[00:00:29] Speaker 01: Councilor Green, you've reserved three minutes of your time for the bill, correct? [00:00:33] Speaker 01: Yes, Your Honor. [00:00:35] Speaker 01: Okay, you may begin when you're ready. [00:00:43] Speaker 04: Thank you, Your Honor. [00:00:44] Speaker 04: May it please the Court. [00:00:46] Speaker 04: Judgment in this matter should be reversed because in rejecting the correction board's recommendation, the Secretary addressed the factors that Mr. Strand believed was [00:00:55] Speaker 04: believed were relevant. [00:00:56] Speaker 04: And after weighing conflicting considerations, she made a discretionary decision that a service member who had been discharged after having been convicted for shooting a gun at his wife and another person was not entitled to six months of service credit and an honorable retirement from the Navy. [00:01:12] Speaker 04: The secretary followed all applicable procedures, and her decision complies with the law. [00:01:16] Speaker 04: The trial court therefore erred in setting that decision aside and entering judgment for Mr. Strand. [00:01:23] Speaker 04: I, of course, want to spend most of my time talking about the merits of our appeal. [00:01:26] Speaker 04: But I recognize that Mr. Strand has a motion to strike pending. [00:01:30] Speaker 04: Unless the court would like to hear that now, I'd like to. [00:01:33] Speaker 01: No, let's just finish with that. [00:01:34] Speaker 01: We'll respond to your motion to strike in whatever opinion comes from the court. [00:01:40] Speaker 01: So we'll let the parties go ahead and make their arguments. [00:01:42] Speaker 01: OK, sure. [00:01:43] Speaker 01: Thank you, Your Honor. [00:01:44] Speaker 01: How many events were there that are misconduct? [00:01:47] Speaker 01: Was there a 92 event and a 93 event? [00:01:51] Speaker 01: Yes, Your Honor. [00:01:52] Speaker 01: Two separate events? [00:01:53] Speaker 04: They were, Your Honor. [00:01:55] Speaker 04: The Secretary's decision makes clear that the 1992 non-judicial punishment was one event, and whatever the event was that resulted in the counseling entry of 1993 was a separate event. [00:02:12] Speaker 04: OK. [00:02:14] Speaker 04: So I think there are really three key reasons why the secretary's decision should be upheld. [00:02:20] Speaker 04: As I mentioned, the secretary considered all the factors that Mr. Strand identified as relevant to her inquiry. [00:02:25] Speaker 04: Mr. Strand's letter that he provided during the remand mentioned the Navy Corps values, his service record, his convictions, other cases. [00:02:36] Speaker 04: And the secretary considered all of those factors. [00:02:40] Speaker 04: Mr. Strand has not identified anything that the secretary didn't consider, nor has he identified an error of fact or law in his records. [00:02:50] Speaker 04: This is a pure, equitable decision. [00:02:51] Speaker 04: It was a judgment call that the secretary was authorized by this court's precedent. [00:02:55] Speaker 04: What was the 1993 event? [00:02:58] Speaker 04: It's unclear, Your Honor. [00:02:59] Speaker 04: It involved abuse of alcohol. [00:03:02] Speaker 04: It's not clear. [00:03:03] Speaker 04: The record does not describe the event [00:03:06] Speaker 04: It only describes sort of the cause of the event. [00:03:08] Speaker 04: It was an alcohol-related incident, I believe. [00:03:12] Speaker 04: Or I'm sorry, excuse me, I'm confusing the 1992 event, the 93 event. [00:03:16] Speaker 04: The 93 event evidently involved some issue with Mr. Strand being able to control his anger, because the counseling that was suggested was anger management counseling. [00:03:29] Speaker 04: But it's unclear whether it was... You're confusing that with the 92 event? [00:03:32] Speaker 04: When I was answering your question, I confused that with the 92. [00:03:35] Speaker 04: The 92 event stemmed from the overindulgence of alcohol. [00:03:39] Speaker 00: But the 1993 counseling is not the result of the 1992 event. [00:03:45] Speaker 04: Correct. [00:03:46] Speaker 04: The secretary's remand decision explains that. [00:03:48] Speaker 04: What does it say that? [00:03:52] Speaker 04: I will. [00:03:57] Speaker 04: It is page [00:04:02] Speaker 04: 283 of the joint appendix the second whole paragraph down the record shows that in 1992 petitioner was counseled for abuse of alcohol which resulted in disorderly conduct and then in the next sentence it starts with despite four lines down so despite the Navy's attempt to allow the petitioner the opportunity to rehabilitate himself while in the naval service petitioner again engaged in misconduct in 1993 [00:04:31] Speaker 01: Yes, I I it seems to me this sector believes that there was two separate incidents But I don't I'm not sure because I don't see where else there's a description of what the 93 event was If the 1993 event is described on page 118 of the appendix that's the counseling entry from September and [00:05:00] Speaker 04: 1993. [00:05:05] Speaker 04: And really all we have to go on here, Your Honor, is the second paragraph. [00:05:11] Speaker 04: The following are recommendations for corrective action and rolling courses offered by the Navy Family Services Center, such as building effective anger management skills or stress management skills. [00:05:21] Speaker 01: It doesn't say anything about the 93 event. [00:05:25] Speaker 04: Your Honor, this counseling entry is dated September [00:05:31] Speaker 01: 20 1993 and then the 1992 event is described Because the way this the record was that event we know what that was and and we know you know what occurred and the record is clear on that I Don't see anything in the record that has a same clarity with respect to the 93 event I Think that that can partially be attributed to [00:05:59] Speaker 04: the types of disciplinary entries we're talking