[00:00:04] Speaker 01:
Case number 18-5122.

[00:00:52] Speaker 03:
Good morning, Your Honors.

[00:00:53] Speaker 03:
May it please the Court, Nathan Mammon on behalf of Christopher Coe.

[00:00:58] Speaker 03:
When asked on his children's enrollment form when his orders expired, Lieutenant Coe entered July 2008.

[00:01:04] Speaker 03:
That was an accurate statement.

[00:01:08] Speaker 03:
On April 30, 2007, when he completed that enrollment form, he still had orders assigning him to Puerto Rico until July 2008.

[00:01:15] Speaker 03:
It wasn't until three weeks later

[00:01:18] Speaker 03:
on May 23, 2007 that his orders actually changed and moved him to Kingsville, Texas.

[00:01:25] Speaker 03:
Yet despite the fact that Lieutenant Cote's statement was the truth, the Army Criminal Investigation Division concluded he made a knowingly false statement on the school enrollment form, and entitled him with the crimes of making a false statement and larceny.

[00:01:40] Speaker 03:
Lieutenant Code has tried for years to have his records corrected by the Army Corrections Board by removing the finding of probable cause that he made a false, unknowingly false statement and removing him from being titled for the offense of larceny and making a false official statement.

[00:01:58] Speaker 03:
The board changed the tiling decision to say, well, it was actually obtained services under false pretenses, but still based on the underlying and mistaken factual basis that they concluded he made in the only false statement.

[00:02:11] Speaker 03:
The board's failure to correct that error here is an arbitrary capricious error.

[00:02:16] Speaker 03:
The government's arguments for upholding the board's decision ignore the actual facts.

[00:02:20] Speaker 02:
Let me just try to cut through to the chase here a little bit.

[00:02:27] Speaker 02:
The board relied on a statement in the criminal investigation, the CID report, that I think it was a sergeant said that Mr. Code's orders only extended through 2007, that basically he had like two year duty assignment instead of a three year.

[00:02:56] Speaker 02:
was incorrect, but that was a statement that was made.

[00:03:03] Speaker 02:
So I guess what I'm trying to understand is if the test is whether there was credible evidence or credible information, is the statement by that sergeant credible evidence or credible information?

[00:03:25] Speaker 02:
even though it turns out to later be erroneous?

[00:03:30] Speaker 03:
Judge Wilkins, whether it would be probable enough as of January 25th, I believe it was, the day after the investigation began when the first sergeant made that erroneous statement, it was enough that the CID could have perhaps began the investigation.

[00:03:46] Speaker 03:
But once they actually had the orders and knew that the orders actually were different,

[00:03:51] Speaker 03:
It was not enough, and it certainly was not enough in January of 2011, three years later, when they actually issued this final report that included the titling of him with those offenses.

[00:04:01] Speaker 03:
And certainly there was not sufficient evidence to be probable cause, which is a separate finding that the report made, that it was a knownly false statement.

[00:04:10] Speaker 05:
Suppose you're right about the probable cause issue here, because, I mean, the board never responded to arguing about that.

[00:04:19] Speaker 05:
Why?

[00:04:20] Speaker 05:
Why do we need to go beyond that?

[00:04:21] Speaker 05:
Why do we need to even focus on the titling decision?

[00:04:25] Speaker 05:
In other words, if we find that the board, that it was arbitrary and capricious for the board not to consider your arguments for a probable cause, why do we need to go beyond that?

[00:04:35] Speaker 05:
The titling decision has no impact on anybody, on him, right?

[00:04:39] Speaker 03:
The titling decision, I don't know, Dr. Seidel, that the titling decision, I can't say it wouldn't have an impact because the title... Well, but it can't.

[00:04:45] Speaker 03:
Under the regulations, it can't, correct?

[00:04:48] Speaker 03:
Not necessarily because, and let me answer it this way, the tiling decision puts him into the military database of being associated for someone who was investigated for committing a crime.

[00:04:59] Speaker 03:
And how that affects him, Mr. Ko, Lieutenant.

[00:05:02] Speaker 05:
Was there anything in the record about that, about what impact that has on service members?

[00:05:11] Speaker 03:
I don't know.

[00:05:11] Speaker 03:
I can't point you to statements in the record.

[00:05:15] Speaker 03:
I'll look for it, Your Honor, and see if I can identify that.

[00:05:17] Speaker 03:
I know, for instance, he has a security clearance that is in the process of being renewed.

[00:05:22] Speaker 03:
Part of what is looked at in security claimances are your character, your fitness and dings.

[00:05:30] Speaker 03:
If a search is run on his name in a criminal database, this will identify?

[00:05:35] Speaker 05:
Maybe you did.

[00:05:35] Speaker 05:
I just don't recall.

[00:05:36] Speaker 05:
Did you make these arguments before the board about the consequences of the titling decision?

[00:05:42] Speaker 03:
I don't have the pinpoint site for your honor, but I do believe he pointed to the fact of the security clearance in papers before the board.

[00:05:52] Speaker 03:
I'll try to find those for you.

[00:05:55] Speaker 01:
I thought that it's not the titling that was the source of the concerns that prevented his promotions once he was in Kingsville.

