[00:00:10] Speaker 00: All right, the last case before the court is Barna versus the United States. [00:00:15] Speaker 00: Case number 162588. [00:00:18] Speaker 00: It is a decision on appeal from the Court of Federal Claims. [00:00:35] Speaker 00: Mr. Montalvo, you want five minutes for rebuttal? [00:00:38] Speaker 00: Yes, ma'am. [00:00:41] Speaker 00: One second, please. [00:00:46] Speaker 00: Ready? [00:00:47] Speaker 00: Okay, you may begin. [00:00:48] Speaker 05: May it please the Court? [00:00:51] Speaker 05: Morning. [00:00:52] Speaker 05: There are two issues here. [00:00:53] Speaker 05: One, the pretrial agreement, the second one, the promotion. [00:00:56] Speaker 05: The promotion issue is a clear-cut legal entitlement. [00:00:59] Speaker 05: The PTA, there was a breach. [00:01:02] Speaker 05: If we look at Article 5, Section 1F, it says [00:01:09] Speaker 03: Accordingly can you tell me where that is in the record? [00:01:13] Speaker 05: in the record your honor, it's a we cited it at zero three two In the brief, I'm sorry, I should know this but I just wanted to follow along with the agreement Are you talking about the pretrial agreement? [00:01:33] Speaker 05: Thank you [00:01:39] Speaker 05: So that's the pretrial agreement. [00:01:41] Speaker 05: I was referring to the Marine Corps manual, subsection 5, or chapter 5, subparagraph 1F5, where it indicates that non-judicial punishment may not be imposed for an offense tried by a state or foreign court unless authorized by regulations of the secretary of concern. [00:02:01] Speaker 05: And so if we look at the date of the pretrial agreement, Your Honor, Colonel Smith entered into that pretrial agreement on [00:02:10] Speaker 05: the first, I'm sorry, the 29th of September. [00:02:14] Speaker 05: And so if we look at the conviction that, for the dry reckless that Stash-Rambarna sustained, that was on 21 September. [00:02:22] Speaker 05: So at the time that the colonel entered into this pretrial agreement, she was aware of the conviction in State court, and she did not seek any secretarial authority to further pursue... So you're saying that it's not really a breach question. [00:02:40] Speaker 00: On that point, you're arguing that the agreement was void of an issue because it wasn't authorized by law. [00:02:45] Speaker 05: That's correct. [00:02:46] Speaker 05: As it relates to that, there are a number of different issues, Your Honor. [00:02:49] Speaker 05: But as to that issue, yes. [00:02:51] Speaker 05: On 21 September, her bundle sort of is a property rights analogy. [00:02:56] Speaker 05: Her bundle of rights, her bundle of authority changed because she has the sole authority to enter into this agreement. [00:03:02] Speaker 03: Where is that argument in your blue brief? [00:03:05] Speaker 03: I'm sorry, Your Honor? [00:03:05] Speaker 03: Where is that argument in your blue brief? [00:03:07] Speaker 03: I'm sorry, this argument sounds very new to me. [00:03:10] Speaker 03: I thought you were arguing that the breach is after the PTA agreement was entered into and referred to non-judicial punishment that she added additional charges, not that the agreement was void out of an issue as a whole. [00:03:26] Speaker 05: That's in addition. [00:03:27] Speaker 05: We've argued that the ultimate issue in... We've argued in the alternative, right? [00:03:33] Speaker 05: In the alternative, yes. [00:03:34] Speaker 00: That one, she had no authority to enter into the agreement even if [00:03:37] Speaker 00: He mistakenly thought she did. [00:03:39] Speaker 05: That's correct. [00:03:39] Speaker 00: And the other is that she breached the agreement by adding the new charges. [00:03:43] Speaker 05: That's correct. [00:03:44] Speaker 05: Yes, Your Honor. [00:03:45] Speaker 05: And so the additional charges, the 86 and the 92, if we look at that, the alleged misconduct occurs during August of 2010. [00:03:53] Speaker 05: So the time frame we're talking about is she enters into this agreement on 29 September 2010. [00:03:59] Speaker 05: The alleged misconduct that she adds in this NJP is in August of 2010. [00:04:06] Speaker 00: Putting aside the question of whether there was any legal authority to enter into this agreement in the first place, if focusing just on the breach question. [00:04:15] Speaker 04: Yes, Your Honor. [00:04:16] Speaker 00: Assuming that we agreed with you that it was a breach to incorporate prior existing conduct into the discharge, wouldn't that only get him a specific performance remedy and therefore he's still discharged? [00:04:35] Speaker 00: based on what was in the agreement? [00:04:38] Speaker 05: No, Your Honor. [00:04:39] Speaker 05: So what in the agreement under subparagraph 10, it says, I agree to waive administrative discharge board based on any act or omission reflected in the charges and specifications that are subject of this agreement. [00:04:56] Speaker 05: So what you see is a sequence of events for a dry record. [00:04:59] Speaker 00: Right, right. [00:05:00] Speaker 00: So if he's entitled to that, if that's the agreement that [00:05:05] Speaker 00: he entered into and that she should have stuck to, then specific performance of that agreement is that he, and you can see that her purpose of the agreement was getting him to be discharged. [00:05:19] Speaker 00: So specific performance of that agreement is to narrow the basis for the discharge, but he's still discharged, right? [00:05:25] Speaker 05: No, Your Honor. [00:05:26] Speaker 05: So she makes a recommendation. [00:05:28] Speaker 05: So there's a process after, which happens in later October, a few days later, after the non-judicial punishment. [00:05:35] Speaker 05: So she makes a recommendation. [00:05:38] Speaker 05: So if the council at the time, and I have not spoken to council, but if I were representing the person and said, listen, you