[00:00:01] Speaker 01:
Stand please.

[00:00:10] Speaker 01:
Oyez, oyez, oyez.

[00:00:13] Speaker 01:
All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit, are honored to join me and give their attention for the court is now sitting.

[00:00:25] Speaker 01:
God save the United States and its probable court.

[00:00:30] Speaker 02:
Be seated, please.

[00:00:32] Speaker 02:
Case number 17-5089, Brian Hoffman, appellate, versus Kirsten M. Nielsen.

[00:00:36] Speaker 02:
Mr. Montalvo for the appellate, Mr. Shaffer for the appellate.

[00:00:42] Speaker 02:
Good morning.

[00:00:42] Speaker 00:
Good morning, Your Honor.

[00:00:44] Speaker 00:
May it please the Court, Mr. Montalvo for the appellate, Appellate Officer Hoffman.

[00:00:51] Speaker 00:
In this case, we have a sailor of the quarter and a man who joined to serve his country with a 12th grade education and two points above the ASVAB score with a 42.

[00:01:07] Speaker 00:
And as a court, I'm sure is where the scores go from 1 to 99.

[00:01:11] Speaker 00:
So a simple man, working man, and he just wanted to serve his country.

[00:01:17] Speaker 00:
His record, as reflected in the Joint Appendix, is Mayor Torres.

[00:01:22] Speaker 00:
He did a good job.

[00:01:24] Speaker 00:
He served his country faithfully.

[00:01:26] Speaker 00:
And in the final two months of his service,

[00:01:29] Speaker 00:
things precipitated and it is clear from the record that the command abused their authority and the court, the district court found that there was arbitrary and capricious action on behalf of the board for correction of military records to two prongs, but Appellant has a concern with at least one part of that analysis.

[00:01:56] Speaker 00:
The access to counsel and the deprivation of the statement are contained within the regulations.

[00:02:03] Speaker 00:
That's not in dispute.

[00:02:06] Speaker 00:
Mr. Huffman or Petty Officer Huffman was denied those procedural rights in his departure from the Coast Guard, which was imminent, even considering his EAS and the fact of service.

[00:02:21] Speaker 00:
Court, however, in making its determination that there was harmless error, focused that harmless error on the fact that at some subsequent discharge review board, that some relief had been granted.

[00:02:34] Speaker 00:
But we, and then somehow his discharge had been converted to an honorable, and therefore he was not entitled to the protections that he had.

[00:02:43] Speaker 00:
could avail during the process.

[00:02:45] Speaker 00:
We believe that to be an error.

[00:02:47] Speaker 00:
We believe that the point of review is at the time of the alleged inappropriate action.

[00:02:55] Speaker 00:
That's what BCNR should have reviewed.

[00:02:57] Speaker 00:
The point of time that that was was during the discharge process and that's where the errors in the case for him have accrued.

[00:03:07] Speaker 04:
Can I ask a framing question which is

[00:03:09] Speaker 04:
Do you disagree that what's ultimately at stake here is whether his reenlistment status should have been changed, and that's what's before us?

[00:03:19] Speaker 04:
Or are you challenging something other than the change of his reenlistment status?

[00:03:24] Speaker 04:
The non-change of his reenlistment status?

[00:03:28] Speaker 00:
So the reenlistment code and the associated characterization of his separation are the centerpiece of the case.

[00:03:37] Speaker 00:
Yes, Your Honor.

[00:03:38] Speaker ?:
Okay.

[00:03:39] Speaker 04:
No, I just wanted to make sure that that's really the core of this, that this be the support.

[00:03:43] Speaker 00:
Yes, sir.

[00:03:44] Speaker 00:
So when looking at this, you know, as the court indicated... Can I just follow up on this?

[00:03:52] Speaker 00:
Yes, sir.

[00:03:52] Speaker 05:
How is his separation from the service before us at this procedural posture?

[00:04:04] Speaker 00:
I didn't understand the question.

[00:04:07] Speaker 05:
So.

[00:04:09] Speaker 05:
I thought that what the correction that was sought to his middle military record was his re enlistment code and his rank.

[00:04:18] Speaker 00:
That's correct, yes, right?

[00:04:20] Speaker 05:
So how is whether or not his discharge?

[00:04:25] Speaker 05:
Was.

[00:04:28] Speaker 05:
Procedurally proper.

[00:04:29] Speaker 05:
How does that relate to that claim?

[00:04:32] Speaker 00:
I understand the question.