[00:06:05] Speaker 03:
Yes, certainly what the Navy Promotions Board identified, and that's in Appendix 478, was they referred to the report of investigation, which is what they looked at, but they specifically identified the probable cause findings in that report on investigation as reasons for why we have to withhold or hold up a promotion.

[00:06:26] Speaker 03:
I don't want to disagree, Judge Taylor, on that.

[00:06:30] Speaker 03:
We certainly think that probable cause finding is clearly wrong and has to be fixed, but we also think

[00:06:34] Speaker 03:
titling decision also has implications.

[00:06:37] Speaker 03:
And given what we know now, what the facts turned out to be, there's no credible evidence to support that he made certainly a false statement.

[00:06:45] Speaker 03:
One of the offenses that he was titled with was that he made a knowingly false statement.

[00:06:49] Speaker 03:
And that's just simply not the truth.

[00:06:52] Speaker 02:
But part of the board's finding is based on the fact that there was an intent to defraud as evidenced by the fact

[00:07:02] Speaker 02:
that he never updated that form and never submitted anything in writing to correct the fact that his children were no longer entitled to be enrolled for the 07-08 school year.

[00:07:27] Speaker 03:
Well, Judge Wilkins, I don't think the board, there was any findings that the notification had to be unwritten.

[00:07:36] Speaker 03:
And they did refer to saying that, well, he should have updated the school that he had moved.

[00:07:41] Speaker 02:
I mean, the form says you're supposed to update us if your circumstances change, right?

[00:07:46] Speaker 03:
The form does say that.

[00:07:48] Speaker 03:
And sworn statements from Lieutenant Code were that he did tell the registrar.

[00:07:53] Speaker 03:
There was nothing, they never got a statement or the register never made a statement to disagree that Lieutenant Code actually had told him.

[00:08:00] Speaker 02:
But the registrar made a statement that disagreed with your interpretation of the regulation.

[00:08:06] Speaker 02:
The registrar, I think... You say that we can read the regulation and it says that he actually really was entitled

[00:08:15] Speaker 02:
to to keep his school kids in the school.

[00:08:19] Speaker 02:
And I don't see how the regulation can be reasonably read to say that.

[00:08:23] Speaker 02:
And the army has found the opposite.

[00:08:25] Speaker 03:
But what I would like to point out, Judge Wilkins, on the the register statement, that's Appendix, Appendix 441.

[00:08:35] Speaker 03:
The register was asked at the same time that your honor had asked earlier about the misstatement by the person in Lieutenant Codes.

[00:08:45] Speaker 03:
command about when his orders expired.

[00:08:48] Speaker 03:
I think it was right before that was when the register was interviewed by CID.

[00:08:53] Speaker 03:
And if you actually look at that interview statement, the CID interview never actually was specific that they asked her about Lieutenant Code.

[00:09:02] Speaker 03:
They quote, presented, and this is quotes, presented the scenario of Lieutenant Code.

[00:09:07] Speaker 03:
So it's not clear that they actually explained the facts that he had orders at the time when he re-enrolled his children.

[00:09:13] Speaker 03:
And after he had re-enrolled as a children, he moved.

[00:09:18] Speaker 03:
And whether she had told him that under those circumstances, he could stay.

[00:09:22] Speaker 03:
At the time they asked the register of those questions, CID was still operating under the belief that he only had two years orders, which is clearly under the regulation he couldn't have continued to keep his students in the base school.

[00:09:36] Speaker 03:
I see that I'm in my re-hold time.

[00:09:37] Speaker 02:
I'm happy to reserve that.

[00:09:42] Speaker 02:
the whole issue of, I guess, titling and finding probable cause for intent to defraud.

[00:09:52] Speaker 03:
Are you referring to the fact that the board went back and re-entered?

[00:09:58] Speaker 03:
We don't think that that is the

[00:10:00] Speaker 03:
The board's purpose is not to go back and correct or amend and change what the criminal investigation that occurred several years earlier.

[00:10:07] Speaker 03:
I mean, the board's statutory mandate from Congress is to fix errors or correct injustices.

[00:10:12] Speaker 03:
And what they did was go back and basically rewrite a criminal investigation that had never been done.

[00:10:17] Speaker 02:
Well, the error, in their view, the error is that he was charged with larceny, but that's the wrong charge, so we're going to correct that error.

[00:10:25] Speaker 02:
Why isn't that within the statutory mandate?

[00:10:28] Speaker 03:
Because the mandate of them is to correct the errors, and the correction is to remove it from the titling block.

[00:10:38] Speaker 03:
They didn't investigate him for false official, false pretence.

[00:10:41] Speaker 05:
But I didn't read your brief as challenging that.

[00:10:44] Speaker 03:
That's not the focus of a brief.

[00:10:45] Speaker 03:
I certainly brought up in the amicus brief.

[00:10:47] Speaker 03:
It was not challenged at all.

[00:10:49] Speaker 03:
But you didn't, right?

[00:10:50] Speaker 03:
I'm sorry?

[00:10:51] Speaker 03:
You didn't.

[00:10:52] Speaker 03:
We're not challenging the ability to go back and amend the titling in that way.

[00:10:57] Speaker 05:
Okay.

[00:11:00] Speaker 05:
Thank you.

[00:11:04] Speaker 04:
Good morning, Your Honors.

[00:11:22] Speaker 04:
May it please the Court.

