[00:00:01] Speaker 00: Case number 15-50-09, Trent M. Coburn, Appellate, v. John McHugh, Secretary of the Army. [00:00:08] Speaker 00: Mr. Tony for the Appellate, Mr. Grace for the Appellate. [00:00:36] Speaker 03: Very good morning to the court. [00:00:42] Speaker 02: My name is Raymond J. Tony and I'm counsel for Mr. Coburn in this appeal. [00:00:48] Speaker 02: This court previously found that the Army's termination of Mr. Coburn's disability evaluation processing was unfathomable. [00:00:57] Speaker 02: We're back again going on four years later, and Mr. Coburn respectfully requests or respectfully submits that the court will find it to be equally unfathomable this time around. [00:01:10] Speaker 02: Mr. Coburn's theory [00:01:12] Speaker 02: The case is very simple, and that is that Dr. Scherner, who served as the Deputy Commander for Clinical Services, who terminated his medical evaluation board process, acted contrary to his authority, which is established by paragraph 7-12 of Army Regulation 4-400. [00:01:31] Speaker 02: And that regulation states the appointing authority, who was, the parties agree, Dr. Scherner, the appointing authority is also the approving authority for MEB proceedings. [00:01:42] Speaker 02: He or she will not participate in the proceedings either as a member witness consultant or in any other capacity. [00:01:50] Speaker 02: The regulation further provides that when that authority is delegated, as it was in this case to Dr. Scherner, that the same prohibition on involvement in the proceeding applies. [00:01:59] Speaker 03: Can I ask just a question? [00:02:02] Speaker 03: If I fathom the government's argument, Your Honor, it is that there is not a board proceeding within the meaning of 712 until there's a board. [00:02:13] Speaker 03: That's the Army's contingent. [00:02:14] Speaker 03: And that there was no board yet appointed here, so there was not yet a board proceeding. [00:02:21] Speaker 03: That's the Army's contingent. [00:02:23] Speaker 02: That's entirely contrary to the regulations and also to the facts of the case. [00:02:28] Speaker 03: Why is it contrary to this regulation, which says you can't participate in a board proceeding? [00:02:33] Speaker 02: It refers to proceeding. [00:02:35] Speaker 02: So even if the Army's [00:02:36] Speaker 02: theory of a bifurcated MEB is correct. [00:02:39] Speaker 02: The language of this applies from the commencement of the MEB process to its conclusion. [00:02:44] Speaker 02: It doesn't distinguish between an examination phase and the stage where the board has been impaneled. [00:02:51] Speaker 02: So it encompasses, even if the Army is correct about the impaneling issue, which we don't believe the Army is correct, this regulation still applies. [00:03:00] Speaker 02: It covers from the time he entered the disability evaluation system [00:03:04] Speaker 02: that Dr. Scherner was prohibited from any further involvement in that process. [00:03:08] Speaker 04: And what begins, in your theory, what's the triggering event that begins that process? [00:03:13] Speaker 03: The referral from the treating physician, Your Honor. [00:03:16] Speaker 03: So the, again, if I'm fathoming the Army correctly. [00:03:20] Speaker 03: It's the production of the narrative that begins the process. [00:03:26] Speaker 02: Well, it's not entirely clear. [00:03:28] Speaker 02: What they're arguing is that there's an examination phase, which is what Mr. Coburn had entered into. [00:03:35] Speaker 02: Their position is that a non-member physician conducts the examination and prepares the Narson, the narrative summary. [00:03:44] Speaker 02: That position is untenable because both the DOD instruction that governs and the Army regulations specifically state the Narsim shall contain the conclusions of the MEB, a finding of whether the person meets retention standards or not, and an explanation of why. [00:04:00] Speaker 02: So it's illogical to think [00:04:02] Speaker 02: that the examining physician is charged with coming to the conclusions that are reserved by regulation to the board itself. [00:04:09] Speaker 03: Where's the section that you're talking about now, the one that says that the NARCIM includes the results? [00:04:20] Speaker 02: It is. [00:04:21] Speaker 02: I apologize, Your Honor. [00:04:22] Speaker 02: That's all right. [00:04:24] Speaker 02: Paragraph 7-24E of our regulation 40-400. [00:04:29] Speaker 02: Say it again. [00:04:33] Speaker 02: 24N of Regulation 40-400. [00:04:37] Speaker 02: And that states, it requires the Narsum to provide, quote, an informed opinion as to the soldier's ability to meet retention standards, and if the soldier does not meet retention standards, the specific reasons why. [00:04:54] Speaker 02: So again, utterly illogical. [00:04:57] Speaker 03: Where does it say that that is [00:05:01] Speaker 03: after the MEB reaches its conclusion, rather than the narrative setting out what is it? [00:05:10] Speaker 02: That is the narrative summary, Your Honor. [00:05:12] Speaker 02: That's the content of the narrative summary. [00:05:15] Speaker 02: So the argument's position is that a non-MEB member physician produces that, comes to those conclusions, supplies that to the MEB physicians. [00:05:27] Speaker 02: who then either approve or disapprove. [00:05:31] Speaker 03: That's how I understand that position also. [00:05:34] Speaker 03: Why is that an unreasonable reading of their own regulation? [00:05:37] Speaker 02: Because the task of the MEB is to determine whether or not the soldier meets retention standards. [00:05:44] Speaker 02: That is their primary function. [00:05:47] Speaker 02: So why is the function assigned to an examining physician [00:05:51] Speaker 04: Well, they're supposed to give their opinion to the MEB physicians, and then the MEB physicians evaluate that. [00:05:59] Speaker 04: The MEB physicians, do they physically also examine the soldier? [00:06:04] Speaker 02: Your Honor, this bifurcation does not exist. [00:06:06] Speaker 02: That's the whole point. [00:06:08] Speaker 02: And so I want to take the court away from that. [00:06:11] Speaker 02: Reading the regulation as it currently stands, the MEB process is informal. [00:06:16] Speaker 02: The regulation provides that they're not even required to meet. [00:06:20] Speaker 02: So physician A gets designated to serve on an MEB. [00:06:23] Speaker 02: In this case, it was Dr. Lopez. [00:06:25] Speaker 02: That's Mr. Coburn's position. [00:06:26] Speaker 02: He was an MEB physician. [00:06:28] Speaker 02: He is the one who conducted the examination. [00:06:31] Speaker 02: Had the MEB not been terminated, a second physician would have come on board who would have reviewed the findings that Dr. Lopez produced. [00:06:40] Speaker 02: They would have reached a decision, produced the NARSIM, and from there, it would have gone to Dr. Scherk. [00:06:47] Speaker 04: does your whole case rise and fall on your contention that there was an MEB, that the protections, the priority for MEB over other administrative [00:07:00] Speaker 04: termination proceedings applies to the MEB process. [00:07:04] Speaker 04: Do you have a separate ground on which you can prevail that even if the decision here was made before the MEB was convened, as I take the Army to be contending, that there nonetheless is an arbitrariness in the decision? [00:07:21] Speaker 02: Yes, Your Honor, because the circumstances which led, the medical circumstances which led to his referral to the MEB did not change. [00:07:30] Speaker 02: The determination to send him to an MEB was concurred in by three physicians. [00:07:36] Speaker 04: So what is it in the regulations that