[00:00:00] Speaker 02:
John Wells.

[00:00:11] Speaker 03:
Your honor, as it may please the court, I'm John Wells, representing Chatham Fingerschmitt.

[00:00:17] Speaker 03:
One of the interesting things about this case is if the same pattern were to happen today, chances are we wouldn't be here.

[00:00:25] Speaker 03:
The reason being is that Congress, in some respects as a result of this case,

[00:00:29] Speaker 03:
and others acted in 2013-2014 with the National Defense Authorization Acts to apply and ensure that the Religious Freedom Restoration Act was applied to the military chaplains and that's been codified by the Secretary of Defense and Department of Defense Instruction 1300.17.

[00:00:48] Speaker 03:
It's no longer possible or in fact it's quite illegal for somebody to get into the situation of saying when a chaplain can pray or in fact the chaplain can actually

[00:00:58] Speaker 03:
have his prayers censored, as certainly happened in 2005 and 2006.

[00:01:06] Speaker 03:
Both aboard the ship the Anzio and later again at the Naval Station Chapel, we had a situation where a chaplain of a certain faith was being told by a line officer who was not ordained how to do his job and how to control his prayers.

[00:01:26] Speaker 03:
In the case of the first fitness report, Chaplain Klingenschmitt was marked down basically because of a funeral service that he did.

[00:01:37] Speaker 03:
And as I indicated in the briefs and certainly in the record, a military funeral has a military portion, but it also has a religious portion, just as any other funeral would.

[00:01:50] Speaker 00:
I understand your argument, but the Board of Corrections made a factual finding that that was not the basis for

[00:01:56] Speaker 00:
for that action.

[00:01:58] Speaker 00:
They made a factual finding that that action was based on the survey results.

[00:02:03] Speaker 00:
So how do you get around the fact that we have a deferential standard of review with respect to those determinations?

[00:02:08] Speaker 03:
Judge O'Malley, I'm glad you brought that up because one of the issues that we've argued is that the courts are giving excessive deference to the correction boards and it's just as Judge Dyke pointed out that problems with the Board of Veterans Appeals getting sloppy

[00:02:22] Speaker 03:
then you have situations where the correction boards get very sloppy.

[00:02:26] Speaker 03:
The Hasselwander case that I mentioned in the briefs is the D.C.

[00:02:30] Speaker 03:
Circuit having reviewed this and saying that when you have something that is completely illogical and it does not connect to the facts, even its factual finding, they don't have to get the higher level of deference.

[00:02:41] Speaker 03:
In other words, if the decision does not make sense, and in this particular case we would urge that it didn't, the courts are not required to give that level of deference to the board for corrections.

[00:02:52] Speaker 03:
as I indicated in the briefs.

[00:02:53] Speaker 00:
But in your particular case, I mean, if in fact the Board of Corrections had said that it relates to something like the fact that he drank coffee in a strange location or something, we could find that to be arbitrary or capricious or not to make sense.

[00:03:11] Speaker 00:
But here, you actually had two different things that could conceivably have impacted the decision making.

[00:03:19] Speaker 00:
And in this case, there was an actual survey with survey results that were unflattering, at least.

[00:03:29] Speaker 03:
Some of the results were unflattering.

[00:03:31] Speaker 03:
And I think we analyzed that somewhat in the reply brief.

[00:03:34] Speaker 03:
As I remember, it came out to about 14 percent of the crew.

[00:03:38] Speaker 03:
That ship had close to 400 folks on board.

[00:03:43] Speaker 03:
Some of them filled out the survey.

[00:03:45] Speaker 03:
Some of them didn't.

[00:03:45] Speaker 03:
Presumably those that didn't fill out the survey obviously didn't have an issue.

[00:03:49] Speaker 03:
And of those, as we looked at the number and analyzed the numbers, I don't remember as age progresses, my memory gets a little bad, but that's why we put it down in the reply brief.

[00:04:01] Speaker 03:
The actual number of people, the actual percentage of the crew that had a problem was not all that large.

[00:04:07] Speaker 02:
Plus... That seems to be an argument for a different finding, which maybe they could have made.