know, you don't need to go to an administrative separation board. [00:05:46] Speaker 05: You don't need to hire another council to deal with a dry reckless. [00:05:50] Speaker 05: You're a three combat Marine tour. [00:05:51] Speaker 05: You know, this is not something that would normally get you discharged. [00:05:56] Speaker 05: So that is something that you can plead on the papers to the convening authority and say, you know, hey, General, you know, I'm a good guy. [00:06:02] Speaker 05: I was almost becoming an officer. [00:06:04] Speaker 05: I have all of this stuff. [00:06:06] Speaker 05: I made a mistake and I should be retained. [00:06:08] Speaker 05: That's a different case. [00:06:09] Speaker 05: That's not the case that went up to the general. [00:06:11] Speaker 00: But in the agreement, he's not agreeing to the discharge? [00:06:13] Speaker 05: No, he's not, Your Honor. [00:06:14] Speaker 05: He's agreeing to waive an administrative separation board to contest the facts under it to make his pitch in front of a panel, which then only makes a recommendation to the general. [00:06:27] Speaker 05: So there are two ways to do it, basically. [00:06:29] Speaker 05: Plead on the paper. [00:06:30] Speaker 05: or go in front of a panel and make the argument. [00:06:33] Speaker 05: And then they make a recommendation based on those arguments. [00:06:35] Speaker 05: So with the additional charges, it changed the entire dynamic of what went up to the commanding general and what they relied upon in making the discharge determination. [00:06:44] Speaker 05: And his conduct with an Article 92 and an 86, which is a disobeys of a lawful order and an unauthorized absence, is a much more egregious conduct in the sphere of things than a dry, reckless, [00:06:59] Speaker 05: driving over a lane. [00:07:03] Speaker 00: The government argues that, in fact, you never preserved the 92 piece of it, that you only objected to the 86. [00:07:10] Speaker 05: Yes, Your Honor. [00:07:12] Speaker 05: That was a Scrivener's error. [00:07:14] Speaker 05: It was an artful pleading, but it was obvious that the issue was there was additional misconduct that was alleged in [00:07:22] Speaker 05: this NJP that he was not put on prior notice of. [00:07:25] Speaker 05: There are no additional facts or circumstances in the record reflecting the basis of those charges. [00:07:31] Speaker 05: He was not given any additional rights in terms of, you know, contesting that. [00:07:36] Speaker 05: He did not go back to his counsel. [00:07:39] Speaker 05: Right. [00:07:39] Speaker 00: So your point is a breach is a breach, whether it's one or two or three additional charges. [00:07:43] Speaker 00: If it's additional charges, it's a breach. [00:07:45] Speaker 05: That's right, Your Honor. [00:07:46] Speaker 00: So again, let's go back to the remedy. [00:07:50] Speaker 00: The remedy would be what? [00:07:52] Speaker 00: He gets specific performance as to the agreement, which then would allow him to go before this panel. [00:08:00] Speaker 04: That's correct. [00:08:01] Speaker 05: Yes, right. [00:08:01] Speaker 00: With a different set of facts. [00:08:04] Speaker 05: No, I mean, he would contest whatever the separation board. [00:08:08] Speaker 00: I'm sorry. [00:08:09] Speaker 00: You have this argument that you're entitled to a separation board, but you waive the separation. [00:08:13] Speaker 05: as it relate to this particular charge. [00:08:16] Speaker 00: Right. [00:08:17] Speaker 00: If you get specific performance, you will have waived. [00:08:19] Speaker 05: But it didn't waive my right to contest the discharge. [00:08:23] Speaker 05: The board is a procedure and to determine, it's a firing board. [00:08:27] Speaker 05: So you go in front of the firing board, you can either make an argument in front of people or you can do it on the papers. [00:08:31] Speaker 00: What's the difference between the board and the panel that you're talking about? [00:08:35] Speaker 05: It's the same, Your Honor. [00:08:36] Speaker 05: The panel, the board, it's called the Administrative Separation Board. [00:08:39] Speaker 05: It's three [00:08:40] Speaker 05: person panel, they call it. [00:08:42] Speaker 05: And so it's three persons that sit usually as an officer, two officers enlisted. [00:08:47] Speaker 05: And so they would sit there, and he would walk in with his counsel and basically lay out why he should not be discharged. [00:08:53] Speaker 05: And they make a couple of different determinations. [00:08:55] Speaker 00: And so what hearing did you waive in the agreement? [00:08:58] Speaker 05: That particular hearing, so not to be in front of a panel to be heard, but he didn't waive his right to rebut or contest [00:09:08] Speaker 05: the basis of the discharge recommendation. [00:09:10] Speaker 00: In what format, then, would he rebut or contest it if he doesn't get a hearing? [00:09:14] Speaker 05: In his writing. [00:09:15] Speaker 05: He would do so in writing. [00:09:16] Speaker 00: Okay. [00:09:16] Speaker 00: So what you would say a specific performance would mean you'd start over, the panel or board would look at it again, and he doesn't get a hearing, but he gets to submit written materials. [00:09:27] Speaker 05: If you set the PTA aside, he's back ab initio to where he was before this one. [00:09:34] Speaker 00: Well, there's two different questions. [00:09:35] Speaker 00: So setting it aside because there was no legal authority for it in the first instance is one question. [00:09:41] Speaker 00: But assuming you don't set it aside, but you find a breach, then you have to figure out a remedy. [00:09:49] Speaker 00: And under contract law, the first thing you look at, and under the board authority, the first thing you look at is specific performance. [00:09:59] Speaker 00: And so assuming he gets specific performance, then