[00:00:00] Speaker 01:
Our next case for argument is 21-2163, Hirsch versus United States.

[00:00:06] Speaker 01:
Mr. Coulter, please proceed.

[00:00:08] Speaker 01:
Am I saying your name right?

[00:00:09] Speaker 01:
Coulter?

[00:00:10] Speaker 01:
Yes.

[00:00:10] Speaker 01:
Please proceed.

[00:00:11] Speaker 03:
You did, Your Honor.

[00:00:12] Speaker 03:
Thank you very much.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
May it please the court.

[00:00:16] Speaker 03:
My name is Tom Coulter.

[00:00:17] Speaker 03:
I represent the appellant, Lieutenant Colonel Jonathan R. Hirsch.

[00:00:22] Speaker 03:
The focus of Lieutenant Colonel Hirsch's complaint

[00:00:26] Speaker 03:
is the Army's failure to exclude from his mandatory retirement date the three years that he spent in law school before he was appointed as a judge advocate in the JAG Corps.

[00:00:38] Speaker 03:
The exclusion of his three years, we believe, is mandated by 10 USC 14706.

[00:00:43] Speaker 03:
Because under subsection a three lieutenant colonel Hirsch satisfies all of the requirements It was his he obtained his program of advanced education.

[00:00:53] Speaker 01:
You believe the exclusion is Mandated by the statute.

[00:00:58] Speaker 01:
That's what you just said, correct?

[00:01:00] Speaker 01:
Yes, so you believe that that three years Whether he wanted it to or not cannot be counted towards retirement

[00:01:09] Speaker 03:
Excuse me, Your Honor.

[00:01:11] Speaker 03:
It is mandated in the sense that he meets the criteria of subsection A3.

[00:01:17] Speaker 03:
And so in that sense, it cannot be counted toward his mandatory retirement date.

[00:01:22] Speaker 01:
So you do realize that what you're arguing may benefit Mr. Hirsch in that he doesn't want the three years while he was in law school but serving in the ready reserve to count towards his retirement age.

[00:01:38] Speaker 01:
But you do realize that you are arguing a position that will undermine hundreds of thousands of veterans who seek to have that time count so that they can retire at the 20-year point.

[00:01:51] Speaker 03:
Right.

[00:01:51] Speaker 03:
And if they don't apply for the exclusion, then it won't count.

[00:01:55] Speaker 01:
No, no, no, no, no, no, sir.

[00:01:58] Speaker 01:
You've argued to me that the statute mandates the exclusion.

[00:02:02] Speaker 01:
There is no longer the ability for a veteran to make a choice

[00:02:06] Speaker 01:
of whether to exclude it or not if the statute mandates it.

[00:02:10] Speaker 03:
It does.

[00:02:11] Speaker 03:
If they qualify for the exclusion, then it doesn't count toward their retirement.

[00:02:16] Speaker 01:
So you are arguing a position that will undermine hundreds of thousands of servicemen who would like the time that they are serving the ready reserves.

[00:02:26] Speaker 01:
Are they not still putting a uniform on during that time?

[00:02:29] Speaker 03:
In this?

[00:02:30] Speaker 03:
Yes, they are.

[00:02:31] Speaker 01:
So are they not still receiving military benefits because they're in the ready reserves?

[00:02:36] Speaker 03:
That is correct.

[00:02:37] Speaker 01:
Are they not still called up to service during that time?

[00:02:40] Speaker 03:
That's right.

[00:02:41] Speaker 01:
So they're still serving our country, and yet under your position, none of those men and women who are serving our country, who are donning a uniform, who are receiving military benefits should get any credit towards retirement eligibility for that time.

[00:02:58] Speaker 03:
They do get credit.

[00:02:59] Speaker 03:
They're certainly getting the credits that you mentioned.

[00:03:01] Speaker 03:
They're getting retirement credits.

[00:03:03] Speaker 01:
Well, according to you, the years they spend will not credit towards their 20 years.

[00:03:10] Speaker 03:
That would be the result of the statute.

[00:03:13] Speaker 01:
That would be the result of your interpretation that you're proposing of the statute.

[00:03:17] Speaker 03:
That's correct, Your Honor.

[00:03:18] Speaker 01:
So while Mr. Hirsch may benefit,

[00:03:20] Speaker 01:
Lots of military people will not.

[00:03:23] Speaker 03:
And lots of people like Lieutenant Colonel Hirsch will in fact benefit, as will the military.

[00:03:27] Speaker 01:
What is Mr. Hirsch seeking to obtain is a remedy, should we interpret the statute as he wishes.

[00:03:33] Speaker 01:
He says he was forced to retire at the 30-year point, but that shouldn't have been considered his 30-year point.

[00:03:38] Speaker 01:
Because he had only 27 years in, you shouldn't have counted the time he was in law school, despite being in the ready reserves, despite donning a uniform, despite being called up, all of those things.

[00:03:51] Speaker 01:
What is the remedy he seeks?

[00:03:53] Speaker 01:
Does he want us to reinstate him so he can serve out those final three years?

[00:03:57] Speaker 01:
No, Your Honor.

[00:03:57] Speaker 03:
He would like the benefit of the monetary value of the three years.

[00:04:00] Speaker 01:
So he wants us to pay him for the three years now that he didn't serve.

[00:04:04] Speaker 03:
that he was prevented from serving, that's right, while he got an advanced degree to benefit the military.

[00:04:09] Speaker 01:
In many government instances, well, no, you're not asking me to pay him for the time while he got an advanced degree.

