[00:00:00] Speaker 02:
Our final case this morning is number 24, 2025, Osborne versus United States.

[00:00:06] Speaker 02:
Mr. Kornacki.

[00:00:09] Speaker 04:
Good morning, Your Honor.

[00:00:10] Speaker 04:
May it please the court.

[00:00:11] Speaker 04:
My name is Wojciech Kornacki.

[00:00:13] Speaker 04:
I'm an attorney for appellant, and we're appearing, and appellant is in the courtroom today as well.

[00:00:20] Speaker 04:
This case concerns wrongful discharge from- Can you speak up just a tiny bit?

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

[00:00:27] Speaker 04:
Good morning, my name is Wojciech Kornacki.

[00:00:30] Speaker 04:
I'm an attorney for appellant.

[00:00:32] Speaker 04:
Appellant is in the courtroom today and may it please the court.

[00:00:36] Speaker 04:
This case concerns the wrongful discharge from Coast Guard and the arbitrary and capricious decision from the Coast Guard Board for Correction of Military Records.

[00:00:46] Speaker 04:
The applicable standard here is

[00:00:49] Speaker 04:
in the joint appendix pages 722 and 724 that explained that if a service member in Coast Guard is going to be separated, they have to be properly notified.

[00:01:01] Speaker 04:
They have to be properly notified about their reason.

[00:01:05] Speaker 02:
Okay, but there are two grounds here.

[00:01:06] Speaker 02:
One is sexual misconduct, and you make all sorts of arguments about why there wasn't notice of that charge, but there's also a false statements charge.

[00:01:15] Speaker 02:
And there was no lack of notice about that, right?

[00:01:19] Speaker 04:
Yes, Your Honor.

[00:01:21] Speaker 04:
So we would argue in terms of proper notice that appellant was not notified about the allegation of violating Article 128, which is- No, no, no.

[00:01:34] Speaker 02:
But there's no argument that your client wasn't notified about the false statements charge.

[00:01:42] Speaker 04:
Yes, we're not arguing.

[00:01:44] Speaker 04:
that he wasn't notified.

[00:01:45] Speaker 04:
He was notified.

[00:01:46] Speaker 04:
We're arguing that there was no evidence as the hearing officer found, but yeah, he was fully notified that he was being separated for sexual assault and false official.

[00:01:58] Speaker 02:
Why isn't there any evidence to support the false statements charge?

[00:02:03] Speaker 04:
We rely on the legal expert, the senior naval judge advocate who determined in his preliminary hearing officer report

[00:02:14] Speaker 04:
that when the appellant said that he did not remember, this didn't translate into making a false official statement because there was no evidence that the government presented that he actually remembered.

[00:02:29] Speaker 03:
He was charged with making three false statements, right?

[00:02:34] Speaker 04:
To be exact, Your Honor, five.

[00:02:36] Speaker 04:
Five?

[00:02:37] Speaker 04:
Yes.

[00:02:37] Speaker 04:
And they're all primarily related to the appellant saying, I don't remember.

[00:02:42] Speaker 04:
And then the Coast Guard said,

[00:02:44] Speaker 03:
Okay, well, we're just going to say that you made a... He was found that he did make at least three statements.

[00:02:54] Speaker 04:
So the preliminary hearing officer actually found no probable cause for four out of five false official statements.

[00:03:03] Speaker 04:
The one that he found probable cause, which is even below the standard necessary to separate someone from active duty, which is preponderance of the evidence,

[00:03:13] Speaker 03:
He also recommend to dismiss because he explained that when appellants... He ultimately was found culpable of three different charges of making false statements.

[00:03:26] Speaker 04:
As far as we understand Your Honor, he was not found guilty.

[00:03:30] Speaker 04:
He received one article of non-judicial punishment where he was found guilty of violating one

[00:03:37] Speaker 04:
Article 107, which is a false official statement.

[00:03:41] Speaker 04:
However, the notification doesn't mention being found guilty of the non-judicial punishment.

[00:03:47] Speaker 04:
And the case law is very clear.

[00:03:48] Speaker 04:
You can only be separated.

[00:03:50] Speaker 03:
I'm trying to get you to focus on the false statements.