about here. [00:06:03] Speaker 04: At 1992, it was a nonjudicial punishment. [00:06:06] Speaker 04: In 1993, it was simply a warning, or merely a warning. [00:06:12] Speaker 04: It was no punishment, so to speak. [00:06:17] Speaker 04: Apparently, there was some incident. [00:06:21] Speaker 04: But I think that the point, the secretary referred to these two entries [00:06:29] Speaker 04: simply to illustrate that Mr. Strand was on notice that he needed to abide by the Navy's standards of conduct. [00:06:39] Speaker 00: I'm sorry. [00:06:39] Speaker 00: I'm going to go back to this page 118 for one minute. [00:06:42] Speaker 00: That first paragraph does refer to the 1992 effect, right? [00:06:44] Speaker 00: Correct. [00:06:45] Speaker 00: OK. [00:06:46] Speaker 00: All right. [00:06:48] Speaker 00: So you're saying this counseling in 1993 isn't saying that the 1992 event is the only event on which the counseling is based. [00:06:56] Speaker 00: I mean, it reads as if it is, but I can't tell. [00:06:59] Speaker 04: I read that as saying you have this in your record. [00:07:03] Speaker 04: This was already existing in your record. [00:07:05] Speaker 04: This is an additional counseling that we are... Well, it does. [00:07:09] Speaker 01: And it says violation of, and it goes on talking about the military articles, and as evidenced by the commanding officer's MJP of February 92. [00:07:21] Speaker 01: And it goes on with other identification aspects of the service record related to the 92 event. [00:07:29] Speaker 01: The next paragraph, it says, so here's your corrective action. [00:07:34] Speaker 01: And I don't see anything similar, any identification in Disha with respect to the 93 event that we see for 92. [00:07:45] Speaker 01: And you're saying it happened. [00:07:47] Speaker 01: But it's not clear what happened. [00:07:49] Speaker 04: I would defer to the secretary on this. [00:07:51] Speaker 04: I mean, she's the expert on this. [00:07:53] Speaker 01: The secretary's not here. [00:07:53] Speaker 01: You're here on behalf of the... You're here on behalf of the secretary, correct? [00:07:57] Speaker 01: Correct. [00:07:58] Speaker 04: Well, it's your question to answer, sir. [00:08:00] Speaker 04: Well, I don't have any reason to doubt the secretary's characterization of these as being two separate events. [00:08:04] Speaker 04: Well, we're looking at evidence. [00:08:06] Speaker 04: And as I read these records, I believe they describe two different events. [00:08:12] Speaker 04: One was an alcohol-related incident, and one stemmed from some [00:08:16] Speaker 04: something involving inability to control his anger or stress. [00:08:22] Speaker 04: For us, the critical point isn't so much work. [00:08:25] Speaker 01: The first event that involved a bar room fight. [00:08:30] Speaker 01: Perhaps. [00:08:31] Speaker 01: OK. [00:08:32] Speaker 01: Why wouldn't the reference to anger control or management of anger refer to the 92 events? [00:08:45] Speaker 04: Well, it seems that the 92 event stemmed from the overindulgence of alcohol. [00:08:52] Speaker 04: You don't see in the 1993 counseling entry any reference to alcohol. [00:08:56] Speaker 04: I'm not disputing that those two things can exist simultaneously. [00:09:00] Speaker 01: It could have, right? [00:09:01] Speaker 01: Well, we don't know. [00:09:03] Speaker 01: Correct. [00:09:03] Speaker 01: Because we don't know what happened in that 93. [00:09:08] Speaker 01: That's correct. [00:09:08] Speaker 01: The record's not clear as to that incident. [00:09:12] Speaker 04: That's correct, Your Honor. [00:09:13] Speaker 04: And I think the important point is that, [00:09:15] Speaker 04: 1992 and again in 1993, Mr. Strand was warned about the fact that he needed to follow the Navy or needed to meet the Navy's standards of conduct. [00:09:27] Speaker 04: And those always included honor, courage, and commitment even before they were designated as the core values, but certainly after they were designated as the core values. [00:09:36] Speaker 04: He was evaluated based on his adherence to those values, and he recognized in 2008 that he violated those core values. [00:09:46] Speaker 04: why the secretary referred to these two entries. [00:09:49] Speaker 03: It wasn't to... Do you think it would have mattered to the secretary if there were two early incidents or one early incident? [00:09:58] Speaker 04: You basically just summed up exactly what I was trying to say. [00:10:01] Speaker 04: I don't think that it matters. [00:10:02] Speaker 04: What matters is that he was warned twice. [00:10:04] Speaker 03: I mean, the reason he's not getting his six months' credit is because he shot at his wife and served, what, like three months, three years in jail for it? [00:10:13] Speaker 04: Correct, Your Honor. [00:10:13] Speaker 04: I mean, that's one of the reasons. [00:10:16] Speaker 04: I mean, the main reason, certainly. [00:10:19] Speaker 04: And so you're exactly right, Your Honor. [00:10:23] Speaker 04: It wouldn't matter whether there were one or two. [00:10:25] Speaker 04: In our view, it's the fact that he was warned that there would be consequences for failing to meet these standards. [00:10:36] Speaker 01: But we don't know that. [00:10:37] Speaker 01: We don't know if it would matter to the Secretary or not. [00:10:42] Speaker 01: Let's say this went back and there was only one [00:10:44] Speaker 01: She looks at the record, or the secretary looks at the record again, says, oh, gee, there was only one event. [00:10:50] Speaker 01: That does impact the core value analysis. [00:10:54] Speaker 01: It does impact my statements, again, engaged in misconduct, repeated notices, history of performance of conduct. [00:11:03] Speaker 04: Well, I will say, and maybe I should have. [00:11:04] Speaker 01: It's possible that the secretary could