prevents the person with authority to make a decision from just changing his mind? [00:07:50] Speaker 04: i'm sorry i don't understand as well let's assume just hypothetically that the army is right that the regular that the mv process had not yet kicked in and the question is whether [00:08:09] Speaker 04: medical decision here, yes, he's got disability, he should be evaluated by an MEB. [00:08:16] Speaker 04: Oops, actually on second thought, let's not go to that MEB. [00:08:19] Speaker 04: What is the regulation that requires a reason for that second decision? [00:08:24] Speaker 04: Let's not go to an MEB. [00:08:25] Speaker 02: Where that would transpire is before he's referred to the MEB. [00:08:30] Speaker 02: So a soldier typically will, depending on the condition or the disease process, if it's a brain tumor, and it's a terminal brain tumor, there's not a question. [00:08:39] Speaker 02: If it's a case of diabetes, is it managed by insulin? [00:08:42] Speaker 02: There's a question. [00:08:43] Speaker 02: So normally there's a monitoring period, a treatment period, and for Mr. Covid it was extensive over a period of years. [00:08:49] Speaker 02: So that's the determination of the treating physician under the regulation. [00:08:53] Speaker 02: He or she comes to the conclusion that he or she believes that the person may not meet retention standards. [00:09:01] Speaker 02: then the person is sent to the MEB. [00:09:03] Speaker 04: I'm saying, before they're sent to the MEB, then the question is, the treating physician, let's say MS, we think it's MS, and then they read a CME article, and they say, oh, wow, you know what? [00:09:15] Speaker 04: I don't think that's MS at all. [00:09:16] Speaker 04: I think it's arthritis. [00:09:18] Speaker 04: And without seeing the person again, without any further testing, they just change their mind. [00:09:24] Speaker 04: Is there any standard of non-arbitrariness or of medical documentation or anything [00:09:30] Speaker 04: In your view, that applies before it actually is referred. [00:09:35] Speaker 02: Oh, at that point in time, if the soldier is not in the medical evaluation board process, the decision simply is to not refer him or her to the MEB. [00:09:45] Speaker 04: Does anything constrain or require non-arbitrariness in that decision? [00:09:51] Speaker 02: No. [00:09:54] Speaker 02: No, Your Honor, because that's a discretionary call by the treating physician. [00:09:59] Speaker 02: at that point in time, before the MEB. [00:10:01] Speaker 02: That's the point, the regulation. [00:10:03] Speaker 04: So I think you've just changed your answer to my prior question. [00:10:06] Speaker 04: I had asked if your whole case rises and falls on the notion that he was, that Sergeant Coburn was in the MEB process and that that process is covered by the priority regulation. [00:10:20] Speaker 02: If I understand correctly, so drawing a fine line between pre-MEB and the MEB stage, the treating physician pre-MEB [00:10:29] Speaker 02: is just a treating physician. [00:10:31] Speaker 02: So he or she makes a call at a certain point that this person is not going to recover, having issues with duty, performance, or depending upon the condition, et cetera. [00:10:40] Speaker 02: I don't think the person meets retention standards sent to the MEB. [00:10:43] Speaker 02: The MEB then decides whether the person meets retention standards or not. [00:10:48] Speaker 04: But I think their position is treating physician says, this person doesn't meet retention standards. [00:10:53] Speaker 04: They have a disability. [00:10:54] Speaker 04: And then, actually, on second thought, [00:10:59] Speaker 04: No, he does meet retention standards. [00:11:02] Speaker 04: And I take you to be saying, that's fine. [00:11:06] Speaker 04: If he hasn't been sent to the MEB, they can do that for any reason or no reason at all. [00:11:11] Speaker 04: Even if the medical documentation says, this person has a disability, they can sort of wake up one morning and say, no, actually, in my medical judgment, no. [00:11:20] Speaker 04: They don't have a disability. [00:11:22] Speaker 04: Let's not go the MEB route. [00:11:24] Speaker 03: And that happens. [00:11:25] Speaker 03: That's correct. [00:11:25] Speaker 03: What do you mean by sent to the MEB? [00:11:28] Speaker 03: That means referred. [00:11:29] Speaker 02: Who is that? [00:11:30] Speaker 02: What's the formal version of that? [00:11:32] Speaker 02: In this case, the regulations, this is a very informal ad hoc process, so the regulations are not overly specific. [00:11:39] Speaker 02: The referral, it comes from either a physician or a commanding officer, can also, I'm sorry, I'll strike that, the commanding officer can suspect that the person doesn't meet retention standards, send them to a doctor. [00:11:51] Speaker 02: A referral done by a letter or something? [00:11:53] Speaker 02: It's done by the treating physician. [00:11:54] Speaker 02: By a letter or something? [00:11:55] Speaker 02: Normally by a letter, by a memorandum. [00:11:57] Speaker 03: Is that what happened in this case? [00:11:58] Speaker 03: It's happened in this case. [00:12:00] Speaker 03: So the minute after the letter is sent, [00:12:06] Speaker 03: Is there already a MEDD, as far as you're concerned? [00:12:09] Speaker 02: I think the moment that the treatment facility receives the letter and says, we're docketing this, however that happens in their personnel system. [00:12:19] Speaker 03: And in this case, I just want to, in that circumstance, you believe it's the process. [00:12:24] Speaker 03: Even if another doctor hasn't been appointed to the board. [00:12:28] Speaker 03: Well, in that case, neither physician has been appointed to the work. [00:12:31] Speaker 03: And even so, you think the processes are right? [00:12:33] Speaker 03: The processes are right. [00:12:34] Speaker 03: So imagine that the referring physician looks at the wrong X-ray. [00:12:41] Speaker 03: He actually looks at Mr. X and not Mr. Coburn. [00:12:45] Speaker 03: He sends it, and the nurse runs in and says, doctor, you've looked at the wrong x-ray. [00:12:50] Speaker 03: That's something completely different. [00:12:52] Speaker 03: Here's the correct x-ray. [00:12:54] Speaker 03: Nothing's broken. [00:12:56] Speaker 03: He can't pull it back? [00:12:57] Speaker 03: Is that? [00:12:58] Speaker 03: He can't pull it back. [00:12:59] Speaker 02: This is not an onerous burden, even though the Army. [00:13:02] Speaker 02: But I just want to be clear. [00:13:03] Speaker 02: Can't pull it back. [00:13:04] Speaker 02: No. [00:13:04] Speaker 02: Not according to the regulations. [00:13:05] Speaker 03: So can you help me with some of the words of some of these regulations? [00:13:08] Speaker 03: Yes, sir. [00:13:12] Speaker 03: 635-44-10 says MEBDs are convened to document a soldier's medical status. [00:13:21] Speaker 03: What does convened mean? [00:13:24] Speaker 03: The government's position, as I understand it, is that two doctors are appointed. [00:13:28] Speaker 03: That's what convened means. [00:13:29] Speaker 03: What do you think convened means? [00:13:31] Speaker 02: The terms are not consistently used throughout the resolution. [00:13:36] Speaker 02: To answer your question, Your Honor, what it means is that a doctor is notified. [00:13:40] Speaker 02: This is my understanding of what happens. [00:13:42] Speaker 02: I've represented quite a number of soldiers and individuals from other military services in the disability evaluation process. [00:13:49] Speaker 02: I will say I have never seen an order in an MEB package convening the MEB members or authorizing the two MEB