[00:03:55] Speaker 03:
And you're saying that he was found guilty or culpable of making only one false statement.

[00:04:01] Speaker 04:
So, Your Honor, he received that.

[00:04:04] Speaker 04:
More than one?

[00:04:08] Speaker 04:
The hearing officer found that there was no probable cause for... I'm referring to the hearing officer, but this is a process with appeals and reviews.

[00:04:24] Speaker 01:
That's not enough.

[00:04:25] Speaker 01:
I mean, how is that enough for you to establish a problem with whichever tribunal we're talking about?

[00:04:34] Speaker 01:
Beyond his finding, what basis is there to overturn what the commission or the board, whoever we're talking about, ultimately concluded?

[00:04:45] Speaker 04:
Yes, Your Honor, we would highlight first on page 249 that Kosgard actually said that appellant was separated for sexual assault only, not for false official statements.

[00:04:57] Speaker 04:
Then the discharge review board said that

[00:05:00] Speaker 04:
Our parent was focused most of their analysis on the allegation of sexual assault.

[00:05:07] Speaker 01:
Okay, fair enough.

[00:05:08] Speaker 01:
And there's a lot of paper here and we have tribunals that looked at this in every which way, going up the line and down the line.

[00:05:16] Speaker 01:
So, but there's no doubt, there's no dispute that false statements as Judge Reyna put out was a basis, the basis for overturning it.

[00:05:26] Speaker 01:
Don't you have to show that that was clear error or arbitrary or something?

[00:05:30] Speaker 04:
Yes, Your Honor, and we believe that between Cosgard on 249 saying that the separation is based on sexual assault only.

[00:05:38] Speaker 01:
Yeah, but there's plenty of other paper that says that it's based on false statements.

[00:05:42] Speaker 01:
Lots of paper in the review, right?

[00:05:44] Speaker 01:
You're trying to say that this – I don't understand.

[00:05:48] Speaker 01:
Is this a due process violation because there was confusion or is this an error?

[00:05:53] Speaker 01:
Are you saying they did not rely on false statements?

[00:05:58] Speaker 01:
Your Honor, the record is... Can you answer the question?

[00:06:01] Speaker 01:
Are you saying that they didn't rely on false statements that had nothing to do with what they did with respect to your client?

[00:06:07] Speaker 04:
They did rely on the Board for Correction of Military Records for the first time in 2023, actually said that he was separated for false official statements.

[00:06:16] Speaker 01:
Okay, so what's the gravamen of your complaint here?

[00:06:21] Speaker 01:
that they, at one point, there's something that's included or brought in, sexual misconduct or sexual assault or something in this.

[00:06:30] Speaker 01:
What does that do for your case?

[00:06:34] Speaker 04:
Setting aside the false official statement, Your Honor, the chain of command recommendations also mentioned an assault and battery and courting someone into intersexual assault.

[00:06:45] Speaker 04:
Mr. Appellant never had a chance to respond to those allegations.

[00:06:49] Speaker 02:
Let me put it this way.

[00:06:50] Speaker 02:
Suppose we conclude that the false statement's charge was supported by substantial evidence or was not clearly erroneous, whatever the standard.

[00:06:59] Speaker 02:
You would lose, right?

[00:07:01] Speaker 04:
No, Your Honor, because we would still argue that after a parent received a notice, the chain of commended added additional grounds of an assault and battery, encouraging someone to commit sexual assault.

[00:07:15] Speaker 02:
If the false statement is charged sustained, why doesn't the result follow?

[00:07:21] Speaker 04:
Because we would argue this is not a harmless error.

[00:07:24] Speaker 04:
The magnitude of adding the assault and battery and cursing someone into sexual assault is so great that the court would not be able to just see how the Coast Guard would reach a decision on separation, especially since they have the Second Chance Program, where sometimes they allow brand new...

[00:07:47] Speaker 01:
Upgraded to an honorable discharge.

[00:07:49] Speaker 04:
Yes, your honor.

[00:07:49] Speaker 01:
So what he was initially charged with in terms of potential court martial all that was off the table either voluntarily or because they didn't have enough evidence or whatever the ultimate Penalty if you want to call it a penalty that he got was much less severe than what they were talking about in the first instance, right?