[00:11:22] Speaker 04:
My name is Jeremy Hawk.

[00:11:24] Speaker 04:
I'm a Special Assistant United States Attorney in the

[00:11:27] Speaker 04:
U.S.

[00:11:28] Speaker 04:
Army Judge Advocate General's Court.

[00:11:30] Speaker 04:
In this case, there's two issues.

[00:11:32] Speaker 04:
One is whether the board's decision to uphold the CID's titling of the Lieutenant Code was arbitrary and capricious.

[00:11:40] Speaker 04:
And the second is whether the board found sufficient evidence for a probable cause finding on the offenses of false official statements.

[00:11:48] Speaker 05:
Let me just start with that latter one.

[00:11:50] Speaker 05:
Yes, Your Honor.

[00:11:50] Speaker 05:
We can just clear this away.

[00:11:52] Speaker 05:
So he challenged that before the board.

[00:11:55] Speaker 05:
and the board didn't say anything about it.

[00:11:59] Speaker 05:
He challenged it in the district court, and the district court didn't respond.

[00:12:03] Speaker 05:
And he challenges it here, and in your brief, you didn't respond.

[00:12:07] Speaker 05:
Is that all accurate?

[00:12:10] Speaker 04:
Partly accurate, Your Honor.

[00:12:11] Speaker 04:
Which part's not accurate?

[00:12:12] Speaker 04:
Well, he did bring it up in his original application to the board.

[00:12:17] Speaker 04:
It was, I'd say, a passing reference to that issue.

[00:12:21] Speaker 05:
Well, you just told us that this is an issue before us.

[00:12:25] Speaker 05:
So you must concede that he's properly raised it.

[00:12:29] Speaker 04:
He's properly raised it in reconsideration in the district court.

[00:12:33] Speaker 04:
No, here.

[00:12:35] Speaker 04:
Here.

[00:12:36] Speaker 05:
You just told us that this is one of the two issues before us.

[00:12:38] Speaker 04:
It is, Your Honor.

[00:12:39] Speaker 05:
So you're not arguing in its way, but the district court didn't consider it.

[00:12:46] Speaker 05:
You didn't respond in your brief to his renewal of the argument here.

[00:12:50] Speaker 04:
Correct, Your Honor.

[00:12:52] Speaker 05:
Doesn't this have to go back?

[00:12:56] Speaker 04:
No, Your Honor.

[00:12:57] Speaker 04:
It's properly before the court on the district court's denial of reconsideration.

[00:13:02] Speaker 04:
Mr. Code did not raise this in the summary judgment briefing, as the district court's opinion states.

[00:13:08] Speaker 04:
The only time he raised it was on reconsideration.

[00:13:11] Speaker 04:
And the district court denied the reconsideration

[00:13:14] Speaker 04:
So the only, what's before the court today is whether the district court's denial of reconsideration on that issue, it was an abuse of discretion.

[00:13:24] Speaker 04:
So it is proper before the court, but only for that matter.

[00:13:27] Speaker 04:
He's only raised it in the... Well, wasn't it an abuse of discretion?

[00:13:32] Speaker 04:
It was not, Your Honor.

[00:13:32] Speaker 04:
And why?

[00:13:34] Speaker 04:
Because it wasn't raised prior to, under Rule 59,

[00:13:38] Speaker 04:
The only reason that they would reconsider it is if there's new information or to correct an error or injustice.

[00:13:49] Speaker 04:
And they didn't raise it on summary judgment.

[00:13:52] Speaker 04:
So there was no, there was nothing for the district court to consider.

[00:13:59] Speaker 01:
And can you walk us through the difference between the credible evidence standard and a probable cause standard?

[00:14:08] Speaker 04:
Yes, Your Honor.

[00:14:09] Speaker 04:
Under the CID regulation, a credible evidence standard is what a reasonable agent might find is evidence to believe that the individual may have committed an offense.

[00:14:23] Speaker 04:
What that means is then they can title that individual.

[00:14:25] Speaker 04:
Their name is placed on the titling block of a CID investigative report of investigation.

[00:14:33] Speaker 04:
The probable cause standard requires a judge advocate to review it and to determine if probable cause is present.

[00:14:42] Speaker 04:
So that would be the same standard that you have in any other court with a reasonable suspicion.

[00:14:48] Speaker 01:
And so if, this is following up on Judge Wilkins' earlier question, if the, was it the sergeant who originally believed that Lieutenant Codes

[00:15:02] Speaker 01:
assignment was from 2005 to 2007, and if information comes to his attention that that was an error, presumably his belief that the orders terminated in 2007 would no longer be information that a reasonable agent would rely on in thinking that a person may have committed an offense.

[00:15:31] Speaker 04:
Your Honor, there's evidence to support the First Sergeant's statement that he had a 24-month tour in PCF, and then his change of station was to occur in August of 2007.

[00:15:42] Speaker 04:
And that is that the assignments officer told him that he was going to move in the summer of 2007.

[00:15:50] Speaker 01:
Okay, bracketing all that, that's obviously a more factually nuanced point, but if

[00:15:57] Speaker 01:
Putting aside the application for extension, its denial, and the new change of station order that came down in late May of 2007, at the time that Lieutenant Code put in his application, his then current order, I believe the sergeant thought his then current order expired in July of 2007.