[00:04:35] Speaker 00:
There are two general ways to be discharged from the service.

[00:04:41] Speaker 00:
One is sort of its natural extension.

[00:04:44] Speaker 00:
For enlisted, and in this case Petty Officer Huffman is enlisted, he signs a contract and then fulfills that contract term.

[00:04:53] Speaker 00:
So in this case, he was a couple of months away from fulfilling that particular contract term.

[00:05:01] Speaker 00:
And the command made a decision to discharge him prematurely.

[00:05:06] Speaker 00:
Now, there are a number of reasons why someone would be discharged prematurely.

[00:05:10] Speaker 00:
One of them could be medical.

[00:05:12] Speaker 00:
One of them could be the good of the service that something's going on.

[00:05:15] Speaker 00:
In this case, it was alleged misconduct.

[00:05:18] Speaker 00:
And it was that alleged misconduct in that very short period of time that they alleged was the basis upon which he had to leave the service early.

[00:05:28] Speaker 00:
And as a result and consequence of that alleged misconduct, then they could give him a certain discharge, which was a lower level discharge, not an honorable, full honorable discharge.

[00:05:40] Speaker 00:
They could give him a reenlistment code.

[00:05:42] Speaker 00:
They could give him a characterization of service.

[00:05:44] Speaker 00:
And that all falls onto his, what's called, excuse me, the DD-214, the final discharge document.

[00:05:50] Speaker 00:
And then that discharge document, this DD-214, is what carries with him for the rest of his life, because that's the official record of service.

[00:05:56] Speaker 00:
So whenever somebody looks at this DD-214 and they see the narrative or the characterizations there, it affects their employment and a number of different other issues, security clearance, et cetera.

[00:06:09] Speaker 00:
So that's all connected because it's one of the actions that they take in that process based or premised upon the trigger for the discharge, which in this case, they allege to be this misconduct.

[00:06:24] Speaker 00:
Does that answer your Honor's question?

[00:06:26] Speaker 05:
So any error that occurred at the time of the discharge that then is reflected on the DD214 also affects his possibility for a re-enlistment the same as the re-enlistment code does?

[00:06:47] Speaker 05:
Is that your theory?

[00:06:48] Speaker 00:
I'm just trying to understand.

[00:06:50] Speaker 00:
Yes, Your Honor.

[00:06:51] Speaker 00:
So there are a few different

[00:06:55] Speaker 00:
Let me see if I can find an appellate record.

[00:06:57] Speaker 00:
The Joint Appendix.

[00:07:01] Speaker 00:
Okay, if you go to Joint Appendix 0268.

[00:07:14] Speaker 00:
So in the middle of the page, it lists out character service, separation authority, separation code, reentry code, narrative reasons.

[00:07:25] Speaker 00:
And so this, if you were to look at his DD214, these are different blocks on his DD214 that are entries that are filled in.

[00:07:36] Speaker 00:
The re-enlistment code entry, RE4, indicates to the military and anybody who will look up the code that not eligible for re-enlistment.

[00:07:46] Speaker 00:
So the designation of that code effectively bars him from entering into any other service.

[00:07:51] Speaker 00:
It's a non-wavable code.

[00:07:59] Speaker 04:
So at the end of the day, you would need to show that the errors that you pointed out would have had an effect on his re-enlistment code.

[00:08:07] Speaker 00:
That's correct.

[00:08:08] Speaker 00:
Yes, Your Honor.

[00:08:09] Speaker 00:
The underlying bases upon which they were justified in granting this code, we believe not to exist.

[00:08:16] Speaker 00:
We believe that the allegations of, for example, he was not where he was supposed to be is without basis in fact and that Mr. Petty Officer Huffman substantiated that very well in the record even though he was acting pro se.

[00:08:31] Speaker 00:
There was a third submission that was attempted to be made with counsel eventually because he wasn't able to succeed with the BCNR and

[00:08:38] Speaker 00:
You know, there was new evidence that should have been considered, audio tapes showing that their command was lying.

[00:08:46] Speaker 00:
My time is getting close.

[00:08:48] Speaker 00:
So there was new and material evidence as contained in the record that was being brought because the BCNR kept saying, well, you haven't given us enough.

[00:08:57] Speaker 00:
And then the third time that they presented this new material evidence, they disregarded it.

[00:09:01] Speaker 00:
But we believe that

[00:09:03] Speaker 00:
In the record, it is very clear that the basis upon which they said he was being discharged was without merit.