[00:04:15] Speaker 02:
But as Judge O'Malley is pointing out to you,

[00:04:17] Speaker 02:
How can it be that the corrections board determination here is arbitrary and capricious in finding that the survey was the reason for the lower fitness report rather than the content of his sermon?

[00:04:39] Speaker 03:
Because even if that was a factual truth and if it was the correction board had been correct, it still

[00:04:47] Speaker 03:
application of the wrong legal standard, because in this particular situation, what they're trying to do is to codify or to accept a heckler's veto of saying, well, a percentage of the crew, whatever that percentage is, X percent, doesn't like the chaplain's particular form of religion.

[00:05:06] Speaker 03:
So therefore, they have the right to retain or prevent him from asserting his religious beliefs.

[00:05:15] Speaker 03:
Illegal under the First Amendment.

[00:05:17] Speaker 03:
It's illegal under the Religious Freedom Restoration Act.

[00:05:21] Speaker 03:
Certainly, it's illegal under the congressional policies.

[00:05:22] Speaker 00:
But the survey results weren't commenting on not liking his brand of religion.

[00:05:27] Speaker 00:
The survey results were commenting on about how he approached those who he was supposed to be pastoring.

[00:05:35] Speaker 03:
Very few of them were.

[00:05:36] Speaker 03:
And by the way, Your Honor, you notice none of those surveys were in the administrative record.

[00:05:41] Speaker 03:
We have no factual evidence as to what those surveys actually said.

[00:05:45] Speaker 03:
We only know what somebody said they said.

[00:05:48] Speaker 03:
And as you all know, in these type of cases, we should be tied to the administrative record.

[00:05:54] Speaker 03:
I would love to have actually seen those surveys, and perhaps have been helpful for the court to do it, certainly helpful for the board to do it.

[00:06:00] Speaker 03:
They were never made available.

[00:06:01] Speaker 03:
So we have the interpretation.

[00:06:03] Speaker 02:
Did you ask that they be made available?

[00:06:05] Speaker 03:
They no longer exist, sir.

[00:06:07] Speaker 03:
Those command climate surveys are- By the time of the corrections board decision, they didn't exist anymore.

[00:06:13] Speaker 02:
I'm sorry?

[00:06:13] Speaker 02:
At the time of the Corrections Board decision, the survey results didn't exist.

[00:06:17] Speaker 03:
No, they're retained for two years at all.

[00:06:19] Speaker 03:
And I'm retired Navy, so I know how they dispose of their records.

[00:06:23] Speaker 03:
But I also did not represent the chaplain at the Board for Correction.

[00:06:32] Speaker 03:
I came in later on in the Port of Federal Claims case.

[00:06:34] Speaker 03:
But it would have been a waste of time at that point to go back and ask for them.

[00:06:37] Speaker 03:
They just don't exist.

[00:06:39] Speaker 03:
But irrespective, the burden

[00:06:41] Speaker 03:
is on the people who are referring to them or using this so-called evidence to have put them in the administrative record.

[00:06:48] Speaker 03:
The government puts together the administrative records, not the plaintiff in this case.

[00:06:53] Speaker 03:
And there's nothing in the administrative record that shows what these actual or these surveys were not in the administrative record.

[00:07:02] Speaker 03:
What was the source of the information as to the survey?

[00:07:05] Speaker 03:
As I remember, the information was

[00:07:09] Speaker 03:
items which the commanding officer at that time was Captain Carr had so indicated in various investigation reports, which by the way also did not include the surveys, in the Article 138 Complaint of Wrongs Report.

[00:07:23] Speaker 03:
So that was before the Corrections Board?

[00:07:25] Speaker 03:
That was before the Corrections Boards.

[00:07:27] Speaker 03:
The actual surveys were not.

[00:07:30] Speaker 00:
But there were quotations from the surveys, correct?

[00:07:33] Speaker 03:
There were some quotations from the surveys.

[00:07:35] Speaker 03:
But there was also before the Corrections Board a finding by the

[00:07:38] Speaker 03:
One of the investigators said basically the chaplain's religious rights had been had been violated and that's in the record at I Know it's in the record.

[00:08:01] Speaker 03:
It's here we go In

[00:08:08] Speaker 03:
About A230 to actually all the way up to 442 is we did a number of listings of it.