he's waived the hearing, right? [00:10:04] Speaker 00: He gets those other charges off, but he's waived the hearing. [00:10:10] Speaker 05: Yes, Your Honor. [00:10:11] Speaker 05: I understand your question. [00:10:12] Speaker 05: So what the Court is saying is basically if the 86 and the 92 are removed from the context, that he would then have to reappeal his charges as it relates to this specific charge, the dry reckless. [00:10:29] Speaker 00: So basically, where he would be is... But when you say a dry reckless, in the agreement, he agreed to a reference to alcohol involvement, right? [00:10:39] Speaker 04: That's correct. [00:10:39] Speaker 04: Yes, Ronald. [00:10:40] Speaker 00: OK. [00:10:40] Speaker 00: So why is that a dry reckless? [00:10:42] Speaker 00: I'm just curious as to how the military views these things. [00:10:46] Speaker 05: So Colonel Smith was a judge advocate as well as a commander. [00:10:50] Speaker 05: And so she was very astute. [00:10:53] Speaker 05: And so what she was putting in here was aggravating language. [00:10:58] Speaker 05: so that she could make a better argument when she went up to the general. [00:11:02] Speaker 05: Yeah, but he agreed to that agreement. [00:11:03] Speaker 05: No, I understand that. [00:11:04] Speaker 05: Yes, Your Honor. [00:11:05] Speaker 05: But the charge itself, if you read the specification, it's basically driving around and being stupid. [00:11:11] Speaker 05: There's no question he made a mistake, and he... Can I ask you, but you're running out of your time. [00:11:16] Speaker 03: Yes, Your Honor. [00:11:17] Speaker 03: I know we've got you into your rebuttal, but I want to know about these other two charges. [00:11:20] Speaker 03: I mean, even if we agree with you that they shouldn't have been referred with this NJP, [00:11:28] Speaker 03: although I don't see any specific language in the agreement that says that. [00:11:33] Speaker 03: Can't they just bring those charges again, too? [00:11:36] Speaker 05: So there are two things, Your Honor. [00:11:38] Speaker 05: First of all, there are no sub rosa agreements. [00:11:40] Speaker 05: So she knew about the charges when she entered into this particular agreement. [00:11:44] Speaker 03: Can you point to me to any explicit language in this agreement that says the only basis for the NJP based upon prior conduct will be this one charge? [00:11:54] Speaker 05: Well, if you go to RCM 705, Your Honor, [00:11:56] Speaker 05: which governs the pretrial agreements section, which this is where the authority for this falls under. [00:12:02] Speaker 05: It says that all of the agreements need to be in writing. [00:12:06] Speaker 03: So she could have brought him to... You're not answering my question. [00:12:11] Speaker 03: The agreement says what it says. [00:12:13] Speaker 03: It certainly says that for the charges that were brought to the court martial board, only one of the however many could be brought to NJP. [00:12:23] Speaker 03: Where does it say [00:12:25] Speaker 03: any other outstanding charges were excluded? [00:12:28] Speaker 05: So he was referred to a court martial. [00:12:32] Speaker 05: So the court had jurisdiction over the charges. [00:12:35] Speaker 05: So this was a pretrial agreement to resolve all of the pending matters. [00:12:39] Speaker 05: And in paragraph 12, it states, there are no other agreements, all are written, expressed or implied between myself, the committee authority, or any other representative of the government. [00:12:49] Speaker 05: That was on 29 September. [00:12:51] Speaker 05: And on 1 October is when the NJP [00:12:53] Speaker 05: was conducted, so two days later, almost within a day. [00:12:57] Speaker 05: So at the time that she executed this document, she said that there were no understandings or agreements pending. [00:13:04] Speaker 03: And we all know that if someone's... Regarding the plea and sentence limitations in this case, I don't see where, and maybe this is bad drafting, maybe this is what was intended, or maybe it was intentionally not there, but it doesn't say anything about any other uncharged instances of misconduct. [00:13:25] Speaker 05: Non-traditional punishment can be conducted on additional charges. [00:13:29] Speaker 05: But at the time when she entered into this agreement, she knew of these additional charges. [00:13:35] Speaker 05: She ambushed him. [00:13:36] Speaker 05: When he walked in there, the individual understood that he was to accept the NJP, otherwise he would be in breach of the contract. [00:13:44] Speaker 03: Let me ask you this. [00:13:45] Speaker 05: Yes, sir. [00:13:45] Speaker 03: If she brought the NJP pursuant to this agreement on just the one charge and then brought a separate NJP on these two other charges, [00:13:54] Speaker 03: Would she have been able to do that? [00:13:57] Speaker 05: With proper notice, yes, Your Honor. [00:13:59] Speaker 03: So she can still bring them now? [00:14:03] Speaker 03: Yes, Your Honor. [00:14:05] Speaker 03: But why wasn't the notice of nonjudicial proceedings he was given and that he signed that included these two charges specifically give him notice? [00:14:15] Speaker 05: He signed that document on the day of the non-judicial punishment. [00:14:19] Speaker 05: It's one October. [00:14:21] Speaker 05: So she conducted the non-judicial punishment. [00:14:23] Speaker 05: He executed that document on the same. [00:14:25] Speaker 05: And he was using this document to say that he had to accept the NJP. [00:14:31] Speaker 03: But the NJP specifically referenced these other two charges. [00:14:35] Speaker 05: After the NJP was conducted, yes, Your Honor. [00:14:39] Speaker 05: The procedure is he goes in the report. [00:14:41] Speaker 05: He negotiates this with his counsel. [00:14:43] Speaker 05: His counsel says, go forth, do great things. [00:14:45] Speaker 05: Here's your PTA. [00:14:46] Speaker 05: Make sure you do good. [00:14:47] Speaker 05: He goes in there. [00:14:48] Speaker 05: He reports six and center. [00:14:50] Speaker 05: They have the conversation. [00:14:51] Speaker 05: She says, you're also accused of 86 and 92. [00:14:54] Speaker 05: He's like, wait a minute. [00:14:55] Speaker 05: This is not good to go, whatever. [00:14:58] Speaker 05: She's like, well, I find you guilty anyway. [00:15:00] Speaker 05: Here, sign the documents and get out of here. [00:15:02] Speaker 03: But why did he sign them? [00:15:04] Speaker 05: Because he thought, based on the PTA, that he had to accept it. [00:15:09] Speaker 03: Not to the other two, though. [00:15:12] Speaker 05: This is the problem when you don't have representation of counsel, Your Honor. [00:15:16] Speaker 01: He just said a minute ago that he checked with counsel. [00:15:19] Speaker 01: I'm confused because I thought the briefs were quite clear that he just said he checked with counsel when in fact he did not. [00:15:25] Speaker 05: Prior to as it related to this charge, not after the proceedings, he understood from the proceedings. [00:15:33] Speaker 05: So there was a negotiation between the government and the defense counsel that formed the basis of this agreement. [00:15:41] Speaker 05: They then submitted it. [00:15:43] Speaker 05: The convening authority then waited until 29 September after the conviction out in town. [00:15:49] Speaker 05: Then he goes and reports in and executes the NJP like he was told to do. [00:15:55] Speaker 05: And then the next thing was he was separated because his understanding was there wasn't any issue because he had to accept it. [00:16:01] Speaker 05: It doesn't say very clearly, and it is in our book, I fail to accept nonjudicial punishment. [00:16:07] Speaker 05: It doesn't say if there are extra charges there or not. [00:16:09] Speaker 05: He didn't understand the legal difference. [00:16:11] Speaker 05: If an attorney had been standing there, they would have, if I was standing there, I would have said, you know, ma'am, this wasn't the deal. [00:16:17] Speaker 05: We didn't, we, you knew about these 86 and 92 if it was even valid, right? [00:16:22] Speaker 05: You know, we could contest these charges, okay, because he had permission from the SACO, so they weren't, they didn't get added to the court martial, which was pending. [00:16:31] Speaker 05: So there were no additional charges that she could have levied if they were valid charges. [00:16:36] Speaker 05: And that was two months when she knew of the charge. [00:16:39] Speaker 05: And while the court was pending, he was arraigned before the judge. [00:16:42] Speaker 05: There are no additional charges sitting there. [00:16:44] Speaker 05: So she's well aware of all of this. [00:16:46] Speaker 05: And she negotiated the terms of that and could have easily included and said, hey, I'm not going to accept this plea unless you also agree to this 86 and 92. [00:16:55] Speaker 00: I think you're way past your time. [00:16:57] Speaker 00: We'll give you three minutes. [00:17:00] Speaker 01: I don't see where you've got the authority argument in your blue brief. [00:17:04] Speaker 01: But if you could just tell me when we get back up where it is, I might be missing it. [00:17:08] Speaker 01: I just want to know where it is. [00:17:10] Speaker 04: Which particular authority? [00:17:11] Speaker 01: The authority argument, whether she had the authority. [00:17:13] Speaker 04: Oh, yes, Your Honor. [00:17:14] Speaker 04: Understood. [00:17:15] Speaker 01: Thank you, Your Honor. [00:17:19] Speaker 02: Good morning, please Court. [00:17:20] Speaker 02: Your Honor, I think I'll start with the point that you just asked in this [00:17:23] Speaker 02: This argument as it relates to the timing of the military's actions and the timing of a criminal proceeding in California, it is not in any of the briefs. [00:17:32] Speaker 02: This was an argument that was brought up in the trial court. [00:17:36] Speaker 02: The trial court dismissed this argument because the facts, as Mr. Barnard's counsel laid out, are not only demonstrably false, as shown by the record, [00:17:44] Speaker 02: They're actually demonstrably false as written in the complaint. [00:17:47] Speaker 01: What about a broader authority argument? [00:17:49] Speaker 01: Was that raised below or raised here? [00:17:52] Speaker 02: I'm not sure what you mean by broader authority. [00:17:54] Speaker 01: Well, just that you lack the authority for other reasons. [00:17:56] Speaker 01: Perhaps this is a new reason, but is there something more? [00:17:59] Speaker 02: No, I mean, this woman is what's called the convening authority. [00:18:02] Speaker 02: She was an 06 Curl in the Marine Corps. [00:18:04] Speaker 02: And the role of the convening authority is to recommend to what's called the separation authority, which in this case was a two-star general. [00:18:10] Speaker 00: But what about when you had the civil proceeding already concluded [00:18:14] Speaker 00: And it was determined. [00:18:16] Speaker 00: Is there any authority then to act on the basis of the conduct when it's already decided? [00:18:24] Speaker 02: Yes, Your Honor. [00:18:24] Speaker 02: And that's what I mean. [00:18:25] Speaker 02: As a threshold matter, that argument is not before this Court. [00:18:28] Speaker 02: Just assuming that it is, because it was clearly fleshed out in the reply brief. [00:18:32] Speaker 02: The problem with that argument is that the dates don't match up with what Mr. Barnard has represented. [00:18:38] Speaker 02: The military actually began its disciplinary process first. [00:18:42] Speaker 02: And then as that process was going, Mr. Barna entered into a plea deal in California. [00:18:46] Speaker 00: Well, but the process wasn't concluded. [00:18:48] Speaker 