[00:00:01] Speaker 03: Before we begin our chief proceedings for today, we have two motions, one by each member of the panel. [00:00:07] Speaker 03: I'll turn to Judge Clevenger first. [00:00:09] Speaker 03: Thank you very much. [00:00:14] Speaker 01: So the business at hand is the process by which we receive applications of lawyers who want to become members of the bar of this court. [00:00:25] Speaker 01: The way it works is that there's a movement who moves the admission of the candidate in question, that's me in this case, and then the court decides whether or not to grant the motion. [00:00:37] Speaker 01: So, I move the admission of Hannah Lauren Bernard, who is a member of the Bar and is in good standing with the highest court in the Commonwealth of Virginia. [00:00:49] Speaker 01: I have knowledge of her credentials and I'm satisfied that she possesses the necessary qualifications. [00:00:54] Speaker 01: I can say that because for the last almost 12 months Ms. [00:00:59] Speaker 01: Medard has been one of my law clerks, has served me and served this court with dedication and great talent. [00:01:09] Speaker 01: She will be missed as a participating member of this court, member of the court family, and we will look forward to having her come back here assuming that my two colleagues [00:01:24] Speaker 01: think that she should be admitted to the bar. [00:01:26] Speaker 01: I refuse myself because I've already let you know why my thumb is already on the scale. [00:01:33] Speaker 01: So moved. [00:01:35] Speaker 03: Well, with the concurrence of Judge Stowe, we enthusiastically grant the motion. [00:01:41] Speaker 03: And now before we proceed to the oath, I'll turn to Judge Stowe for her motion. [00:01:45] Speaker 02: I also have a motion this morning. [00:01:48] Speaker 02: I'm very happy to move for the admission of Lance Wyatt. [00:01:51] Speaker 02: who is a member of the bar and is in good standing with the highest court of Texas. [00:01:57] Speaker 02: I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications. [00:02:04] Speaker 02: I can say this because Lance has served admirably as a law clerk in my chambers for the past year. [00:02:11] Speaker 02: I have thoroughly enjoyed working with him and value the enthusiasm, humor, calm manner, excellent writing and efficiency that he brought to chambers. [00:02:22] Speaker 02: We will all miss him when he returns to Texas. [00:02:25] Speaker 02: But I trust he will make an excellent addition to the bar. [00:02:28] Speaker 02: And I look forward to seeing him, hopefully, before this court. [00:02:33] Speaker 03: Judge Cleverter? [00:02:36] Speaker 03: Again, on behalf of Judge Cleverter and myself, we enthusiastically grant the motion. [00:02:43] Speaker 03: Would you please rise? [00:02:44] Speaker 04: Please raise your right hands. [00:02:52] Speaker 04: Do you solemnly swear that you will report yourself as an attorney and counselor of this court, uprightly and according to law, and that you will support the United States' past addition? [00:03:09] Speaker ?: I do. [00:03:09] Speaker 03: Thank you. [00:03:09] Speaker 03: Thank you. [00:03:12] Speaker 03: First case for argument this morning is 16-2263, Wade versus United States. [00:03:19] Speaker 03: Mr. Herzfeld, whenever you're ready. [00:03:21] Speaker 05: Good morning. [00:03:28] Speaker 05: May it please the Court. [00:03:29] Speaker 05: Substantial evidence supports the Board for Correction of Naval Records, three decisions upholding the Navy's non-judicial punishment and discharge of Mr. Wade for knowing and wrongful use of cocaine. [00:03:40] Speaker 05: The trial court improperly reweighed the facts [00:03:43] Speaker 05: conducted a no-vote review actually determining whether Mr. Wade was innocent or guilty. [00:03:47] Speaker 05: We respectfully request that this court reverse the trial court's decision with instruction center judgment in favor of the United States. [00:03:55] Speaker 05: We believe that substantial evidence supported the Navy's multiple decisions finding that Mr. Wade knowingly and wrongfully used cocaine. [00:04:03] Speaker 05: He received non-judicial punishment. [00:04:05] Speaker 05: Mr. Wade's commanding officer had the positive ear analysis. [00:04:07] Speaker 05: 482 nanograms, which was 500. [00:04:10] Speaker 03: What happens hypothetically in a case where someone's caught and nobody's questioning the veracity of the test, the correctness of the test, but someone says, I just didn't do it, so I must have been duped. [00:04:23] Speaker 03: Someone tricked me. [00:04:24] Speaker 03: I must have been duped. [00:04:26] Speaker 03: I swear. [00:04:27] Speaker 03: But he can't recreate when or how he was duped. [00:04:31] Speaker 03: I was at a party with 100 people. [00:04:33] Speaker 03: That must have been where I was duped. [00:04:36] Speaker 03: Is that never sufficient to overcome the presumption? [00:04:39] Speaker 03: Is that a matter of credibility, that if people believe him crying that he was duped, that's sufficient? [00:04:47] Speaker 03: How does this work? [00:04:48] Speaker 05: That is exactly right, Your Honor. [00:04:49] Speaker 05: It becomes a question for the trier of fact. [00:04:52] Speaker 05: And here, that would be the separation. [00:04:54] Speaker 05: It would be the commanding officer and the nonjudicial punishment, where there was no defense. [00:04:58] Speaker 05: in the separation board where Mr. Wade did, in fact, make a defense of, I don't know how bad my system, I didn't do it, and he offered some character witnesses. [00:05:06] Speaker 05: That is frequently how it plays out. [00:05:09] Speaker 05: But under the standard of proof that even in court martial, where it's higher level than