[00:09:11] Speaker 00:
He senior officer told him to be at a point of place.

[00:09:15] Speaker 00:
He had been at that point of place.

[00:09:17] Speaker 00:
The record is clear that he was there.

[00:09:19] Speaker 00:
A subordinate person told him to be somewhere else.

[00:09:21] Speaker 00:
That's a conflict.

[00:09:22] Speaker 00:
The way it works in the military is the senior officer, when they make that order, that's the order that you need to follow.

[00:09:28] Speaker 00:
He communicated this effectively.

[00:09:29] Speaker 00:
We have the phone records.

[00:09:30] Speaker 00:
We have history.

[00:09:32] Speaker 00:
We have the discussions and statements by parties.

[00:09:35] Speaker 00:
There was no dispute of fact that he was doing what he was supposed to be doing in the command, but the command disregarded all of that.

[00:09:41] Speaker 00:
So the nature of the decisions was not based off of the facts.

[00:09:45] Speaker 00:
It was because they did not want Petty Officer Huffman in the military anymore.

[00:09:50] Speaker 00:
And it is not a valid basis to say that now that his characterization is honorable because it was upgraded by the Discharge Review Board, that there's no longer relief to be granted or consideration of these violations.

[00:10:03] Speaker 00:
Because if that's the case, then he should have been allowed, if there's no misconduct here,

[00:10:07] Speaker 00:
he should have been allowed to run to his end of active service as he would have normally, and he would have received that RE1.

[00:10:14] Speaker 00:
So either it's a misconduct and, you know, they have a proper basis, or

[00:10:19] Speaker 00:
there is no misconduct, and he should have received the one.

[00:10:24] Speaker 00:
So he should have either ran to his EAS and been eligible to re-enlist.

[00:10:30] Speaker 00:
Whether he was re-enlistable is not the question.

[00:10:32] Speaker 00:
It's whether he was eligible to re-enlist.

[00:10:35] Speaker 00:
So here, the determination that he was ineligible to re-enlist was not based off of the facts that were in existence, and he was also deprived of the substance of due process rights.

[00:10:47] Speaker 00:
you know, on his way out the door, particularly as it relates to counsel, because had counsel, learning counsel had this before, they could have addressed these issues and most likely resolve this in favor of Petty Officer Huffman.

[00:11:02] Speaker 03:
All right, thank you.

[00:11:03] Speaker 03:
Let us hear from Appellee and we'll give you a few minutes on rebuttal.

[00:11:34] Speaker 03:
Good morning.

[00:11:35] Speaker 07:
Good morning.

[00:11:35] Speaker 07:
May it please the Court, Assistant U.S.

[00:11:37] Speaker 07:
Attorney Dane Schaefer for the Appellee, Department of Homeland Security.

[00:11:43] Speaker 07:
Your Honors, the Coast Guard had decided that Mr. Huffman was no longer suitable for military service.

[00:11:50] Speaker 07:
In the few months that preceded his discharge, he was insubordinate, he was disrespectful to his superior officers, he disobeyed direct orders multiple times, he was absent without leave.

[00:12:01] Speaker 07:
He committed a number of military offenses.

[00:12:05] Speaker 07:
These are in the military, very serious matters.

[00:12:09] Speaker 07:
And it began first with his violation of the first military no-contact order that the Coast Guard had issued after Mr. Huffman was arrested for battering and kidnapping his wife.

[00:12:20] Speaker 07:
When Mr. Huffman sought relief from the Board of Corrections, the Board concluded that the discharge and the RE4 re-enlistment code that counsel had

[00:12:29] Speaker 07:
reference during his argument was a direct and natural consequence of Mr. Huffman's misconduct.

[00:12:36] Speaker 07:
And the board further found that Mr. Huffman had not proven by preponderance of the evidence, which was his burden in that review, that the discharge was unjustified, erroneous.

[00:12:50] Speaker 03:
So let me ask you, what about these procedural objections he has raised?

[00:12:56] Speaker 07:
Yes, I want to clarify one point on that.

[00:13:00] Speaker 07:
The board did not find, as far as I'm aware, that the procedural protections in the manual did not apply.

[00:13:10] Speaker 07:
That was a finding that the district court made, but that was not a finding that the board made.

[00:13:13] Speaker 07:
The board found

[00:13:15] Speaker 07:
That's looking at the text of the regulation, for example, the quote opportunity and quote to consult with counsel and to provide a written statement that the time that Mr. Hoffman had did not.

[00:13:31] Speaker 07:
violate the text of the regulations.