[00:04:15] Speaker 01:
While he got an advanced degree, he was paid in the ready reserves for the time he served, correct?

[00:04:19] Speaker 03:
He was paid at that level.

[00:04:21] Speaker 03:
That's right.

[00:04:21] Speaker 01:
What you're asking for is three extra years at the end of his service where he didn't work.

[00:04:26] Speaker 01:
That's right.

[00:04:27] Speaker 01:
You would like him to be paid for.

[00:04:29] Speaker 03:
Yes, because he earned that under the statute.

[00:04:31] Speaker 03:
He is entitled to serve three more years.

[00:04:33] Speaker 03:
He was willing to serve three more years.

[00:04:35] Speaker 03:
The military cut him off before his full service.

[00:04:38] Speaker 01:
But in many instances, for example, in employment scenarios, reinstatement is an option.

[00:04:43] Speaker 01:
Is your client interested in a potential remedy of reinstatement where he would be able to serve the additional three years?

[00:04:49] Speaker 03:
You'd be happy to have him reinstated, Your Honor.

[00:04:50] Speaker 03:
In fact, he's serving right now in the military.

[00:04:52] Speaker 03:
He still continues to serve in a different role, just not as a judge advocate general.

[00:04:56] Speaker 00:
Is the issue here not whether he gets credit for that service, but whether that enables him to be forced out because he's not promoted after a certain period?

[00:05:10] Speaker 03:
And that is the proper, I think, Your Honor, respectfully, that's the proper context in which to view this is

[00:05:16] Speaker 03:
He was promoted to captain.

[00:05:18] Speaker 03:
He was, in his view, shorted three years of his service as a captain because the military counted against him the three years when he was in law school.

[00:05:29] Speaker 00:
So it's not a question of credit.

[00:05:31] Speaker 00:
It's a question of when you're forced out.

[00:05:33] Speaker 03:
That is the mandatory retirement date.

[00:05:35] Speaker 03:
That's exactly right, Your Honor.

[00:05:36] Speaker 01:
To be clear, what you're asking us to do is to interpret a statute that is only directed to credit and has nothing to do with when you're forced out.

[00:05:43] Speaker 01:
Isn't that right?

[00:05:44] Speaker 01:
No.

[00:05:46] Speaker 01:
of what you're talking about is when you're forced out.

[00:05:49] Speaker 01:
But the statute that you're asking us to interpret is whether or not he gets credit for that service.

[00:05:55] Speaker 03:
Well, it is whether he gets credit, but it is geared toward determining what is his mandatory retirement date.

[00:06:03] Speaker 01:
Where does it say that in 14706?

[00:06:05] Speaker 03:
It's the computation of total years of service.

[00:06:09] Speaker 03:
And that is the purpose of it, is to determine under 14507.

[00:06:13] Speaker 01:
It's the result.

[00:06:15] Speaker 01:
of the calculation.

[00:06:16] Speaker 01:
But the purpose of this statutory section has nothing to do with retirement, per se, and rather only to do with credit for service.

[00:06:24] Speaker 03:
Right.

[00:06:25] Speaker 03:
And under 14507, which determines when your time runs under your particular status.

[00:06:32] Speaker 01:
So right now, under the existing status of this statute, as interpreted by the military,

[00:06:38] Speaker 01:
He has the option, does he not, of choosing whether to count the service or not.

[00:06:44] Speaker 01:
He's provided with a form in which he could fill it out, and he could have elected not to count the service when he went to law school.

[00:06:52] Speaker 01:
Is that correct?

[00:06:56] Speaker 03:
Could he have elected to do that?

[00:06:58] Speaker 03:
Yes, he could have not... Well, no, I don't think that's right, Your Honor.

[00:07:04] Speaker 03:
Actually, I think he had to get permission from his commanding officer to attend law school.

[00:07:11] Speaker 03:
And once he did that... Yes, but there was a form.

[00:07:13] Speaker 01:
It's two pages in length.

[00:07:14] Speaker 01:
That's right.

[00:07:15] Speaker 01:
It's in the appendix.

[00:07:16] Speaker 01:
He could have filled out that form and sought to have the three years while he was in law school not credited towards retirement purposes for military service.

[00:07:26] Speaker 01:
Is that or is that not correct?

[00:07:27] Speaker 01:
Does that form allow him to make that election?

[00:07:31] Speaker 03:
I don't think it allows him to make that election.

[00:07:33] Speaker 03:
Under the statute, when you're counting.

[00:07:35] Speaker 01:
Where's the form in the record?

[00:07:37] Speaker 03:
It's DA 3725.

[00:07:40] Speaker 03:
And it is in the appendix.

[00:07:42] Speaker 03:
It's one of the forms that the Army Board for the Correction of Military Records relied on in its last

[00:07:52] Speaker 03:
in its last ruling in June of 2020.

[00:07:55] Speaker 03:
And it says, essentially, that Lieutenant Colonel Hirsch was in a student status during that time.

[00:08:02] Speaker 03:
And under that student status, he was eligible for the exclusion from years of service in terms of mandatory retirement date under 14706A3.

[00:08:15] Speaker 01:
OK, why don't you turn to page 1004 of the appendix, which

[00:08:22] Speaker 01:
I think on, is it 1,004?

[00:08:31] Speaker 01:
Is it 1,004?

[00:08:39] Speaker 01:
Thank you.

[00:08:42] Speaker 01:
What section?

[00:08:48] Speaker 00:
Yeah.