[00:08:07] Speaker 01:
So you're asking Because they put some other stuff in there at various times in the proceeding and

[00:08:16] Speaker 01:
I mean, at most he'd be entitled to a do-over, even if that were correct, right?

[00:08:22] Speaker 01:
So they'd have to go back and adjudicate that.

[00:08:24] Speaker 01:
But if they relied on false statements, why doesn't that, as Judge Stike seemed to suggest, why isn't that the end of the case?

[00:08:31] Speaker 04:
Yes, Your Honor, we would fall back on Laura and Lisio, where the courts have been very clear.

[00:08:37] Speaker 04:
You have to be notified whether you're being separated for, because if you're not, then you cannot properly defend yourself.

[00:08:44] Speaker 01:
And if the chain of... So what you're saying that he was separated not for false statements, but for sexual assault and or battery?

[00:08:52] Speaker 04:
Yes, Your Honor, that's what the chain of command added and on 249 it specifically says that the flag endorsement gets me to separation for sexual assault with a general discharge.

[00:09:03] Speaker 04:
That's what the Coast Guard said that he was being separated for in their own official document.

[00:09:09] Speaker 04:
The Discharge Review Board reviewed the record and it determined that the sexual intercourse was consensual and that a parent is actually being separated for miscellaneous reasons.

[00:09:21] Speaker 04:
The Board for Correction of Military Records in 2023 actually said no.

[00:09:26] Speaker 04:
Appellant was not separated for sexual assault.

[00:09:29] Speaker 04:
He was separated for making false official statements.

[00:09:33] Speaker 01:
So that was corrected.

[00:09:34] Speaker 01:
So there was some consensus at the end that he was separated for false statements, right?

[00:09:40] Speaker 04:
That's what the board said, but we would argue that this was erroneous because the Coast Guard actually said he was being separated for

[00:09:49] Speaker 04:
for sexual assault.

[00:09:51] Speaker 04:
But this is separate and aside for adding, hey, he also violated assault and battery, and he also cursed someone into a rape.

[00:10:01] Speaker 04:
Because these were the two new charges.

[00:10:03] Speaker 04:
And the court was very clear in Lisio and also in Rogers, where if the chain of command is adding additional grounds for separation, either like Your Honor pointed out, the process has to be redone, or the separation is improper.

[00:10:19] Speaker 04:
Chief Judge Kaplan has explained in Lowry that the value of proper notice is self-evident because it allows the service member to actually know what they're being separated and to defend themselves.

[00:10:34] Speaker 04:
It allows their attorney to provide proper responses.

[00:10:37] Speaker 04:
Appellant had an attorney but the attorney never knew that he was also being considered for an assault and battery.

[00:10:44] Speaker 04:
And then the chain of command has a full picture because on one hand they see what

[00:10:48] Speaker 04:
What is the allegation?

[00:10:50] Speaker 04:
They see the response from the appellant, and then they can make an informed decision.

[00:10:55] Speaker 01:
Had they properly... Well, the original notification of intent to discharge mentions false statements.

[00:11:05] Speaker 01:
Why isn't that in and of itself enough?

[00:11:09] Speaker 04:
Your Honor, we would argue that this is not enough because after

[00:11:15] Speaker 04:
Appellant provided responses.

[00:11:17] Speaker 04:
The chain of command added additional grounds for separation, which was Article 128.

[00:11:25] Speaker 04:
This was in June of 2017 on 252.

[00:11:32] Speaker 04:
And then they also added in May on 254, cursing someone into sexual assault.

[00:11:38] Speaker 04:
Appellant never knew that these were additional charges that were being added.

[00:11:43] Speaker 04:
and he was unable to defend himself.

[00:11:45] Speaker 04:
And based on that, we would argue that based on Crane, Rogers, Lowry, and Lizio.

[00:11:51] Speaker 03:
Did these additional charges just like Dorman?

[00:11:55] Speaker 03:
I don't see that there was any prosecution of these other charges.

[00:12:00] Speaker 04:
Yes, Your Honor.

[00:12:00] Speaker 04:
There was actually no prosecution on the Article 128 at all.

[00:12:04] Speaker 03:
You claim that the lack of this prosecution on most Dorman claims somewhat tainted the entire process.