[00:13:34] Speaker 03:
So you're saying the regulations only gave him three days?

[00:13:40] Speaker 07:
The regulation doesn't specify how long.

[00:13:43] Speaker 03:
Right.

[00:13:44] Speaker 03:
So are you saying that he was never told that he had five days to submit his statement?

[00:13:51] Speaker 07:
No, I'm not saying that.

[00:13:52] Speaker 03:
His commanding officer... So the record shows that he was told he had five days?

[00:13:57] Speaker 07:
The record shows that he was told he had, I believe, three days.

[00:14:02] Speaker 07:
The five days was in a communication between the Coast Guard discharge officials.

[00:14:09] Speaker 07:
One of the officials who was involved in the discharge said,

[00:14:13] Speaker 07:
you should give him five days.

[00:14:15] Speaker 07:
But what was communicated to Mr. Hoffman was you get three days.

[00:14:21] Speaker 07:
And it's undisputed that they didn't give him the three days.

[00:14:24] Speaker 04:
He got two even though he's told he got three.

[00:14:26] Speaker 07:
Yes, correct.

[00:14:28] Speaker 03:
All right.

[00:14:28] Speaker 03:
So one, he didn't have the time he was entitled to have even under the reduced period to prepare his statement.

[00:14:39] Speaker 07:
And the board acknowledged that.

[00:14:40] Speaker 07:
Yes, Your Honor.

[00:14:41] Speaker 03:
And then the second point is consultation with counsel.

[00:14:46] Speaker 03:
That's correct.

[00:14:47] Speaker 03:
His position is his counsel was too busy and didn't have time to look at his statement.

[00:14:55] Speaker 07:
That's correct, Your Honor.

[00:14:57] Speaker 03:
So what is the military's definition of consult in the context of consult with counsel?

[00:15:08] Speaker 07:
The military's position is that the regulation itself doesn't specify a specific number of days.

[00:15:20] Speaker 07:
And here, what the board's decision hinged on was the fact that the board acknowledged that he didn't have the full three days.

[00:15:29] Speaker 07:
But the board nonetheless concluded that it was that any error in the discharge process, which the board acknowledged it appeared that there were errors, didn't matter, didn't affect the outcome because although the discharge officials didn't consider the rebuttal statement, the board certainly did.

[00:15:49] Speaker 04:
So before we get to that, before we get to that, I do have a question about harmless error vis-a-vis the council opportunity requirement as opposed to the requirement about a statement.

[00:16:00] Speaker 04:
But putting that to one side, just on the interpretation of whether the council opportunity requirement was on or breached here.

[00:16:08] Speaker 04:
How was it honored if it says, supposed to have an opportunity to consult with a lawyer, and then it goes on to say, the member requests counsel in what is not available, the commanding officer must delay discharge proceedings until such time as counsel is available, which seems to indicate that it's not just formalistically an opportunity in the sense that everybody has an opportunity to consult.

[00:16:32] Speaker 04:
I have an opportunity to consult with counsel right now because I could turn around and use my cell phone and call a lawyer.

[00:16:38] Speaker 04:
The question is, is it a meaningful bonafide opportunity?

[00:16:42] Speaker 04:
And when you're told you have three days to do something and it turns out you're not given those days, how does that square with what seems to me to be a requirement to give an opportunity to consult with a lawyer?

[00:16:54] Speaker 07:
Well, he did have an opportunity.

[00:16:58] Speaker 07:
He had two days.

[00:16:59] Speaker 07:
So it wasn't that he had no opportunity whatsoever.

[00:17:02] Speaker 04:
So what if he's told you have three days and then at the end of day one, he gets a call that says, you know, actually it's one day, now it's 1155, so you got five minutes.

[00:17:17] Speaker 04:
By your understanding, that's an opportunity.

[00:17:19] Speaker 04:
You could call somebody within five minutes.

[00:17:22] Speaker 04:
Is that an opportunity to consult with counsel?

[00:17:24] Speaker 07:
Well, it's something that's always going to depend on the facts of the case.

[00:17:27] Speaker 04:
And here... On those facts, would it be an opportunity?

[00:17:30] Speaker 07:
Five minutes?

[00:17:31] Speaker 07:
Yeah.

[00:17:32] Speaker 04:
Well, that's... It is.

[00:17:33] Speaker 04:
Formalistically, it's an opportunity.

[00:17:35] Speaker 04:
And that's the explanation I just understood is it counts as an opportunity because it's actually physically possible to make a call.

