[00:00:00] Speaker 02:
Maybe.

[00:00:03] Speaker 02:
Good morning.

[00:00:04] Speaker 02:
It may please the court.

[00:00:05] Speaker 02:
I'm Sean Griffin.

[00:00:06] Speaker 02:
I represent the appellant, Mr. Ryan Busse.

[00:00:09] Speaker 02:
I'd like to reserve four minutes for rebuttal.

[00:00:12] Speaker 02:
Mr. Busse challenges the Army Board's denial of upgrade and discharge status as arbitrary and capricious, primarily on three grounds.

[00:00:20] Speaker 02:
First, that the board formed an improper medical opinion that was adopted neither by the opinion of the agency's doctor or Mr. Busse's own private medical doctor.

[00:00:31] Speaker 02:
It's Mr. Bussey's doctors, as shown in the record in their medical opinion.

[00:00:35] Speaker 02:
There is a demonstrated link between PTSD and high-risk sexual behavior, and not only between that, but also between PTSD and criminal sexual conduct.

[00:00:45] Speaker 01:
Let me ask you this.

[00:00:52] Speaker 01:
DSM-5 has been supplemented by 5-TR, and hypersexual behavior hasn't been added.

[00:01:02] Speaker 01:
Does that in any fashion support the Army Board's psychologist and advisory opinion?

[00:01:09] Speaker 02:
The DSM-5 is not binding on the entire totality of PTSD.

[00:01:14] Speaker 02:
It does inform, however, PTSD.

[00:01:16] Speaker 02:
The DSM-5 does, however, include traits that are consistent with high-risk sexual behavior, includes other facts which are known to be in the Soloclea PTSD,

[00:01:26] Speaker 02:
including malconduct, including increased arousal, including reckless behavior.

[00:01:33] Speaker 02:
While it does not specifically cite to this specific type of conduct, it certainly cites to a number of factors which are informative of that conduct.

[00:01:41] Speaker 01:
I sit on a lot of veterans' appeals at the Federal Circuit, and we see expansions all the time.

[00:01:49] Speaker 01:
The VA finds Agent Orange covers something new, that kind of thing.

[00:01:55] Speaker 01:
And yet it's not necessarily reflected in the DSM, which is not as transitory.

[00:02:07] Speaker 01:
Balance that.

[00:02:08] Speaker 02:
Well, here the DSM-5 seeks to provide information that helps diagnose these conditions, but this is not by any means the only means of diagnosing these conditions.

[00:02:21] Speaker 02:
Mr. Bussey's doctor has provided a number of new studies

[00:02:25] Speaker 02:
And as you alluded to, there's development in these types of diagnoses of medical, especially mental health disorders.

[00:02:32] Speaker 02:
These new studies and new science determine that there is a link between high-risk sexual behavior and PTSD.

[00:02:41] Speaker 03:
Let me ask you to focus for a moment on what the board said.

[00:02:46] Speaker 03:
And it may have been focusing too narrowly on the actual crime for which Mr. Bussey was convicted.

[00:02:54] Speaker 03:
But it said, well, we've looked at Dr. Burdine's report.

[00:02:58] Speaker 03:
And we've looked at the articles.

[00:03:01] Speaker 03:
And while they do indicate that high-risk sexual behavior is

[00:03:06] Speaker 03:
a sequel of PTSD, none of them define high-risk sexual behavior in a way that would cover the crime of unwanted touching.

[00:03:16] Speaker 03:
And the army psychologists who only review the record say, we've looked at the DSM, and it's not there either.

[00:03:24] Speaker 03:
And we're unaware of anything that defines this very particular type of conduct, unwanted sexual touching, as a sequel of PTSD.

[00:03:36] Speaker 03:
We review those findings very differentially.

[00:03:40] Speaker 03:
I probably think they're incorrect, and there may be another way to look at it.

[00:03:44] Speaker 03:
But just focusing on it that way, why isn't it a rational decision by the agency?

[00:03:50] Speaker 02:
Perhaps the Seventh Circuit said it best in Schmidt, law judges and especially administrative law judges would resist the desire to play doctor.