[00:12:13] Speaker 04:
We would argue that it did because the gravity and the magnitude.

[00:12:18] Speaker 04:
Prejudice?

[00:12:19] Speaker 04:
Yes, yes, we would argue that.

[00:12:22] Speaker 03:
Is there evidence before us about prejudice?

[00:12:25] Speaker 04:
Yes, Your Honor, and I would refer Your Honor to the discharge review board on 176 where the board said that if you really look at the allegation of sexual assault, it was consensual.

[00:12:37] Speaker 04:
If you put that aside, the applicant was perfectly fine to continue to serve on active duty.

[00:12:42] Speaker 04:
But the chain of command decided to pile on additional charges

[00:12:48] Speaker 04:
after appellant already provided responses and he was completely unaware that this was added, even the best attorney would not know that all of a sudden now he's being accused of violating the assault and battery.

[00:13:00] Speaker 02:
Now, the way the board for correction of... But what we're trying to parse out is if the false statement's charge gets sustained and the only argument that you made against it is insufficiency of the evidence based on the preliminary determination, the probable false determination,

[00:13:18] Speaker 02:
So let's assume for the moment, I know you disagree with it, that we conclude the false statement's charge was supported by substantial evidence or was not clearly erroneous, whatever the standard is.

[00:13:30] Speaker 02:
Okay?

[00:13:30] Speaker 02:
And then I asked you, do you lose?

[00:13:34] Speaker 02:
And you said no, because they would not have discharged him if that's the only charge that had been sustained.

[00:13:42] Speaker 02:
I understand correctly what you're saying?

[00:13:45] Speaker 02:
Yes, under the second charge.

[00:13:47] Speaker 02:
What's the basis for your saying the false statement charge wouldn't have been sufficient?

[00:13:53] Speaker 04:
We would rely on the decision from the discharge review board that also didn't accept the charge of false official statements.

[00:14:01] Speaker 04:
And they said that appellant was fully eligible to continue to serve.

[00:14:05] Speaker 04:
He had an excellent service record of almost three years.

[00:14:08] Speaker 04:
He continued to be promoted.

[00:14:11] Speaker 04:
In fact, in January of 2016, he was actually recommended eligible for re-enlistment.

[00:14:19] Speaker 04:
The way that the board for correction of military records is trying to deal with this problem is that they're trying to say that the allegation of an assault and battery was covered under one of the allegations.

[00:14:33] Speaker 02:
Why are we reviewing the discharge review board instead of the

[00:14:38] Speaker 02:
separation decision by the chain of command.

[00:14:41] Speaker 04:
We would argue your honor that this is instructive on the court to see that there's just no evidence like the preliminary hearing officer stated and we can also rely on the presumption of regulations.

[00:14:57] Speaker 02:
We are reviewing the decision by the chain of command, not the discharge review board decision.

[00:15:01] Speaker 04:
We are reviewing, Your Honor, the Board for Correction of Military Records decision.

[00:15:06] Speaker 02:
Oh, right.

[00:15:07] Speaker 02:
But they, in turn, are reviewing the command decision.

[00:15:11] Speaker 04:
Yes, Your Honor.

[00:15:13] Speaker 04:
In his application, a parent argued that he was wrongfully discharged because he didn't receive proper notice and that the chain of... I'm sorry, Your Honor, I'm out of time.

[00:15:24] Speaker 04:
And that the appellant was essentially that the chain of command attempted to re-litigate the court-martial proceedings because he was charged with all those very serious violations.

[00:15:36] Speaker 04:
The hearing officer said there's just not enough evidence for false official statements, sexual assault.

[00:15:41] Speaker 04:
I recommend non-judicial punishment.

[00:15:43] Speaker 04:
And then he was still separated for the same grounds that they originally tried to use, Your Honor.

[00:15:52] Speaker 02:
Okay.

[00:15:53] Speaker 02:
All right.

[00:15:53] Speaker 02:
We're out of time.

[00:15:53] Speaker 02:
We'll give you two minutes for a bottle.

[00:15:55] Speaker 02:
Thank you, Your Honor.

[00:16:00] Speaker 02:
Mr. Lewis?

[00:16:12] Speaker 00:
Good morning, may it please the court.