[00:17:43] Speaker 07:
That's right.

[00:17:44] Speaker 07:
And if you take that to the logical conclusion of if it's only five minutes, then yes, that is theoretically possible.

[00:17:54] Speaker 07:
But here, as I said, it was two full days.

[00:17:59] Speaker 07:
And the board's decision notes that he was getting everything else going on during this time.

[00:18:05] Speaker 04:
The problem is he didn't know ex ante that he was going to have two full days.

[00:18:08] Speaker 04:
He finds that out later, right?

[00:18:10] Speaker 04:
That's right.

[00:18:11] Speaker 04:
After he's told he's going to have three.

[00:18:12] Speaker 04:
I'm just trying to understand what the government's understanding is of an opportunity to consult with counsel.

[00:18:17] Speaker 04:
It seems, I mean, I'm absolutely want to hear your position on this, but I guess it seems like it could reasonably said that it's a bit rich to say you have an opportunity as long as it's physically possible to call an attorney.

[00:18:31] Speaker 04:
Especially when it says later, if counsel is not available, have to delay the proceedings until such time as counsel is available.

[00:18:43] Speaker 07:
Yeah, this is an area where, as the government noted in its brief, a significant amount of discretion is entitled to the board to interpret its own regulations on the facts of a given case.

[00:18:55] Speaker 07:
And here, that's what the board did.

[00:18:57] Speaker 07:
And although the court may have done it differently, or although Mr. Huffman may have a different interpretation of what that opportunity demands,

[00:19:09] Speaker 07:
The board's interpretation is not on the face of the regulation incorrect or erroneous.

[00:19:15] Speaker 07:
It was the board's interpretation of its own regulation in the context of a discharge proceeding of a service member who had committed continual misconduct over a period of months.

[00:19:26] Speaker 04:
Can I ask you this question?

[00:19:27] Speaker 04:
So just assume for purposes of argument that we don't agree that there was an opportunity here.

[00:19:35] Speaker 04:
what's the government's position as to what should happen, then if this aspect of the procedural requirements weren't honored.

[00:19:44] Speaker 07:
Well, that's the problem here because if the court were to remand, there's nothing more for the board to consider.

[00:19:51] Speaker 07:
They address this issue in their decisions, as with the other arguments and allegations that Mr. Huffman raised.

[00:19:58] Speaker 07:
So under the discretionary APA review that we have here, where the board has articulated a clear and very detailed explanation of its decisions,

[00:20:08] Speaker 07:
they've satisfied the requirement for the review at this point.

[00:20:15] Speaker 03:
What I'm trying to understand as well is just hypothetically, counsel, he talks to an attorney, and the attorney says, I don't have time to look at your statement.

[00:20:29] Speaker 03:
Just hypothetically, think of the greatest lawyer in the world who looks at that statement, looks at the facts of this case, and you and I can come up with

[00:20:38] Speaker 03:
some hypotheticals that might put a slightly different cast on some of the events, maybe not all, but some.

[00:20:49] Speaker 03:
So why would it be that he would have no opportunity

[00:20:56] Speaker 03:
to present what I'll call a supplemental statement to the board to consider upon having the benefit of consultation with counsel.

[00:21:13] Speaker 07:
Well, that's exactly right, Your Honor, and he did.

[00:21:16] Speaker 07:
Because if Mr. Huffman had wanted to retain a lawyer during the board's review, he had an opportunity to do that.

[00:21:25] Speaker 03:
So can I just be clear, the opportunity for a counsel is an opportunity to retain counsel?

[00:21:31] Speaker 07:
It's an opportunity to consult with counsel, I think, is what... But the service member hasn't paid for counsel?

[00:21:38] Speaker 07:
I believe that's, no.

[00:21:42] Speaker 03:
My colleague from Coast Guard said no.

[00:21:44] Speaker 03:
I was surprised to hear that, all right, that a service member wouldn't have access to government counsel, basically.

[00:21:51] Speaker 03:
So, your point is then, I mean, it's moving to harmless error here, that he had every opportunity with counsel to submit whatever he wanted, and that was before the board.

[00:22:08] Speaker 07:
Yes.

[00:22:10] Speaker 07:
And that's what the board stated.

[00:22:12] Speaker 07:
I'm just repeating the board's rationale.

[00:22:14] Speaker 04:
So that's the part that I wanted to focus on.

[00:22:17] Speaker 04:
I'm not sure about that because I think that there's generally a standard of the APA that the challenger has to show that an error was prejudicial.