[00:04:00] Speaker 02:
And here this is what the board did in this case.

[00:04:02] Speaker 02:
It's the medical opinion of Mr. Bussey's doctor and the agency's doctor that neither forecloses the fact that criminal sexual behavior could be included in PTSD.

[00:04:13] Speaker 00:
They had a competing

[00:04:14] Speaker 00:
Why were they required to be persuaded by Mr. Bussey's physician?

[00:04:21] Speaker 02:
They weren't required to be persuaded by Mr. Bussey's physician.

[00:04:25] Speaker 00:
Where's the error of law?

[00:04:27] Speaker 02:
The error of law is where the board acted in a manner that was arbitrary and capricious and considered factors that Congress did not intend it to.

[00:04:34] Speaker 00:
Well, counsel, break this down.

[00:04:35] Speaker 00:
I mean, your first point, really, is this one.

[00:04:39] Speaker 00:
And of course, they have a lot of discretion, as Judge Hurwitz has just indicated.

[00:04:42] Speaker 00:
They had competing medical opinions.

[00:04:44] Speaker 00:
And you think they were wrong to be persuaded by one rather than the other.

[00:04:50] Speaker 00:
So how is their opinion arbitrary and capricious?

[00:04:54] Speaker 00:
Did they not give sufficient explanation?

[00:04:57] Speaker 00:
What is it exactly?

[00:04:59] Speaker 02:
It's that the board reaches a medical opinion that is supported by neither doctor.

[00:05:04] Speaker 02:
The board forecloses the fact that criminal sexual behavior could be in the soliloquy of PTSD.

[00:05:10] Speaker 02:
Neither doctor reaches the conclusion that it's necessary to foreclose.

[00:05:13] Speaker 00:
That's helpful to me.

[00:05:14] Speaker 00:
Forgive me for interrupting.

[00:05:15] Speaker 00:
I'm just trying to be careful with your time.

[00:05:18] Speaker 00:
So that's helpful to me.

[00:05:19] Speaker 00:
So now go, please, to the

[00:05:21] Speaker 00:
to the government's expert, he thought that this was a sequela that should not be expected, right?

[00:05:27] Speaker 00:
That this particular crime involved elements that should not be expected from PTSD.

[00:05:34] Speaker 00:
Why was he wrong about that?

[00:05:36] Speaker 02:
Well, he was wrong about this scenario because it is demonstrated within these new developing studies and within the traits that are developing in the study of PTSD.

[00:05:48] Speaker 00:
Is it a problem then they were persuaded by an expert opinion that didn't take into account the new reports?

[00:05:54] Speaker 00:
Is that it?

[00:05:55] Speaker 02:
Yes, it doesn't take into this report, and it reaches a conclusion that's not supported by the facts and that was presented to the doctor.

[00:06:02] Speaker 02:
It tends to reach a conclusion that high-risk sexual behavior is only included in the traits of PTSD when it's consensual sexual behavior.

[00:06:13] Speaker 02:
And that's not something that the doctor was able to cite from any medical treatise or any medical record in that support.

[00:06:19] Speaker 01:
OK, got it.

[00:06:20] Speaker 01:
Are you, in effect, making a Dober analysis?

[00:06:23] Speaker 02:
Not in this case, no.

[00:06:24] Speaker 02:
In this case, we are simply seeking that the board be limited to adopting one of the medical opinions rather than forming its own medical opinion.

[00:06:37] Speaker 02:
And unfortunately, it appears that that's what the board did here.

[00:06:40] Speaker 03:
I'm sorry.

[00:06:41] Speaker 03:
I didn't mean to step on you.

[00:06:43] Speaker 03:
I want to get to other issues.

[00:06:44] Speaker 03:
But this is why I'm having some difficulty

[00:06:47] Speaker 03:
They did have an opinion from the psychologists who said this crime is not, in our view, a recognized sequel of PTSD.

[00:07:01] Speaker 03:
And they then looked at Dr. Burdine's report and said, well, she says high-risk sexual behaviors are.

[00:07:07] Speaker 03:
But we don't think this is a high-risk sexual behavior.