here, where it was a preponderance of the evidence, because these were administrative proceedings, in a court martial proceeding, usually what happens, and you said presumption, it's important to remember this is not a presumption. [00:05:28] Speaker 05: The permissive inference that's used for your analysis is essentially circumstantial evidence. [00:05:35] Speaker 05: And what the military courts have found is that circumstantial evidence is enough to carry the day. [00:05:40] Speaker 05: And it can, in fact, be enough to carry the day when somebody shows up in court and says, I didn't do it. [00:05:46] Speaker 05: And that becomes a question for the trial of fact to determine whether or not they could be reasonably disbelieved. [00:05:52] Speaker 05: If they don't believe the defendant, if they take the stand, if they don't believe their character witnesses, [00:05:56] Speaker 05: then they can conclude based on credibility, based on their mannerisms, based on whether they cry, and how they act in the courtroom. [00:06:03] Speaker 05: That can become the basis. [00:06:04] Speaker 01: So what's the test here? [00:06:06] Speaker 01: You said, for example, you believe there's a permissive inference from the results of the test, circumstantial evidence. [00:06:15] Speaker 01: Is it a question of substantial evidence? [00:06:18] Speaker 01: I mean, whether or not the presumption, if you want to call it a permissive inference, whether or not it's been rebutted or nudged, [00:06:26] Speaker 01: That's a fact question, isn't it? [00:06:29] Speaker 05: It ultimately is a fact question. [00:06:30] Speaker 01: A little later. [00:06:31] Speaker 01: Oh, is it a legal question or a fact question? [00:06:36] Speaker 05: Sorry. [00:06:37] Speaker 01: What you're trying to do is you start off and you have the drug test. [00:06:40] Speaker 01: The drug test is positive. [00:06:42] Speaker 01: And let's just start and say there's a presumption. [00:06:44] Speaker 01: The presumption can be overcome. [00:06:47] Speaker 05: Well, again, it's not a presumption. [00:06:49] Speaker 05: It essentially is sufficient circumstantial evidence. [00:06:52] Speaker 01: Well, who decided it was permissive evidence as opposed to a presumption? [00:06:55] Speaker 01: Is there a case? [00:06:56] Speaker 05: In fact, I would command the court to look at the four case, which we cite. [00:07:02] Speaker 05: In the four case, 23 military justice at 834 actually goes through the manual for court martial, which is essentially the equivalent of a statute, the manual for court martial. [00:07:11] Speaker 05: Which case was that, I apologize? [00:07:13] Speaker 05: It's 4B, United States. [00:07:14] Speaker 05: OK, thank you. [00:07:15] Speaker 05: and it is 23 military justice at 334 which goes through the permissive inference for wrongfulness and in fact talks about this because there are many cases that come up in a court martial context where somebody not shocking will say I didn't do it. [00:07:31] Speaker 05: Frequently you have, sometimes you can have actual [00:07:34] Speaker 05: you know, the stories of somebody, you know, I gave this guy, you know, cocaine or, you know, some of you can actually get somebody to testify. [00:07:40] Speaker 05: Usually it's a cousin or somebody who said I had a party and I put marijuana in the brownies. [00:07:44] Speaker 05: And so my cousin who's an officer or a service member didn't know. [00:07:49] Speaker 05: And so I thought it was just a joke and I thought I was playing a joke on him. [00:07:52] Speaker 01: You're still not answering my question. [00:07:53] Speaker 01: I'm trying to decide. [00:07:54] Speaker 01: I mean, I think Judge Wheeler seemed to think that it may be a question of law. [00:07:58] Speaker 01: that he was able to decide whether or not this story, the explanation that Wade was telling, overcame the permissive inference. [00:08:07] Speaker 01: So you have a permissive inference, which is a factual matter, which is sitting here on the scales. [00:08:13] Speaker 01: And you have Mr. Wade's explanation that somebody spiked my drink. [00:08:17] Speaker 01: That sits on the other side of the scale. [00:08:20] Speaker 01: Scales are going like this. [00:08:21] Speaker 01: So the question is, am I going to decide which way the scale goes as a matter of law, independently here, [00:08:28] Speaker 01: Or is this basically a factual question, and the question is whether or not substantial evidence supports the decision that was actually made by the decision maker? [00:08:38] Speaker 05: The latter, Your Honor. [00:08:39] Speaker 05: How do I know that? [00:08:40] Speaker 05: How do you know that? [00:08:41] Speaker 05: Well, you know that from the precedent of this court, which says that a collateral review of the nonjudicial punishment under Dumas, the court of claims, the predecessor of this court, says that it's a limited review, a substantial evidence review. [00:08:55] Speaker 01: So what you must do is you must... Well, it's substantial evidence review of a fact question. [00:09:01] Speaker 01: It's not substantial evidence review of a legal question. [00:09:04] Speaker 01: I think that's right, Your Honor. [00:09:05] Speaker 01: That's why I'm asking you, how do I know whether Judge Wheeler went off the reservation by treating this as a legal issue? [00:09:14] Speaker 05: Well, Your Honor, I think that is the standard for review from the board of contract for any military correction board. [00:09:22] Speaker 05: That is always the standard. [00:09:23] Speaker 05: There's always substantial review where the decision maker, the actual decision maker, the finder of fact here, was not Judge Wheeler, which is what he did, ultimately. [00:09:32] Speaker 