members to serve, including one with the Army that I currently have from the Court of Federal Claims. [00:14:02] Speaker 02: I'm not sure the process is as specific as we would like for it to be. [00:14:06] Speaker 03: The description I'm giving is the one that the Surgeon General and the Army Physical Disability Agency describes. [00:14:16] Speaker 03: If I have to decide between what you just said, which is sort of your anecdotes, which I don't demean, they may well be correct, and two units that deal with this all the time, [00:14:30] Speaker 03: I would have to say substantial evidence supports the position, even if you have contrary anecdotes. [00:14:40] Speaker 03: Isn't that right? [00:14:40] Speaker 02: Well, the browser opinion from the Army Physical Disability Agency says, [00:14:47] Speaker 02: And MEB is not an active board per se, but it's only two physicians who are chosen. [00:14:53] Speaker 02: Yeah. [00:14:53] Speaker 02: So they have to be chosen. [00:14:55] Speaker 02: But that's my, in responding to your question about what this is. [00:14:58] Speaker 03: It actually says chosen after the exam and narrative summary is completed. [00:15:01] Speaker 02: And that is incorrect. [00:15:03] Speaker 03: OK. [00:15:03] Speaker 03: So when you say it's incorrect, from a practice point of view, I don't think you can win. [00:15:10] Speaker 03: Because we have two different sides on this, and their side [00:15:15] Speaker 03: is enough for substantial evidence. [00:15:16] Speaker 03: The question is really whether the regulations can be reasonably read. [00:15:22] Speaker 03: And given that we have a regulation that says convened, give me another meaning of convened that makes their meaning an unreasonable one. [00:15:34] Speaker 02: The convening means that they are selected to serve on the board, which probably happens via email. [00:15:41] Speaker 02: to the physicians. [00:15:42] Speaker 03: So they say there's no evidence that anybody was convened. [00:15:45] Speaker 03: You think there was a board convened? [00:15:46] Speaker 03: You think people were selected here? [00:15:48] Speaker 03: Certainly Dr. Lopez was. [00:15:49] Speaker 03: But there have to be two of them. [00:15:51] Speaker 03: So do you think two of them were? [00:15:52] Speaker 02: I don't know if a second was or not. [00:15:55] Speaker 03: I don't know if there was another physician who was in the wings. [00:16:00] Speaker 03: Do you agree that two have to be selected one way or the other before an MEBD is convened? [00:16:07] Speaker 02: I don't believe that both physicians have to be appointed, selected, or chosen for an MEB to be convened. [00:16:16] Speaker 02: The process starts, again, when the military treatment facility receives the referral. [00:16:23] Speaker 02: assigns a counselor, which happened in this case, and that starts the MEB process, the proceedings, if you will. [00:16:31] Speaker 02: I don't know, and the record doesn't tell us what you have in terms of what I'm offering as conjecture. [00:16:37] Speaker 02: You have the unsupported assertions of this advisory opinion doesn't have any reference to the regulation to support its position. [00:16:45] Speaker 02: And I pointed out in our briefing, numerous reasons why that position is an untenable position is not worthy of deference. [00:16:51] Speaker 03: The other regulation that I'm focusing on is 40-400-71, which says, [00:17:02] Speaker 03: MEV processing will not normally exceed 30 days beginning on the date of the medical officer's narrative summary. [00:17:10] Speaker 03: Correct. [00:17:10] Speaker 03: So that does sound like the summary is their kickoff, doesn't it? [00:17:16] Speaker 02: No, that means that they're going to complete, if I can read 7-. [00:17:20] Speaker 02: It's 7-1. [00:17:24] Speaker 02: It's a third sentence. [00:17:36] Speaker 02: The deadline for the P.E.B. [00:17:44] Speaker 02: processing of the case. [00:17:46] Speaker 02: I'm sorry, I'm sorry, forgive me. [00:17:49] Speaker 03: It says MEV processing will not normally exceed 30 days beginning at the date [00:18:01] Speaker 03: of the medical officer's narrative summary. [00:18:03] Speaker 03: So that sounds like MEB processing begins on the date of the medical officer's narrative summary, which is the government's position here. [00:18:12] Speaker 02: Why is that? [00:18:13] Speaker 02: I think that's referring to the narrative summary that's prepared by the MEB. [00:18:17] Speaker 02: And so MEB processing will not normally exceed 30 days. [00:18:22] Speaker 02: So I think the intent of that is that once the NARSIM is completed, they need to get it to the physical evaluation board within 30 days. [00:18:31] Speaker 04: Right, but I think what the Chief Judge is pointing out is that that at least implicitly, almost explicitly, defines MEV processing. [00:18:43] Speaker 04: And so MEV processing there is defined as starting at point A, medical operation error to summary, and ending at point B, referral to the physical evaluation board. [00:18:57] Speaker 04: And that question is why isn't that support for [00:19:01] Speaker 04: the military's reading, that processing begins with the Narsum. [00:19:12] Speaker 02: Your Honor, I'm not sure how to answer the question other than if we look at what was remanded to the board by the court the first time around, the question was the Army's position at that point was that an MEB had been initiated, but he hadn't been referred. [00:19:27] Speaker 02: So the MEB had not been commenced. [00:19:30] Speaker 02: Therefore, the treating physician was able to withdraw it. [00:19:33] Speaker 04: I wanted to circle back on the colloquy that you and I had had before. [00:19:38] Speaker 04: Is it your view that if a soldier has been referred for an MEB, but the MEB has not yet been impaneled, that during that period the [00:19:55] Speaker 04: Officer with authority in here, that would be Mr. Scherner, can terminate the MEV for any reason or no reason at all? [00:20:06] Speaker 02: No, no, Your Honor. [00:20:07] Speaker 04: And what is your authority for saying no? [00:20:10] Speaker 02: The authority is paragraph 7-12 of Army Regulation 40-400. [00:20:15] Speaker 02: He was the appointing authority slash approving authority. [00:20:20] Speaker 02: And that paragraph explicitly addresses what his authorities are, what his role is, and what the limitations are. [00:20:28] Speaker 02: And the prohibition is participation in the proceedings. [00:20:32] Speaker 04: And you're, I mean, you're primarily also relying on 635-200-133. [00:20:39] Speaker 04: It's giving that process priority, right, over other administrative processes. [00:20:44] Speaker 02: The MAP, the disability process. [00:20:46] Speaker 02: Yeah. [00:20:46] Speaker 02: Correct, Your Honor. [00:20:50] Speaker 02: I think that the parties in the court were all in agreement last time around that his disability took precedence over any other... Right, the question is, is he having a disability so that he gets the benefit of that precedence? [00:21:04] Speaker 02: Right. [00:21:04] Speaker 02: That's the big picture. [00:21:05] Speaker 02: Yes, Your Honor, and that's what the advisory opinions concluded, and that's what the ABCMR also concluded. [00:21:10] Speaker 02: Now, sort of one of the obvious points is a lot of discussion about the termination of the MEB. [00:21:16] Speaker 02: It's used by the ABC March, used by the Army in their briefing, and it's also used in the advisory opinions. [00:21:22] Speaker 02: How can you terminate an MEB if the MEB did not exist? [00:21:25] Speaker 02: So that clearly is evidence that the process had started. [00:21:30] Speaker 02: So going back to 7-12, I think the question for the Court is then how broad or how narrow is the restriction in paragraph 7-12? [00:21:39] Speaker 02: proceedings, it doesn't state, if the Army's theory were correct, that regulation would have been written to state that the appointing authority can terminate the process at any point in time, soldier has no rights to appeal prior to the impaneling or the convening of the MBB. [00:21:56] Speaker 02: It does not state that. [00:21:58] Speaker 02: And there are a host of other regulations which we address in the rebuttal. [00:22:02] Speaker 02: For example, the rights of appeal. [00:22:04] Speaker 02: What happens to the rights of appeal in this process? [00:22:07] Speaker 02: If the Army is correct, what standard did Dr. Scherner use to terminate the process? [00:22:12] Speaker 02: Did he find that he met retention standards? [00:22:14] Speaker 02: Where is he authorized to make that determination? [00:22:17] Speaker 02: That's the determination for the MEB. [00:22:21] Speaker 03: Well, that would fit. [00:22:23] Speaker 03: I appreciate you think that the place on the line is a different place. [00:22:28] Speaker 03: But since you agree that before the doctor sends the referral, the doctor could change his mind for any reason, because it's up to his discretion. [00:22:39] Speaker 03: The argument would be that before the board is impaneled, [00:22:45] Speaker 03: these other rules don't apply and so he can pull it back in the exercise of his discretion without an appeal. [00:22:53] Speaker 03: In the same way he could have decided in his office not to send it in the first place. [00:22:57] Speaker 03: That would have to be the argument. [00:22:59] Speaker 02: And that's also what the board concluded. [00:23:01] Speaker 02: Dr. Caicedo, the treating physician, had no authority to terminate the MEB. [00:23:07] Speaker 02: The position of the ABCMR is that Dr. Scherner had that authority as the appointing approving authority. [00:23:14] Speaker 02: And the reasons, there's some logic to there, or they use logic, but it's also purely speculative in terms of what they fundamentally based their opinion on. [00:23:25] Speaker 02: Neither of the advisory opinions stated [00:23:28] Speaker 02: that Dr. Scherner had the authority to do what he did. [00:23:32] Speaker 02: Further questions? [00:23:33] Speaker 04: I have one other question. [00:23:35] Speaker 04: If a physician is referring to an MEB, can there be such a referral on a basis other than those enumerated? [00:23:46] Speaker 04: under an AR 4-501. [00:23:49] Speaker 04: In other words, there is this long list of enumerated conditions, and the Army puts a lot of emphasis on documentation that does not say that there's a herniated disc, but maybe just bulging disc. [00:24:05] Speaker 04: And the question is, if a doctor thought there was a bulging disc situation that was very disabling, [00:24:10] Speaker 04: Is that a permissible condition for referral to an MEP or not? [00:24:15] Speaker 02: My recollection is they could refer him for back pain, for chronic back pain, and that also provides a rating. [00:24:24] Speaker 02: Once they get to the physical evaluation board stage, they assign a disability rating. [00:24:30] Speaker 02: So back pain is a rateable condition. [00:24:32] Speaker 02: So my understanding, Your Honor, and I'd be happy to get back to the court with the specifics, is the answer to your question is yes. [00:24:40] Speaker 02: But generally, the list being very comprehensive, those are the conditions. [00:24:44] Speaker 02: I don't know if there is a medical condition, if there's something that comes up, a new type of disease diagnosis. [00:24:51] Speaker 02: I'm not sure how that would work, Your Honor. [00:24:52] Speaker 02: Maybe the Army can help you with that. [00:24:55] Speaker 02: Thank you very much. [00:24:57] Speaker 03: With that cue, we'll turn to the Army. [00:25:08] Speaker 01: Good afternoon. [00:25:10] Speaker 01: May it please the court, I am Derek Grace, Special Assistant United States Attorney for the District of Columbia, and I'm here representing the Secretary of the Army. [00:25:19] Speaker 01: In this case, the position of the Army is that the [00:25:26] Speaker 01: MEB, as we've talked about a lot, the MEB had not been formally impaneled. [00:25:32] Speaker 01: There was no actual MEB proceeding, per se, at the time that the Appointing Authority [00:25:43] Speaker 01: terminated the process, so to say. [00:25:47] Speaker 01: How did we get there? [00:25:48] Speaker 01: The Army Disability Agency provided documentation to, advisory opinion to the ABCMR in its determination. [00:26:01] Speaker 01: These are based on questions that this court had prior and returned the questions along with the case to the ABCMR in order to [00:26:13] Speaker 03: go through those questions and those concerns that the court had in order to... Just to be clear, it is, as I described to your opposing counsel and as he also thought the government's position was, that until the MEB is impaneled, [00:26:30] Speaker 03: and I take it the government's position about impaneled or convened, I guess is the better word, is that two doctors are appointed. [00:26:36] Speaker 03: Until that happens, we're not yet in the MEB proceeding process. [00:26:41] Speaker 03: Is that right? [00:26:42] Speaker 01: Yes, Your Honor. [00:26:43] Speaker 01: Until there's an MEB, there's not an MEB, I guess would be. [00:26:47] Speaker 03: And you heard me talk about several regulations with opposing counsel. [00:26:53] Speaker 03: Are those the regulations on which the government relies for that view? [00:26:57] Speaker 03: Are there some other regulations? [00:27:00] Speaker 03: Have I picked the wrong regulations? [00:27:01] Speaker 03: Are the right regulations, or what? [00:27:03] Speaker 01: Yeah, these are the correct regulations. [00:27:07] Speaker 01: On top of that, the ABCMR and the District Court relied on the advisory opinions from the Army Surgeon General's Office, as well as the Army Physical Disability Agency, [00:27:19] Speaker 01: which are those agencies that run the process, both the process itself as well as the doctors who are empaneled to review these cases. [00:27:32] Speaker 03: So if it's the case that this process or proceeding hasn't begun, didn't begin in this case yet, right? [00:27:39] Speaker 01: There was no MEB proceeding. [00:27:42] Speaker 03: Why is it that the referring doctor couldn't on his own simply pull it back? [00:27:47] Speaker 01: So if you look at 635-40 paragraph 4-9, as well as the Army Physical Disability Agency's comments, [00:28:04] Speaker 01: referring physician loses authority once it's referred. [00:28:09] Speaker 01: So as the primary physical disability agency stated on Joint Appendix 200, the initiation or referral, because it's the same thing by the treating physician in this case, [00:28:24] Speaker 01: merely means that the medical treatment facility gains control and the case is assigned to have the physician complete a medical examination and narrative summary for inclusion in the MEB. [00:28:36] Speaker 03: I'm sorry, which, what are you reading from? [00:28:38] Speaker 01: Sorry, paragraph 2B of JA 200, the advisory opinion from the. [00:28:44] Speaker 03: I was asking, is there, I see you're looking at 4-9. [00:28:49] Speaker 03: Yes, your honor. [00:28:50] Speaker 03: Is there somewhere, [00:28:53] Speaker 03: That's what you're lying in for for the proposition that once there's a referral. [00:28:58] Speaker 01: Yes, sir. [00:28:58] Speaker 03: If so, uh, commander's responsibility. [00:29:00] Speaker 03: I'm sorry there after