[00:16:14] Speaker 00:
The Coast Guard met its due process requirements in discharging Mr. Osborne.

[00:16:18] Speaker 00:
He was provided notice of the reasons for his discharge and he was provided a meaningful opportunity.

[00:16:23] Speaker 01:
What were those reasons?

[00:16:24] Speaker 01:
Was he discharged for false statements?

[00:16:26] Speaker 00:
He was discharged for false statements as well as for sexual assault.

[00:16:30] Speaker 02:
Was this false statement sufficient to result in the discharge if the sexual assault allegations had not been sustained?

[00:16:39] Speaker 00:
Yes, Your Honor, it is both.

[00:16:40] Speaker 02:
How do we know that?

[00:16:41] Speaker 00:
Well, I would first point the court to the instruction M1000.4, which allows removal on the basis of false statements, but additionally to the BCMR decision, which in holding that or in upholding the determination that Mr. Osborne had made false statements, it concluded that false statements were the basis for the separation and then sustained that separation.

[00:17:08] Speaker 00:
I think the court, excuse me.

[00:17:10] Speaker 01:
I mean, there's confusion in the record.

[00:17:11] Speaker 01:
I don't know if it's because someone could argue it's because he got too much due process, because everybody kept on looking at this again.

[00:17:18] Speaker 01:
But they did keep switching the basis, right?

[00:17:23] Speaker 01:
I mean, what's a sexual assault and then sexual battery?

[00:17:26] Speaker 01:
So at the end of the day, the removal was for what?

[00:17:32] Speaker 01:
Not the removal, the honorable discharge.

[00:17:34] Speaker 00:
The honorable discharges for sexual assault as well as for making false official statements.

[00:17:40] Speaker 00:
I would agree that there is some inconsistency in the record documents that led to that point.

[00:17:47] Speaker 00:
But in response, I point the court to the notice of the intent to discharge, which identify the making false statements in relevant part, as well as the underlying sexual assault.

[00:17:59] Speaker 01:
So what do you understand his due process or his failure of notice?

[00:18:04] Speaker 01:
Which charge was that?

[00:18:05] Speaker 01:
Was that the battery?

[00:18:07] Speaker 00:
My understanding of my friend's arguments regarding the Article 128 assault defense is that by the commander including or opining that the appellant's act of picking up the unconscious victim and carrying her to his room was an assault, that Article 128 assault was not specifically articulated under that article in the preceding

[00:18:36] Speaker 00:
notice, but then it also did not continue past that commander's opinion in the recommendation.

[00:18:44] Speaker 03:
Is there a requirement that when you bring a charge like this that you withdraw it if you're not going to prosecute it?

[00:18:53] Speaker 00:
Your Honor, I'm not aware of any such requirements at this time.

[00:19:03] Speaker 00:
I would additionally note that to the extent that we're talking about failure of due process in relation to this matter, that the underlying nexus of facts underlying the sexual assault, the making false official statements under Article 107, originated even preceding the administrative separation from the criminal offense charges.

[00:19:28] Speaker 00:
then through the administrative separation process, and then subsequently, of course, as you noted, through the various administrative appeal and review processes.

[00:19:38] Speaker 00:
But the nexus effect, the nucleus of information that we're talking about here, the same investigations, the same witnesses for the events, these have been consistent since even prior to the administrative separation.

[00:19:52] Speaker 00:
And so to the extent that

[00:19:55] Speaker 00:
Mr. Osborne is pointing out the reference to Article 128 as depriving him of some opportunity for meaningful response.

[00:20:02] Speaker 00:
The underlying facts belie that procedural irregularity.

[00:20:09] Speaker 01:
Well, I see it on the false statements.

[00:20:11] Speaker 01:
It seems like that was traced all the way through starting at the beginning.

[00:20:15] Speaker 01:
The sexual assault is a little more muddled in my mind because of the paper trail.

[00:20:21] Speaker 00:
And I think we agree that the Article 128, which is not sexual assault, but general assault, it has its own article provisions, its own standards, is a departure from that sexual assault, though the... So why is that not a due process problem?

[00:20:38] Speaker 01:
Are you saying because they didn't rely on that at the end of the day?

[00:20:41] Speaker 00:
Yes, Your Honor.

[00:20:43] Speaker 00:
The Article 128 was not relied upon.