01: Well, can we back up to the question of whether or not Mr. Wade committed the offense has to be a fact question, right? [00:09:40] Speaker 01: Well, yeah. [00:09:41] Speaker 05: I mean, it's ultimately becomes a fact question. [00:09:43] Speaker 05: This court, I think, has said in the past that in Hisick and Greig, the job of the Court of Federal Claims is not to reweigh the evidence. [00:09:54] Speaker 05: It's not to determine guilt or innocence. [00:09:57] Speaker 05: Its job is to determine whether or not substantial evidence is corrupt. [00:10:01] Speaker 01: So we're all on the same page. [00:10:03] Speaker 01: I mean, it seemed to me that the DCNR and the administrative board in reviewing reached the conclusion that Mr. Wade loses here. [00:10:12] Speaker 01: based solely on the drug test, so that the permissive evidence was not overcome. [00:10:19] Speaker 05: That is correct, Your Honor. [00:10:20] Speaker 05: And in fact, I can point you. [00:10:21] Speaker 05: In 2006, the record, the BCNR, in fact, looked at all the record, the information. [00:10:27] Speaker 05: And they say, we determined it was not unreasonable for the commanding officer and the administrative discharge board to discount your evidence and conclude that they discounted it when they say you are administrative. [00:10:38] Speaker 01: I realize in this case, [00:10:40] Speaker 01: It's at least your view that the chain of custody is perfect here, that there was no breach in the chain of custody of the urinalysis sample. [00:10:50] Speaker 01: So that you have a situation where from the moment the sample was given straight through, no possibility. [00:10:56] Speaker 01: Let's take a possibility. [00:10:59] Speaker 01: I'm curious to know what happens if a service member wants to challenge the urinalysis [00:11:07] Speaker 01: on the ground, maybe it's not mine, wants a DNA test, as we ask for a DNA test here. [00:11:12] Speaker 01: Belatedly, yes, sir. [00:11:13] Speaker 01: I don't belatedly. [00:11:15] Speaker 01: But let's assume that the Navy turns down the request for a DNA test. [00:11:21] Speaker 01: Is there any recourse? [00:11:24] Speaker 01: Let me give you a hypothetical. [00:11:25] Speaker 01: Let's assume the commanding officer that he goes to to ask for your analysis looks him down in the eye and says, I don't like black people. [00:11:32] Speaker 01: You know, I give white people DNA tests, I don't give black people DNA tests, so that's the fact. [00:11:36] Speaker 01: So is there a place where that person could go to test that decision? [00:11:40] Speaker 05: There were several places that he could go. [00:11:43] Speaker 05: Well, just tell me. [00:11:45] Speaker 01: Is there, like, you go to court? [00:11:47] Speaker 01: Is there some place in the military system that you go to challenge the denial, the turn down of a request for a DNA test? [00:11:55] Speaker 05: Well, that would create, obviously, fairly serious concern. [00:11:58] Speaker 01: Not even tell me where you go. [00:12:00] Speaker 01: I mean, is there a name? [00:12:02] Speaker 01: Is there something in the regulations? [00:12:04] Speaker 05: In the regulations, it has to go through your command. [00:12:07] Speaker 05: And in that, we attached the Operation Enable Instruction to, and that is in our initial brief. [00:12:15] Speaker 01: And in that, it states that... But we will say that the commanding officer makes the decision, right? [00:12:20] Speaker 01: As the commanding officer, they made the decision here turning down Wade saying, I'm not going to give you a DNA test. [00:12:26] Speaker 01: My question is, is there any recourse? [00:12:29] Speaker 01: Is there any place that someone can go to challenge that decision? [00:12:33] Speaker 05: I think, Your Honor, the first place they would go [00:12:36] Speaker 05: In this circumstance, it could not be approved just by the commanding officer. [00:12:40] Speaker 01: For example, he could- Well, tell me where you go. [00:12:42] Speaker 01: Do you have to go to the US district court? [00:12:44] Speaker 01: Is it APA cause of action? [00:12:46] Speaker 01: What is it? [00:12:47] Speaker 05: I think because this is non-judicial punishment and separation board circumstances, the non-judicial punishment, if you had asked for it there before that occurred, that does go- You're still not answering my question. [00:12:59] Speaker 01: Yeah. [00:12:59] Speaker 01: You see, what I'm concerned about here is that in circumstances like this, the likelihood [00:13:06] Speaker 01: over a lot of cases is likely that that sample got mixed up. [00:13:11] Speaker 01: And what I'm trying to find out is whether or not there's any place where a service member can go when they are convinced that there was a mess up, that they can go to have that challenge, or are they stuck with the military decision, sorry, we think the chain is pure. [00:13:27] Speaker 05: I think they can go to the board for correction of naval records. [00:13:30] Speaker 05: That would be one place they could go. [00:13:32] Speaker 05: After the fact. [00:13:33] Speaker 05: After the fact. [00:13:33] Speaker 05: And it bears noting that Mr. Wade did not, in fact, challenge the DNA issue at the BCNR. [00:13:38] Speaker 01: I know what happened in this case, but what I'm worried about is a circumstance in which there is no how that the Navy alone makes the judgment call whether or not you get a DNA sample test. [00:13:58] Speaker 05: have here today, not judges and not lawyers, but civilians who made the decision. [00:14:04] Speaker 05: We had three panels of three individuals who came to the same conclusion on this evidence, that the separation board had done nothing wrong. [00:14:13] Speaker 05: And so