it's the. [00:29:05] Speaker 03: MTF commander's responsibility, is that the point? [00:29:08] Speaker 01: So the question is what does referral mean? [00:29:13] Speaker 01: The Appellant Council believes that referral once it's gone, it's gone, it's started down the road of an MB. [00:29:20] Speaker 01: However, the referral from a physician or under 464748 from referral from a commander [00:29:31] Speaker 01: barely means that the responsibility has been transferred over to the appointment authority. [00:29:37] Speaker 01: And then 4.9 states that the [00:29:43] Speaker 01: the commander, sorry, the appointment authority in this case, the appointing authority will conduct an examination of a soldier referred for evaluation. [00:29:53] Speaker 04: In this case, that's Scherner. [00:29:55] Speaker 04: That's the MTL. [00:29:56] Speaker 01: Yes, Your Honor. [00:29:57] Speaker 04: And does, once we're at that stage in the process, whether you characterize it as [00:30:02] Speaker 04: the MEB having been convened or not, and I understand there's quite a disagreement on that, but assuming your position is correct, that there's no MEB that's been convened, is there nonetheless some requirement of a non-arbitrary reason for the MTF to decide to disband, countermand the referral, stop the process, [00:30:29] Speaker 01: But yeah, there's nothing in the regulation that says that. [00:30:34] Speaker 01: It's a discretionary decision by a doctor to [00:30:40] Speaker 01: is whether the soldier has a condition that appears to make him not medically qualified to perform his duties. [00:30:51] Speaker 04: So is that one based on whether the soldier is not medically qualified to perform his duties? [00:30:55] Speaker 01: In the physician's opinion, yes, Your Honor. [00:30:57] Speaker 04: Now, what supports the decision of Dr. Scherner in this case that Sergeant Coburn was medically [00:31:09] Speaker 04: just Mr. Casado's declaration? [00:31:13] Speaker 01: No, Your Honor. [00:31:13] Speaker 01: So first, I think it's important to understand that we're reviewing the ABCMR decision for Arbitrary Preciousness, which is a different level of scrutiny than the doctor. [00:31:28] Speaker 01: So the doctor [00:31:31] Speaker 01: looked at, reviewed the file. [00:31:34] Speaker 01: Obviously, because when he reviewed the file, he said he informed that there was a pulmonary issue that was found, and he wanted to make sure that there was no issues there prior to terminating the referral to the MEB. [00:31:51] Speaker 01: So that right there indicates that it wasn't an arbitrary decision by the appointment authority. [00:32:00] Speaker 01: But the ABCMR's decision is really what's in front of the court now, which not only looks at Dr. Castillo, the medical records that were available to it, but also, as it states in its decision, that it looks at what is the evaluations. [00:32:24] Speaker 01: Because the idea is, what [00:32:29] Speaker 01: Was there a condition that hindered this person from performing his duties? [00:32:34] Speaker 01: So they looked at the evaluation reports close in time to after the initial injury, I believe, in 1999. [00:32:42] Speaker 01: They looked at those evaluations and found that he was performing the duties commensurate with his rank and positions. [00:32:52] Speaker 01: So there was no referral from the commander. [00:32:57] Speaker 01: Before the – there was no referral at all from a commander saying that he had an unfitting condition. [00:33:02] Speaker 01: In fact, he was a platoon sergeant. [00:33:05] Speaker 01: He fulfilled duties as a first sergeant at times. [00:33:10] Speaker 04: I find this record somewhat confusing. [00:33:13] Speaker 04: Yes, sir. [00:33:14] Speaker 04: And I'm sure you can help me out. [00:33:17] Speaker 04: As one data point, the physical report by Dr. Quesedo signed off by two other medical professionals on June 28, 2002, in which Dr. Quesedo says that there is a permanent restriction on Sergeant Coburn's ability to do the job. [00:33:44] Speaker 04: He can't run, jump, march, or do sit-ups. [00:33:47] Speaker 04: And it says he's not a surgical candidate at this time. [00:33:53] Speaker 04: And that then is a source of, I believe, referral toward the MEB. [00:34:03] Speaker 04: And the question is, is there anything after that, any medical documentation of any kind that explains why that has either changed or error? [00:34:19] Speaker 01: Issues, as the AVCMAR says, and recognizes, there's longstanding medical issues by the appellant. [00:34:30] Speaker 01: However, the appellant in receiving his referral to the appointment authority [00:34:43] Speaker 01: When it was discovered that he was already pending separation was when Dr. Casito re-looked at his medical records. [00:34:55] Speaker 01: And the ABCMR points out that that's significant, not because of any nefarious reason that [00:35:10] Speaker 01: the appellant gives them. [00:35:12] Speaker 01: However, the issue is that under the regulations, if it, under the appropriate regulations, the [00:35:31] Speaker 01: If the soldier is able to perform his duties pending separation, up until the point of separation, there is a presumption that he is fit for duty. [00:35:43] Speaker 01: So then he looks at those medical records in a different light under that presumption and understands now that he was scheduled for separation. [00:35:53] Speaker 04: So the evidence that he is performing his duties, notwithstanding Dr. Quecedo's [00:36:03] Speaker 04: determination on June 28th is what? [00:36:08] Speaker 04: The evidence that he's nonetheless, as of that date and thereafter, performing his duties is what? [00:36:13] Speaker 01: So as the ABCMR points out, the evaluation reports are an important factor in that. [00:36:22] Speaker 01: If you look at 635-40, addendum 9, paragraph 3C. [00:36:33] Speaker 04: Can you give me a JA site? [00:36:35] Speaker 01: Addendum 9 to the Plaintiff's Brief. [00:36:42] Speaker 01: Yes, Your Honor. [00:36:49] Speaker 04: Government Addendum Page 9. [00:36:54] Speaker 01: Sorry, the Appellant's Argument. [00:37:05] Speaker 04: I don't think I'm looking at what you're asking me to look at. [00:37:08] Speaker 01: That's a regulation. [00:37:09] Speaker 01: Okay, so it's a regulation 635-40, paragraph 3.1, part C. Right. [00:37:20] Speaker 01: Okay, about halfway down, that's part C, it says a soldier may be referred for physical evaluation under other circumstances, meaning other circumstances other than what was talked about earlier, which is acute trauma, that sort of thing, that required hospitalization. [00:37:33] Speaker 01: If so, evaluations of the performance of duty by supervisors may provide better evidence than a clinical estimate by the duties of the office grade rank or rating. [00:37:44] Speaker 01: Thus, if the evidence establishes the fact that the soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral, the physical evaluation of the soldier might be considered fit for duty. [00:37:58] Speaker 01: So that's something that the ABCMR considered, the non-commissioned officer evaluation reports. [00:38:04] Speaker 01: Not to mention, the only mention of any duty-limiting condition that the soldier had in his non-commissioned officer evaluation reports is in the final one well after, it was just about June 2002, which is well after [00:38:24] Speaker 01: the appeal of his separation was denied. [00:38:30] Speaker 01: And the regulation also states that any duty limitation, the commander should reference any duty limitation in the non-commissioned officer evaluation report, which was not done at all. [00:38:44] Speaker 04: Okay, you're a little bit ahead of