[00:07:11] Speaker 03:
So they did adopt one of the opinions.

[00:07:14] Speaker 03:
They may have adopted it incorrectly.

[00:07:17] Speaker 03:
But it wasn't as if they had no evidence in front of them and then just said, well, we'll make up our own medical diagnosis.

[00:07:23] Speaker 03:
But I want you to focus for a moment on the statute.

[00:07:27] Speaker 03:
What does the statute require the board to consider?

[00:07:30] Speaker 02:
It requires the board to consider four factors, which are enumerated under the curtain.

[00:07:35] Speaker 03:
Well, you're now talking about the interpretation of the statute by the army.

[00:07:39] Speaker 03:
What's the actual statutory language?

[00:07:41] Speaker 03:
What do they have to consider?

[00:07:43] Speaker 02:
The board is to weigh Mr. Busse's PTSD.

[00:07:47] Speaker 03:
Now, look at the actual language of the statute for me.

[00:07:51] Speaker 03:
The statute talks that they should weigh the circumstances.

[00:07:54] Speaker 02:
Yes.

[00:07:55] Speaker 03:
That led to the discharge.

[00:07:57] Speaker 02:
Yes, that is correct.

[00:07:58] Speaker 03:
Statute doesn't say they should weigh the elements of the crime.

[00:08:02] Speaker 03:
They should weigh the circumstances that led to the discharge.

[00:08:07] Speaker 03:
Is this a case in which the circumstances that led to the discharge were high-risk sexual behavior, even if the precise crime was not?

[00:08:15] Speaker 02:
Yes, that is what's supported by the information presented and the medical diagnosis.

[00:08:21] Speaker 03:
So I want to focus on those circumstances for a moment so that I understand what was in the record and what was not.

[00:08:27] Speaker 03:
This was a one-time encounter, correct?

[00:08:31] Speaker 02:
That's correct.

[00:08:32] Speaker 03:
Lasted how long, can we tell from the record?

[00:08:36] Speaker 02:
It is disputed, but it's approximately eight hours.

[00:08:39] Speaker 03:
Mr. Busse knew that this woman had relations with other members of his platoon beforehand?

[00:08:48] Speaker 02:
That's correct.

[00:08:49] Speaker 03:
Does the record tell us how many?

[00:08:51] Speaker 02:
I do not believe so.

[00:08:54] Speaker 03:
Does the record tell us whether he was intoxicated or?

[00:08:58] Speaker 03:
The record does not show that.

[00:09:00] Speaker 03:
We knew that he had a problem, but we just don't know on that day whether he was.

[00:09:03] Speaker 02:
Yes, well, Mr. Busse was, as is demonstrated, experiencing severe PTSD as a result of his service.

[00:09:10] Speaker 03:
Right, and I also thought the commanding officer's reports indicated that he had some substance abuse.

[00:09:16] Speaker 03:
Yes, that is also accurate.

[00:09:20] Speaker 03:
Yes.

[00:09:20] Speaker 03:
And we also know that the woman was married.

[00:09:24] Speaker 03:
I'm not clear that I can tell from the record whether Mr. Busse knew that at the time.

[00:09:29] Speaker 02:
I'm not aware of that fact either.

[00:09:31] Speaker 03:
OK.

[00:09:33] Speaker 03:
I think he says, I found out the next day or something like that.

[00:09:36] Speaker 03:
But put all those facts together, engaging in

[00:09:42] Speaker 03:
It's difficult in this record, because we have a finding of, I think what we have is a compromised jury verdict.

[00:09:48] Speaker 03:
We have a finding of no rape, but unwanted sexual touching.

[00:09:52] Speaker 03:
And it all occurs in the eight hours.

[00:09:54] Speaker 03:
So it's hard for me to figure out how that happened.

[00:09:56] Speaker 03:
But just assuming for a moment that there was unconsented sexual touching during that period, were the circumstances that led to that a high risk sexual behavior?

[00:10:06] Speaker 02:
Yes, that's what's demonstrated.

[00:10:09] Speaker 02:
The PTSD includes factors which are traits which were demonstrated in Mr. Capositi's conduct that day.