[00:08:49] Speaker 01:
So does this or does this not give him the ability to submit a form that would allow him to delay his time in postgraduate study, i.e.

[00:09:04] Speaker 01:
law school, so that it would not count towards his retirement?

[00:09:08] Speaker 03:
Right.

[00:09:08] Speaker 03:
This form, which was not, let's see, March of 1986,

[00:09:19] Speaker 03:
That's under the ROTC program, Your Honor, I think is where you're looking on Appendix 1004.

[00:09:26] Speaker 03:
And he is not seeking the credit or the exclusion from credit under the ROTC program.

[00:09:33] Speaker 03:
And in fact, that is the problem with the government's interpretation, is that the government would limit the statute only to those who serve in the ROTC program.

[00:09:44] Speaker 03:
The way the government has interpreted this, any initial service prior to attending law school in Lieutenant Colonel Hersh's instance would exclude you from the benefits of the exclusion of the three years from mandatory retirement.

[00:10:00] Speaker 01:
That's not how I understand the board to have interpreted it.

[00:10:02] Speaker 01:
Why don't we look at JA 122, which is the board's interpretation of educational delight, paragraph 6 in particular.

[00:10:11] Speaker 01:
suggests that he could have submitted DA form 571 and that would have allowed him to delay his periods of service such that he would not have gotten credit.

[00:10:26] Speaker 03:
Yes, and I believe the board cited something that at the time the educational delay standard was not in effect for Lieutenant Colonel Hirsch and that's one of the reasons why he did not apply

[00:10:37] Speaker 03:
for that educational delay.

[00:10:38] Speaker 03:
Nevertheless, he filled out the form, DA 3725, that's in the appendix, that allows him to reference his status as student status.

[00:10:47] Speaker 03:
His commanding officer was aware of his status.

[00:10:50] Speaker 03:
He attended law school.

[00:10:51] Speaker 03:
And he qualifies under A3 and B of the statute.

[00:10:55] Speaker 03:
So whether or not there was an educational delay is somewhat irrelevant to Lieutenant Hirsch's case.

[00:10:59] Speaker 03:
It may apply in other instances.

[00:11:01] Speaker 03:
But the question is whether he met the requirements of the statute.

[00:11:06] Speaker 01:
you want me to interpret the statute in a way for Mr. Hirsch that is going to hurt lots of other veterans.

[00:11:15] Speaker 01:
He wants three years of additional pay for a period he didn't work because he was prevented from working.

[00:11:20] Speaker 01:
But there are many veterans who go in, who serve in the ready reserves while obtaining a degree, and they want that time to count towards retirement.

[00:11:29] Speaker 01:
Because at the 20-year point, after serving our country for 20 years, they can get out with a pension.

[00:11:35] Speaker 01:
You'll have me interpret this statute in a way that prevents them from ever getting that credit.

[00:11:41] Speaker 03:
Yes, because if you get the benefit of three years of additional education, essentially funded by the military, yes, the military would like you to serve those extra three years so the military gets the benefit of the education it paid for.

[00:11:55] Speaker 03:
I don't think that's so remarkable, Your Honor.

[00:11:56] Speaker 01:
Just to be clear, when you say the military would like this, are you here today representing the military, or do you have any document or evidence that this is how the military would like this to be treated?

[00:12:06] Speaker 03:
Yes, the congressional purpose was to extend the years of service after you obtain your professional degree.

[00:12:14] Speaker 03:
That's exactly what the Congress said.

[00:12:16] Speaker 03:
That is in the congressional statute was the purpose was to permit reserve officers to serve several more years before facing mandatory separation based on years of service.

[00:12:30] Speaker 03:
That's in Appendix 185.

[00:12:32] Speaker 03:
That's the Senate report and the House report.

[00:12:33] Speaker 03:
Both said the same thing.

[00:12:34] Speaker 02:
But under your reading, if I'm understanding your answers to Chief Judge Moore, it's not to permit your mandating, under the reading you would have us make, would mandate that someone in the reserves, who independently, not on military orders, chooses to further their education, cannot get the credit while they're in school towards their mandatory retirement date, even if they want it.

[00:13:01] Speaker 02:
That is, I think being clear, that's the implication.

[00:13:05] Speaker 03:
That is what the statute requires because of the purpose, which is to, if you have the benefit of the additional educational years and you have an increased status as a professional serving in the military, the military wants the other three years.

[00:13:19] Speaker 02:
The purpose is to permit

[00:13:20] Speaker 02:
The military maybe to want to keep that person longer or for the veteran to want to serve longer.

[00:13:26] Speaker 02:
But you're not really talking about permit.

[00:13:28] Speaker 02:
You're saying we would be mandating that you get no credit for those years of service.

[00:13:34] Speaker 03:
Most of the time, if you're applying for an educational delay, you would be applying for an educational delay.

[00:13:40] Speaker 03:
And so that is some discretionary situation.

[00:13:43] Speaker 03:
In Lieutenant Colonel Hersh's case, he didn't have an educational delay.

[00:13:47] Speaker 03:
under the specific program because it wasn't available to him.

[00:13:50] Speaker 03:
So he is serving in law school and he is under the statute entitled to the three more years of mandatory service.

[00:13:59] Speaker 02:
At the end of the day it is about statute.

[00:14:01] Speaker 02:
It is.

[00:14:01] Speaker 02:
I understand both sides have said the statute is unambiguous.

[00:14:07] Speaker 02:
What would we do if we think it's actually ambiguous?