me. [00:38:46] Speaker 04: Where in the ABCMR decision does the [00:38:51] Speaker 04: The board rely on the regulation you just pointed to. [00:38:57] Speaker 04: Subsection C of Chapter 3. [00:39:10] Speaker 01: I'm not sure where it specifically refers to that subsection. [00:39:14] Speaker 01: However, it does refer to the noncommissioned officer evaluation reports close in time in JA65 paragraph 12. [00:39:33] Speaker 04: Despite the unsigned statement from Captain K indicating duties were restricted, the applicant's recent NCOER indicated the applicant was performing his assigned duties. [00:39:44] Speaker 04: That's not really dealing with also the signed statement from the medical doctor saying that his duties were restricted. [00:40:00] Speaker 04: It's a little hard to figure out why for, I mean, I guess the basic question that we've been dealing with since the prior panel was dealing with this case, I thought the point of AR 635-200, 1-33, is to create protection for service members once they're in medical channels. [00:40:21] Speaker 04: And that's the term that they use, medical channels. [00:40:25] Speaker 04: requiring that that process should run its course and not be trumped by an administrative separation proceeding, such as this one under the Quality Management Program pursuant to Chapter 19. [00:40:37] Speaker 04: So there's a cross-reference in there. [00:40:41] Speaker 04: So the position of the Army is that that protection is not applicable here. [00:40:49] Speaker 04: even though he's in medical channels, that once they realize, well, actually, what we really want to do is separate this man under the quality management program. [00:40:59] Speaker 04: He's not performing like he once was. [00:41:02] Speaker 04: And the fact, now we're going to look at the baseline. [00:41:05] Speaker 04: Instead of performing duties, we're going to say, well, [00:41:07] Speaker 04: He's going to be retired. [00:41:08] Speaker 04: He'll be fine. [00:41:09] Speaker 04: But I thought the point of this was that's not the baseline. [00:41:13] Speaker 04: You don't say, oh, this disabled soldier, he's going to be fine because he's not going to be doing his duties anymore. [00:41:18] Speaker 04: You have to ask, can he do his duties? [00:41:20] Speaker 04: And Dr. Quesedo, with two other doctors signing off, said no. [00:41:25] Speaker 04: And then Dr. Quesedo says, oh, you want to get rid of him under the QMP? [00:41:29] Speaker 04: Oh, I didn't realize that. [00:41:30] Speaker 04: Fine, then I changed my mind. [00:41:32] Speaker 04: And why is that permissible under this regulation? [00:41:37] Speaker 01: Dr. Casado has limited relevance at this stage, given that the decision is not his. [00:41:51] Speaker 01: It is the appointing authority's decision at this point. [00:41:54] Speaker 01: And as... Sherner. [00:41:56] Speaker 01: Yes. [00:41:56] Speaker 04: And the information Sherner had, though, about this individual's mouth condition was provided to him by Dr. Casado. [00:42:06] Speaker 01: I mean, just the medical record in general. [00:42:10] Speaker 01: 99 on regarding his back issues. [00:42:14] Speaker 01: Yes, Your Honor. [00:42:15] Speaker 01: I mean, not just Dr. Faseto, but the history of all the MRIs that were done, all the medical follow-ups that were done, the fact that he didn't have a medical profile from March of 2000 until February of 2002, once the separation was supposed to take effect. [00:42:34] Speaker 01: And he did have these protections. [00:42:36] Speaker 01: He was supposed to be separated in April of [00:42:39] Speaker 01: 2002, however, he obviously was not at that point because he was going through the medical channels, because he was referred to the Medical Evaluation Board. [00:42:52] Speaker 01: And so once Dr. Scherner, the appointment authority, reviewed the records, he had that authority to say, no, I don't believe that he has a duty limitation [00:43:07] Speaker 01: He has, obviously, long-standing back issues. [00:43:10] Speaker 01: So it's Dr. Scherner's decision that's relevant here, not Dr. Casado's. [00:43:16] Speaker 04: Dr. Scherner's decision based on the record. [00:43:19] Speaker 01: Based on the medical record. [00:43:21] Speaker 04: So if Dr. Scherner has to make a non-arbitrary decision based on the record, right? [00:43:28] Speaker 01: Yes, I mean, he has to make a judgment call as a doctor and as a medical officer in the United States Army as to whether, initial call, whether there appeared to be a duty-limiting physical issue. [00:43:45] Speaker 04: And is there any evidence that he was considering the back condition? [00:43:52] Speaker 04: He does refer, he says, let's not terminate this, let's refer for pulmonary evaluation. [00:43:57] Speaker 04: He does that. [00:43:59] Speaker 04: Anything, any information that he took into account the back condition? [00:44:05] Speaker 01: There's no, I mean, you know, obviously the decisions by Dr. Scherner were not set up for review by a circuit court. [00:44:16] Speaker 01: However, I think that given the nature of his decision, that Dr. Caicedo went to him and said, hey, I don't think this guy warrants a MEB. [00:44:29] Speaker 01: And he said, well, hold on a minute. [00:44:31] Speaker 01: Let me, you know, I think it's obvious while there's no [00:44:34] Speaker 01: Something I can point to physically, it's obviously he looked at the profile, otherwise he wouldn't have even known about the pulmonary issue in the first place. [00:44:45] Speaker 01: And it was the pulmonary issue, not the back issue that caused him pause to not go forward with the medical evaluation once that was determined to be resolved. [00:45:00] Speaker 01: then that's when he said it was OK to terminate the process. [00:45:08] Speaker 04: And what's your response? [00:45:09] Speaker 04: I had asked Sergeant Coburn's counsel, what's your response to whether a physician can refer to an MEB when the physician believes the condition makes him unfit for duty if the diagnosis is not among those listed in AR-4501? [00:45:25] Speaker 01: I'm also not positive about that. [00:45:29] Speaker 01: I would imagine if there was any duty limiting, the list in 40-501 is massive, for lack of a better word. [00:45:37] Speaker 01: And so, lower back, chronic lower back pain, actually I believe osteoarthritis, which he was diagnosed with, which could be, again, those are all subject to the duty limitation issue. [00:45:53] Speaker 01: it is likely that if there was some medical issue that hindered him from performing his duties, something in 40-501 could be found to support it. [00:46:06] Speaker 04: So the sine qua non of the whole thing is duty interference? [00:46:11] Speaker 04: Yes, your honor. [00:46:12] Speaker 04: Is there duty interference here? [00:46:13] Speaker 04: Yes, your honor. [00:46:14] Speaker 04: Or not? [00:46:14] Speaker 04: And it doesn't, you think, it's neither here nor there that [00:46:20] Speaker 04: Dr. Quecedo in one of the documents that was supporting the underlying board judgment here says he would no longer be performing military work, such as running or sit-ups, and could limit his marting lifting as a civilian. [00:46:36] Speaker 04: So there's no need for an MEB. [00:46:40] Speaker 04: Is that correct reasoning in your view, or if it's not correct reasoning, is it immaterial that it's? [00:46:46] Speaker 01: I think it's immaterial, Your Honor. [00:46:47] Speaker 01: Again, Dr. Casito wasn't the one making the decision. [00:46:54] Speaker 01: So yeah, I think it's immaterial at this point. [00:46:58] Speaker 01: It was Dr. Scherner's decision to terminate the process. [00:47:04] Speaker 01: That's