that's one place where it could have been raised. [00:14:15] Speaker 05: And they could have said, in the hypothetical that you provided, that race was a factor here and this is inappropriate. [00:14:22] Speaker 05: And then after the BCNR makes a determination, [00:14:25] Speaker 05: it actually the secretary can overwolf. [00:14:27] Speaker 05: If the BCNR says no, I don't believe that race is a factor where it could actually go up to the secretary of the Navy and then the secretary of the Navy's office. [00:14:35] Speaker 05: So there is in the Navy system itself, and I would say when it comes to a due process issue here, it's something that the court of federal claims [00:14:43] Speaker 05: legitimately could have looked at. [00:14:45] Speaker 05: The problem we have here is that it was not raised by Mr. Wade at the BCNR. [00:14:50] Speaker 05: It was not raised by Mr. Wade at the court of federal claims. [00:14:53] Speaker 05: It was raised to a spot in the decision the day before judgment was entered. [00:14:56] Speaker 02: But the court claims didn't say that there wasn't a due process problem, rather considered that as part of, I guess, the evidence that the court considered when it [00:15:06] Speaker 02: determined that there wasn't substantial evidence to support the decision below. [00:15:10] Speaker 05: I think that's right. [00:15:12] Speaker 05: The trial judge, as I understand it, he threw that into the mix and said, well, in addition to my conclusion that I think Mr. Wade was innocent rather than guilty, I'm led down that path because I'm disturbed. [00:15:27] Speaker 05: I think he used the term disturbed or concerned about the fact that the DNA test was denied. [00:15:33] Speaker 02: I read that as thinking that was additional evidence that supported [00:15:37] Speaker 02: What was the court of claim's ultimate conclusion? [00:15:39] Speaker 05: And that may have been what he meant to do or meant to say. [00:15:44] Speaker 05: I read it as it could have been an alternative. [00:15:47] Speaker 05: It could have been part of it. [00:15:48] Speaker 05: It wasn't clear to me when I read the decision. [00:15:50] Speaker 02: Well, let me ask you something else. [00:15:51] Speaker 02: So on the separation board, there's no written decision for the separation board, correct? [00:15:57] Speaker 05: There is not, Your Honor. [00:15:58] Speaker 05: The separation board, I know that I'm into my little time, but I'll keep going. [00:16:02] Speaker 05: I want to answer your question, Your Honor. [00:16:03] Speaker 05: There is no written decision, because as part of the Separation Board, there is a finding. [00:16:09] Speaker 05: They have a finding sheet. [00:16:10] Speaker 05: And the finding sheet I think you can find at, I think it's, I can get it to you when I get back to Mary Butler, if I don't have it. [00:16:20] Speaker 05: It's 1235 in the record. [00:16:21] Speaker 05: It's the finding sheet. [00:16:22] Speaker 05: And that is per Military Personnel Manual, 1910.146, which is at 1081 through 83 in the record. [00:16:29] Speaker 05: And that's a standard form they use. [00:16:32] Speaker 05: And it is a recommendation. [00:16:33] Speaker 05: The separation board's decision is not final. [00:16:35] Speaker 05: It has to be approved by the commanding officer. [00:16:38] Speaker 05: And if you read the commanding officer's decision, that's on, I believe, 1022 through 1025, where he, in fact, goes through the evidence and concludes that it wasn't reasonable, the innocent ingestion defense. [00:16:49] Speaker 05: He looked at their evidence and he said, I'm looking at this evidence. [00:16:52] Speaker 05: I just don't find this a reasonable defense. [00:16:54] Speaker 05: I think you can rely on your analysis. [00:16:56] Speaker 01: Am I correct? [00:16:57] Speaker 01: I think I'm correct. [00:16:58] Speaker 01: But tell me if I'm correct in thinking that in this particular case, [00:17:02] Speaker 01: Wade has not challenged the fact findings that deal with the chain of custody. [00:17:09] Speaker 01: The fact findings. [00:17:10] Speaker 01: I think that's correct, Your Honor. [00:17:12] Speaker 01: The person who witnessed the urine sample being given, the testimony that it never lost sight, it went down. [00:17:19] Speaker 05: They had the opportunity to cross-examine these witnesses at the separation board. [00:17:23] Speaker 05: Mr. Wade was represented by counsel there, and the counsel had the opportunity to cross-examine [00:17:30] Speaker 05: and challenged that information. [00:17:31] Speaker 05: And in the letter of deficiency to the commanding officer, before the commanding officer made the decision, they brought these issues up. [00:17:38] Speaker 05: So he did have the opportunity. [00:17:40] Speaker 01: But I didn't see a challenge to those facts. [00:17:43] Speaker 05: And there were not a challenge to those facts in the court of federal claims for the BCNR, as I understand it. [00:17:49] Speaker 05: Thank you. [00:18:00] Speaker 06: Good morning, members of the court. [00:18:01] Speaker 06: My name is William Casera, and I represent Mr. Wade. [00:18:03] Speaker 06: This court should affirm the very well-reasoned decision by the trial court, finding that the agency decision was not supported by substantial evidence. [00:18:11] Speaker 06: I would like to start by actually answering a question from Judge Flevinger that was raised. [00:18:16] Speaker 06: I will, on the part of an Army JAG person, I can at least give you the answer. [00:18:21] Speaker 06: There is no interlocutory appeal from the decision by the commander to not retest the sample. [00:18:26] Speaker 06: I believe that's what the judge was asking. [00:18:28] Speaker 06: I'm not sure