[00:22:26] Speaker 04:
And that's one way that we ordinarily review asserted errors in an administrative proceeding is to determine whether even assuming an error did it result in prejudice.

[00:22:35] Speaker 04:
So there is a harmless, traditionally harmless error component that attends APA review.

[00:22:40] Speaker 04:
I wasn't sure whether you were relying on that because another way to look at it is did the agency itself conclude in its review that any error was harmless?

[00:22:50] Speaker 04:
Now as to that, I saw that the agency did that with respect to the statement.

[00:22:55] Speaker 04:
I didn't see that the agency did that with respect to the council component of it.

[00:22:59] Speaker 04:
I might be wrong.

[00:23:00] Speaker 04:
You might be able to point me to something that shows otherwise.

[00:23:02] Speaker 04:
But as I saw the record, the determination made was that with respect to the statement,

[00:23:09] Speaker 04:
any error was harmless.

[00:23:11] Speaker 04:
But with respect to the opportunity for counsel, the resolution was that that was actually honored.

[00:23:17] Speaker 04:
It wasn't breached, and we never get to the question of harmless error.

[00:23:20] Speaker 04:
That wouldn't mean that you couldn't argue on judicial review that any asserted error was non-prejudicial.

[00:23:25] Speaker 04:
But I wasn't quite sure what your harmless error argument was with respect to the counsel component.

[00:23:32] Speaker 04:
Which of those two types of arguments you might be making?

[00:23:38] Speaker 07:
So there's a two part answer to your question, your honor.

[00:23:42] Speaker 07:
The first is I wanted to make that distinction as well is that when we're talking about harmless air, there are really two separate levels of that error.

[00:23:51] Speaker 07:
There's the the board's own determination that there was harmless error during the district proceedings, which is what the board found.

[00:23:56] Speaker 07:
which is a separate issue from whether any error by the board was harmless.

[00:24:01] Speaker 07:
And the government's position is that there's no error by the board that would constitute a harmless error.

[00:24:08] Speaker 07:
So when I'm talking about harmless error, I'm referring to the board's reasoning that any error that occurred during the original underlying discharge proceedings was harmless because... But did the board say that with respect to council opportunity?

[00:24:20] Speaker 04:
Because I thought the board said that with respect to the statement.

[00:24:23] Speaker 07:
There's a, the paragraph here in the second board's, the second final decision by the board is at JA 254.

[00:24:34] Speaker 07:
And the, this is paragraph nine.

[00:24:40] Speaker 07:
And they do, they do refer to both.

[00:24:45] Speaker 07:
It's under Article 12B 18E of the Personnel Manual.

[00:24:50] Speaker 07:
In effect, a member being separated with a general discharge from his conduct was entitled to consult an attorney and to, quote, have an opportunity to make a written statement.

[00:24:59] Speaker 07:
And then the regulation does not mandate a particular number of days for this opportunity, quote, opportunity.

[00:25:05] Speaker 07:
And the so the board is discussing both of these issues in this paragraph.

[00:25:12] Speaker 07:
And if you look at the way the regulations set up those two paragraphs opportunity to consult with council and then the opportunity to prepare and say, but they really do go hand in hand.

[00:25:21] Speaker 07:
And so as I read this, they're addressing.

[00:25:25] Speaker 07:
They're addressing both issues, even though the final sentence says, therefore, it appears that the applicant may have been misled about how long his, quote, opportunity to submit his discharge rebuttal would be.

[00:25:35] Speaker 07:
I really do think those two issues go hand in hand.

[00:25:37] Speaker 07:
And so the board's decision can be read, I think, fairly as addressing both of those issues.

[00:25:42] Speaker 04:
But it seems like that's, for harmless error purposes, that doesn't seem like the key paragraph.

[00:25:46] Speaker 04:
Because as I read it, that doesn't say anything about harmless error.

[00:25:50] Speaker 04:
That comes at the end of the next paragraph on page 255.

[00:25:55] Speaker 04:
last sentence before paragraph 11 it says moreover the board finds that any negative effect the procedural error could theoretically have had on the peltz character of the discharge and narrative reasons for discharge has been corrected oh no I'm sorry that's not there there's another the language is mostly similar between the two decisions I know in the first decision which goes back to JA

[00:26:20] Speaker 07:
day 39 to day 40, they actually use the term harmless air specifically.

[00:26:26] Speaker 07:
And I think that may be what your honor is referring to.