[00:16:23] Speaker 01:
And only did he later learn that it expired

[00:16:27] Speaker 01:
on its face by its terms was set to expire in 2008.

[00:16:33] Speaker 01:
Is that right?

[00:16:34] Speaker 04:
That's correct, Your Honor, but the first sergeant had no involvement in the school enrollment.

[00:16:42] Speaker 04:
His only statement was to the criminal investigation command when they asked him about Lieutenant Cote.

[00:16:51] Speaker 04:
He was the first sergeant for the military entrance processing station where Lieutenant Cote was assigned.

[00:16:57] Speaker 04:
So he had nothing to do with the rest of the investigation or anything to do with the enrollment form.

[00:17:03] Speaker 01:
So he makes a statement, but then whoever else is in charge of the investigation and doing the report would also have the underlying initial station assignment.

[00:17:17] Speaker 04:
Yes, Your Honor, that's correct.

[00:17:18] Speaker 01:
And so that person would then have to appropriately discount what he had learned from the sergeant in light

[00:17:25] Speaker 01:
the document, nobody contests that in fact Lieutenant Code was given orders to be at Fort Buchanan in Puerto Rico initially before it was changed from 2005 to 2008.

[00:17:38] Speaker 01:
Nobody can test that.

[00:17:39] Speaker 04:
Nobody can test that at the board, that's correct.

[00:17:41] Speaker 01:
Nobody can test that, okay.

[00:17:43] Speaker 01:
So then, and he received change of station orders

[00:17:47] Speaker 01:
on May 23rd, 2007, sending him to Kingsville?

[00:17:51] Speaker 04:
He did.

[00:17:52] Speaker 04:
Now, if I may, what an individual gets on their orders is a projected rotation date.

[00:17:59] Speaker 04:
That means that's a projected date that they're going to leave.

[00:18:01] Speaker 04:
It's not set in stone.

[00:18:03] Speaker 04:
Of course.

[00:18:03] Speaker 04:
It's set up to the needs of the Navy, as you know, needs of the military.

[00:18:07] Speaker 04:
And he was told, and prior to that, at the district court, he specifically said it's an undisputed fact that he was told early in 2007

[00:18:17] Speaker 04:
that his orders were going to change in summer of 2007.

[00:18:21] Speaker 04:
So when he submitted the enrollment form in April, on April 30, 2007, he knew... What was the undisputed fact?

[00:18:30] Speaker 02:
Because his declaration doesn't say what you just said.

[00:18:34] Speaker 04:
Correct, Your Honor.

[00:18:35] Speaker 04:
At the district court, Lieutenant Cote's position was that it was an undisputed fact that in early 2007, Mr. Cote was

[00:18:46] Speaker 04:
advised in, I'm sorry, but there's no dispute that Mr. Cote was advised in early March 2007 that he would be receiving new change of station orders in the summer of 2007.

[00:18:55] Speaker 04:
That's ECF number 20-1 that's in their brief to the district court, in Lieutenant Cote's brief to the district court.

[00:19:04] Speaker 01:
Do orders remain an officer's current orders until they expire or are formally changed by issuance of new and different orders?

[00:19:15] Speaker 04:
They do, they remain the current orders, but there are certainly now, what the board's position was is that he knew that they were now changing.

[00:19:27] Speaker 01:
Well, everyone seems to agree, and I hear you that you've said that very carefully, and I understand that everyone seems to agree that Lieutenant Code heard by word of mouth earlier in 2007 that he would be reassigned earlier.

[00:19:42] Speaker 01:
Did his hearing that news invalidate

[00:19:45] Speaker 01:
his 2005 to 2008 order?

[00:19:48] Speaker 04:
It didn't invalidate them, Your Honor, it changed them.

[00:19:51] Speaker 04:
It changed the orders?

[00:19:54] Speaker 01:
Hearing that by word of mouth changed the underlying order?

[00:19:56] Speaker 04:
It changed his understanding of the order.

[00:19:59] Speaker 01:
It seems everybody's understanding of what was likely to happen changed.

[00:20:03] Speaker 01:
And I don't think he's disputing that.

[00:20:04] Speaker 01:
So the question is, what did change his order?

[00:20:08] Speaker 01:
What changed that underlying order?

[00:20:10] Speaker 04:
What changed the underlying order is the May 23, 2007 orders.

[00:20:15] Speaker 04:
giving him a new assignment to Kingsville, Texas, which is then why there's obtaining services under false pretenses, because he then, when he did not then disenroll his children for the 2007-2008 school year.

[00:20:33] Speaker 04:
I understand, right.

[00:20:35] Speaker 01:
And then he heard this, and he actually applied for extension of his orders past the July 2008 expiration date.

[00:20:45] Speaker 01:
he wanted them to be through August 2008, right?

[00:20:50] Speaker 04:
Yes, Your Honor.

[00:20:50] Speaker 01:
Okay, and if that had been granted, and we know that was denied and in timing that the investigation found to be quite troubling, but if that had been granted, there's no question that he would have been entitled to continue to send his children to the school, right?

[00:21:07] Speaker 01:
That he would have been entitled.

[00:21:08] Speaker 01:
I mean, maybe they wouldn't have accepted them, but had it been granted and he'd be

[00:21:12] Speaker 01:
given an extension of his orders to August 2008?

