served honorably in the U.S. Army, earning service connection for PTSD in 2011. Over the following decade, VA itself documented that his condition worsened — recharacterized in 2019 as a progression of that same service-connected trauma disorder. In September 2021, in the grip of a mental health crisis, he took another person's life and then his own during a standoff with police. He was buried with honors at Ohio Western Reserve National Cemetery. Seven months later, VA's own examiners concluded that his death "cannot be disassociated" from his service-connected psychiatric disability.
Then VA moved to dig him back up.
Federal law allows VA to disinter a veteran from a national cemetery in only one narrow circumstance: clear and convincing evidence that the veteran committed a "state capital crime" — defined specifically as a willful, deliberate, or premeditated killing that could carry a life sentence. That is a high bar, and it is a specific one. The Board of Veterans' Appeals upheld the disinterment anyway, without ever finding that the killing was willful, deliberate, or premeditated, and without ever engaging with our argument that, given Brandon's documented mental state, a court would have been far more likely to convict him of voluntary manslaughter — an offense that carries three to eleven years, not life, and doesn't meet the statute's definition at all.
The Board's decision has other problems we've raised on appeal. VA's own staff refused, as a matter of internal policy, to weigh the psychiatric evidence at all, reasoning that because Brandon lacked a formal PTSD or TBI diagnosis on paper, "no analysis was conducted" — despite VA's own examiner already having called his condition "a progression of the service-connected PTSD." The Board never mentioned that refusal. In finding the killing proven by "clear and convincing" evidence, the Board also quoted the county prosecutor's assessment that a conviction was "likely" — while cutting the sentence immediately before it, in which the same prosecutor said "we can never predict the outcome of a trial." And the Board said nothing about our objection that the official who decided the case had relied on legal memos and a decade of internal VA records that were never shown to Brandon's mother or her attorney.
The stakes became urgent this past August, when the cemetery director notified Mrs. Smith that he intended to disinter the remains within 30 days — while this appeal was still pending. Disinterment cannot be undone. We filed an emergency motion asking the Court to stop it, and within days, VA agreed in writing to hold off until the appeal is resolved. The Court has since closed that emergency motion as moot, precisely because the relief we needed — no disinterment while the case is pending — had already been secured.
The underlying appeal continues. VA has not yet filed its response to our opening brief. We believe the law requires VA to actually prove what the statute demands before it disturbs any veteran's resting place, and we'll share the Court's decision here once it comes down.