[00:08:14] Speaker 03:
This particular one, the finding by the Navy investigators and the record at A376 and 446.

[00:08:21] Speaker 03:
But again, what we're getting into here is a heck of a veto.

[00:08:25] Speaker 00:
I think before you run out of time, I want to focus on some bigger questions.

[00:08:30] Speaker 00:
Yes, ma'am.

[00:08:32] Speaker 00:
There was a lot that occurred after these first fitness reports.

[00:08:35] Speaker 00:
There are.

[00:08:37] Speaker 00:
And you've got some issues, but some hurdles to jump over.

[00:08:41] Speaker 00:
So the question is, what exactly do you think the relief is that you could get here?

[00:08:45] Speaker 00:
I mean, you would have to prevail on the argument that he had an absolute entitlement to resign from one ecclesiastical endorsement and to simply substitute on his own another one, right, for him to be reinstated.

[00:09:00] Speaker 03:
Well, to be reinstated as a chaplain, yes.

[00:09:04] Speaker 03:
To be reinstated into the United States Navy, no.

[00:09:07] Speaker 03:
because the provisions allow for him to have been brought back on or to be retained on board in duties other than a chaplain.

[00:09:15] Speaker 03:
You've got to remember, Chaplain Klingenschmitt was also an Air Force Academy graduate.

[00:09:19] Speaker 03:
He was a major in the Air Force.

[00:09:20] Speaker 03:
He was a qualified missile officer.

[00:09:22] Speaker 03:
And you're in a situation where it's very hard to get into, and it's a very narrow area of expertise.

[00:09:31] Speaker 03:
You have to be qualified in special weapons,

[00:09:34] Speaker 03:
sealed authentication system and so on and so forth, which he would have been and could easily have been signed as a missile officer either on a ballistic missile submarine or as a missile officer on a guided missile cruiser, guided missile destroyer.

[00:09:48] Speaker 02:
What authority is there that the Navy was obligated to do that?

[00:09:52] Speaker 02:
I mean, he came into the Navy as a chaplain.

[00:09:56] Speaker 02:
He sought to continue as a chaplain with this different endorsement than the one he had earlier.

[00:10:06] Speaker 02:
And where did he raise the question as to his entitlement to consider to continue in some other capacity?

[00:10:14] Speaker 02:
And where do we find that there's an obligation to continue in some other capacity?

[00:10:19] Speaker 03:
Sorry, Your Honor.

[00:10:20] Speaker 03:
I thought you were finished.

[00:10:20] Speaker 03:
I didn't mean to interrupt you.

[00:10:22] Speaker 03:
The guiding directive does not provide an obligation.

[00:10:26] Speaker 03:
It says consider, you know, four other duties.

[00:10:32] Speaker 03:
The opportunity to do that was before the care board.

[00:10:35] Speaker 03:
They did not have to retain him as Missile Officer.

[00:10:37] Speaker 03:
Their only requirement was to consider whether or not he'd be assigned to other duties.

[00:10:42] Speaker 03:
Did he ask to be assigned to other duties?

[00:10:44] Speaker 00:
I do not believe he did.

[00:10:46] Speaker 00:
That consideration has the overlay of the court marshal.

[00:10:49] Speaker 00:
the interim court martial.

[00:10:50] Speaker 00:
I mean, they're allowed to consider all of those facts.

[00:10:53] Speaker 00:
Are they not?

[00:10:53] Speaker 03:
Well, actually, it's an interesting point, Judge O'Malley, because the court martial at that time had not been approved.

[00:11:00] Speaker 03:
And in the military justice system, after the trial, the whole process goes up to the convening authority for review.

[00:11:08] Speaker 03:
And they can actually set aside the results, or they can affirm the results.

[00:11:12] Speaker 03:
At the time of the care board, that had not been affirmed.

[00:11:15] Speaker 03:
And I'm into my rebuttal time now.

[00:11:19] Speaker 03:
Okay.

[00:11:20] Speaker 03:
If I may.

[00:11:21] Speaker 03:
If I may.

[00:11:22] Speaker 02:
You can say it.