of that. [00:18:29] Speaker 06: There is no introductory appeal. [00:18:32] Speaker 06: With response to my opposing counsel's statement, the trial judge never made a statement that Mr. Wade was innocent. [00:18:40] Speaker 06: As you know, the trial judge simply stated that the Navy had not produced substantial evidence that he had intentionally ingested cocaine. [00:18:49] Speaker 06: The claims court must set aside any agency action it finds to be arbitrary, capricious, and abusive discretion. [00:18:55] Speaker 06: and otherwise not in accordance with the law or unsupported by substantial evidence. [00:18:59] Speaker 06: The court must review the record of those parts as decided by a party, and that is a high-sig decision. [00:19:07] Speaker 03: How much of this depends on credibility, however? [00:19:10] Speaker 03: Are you asking me at the trial level or at the case? [00:19:13] Speaker 03: I mean, your friend said, well, there were multiple levels here, and I guess certain arguments were raised at some of those levels and not on others. [00:19:20] Speaker 03: But your friend says, this is a circumstantial evidence case, but at some point, [00:19:25] Speaker 03: given that there was cocaine found that your client, he didn't want to say there's a presumable presumption or whatever, but your client needs to come forward with something, right? [00:19:37] Speaker 03: And when he does, his excuse is the review of that excuse just based on the credibility judgment of the fact-finders. [00:19:46] Speaker 06: No, Your Honor. [00:19:47] Speaker 06: I mean, just one of the factors, because as you know, I successfully have to look at the entire record. [00:19:51] Speaker 06: So it's certainly one of the factors that the trial judge looked at, and he gave a very well-reasoned analysis. [00:19:57] Speaker 01: You're telling me that Judge Wheeler looked at and analyzed the possibility that your client lost his credibility? [00:20:07] Speaker 01: Oh, no. [00:20:07] Speaker 01: There's no mention, in Wheeler's opinion, of two, actually three times that your client didn't tell the truth. [00:20:16] Speaker 01: And so there's no mention in your brief. [00:20:19] Speaker 01: It's sort of like the elephant in the room [00:20:22] Speaker 01: There's an argument by Judge Wheeler, she says, oh my God, there's something wrong here because it only took them 31 minutes to make up their mind. [00:20:29] Speaker 01: How long does it take to make a decision when you decide that you don't believe a person who's telling the story? [00:20:37] Speaker 06: Well again, Your Honor, I think that is one of the many factors that Judge Wheeler looked at at the time of the deliberations. [00:20:42] Speaker 01: But you don't address that in your briefs. [00:20:46] Speaker 06: The time of the deliberations? [00:20:47] Speaker 01: Well, the fact that the deciding officials cross-examined your client about falsehoods that he told them. [00:20:57] Speaker 06: I think we did address the fact that he, certainly in the transcript, that he mentioned why it was that he did not tell his supervisor, his civilian supervisor at the very beginning, what it actually, that he was coming up for a charge of the incident. [00:21:11] Speaker 01: Well, yeah, he gave an act. [00:21:12] Speaker 01: He said, I lied, and here's why I lied. [00:21:15] Speaker 06: Yes, sir. [00:21:17] Speaker 01: So, he told the deciding official, the three judges, I don't tell the truth. [00:21:23] Speaker 06: And just so the court is clear, they are not three judges, they are three officers. [00:21:27] Speaker 01: They are the decision makers. [00:21:31] Speaker 01: Because your client chose them to be the decision makers. [00:21:34] Speaker 06: Well, as far as the Administrative Separation Board are on, that's not actually correct. [00:21:38] Speaker 06: He does not choose whether to go to an Administrative Separation Board. [00:21:41] Speaker 01: We chose the procedure that would take him there. [00:21:44] Speaker 06: Even if he had chose, and I think one of the important factors for this court to understand is that even if he had elected trial by court-martial, there is no requirement on the part of the Navy that they actually grant that. [00:21:54] Speaker 06: And in my experience, it is frequently the case that they will not do a trial by court-martial and will do this type of an administrative board proceeding instead. [00:22:01] Speaker 06: So, in the long run, it's really the Navy's decision as to whether or not to send a... But we don't know that here because he didn't request the court-martial proceeding. [00:22:10] Speaker 06: That is correct. [00:22:11] Speaker 06: And I think that one of the [00:22:12] Speaker 06: You know, when Judge Carpenter talks about one of the white elephants in the room, another one of them is this sort of thought process on the part of the BCNR and on the part of, and most importantly, the Administrative Separation Board, that you didn't elect trial by court martial because you're guilty. [00:22:28] Speaker 06: And that is simply not the way that the process works. [00:22:31] Speaker 06: You can elect trial by court martial and, or excuse me, non-judicial punishment. [00:22:35] Speaker 03: Where is the record? [00:22:37] Speaker 03: What did somebody say? [00:22:38] Speaker 03: You didn't elect trial by court martial, therefore that proves you're guilty. [00:22:42] Speaker 06: If you look at the questioning by what, by the administrative separation board members and granted the record, the transcript is not very detailed, but there is mention in there where they questioned him about why he would not, one of the questions from one of the board members was if you didn't do this, why didn't you ask for a court