important. [00:47:05] Speaker 01: And Dr. Casito's comments seven years later regarding that shouldn't be given much weight. [00:47:14] Speaker 04: And where Dr. Casito says, and I'm on JA169, our reasons for terminating Mr. Coburn's MEB were [00:47:23] Speaker 04: Are these not the authoritative reasons? [00:47:26] Speaker 01: Certainly that was his reason for recommending it. [00:47:29] Speaker 04: And that's the reason that the Army brought him into the process, no? [00:47:33] Speaker 04: I mean that was a witness chosen by the Army. [00:47:35] Speaker 01: Yes, I believe so, Your Honor. [00:47:37] Speaker 04: And so he declined the option for surgery. [00:47:40] Speaker 04: He had said that he wasn't actually a candidate for surgery. [00:47:43] Speaker 01: Previously. [00:47:44] Speaker 01: Now, the documents that were pointed at by the appellant counsel, one of them was from 1999 saying he wasn't a surgical candidate. [00:47:54] Speaker 01: One was from 2000 saying he wasn't a surgical candidate. [00:47:57] Speaker 04: And one is the most recent time that Dr. Kaseyva saw him, which was 2002. [00:48:01] Speaker 01: Yeah, sure. [00:48:02] Speaker 01: It is the profile itself. [00:48:06] Speaker 04: Yeah, not a surgical candidate at this time. [00:48:10] Speaker 04: and he'd be initiated. [00:48:11] Speaker 01: He was referred out for a surgical evaluation, I believe in March of 2000. [00:48:17] Speaker 01: I don't have this item, I'm afraid. [00:48:20] Speaker 01: And I could not find what the result of that was. [00:48:25] Speaker 01: So Dr. Caicedo's comment in the profile [00:48:33] Speaker 01: I don't know if that means he's not a surgical candidate because he refused, so he's not a surgical candidate, so we're gonna put a profile on him because he's not gonna go through surgery, or if that's like a medical diagnosis, it's just in the medical profile, so it's not really a medical diagnosis. [00:48:49] Speaker 04: There's nobody, there's no doctor in any of all these examinations at any time in this record that says, here's an individual who could benefit from surgery. [00:48:59] Speaker 04: Nobody said that. [00:49:00] Speaker 01: That's correct, Your Honor, but that would go toward the fact that surgery wasn't necessary. [00:49:05] Speaker 04: Right, but they're saying he declined surgery as if that's a reason to terminate, but I'm not sure it's a reason for anything. [00:49:14] Speaker 04: They said surgery wouldn't help him. [00:49:16] Speaker 04: Here's a man who's disabled. [00:49:17] Speaker 04: Surgery wouldn't help him. [00:49:22] Speaker 04: He was in great pain, couldn't do his job. [00:49:24] Speaker 04: And then, oh, you want to get rid of him under the QEB? [00:49:28] Speaker 04: Actually, he can do his job. [00:49:29] Speaker 04: There's no pain. [00:49:30] Speaker 04: We don't have any documentation supporting that shift. [00:49:34] Speaker 04: That's the question I'm asking you, is if you can give me documentation supporting that shift, I'm interested in it. [00:49:40] Speaker 04: Or supporting why Dr. Quesedo is just not the one to be trusted here. [00:49:46] Speaker 04: And I don't see any determination to that fact by Dr. Scherner. [00:49:52] Speaker 04: Dr. Queseda doesn't know what he's talking about. [00:49:54] Speaker 04: I'm going to look at this other stuff. [00:49:55] Speaker 01: Remember, Dr. Scherner. [00:49:58] Speaker 01: So Dr. Queseda's comments in the profile, I believe it was 28 June 2002. [00:50:06] Speaker 01: Yes. [00:50:08] Speaker 01: After that was when the physical evaluation that formed the basis under 4-9 for [00:50:19] Speaker 01: Dr. Scherner's decision. [00:50:22] Speaker 01: So under 4-9, it states that the appointment of, I'm just saying appointment authority, it's an NTF commander, it's the appointment authority, will conduct an examination of a soldier referred for evaluation. [00:50:37] Speaker 01: And as the physical disability agency said, that is the same as that would eventually go, were an MEB to actually occur. [00:50:48] Speaker 01: And then if it appears after that evaluation that the soldier is not medically qualified to perform the duty, he will refer the soldier to the MAB. [00:50:59] Speaker 04: You're talking about Scherner's evaluation? [00:51:02] Speaker 01: No, I'm talking about Dr. Lopez's evaluation. [00:51:04] Speaker 01: OK. [00:51:05] Speaker 01: So the concept of that medical evaluation is to inform the decision of the appointment authority. [00:51:17] Speaker 01: And he had the benefit of that when he made his conclusion to terminate the proceeding. [00:51:26] Speaker 03: That's a good question about the surgery. [00:51:28] Speaker 03: On JA988, paragraph D, it says, on March 27, Mr. Coburn saw the neurosurgeon. [00:51:36] Speaker 03: The neurosurgeon offered surgery as a potential corrective measure. [00:51:41] Speaker 03: However, Mr. Coburn declined this surgery. [00:51:45] Speaker 03: Doesn't that not indicate that the neurosurgeon thought he was a candidate for surgery? [00:51:51] Speaker 03: Whatever, if candidate has some medical meaning rather than some other kind of meaning. [00:51:55] Speaker 01: Yes, Your Honor, I just could not find that in there. [00:51:58] Speaker 01: I could not find the documentation in the record. [00:52:01] Speaker 03: I understand, but there is an affidavit in the record. [00:52:04] Speaker 03: How much weight we give it may be another question, but there is an affidavit in the record. [00:52:07] Speaker 03: Yes, Your Honor. [00:52:08] Speaker 03: OK, further questions? [00:52:11] Speaker 00: I have one question just about the operation [00:52:15] Speaker 00: any B or maybe when it's initiated. [00:52:19] Speaker 00: Um, as I understand Mr Tony referred a couple of times to this being an informal and somewhat ad hoc procedure and said, you know, the maybe it's not convened like this court is convened. [00:52:35] Speaker 00: Um, so they can be appointed and they might be appointed at different times. [00:52:40] Speaker 00: They don't have to meet [00:52:42] Speaker 00: They can evaluate this, I guess, separately and come to a conclusion. [00:52:47] Speaker 00: That being the case, if one doctor is appointed but the other one is not yet appointed, do we have an MEB or does it depend on the narrative summary? [00:53:04] Speaker 01: I guess the answer to the question, the hypothetical is that the, in this case, Dr. Lopez was performing a medical evaluation. [00:53:15] Speaker 00: Okay, and would he have been one of the two doctors? [00:53:21] Speaker 01: The doctors aren't chosen or appointed until certainly after the medical evaluation and is complete and the appointment authority decides to refer the case to an actual MEB. [00:53:36] Speaker 01: Conceivably he could later be chosen, but at that point he's not [00:53:41] Speaker 01: appointed as. [00:53:43] Speaker 00: Yeah, but I'm just asking suppose someone had been appointed specifically, you know, we want you to do this evaluation, but you didn't have the second doctor. [00:53:54] Speaker 00: Would you would this process have begun? [00:54:01] Speaker 01: So if there was an incomplete appointment for it? [00:54:06] Speaker 01: I don't know. [00:54:07] Speaker 01: Certainly not something that was contemplated by the ABCMR, Your Honor. [00:54:14] Speaker 01: Not sure what the answer would be from the ABCMRs and the agency's constructors. [00:54:22] Speaker 01: In this case, there was no appointment because the appointment is done according to the Army Physical Disability Agency and the regulations after the nurse was completed. [00:54:35] Speaker 04: So I have just a couple more record questions. [00:54:40] Speaker 04: Sergeant