[00:11:23] Speaker 02:
Thank you, Mr. Wells.

[00:11:30] Speaker 02:
Thank you, Your Honor.

[00:11:32] Speaker 01:
Ms.

[00:11:32] Speaker 01:
Cotten, am I pronouncing it right?

[00:11:34] Speaker ?:
It's Coté, Your Honor.

[00:11:34] Speaker 01:
Coté, okay.

[00:11:34] Speaker 01:
May it please the Court.

[00:11:38] Speaker 01:
The trial court, the U.S.

[00:11:41] Speaker 01:
Court of Federal Claims, correctly found that the Navy's decision to discharge Chaplain Glingenschmidt

[00:11:48] Speaker 01:
was not arbitrary, capricious, or contrary to law.

[00:11:53] Speaker 01:
The trial court also correctly found that the Navy's decision to separate Dr. Chaplin Klingenschmitt was supported by substantial record evidence.

[00:12:07] Speaker 02:
Suppose that we were to conclude hypothetically that he was given a lower fitness report because

[00:12:17] Speaker 02:
of the content of his sermon and that his commanding officer had objected to its being sectarian as opposed to non-sectarian, and that was the basis for the Poor Fitness Report.

[00:12:34] Speaker 02:
Where would we be?

[00:12:36] Speaker 02:
Would that be a violation of the Religious Freedom Restoration Act or not?

[00:12:40] Speaker 01:
It might be, Your Honor.

[00:12:41] Speaker 01:
I don't know the answer to that question.

[00:12:43] Speaker 01:
But here, in this case, Dr. Klingit

[00:12:47] Speaker 01:
chaplain Klingenschmitt and I apologize your honor because we've been referring to him as doctor but he's referring to himself as chaplain and I'd like to respect his wishes to be referred that way so I might mess up a little bit.

[00:13:01] Speaker 01:
However, chaplain Klingenschmitt was separated

[00:13:05] Speaker 01:
and the grounds for his separation had everything to do with the violation of a lawful order that was directed to him.

[00:13:13] Speaker 02:
But I thought that the separation was also relied on the 2005 fitness report.

[00:13:19] Speaker 01:
Actually, the separation relied on the 2006 fitness report.

[00:13:24] Speaker 01:
The 2006, and that's the one that's referred to by the care board and by the secretary.

[00:13:33] Speaker 02:
What page of the record is that?

[00:13:38] Speaker 01:
Give me your honor.

[00:13:53] Speaker 01:
I don't know off the top of my head.

[00:14:04] Speaker 00:
I don't know off the top of my head.

[00:14:08] Speaker 00:
there was a violation of GRIFRA back in 2005 that we can ignore all that because of everything that happened after the fact?

[00:14:18] Speaker 01:
The standard of review here is the record that was before the BCNR and the record leading to the secretary's decision.

[00:14:26] Speaker 01:
The record does not demonstrate in this case that Dr. Chaplain Klingenschmitt was reprimanded as a result of his sermon or that his

[00:14:38] Speaker 01:
beliefs or rights to practice his beliefs were infringed upon at all.

[00:14:45] Speaker 01:
There is no connection between the sermon and the survey.

[00:14:54] Speaker 01:
There is a connection between the survey and a declining fitness report.

[00:15:00] Speaker 01:
There is a connection between chaplain Klingenschmitt disobeying

[00:15:07] Speaker 01:
a lawful order, a lawful order that was directed to him, a lawful order that was consistent with a neutral regulation, a neutral regulation that is generally applicable.

[00:15:24] Speaker 00:
So again, your answer presupposes that there's no connection between the sermon and the first fitness report, right?

[00:15:37] Speaker 00:
You're saying,

[00:15:37] Speaker 00:
By definition, you say that that first fitness report related to the survey and not the sermon.

[00:15:43] Speaker 00:
Correct, Your Honor.

[00:15:44] Speaker 02:
And you're also saying that the 2005 fitness report wasn't the ground for the care action, which I'm not so sure about.

[00:15:52] Speaker 01:
OK.

[00:15:52] Speaker 01:
Then I'll withdraw that statement, Your Honor, because there's so much in this record.

[00:15:59] Speaker 01:
It is rich with information.