say, well, I was wrong the first time. [00:11:10] Speaker 04: Well, I will say that. [00:11:12] Speaker 04: Mr. Strand has never challenged that these were two separate incidents. [00:11:15] Speaker 04: Maybe I should have mentioned that at the beginning. [00:11:17] Speaker 04: But if you look through the secretary's remand decision, if she makes clear, the key point is that he was warned twice. [00:11:25] Speaker 04: Whether it was one event or two events, he was warned twice about his need to meet these standards of conduct. [00:11:32] Speaker 03: This isn't a case like a regular civilian removal case where [00:11:37] Speaker 03: In order to justify the removal, they said, you did this, this, and this. [00:11:41] Speaker 03: If you'd only done one of these things, we may not have removed you. [00:11:46] Speaker 03: The secretary's letter on remand, at least, was pretty clear that the serious charge here that is why she's not granting no correct relief is committing a felony and serving jail time, and that she relied on these other incidents to give notice that you shouldn't do that. [00:12:03] Speaker 03: I mean, honestly, I don't know why anybody needs notice, particularly if you're serving in the military, that you shouldn't shoot at somebody and commit a felony. [00:12:13] Speaker 03: But at least she pointed that out, that there was at least one instance in the record where he was given notice about not committing misconduct. [00:12:23] Speaker 04: That's correct, Your Honor. [00:12:24] Speaker 04: I completely agree with what you just said. [00:12:27] Speaker 04: And it is the convictions. [00:12:30] Speaker 04: I mean, I think she makes clear there at the end in the last paragraph [00:12:33] Speaker 04: But ultimately, it came down to the favorable factors in the record, in her mind, didn't outweigh the impact of this criminal conviction. [00:12:43] Speaker 04: And as we pointed out in our brief, in the Cedillo case, it's something that this court has said it cannot second guess. [00:12:51] Speaker 04: OK. [00:12:53] Speaker 04: So I have your interview. [00:12:54] Speaker 04: Thank you, Your Honor. [00:13:09] Speaker 02: Good morning, Your Honors. [00:13:09] Speaker 02: May it please the Court, Lucas Hambach on behalf of Walter Strand III. [00:13:13] Speaker 02: With me today is Mr. Jeffrey Shio. [00:13:16] Speaker 02: Your Honors, we've stated in the papers the reason that the Secretary's decision is arbitrary and capricious, and the papers state our arguments very clearly. [00:13:25] Speaker 02: What Mr. Green just said to you at the start of his argument is really the important point here. [00:13:31] Speaker 02: The Navy is seeking to create a carve-out of unreviewable and absolute discretion that it does not have under the current statute. [00:13:38] Speaker 02: It's seeking to do that in two ways by saying that it can always reverse the board as it sees fit and by cloaking itself in the core values and saying that the courts don't have any power to review these decisions. [00:13:50] Speaker 03: Well, sure, we have power to review it for arbitrary and capricious or the like. [00:13:54] Speaker 03: I don't think the government is saying it's unrevealable altogether. [00:13:56] Speaker 03: It's just that the secretary [00:13:59] Speaker 03: has statutory authority and regulatory authority to override the board if he or she gives good reasons, and we have to review those reasons with a deferential standard. [00:14:09] Speaker 02: That's correct, Your Honor. [00:14:10] Speaker 02: In fact, the last time we were here, you and I had a colloquy on exactly that point. [00:14:15] Speaker 02: But to answer, [00:14:16] Speaker 02: your honor's concerns, it's important to look at what the statute actually says. [00:14:20] Speaker 02: And in the Navy, in their reply brief on page eight, they point to some of the case law in this area where it talks about when the AGC can and cannot overrule the board. [00:14:29] Speaker 02: And they cite DICTA that's in the Weiss case, which is from 1969, if I remember correctly. [00:14:35] Speaker 02: And in Weiss, they point out that the Weiss court backed off of a hard and fast rule that says that the AGC can never overrule the board. [00:14:44] Speaker 02: And in fact, this court has more recently reaffirmed that in cases like Strickland. [00:14:48] Speaker 02: It said that that's not the rule. [00:14:50] Speaker 02: It's not a bright line that you can never do it. [00:14:52] Speaker 02: But what Weiss says is that the application is controversial, and you have to look at the facts. [00:14:57] Speaker 02: And that's what this court has always done. [00:15:00] Speaker 02: What the Navy ignores in making their arguments is that proper, the case that established that rule in the late 50s, very close to the establishment of these boards, was a case about disputed evidence and the way that the board weighted it versus the way that the AGC weighted it. [00:15:15] Speaker 02: And the court found that it was improper for the AGC to weight the evidence differently. [00:15:20] Speaker 02: And if you look at the proper case, there's a dissent that talks about this. [00:15:23] Speaker 02: And they mentioned that there was also a dissent at why it wasn't the BCNR. [00:15:27] Speaker 02: It was a different board. [00:15:28] Speaker 02: But there was a dissent on the board. [00:15:30] Speaker 02: And the agency had just reweighted the opinion. [00:15:32] Speaker 02: So it's not the case that just because there's a difference of opinion about how this should be weighted that the court can't review it either. [00:15:39] Speaker 03: So what do you think the standard is that allows the secretary to overrule a board determination? [00:15:45] Speaker 03: And where is that in the statute or any of the regulations? [00:15:47] Speaker 02: The first place to find it, Your Honor, is 