[00:10:16] Speaker 03:
Furthermore, what's important to me is I don't think the statute says we should determine whether the elements of the offense are a high-risk sexual behavior.

[00:10:27] Speaker 03:
It says we should determine whether the circumstances that led to the discharge

[00:10:32] Speaker 03:
were potentially, so we have two weasel words there, potentially contributed to by the PTSD.

[00:10:40] Speaker 03:
And so I'm trying to look at the circumstances holistically.

[00:10:42] Speaker 03:
And I want to tee that up for your friend, too, because that's what troubles me about this case.

[00:10:47] Speaker 03:
They seem to be doing what we do call a categorical analysis here.

[00:10:51] Speaker 03:
We're looking at the elements of the offense and trying to figure out how they occurred.

[00:10:55] Speaker 03:
And we're trying to figure out the circumstances.

[00:10:57] Speaker 02:
Yes, and that's exactly right.

[00:10:59] Speaker 02:
And that delves into our next point.

[00:11:00] Speaker 02:
The agent at the board in this case implied an improper standard of law and concluded factors that Congress did not intend it to when concluding that if they were to grant Mr. Bussey's petition, they would be providing a PTSD-based exoneration to all sexual misconduct.

[00:11:16] Speaker 00:
Council, I'd like to break in here, if I could, to ask you something different so you have an opportunity to respond.

[00:11:22] Speaker 00:
We've got three memos here, the Hegel memo, the Curda memo, and the Wilkie memo.

[00:11:25] Speaker 00:
Yes.

[00:11:25] Speaker 00:
The board's opinion doesn't mention any of them.

[00:11:28] Speaker 00:
It recognizes that there are these memos.

[00:11:31] Speaker 00:
And I can certainly tell from the language they use that they considered the Hegel memo and the Curda memo.

[00:11:35] Speaker 00:
I can't tell that they considered the Wilkie memo.

[00:11:37] Speaker 00:
Can you?

[00:11:39] Speaker 02:
No.

[00:11:40] Speaker 00:
OK, the Wilkie memo says that the board shall consider, and the first thing it mentions is,

[00:11:46] Speaker 00:
The custom and practice of the military to honor the sacrifices and achievements of the member.

[00:11:51] Speaker 00:
And I think your client's sacrifices and achievements are uncontested.

[00:11:54] Speaker 00:
Is that correct?

[00:11:55] Speaker 00:
His service was described as exemplary prior to his deployment.

[00:11:58] Speaker 00:
That is correct.

[00:11:58] Speaker 00:
All right.

[00:11:59] Speaker 00:
Then it says that desire to punish only to the extent necessary.

[00:12:04] Speaker 00:
Your client was found guilty.

[00:12:07] Speaker 00:
Yes.

[00:12:07] Speaker 00:
And sentenced to six months, and he served that time, correct?

[00:12:09] Speaker 02:
That is correct.

[00:12:10] Speaker 00:
All right.

[00:12:11] Speaker 00:
Then it prioritizes in the first sentence the need to rehabilitate to the greatest extent possible.

[00:12:18] Speaker 02:
Yes.

[00:12:18] Speaker 00:
And to favor second chances.

[00:12:20] Speaker 02:
Yes, that is correct.

[00:12:20] Speaker 00:
What I can't tell is, in this 50-page opinion, where the board makes any allowance at all for the need to rehabilitate.

[00:12:31] Speaker 00:
If you go to sub 7, which is an itemized list, a long one to be sure, but I don't see any acknowledgment of the following factors.

[00:12:41] Speaker 00:
And this is for opposing counsel's benefit as well, so he has an opportunity to respond.

[00:12:45] Speaker 00:
the length of time since the misconduct, I think 14 years.

[00:12:48] Speaker 00:
Is that right?

[00:12:49] Speaker 00:
The degree to which the requested leave is necessary for this particular applicant.

[00:12:53] Speaker 00:
He's wheelchair-bound.

[00:12:54] Speaker 02:
That is correct.

[00:12:55] Speaker 00:
The record shows that he's living in his car.

[00:12:57] Speaker 02:
At one point, yes.