[00:14:10] Speaker 03:
If it's ambiguous, I think you would look to typical methods of statutory construction.

[00:14:15] Speaker 03:
First of all, what does the plain language mean?

[00:14:18] Speaker 03:
Which interpretation utilizes all of the words of the statute?

[00:14:22] Speaker 03:
What is the context of the statute?

[00:14:24] Speaker 03:
It is designed to allow those who get the benefit of a military professional education to extend their service so that the military benefits from that service, as does the uniformed personnel who obtain that professional degree and are allowed to serve for three more years after they've been promoted to a certain position.

[00:14:42] Speaker 01:
Aren't they allowed to do that now by filling out this form?

[00:14:46] Speaker 01:
You said the form may not have been available to Mr. Hirsch.

[00:14:48] Speaker 03:
Right.

[00:14:49] Speaker 01:
But now they have the ability to do that, correct?

[00:14:53] Speaker 03:
They don't have the ability under the government's interpretation, which would be if you had initial service, and this would be for anyone other than the ROTC cadets, anybody else, if you have any initial service, according to the government, you cannot get any additional time served.

[00:15:09] Speaker 03:
once you've been promoted to a certain position in the military, because your years aren't excluded.

[00:15:16] Speaker 01:
And I may be wrong.

[00:15:18] Speaker 01:
I thought that the government suggested, and it's brief, and I'll find out from them in a second, of course, that he had the option of filling out a form and that servicemen have the option of filling out this educational delay form and electing not to have it count.

[00:15:35] Speaker 01:
So am I mistaken?

[00:15:39] Speaker 01:
The fact that that's what they argued, I mean, I'll ask them, is their argument not yours?

[00:15:43] Speaker 01:
What do you understand their argument to be?

[00:15:47] Speaker 03:
That even though Lieutenant Colonel Hirsch, in his instance, obtained this educational degree and qualifies under the statute,

[00:15:56] Speaker 03:
and believes that it allows him to serve the extra three years, that the government says because he had initial service prior to going to law school, that he is ineligible for the benefit, in his case, of serving the extra three years.

[00:16:09] Speaker 01:
Even if he had been able to and filled out this form that exists that allows you to elect not to have the service count, do you believe the government's view basically makes that form, which exists currently, illegal and wrong?

[00:16:25] Speaker 03:
It makes the form such that if, yes, in the sense that the government's interpretation would say, if the person filling out that form had service prior to going to law school in this instance, yes, they can't qualify.

[00:16:38] Speaker 03:
So they can fill out the form all they want.

[00:16:39] Speaker 03:
But under the government's interpretation, they can't qualify unless they're a ROTC.

[00:16:44] Speaker 03:
And this statute clearly is not limited to the ROTCs.

[00:16:46] Speaker 03:
And so the government's interpretation cannot be the right one.

[00:16:49] Speaker 03:
Thank you.

[00:16:50] Speaker 03:
I see my time is out, Your Honor.

[00:16:51] Speaker 00:
Thank you.

[00:16:53] Speaker 04:
Please to court.

[00:16:55] Speaker 04:
Colonel Hirsch was commissioned as a second lieutenant in May 1988.

[00:17:00] Speaker 04:
And then prior to starting law school in 1992, he served in various military statuses as a transportation officer, including active duty.

[00:17:14] Speaker 01:
We don't need the facts.

[00:17:16] Speaker 04:
OK, well, so essentially,

[00:17:22] Speaker 04:
The trial court found that the prior service as a transportation officer, as a commissioned officer in a transportation corps under 14706B, precluded by the plain meaning of the statute, Colonel Hirsch from

[00:17:43] Speaker 01:
invoking that statute to exclude those three years and points made by the court are correct.

[00:18:03] Speaker 01:
whether time spent in an advanced degree, like Mr. Hershes, am I wrong in understanding that right now they have the ability to choose whether that service, as long as they're continuing in the ready reserve during their school, counts or doesn't count towards retirement?

[00:18:19] Speaker 04:
Your Honor, that was not an argument that we briefed during this appeal.

[00:18:26] Speaker 04:
So I think there may be a little confusion about this.

[00:18:28] Speaker 04:
I can't really answer that.

[00:18:30] Speaker 04:
It's something we can

[00:18:31] Speaker 04:
look into.

[00:18:32] Speaker 04:
I think that was more of a notice issue.

[00:18:38] Speaker 04:
I think one of the arguments that Colonel Hirsch made was that they knew he was in school.

[00:18:43] Speaker 04:
So our argument, what the court discussed, was the plain meaning of the statute.

[00:18:49] Speaker 04:
And that's as far as we got in this case.

[00:18:51] Speaker 04:
However, I do want to point out that to say that the legislative history on page 185

[00:19:02] Speaker 04:
of the joint appendix is that is to say that it was its purpose was to extend by several years the the ability to extend by several years the service of Council on page 8.

[00:19:18] Speaker 01:
Can you get your brief to return to page 8 of your brief, please?

[00:19:22] Speaker 04:
Yes.

[00:19:24] Speaker 01:
Page 8 of your brief.

[00:19:30] Speaker 01:
You there with me?

[00:19:31] Speaker 01:
Do you see where you say the board also found that even if Lieutenant Colonel Hirsch's DA form 3725 mentioned above had recorded his student status, this would not require the exclusion of Lieutenant Hirsch's service while attending law school when the Army calculated his mandatory removal date.

[00:19:54] Speaker 01:
I guess what I'm trying to understand, I will tell you quite frankly, I think this statute is a hot mess.