00: There was no punishment imposed. [00:18:52] Speaker 00: So you're saying that the rule only relates to at what point you begin the process? [00:18:57] Speaker 02: That's exactly right, Your Honor. [00:18:59] Speaker 02: And the record is clear that the military disciplinary process began first. [00:19:02] Speaker 02: And then as that process was ongoing, the California court resolved in whatever manner it was going to resolve its issue. [00:19:10] Speaker 02: And the BCNR actually did consider that issue and found that Mr. Barna's arguments had no merit. [00:19:16] Speaker 02: Those issues were brought up in the trial court, and they were dismissed, and they have not been appealed here. [00:19:20] Speaker 02: The first time that came up was last night at 530, when Mr. Barna filed something that he styled as a notice of supplemental authority. [00:19:27] Speaker 00: Well, no, it's all over the reply brief, because there is a lot of it in the reply brief. [00:19:32] Speaker 02: But, Your Honor, not with respect to how this California issue [00:19:39] Speaker 02: plays out with the timing of the nonjudicial punishment. [00:19:42] Speaker 00: Well, that surprised me because I wasn't with you last night, and I certainly heard it. [00:19:48] Speaker 00: OK. [00:19:48] Speaker 02: Well, in any event, as the trial court ruled, the nonjudicial punishment began well in advance of any resolution of the California case. [00:19:57] Speaker 02: And if Mr. Brauner has raised this argument in his reply brief or in the supplemental authority, at that point in time, it would be an improper time to raise an argument. [00:20:05] Speaker 00: OK, so assuming that the rule applies [00:20:08] Speaker 00: works as you say, that it just turns on when the disciplinary process begins and not when it ultimately is resolved or the discipline is imposed. [00:20:20] Speaker 00: Then we turn to the breach question. [00:20:22] Speaker 00: This seems to me like the ultimate sandbag. [00:20:27] Speaker 00: You negotiate with someone to the point where he knows he could be facing a discharge, he agrees to plead, and then you say, oops, [00:20:36] Speaker 00: I forgot to tell you that I knew about two other charges. [00:20:39] Speaker 02: Well, Your Honor, I understand where you're coming from. [00:20:41] Speaker 02: There's some facts that need to be cleared up that are evident in the record. [00:20:44] Speaker 02: The first is Mr. Barnett signed the agreement on September 2nd, not September 29th. [00:20:49] Speaker 02: That's when the commander processed it through her office. [00:20:51] Speaker 02: He signed the agreement on September 2nd. [00:20:54] Speaker 02: The actual nonjudicial punishment was issued a month later on October 1st. [00:20:59] Speaker 02: The way to think about this is [00:21:01] Speaker 02: This is essentially a plea bargain where Mr. Barna and the Marine Corps executed an agreement with respect to a very specific charge. [00:21:09] Speaker 02: The driving order... But it's also a settlement agreement, basically. [00:21:12] Speaker 00: Exactly. [00:21:13] Speaker 00: She wants to get rid of him, and he wants to narrow the focus of it as much as possible, so they enter into this plea agreement. [00:21:21] Speaker 00: And these are not activities or charges that occurred after [00:21:26] Speaker 00: the execution of this agreement? [00:21:28] Speaker 02: Actually, the Article 86, absent without leave, failure to show up for work, occurred after Mr. Barnasite. [00:21:33] Speaker 02: It literally happened the same day. [00:21:35] Speaker 02: So he signed this agreement and then failed to go to work later that day. [00:21:39] Speaker 02: That's the equivalent of someone entering a settlement agreement or plea bargain for a specific crime and then walking out the door committing a brand new crime, throwing up their hands and saying, well, I'm immune. [00:21:47] Speaker 02: That's precisely what happened here. [00:21:49] Speaker 02: He was not sandbagged at all, let alone the fact that the pretrial agreement is silent [00:21:53] Speaker 02: to any other, with regards to the Marine Corps' treatment of any other later discovered misconduct, he actually committed a crime immediately after signing this agreement. [00:22:03] Speaker 02: What about the other one? [00:22:04] Speaker 02: Your Honor, that occurred about two weeks prior to, and that's the Article 92 charge that the child court said was not part of any previous pleadings. [00:22:13] Speaker 02: That was some false statements that he made about two weeks before he executed the agreement. [00:22:17] Speaker 02: And those were not known. [00:22:18] Speaker 02: Those did not come to light until well after this process had moved through. [00:22:22] Speaker 02: But I think more to the core of what you're asking, and I know Judge Hughes asked a lot of questions about this, of whether or not the Marine Corps could have split this up into separate non-judicial punishments. [00:22:33] Speaker 02: In fact, they can't. [00:22:34] Speaker 02: The Marine Corps, the manual for Port Marshall says that, absent extraordinary circumstances, commanders [00:22:40] Speaker 02: cannot do that. [00:22:41] Speaker 02: They cannot stack punishments like this. [00:22:44] Speaker 02: They are required when a non-judicial punishment happens to take all known misconduct and add it to one non-judicial punishment. [00:22:51] Speaker 02: And the reason they do that is because there's only one punishment that comes out of NGEP. [00:22:55] Speaker 02: So in effect here, Mr. Barnard committed three crimes and he was only punished one time. [00:23:00] Speaker 02: What Mr. Barnard's counsel is arguing actually is to his client's detriment because [00:23:04] Speaker 02: to split those up into three separate punishments, he's now tripled the punishment that Mr. Barnard faces. [00:23:11] Speaker 