[00:12:59] Speaker 00:
And that he was, at the time, bathing in the river when he could bathe.

[00:13:04] Speaker 02:
At one time, that was correct, yes.

[00:13:05] Speaker 00:
That's the time we care about, counsel.

[00:13:07] Speaker 00:
That's the time we're looking at.

[00:13:09] Speaker 00:
So if there's some hidden meaning in your response to me, let me know what it is.

[00:13:12] Speaker 00:
But this is the relevant time, the time of their decision.

[00:13:14] Speaker 02:
That is correct.

[00:13:15] Speaker 00:
All right.

[00:13:15] Speaker 00:
Then I'll go on.

[00:13:17] Speaker 00:
The critical illness or old age, your client is not an old man, but he is wheelchair-bound.

[00:13:22] Speaker 02:
That is correct.

[00:13:23] Speaker 00:
Right.

[00:13:23] Speaker 00:
And I don't think there's any question that the board acknowledged he suffers from serious PTSD.

[00:13:30] Speaker 00:
I don't see any acknowledgment or discussion of other available remedies, and that's the thing that bothers me the most.

[00:13:36] Speaker 00:
It seems to me to be the case that if the board was aware that your client had other avenues available to him to further this acknowledgment of the need to rehabilitate to the greatest extent possible, then the board kept that to itself.

[00:13:50] Speaker 00:
I don't see any consideration of that factor.

[00:13:52] Speaker 00:
I want to raise this to both of you so you can explain it to me, because it may be that the board knew something we don't know.

[00:13:59] Speaker 00:
about what other options are available to your client.

[00:14:03] Speaker 02:
No, and Mr. Busse at that point had no other options at that point.

[00:14:07] Speaker 02:
And that is the basis of his petition for discharge status upgrade.

[00:14:11] Speaker 02:
As you may be aware, due to a bad conduct discharge, Mr. Busse is foreclosed from receiving VA medical treatment.

[00:14:16] Speaker 02:
And as a result, the board has essentially conceded that he has obtained a PTSD as a result of his service.

[00:14:25] Speaker 02:
The PTSD, as we allege, was a factor that needs to be considered alongside his conduct.

[00:14:30] Speaker 02:
But because of that conduct, he's unable to then receive that benefits would allow him treatment for that PTSD.

[00:14:35] Speaker 00:
OK.

[00:14:36] Speaker 00:
So here's the other thought that I want to articulate out loud so you can both have a chance to respond.

[00:14:42] Speaker 00:
And we'll give you some more time when you come back.

[00:14:44] Speaker 00:
And I certainly want the government to be able to respond.

[00:14:47] Speaker 00:
It is no secret to us that the government has been, the military has been thumped

[00:14:51] Speaker 00:
repeatedly for its what I'm going to say I hope you forgive me for a persistent refusal some people have perceived or failure to account for the very serious incidents of sexual assault within the military.

[00:15:04] Speaker 00:
I understand that.

[00:15:05] Speaker 00:
I think we all understand that.

[00:15:07] Speaker 00:
And then Congress has come back, and as Judge Hurwitz has mentioned, and as these three memos make very, very clear, with a competing imperative, and that is to take care of our veterans.

[00:15:15] Speaker 00:
So that puts the board in a pretty tough spot.

[00:15:18] Speaker 00:
And it puts the board in a particularly tough spot that we haven't really got any case law to speak of in this area.

[00:15:23] Speaker 00:
Very, very little.

[00:15:24] Speaker 00:
So we haven't spoken to this.

[00:15:26] Speaker 00:
And if I put myself in the board's shoes,

[00:15:28] Speaker 00:
That makes it pretty tough.

[00:15:30] Speaker 00:
We're going to review this very, very differentially as we are required to do.

[00:15:34] Speaker 00:
But I am concerned that the board hasn't engaged.

[00:15:37] Speaker 00:
And in the final analysis, even though this is 50 pages, their analysis is this is a serious offense, and the PTSD doesn't sufficiently mitigate.

[00:15:46] Speaker 00:
I mean, it really kind of boils down to one sentence, right?