[00:20:45] Speaker 00:
It was not subsequently used as the basis to have held the room.

[00:20:51] Speaker 03:
You know that the ultimate decision was not prejudice.

[00:20:57] Speaker 00:
Well, I would point again the court to the underlying facts that the nature of this alleged Article 128 assault, the picking up the alleged victim and carrying her to his room while she was unconscious, are the same facts that

[00:21:11] Speaker 00:
were included with the sexual assault investigations.

[00:21:15] Speaker 00:
I'd additionally point the court to the point that the Article 128, though mentioned in the recommendation for Mr. Osborne's removal, was not then, the subsequent removal decisions did not emphasize that point and instead have found- Who made the Article 128?

[00:21:41] Speaker 03:
allegation or charge.

[00:21:42] Speaker 00:
That was the commander who referenced, who was the final reference to the PSC for the removal.

[00:21:50] Speaker 03:
The commander of the base.

[00:21:53] Speaker 00:
So it first went to a sector commander who noticed the discharge and then recommended a discharge and then went to a commander.

[00:22:00] Speaker 00:
Your honor, off the top of my head I'm forgetting the specific commander's role.

[00:22:07] Speaker 03:
My concern is that you have

[00:22:10] Speaker 03:
high-ranking, well, you have the commanders that have heightened the charges that have been brought against him, and then they don't follow up on it.

[00:22:24] Speaker 03:
And the charges are left dormant.

[00:22:27] Speaker 03:
He neither gets a chance to address the allegation, and he doesn't get a chance to

[00:22:40] Speaker 03:
addressing the prejudice that he could have had on the ultimate on the board.

[00:22:47] Speaker 03:
We don't know.

[00:22:48] Speaker 03:
I'm not saying there was, but there's a void here.

[00:22:53] Speaker 03:
There's something that's troubling about the due process.

[00:22:59] Speaker 03:
And he not getting a notice, and at least getting the opportunity to say, no, this isn't true.

[00:23:04] Speaker 03:
And then you proceed.

[00:23:09] Speaker 03:
remove him from military service based on the false statements.

[00:23:18] Speaker 00:
If I could, I'd like to refer to the, excuse me, I'm on the wrong page here.

[00:23:30] Speaker 00:
In response, Your Honor, I would first point out again that the specific act that we're talking about here, because on this evening there were

[00:23:37] Speaker 00:
sort of four events that took place.

[00:23:39] Speaker 00:
There was the buying alcohol for a minor, violation of Article 134.

[00:23:44] Speaker 00:
There was then, while that minor was, or 19-year-old, but minor for the purposes of alcohol, wasn't conscious, carrying that minor to the bedroom.

[00:23:54] Speaker 00:
There was sex, and then there was a sexual assault of the digital insertion of a finger into the anus.

[00:24:01] Speaker 00:
That one sub-part, that carrying the individual to the bedroom while she was unconscious, was part of the sexual assault investigation.

[00:24:12] Speaker 00:
In fact, the basis by which the commander came to that conclusion was through those same investigations reports that were the subject of the underlying sexual assault investigation.

[00:24:25] Speaker 00:
And so at the time that Mr. Osborne

[00:24:27] Speaker 00:
was provided this Article 128 reference, even if that's not necessarily standard by which he was removed.

[00:24:34] Speaker 00:
He did have notice of the specific issue.

[00:24:36] Speaker 00:
It had come up before.

[00:24:38] Speaker 00:
And he had sufficient notice in our minds to provide a meaningful response to that allegation.

[00:24:46] Speaker 03:
Was that decision made on the basis that the victim refused to testify?

[00:24:52] Speaker 00:
I'm sorry, for clarity, Your Honor, the decision

[00:24:54] Speaker 03:
I want to make sure I'm talking about the right decision.

[00:25:06] Speaker 00:
The Art 128 charge was based upon, by my read, the investigation reports.

[00:25:13] Speaker 00:
So there was the alleged victim's investigation reports.

[00:25:16] Speaker 00:
There was testimony from several witnesses at the party.

[00:25:20] Speaker 00:
And that's all reflected in the remand decision in some detail, quite clearly.