[00:21:15] Speaker 04:
There's no question that he could have... Had it been granted and there's no subsequent orders changing that that's correct, he would have been able to... If there were no subsequent orders changing that.

[00:21:27] Speaker 02:
So tell me what is the false statement on the form?

[00:21:31] Speaker 02:
The false statement is that his orders expired on July 2008 because he knew... So he shouldn't have written July 2008 in that blank?

[00:21:42] Speaker 02:
That's correct, Your Honor.

[00:21:43] Speaker 02:
What was he supposed to have written?

[00:21:45] Speaker 04:
To be completely honest on that enrollment form, to be 100% true and accurate, he would have to say that he didn't have an expiration date of his orders, that he had a projected rotation date in July 2008, but that he had been told that his orders were going to expire prior to that.

[00:22:03] Speaker 01:
Let me ask you, Mr. Howe.

[00:22:05] Speaker 01:
Is it Howe?

[00:22:06] Speaker 04:
It's Hawk, Your Honor.

[00:22:07] Speaker 04:
Hawk.

[00:22:08] Speaker 04:
Like the bird.

[00:22:08] Speaker 01:
Like the bird.

[00:22:10] Speaker 01:
Great.

[00:22:12] Speaker 01:
I didn't see the government or the CID making any claim that he somehow violated the law by enrolling his children early in the school.

[00:22:23] Speaker 04:
No, Your Honor.

[00:22:24] Speaker 01:
In fact, it was a May deadline.

[00:22:27] Speaker 04:
I'm not sure what the deadline was, but that's correct.

[00:22:29] Speaker 04:
By enrolling them in April, that would not have been a violation of any sort.

[00:22:35] Speaker 01:
Right.

[00:22:36] Speaker 01:
And code asserts, and the government doesn't appear to dispute, that he didn't receive the letter denying his request for extension until May 8, 2007?

[00:22:47] Speaker 02:
That's my understanding, Your Honor.

[00:22:48] Speaker 02:
That's correct.

[00:22:49] Speaker 02:
Does a person have to make a knowingly false statement, or is an unintentionally false statement sufficient?

[00:22:55] Speaker 04:
They have to make a knowingly false statement, Your Honor.

[00:22:57] Speaker 04:
But the military has recognized, and I have a case from the Navy Marine Corps Court of Criminal Appeals

[00:23:05] Speaker 04:
United States versus Hernandez.

[00:23:07] Speaker 04:
It's a 2007 Westlaw 172-4912, where they recognized that a statement can be technically accurate and still be false.

[00:23:20] Speaker 04:
And that is, in this case, in Hernandez, the mother was being investigated for a travel card fraud.

[00:23:29] Speaker 04:
And as part of the investigation, they got a statement from her that said, my son is not enrolled in school in California because I want him to come to Okinawa with me.

[00:23:40] Speaker 04:
Essentially, that's what she said.

[00:23:42] Speaker 04:
They found that it was correct that he was not enrolled in school in California.

[00:23:46] Speaker 04:
He was actually enrolled in Texas.

[00:23:49] Speaker 04:
But that statement was deceiving and false because he couldn't have been enrolled in school in California having been enrolled somewhere else and not being a resident of California.

[00:23:59] Speaker 04:
The military's understanding of what a false statement is may be different from what is under 18 U.S.C.

[00:24:07] Speaker 04:
1001.

[00:24:08] Speaker 04:
It is that even though that statement technically is true that his orders expired, like in this case where Lieutenant Codes orders expired in July 2008, he had information that changed that.

[00:24:22] Speaker 04:
That information was official enough for him to question.

[00:24:25] Speaker 02:
Is there some sort of regulation or guidance

[00:24:28] Speaker 02:
in the record or something that we can take judicial notice of that says that when you're asked basically what your assignment is, you can't put down what's on your current piece of paper.

[00:24:45] Speaker 02:
That's your orders.

[00:24:46] Speaker 02:
You have to put a qualifier in there of what you've been verbally told.

[00:24:53] Speaker 04:
There is nothing, Your Honor, that you could take traditional notice of other than that the military expects that their officers will, of course, be completely truthful and honest in their... But, I mean, the form doesn't say, tell us, you know, what you've been told or what your best understanding is.

[00:25:11] Speaker 02:
It says, like, what's... I'm trying to remember the wording, but it's basically what's your present assignment.

[00:25:17] Speaker 02:
So why isn't that

[00:25:19] Speaker 02:
Why isn't that asking for the literal truth?

[00:25:23] Speaker 02:
It doesn't say, I mean, I see the way that the form is written, it seems to cut against what you're saying because the form also has on there, please update us if and when things change.

[00:25:43] Speaker 02:
So it wouldn't be consistent with your interpretation

[00:25:48] Speaker 02:
for them to also have that other language in there, would it?

[00:25:54] Speaker 04:
Well, would, Your Honor, if that's the complete truth, if there isn't a specific expiration date and that you are now projected to leave at some other time, I think you would have to tell the school that.

[00:26:06] Speaker 01:
He claims he did tell the registrar.

[00:26:08] Speaker 01:
He says, you know, it's likely, I've heard I'm going to be reassigned, so, you know, what do I do here?

[00:26:14] Speaker 01:
And he says the registrar said it's based on your current orders.