1552A2. [00:15:50] Speaker 02: And if you look at that, Your Honor, that provision expressly carves out some cases where the secretary concerned is not required to act through a board. [00:16:03] Speaker 02: Those cases are cases where enlisted members are eligible for promotions or reenlistments. [00:16:09] Speaker 02: Mr. Strand's case doesn't fall there. [00:16:11] Speaker 02: Everything else falls under 1552A1, where such corrections shall be made by the secretary acting through boards of civilians. [00:16:20] Speaker 02: And that's consistent with the language in cases like Herzog, Proper, Weiss, Lanningham, cases that have followed down through the decades. [00:16:28] Speaker 02: And as to your own description. [00:16:30] Speaker 03: But where do you go from there? [00:16:32] Speaker 03: Sure. [00:16:34] Speaker 03: It's not in the group of the cases that the secretary can act without a board altogether. [00:16:38] Speaker 03: It's a case where the secretary will generally act through the board. [00:16:41] Speaker 03: But I think you've conceded that the secretary can, at least in some circumstances, overrule the board. [00:16:49] Speaker 03: Is there anything in the statute that specifies which of those circumstances are? [00:16:52] Speaker 02: No, Your Honor. [00:16:53] Speaker 02: And it's a bright line that this Court has wisely refused to draw. [00:16:58] Speaker 02: And I think, to answer your question, this goes back to the last colloquy we had. [00:17:03] Speaker 03: What is the standard for determining whether the secretary's properly exercised his or her discretion? [00:17:11] Speaker 03: Is it not just looking at the secretary's decision, looking at the reasons there, and determining whether they're arbitrary or contrary to law or not supported by substantial evidence? [00:17:21] Speaker 02: It is that standard, Your Honor. [00:17:23] Speaker 02: And admittedly, this is from DICTA in the cases. [00:17:26] Speaker 02: The cases have indicated that one of the reasons you can do that is if the secretary points to additional evidence that the board didn't consider. [00:17:32] Speaker 02: And I think we had an exchange on this the last time we were up here. [00:17:37] Speaker 03: This incident, the incidents that... I get what you're trying to do, but... [00:17:41] Speaker 03: That's not in our normal arbitrary and capricious review, is it? [00:17:45] Speaker 03: I mean, the secretary, if they're entitled to take another look and there's nothing statutorily that restricts them from new evidence or new arguments or the like, then they can look at the same evidence and say, you just blew it. [00:17:57] Speaker 03: I think you got it wrong. [00:17:59] Speaker 03: This guy doesn't deserve to have his records corrected. [00:18:03] Speaker 03: And here's the reason. [00:18:04] Speaker 03: And as long as they're not arbitrary, why isn't that within the secretary's authority? [00:18:09] Speaker 03: as long as they're not arbitrary. [00:18:11] Speaker 03: That's the answer. [00:18:13] Speaker 03: But you're trying to suggest that there's something kind of legally wrong about it here. [00:18:17] Speaker 03: Why are you not just directing why you think the secretary's decision here is arbitrary? [00:18:22] Speaker 03: Well, the secretary's decision here is, I think we've talked about, this guy shot at his wife, committed a felony, was convicted of a felony, [00:18:30] Speaker 03: and served jail time for it, which prevented him from serving out his 20 years. [00:18:34] Speaker 03: That's what she relied on. [00:18:35] Speaker 03: She relied on the fact that he'd been notified of he shouldn't do things like this a long time ago. [00:18:42] Speaker 03: What's arbitrary about that? [00:18:44] Speaker 02: Well, the Navy's regulations for the board say that consideration of that incident and the fact that the Navy reached the right decision with respect to that incident, discharging Mr. Strand administratively, [00:18:57] Speaker 02: should not, it cannot be the sole basis upon which he's denied relief. [00:19:02] Speaker 02: We've cited that in our papers. [00:19:03] Speaker 02: It's 32 CFR 723.3 E2. [00:19:06] Speaker 02: And in arguments below, I'm sorry, in its papers below, specifically in its response to our MJAR, which is docket number 86 below page 7, the Navy conceded we interpreted that statute correctly. [00:19:21] Speaker 02: What the Navy has said is that that statute doesn't bind the secretary, it only binds the board. [00:19:27] Speaker 02: Here, Your Honor, the statute at 1552A3 says, corrections under this section shall be made under procedures established by the secretary concerned. [00:19:36] Speaker 02: It's not credible for the secretary where the statute says that the secretary... I'm not sure I follow this line of argument. [00:19:41] Speaker 03: Are you saying that because he was administratively discharged from [00:19:46] Speaker 03: from the Navy because of this felony conviction in jail time, that they can't further use that as a basis for not giving him relief under the correction board decision? [00:19:57] Speaker 02: I'm saying it can't be the sole basis, Your Honor. [00:20:00] Speaker 02: And the reason for that goes to the very heart of why Congress established these boards in the first place, and you see that in the language improper. [00:20:08] Speaker 02: Proper talks a little bit about the legislative history and we've also cited it in our papers, I believe pages 18 through 20, talk a little bit about the creation of these boards. [00:20:17] Speaker 02: The boards were created in the wake of World War II when Congress realized that as part of the war effort mobilization, [00:20:23] Speaker 02: Lots of people got sucked into the military justice system, and that system has to be harsh in order for the military to function. [00:20:30] Speaker 02: But when