[00:26:29] Speaker 07:
And then they drop a footnote there and cite a few cases that talk about how if an air doesn't substantially affect the outcome, it's harmless.

[00:26:39] Speaker 07:
And that really is what happened here because in Mr. Huffman's challenge,

[00:26:46] Speaker 07:
to his discharge.

[00:26:47] Speaker 07:
His theory of the case at that point in time was based on his claim that he was the victim of unlawful discrimination and reprisal on account of his religion.

[00:26:56] Speaker 07:
That was really what his challenge was about.

[00:26:59] Speaker 07:
Those allegations have completely disappeared from Mr. Huffman's claims in this appeal and in the district court proceedings, but that was what his theory was.

[00:27:08] Speaker 07:
And at that point in time, as I said before, he had an opportunity to retain counsel during the board's review.

[00:27:17] Speaker 07:
He did not.

[00:27:18] Speaker 07:
So any of these additional arguments that Mr. Huffman and his lawyers are coming up with now in the reply brief on appeal are much too late.

[00:27:26] Speaker 07:
He had an opportunity to argue, for example, that the indefinite no contact order was unlawful.

[00:27:32] Speaker 07:
And that was never an argument that they made to the board.

[00:27:35] Speaker 04:
Let me ask one follow-up question just so I understand and then I'm done with this line of inquiry.

[00:27:39] Speaker 04:
So as I understood what you were saying in terms of the species of harmless error argument you're making, what you're saying is that you think what we ought to do is find that the agency was correct in determining that any procedural error was harmless, not that

[00:27:54] Speaker 04:
As a matter of APA review, we would conclude that any error by the board was not prejudicial, but that what we should do is give effect to the board's determination that any error during the discharge proceedings was harmless.

[00:28:06] Speaker 04:
Yes, sir.

[00:28:07] Speaker 04:
And then if that's so, then we'd need to conclude that the board found that the errors were harmless, because that's the thing to which we'd be giving effect.

[00:28:16] Speaker 04:
Yes.

[00:28:16] Speaker 04:
And for that, are you pointing to the sentence that says harmless error on page 40, or are you pointing to something else?

[00:28:25] Speaker 04:
for that board determination.

[00:28:30] Speaker 04:
Or am I wrong in even asking you to point to something?

[00:28:33] Speaker 04:
Because as I understand it, we'd need to we'd need to look at where the board found that something that happened in the discharge proceedings was harmless.

[00:28:42] Speaker 07:
Yeah, I think these two paragraphs, paragraphs 12 and 13,

[00:28:47] Speaker 07:
They do go together.

[00:28:49] Speaker 07:
And the previous paragraph is similar to the one that we were looking at earlier in the second opinion, where they discuss what constitutes an opportunity under the Coast Guard's regulations.

[00:29:01] Speaker 07:
I think the next paragraph, paragraph 13, flows from that.

[00:29:04] Speaker 07:
And a fair interpretation of the board's decision is that they considered the issue, they acknowledged that

[00:29:13] Speaker 07:
It appears that Mr. Huffman had been misled or confused about how long the opportunity would be, and they say that in paragraph 12, and nonetheless conclude that Mr. Huffman made no showing that

[00:29:26] Speaker 07:
Even if he had the extra day, and even if he had the assistance of counsel, it would have made any difference.

[00:29:32] Speaker 04:
And for that, you're relying on the sentence that says, harmless error and drops the footnote?

[00:29:35] Speaker 07:
Yes.

[00:29:36] Speaker 04:
OK, so we need to conclude that the harmless error sentence is the one to which we give effect, and that that sentence encompasses everything, including counsel opportunity.

[00:29:45] Speaker 04:
Yes.

[00:29:45] Speaker 04:
That's the way you're looking.

[00:29:46] Speaker 04:
OK.

[00:29:46] Speaker 04:
Yes.

[00:29:47] Speaker 04:
I understand what you're saying.

[00:29:50] Speaker 03:
Anything further?

[00:29:51] Speaker 06:
If there are no further questions, we ask the court to defer.

[00:29:55] Speaker 06:
Thanks.

[00:29:57] Speaker 03:
Thank you.

[00:29:58] Speaker 03:
All right, counsel for appellate.

[00:30:09] Speaker 03:
We'll give you a couple of minutes.

[00:30:11] Speaker 00:
Thank you, Your Honor.

[00:30:13] Speaker 00:
May it please the court again.

[00:30:16] Speaker 00:
The Pellent disagrees that that's what was written and that's the interpretation of the document.