[00:16:02] Speaker 01:
It's rich with evidence that actually supports the decisions of the BCNR

[00:16:07] Speaker 01:
and of the Secretary with respect to discharging Chaplain Klingenschmitt.

[00:16:14] Speaker 00:
So my question is, assuming that on the initial 2005 fitness report, we were to disagree that the BCNR's finding that that was tied to the survey as opposed to the sermon,

[00:16:30] Speaker 00:
is supportable, even under a deferential standard of review.

[00:16:33] Speaker 00:
Assuming we were to disagree with that, what does that matter given in the record the subsequent actions that the chaplain undertook and for which he was disciplined?

[00:16:47] Speaker 00:
That's what I'm trying to understand.

[00:16:49] Speaker 01:
Yes, and now I understand, Your Honor, and I apologize for not understanding a little bit sooner.

[00:16:55] Speaker 01:
I would prefer that you agree with our position.

[00:16:58] Speaker 01:
However, assuming that you disagree with respect to the 2005 fitness report, setting that aside, there's a 2006 fitness report that also discusses other factors that led to chaplain klingenschmitt being discharged and no longer being qualified as a chaplain.

[00:17:25] Speaker 01:
or to serve as a chaplain.

[00:17:26] Speaker 01:
Those factors included, essentially, insubordination and misconduct.

[00:17:34] Speaker 01:
If you go from there, you have chaplain Klingenschmitt disobeying a lawful order that was directed to him.

[00:17:44] Speaker 01:
Those factors, standing alone or together, justify the separation.

[00:17:50] Speaker 02:
Well, but is that the test?

[00:17:53] Speaker 02:
relied on an improper factor, wouldn't we have to set it aside and remand perhaps to give them an opportunity to redo it based on the correct factors?

[00:18:06] Speaker 01:
Well, Your Honor, my understanding here is that assuming the court were to believe that the survey or the 2005 fitness report was based upon

[00:18:23] Speaker 01:
a sermon, then you might apply the standard for the religious restoration RFRA.

[00:18:38] Speaker 01:
But even then, you'd have to point to some activity of his that had been burdened.

[00:18:46] Speaker 01:
And there's nothing in the record that demonstrates that any of Chaplain Klingenschmitt's

[00:18:52] Speaker 01:
activities with respect to his beliefs, religious beliefs, were burdened.

[00:18:58] Speaker 01:
So we would be left with a 2005 fitness report where there is no indication or evidence that any of his rights have been violated with respect to it.

[00:19:14] Speaker 01:
This is discretionary.

[00:19:16] Speaker 02:
I'm sorry, I don't understand that argument.

[00:19:19] Speaker 02:
I mean, if they relied

[00:19:20] Speaker 02:
on the sermon to give him a lower fitness rating in the 2005 fitness report and they relied on the 2005 fitness report and not renewing his chaplaincy, how is he not burdened by that?

[00:19:37] Speaker 01:
It was a hypothetical.

[00:19:39] Speaker 01:
I was responding to a hypothetical question, Your Honor.

[00:19:42] Speaker 01:
Our position is that the 2005 fitness report was based upon a survey that was conducted

[00:19:49] Speaker 01:
Our position here is that the 2005 fitness report, to the extent that it was bad at all, was only with respect from going to an early promote to a must promote.

[00:20:02] Speaker 01:
The fitness report was actually very good.

[00:20:07] Speaker 00:
Understanding that you think it's a hypothetical because you don't think it had anything to do with the sermon.

[00:20:12] Speaker 00:
Unlike the supplemental authority that you provided to us from the DC district court.

[00:20:19] Speaker 00:
The argument, at least, that is being made here is that his ability to act as a chaplain and to express his religious views as a chaplain were chilled by even a slight demotion or a slight knockdown in his fitness report.

[00:20:45] Speaker 00:
And that it wasn't just his beliefs that were being chilled, but it was his ability to

[00:20:50] Speaker 00:
to express those beliefs as a chaplain in an open forum.

[00:20:57] Speaker 00:
Isn't that a difference?

[00:21:01] Speaker 01:
I understand and respect the difference that the court is pointing out.