[00:15:50] Speaker 00:
So what else would we expect to see the board do in this circumstance?

[00:15:56] Speaker 02:
we would expect the board to review this circumstance as it applies to Mr. Bussey specifically.

[00:16:02] Speaker 02:
Rather than making casting dispersions that this would provide a PTSD based exoneration to all sexual misconduct, we'd ask that the board review Mr. Bussey's occurrence of PTSD

[00:16:14] Speaker 02:
and his circumstances as well in order to balance these factors and reach a decision.

[00:16:21] Speaker 02:
And it appears that the board foreclosed itself from doing so and a concern about providing an exoneration to other individuals or setting a precedent, which is not a factor that Congress has intended it to consider.

[00:16:30] Speaker 03:
I know we're over time, but I wanted the other side to have the opportunity to respond to this question.

[00:16:36] Speaker 03:
Sure.

[00:16:37] Speaker 03:
Let's assume we believe you're correct.

[00:16:39] Speaker 03:
What is the relief that you think we should order?

[00:16:43] Speaker 02:
This should be remanded back to the board where Mr. Busse should have a new hearing.

[00:16:47] Speaker 02:
Mr. Busse should again be able to present evidence as the agency would be able to.

[00:16:52] Speaker 02:
And the proper weighing of this evidence would occur.

[00:16:54] Speaker 02:
And that would be considered only based on Mr. Busse's occurrence of PTSD and his conduct rather than external motivations and external factors.

[00:17:03] Speaker 03:
Thank you.

[00:17:04] Speaker 00:
Judge, anything further?

[00:17:06] Speaker 01:
Well, I'm going to ask your friend, but it seems to me that

[00:17:14] Speaker 01:
One of the major sequelae of PTSD is high-risk behavior across the board.

[00:17:22] Speaker 01:
Am I not correct?

[00:17:23] Speaker 02:
That is correct, including reckless behavior and other types of increased arousal.

[00:17:26] Speaker 01:
Is your motorcycle too fast, for example?

[00:17:28] Speaker 02:
Yes.

[00:17:30] Speaker 00:
Anything further?

[00:17:31] Speaker 02:
Not at this time.

[00:17:32] Speaker 02:
Thank you.

[00:17:32] Speaker 00:
When you come back, we'll put two minutes on the clock, so you have an opportunity to respond.

[00:17:35] Speaker 00:
But we need to hear from the government.

[00:17:36] Speaker 02:
Thank you, Your Honor.

[00:17:48] Speaker 04:
Good morning, and may it please the court.

[00:17:49] Speaker 04:
My name is James Schaeffer.

[00:17:50] Speaker 04:
I'm an Assistant United States Attorney in the District of Idaho, and I'm appearing on behalf of the Secretary of the Army.

[00:17:55] Speaker 01:
Pick up on my question, my last question slash comment to your friend.

[00:18:00] Speaker 04:
Yes, I think the board recognized that high-risk sexual behavior is a potential sequela of PTSD.

[00:18:08] Speaker 04:
But then the board draws a distinction between high-risk sexual behavior, as discussed in the article cited by Dr. Burdine, which all relate to consensual high-risk sex behavior, and draws a distinction between that and criminal conduct.

[00:18:22] Speaker 03:
So if this had been a rape, if he had been convicted of a rape,

[00:18:30] Speaker 03:
Would the evidence submitted not suggest that the circumstances that his PTSD, liberally construed, led to the circumstances of the events?

[00:18:44] Speaker 04:
Not on record before this board, Your Honor.

[00:18:46] Speaker 03:
Well, why not?

[00:18:47] Speaker 03:
I mean, the doctor, everybody says high-risk sexual behaviors are a consequence of PTSD.

[00:18:54] Speaker 03:
Hard to think of a higher-risk sexual behavior than rape.

[00:19:00] Speaker 03:
And so if this were a rape case and they said, gee, there's no evidence that PTSD leads to that kind of behavior, I'd have no problem at all saying, oh, come on.

[00:19:13] Speaker 03:
It leads to loss of impulse.

[00:19:14] Speaker 03:
Everybody agrees it leads to loss of impulse control.