00: That's precisely why... Well, there's not any more punishment you can give someone once you discharge them, right? [00:23:15] Speaker 02: No, Your Honor. [00:23:16] Speaker 02: If you look at what actually came out of the nonjudicial punishment, there was a fine, there was confinement, there was a reduction in rank. [00:23:25] Speaker 02: All of that happened prior to the discharge. [00:23:27] Speaker 02: And so what Mr. Barnard's counsel is suggesting is that he would have been better off by tripling all of that. [00:23:33] Speaker 02: And that's precisely what would happen. [00:23:35] Speaker 02: And that's exactly what the manual for court marshals does not allow. [00:23:38] Speaker 02: But you're saying all of those would have been tripled for each one of those things? [00:23:41] Speaker 02: He would have been subject to three different punishments. [00:23:44] Speaker 00: I'm not saying that they would have been precisely the same because... Because those other charges, I mean, certainly as it not showing up for work after you sign a plea agreement, doesn't sound like something that would result in a ton of punishment. [00:23:56] Speaker 02: Well, and I think, to your point, there are different magnitudes of these three crimes, but they are crimes under the Uniform Code of Military Justice. [00:24:03] Speaker 02: Would the commander have exercised her discretion to come up with similar fines for all three? [00:24:07] Speaker 02: I think you're right. [00:24:08] Speaker 02: That's doubtful. [00:24:09] Speaker 02: But what we can't escape is that there would have been three separate punishments for those crimes. [00:24:13] Speaker 02: Whatever they would have been at this point is just really speculation. [00:24:18] Speaker 02: But I think as we're talking about this breach argument, we need to look at the actual terms of the pretrial agreement and what the United States Marine Corps agreed to do. [00:24:26] Speaker 02: What they agreed to do was not court-martial Mr. Barna for his driving under the influence misconduct. [00:24:31] Speaker 02: That's undisputed. [00:24:33] Speaker 02: That's precisely what he got out of this agreement, is that he was not court-martialed and did not face the much more significant penalties that he would have faced from a court-martial. [00:24:43] Speaker 02: Now, the real crux of Mr. Barnard's argument is that somehow this pre-trial agreement, it granted him some sort of broad immunity for all other misconduct. [00:24:54] Speaker 00: Well, I didn't understand that he was arguing that it should be for all post-activity, but certainly the pre, [00:25:03] Speaker 00: agreement activity. [00:25:05] Speaker 00: In other words, he was saying he understood he was putting his friar behavior behind him. [00:25:09] Speaker 02: Right. [00:25:09] Speaker 02: And as we've delineated now, that fact sort of becomes irrelevant to our case because we know that the only other misconduct the trial court looked at happened after he signed the agreement. [00:25:20] Speaker 02: And the false official statement happened two weeks before. [00:25:22] Speaker 02: So regardless of where Mr. Barnard draws that distinction, it's really largely irrelevant. [00:25:28] Speaker 03: I'm sorry. [00:25:29] Speaker 03: No, that's okay. [00:25:31] Speaker 03: The one thing that does concern me a little bit is his argument that he felt he was forced to go through with the nonjudicial punishment and sign it even though the two new charges were added. [00:25:44] Speaker 03: I mean, you agree that with the addition of the two new charges, he could have requested a board on that, right? [00:25:52] Speaker 02: Well, not a court martial is the proper way to say it, but yes, he certainly could have. [00:25:56] Speaker 02: He could have declined non-judicial punishment and demanded a court-martial. [00:26:00] Speaker 02: That's exactly what he did. [00:26:01] Speaker 00: No, but he would have had to go through the court. [00:26:03] Speaker 00: In other words, you're saying he would have had to breach the pretrial agreement, get court-martialed in order to get a hearing on the other two points. [00:26:12] Speaker 02: No, not at all. [00:26:13] Speaker 02: When the non-judicial punishment was put in front of him, he had the option to decline that punishment for [00:26:20] Speaker 02: In fact, not only the two new ones, but also the pre-trial agreement. [00:26:23] Speaker 00: But then that would have been a breach of the pre-trial agreement, and he would have been facing a court martial. [00:26:28] Speaker 03: Could he have accepted the NJP according to the agreement, and not breached that, but elected a court martial on the other two charges? [00:26:40] Speaker 02: Certainly. [00:26:40] Speaker 02: And none of that would have, there's nothing in the pre-trial agreement that prohibited him from refusing non-judicial punishment. [00:26:47] Speaker 02: In fact, it's the exact opposite. [00:26:48] Speaker 02: It empowered him to do that with respect to a charge that was already done. [00:26:53] Speaker 00: But it was all one non-judicial punishment. [00:26:55] Speaker 00: You couldn't break it out. [00:26:56] Speaker 02: She didn't give him the option to break it out. [00:26:59] Speaker 02: Your Honor, there's nothing in the record that says that she forced him to sign all three of these at one time. [00:27:05] Speaker 02: There are three distinct charges. [00:27:06] Speaker 02: He has the opportunity to essentially treat guilty. [00:27:09] Speaker 00: So you've got a JAG officer, or someone who was a JAG officer, a judge, and a [00:27:17] Speaker 00: soldier who doesn't have counsel, and you're saying he had to understand that he was allowed to separate out this when she presents it to him as a fait accompli? [00:27:28] Speaker 02: This is exactly how the non-judicial punishment works in the