[00:21:05] Speaker 01:
Our position is that there's also another difference.

[00:21:09] Speaker 01:
And that difference is that he is in a community, a military community, where

[00:21:19] Speaker 01:
also acting under the commander of the Anzio.

[00:21:26] Speaker 01:
The commander of the Anzio is in charge of the command religious program on the Anzio.

[00:21:38] Speaker 01:
Chaplain Klingenschmitt is not the only person on the Anzio, and Chaplain Klingenschmitt's duties and responsibilities as a chaplain

[00:21:49] Speaker 01:
pertain to all of the crew and not only to himself.

[00:21:54] Speaker 01:
The record establishes that he was not infringed with respect to exercising his beliefs with those people on the crew who wanted to hear it.

[00:22:11] Speaker 00:
Can I ask you a question about that survey evidence?

[00:22:13] Speaker 00:
Yes.

[00:22:14] Speaker 00:
What's your response to Mr. Wells' point about the existence of the evidence and where that is?

[00:22:19] Speaker 01:
I don't know whether the evidence exists or not, Your Honor.

[00:22:23] Speaker 01:
What about at the time of the decisions?

[00:22:26] Speaker 01:
I don't believe that it existed at the time of the decisions, Your Honor.

[00:22:31] Speaker 02:
But the board had before it descriptions of what was in the survey, right?

[00:22:34] Speaker 01:
That is correct.

[00:22:35] Speaker 01:
And the descriptions of the survey were provided during the Article 138 proceedings investigation.

[00:22:49] Speaker 01:
So we do have, and there has never been, with respect to the entirety of this case on the administrative level, to now a dispute that there were complaints that were logged.

[00:23:05] Speaker 01:
There were 80 written comments, or there were written comments, and 80% of those written comments, which certainly didn't come from the entirety of the crew,

[00:23:17] Speaker 01:
contain negative comments regarding chaplain Klingenschmitt.

[00:23:25] Speaker 01:
But I don't know where those survey results are, if they exist at all, Your Honor.

[00:23:37] Speaker 01:
Here, the primary issue before the court, in our view,

[00:23:47] Speaker 01:
whether or not there was arbitrary and capricious action, action not contrary to the law, or evidence lacking in the administrative record to support the Navy's decisions regarding Chaplain Klingenschmitt.

[00:24:09] Speaker 01:
And the court of federal claims found that there was substantial record evidence

[00:24:17] Speaker 01:
that supports the Navy's decisions here.

[00:24:21] Speaker 01:
And for all of those reasons, Your Honor, we request that the Court affirm the Court of Federal Claims decision.

[00:24:32] Speaker 01:
Thank you.

[00:24:34] Speaker 02:
Okay.

[00:24:39] Speaker 03:
Thank you.

[00:24:39] Speaker 03:
Okay.

[00:24:39] Speaker 03:
Your Honors, may I please the Court, I want to try to answer some of the questions that arose as to the surveys, page three on the reply brief.

[00:24:46] Speaker 02:
Before you get to that, is it the case that in the CARE decision they relied on the 2005 fitness report?

[00:24:56] Speaker 03:
My understanding is that what they're required to do and what they said they did was that they relied on the complete record which would have included the 2005 fitness report.

[00:25:06] Speaker 02:
On page 15.

[00:25:07] Speaker 02:
of the Court of Federal Claims opinion that there's a quote here which seems to suggest that they rely on the 2005 fitness report.

[00:25:16] Speaker 03:
I think they probably relied on the 2005 fitness report as well as the 2006, both of which were, despite Ms.

[00:25:21] Speaker 03:
Cote's comments, were negative reports.

[00:25:26] Speaker 03:
Military fitness reports, especially the Navy, there's very subtle issues.

[00:25:31] Speaker 03:
would, as Judge O'Malley said, act as a chilling effect on the career.

[00:25:35] Speaker 02:
Yeah, but is there any real question that the CARE recommendation would have come out the same way if the 2005 fitness report hadn't existed?

[00:25:44] Speaker 03:
Your Honor, we don't know.

[00:25:45] Speaker 03:
I mean, there's no way to look into the minds of that.