[00:20:00] Speaker 01:
I think it could go either way on its interpretation.

[00:20:03] Speaker 01:
And so what I'm trying to understand is what would be the consequences of each of the separately argued interpretations.

[00:20:12] Speaker 01:
You heard me and my exchange with Mr. Coulter, and my concern there was his client may have wanted an extra three years to continue serving.

[00:20:23] Speaker 01:
and have it not counted.

[00:20:25] Speaker 01:
But it's my understanding that many servicemen want to hit that 20-year point.

[00:20:31] Speaker 01:
And they want this kind of service while they're in the regulatory reserve to be counted.

[00:20:37] Speaker 01:
And so I'm trying to understand, does this statute says it has to go 100% one way or the other?

[00:20:43] Speaker 01:
Under Mr. Coulter's view, his client's view, Mr. Hirsch's view, the statute would prevent it from ever counting for any of the military folks.

[00:20:55] Speaker 01:
Under the government's interpretation, i.e.

[00:20:58] Speaker 01:
the board's interpretation that you're defending, does it require it to be counted for every one of these people?

[00:21:05] Speaker 04:
In circumstances like if somebody went to college,

[00:21:10] Speaker 04:
such as Colonel Hirsch did, as a ROTC officer, and then went to law school, and then did not serve as a transportation officer in law school.

[00:21:21] Speaker 04:
Went directly, as many people do, they go from college, then they don't take time off, then they go to law school, and had an affiliation with the military, and went on one of these programs.

[00:21:37] Speaker 04:
directly to law school, then that time would not count toward the 28 years, had he retired 28 years later as a lieutenant colonel.

[00:21:49] Speaker 04:
And that's what the statute says.

[00:21:50] Speaker 01:
But you're suggesting if he had no affiliation during that schooling period.

[00:21:55] Speaker 01:
Is that what I understood?

[00:21:56] Speaker 04:
No, because the

[00:21:59] Speaker 04:
If we go to page 185, this is the statutory history upon which counsel is relying.

[00:22:05] Speaker 04:
185 of the appendix states, exclusion of period of pursuit of professional education from computation of years of service for reserve officers.

[00:22:21] Speaker 04:
Actually, read in full states, the committee recommends a provision

[00:22:25] Speaker 04:
that would not include years spent in a college student commissioning service status in the computation of years of service for a reserve officer.

[00:22:38] Speaker 04:
include that.

[00:22:40] Speaker 04:
I mean, that's college student commissioning service status.

[00:22:44] Speaker 00:
Mr. Schroder?

[00:22:45] Speaker 04:
Yes.

[00:22:46] Speaker 00:
This case, it seems to me, is a question of reconciling A3 with B. The trial court decided the case based on its analysis of B. We haven't really talked about B.

[00:23:02] Speaker 00:
B seems to me to be quite ambiguous.

[00:23:07] Speaker 00:
And why should an ambiguous provision such as that nullify the very specific A3 provision?

[00:23:18] Speaker 04:
Well, we would respectfully, Your Honor, B essentially clarifies

[00:23:30] Speaker 04:
what the exclusion is.

[00:23:31] Speaker 04:
And the exclusion under B is that if you previously served on active duty or participated as a member of the ready reserve, other than a student status, for the period of service preceding the member's service in the student status, before you go to law school, you were a member of the ready reserve

[00:23:57] Speaker 04:
or on active duty.

[00:23:59] Speaker 04:
That's what Colonel Hirsch was.

[00:24:01] Speaker 04:
He served as a transportation officer before going to law school.

[00:24:05] Speaker 04:
Then you can't get an exclusion.

[00:24:06] Speaker 00:
The Carrier Service Proceedings Service in a Student Status was his work in the transportation group, right?

[00:24:15] Speaker 04:
Yes, Your Honor.

[00:24:16] Speaker 00:
And so that is not excluded.

[00:24:20] Speaker 04:
Colonel Hirsch's interpretation, but that's not what this is excluding.

[00:24:25] Speaker 04:
What this is saying, the exclusion under 8-3 doesn't apply.

[00:24:29] Speaker 04:
Well, the only exclusion they're talking about under 8-3, to the extent that it applies, deals with when you're in law school, in this particular case, or medical school, or whatever other school you're in.

[00:24:43] Speaker 04:
So there's no need.

[00:24:44] Speaker 04:
When somebody is on active duty or an IRR,

[00:24:49] Speaker 04:
And that's always going to count.

[00:24:52] Speaker 04:
By going to law school.

[00:24:54] Speaker 00:
So you're saying B is an express negation of A3.

[00:24:58] Speaker 04:
Well, it's expressly stating that, yes, it's expressly stating that to the extent A3 applies for somebody in medical school, somebody in law school, it doesn't apply if you've already been in the military as

[00:25:17] Speaker 04:
as a commissioned officer on active duty or in the individual ready reserve.

[00:25:24] Speaker 04:
This is not for somebody who's in the military and decides on their own we're going to go to law school and independently pursues law.

[00:25:32] Speaker 04:
So it's commendable.

[00:25:36] Speaker 04:
But you're on your own when you do that.

[00:25:39] Speaker 04:
It's consistent with the way the government generally works is that

[00:25:43] Speaker 04:
Generally, in government, you can't do things on your own and change your status.

[00:25:49] Speaker 04:
You would have to apply for something and get approval for something in order to change your status with the government.

[00:25:56] Speaker 04:
You can't just do it on your own.