[00:19:19] Speaker 03:
It leads to heightened sexual desire.

[00:19:21] Speaker 03:
There's a whole variety of things that would suggest it was relevant to that.

[00:19:26] Speaker 03:
And so I'm having trouble figuring out why, because he was convicted of the lesser offense here under the same circumstances for which he was charged with the rape.

[00:19:37] Speaker 03:
All of this isn't relevant to determining.

[00:19:41] Speaker 03:
My difficulty is the board says we're not going to, it wasn't the but for cause, so we're done.

[00:19:46] Speaker 03:
But it's not what the statute says.

[00:19:47] Speaker 03:
The statute says liberally construed, potentially contributed to.

[00:19:53] Speaker 03:
And it doesn't seem to me they honor the statutory.

[00:19:57] Speaker 04:
So there's two parts to your question, Your Honor.

[00:19:58] Speaker 04:
Taking your hypothetical, had he been convicted of rape, was there evidence before this board that high-risk sexual behavior can contribute to rape?

[00:20:08] Speaker 04:
I disagree that evidence exists in this record.

[00:20:10] Speaker 03:
Why not?

[00:20:11] Speaker 03:
I've read the articles, and I've read the opinion.

[00:20:14] Speaker 03:
And what Dr. Burdane says, and seems to me quite undisputed, is because this condition leads to a loss of impulse control and heightened sexual

[00:20:25] Speaker 03:
desires and things like that, it contributes to high-risk sexual behaviors.

[00:20:31] Speaker 03:
Now, nobody thinks there's a single definition of high-risk sexual behavior, but it's hard for me to think of one more paradigmatic than rape.

[00:20:42] Speaker 04:
So the articles Dr. Burdine rely on give examples of high-risk sexual behavior, multiple sexual partners, unprotected sex, casual sex.

[00:20:51] Speaker 00:
Those articles don't take the next step.

[00:20:53] Speaker 04:
Sorry, Your Honor.

[00:20:53] Speaker 00:
I interrupted you.

[00:20:54] Speaker 00:
Go right ahead.

[00:20:55] Speaker 00:
Forgive me.

[00:20:55] Speaker 04:
Those articles don't actually support the conclusion that PTS leads to high-risk sexual behavior, including rape.

[00:21:03] Speaker 04:
On top of which, the standard review in this case is very deferential.

[00:21:07] Speaker 04:
This board wasn't presented with just Dr. Burdine's opinion.

[00:21:10] Speaker 04:
It had an opinion in the second go-round from an Army Board of Review psychologist that takes the opposite position.

[00:21:21] Speaker 03:
His position is simply, because I've read his report, this is not a recognized sequel of PTSD, correct?

[00:21:30] Speaker 03:
He doesn't diagnose Mr. Bussey.

[00:21:33] Speaker 03:
He looks at his medical records and says, yeah, even if he has PTSD, I've searched the literature in the DSM, and I can't find anything that says this is a recognized sequel.

[00:21:45] Speaker 03:
That's all he says.

[00:21:46] Speaker 04:
Yes.

[00:21:47] Speaker 04:
And it was not irrational for this board to be more persuaded by that doctor's opinion.

[00:21:52] Speaker 00:
The board is also, in its opinion, recognizing that there's a difference here, an important distinction.

[00:21:57] Speaker 00:
And this goes back, I think, to the point I was making earlier.

[00:22:00] Speaker 00:
The military has been strongly criticized for not recognizing that rape is a crime, a violence, for not recognizing the nature of the offense, of that offense.

[00:22:11] Speaker 00:
So I, as I said, have some sympathy for the board for being caught betwixt and between here.

[00:22:17] Speaker 00:
These are two very important competing narratives.

[00:22:20] Speaker 00:
But Congress has been clear, as Judge Hurwitz indicated, and the standard that applies here is capacious.

[00:22:27] Speaker 00:
And I don't know that that is reflected at all in the board's opinion.

[00:22:32] Speaker 00:
This most recent memo, the Wilkie memo, I don't see reflected in the board's decision.

[00:22:37] Speaker 00:
Do you?