[00:25:25] Speaker 02:
So the 128 violation comes up for the first time June 12, 2017, and the district commander

[00:25:32] Speaker 02:
Yes.

[00:25:34] Speaker 02:
Before then and not after then.

[00:25:36] Speaker 00:
Correct, Your Honor.

[00:25:41] Speaker 00:
And with that point, I'd like to also move on to the second argument through which this panel emphasized initially, which was the

[00:25:55] Speaker 01:
false official statement charge through which Mr. Osborne could be... When you started, you said that that could be an independent basis.

[00:26:03] Speaker 01:
You cited some instruction.

[00:26:06] Speaker 00:
Yes, I believe the instruction is referenced.

[00:26:09] Speaker 00:
I should have it right here.

[00:26:11] Speaker 01:
But even if it could be an independent basis, let's assume hypothetically, and this is very hypothetical, that we would assume that's the string that he had notice of clearly and that was the assertion all along.

[00:26:23] Speaker 01:
And there'd have to be a determination not whether they could give him an honorable discharge based on that, but whether they did or whether they would have, right?

[00:26:33] Speaker 01:
So wouldn't that require a remand?

[00:26:35] Speaker 00:
I don't believe so, Your Honor, because that was, I believe, the determination of the remand, that Mr. Osborne had made false statements, or at least there was sufficient evidence for the branding officers to find that Mr. Osborne

[00:26:48] Speaker 00:
had made false statements and therefore the remand decision upheld the termination of Mr. Osborne.

[00:26:56] Speaker 00:
The BCMR did conclude that the false statements

[00:27:09] Speaker 00:
were the reference point by which Mr. Osborne was terminated, and I'd quote here, the applicant was in charge because he made false official statements to the CGIS agents during his interview under Article 1B7 of the Military Separations Manual, and I believe that's the M1000.4 Commandant Instruction.

[00:27:33] Speaker 00:
And unless the panel has any further questions, I can cede my time.

[00:27:37] Speaker 02:
Okay, thank you.

[00:27:46] Speaker 04:
Oh, Your Honor, in response to your question, that's exactly the process.

[00:27:50] Speaker 04:
If there's a wrong charge listed, the whole process needs to be redone to correct it.

[00:27:57] Speaker 04:
And then in terms of the- Why?

[00:28:00] Speaker 02:
I mean, are you talking about the 128 violation?

[00:28:02] Speaker 04:
Yes, Your Honor.

[00:28:03] Speaker 02:
That's mentioned one and only time in the district commander's decision.

[00:28:10] Speaker 02:
It's not mentioned earlier, it's not mentioned later.

[00:28:12] Speaker 02:
How is your client president?

[00:28:15] Speaker 04:
The fact that it's not mentioned earlier does the prejudice because it wasn't relied on later.

[00:28:20] Speaker 04:
We would contend that it was because this was a uniform code of military justice felony charge that was added after not relied on in the August 15th decision.

[00:28:33] Speaker 04:
Right.

[00:28:35] Speaker 04:
We would we would contend, Your Honor, that at the time when a parent was being separated, it was relied on because the chain of command added it.

[00:28:43] Speaker 04:
just like they added the allegation of cursing someone.

[00:28:47] Speaker 02:
My statement's correct, right?

[00:28:48] Speaker 02:
That the August 15th decision didn't rely on any violation of Article 128.

[00:28:56] Speaker 04:
We would contend that his separation did rely because the chain of... No, no, no, no.

[00:29:02] Speaker 04:
You're not answering my question.

[00:29:03] Speaker 02:
The August 15th decision did not rely on Article 128, correct?

[00:29:09] Speaker 04:
I would argue, Your Honor, that they did.

[00:29:12] Speaker 04:
because they put it in the chain of command recommendations that went all the way to the top of the Coast Guard.

[00:29:20] Speaker 04:
And Coast Guard made a determination on separation and on characterization of service and on ability to re-enlist.

[00:29:28] Speaker 04:
And then the legal standard here is what's in the notice, not what's in the investigation.

[00:29:35] Speaker 04:
There was never any mention of Article 128 in the notice.

[00:29:39] Speaker 04:
There was the investigation, but even a parent was not charged when he was going to a court martial with article 128.

[00:29:48] Speaker 04:
So his attorney and no one else had any notice that he was being separated for this.