[00:25:58] Speaker 04:
And the statute is consistent with that and makes sense and is generally the way the government operates.

[00:26:06] Speaker 04:
And what it's saying is you went on your own.

[00:26:13] Speaker 04:
By the way, during that time he was paid, the court found, accruing points toward retirement and drilling.

[00:26:22] Speaker 04:
So he was still, in a sense, working as an individual ready reserve for the army.

[00:26:29] Speaker 02:
And would those things have not happened?

[00:26:30] Speaker 02:
Would he have not gotten those benefits had he sought educational delay and been approved for it?

[00:26:36] Speaker 04:
Well, that's a possible.

[00:26:41] Speaker 04:
I don't know what he would have had to do, but if he was, then he would have essentially not been in

[00:26:46] Speaker 04:
So he certainly wouldn't have been in the status as a member of the ready reserve or active duty, so it's possible.

[00:26:55] Speaker 04:
That's beyond the scope.

[00:26:58] Speaker 02:
That's fine.

[00:26:59] Speaker 02:
I have another question for you, though.

[00:27:01] Speaker 02:
The board decision references a December 15, 2000 memo.

[00:27:06] Speaker 02:
For example, it's page A147.

[00:27:09] Speaker 02:
I don't believe we have the memo.

[00:27:10] Speaker 04:
Yes, it's not in the record.

[00:27:12] Speaker 02:
I have it here, but it's not in... Apparently, this memo

[00:27:16] Speaker 02:
supports your position.

[00:27:20] Speaker 02:
It says someone in Hershey's position who attends law school independently, not on military orders, is not on student status and therefore does not qualify for the A3 exclusion.

[00:27:32] Speaker 02:
Is that what that memo says?

[00:27:33] Speaker 02:
Can we consider that memo?

[00:27:35] Speaker 02:
Are you asking us to defer to it?

[00:27:37] Speaker 04:
No, well, because this was decided on the plain meaning, we're not asking the court to defer because we believe the trial court got it correctly on the plain meaning of the statute.

[00:27:47] Speaker 04:
But also, I have the memo.

[00:27:51] Speaker 04:
I don't believe it had the analysis of the 8, 3, and B. It just kind of declared, if the court would like, we can submit it into the record.

[00:28:00] Speaker 02:
But what it declares is the position.

[00:28:03] Speaker 02:
It's consistent with the position you're advocating today, but it doesn't analyze how the statute would support that position?

[00:28:09] Speaker 04:
Well, it has some analysis, but it doesn't do the kind of analysis done by the trial court.

[00:28:15] Speaker 01:
uh... clear was it in the record below was mentioned in the board's opinion that would suggest to me that it was probably a map of yes so when you said it wasn't in the record you weren't speaking correctly it is in the record it just wasn't in the appendix yes uh... i apologize you know i see their base numbers on it so my assumption was in the record it was not in the appendix of this squirt and uh... and is it your view that if we don't agree with you that the statute is unambiguous

[00:28:45] Speaker 01:
Would that document help us understand whether there is a considered deliberate interpretation that has been propagated by the governmental entity charged with construing the statute, or is it not helpful to that end?

[00:29:02] Speaker 04:
I think it would be helpful, but it was shortly after the time of the statute, 2000.

[00:29:09] Speaker 04:
So it could be helpful, because we were defending

[00:29:14] Speaker 04:
The trial court's decision that the statute was unambiguous, we haven't really addressed that.

[00:29:22] Speaker 04:
But there are some other interpretations throughout the record below, and also the statutory history.

[00:29:30] Speaker 04:
I think counsel mentioned that.

[00:29:32] Speaker 04:
So the court would rely on the other typical tools of statutory construction at that point.

[00:29:42] Speaker 02:
You write in your brief that Mr. Hirsch's interpretation of subsection B is actually contrary to the language of the statute itself.

[00:29:53] Speaker 02:
Can you help me understand how is what he is arguing for

[00:29:57] Speaker 02:
which essentially, as I understand it, is that B clarifies that the calculation of his management retirement date doesn't restart at zero.

[00:30:06] Speaker 02:
He's still got the four years before law school counting towards the MRD.

[00:30:11] Speaker 02:
What is it about that interpretation of his that is actually contrary to the language of B?

[00:30:18] Speaker 04:
Well, because the trial court went through an entire grammatical analysis of it on page 11.

[00:30:32] Speaker 04:
But essentially, what Colonel Hirsch is saying is that it applies to the period before going to law school.

[00:30:41] Speaker 04:
But the statute clearly is only discussing

[00:30:44] Speaker 04:
the period during law school.

[00:30:47] Speaker 04:
And it's illogical to argue that Congress intended to exclude that somebody who served four years prior to going to law school suddenly would lose those four years of credit just because they went to law school.

[00:31:03] Speaker 01:
I didn't understand him to ever argue that.

[00:31:06] Speaker 01:
You think that he argued that the time in active duty prior to going to law school should also be excluded from his?

[00:31:15] Speaker 04:
No, Your Honor.

[00:31:16] Speaker 04:
If I misstated, what Colonel Hirsch was arguing was that the statute B was for the purpose of making clear that that time was not excluded.

[00:31:26] Speaker 04:
But nothing about A3 even implied that that time would be excluded.

[00:31:33] Speaker 04:
So that didn't make sense.

[00:31:36] Speaker 04:
to have an exception to A3 to a rule that A3 was not attempting to address.

[00:31:47] Speaker 04:
The time period in A3 was during school.