martial? [00:22:58] Speaker 06: And that isn't a separation point, right? [00:23:00] Speaker 01: We have the results of the drug test on one side of the scale, as I mentioned earlier. [00:23:04] Speaker 01: On the other side of the scale, you have your client's explanation that someone spiked his drink. [00:23:09] Speaker 01: Right? [00:23:10] Speaker 01: That's what's on the scale. [00:23:13] Speaker 06: I think that is one of the possible explanations. [00:23:15] Speaker 01: Well, those are the two important things that are on the scale. [00:23:17] Speaker 01: But the government, the only thing the government has going for it is the result of the urinalysis test. [00:23:22] Speaker 01: And that has some evidentiary effect sitting there. [00:23:25] Speaker 06: And if I may, Your Honor, on the other side, you have the possibility, as noted by the government, the government's own expert, of an innocent ingestion, but you also have this lingering issue of a chain of custody, which will... Well, the chain of custody, the lingering issue never goes anywhere because you didn't challenge the [00:23:45] Speaker 01: Person that took the sample said, I took his sample. [00:23:48] Speaker 01: I watched it go through. [00:23:49] Speaker 01: I mean, there's no challenge. [00:23:50] Speaker 06: I think what he said was, I do a lot of these tests. [00:23:53] Speaker 06: I don't remember this one in particular. [00:23:54] Speaker 06: Here is what generally happens. [00:23:55] Speaker 01: I don't know what he said. [00:23:56] Speaker 01: I mean, we can go back and close. [00:23:58] Speaker 06: He does not say that I actually saw him give a sample six months ago. [00:24:01] Speaker 01: But my point is the three people in the separation board look at the evidence, and they decide that the Navy wins. [00:24:09] Speaker 01: The Navy can only win based on the drug test. [00:24:13] Speaker 01: That means that they [00:24:15] Speaker 01: did not believe, did not discount it, whatever would be on the other side of the scale. [00:24:20] Speaker 01: Right? [00:24:21] Speaker 01: And it's a fact question. [00:24:23] Speaker 01: So we say to ourselves, well, is there a substantial evidence, is there an explanation for why the deciding persons discounted your clients what he had on his scale? [00:24:35] Speaker 01: And when the deciding officials themselves brought the credibility of your client into question, [00:24:41] Speaker 01: and ask the questions that satisfied themselves that your client was not telling the truth on one, actually on three occasions, then why isn't that an explanation for how the board decided its case? [00:24:56] Speaker 01: Well, because I think you're on a... Isn't it substantial that what a reasonable mind can believe on either side? [00:25:02] Speaker 01: I think that's fair. [00:25:04] Speaker 01: And so you say, well, the board couldn't believe your client. [00:25:07] Speaker 01: They didn't. [00:25:08] Speaker 01: They believed the Navy. [00:25:10] Speaker 01: Next case. [00:25:11] Speaker 01: If there is a reason to support why the board decided the case the way it did. [00:25:19] Speaker 01: It has the test results, and it has its view of your client's credibility. [00:25:26] Speaker 06: But that's not all that it had. [00:25:28] Speaker 06: And what concerned the trial judge clearly was the fact that the board did not, or that the Navy, I should say more specifically, discounted other possible [00:25:38] Speaker 06: other issues of the procedural concerns that judge still noted that the judge sort of didn't say. [00:25:44] Speaker 01: Let's take the 31 31 minute decision. [00:25:47] Speaker 01: Yes. [00:25:49] Speaker 01: Unblushingly with a straight face. [00:25:51] Speaker 01: Can you tell me that's a real reason to be worried about what happened here in the decision? [00:25:56] Speaker 06: I think that only took them 31 minutes to decide in a vacuum. [00:26:00] Speaker 06: No. [00:26:01] Speaker 01: Because they've been at recess for an hour, right? [00:26:04] Speaker 06: But they've been told not to deliberate previously. [00:26:06] Speaker 06: That's part of the standard instruction. [00:26:07] Speaker 06: If you were told not to, it's just like a jury. [00:26:09] Speaker 06: You are told, do not deliberate until you start your deliberation process. [00:26:13] Speaker 01: So it's the 31 minutes. [00:26:15] Speaker 06: That's where the 31 minutes is. [00:26:16] Speaker 06: It's purely the deliberations process. [00:26:18] Speaker 02: Were there any other theories that were provided for how this could have been accidentally ingested? [00:26:23] Speaker 02: Like, for example, [00:26:25] Speaker 02: the fact that your client had been on hydrocodone for other reasons? [00:26:30] Speaker 02: Were there any other possible theories? [00:26:34] Speaker 06: There may well could have been had the Navy allowed the DNA sampling or the retesting of the urine sample. [00:26:40] Speaker 06: But when the Navy gets to play judge, jury, and executioner, as they do in a case like this, and they say, we're not going to retest your sample, that's the only way to find out [00:26:51] Speaker 06: whether or not there's a problem with the sample. [00:26:53] Speaker 06: Not to get too far off the reservation, but there's a case law upon a retest. [00:26:56] Speaker 02: Was there a due process argument made? [00:26:57] Speaker 02: Is that argument even before us in this court? [00:27:00] Speaker 06: I think it is, because Judge Wheeler says that it was one of the due process concerns that caused him to look at it. [00:27:07] Speaker 02: And again, he doesn't say... But isn't that in the analysis of the substantial evidence, he lists several reasons why he, including he has this thing