people exit that system with black marks in their record that prevent them from reintegrating into civilian life, the way that they've been treated doesn't always align with civilian notions about due process, fairness, equity. [00:20:43] Speaker 02: And so the Congress carefully created the boards and directed that these decisions be made by civilians. [00:20:50] Speaker 02: In fact, the proper court specifically noted that. [00:20:53] Speaker 02: It said, neither the act itself nor the legislative history warrant such an interpretation. [00:20:57] Speaker 02: This is in response to an argument similar here that these are just advisory opinions that can be rejected. [00:21:03] Speaker 02: Proper court said, since the errors were injustices, [00:21:06] Speaker 02: which might require correction were originally made by the military. [00:21:09] Speaker 02: Congress made it manifest that the correction of those errors and injustices was to be in the hands of civilians. [00:21:15] Speaker 02: And so the reason, Your Honor, that you can't just look at the one act that he was punished for, that he got right, is this is a holistic review that the board engages in based on not just a split second mistake, [00:21:29] Speaker 02: One time, but a 30 year period, 20 years of which is service to this nation. [00:21:34] Speaker 02: 11 and almost 11 and a half years of it deployed supporting three war efforts where everything in the record shows that his fit reps are stellar. [00:21:41] Speaker 02: Everybody says he was one of the best sailors that served in the Navy up until this incident. [00:21:46] Speaker 02: And then now here we are 10 years later. [00:21:49] Speaker 02: where he earned an early release from prison. [00:21:51] Speaker 02: He's putting his life back together. [00:21:52] Speaker 02: He's reconciled with the people that he's hurt. [00:21:55] Speaker 02: The board is answering the question, has he suffered enough for his sole indiscretion? [00:21:59] Speaker 02: That's what they say in their decision. [00:22:01] Speaker 02: And the reason that the rule exists in 32 CFR 723.3 is because if you ignore all of that other stuff, you're just defaulting back to the harsh military system that Congress sought to get away from in these cases. [00:22:17] Speaker 02: That's the reason, Your Honor, in a more holistic view of this case, that Mr. Strand should be granted relief, and I do want to caution here. [00:22:28] Speaker 02: I think the Navy has invited this court to feel that it is going to issue a ruling if it rules in favor of Mr. Strand that's going to have some broad and detrimental impact to the Navy's personnel management or its ability to apply its core values or define what they are. [00:22:46] Speaker 02: That's not what this court is being asked to do at all. [00:22:49] Speaker 02: Mr. Strand's case can be decided on his unique merits. [00:22:52] Speaker 02: And indeed, that's what the Navy's regulations require. [00:22:55] Speaker 02: And that's all that should be done. [00:22:57] Speaker 02: You're not asked to define courage for the Navy. [00:23:00] Speaker 02: You're just asked to say, whatever courage means, you can't apply it to conduct in 1992 that predates the establishment of a core value. [00:23:10] Speaker 02: Whatever commitment means, you can't counsel a sailor for an alcohol incident. [00:23:16] Speaker 02: And then assign him high proficiency in conduct marks, award him a good conduct medal for the same period, re-enlist him for 20 years, and at the end say, sorry, you had an alcohol incident when you were 19. [00:23:28] Speaker 02: Now you're going to be denied a retirement because you violated the core value. [00:23:32] Speaker 02: It doesn't matter what this court thinks about honor. [00:23:36] Speaker 02: What matters here is that the secretary can't refer to military criminal appeals cases that are procedurally inapposite, one of which is from a service that doesn't even have the same core values. [00:23:48] Speaker 01: So we remanded before. [00:23:49] Speaker 01: This court remanded the case on the basis that the secretary's decision was not supported by substantial evidence, correct? [00:23:56] Speaker 01: That's correct, Your Honor. [00:23:57] Speaker 01: Are we looking at the same arguments that were made in the prior case? [00:24:04] Speaker 01: You are, Your Honor. [00:24:05] Speaker 01: What about the core value arguments? [00:24:10] Speaker 02: Are they different or the same? [00:24:11] Speaker 02: So the Navy made the argument about core values because its prior decision had a one-line treatment [00:24:18] Speaker 02: It said that his conduct was inconsistent with core values and practice in similar cases. [00:24:23] Speaker 02: Throughout the arguments the last time this case came up through the courts, the Navy expounded on that a bit, and a lot of what they said is similar to what they now say, though they give it a more fulsome treatment. [00:24:34] Speaker 01: So we found a lack of substantial evidence with respect to the finding of domestic violence, correct? [00:24:41] Speaker 02: That is correct, Your Honor. [00:24:42] Speaker 02: You found that that was their second rationale. [00:24:45] Speaker 01: Now, you heard my questions before to counsel about a separate event. [00:24:49] Speaker 01: And it seems to me that the 94 event, 93 event, had it occurred, I don't know. [00:24:55] Speaker 01: It seems to me that's the one that deals with domestic violence. [00:24:59] Speaker 02: Your Honor, I think that it's not clear from the record. [00:25:03] Speaker 02: My understanding is that it was an alcohol-related incident that was disorderly conduct. [00:25:08] Speaker 00: Do you agree it was a separate incident from the 1992 incident? [00:25:11] Speaker 00: No, Your Honor. [00:25:12] Speaker 02: Our position is it's the same. [00:25:13] Speaker 02: And in fact, if you look at the 1993 incident, it references the initial counseling that you see in the record. [00:25:22] Speaker 02: It references it right there in the first paragraph. [00:25:25] Speaker 02: It says it was advanced by 27 February 1992. [00:25:28] Speaker 01: The record suggests that this is just a follow-up warning and also the reminder you've got to get counseling for alcohol treatment. [00:25:38] Speaker 02: That's exactly right, Your Honor. [00:25:39] Speaker 02: It's a continuing course to make sure that a great sailor stays on the right path and doesn't mess up again. [00:25:46] Speaker 02: That's all it is. [00:25:47] Speaker 03: And your honor wait you think that that's like that 93 letter is just some kind of recommendation to keep getting counseling and stuff like that Well, I think your honor look at that. [00:25:57] Speaker 03: I mean when when military people get these kinds of counseling letters in their record It's not just because somebody's saying oh keep up, you know with the work this is actually a [00:26:11] Speaker 03: detrimental notice in their record. [00:26:13] Speaker 02: I agree, Your Honor. [00:26:15] Speaker 02: And this is a little out of time. [00:26:17] Speaker 03: Well, you were attempting to characterize it as a follow-on to just keep getting counseling from the 92 event. [00:26:25] Speaker 03: And that doesn't seem like something that would happen in the military. [00:26:28] Speaker 03: I agree. [00:26:29] Speaker 03: The 93 notice itself is very, very confusing. [00:26:32] Speaker 03: But it doesn't necessarily seem to me that it's clearly tied to the 92 event. [00:26:41] Speaker 03: You had a problem in 92. [00:26:43] Speaker 03: You got some kind of reprimand or punishment for it or whatever they got. [00:26:46] Speaker 03: And then you did something else in 93, and you've got to get some counseling for this. [00:26:53] Speaker 02: We don't understand it that way, Your Honor. [00:26:56] Speaker 02: We understand it to be one incident where there have been two counselings. [00:26:59] Speaker 02: And the reasons for that, we don't know. [00:27:02] Speaker 02: But assuming that Your Honor is right, the test here is whether the AGC's decision nearly 25 years later [00:27:11] Speaker 02: to look back to these two things that ultimately, in Mr. Strand's career, proved to be very minor. [00:27:16] Speaker 03: I mean, the thrust of your argument, basically, is when this guy was a young kid, he did it. [00:27:24] Speaker 03: Even if it's two incidents, he had two incidents of inappropriate conduct. [00:27:30] Speaker 03: It got appropriately resolved. [00:27:32] Speaker 03: And then almost 20 years later, [00:27:35] Speaker 03: You know, he committed a much more serious act and served jail time for it. [00:27:39] Speaker 03: But the Corrections Board got it right when they said that one serious incident shouldn't, you know, keep him from getting a retirement. [00:27:49] Speaker 02: That's correct, Your Honor, that essentially the board looked at the totality of his service and the secretary then. [00:27:57] Speaker 03: looked at it again and said, I don't agree. [00:28:00] Speaker 03: I think the totality of the circumstances here do justify not giving him that service credit. [00:28:06] Speaker 02: Your Honor, I see I'm out of time. [00:28:08] Speaker 03: Yeah, but why is it arbitrary for the secretary to reach a different conclusion? [00:28:12] Speaker 03: Would it have been arbitrary for the board to reach that conclusion in the first instance? [00:28:17] Speaker 02: I don't know, because the board didn't reach that conclusion. [00:28:20] Speaker 02: Hypothetically, if it did, would that have been arbitrary? [00:28:24] Speaker 02: It could have been, Your Honor, if we had a decision like this where we apply core values to conduct that predates them, where we look at cases like we're not supposed to. [00:28:33] Speaker 02: I mean, there is an NDRB regulation that says you're not supposed to look at other cases to judge Mr. Strand's case. [00:28:39] Speaker 02: So, and I'm out of time. [00:28:41] Speaker 01: Just to make sure that I understand the record, too. [00:28:45] Speaker 01: After the 92 and then the 93, if there was another event, those were addressed later when Mr. Strand was promoted, right, to pay [00:29:01] Speaker 01: to a petty officer, chief petty officer. [00:29:04] Speaker 01: He was a petty officer. [00:29:05] Speaker 01: Is a chief petty officer pretty high in the military? [00:29:09] Speaker 02: Yes, your honor, and I can't remember what his exact rate was, but he was a senior ranking enlisted man by the time he got out. [00:29:15] Speaker 01: Yeah, I think that's as high as you can get as an enlisted man. [00:29:18] Speaker 02: Yeah, and awarded numerous good conduct medals and recommended for early promotions and all of that. [00:29:24] Speaker 02: You're correct. [00:29:24] Speaker 01: And those were accounted for. [00:29:26] Speaker 01: Did the secretary bring those up [00:29:28] Speaker 02: The record itself and the commendations in the medals that he received in she gives it a very brief treatment I think that the the actual treatment of it is only a couple of sentences where she acknowledges his his long record of service Looking for the copy that I have of her decision [00:29:46] Speaker 01: It gets towards the end, too. [00:29:47] Speaker 01: It is. [00:29:48] Speaker 02: It's right at the end of the decision, Your Honor. [00:29:50] Speaker 02: Most of the seven pages are about the incident and an argument that the Navy got it right to discharge Mr. Strand, which is... They upgraded his discharge to honorable discharge. [00:30:00] Speaker 02: Well, and that's another problem that makes this arbitrary. [00:30:02] Speaker 02: The Navy has already upgraded the characterization of his discharge to honorable under