[00:25:48] Speaker 03:
But I would point out to you, and this kind of goes to an answer or a question that you had asked earlier, one of the things that

[00:25:55] Speaker 03:
CARE Board was required to do, and that's on page 47 to 48 of the original brief.

[00:26:02] Speaker 03:
OPNAB 1120.9 is to make a recommendation as to further service, which they did not do.

[00:26:09] Speaker 03:
The other thing is, and this is also on page 22 to 23 of my reply brief, SECNAB instruction, Secretary of the Navy's instruction, I'm sorry, I go into the vernacular, specifically says that in the case of loss of endorsement,

[00:26:23] Speaker 03:
still don't process somebody out of the Navy without going through the procedures outlined in 1920.6C, which were not followed.

[00:26:32] Speaker 03:
How so?

[00:26:33] Speaker 03:
1920.6C would require some sort of abortive inquiry for him to show cause why he should have been retained, but he would have had that opportunity for the due process per 1926C.

[00:26:47] Speaker 02:
Retained in some other capacity.

[00:26:49] Speaker 03:
I'm sorry, sir.

[00:26:50] Speaker 03:
Retained in some other capacity.

[00:26:51] Speaker 03:
just retained to the naval service, depending on the Navy as to how to do that.

[00:26:56] Speaker 03:
And that goes with the needs of the Navy.

[00:27:00] Speaker 03:
They may have found that they wanted to retain him.

[00:27:03] Speaker 03:
They could have also found that they wanted to put him as a missile officer on a submarine.

[00:27:06] Speaker 03:
I mean, there's just no way that we can try to speculate as to that.

[00:27:11] Speaker 03:
I would, if I could, address the court marshal, which was raised by Ms.

[00:27:14] Speaker 03:
Cote and also raised in the briefs.

[00:27:17] Speaker 03:
Judge Booker, who was the military judge at that court martial, found it to be a lawful order.

[00:27:21] Speaker 03:
And Miss Gotay said it was a lawful order.

[00:27:23] Speaker 03:
But that finding was based upon the Secretary of Navy Instruction 1730.7 C, which was later rescinded by the Secretary of the Navy upon direction of Congress in the National Defense Authorization Act of 2007.

[00:27:39] Speaker 03:
And we had kind of an interesting circumstance here.

[00:27:43] Speaker 03:
We had the court martial in September,

[00:27:45] Speaker 03:
Then we had the National Defense Authorization Act passed in October, the official rescission in November, the clemency, which asked to have the findings set aside in December.

[00:27:57] Speaker 03:
And in January, Admiral Rui, who we had argued and was argued in the military court, was an accuser, despite the fact that the whole basis of that order had been rescinded by act of Congress, approved the findings.

[00:28:15] Speaker 03:
In actuality, and again, I didn't represent him at the court martial.

[00:28:19] Speaker 03:
If we did, we probably had a different result, I'd like to say.

[00:28:21] Speaker 00:
Right, because you didn't raise this whole command influence issue at the court martial, even though you had an opportunity to do so.

[00:28:27] Speaker 03:
Actually, the accuser issue was raised at the court martial, and the accuser is a form of command influence.

[00:28:35] Speaker 03:
Command influence, it's a subset of command influence.

[00:28:38] Speaker 03:
In other words, if you have a convening authority who orders the court martial convened,

[00:28:42] Speaker 00:
But he had an opportunity to pursue that issue and didn't do it.

[00:28:46] Speaker 03:
He did pursue it at the court-martial.

[00:28:48] Speaker 03:
It was ruled against him, but he had the opportunity to do it.

[00:28:52] Speaker 03:
And in fact, he did raise the accusers by motion.

[00:28:55] Speaker 02:
OK.

[00:28:56] Speaker 02:
Thank you, Mr. Wong.

[00:28:57] Speaker 02:
Thank you, Your Honor.

[00:28:58] Speaker 03:
So I'm out of time.

[00:28:58] Speaker 03:
I'm going to announce all the cases.

[00:29:03] Speaker 01:
Mr. May, Your Honor, the joint appendix page that I was referring to was 266.

[00:29:08] Speaker 02:
260?

[00:29:09] Speaker 01:
266, Your Honor.

[00:29:11] Speaker 02:
266.