[00:30:23] Speaker 00:
I mean, reviewing J39 and 40 and those paragraphs, the focus is on the rebuttal statement.

[00:30:31] Speaker 00:
The entirety of what is happening here is the Board is focused on whether Petty Officer Huffman's statement would have made a difference.

[00:30:38] Speaker 00:
That is the genesis and interpretation of what the Board is focused on, not whether he had an opportunity to speak with counsel and just

[00:30:45] Speaker 00:
From a layman's person's perspective, a counsel cannot be effective in giving any advice unless they consider the facts, the law relevant to the matter, the procedures involved, and then make some recommended course of action.

[00:30:58] Speaker 00:
If a counsel says that he's not available to do that, he's acknowledging that he can engage in meaningful advice, and that's what we have in this case.

[00:31:06] Speaker 00:
And there is nowhere in any of these opinions that they address this idea that the command should have given him more time.

[00:31:14] Speaker 00:
It is mandatory.

[00:31:15] Speaker 00:
It wasn't discretionary.

[00:31:16] Speaker 00:
The board's determination did not consider that, review that, or rely upon that.

[00:31:22] Speaker 00:
They were solely focused on whether Petty Officer

[00:31:24] Speaker 00:
Huffman's statement without counsel, without the assistance of counsel, would have made a difference.

[00:31:30] Speaker 00:
Their conclusion was no, and therefore they found that to be harmless error.

[00:31:34] Speaker 00:
We believe that to be error, Your Honor.

[00:31:36] Speaker 00:
So that is not consistent with the reading of the context of the documents.

[00:31:47] Speaker 00:
The indication by government counsel that there are serious issues here, there are.

[00:31:53] Speaker 00:
We have false statements by the command.

[00:31:55] Speaker 00:
We have proof that the command lied in the investigation.

[00:31:58] Speaker 00:
This is what's in the record.

[00:32:00] Speaker 00:
So are the false official statements made by people that are trying to kick out Petty Huffman, sailor of the quarter, this guy who served honorably for eight years,

[00:32:11] Speaker 00:
They're not those not to be considered if a close scrutiny of this and a fair reading of what occurred We believe would have resulted in a different outcome and the key to that Difference would have been the availability of counsel, but she was deprived of and that was never considered properly by the board what about the the statement at J 40 in paragraph 14

[00:32:38] Speaker 05:
That discusses the fact that that.

[00:32:43] Speaker 05:
The applicant has not proven by preponderance of the evidence that re for re enlistment code is erroneous or unjust.

[00:32:53] Speaker 05:
And.

[00:32:56] Speaker 05:
In the discretionary nature, I guess of.

[00:33:02] Speaker 05:
or the discretionary authority with respect to setting their re-enlistment code?

[00:33:10] Speaker 00:
Yes, Your Honor.

[00:33:11] Speaker 00:
So, on one level, is there discretion to administer a discharge?

[00:33:17] Speaker 00:
The answer is yes.

[00:33:18] Speaker 00:
Is there discretion to put a narrative reason?

[00:33:20] Speaker 00:
The answer is yes.

[00:33:21] Speaker 00:
All of these issues relating to the separation of a member

[00:33:24] Speaker 00:
are discretionary.

[00:33:25] Speaker 00:
The problem is when that discretionary is not based on the facts.

[00:33:29] Speaker 00:
And in this case, the facts and evidence was disregarded.

[00:33:34] Speaker 00:
So you cannot get to a fair discretionary analysis if you haven't gotten there through a proper consideration of the facts.

[00:33:42] Speaker 00:
And so while it is true that it is a discretionary function, the facts in this particular case

[00:33:48] Speaker 00:
You cannot get that conclusion that that was an available option and even the district the common of the Coast Guard disagreed with that because she Upgraded his service to honorable and and did other corrections So we believe that the record had it been properly considered and the impact of it

[00:34:08] Speaker 00:
would have changed the outcome of this, or he would have been allowed to EAS to his natural conclusion, which would have a few months away, and he would have been eligible for re-enlistment.

[00:34:19] Speaker 00:
Whether they would have re-enlisted him or he could have re-enlisted another service is another matter.

[00:34:24] Speaker 00:
It's just that his eligibility was taken away improperly through the disregard of the facts and the procedures here.

[00:34:32] Speaker 03:
All right.

[00:34:32] Speaker 03:
Thank you.

[00:34:33] Speaker 03:
We'll take the case under advisement.