general or general under honorable conditions. [00:30:09] Speaker 02: If the Navy sees fit to say that his core values aren't violative enough of the standards to prevent him having a discharge that's characterized as honorable, why should he be denied? [00:30:19] Speaker 02: What's inconsistent about that? [00:30:21] Speaker 01: And that's not on the field here, the upgrade. [00:30:25] Speaker 01: Oh, no, Your Honor. [00:30:26] Speaker 02: In fact, that can't be. [00:30:26] Speaker 03: That seems like the kind of quintessential discretionary decision that should be left to the Secretary. [00:30:35] Speaker 03: An upgrade to a general under honorable is good enough to allow him to have paper to better get a job, but he's still not entitled to full relief. [00:30:45] Speaker 03: I mean, where does a court come in second guessing that on, I know you agree that it's arbitrary and capricious, but that sounds pretty much like arguing that we should take our own de novo look at this and say, well, they should have just gone all the way. [00:30:59] Speaker 02: Your Honor, I think that the shortest answer to your question is it goes back to 732.3E2. [00:31:03] Speaker 02: And the fact that really all the secretaries focused on is the initial incident. [00:31:09] Speaker 02: And that says that that can't be the sole basis. [00:31:12] Speaker 00: And Your Honor, did you have a question? [00:31:13] Speaker 00: Yes, thank you. [00:31:14] Speaker 00: I just wanted to apologize. [00:31:16] Speaker 00: I'm going over my time. [00:31:16] Speaker 00: Oh, we've got a lot of questions for you. [00:31:18] Speaker 00: So thank you. [00:31:20] Speaker 00: My question is, you were talking earlier in your brief around page 32. [00:31:25] Speaker 00: It talks about procedural issues. [00:31:29] Speaker 00: that it was procedurally improper for the retired military officer to recommend review of the Board of Corrections decision to the Secretary of the Navy. [00:31:37] Speaker 00: And I just want to know, was that argument made in the first appeal to our court? [00:31:44] Speaker 02: In the first appeal to this court? [00:31:46] Speaker 02: Yes. [00:31:46] Speaker 02: I think it was, Your Honor, although, well, let me rephrase that. [00:31:52] Speaker 02: It was made the first time that this case came up. [00:31:56] Speaker 02: I cannot recall off the top of my head whether that was specifically appealed because I don't believe [00:32:02] Speaker 00: I don't recall seeing it in the first appeal. [00:32:06] Speaker 00: And of course, if it weren't raised in the first appeal, it wouldn't be proper to be raising it now. [00:32:12] Speaker 00: It would have had to have been preserved in the first appeal, right? [00:32:15] Speaker 02: Well, no, Your Honor, because you can only waive arguments that are squarely in dispute. [00:32:20] Speaker 02: And the problem here is the reason this got waived [00:32:23] Speaker 02: or raised, I'm sorry, is that the Navy argued this for the first time in front of the court as a defense of why the secretary was allowed to re-examine the board's decision. [00:32:34] Speaker 02: The Navy had never previously raised that. [00:32:36] Speaker 00: But if you hadn't challenged it, the case was before the board corrections. [00:32:40] Speaker 00: Then they refer it to the secretary of the Navy. [00:32:43] Speaker 00: The secretary of the Navy makes a decision. [00:32:45] Speaker 00: We review that decision. [00:32:46] Speaker 00: We send it down. [00:32:48] Speaker 00: And then on the second appeal coming back to us, you complain about that. [00:32:52] Speaker 00: the secretary of the Navy's involvement in the case, it seems to me that that's been waived, regardless of what the government has argued. [00:33:00] Speaker 02: Well, no, Your Honor. [00:33:00] Speaker 02: So what we argued previously was that the secretary didn't have absolute discretion to reject the board's decision. [00:33:09] Speaker 02: Cases like Herzog-Weiss and Propper [00:33:11] Speaker 02: have that issue about a military officer making that recommendation. [00:33:16] Speaker 02: And we cited all those cases before, though the focus wasn't on the fact that Mr. O'Neill was a military officer because the Navy didn't argue it that way. [00:33:25] Speaker 02: The way that they argued it was they had discretion and we argued, no, you don't because of the statute. [00:33:31] Speaker 02: It wasn't until we came up this time [00:33:34] Speaker 02: in the Navy's briefs when they said, the way it got framed up was there was a question as to why the secretary had revisited the decision. [00:33:44] Speaker 02: And they pointed to the cover note that Mr. O'Neill affixed to the decision and said, this invited us. [00:33:52] Speaker 02: So it wasn't a case where the board said it had made a decision. [00:33:55] Speaker 02: The board invited us or invited the AGC to second guess it. [00:33:59] Speaker 02: And it was at that point that we looked at it and said, well, wait a second. [00:34:03] Speaker 02: Mr. O'Neill is a retired military officer, and you're squarely in this law that says that that's improper. [00:34:11] Speaker 02: So we would say we haven't waived it, because it was just never an argument that was before the court the first time it came up. [00:34:20] Speaker 02: The facts were certainly there, but it wasn't the way that the Navy was arguing its defenses. [00:34:25] Speaker 01: And I apologize again. [00:34:26] Speaker 01: That's all right. [00:34:28] Speaker 01: OK. [00:34:29] Speaker 01: Let's, Mr. Green, we have three minutes of rebuttal, but feel free to take a couple minutes more if you need to for it to be complete. [00:34:41] Speaker 04: Great. [00:34:41] Speaker 04: Thank you, Your Honor. [00:34:42] Speaker 04: I believe I just have three points that I want to make. [00:34:46] Speaker 04: That argument, Judge