military. [00:27:31] Speaker 02: But to your point of he wasn't represented by counsel, that's disturbing for a number of reasons because I think part of the problem that this [00:27:38] Speaker 02: this case has had as we've seen evolving arguments over time is that Mr. Farmer has been represented by counsel, often different counsel, but he's been represented at counsel literally at every single stage of this case. [00:27:49] Speaker 00: Now for him to come back... But not at the time he was dealing with this issue. [00:27:52] Speaker 02: He signed an agreement saying that he had consulted with an attorney and for him to come back and in fact in the trial court... He consulted with an attorney before the plea agreement, but at that point no one had told him about these other charges. [00:28:02] Speaker 02: When he signed that, he indicated that he had discussed this matter with his attorney. [00:28:07] Speaker 02: Every step of the way, he made that representation. [00:28:09] Speaker 02: And then in the trial court, he submitted an affidavit that the trial court didn't accept, saying that, well, even though I represented that, I've been speaking with counsel all the time, I actually wasn't. [00:28:19] Speaker 02: But regardless of that, the document itself, clearly read the document, it gives him these rights. [00:28:25] Speaker 02: So whether or not he was telling the truth in the first instance that he consulted an attorney, [00:28:30] Speaker 02: or he was telling the truth in the second instance that he didn't consult an attorney. [00:28:34] Speaker 02: Regardless, that document lays out all of his rights. [00:28:37] Speaker 02: He read all of that and he agreed to that non-judicial punishment. [00:28:44] Speaker 02: There is a second aspect of Mr. Barna's claim, which is the fact that he believes that he was wrongfully denied a retroactive promotion. [00:28:53] Speaker 02: The Marine Corps regulations set out three [00:28:56] Speaker 02: separate reasons why Mr. Barna was actually not eligible for promotion when he submitted an application to the remedial selection board. [00:29:05] Speaker 02: One, his guilt to clean the California court, the nonjudicial punishment that we've been speaking of, and the fact that that punishment was suspended, and then the ultimate discharge recommendation. [00:29:15] Speaker 02: All four of those issues rendered him ineligible for promotion. [00:29:18] Speaker 02: And Mr. Barna submitted his application to this remedial selection board after all of those events had happened. [00:29:23] Speaker 02: So Mr. Barna knew that his discharge was pending, [00:29:26] Speaker 02: and still submitted a application to this remedial selection board. [00:29:30] Speaker 02: Amongst the many problems with argument, the first is that it asked the court to substitute its judgment for the military commanders to essentially order Mr. Barna's promotion. [00:29:41] Speaker 02: It's important to remember that this remedial selection board just produces a recommendation that then goes to the commanders to act upon. [00:29:48] Speaker 02: And what Mr. Barna is actually asking is that the court substitute its judgment for the military commanders. [00:29:55] Speaker 02: The second fault- Did the military commander have any option with respect to- We get sort of theoretical at this point because by the time that recommendation was made, Mr. Barna was no longer in the Marine Corps. [00:30:08] Speaker 02: And so the recommendation had nowhere to go because Mr. Barna wasn't a Marine at the time. [00:30:16] Speaker 02: The Board of Corrections for Naval Records looked at this and also found that even if there was somewhere for that recommendation to go, [00:30:24] Speaker 02: All of these different reasons rendered him legally ineligible for promotion anyway, so that the commander couldn't have, hypothetically, if Mr. Barnard were in the Marines at the time, the commander couldn't act on that promotion anyway. [00:30:36] Speaker 02: The second problem with this argument is the factual basis for it is incorrect. [00:30:41] Speaker 02: If you look at appendix 159, that's literally the recommendation document that Mr. Barnard relies on to say that he's entitled to the promotion. [00:30:49] Speaker 02: That document itself requires commanders to comply with the regulations that I've been speaking of. [00:30:54] Speaker 02: As a factual matter, the recommendation itself incorporates these regulatory prohibitions. [00:31:00] Speaker 02: The second or the next problem certainly is it defies the law. [00:31:04] Speaker 02: The only court that's ever looked at this issue is the Western District of Pennsylvania in 2012 in the Frazier case. [00:31:10] Speaker 02: They looked at precisely this issue. [00:31:12] Speaker 02: Is a Marine Corps remedial promotion selection board able to promote someone who is facing any of these number of [00:31:21] Speaker 02: of regulatory prohibitions. [00:31:22] Speaker 02: In that case, the individual was incarcerated for attempted murder. [00:31:26] Speaker 02: The court found that not only is the recommendation null and void, the application is null and void, any actions that involve that remedial selection board are in its words null and void. [00:31:37] Speaker 02: And so the last problem with this argument is that it frankly defies common sense, because what the ultimate outcome of this would be is that the military would be powerless to stop [00:31:49] Speaker 02: the retroactive promotion of a convicted criminal. [00:31:52] Speaker 02: And I would submit to you that that simply cannot be the case that a convicted criminal can, the military cannot stop the retroactive promotion of a convicted criminal. [00:32:02] Speaker 02: And I think my last point is that the basis for I think Mr. Barnard's misunderstanding of this is the date of the promotion decision, which