[00:31:52] Speaker 04:
So why would they need an exception during a period prior to school?

[00:31:57] Speaker 02:
Just one more.

[00:31:58] Speaker 02:
Oh, yeah, please.

[00:31:59] Speaker 02:
What about the circumstance of one studying to become a chaplain?

[00:32:02] Speaker 02:
That came up, I guess, only at the motion for reconsideration.

[00:32:06] Speaker 02:
It seems to me that everyone was agreeing that the one had someone in Mr. Hirsch's position gone for six years to study to be a chaplain, that he would get the benefit of excluding those six years.

[00:32:24] Speaker 02:
that somehow it's different because he was going to law school.

[00:32:28] Speaker 04:
Well, I think what the court found was that the issue of being a chaplain was not before the court, that this was a regulation.

[00:32:37] Speaker 04:
And the court could not entertain a question about the legality of a regulation.

[00:32:50] Speaker 04:
was not by a proper party before the court.

[00:32:54] Speaker 02:
If we adopt the interpretation of the statute that you're pressing, would it have an impact on those who want to study to become a chaplain?

[00:33:03] Speaker 04:
Well, I think that's a question of the regular.

[00:33:08] Speaker 04:
It's possible, but I take it from what I've read in here that there's a shortage of chaplains in the military.

[00:33:18] Speaker 04:
And there were regulations issued for chaplains.

[00:33:23] Speaker 01:
And whether the military has the authority to issue regulations to make exemptions or to- How in the world do you think the military has the authority to issue a regulation that would directly contradict the interpretation of a congressional statute

[00:33:47] Speaker 04:
that you want us to adopt.

[00:33:49] Speaker 04:
Your Honor, I'm not saying that.

[00:33:50] Speaker 04:
And the court addressed that and said if there was a conflict, of course, the statute would take precedence.

[00:33:56] Speaker 04:
However, there could be other statutes that could be the authority for it.

[00:34:07] Speaker 04:
But obviously, if there's a conflict between a direct statute that addresses it and a regulation, the statute takes precedence.

[00:34:15] Speaker 04:
It has to.

[00:34:16] Speaker 04:
And but we can't, but that's not the case before the court.

[00:34:21] Speaker 04:
And we can't allow a possible future case to affect the meaning of this.

[00:34:31] Speaker 01:
Yes, but what we can allow is a regulation adopted by the agency to express its view of how the statute should be interpreted.

[00:34:43] Speaker 04:
Unless, not if the plain language, if the plain language of the statute is clear, which it is, according to the trial court, and we think the trial court is correct, then there's no need, and it would be incorrect, to defer to a regulation.

[00:35:06] Speaker 01:
indulgence of my colleagues, I just need an answer to the question.

[00:35:11] Speaker 01:
I think I came in here with a fundamental misunderstanding.

[00:35:14] Speaker 01:
I think I came in here with the belief that if I were to adopt Mr. Hirsch's position, no military men could ever get credit for this service.

[00:35:25] Speaker 01:
If I were to adopt the government's position, military people could choose whether to get credit for this service or not based on this form.

[00:35:35] Speaker 01:
Am I misunderstanding that?

[00:35:37] Speaker 01:
Because I think now, I think I came in with a fundamental misunderstanding.

[00:35:41] Speaker 01:
I think if I understand your argument today, the way it works is under Mr. Hirsch's interpretation, nobody ever gets credit for this time.

[00:35:51] Speaker 01:
And under your interpretation, people always get credit for this time.

[00:35:55] Speaker 01:
They can't opt out of getting that credit.

[00:35:58] Speaker 01:
Is that correct?

[00:35:59] Speaker 04:
That's my understanding of the statute.

[00:36:01] Speaker 04:
Now, again,

[00:36:03] Speaker 04:
We weren't focused on that form.

[00:36:05] Speaker 04:
However, according to the statute, A3 sets forth, for example, services a warrant officer to make things simpler in the first part of A, A1.

[00:36:20] Speaker 01:
OK, thank you.

[00:36:23] Speaker 01:
You answered my question.

[00:36:28] Speaker 01:
Thank you.

[00:36:28] Speaker 01:
We allow mr. Coulter we allowed mr. Schroeder to go over by a minute and a half if you have more

[00:36:35] Speaker 01:
stuff that you want to say, you definitely get extra time.

[00:36:39] Speaker 03:
If I could, Your Honor, very briefly.

[00:36:40] Speaker 01:
Well, you've got to come over here.

[00:36:42] Speaker 01:
I'm sorry.

[00:36:42] Speaker 03:
I'm sorry.

[00:36:43] Speaker 01:
That's OK.

[00:36:43] Speaker 01:
I'll be at the podium, and I think I kind of owe you an apology.

[00:36:46] Speaker 01:
I came in with a fundamental misunderstanding.

[00:36:49] Speaker 01:
I thought the government's position let military folks choose one way or the other, and your position was taking a pretty hard line posture.

[00:36:56] Speaker 01:
I still don't necessarily love the outcome of your position, but I apologize to the extent I misunderstood the impact of the two positions.

[00:37:03] Speaker 03:
And in your honor, I apologize.

[00:37:05] Speaker 03:
I'm not sure I explained it very well.

[00:37:06] Speaker 03:
It was a question that caught me, frankly, a little off guard because, and I want to make sure the court is aware of this.

[00:37:13] Speaker 03:
The three extra years in law school for any military personnel who are under the benefit of 14706, they're getting the retirement years credit.