[00:26:18] Speaker 01:
So, and as I understand it, the CID report includes, I think this is on appendix 404, a report of having gone and interviewed that registrar.

[00:26:34] Speaker 01:
Do you have any information whether they asked her about that conversation that Code reported?

[00:26:40] Speaker 04:
No, Your Honor, I have no information that they asked her about it, and there is no information in the record that the registrar provided a statement on that.

[00:26:50] Speaker 04:
Lieutenant Code argues that the registrar told him that, but the Board found that

[00:26:58] Speaker 04:
he didn't present any information to that effect and it's his burden to show an error in justice.

[00:27:04] Speaker 04:
Other than his declaration.

[00:27:06] Speaker 04:
Other than his declaration, that's correct.

[00:27:07] Speaker 01:
And the rebuttal that the investigators put in was this discussion with the hypothetical that was presented to the registrar, right?

[00:27:18] Speaker 04:
Yes, that's correct.

[00:27:19] Speaker 01:
And so they said, would you, is there any chance you would have said that to

[00:27:23] Speaker 01:
him to a person in this situation and she said there is no chance because as she then read the rules governing attendance, he would not have been eligible.

[00:27:35] Speaker 01:
Is the school military or is it a contractor?

[00:27:40] Speaker 01:
What's the relationship between that Department of Defense activity

[00:27:45] Speaker 04:
It is a Department of Defense agency, the Department of Defense educational activity.

[00:27:51] Speaker 01:
They run the school.

[00:27:52] Speaker 04:
They run the school.

[00:27:52] Speaker 01:
And once they found out that his children were not eligible, why didn't they ask them to leave?

[00:27:59] Speaker 04:
Well, I think, Your Honor, the dates are important here.

[00:28:03] Speaker 04:
And what school year we're talking about is also important.

[00:28:06] Speaker 04:
The school year we're talking about is 2007, 2008.

[00:28:09] Speaker 04:
Right.

[00:28:09] Speaker 04:
So in April, he submits his enrollment form.

[00:28:11] Speaker 04:
And this gets to the obtaining services under false pretenses.

[00:28:15] Speaker 04:
And then he receives his orders in May, on May 23rd, 2007, he receives his orders to go to Kingsville, Texas.

[00:28:24] Speaker 04:
He says in his declaration, I believe it's Appendix 456, he says, I immediately called the registrar and told him that I had gotten these orders.

[00:28:34] Speaker 04:
The registrar, and then his statement is the registrar didn't tell me that I had to disenroll my children or that they weren't eligible, which makes sense because on May 23rd, 2007, the 2006-2007 school year would have still been in session.

[00:28:49] Speaker 04:
So when he calls and says, I got these orders that I need to move in June, the registrar is thinking, well, these kids are enrolled in 2006-2007 school year.

[00:28:59] Speaker 04:
by regulation they can finish out that school year, but there's what's not in it.

[00:29:03] Speaker 01:
So you're saying school's still in session.

[00:29:05] Speaker 01:
Correct.

[00:29:05] Speaker 01:
So what's... But that's not an argument I saw actually anywhere in the record or an analysis given by the investigators.

[00:29:14] Speaker 01:
It's a bright idea.

[00:29:14] Speaker 04:
Well, no.

[00:29:16] Speaker 04:
I think it's been intimated in the board's decision.

[00:29:21] Speaker 04:
It may not be directly stated that same way, but it is indicated.

[00:29:25] Speaker 04:
They indicate the dates and when the registrar made that statement and the fact that he didn't submit any statement from the registrar to support it.

[00:29:34] Speaker 01:
But once she has that information,

[00:29:38] Speaker 01:
I mean, it's just puzzling because then we have, for example, in March 2008, you know, the school is made aware of this investigation and of the order change and just puzzling to me why the discussion is why doesn't code remove his children as opposed to, you know, they could expel those children as soon as they know.

[00:30:02] Speaker 04:
Again, I think, Your Honor, the way the military works is that they expect much of the individual.

[00:30:11] Speaker 04:
And if Mr. Cove knew that his children were not eligible to go to that school, it was on him to disenroll those children and remove them from the school.

[00:30:20] Speaker 04:
And the registrar would not really have any knowledge that they weren't going to start in 2007, 2008.

[00:30:27] Speaker 04:
What the registrar understood from the statement or the call, if we agree that it happened, from Lieutenant Code, was that he was getting orders in June.

[00:30:39] Speaker 04:
I'm sure the registrar simply assumed if he's going to be leaving in June and his children aren't eligible, then those children will not attend school.

[00:30:48] Speaker 04:
They had only been enrolled.

[00:30:51] Speaker 04:
so they hadn't actually started school.

[00:30:53] Speaker 04:
So the false pretense in this case would be Lieutenant Code sending his kids to school on August 13, 2007, even though they were ineligible to attend, and knowing that they were ineligible to attend.

[00:31:05] Speaker 01:
Although he also says, and reading the, I think it's called information, that the policy statement about the school, there is a policy by which children once enrolled

[00:31:19] Speaker 01:
even if there's a change and it makes sense for continuity of the education of the children might be allowed to stay.

[00:31:26] Speaker 04:
That's correct, Your Honor.

[00:31:29] Speaker 04:
That happens when the school year has already started between September and May.