about the low positive reading, the procedural concerns, flaws in the [00:27:20] Speaker 02: transcript, the 33 minutes. [00:27:22] Speaker 02: And then he says, ultimately, all this shows there isn't substantial evidence. [00:27:26] Speaker 02: So he's not really addressing due process, I don't think. [00:27:29] Speaker 06: Well, I think he's addressing it in the sense of, like you just said, Your Honor, that is one of the factors that I am looking at in determining that there is not substantial evidence. [00:27:38] Speaker 02: That's right. [00:27:39] Speaker 02: So he did not. [00:27:40] Speaker 02: Nobody argued due process before him, and he didn't address due process. [00:27:43] Speaker 06: He is certainly not saying that as a result of the Navy's failure to retest, that is a procedural defect which vacates these proceedings. [00:27:49] Speaker 06: That is not the case. [00:27:51] Speaker 02: One of the things the government has said in this case is that the court below, the claims court, reweighed the facts. [00:28:00] Speaker 02: And I have a particular part of the court's opinion that troubles me, and I just want your response. [00:28:05] Speaker 02: It's on page 644, left column, and it says he's addressing this low positive reading of 482. [00:28:14] Speaker 02: He says, [00:28:15] Speaker 02: The low level likely does not reflect the actions of someone trying to experience a drug's euphoric effects, but rather is more in keeping with a person's unknowing ingestion of a small amount of cocaine. [00:28:27] Speaker 02: But didn't the experts say that's one plausible theory? [00:28:31] Speaker 02: And in fact, another plausible theory is that [00:28:34] Speaker 02: He had ingested the cocaine the night before. [00:28:36] Speaker 02: And you have to look over the weekend. [00:28:38] Speaker 02: Excuse me. [00:28:39] Speaker 02: Yes. [00:28:39] Speaker 06: My apologies, Judge. [00:28:41] Speaker 06: I think the language that Judge Wheeler quoted is almost directly from Dr. Molinari or Mr. Molinari from the laboratory. [00:28:47] Speaker 06: And now in which he says that that is one of one. [00:28:51] Speaker 06: Yes, ma'am. [00:28:52] Speaker 06: Yes, ma'am. [00:28:53] Speaker 02: Then he says a low positive reading on a first time offense with no evidence of how the substance was ingested does not establish wrongful use. [00:29:01] Speaker 02: How is that? [00:29:02] Speaker 02: How is that not sort of reweighing of the expert report, which gave two plausible possibilities from the reading of 480 files? [00:29:11] Speaker 06: Because Judge Rehler was obligated to look at the entire record. [00:29:14] Speaker 06: So he takes this portion of it and says, this does not establish it in and of itself. [00:29:20] Speaker 06: Therefore, the permissive inference may not apply. [00:29:22] Speaker 06: I think it's important that we note that all of the military case law says that you [00:29:28] Speaker 06: You know, the government counsel said the permissive inference is enough to carry the day. [00:29:33] Speaker 06: That is simply not true. [00:29:35] Speaker 06: The permissive inference may be enough to carry the day. [00:29:38] Speaker 06: And what Judge Mullinari was, I mean Judge Mullinari, what Judge Kennedy Wheeler was saying is, I've got all of these concerns, including the fact that when my client, my client, when Mr. Wade was approached, he was shocked by the results. [00:29:51] Speaker 06: I have all of these people that have committed have said, this guy's got a stellar 18 and a half year career, 19 and a half years by the time that he is discharged. [00:29:58] Speaker 06: You combine that with the serious issues about the Navy not being willing to retest it and that their own expert says that a level of 482 could very well just be a result of some sort of an innocent ingestion. [00:30:12] Speaker 06: I am doing exactly what this court has told Judge Wheeler to do, which is to look at the whole of the evidence and to see whether or not there is a substantial basis for the agency's decision. [00:30:26] Speaker 06: And he found that there was not. [00:30:28] Speaker 06: And with all due respect, I don't think that this case is all that complicated in that sense. [00:30:33] Speaker 06: I think that Judge Wheeler did exactly what this court has asked him to do. [00:30:37] Speaker 01: Mr. Governor, do you have a question? [00:30:39] Speaker 01: Well, my concern with Judge Wheeler's opinion is that he, like you, doesn't trust the elephant in the room, which are the three locks. [00:30:46] Speaker 01: And we all know that judges are impressed by people who don't tell the truth. [00:30:56] Speaker 01: We're very impressed by people that don't tell the truth. [00:30:59] Speaker 01: I'm not saying it favorably. [00:31:01] Speaker 01: When you're listening to testimony, you know this from all sorts of trials, that you lose a case because a judge loses faith in the witness. [00:31:17] Speaker 01: And when you lose faith in the witness, you don't typically lose a little bit of faith, you lose all of it. [00:31:22] Speaker 06: But on the other hand, in this case, Judge, and I think very important... Well, I appreciate that. [00:31:26] Speaker 01: But I mean, the start of the matter is that it's true that your client had a very distinguished service. [00:31:33] Speaker 01: And even as the BCNR is saying, you know, we're sorry about this. [00:31:38] Speaker 01: But the law is the law. [00:31:41] Speaker 01: And his explanation is, someone spiked my drink. [00:31:45] Speaker 01: It is one of the possible explanations. [00:31:47] Speaker 01: Well, the other possible explanation is that [00:31:51] Speaker 01: It got in his blood by an act of God? [00:31:54] Speaker 06: No, the