[00:37:24] Speaker 03:
So they are getting the credit from the military's perspective of staying with their class.

[00:37:29] Speaker 03:
The only aspect of 14706 that it affects is whether those folks, having maintained their class rank, can continue to serve for three more years because they are in a professional

[00:37:41] Speaker 03:
degree program that they weren't allowed to serve earlier.

[00:37:45] Speaker 03:
So there is no penalty under 14706.

[00:37:47] Speaker 01:
There's no penalty.

[00:37:48] Speaker 01:
I don't think that's exactly right.

[00:37:50] Speaker 01:
I think that what the statute will do will force those three years to not count for everyone

[00:38:01] Speaker 01:
Which means that when someone's looking to hit that 20-year mark, they don't get to count those three years.

[00:38:07] Speaker 03:
And respectfully, Your Honor, that is just fundamentally incorrect.

[00:38:10] Speaker 03:
They are getting the retirement year's credit.

[00:38:12] Speaker 03:
It's a different standard.

[00:38:13] Speaker 03:
This is the military.

[00:38:15] Speaker 03:
We're talking about retirement years versus mandatory service.

[00:38:20] Speaker 03:
So the benefit of 14706 is for those who were cut off in terms of wanting to serve three more years.

[00:38:27] Speaker 03:
But their retirement status is the same.

[00:38:29] Speaker 00:
This issue wasn't briefed, was it?

[00:38:32] Speaker 03:
This specific issue, Your Honor, was not briefed.

[00:38:34] Speaker 03:
But 14706 does not impose a penalty on anyone.

[00:38:39] Speaker 03:
You can retire at 20 years.

[00:38:41] Speaker 03:
whether you've served 20 or you've served 17 in three years in law school, you can still retire at 20 years with 20 years credit.

[00:38:48] Speaker 03:
But you can also serve the extra three years as a professional based on this statute.

[00:38:54] Speaker 03:
That's all this statute does, is allow you to serve the extra three years.

[00:38:57] Speaker 03:
So I'm sorry if that wasn't clear, Your Honor.

[00:38:59] Speaker 03:
And I don't want to take up any more time.

[00:39:02] Speaker 03:
But clearly, the government's interpretation of the statute just doesn't work, because it would have to be limited to ROTC cadets.

[00:39:09] Speaker 03:
And it is clearly not limited to ROTC cadets.

[00:39:11] Speaker 03:
By example, the chaplain's program and many other excess leave programs that the military has in place, that would be impacted.

[00:39:17] Speaker 01:
Slow down.

[00:39:17] Speaker 01:
You're going so fast, I can't even process you.

[00:39:19] Speaker 01:
Sorry.

[00:39:19] Speaker 01:
Take a breath.

[00:39:20] Speaker 01:
Slow down.

[00:39:20] Speaker 01:
We'll give you as much time as you need to get through it.

[00:39:22] Speaker 03:
Thank you.

[00:39:23] Speaker 03:
Go ahead, keep going.

[00:39:26] Speaker 03:
So the government's interpretation would impact these other programs, such as the chaplet's program.

[00:39:31] Speaker 03:
They are an interpretation by the army.

[00:39:34] Speaker 03:
of 14706 in the sense that if you are a chaplain candidate, the regulation specifically says you can exclude those three years from your service.

[00:39:45] Speaker 03:
You can exclude the three years as counting toward your mandatory retirement date so that when you serve as a chaplain, the military has the full benefit of your tenure in whatever rank you have.

[00:39:56] Speaker 03:
As chaplain, under the government's interpretation, under A3 and B, as Judge Laurie pointed out, you have essentially conflated the two and B becomes completely superfluous because the government focuses on initial service as the trigger.

[00:40:10] Speaker 03:
Anyone with initial service doesn't qualify under the terms of A3, according to government.

[00:40:14] Speaker 03:
They also don't qualify under B for the exact same reason.

[00:40:18] Speaker 03:
If you read the government's brief, they have said the exact same reasoning as to why A3 doesn't apply to Lieutenant Colonel Hirsch and as to why B doesn't apply to Lieutenant Colonel Hirsch.

[00:40:28] Speaker 03:
And unfortunately, the court of federal claims judge's interpretation

[00:40:35] Speaker 03:
It just doesn't account for the language.

[00:40:37] Speaker 03:
He's focused on officers being excluded when the statute clearly is focused on service, the types of service that are excluded.

[00:40:44] Speaker 03:
And to get to the court's result and to get to the government's result, you essentially have to ignore language.

[00:40:50] Speaker 03:
You have to ignore subsection B entirely according to the government.

[00:40:54] Speaker 03:
And within B, you have to ignore for the period of service, which is the last phrase that Congress added, which we believe was there to clarify in this new provision that it added, A3 and B, that when you exclude service under A3, that it is only for the period of service while you are in an advanced educational program.

[00:41:16] Speaker 03:
And so we think the statute, as we have construed it, makes sense as a whole, uses all the language, and comports with the congressional intent

[00:41:23] Speaker 03:
of allowing these men and women who have gotten a professional degree to serve their country for a further period of time without penalty because they can retire at the same number of years that they had, whether they use the statute or not.

[00:41:36] Speaker 01:
Thank you, Your Honor.

[00:41:37] Speaker 01:
OK.

[00:41:37] Speaker 01:
Thank you, Mr. Colter.

[00:41:38] Speaker 01:
Thank you for helping me better understand this process.

[00:41:41] Speaker 01:
I think both counsel in this case has taken under submission.