Dole, has been waived. [00:34:50] Speaker 04: The declaration that Mr. Strand relied on was filed publicly in 2014. [00:34:56] Speaker 04: This case wasn't initiated until 2015. [00:34:58] Speaker 04: Mr. Strand has relied on Herzog, Weiss, and Proper throughout this litigation, both times before the trial court and now, both times before this court. [00:35:09] Speaker 04: And it never raised this issue of Mr. O'Neill's status as a military officer until, I believe, it was his reply brief in Strand 3. [00:35:19] Speaker 04: But ultimately, Your Honor, that Mr. O'Neill status as a former military officer is sort of irrelevant because the secretary doesn't say she even relied on his note. [00:35:31] Speaker 04: He was a civilian. [00:35:33] Speaker 04: The note just said, hey, look, this is why we're sending this up to you to take a look at it. [00:35:37] Speaker 04: She never says in her remand decision, well, Mr. O'Neill said the seriousness of the fences should cause me to look at this. [00:35:43] Speaker 04: She would have looked at that anyway. [00:35:45] Speaker 04: She would have looked at the core values anyway because Mr. Strand raised them in his remand. [00:35:49] Speaker 04: So the note really was our way of saying, hey, look, the BCNR itself wasn't even sure that this relief was appropriate in this case. [00:35:58] Speaker 04: But there's no procedural error in that note being in the record. [00:36:03] Speaker 04: And even if it was, it would be harmless, because Mr. Strands had multiple opportunities to respond to it. [00:36:09] Speaker 04: The second point I want to make is Mr. Strand characterized [00:36:12] Speaker 04: The Navy's, the correction board's decision is holistic, I believe is the term. [00:36:18] Speaker 04: We would take the opposite view. [00:36:19] Speaker 04: It almost seems like the BCNR was in a vacuum when it made its decision. [00:36:24] Speaker 04: The correction board states that Mr. Strand served without disciplinary incident. [00:36:28] Speaker 04: That's a factual finding the board made. [00:36:30] Speaker 04: But that's not accurate, as we've discussed here today. [00:36:32] Speaker 04: The two paragraphs of analysis of the correction board don't mention the core values and don't mention the Navy's practice in other cases. [00:36:41] Speaker 04: It seemed that the board was focused just on what Mr. Strand said and his convictions. [00:36:46] Speaker 04: It didn't take this broader view that the secretary took and considered other things that were appropriate. [00:36:54] Speaker 01: The last thing I want to discuss briefly is... What do you have to say to the applicability of a core values analysis to incidents that occurred before the Navy adopted those core values? [00:37:08] Speaker 04: Well, I have two responses, Your Honor. [00:37:10] Speaker 04: First of all, that's not what the Secretary did. [00:37:12] Speaker 04: The Secretary never says, you violated the core values in 1992. [00:37:18] Speaker 04: My second response is, as the Secretary makes clear and is confirmed by the Navy Core Values Charter, which is in the record before the Court, I can get you the page number, the principles of honor, courage, and commitment have always been applicable to Navy service members. [00:37:32] Speaker 04: Since the Navy was founded in 1775, we make that point in our brief. [00:37:36] Speaker 04: So even if she had said that, it wouldn't be a harmful error, because everybody who's in the Navy understands they need to exemplify those principles. [00:37:45] Speaker 04: So those are our two responses to that argument. [00:37:50] Speaker 04: Mr. Strand spent a considerable amount of time on the proper case. [00:37:53] Speaker 04: There's two points I'd like to make about that. [00:37:56] Speaker 04: First of all, in Strickland, this court analyzed proper advice and said that it was completely consistent with [00:38:03] Speaker 04: The rule stated in Strickland that the secretary is the ultimate authority on the correction of records. [00:38:07] Speaker 04: Nothing about proper changes casts any doubt on that principle. [00:38:14] Speaker 04: The second thing is that there was a dissent among the board members in proper to members dissented. [00:38:21] Speaker 04: The court looked at the evidence that those dissenting members relied upon [00:38:25] Speaker 04: for their conclusion and determined that the evidence they relied on actually didn't support their conclusion. [00:38:32] Speaker 04: An issue improper was whether the plaintiff's, I believe it was multiple sclerosis, but some neurological disorder rendered him unable to serve. [00:38:42] Speaker 04: The two dissenters on the board referred to medical examinations that did not include a neurological component and said, well, look, his medical examinations don't show any [00:38:54] Speaker 04: symptoms of multiple sclerosis or anything like that. [00:38:57] Speaker 04: And this court looked at that evidence and said, well, you know, those medical examinations aren't complete. [00:39:01] Speaker 04: All of the evidence in the record related to his neurological disorder favors granting the recommendation. [00:39:09] Speaker 04: And so when the secretary in that case relied on a military adviser to deny the recommendation, he went outside the record and committed a procedural error. [00:39:18] Speaker 04: And this court in Herzog and Weiss held [00:39:22] Speaker 04: Reached similar conclusions on for similar facts in both of those cases all the evidence in the record supported the recommendation and the secretary Went outside that record and relied on the advice of military advisor. [00:39:35] Speaker 01: You can conclude. [00:39:37] Speaker 04: Okay. [00:39:37] Speaker 04: Thank you, your honor The United States would just ask that judgment be reversed. [00:39:41] Speaker 01: Thank you The next case is in