[00:31:33] Speaker 01:
I understand that, but he says that the registrar said don't worry about it if they're already enrolled.

[00:31:41] Speaker 01:
you can move and they can stay for continuity.

[00:31:44] Speaker 01:
And I don't see anything addressing his claim that as a matter of his both actual and reasonable belief that how he could have thought that he's getting this boon of the Puerto Rico school even while he's off to Texas is because that's what he understood the baseline to be.

[00:32:06] Speaker 01:
You enroll and then thereafter things can change,

[00:32:10] Speaker 01:
but the children can continue.

[00:32:13] Speaker 04:
And that may be, Your Honor, but the evidence in the record was his declaration.

[00:32:17] Speaker 04:
And the board specifically said there's nothing from the register, there's no statement from the registrar, a statement which seems like it would be easily obtained.

[00:32:25] Speaker 01:
Could he depose them?

[00:32:26] Speaker 04:
And they said it in both decisions.

[00:32:28] Speaker 01:
It would be easily obtained by the investigators as well, and they didn't obtain any specific

[00:32:33] Speaker 04:
Well, that's correct, but the investigation was already done.

[00:32:36] Speaker 04:
That's the board making that decision.

[00:32:38] Speaker 04:
So it's his burden, of course, at the board to show an error or injustice.

[00:32:44] Speaker 04:
And his declaration, the board just found that there was other credible evidence that supported the credible evidence finding and the titling.

[00:32:53] Speaker 04:
And his statement just was not as credible because he didn't have that statement.

[00:32:57] Speaker 01:
They don't find that his statement is not credible.

[00:32:59] Speaker 01:
which is important under Hasselwander, our president.

[00:33:02] Speaker 01:
They don't find that his statement was not credible.

[00:33:04] Speaker 01:
What they found was that it was not corroborated.

[00:33:06] Speaker 04:
They found that it was less credible than the other evidence that they had.

[00:33:10] Speaker 04:
because he didn't have that corroboration from the registrar even though they believed it was easily obtained and in fact essentially invited him to submit that type of information by saying that it's easily obtained and could change the outcome of this case.

[00:33:26] Speaker 01:
Does an individual have a right to subpoena someone and depose her like the registrar in this case?

[00:33:34] Speaker 04:
Your Honor, at the ABC Noir?

[00:33:36] Speaker 04:
Or at the board?

[00:33:37] Speaker 01:
Do they have the right to see it?

[00:33:39] Speaker 01:
Would Lieutenant Code have had an opportunity to depose the registrar had he wanted to get a statement under oath?

[00:33:48] Speaker 04:
The board typically doesn't have in-person hearings.

[00:33:51] Speaker 04:
It doesn't have witnesses like that.

[00:33:53] Speaker 01:
I'm saying a deposition would be out of court.

[00:33:55] Speaker 01:
Typically in civil litigation, a deposition is something that you could notice through a subpoena

[00:34:00] Speaker 01:
conduct in order to get someone who's unwilling.

[00:34:03] Speaker 01:
I mean, she works for the military here.

[00:34:07] Speaker 01:
But if he wanted to get her statement under oath, is there a mechanism that he could have used to do that?

[00:34:11] Speaker 04:
I don't know that, Your Honor.

[00:34:12] Speaker 04:
It's not something I considered.

[00:34:13] Speaker 04:
But I believe that he would be able to.

[00:34:17] Speaker 04:
And I don't see why.

[00:34:18] Speaker 04:
We're assuming that the registrar would not be willing.

[00:34:22] Speaker 04:
And I don't see why the registrar wouldn't be willing to make such a statement if it was helpful to

[00:34:31] Speaker 02:
What if what happened is that Lieutenant Code called the registrar and said, I've just been advised that my orders have changed.

[00:34:41] Speaker 02:
Do I have to disenroll my children from the school?

[00:34:45] Speaker 02:
And the registrar said no.

[00:34:47] Speaker 02:
The registrar is thinking that he's asking about this school year, but he's asking about this school year and next school year.

[00:34:59] Speaker 02:
So he hangs up and thinks that everything is fine, but this is really just a misunderstanding where he's thinking one thing and the registrar is thinking something else.

[00:35:10] Speaker 04:
If that's the case, Your Honor, I would go back to the regulation.

[00:35:12] Speaker 04:
Again, a military officer, someone with his experience and someone who's enrolled as children in school several times would know what the rules required and would probably have to ask for some clarification from the registrar as to

[00:35:29] Speaker 04:
whether it meant which school year it meant.

[00:35:33] Speaker 04:
Because I think if you were saying that he did call her and ask her that, I think she would have to say it's about this school year that you're asking about, not about the upcoming school year because they're closing out the 2006, 2007 year.

[00:35:50] Speaker 05:
When I asked Mr. Mammon

[00:35:54] Speaker 05:
why if we sent back the, if we found the probable failure to address the probable cause issue, arbitrary depreciation, why he cared about the titling decision and the information in the file, he said it could have other consequences for code.

[00:36:12] Speaker 05:
And he mentioned it could threaten his security clearance and other things.

[00:36:16] Speaker 05:
Do you have any response to that?

[00:36:18] Speaker 05:
Is that true?

[00:36:19] Speaker 04:
I don't know, Your Honor, that titling does, in fact, have an effect on someone's security clearance.