would be the date that that commander receives that recommendation, which in this case would have been in the 2012 area. [00:32:17] Speaker 02: versus the date of rank that's assigned to that individual for the pay purposes and the like. [00:32:21] Speaker 02: And in that case, it would have been 2008. [00:32:23] Speaker 02: Because the date of the promotion decision occurs within the timeline of these events, Mr. Warner was ineligible for promotion. [00:32:28] Speaker 02: Unless there's any further questions, I thank you for your time. [00:32:31] Speaker 02: All right. [00:32:31] Speaker 02: Thank you. [00:32:34] Speaker 00: I need to catch your breath. [00:32:37] Speaker 00: You talk fast. [00:32:39] Speaker 05: OK. [00:32:39] Speaker 05: My time is short. [00:32:40] Speaker 05: I understand. [00:32:41] Speaker 05: So first is the promotion issue. [00:32:43] Speaker 05: The discretionary part of this is whether or not he was going to be selected to the promotion. [00:32:48] Speaker 05: And if we look at Mark Horsepman, it talks about that there are certain instructions in the regular schedule. [00:32:54] Speaker 05: Selected boards are instructed to follow the ESB in their deliberations. [00:32:58] Speaker 05: So the selection process, and it also goes on to talk in depth about the case-by-case basis and the nature of that the CMC will make the final determination as which cases are referred and also the selection process, it will not be announced [00:33:12] Speaker 05: The proceedings and recommendations of the ESRB will not be disclosed or released until they are approved by the commandant of the Marine Corps or his designated representative. [00:33:23] Speaker 05: And that is exactly what 158 and 159 are. [00:33:26] Speaker 05: So the Marine Corps, well aware of everything that was going on with Mr. Barna, Staff Sergeant Barna at the time, accepted this, went back to 2008 because of the prohibition that says that you cannot, as prohibited from considering material, [00:33:40] Speaker 05: adverse material regarding events occurring after the regularly convened scheduled board for the remedial promotion. [00:33:46] Speaker 05: So they're going back in time and they're determining in 2008 whether he was eligible under the rules and regulations and everything that applied at that point. [00:33:54] Speaker 05: They went through that process, they selected him and then announced it in accordance with the regulations. [00:33:59] Speaker 05: So he has a clear-cut legal entitlement. [00:34:02] Speaker 05: This is not about whether they selected him or discretion or anything. [00:34:05] Speaker 05: The Commonwealth Marine Corps issued this and said that he was entitled to [00:34:10] Speaker 05: obtained the rank of Staff Sergeant. [00:34:12] Speaker 05: As it relates to the NJP Article 5 argument, we don't have that clearly enunciated in our brief, but that was more expanded upon in the District Court level in terms of the Jagman issue and then her authority. [00:34:32] Speaker 00: What's your response to the timing point? [00:34:33] Speaker 00: that the way you described the timing was not really accurate. [00:34:36] Speaker 00: The process started long before. [00:34:38] Speaker 05: And I will address that exactly, Your Honor. [00:34:40] Speaker 05: So if you go to the manual for courts martial, the decision whether to accept or reject an offer is within the sole discretion of the convening authority. [00:34:49] Speaker 05: Whether or not the individual signs off on that pretrial agreement is completely irrelevant. [00:34:54] Speaker 05: It is up to the convening authority. [00:34:56] Speaker 05: That is when that agreement becomes authorized. [00:35:01] Speaker 05: So there are two parties here. [00:35:03] Speaker 05: And the party that is meaningful according to the Manual for Courts Marshall is the convening authority. [00:35:08] Speaker 05: And she signed that with her knowledge and awareness of everything prior to September the 29th. [00:35:14] Speaker 05: So whatever he submitted, because she had the opportunity to say, I'm not taking this deal. [00:35:19] Speaker 05: You go to court martial and get another conviction or do this, or I'm going to charge you with additional charges. [00:35:26] Speaker 05: I'm going to withdraw it and send it to a general court martial. [00:35:28] Speaker 05: She could have done anything that she wanted to do on September the 29th and was well informed on how to do all of that, and she chose to sign that document. [00:35:36] Speaker 05: So that date is exactly correct. [00:35:38] Speaker 05: That is the date that's most important, because that's the date that she made that decision. [00:35:42] Speaker 05: And when she made that decision, she did it in full view of everything that counsel was referring to. [00:35:48] Speaker 05: There were no mysteries here. [00:35:49] Speaker 05: Colonel Smith was not bamboozled. [00:35:51] Speaker 05: The person that was ambushed was Stasram Barna when he walked in there because the document says you will accept non-judicial punishment. [00:35:59] Speaker 05: There wasn't a parsing through that. [00:36:01] Speaker 05: He's a simplistic, you know, lay person that doesn't understand the nuances. [00:36:05] Speaker 05: He was expecting to hear about the 111 that was a non-issue. [00:36:09] Speaker 05: That's not what happened. [00:36:10] Speaker 05: And when you see the subsequent discharge documents, they rely heavily upon the 86 and the 92 to make a further determination as to his discharge. [00:36:19] Speaker 05: And that's where the prejudice and [00:36:21] Speaker 05: the breach has caused an injury. [00:36:23] Speaker 00: All right, thank you. [00:36:24] Speaker 05: Thank you, Your Honor. [00:36:30] Speaker 02: All rise. [00:36:33] Speaker 02: The Honorable Board will adjourn from tomorrow morning at 10 o'clock a.m.