[00:29:54] Speaker 01:
And you know the record obviously better than me, but this picking up and carrying issue.

[00:30:00] Speaker 01:
wasn't just limited to sexual assault, and I thought the discharge notice listed that issue under the category of false statement.

[00:30:08] Speaker 01:
Am I correct about that?

[00:30:09] Speaker 04:
Yes, Your Honor.

[00:30:10] Speaker 01:
So that was in the notice.

[00:30:12] Speaker 04:
That was in the notice to the extent that it was a false official statement, UCMJ Article 107, that you made a false official statement that you did not pick her up.

[00:30:22] Speaker 04:
Now, appellant said he did not remember.

[00:30:25] Speaker 04:
But this is different from Article 128, you assaulted and battered someone.

[00:30:32] Speaker 04:
So these are two different

[00:30:33] Speaker 04:
Are you seeing the articles this was addressed in the case of larry verses united states in that case the service member was charged with not report and not reporting to do i when they were re enlisting in the chain of comments and we're going to separate you for the two do i.

[00:30:49] Speaker 04:
But once he defended himself, the chain of command said, no, we're going to separate you for failing to report the DOIs.

[00:30:57] Speaker 04:
And Chief Judge Kaplan determined that this was a different charge based on that the service member never received due process because he was never notified about this and the separation was set aside.

[00:31:08] Speaker 04:
Like Your Honor pointed out, if a service member is not properly notified,

[00:31:12] Speaker 04:
They have to redo the process and usually they redo it by removing their own charge and restarting the process.

[00:31:19] Speaker 04:
This was never done here.

[00:31:20] Speaker 04:
That's why there's such a great confusion about why this append was separated.

[00:31:25] Speaker 04:
Coast Guard said sexual assault.

[00:31:27] Speaker 04:
Discharge review board said there was no sexual assault.

[00:31:31] Speaker 04:
You served unobtrusive miscellaneous reasons.

[00:31:33] Speaker 04:
Board for correction of military record said

[00:31:35] Speaker 04:
false official statements.

[00:31:38] Speaker 04:
At the end of the day, this servicemember had an impeccable service record, was recommended for retention, and the discharge review board said that he could have continued to serve honorably in Coast Guard.

[00:31:52] Speaker 04:
He had a four-year contract.

[00:31:54] Speaker 03:
Look at Appendix 249.

[00:31:55] Speaker 03:
I want you to help me understand

[00:32:05] Speaker 03:
I'm sorry, your honor, I'm out of time.

[00:32:24] Speaker 03:
Okay.

[00:32:26] Speaker 03:
Thank you.

[00:32:30] Speaker 03:
A flag endorsement, meaning somebody higher than me gets me to where I need to be to concur with the separation with the general for sexual assault.

[00:32:42] Speaker 03:
Is that prejudice in the process?

[00:32:49] Speaker 04:
Yes, Your Honor, we would contend that it was because the whole... Not 128.

[00:32:54] Speaker 04:
No, it's not.

[00:32:55] Speaker 04:
But the whole process has been tainted after appellant provided responses to the notification because now they're relying on sexual assault as the most serious offense and they're adding additional charges, same with coercing into committing rape.

[00:33:12] Speaker 04:
So we would argue, just as in Lowry,

[00:33:15] Speaker 04:
If the chain of command starts adding additional UCMJ violations, this taints the process and it has to be redined or the opponent is allowed to

[00:33:24] Speaker 04:
to provide responses.

[00:33:26] Speaker 04:
Service members do not have a lot of rights when they serve and swear to defend the Constitution of the United States.

[00:33:34] Speaker 04:
One of those rights is to be properly notified.

[00:33:37] Speaker 04:
That is across the board in all different instructions.

[00:33:41] Speaker 04:
And in the Coast Guard instruction, it also says you have to be notified by specific reason and provided with specific basis based on the known facts.

[00:33:51] Speaker 02:
If that kind of thing.

[00:33:52] Speaker 02:
I think we're out of time unless there are other questions.

[00:33:54] Speaker 02:
Okay, thank you.

[00:33:55] Speaker 02:
Thank both counsel, the case is submitted.

[00:33:57] Speaker 02:
Thank you, your honor.