[00:36:26] Speaker 05:
The probable cause finding by... I don't want to know about the probable cause.

[00:36:33] Speaker 05:
I want to know about the titling decision.

[00:36:34] Speaker 05:
Yes, Your Honor, titling... Is there any regulation, is there anything that says the information there can't be used for any other purposes?

[00:36:43] Speaker 04:
No, Your Honor, there isn't.

[00:36:44] Speaker 04:
And that would go to the other part of the case that isn't

[00:36:48] Speaker 04:
before this court, but was an issue of the information that they gave to the finance service.

[00:36:55] Speaker 01:
On the recoupment of the cost of tuition, if there's no probable cause finding, if that were somehow reversed or invalidated, is there another avenue by which

[00:37:14] Speaker 01:
the military would pursue some kind of unjust enrichment or quantum meruit action?

[00:37:22] Speaker 04:
If the probable cause finding was overturned, I believe it would still be that the titling decision would still be adequate for, and that would be one of the effects, Your Honor, that it could have is that they would still seek to obtain recoup.

[00:37:38] Speaker 01:
And how about if that also were, because both of those really go to

[00:37:43] Speaker 01:
suspected and probably caused bearing on criminal activity.

[00:37:49] Speaker 01:
But if it weren't criminal, if it were unintentional but nonetheless unjust, is there a separate mechanism that the military would pursue, you know, innocent mistake, yes, but gee, you got a huge benefit when your kids should have been in, I guess they should have been in public school in Texas, is that the... Well, they would have been, Your Honor, they would have been eligible to go to

[00:38:13] Speaker 04:
possibly eligible to go to a Department of Defense school in Texas, but my understanding is they didn't accompany a lieutenant in Texas.

[00:38:21] Speaker 01:
So had they accompanied him, there's a parallel school in Texas on the base where they might have gone in Kingsville.

[00:38:26] Speaker 04:
I'm not aware of that.

[00:38:28] Speaker 04:
If there is, there may be, Your Honor.

[00:38:30] Speaker 04:
They're not everywhere throughout the Department of Defense.

[00:38:34] Speaker 01:
And so the titling does have that effect?

[00:38:38] Speaker 04:
It does have that effect.

[00:38:39] Speaker 04:
I don't know of any other.

[00:38:40] Speaker 04:
To answer your question from a second ago, I don't know of any other avenue that the Department of Defense would take, but I think that would be something that the financiers would have to determine if they'd want to do that or not.

[00:38:57] Speaker 05:
Okay, thank you.

[00:38:58] Speaker 04:
Thank you.

[00:38:59] Speaker 05:
Did Mr. Naiman have any time left?

[00:39:03] Speaker 05:
Okay, you can take two minutes.

[00:39:11] Speaker 03:
Thank you, Your Honor.

[00:39:13] Speaker 03:
I'd like first to make a few points.

[00:39:16] Speaker 03:
I'll first start with the probable cause, whether it was raised.

[00:39:19] Speaker 03:
Well, it certainly was raised.

[00:39:20] Speaker 03:
It was raised in Appendix 18 in Mr. Code's complaint, Lieutenant Code's complaint.

[00:39:24] Speaker 03:
It was raised on summary judgment, which was not part of the appendix, but docket 20-1 of page 18.

[00:39:30] Speaker 03:
He both noted there was not credible information and certainly not probable cause.

[00:39:34] Speaker 03:
So both of those issues were raised in the district court.

[00:39:38] Speaker 03:
They were raised before the board.

[00:39:40] Speaker 05:
They were raised in the district court before the motion for reconsideration?

[00:39:44] Speaker 03:
Yes, the docket number 20 that I referred to was Lieutenant Cove's motion for summary judgment, his own motion for summary judgment.

[00:39:51] Speaker 03:
The Lieutenant Code also pointed out the impact of the CID report, which includes the tiling decision to the board, and that's on Appendix 370.

[00:40:01] Speaker 03:
And then to the question, there was some question about, well, the school's enrollment and the policy.

[00:40:06] Speaker 03:
And I think it's instructive to look at the school's regulation, the DOD school's regulation, Senate Addendum of Page 11, which ties the eligibility

[00:40:18] Speaker 03:
to where, and if the orders change, whether the student is still eligible, to whether the student is currently enrolled.

[00:40:27] Speaker 03:
And I understood the Council for the Government to acknowledge that once the enrollment form had gone in, the students were currently enrolled.

[00:40:34] Speaker 03:
And so certainly the Board had never looked at this regulation and said that under the terms of this regulation, that the students weren't

[00:40:45] Speaker 03:
I'm not aware, certainly I've never seen it in one of these board proceedings.

[00:40:54] Speaker 03:
I'm not aware that there's any avenue as a part of the board proceedings for Lieutenant Code to have gone out and

[00:41:01] Speaker 03:
sort of compelled the register to answer questions or submit to a deposition.

[00:41:07] Speaker 03:
That's something that the government has the authority to obtain that information.

[00:41:11] Speaker 03:
They have the investigators to have done that.

[00:41:14] Speaker 03:
And so Lieutenant Cope was not in a position to go out and enforce those statements.

[00:41:22] Speaker 03:
I thank you for that, of course, Tom.

[00:41:24] Speaker 05:
Thank you both.

[00:41:24] Speaker 05:
The case is submitted.