Coburn was on administrative duties for [00:54:44] Speaker 04: It was about a six-month period, I think, in 2001. [00:54:49] Speaker 04: And I assume from June 2001 to January 2002, from February to July of 2002, he was on administrative duties, and clearly that's because he can't do the more strenuous active duty. [00:55:03] Speaker 01: Yeah, there's no education, but that's why he was on administrative duties. [00:55:07] Speaker 01: I mean, he is a senior noncommissioned officer in a company and a brigade, I think an Italian brigade at that time. [00:55:16] Speaker 01: So the senior noncommissioned officers in those positions would be performing administrative duties. [00:55:23] Speaker 01: Certainly. [00:55:24] Speaker 01: Somebody has to do it. [00:55:25] Speaker 01: And for instance, the Brigade Operations Emergency Noncommissioned Officer is a senior noncommissioned officer. [00:55:35] Speaker 01: So he is performing duties commensurate with his rank. [00:55:41] Speaker 04: And the NCOER that was negative on him, was that related or unrelated to the Article 15? [00:55:49] Speaker 01: that would be related to the art. [00:55:50] Speaker 04: So the thing that was negative. [00:55:52] Speaker 04: The negative on his record was that he was had been charged with marijuana use. [00:56:02] Speaker 01: Right. [00:56:02] Speaker 01: That he was found guilty at an article 15 proceeding. [00:56:06] Speaker 01: Right. [00:56:06] Speaker 04: And then it was found that there wasn't honestly evidence to support that. [00:56:11] Speaker 04: But they nonetheless kept it in place, I guess. [00:56:14] Speaker 01: Well, those are two different proceedings, Your Honor. [00:56:20] Speaker 01: One is the two different proceedings. [00:56:24] Speaker 01: So they don't really affect each other. [00:56:25] Speaker 01: The result was that he was found to have THC marijuana in his system. [00:56:38] Speaker 01: It's not really, I would argue that it's not really relevant to these proceedings, because the circuit court decided before that the basis for the court. [00:56:49] Speaker 01: QMP was not challenged. [00:56:49] Speaker 01: Right, QMP and everything was not challenged, so the basis in New York 15 also was not challenged. [00:56:53] Speaker 01: So while that's true, I don't see the relevance here. [00:57:00] Speaker 04: And this is my last question. [00:57:02] Speaker 04: We don't have anything in the record [00:57:05] Speaker 04: Telling us what Scherner relied on. [00:57:09] Speaker 01: You honor nothing or anything in the record. [00:57:16] Speaker 04: Or even when he reviewed it. [00:57:18] Speaker 03: Maybe I'm just reading a different record on this. [00:57:21] Speaker 03: But on the one hand, you have JA-228 signed by Scherner in which Casito says, [00:57:31] Speaker 03: This case has been discussed with the DCCS at Scherner, right? [00:57:36] Speaker 01: Yes, Your Honor. [00:57:37] Speaker 03: And he has approved my request. [00:57:39] Speaker 03: And then you have the declaration at JA 990. [00:57:45] Speaker 03: of Casido saying, these are our reasons for, he first says, I discussed Coburn's case with Scherner, and this is, these are our reasons, and there's four of them. [00:57:56] Speaker 03: So they may not, how much weight we give this or not, I don't know, but there is something in the record that says what was discussed, at least what was discussed with Scherner and what he agreed with, right? [00:58:09] Speaker 01: Yeah, sure, the medical records and obviously the medical evaluation. [00:58:15] Speaker 04: So you would read that as Dr. Scherner effectively incorporated by reference the reasons that Quesedo articulates as our reasons. [00:58:26] Speaker 01: As far as, yes, as Dr. Quesedo's memory of that conversation, yes sir. [00:58:32] Speaker 01: Okay, nothing else? [00:58:33] Speaker 01: Thank you, Your Honor. [00:58:35] Speaker 03: Does Mr. Coburn have, sorry, Mr. Toney have any time? [00:58:39] Speaker 03: We'll give you another minute also. [00:58:45] Speaker 02: To your questions about his duty performance, he hadn't performed his military occupational specialty duties for approximately two years. [00:58:55] Speaker 02: It was a three-month period where he did. [00:58:57] Speaker 02: So basically, for the last two years of his service in the Army, he was operating as an administrative person. [00:59:03] Speaker 02: And those were not his principal duties. [00:59:05] Speaker 02: And that's one of the criteria that the Army looks at in terms of whether the person should be continued in the Army or sent into the disability evaluation system. [00:59:14] Speaker 02: Very briefly, to the point about whether this MEB was underway, the Army Board for the Correction of Military Records at JA 62, paragraph 3, states, while the referring physician had the authority to withdraw his referral, he did not have the authority to stop the applicant's medical examinations and processing under the MEB by itself. [00:59:35] Speaker 02: evidence that they understood that the MEB was underway. [00:59:39] Speaker 02: JA-63 also, paragraph 6, likewise, the DCCS was responsible for overseeing the overall MEB process and, as such, had the authority to terminate the process if he also believed the applicant's condition did not warrant referral [00:59:55] Speaker 02: to an MEB. [00:59:56] Speaker 02: There are additional references in the ABC Mars decision indicating that they concluded that the MEB had been convinced. [01:00:04] Speaker 03: Well, I'm confused. [01:00:06] Speaker 03: JA-64, the same document you're talking about, says the records do not indicate that any physicians were appointed to an MEB or that an MEB had convened. [01:00:17] Speaker 03: Essentially, the appointing authority determined it was not necessary to appoint physicians and convene an MEB. [01:00:23] Speaker 03: On the point, there's a contradiction in the whole decision. [01:00:26] Speaker 03: You have a very clear and flat statement. [01:00:29] Speaker 03: You have what may be a little ambiguous early on, but this seems like a pretty clear statement that it wasn't convened. [01:00:38] Speaker 03: I mean, it doesn't even seem like it. [01:00:39] Speaker 03: It is a clear statement that it wasn't. [01:00:41] Speaker 02: My interpretation is what I was explaining earlier, that the MEB commenced, the process commenced for the purposes of 7-12, certainly, that the appointment of the MEB doctors is not the trigger for the existence of the MEB. [01:00:56] Speaker 02: And also in that paragraph, that it necessarily follows that DCCS has the authority not to appoint, of course, there's no discussion of that in the regulations at all. [01:01:06] Speaker 02: So he was within his scope of authority to terminate the process after the evaluations indicated. [01:01:12] Speaker 02: That's speculation. [01:01:13] Speaker 02: We don't know what Dr. Scherner's position was. [01:01:15] Speaker 02: Dr. Scherner, to the best of my knowledge, never saw Mr. Coburn. [01:01:20] Speaker 02: Dr. Caicedo had not evaluated Mr. Coburn personally since June of that year. [01:01:25] Speaker 02: He returned from duty on the 29th of October. [01:01:27] Speaker 02: He had been in the field, comes into his office, 29th, and then Mr. Coburn, on the 30th, he decides [01:01:34] Speaker 02: that the MEB can be terminated. [01:01:36] Speaker 02: He coordinates with Dr. Scherner. [01:01:37] Speaker 02: The MEB is terminated. [01:01:38] Speaker 02: Mr. Coburn is discharged the very same day. [01:01:41] Speaker 02: That's an extraordinary event, Your Honor. [01:01:45] Speaker 03: Okay. [01:01:46] Speaker 03: We'll take the matter under submission if you give us a brief recess.