other possible explanation is, as the observer himself said, I didn't see, I don't recall, I don't want to say I didn't see, I want the words in John's mouth. [00:32:02] Speaker 06: He said, I don't recall this particular test. [00:32:05] Speaker 06: Here is what we know. [00:32:06] Speaker 01: I understand that. [00:32:07] Speaker 01: When you went to the BCNR and you challenged that, the BCNR said, we have looked at the testimony on the chain of custody, and the chain of custody was unbroken. [00:32:17] Speaker 01: When they say the chain of custody was unbroken, then it was somebody else's fails. [00:32:24] Speaker 01: Except for the fact that... The chain of custody is pure. [00:32:28] Speaker 01: We don't know that, Judge. [00:32:29] Speaker 01: We know that there has been a decision by the deciding officials that it was. [00:32:34] Speaker 06: The BCNR said that it was. [00:32:36] Speaker 01: And in order for you to win on that one, just like winning on the story, [00:32:41] Speaker 01: You've got to say that there is no substantial evidence to support the chain of custody being pure. [00:32:47] Speaker 01: And you have not made that sure. [00:32:50] Speaker 06: This is where Judge Wheeler's concerns regarding the failure to retest come in. [00:32:57] Speaker 06: Because the decision to retest ultimately is up to the same people who are saying that the sample is pure. [00:33:04] Speaker 06: And that's where you get into the situation. [00:33:06] Speaker 01: That's true. [00:33:06] Speaker 01: That's true. [00:33:06] Speaker 01: Then you have to wait till the end. [00:33:08] Speaker 01: That's why I was asking the question on the other side. [00:33:10] Speaker 01: Because this obviously is a cut point, but the short of the matter is, under the rules, you don't get to question the chain of custody until the end of the game. [00:33:18] Speaker 06: Until the end of the game, by then it's gone. [00:33:20] Speaker 01: Well, I don't know, the sample's gone by then. [00:33:22] Speaker 06: The sample's gone after a year, that's the problem. [00:33:24] Speaker 01: Right, but if you're able to prove that the chain of custody was broken, [00:33:27] Speaker 01: then you've got a really great data point on the scale we're talking about. [00:33:31] Speaker 01: You failed. [00:33:32] Speaker 01: You were unable to break the chain of custody. [00:33:34] Speaker 06: And I'll conclude with this. [00:33:37] Speaker 06: We're getting into the sort of circuitous reasoning of the Navy says we're not going to retest it. [00:33:41] Speaker 01: No, I appreciate all that. [00:33:43] Speaker 01: That's because there is no review until after the fact is to be on set BC&R. [00:33:48] Speaker 01: And we're stuck with that, and they're stuck with that. [00:33:51] Speaker 06: We would not be stuck with that had the Navy agreed to retest the sample. [00:33:56] Speaker 01: Well, that's true, but why is the Navy required to retest the sample if they think the chain of custody is pure? [00:34:02] Speaker 01: Everybody's going to ask to have the chain of the samples retested, right? [00:34:07] Speaker 01: But if you can't make a showing that the chain of custody was imperfect, then you're not going to get a retest. [00:34:15] Speaker 06: I understand, Judge. [00:34:17] Speaker 06: Subject to any further questions from the members of the court, that concludes my proceeding. [00:34:21] Speaker 06: Thank you. [00:34:21] Speaker 06: Thank you, Your Honor. [00:34:33] Speaker 05: Your Honor, I just wanted to address, particularly Judge Clevenger's question. [00:34:37] Speaker 05: My distinguished counsel, Lieutenant Commander Adam Hughes, mentioned to me a few additional avenues that if a circumstance that hypothetically you mentioned were in this circumstance, the denial of your analysis or any other concern with the commanding officer, there's several other avenues that a service member can go to. [00:34:57] Speaker 05: They can file a congressional complaint, Your Honor. [00:35:01] Speaker 05: They can go to the Inspector General's office, and they can also file an Article 138 complaint with the Office of the Secretary of Navy against the commanding officer. [00:35:13] Speaker 05: Unless the court has any additional questions, we would respectfully request that this court reverse the decision of the trial court and remand with instructions to enter judgment in favor of the United States. [00:35:25] Speaker 01: My question is, in the original [00:35:29] Speaker 01: decision, which was to reduce pay, I believe, grade and pay. [00:35:37] Speaker 01: Yes, Your Honor. [00:35:39] Speaker 01: Would that have affected Mr. Wade's retirement? [00:35:44] Speaker 01: Let's assume that he had not chosen to challenge this, if he had taken the initial votes. [00:35:51] Speaker 01: He wasn't being thrown out. [00:35:53] Speaker 05: I think it might have, if he had been retired, because I think there was a reduction in grade as well. [00:35:59] Speaker 05: So if it was reduced in grade and then retired, I believe that would have affected it. [00:36:08] Speaker 03: That's correct, Ron. [00:36:10] Speaker 03: Thank you. [00:36:11] Speaker 03: But the retirement pay is based on some calculation. [00:36:15] Speaker 03: In the executive branch, it used to be a high three. [00:36:20] Speaker 03: So in that respect, is that what you're talking about? [00:36:22] Speaker 05: It is exactly right, Your Honor. [00:36:24] Speaker 05: When a service member is retired at a certain grade, that becomes the basis for their retirement pay. [00:36:30] Speaker 05: And so if you're reduced in pay, as he was, based on non-constitutional punishment, I recommend this. [00:36:36] Speaker 03: Thank you. [00:36:36] Speaker 05: We thank both sides.