[00:22:37] Speaker 04:
It is, Your Honor.

[00:22:38] Speaker 04:
So in the record proceedings,

[00:22:41] Speaker 00:
The Curda memo is.

[00:22:43] Speaker 04:
The Curda memo is, but then the record proceedings, the last several pages of it is the attachments.

[00:22:48] Speaker 04:
And if you go to excerpt of record 114, paragraph 8 contains a summary of the Willkie memo, including the... I'm looking at the decisional document.

[00:23:00] Speaker 00:
Is ER 114 something else?

[00:23:02] Speaker 04:
It is in the decisional document, Your Honor.

[00:23:05] Speaker 04:
Well.

[00:23:08] Speaker 04:
The body of the record of proceedings ends at ER 100 with the vote.

[00:23:15] Speaker 04:
And then the next page is part of the AMBCR's record of proceedings, and it's continued.

[00:23:21] Speaker 04:
And it lists all of the references.

[00:23:23] Speaker 00:
Yes, counsel, but I'm looking at ER about 99, 98, which explains the basis for their ultimate conclusion.

[00:23:30] Speaker 00:
And it comes down to about two sentences that says on 99 that this is a serious offense.

[00:23:36] Speaker 00:
No question it was a serious offense.

[00:23:37] Speaker 00:
And a jury found him guilty.

[00:23:39] Speaker 00:
And he has been punished.

[00:23:40] Speaker 00:
And he served that time.

[00:23:41] Speaker 00:
I am not pushing back on that.

[00:23:43] Speaker 00:
This case to me is, I'm just one of three.

[00:23:46] Speaker 00:
But it boils down to the board's ultimate decision of weighing, could this have been mitigating?

[00:23:50] Speaker 00:
I think the board actually concedes that it could have been.

[00:23:53] Speaker 00:
And then they decide it's not.

[00:23:55] Speaker 00:
And they decide that's a really serious offense.

[00:23:57] Speaker 00:
It does beg the question that opposing counsel asked in his brief to the board, which is, if this record doesn't qualify as mitigating, it seems like nothing ever would if the offense is sexual in nature.

[00:24:10] Speaker 04:
So I agree, Your Honor.

[00:24:12] Speaker 04:
The board does say, whatever the mitigating effect of PTSD, if this crime is so serious, we're not going to grant clemency.

[00:24:19] Speaker 04:
The only path to relief from Mr. Bussey in this case, as a result of 10 U.S.A.

[00:24:24] Speaker 04:
1552f, is clemency.

[00:24:26] Speaker 04:
And the Wilkie memo is the only guidance that tells the board what factors you look at.

[00:24:31] Speaker 04:
But that memo is very clear.

[00:24:33] Speaker 04:
Clemency is not required.

[00:24:35] Speaker 00:
Yes, sir.

[00:24:37] Speaker 00:
But it does say the board shall consider

[00:24:40] Speaker 00:
Right?

[00:24:40] Speaker 00:
It uses that verb.

[00:24:43] Speaker 00:
And I don't see that they did.

[00:24:45] Speaker 00:
Where does it say anything about considering the enumerated factors that include the degree to which this particular individual, right, to which the requested relief is necessary for the applicant?

[00:24:58] Speaker 00:
He's in a wheelchair.

[00:24:59] Speaker 00:
He's in dire straits.

[00:25:00] Speaker 00:
And it also requires that they look at the availability of other remedies, counsel.

[00:25:03] Speaker 00:
And I don't think they discussed that at all.

[00:25:06] Speaker 04:
Well, I would go back to the application, Your Honor.

[00:25:08] Speaker 04:
Mr. Bussey didn't assert in his application that some of the things that you've raised, for example, the fact that he's now as a result of a motorcycle accident in a wheelchair.

[00:25:19] Speaker 00:
Well, sure.

[00:25:20] Speaker 04:
The board's aware of that.

[00:25:21] Speaker 04:
But clemency involves, in this case, action on a sentence of a court martial.

[00:25:26] Speaker 04:
A court-martial consisting of both officer and listed members found that a dishonorable discharge.

[00:25:31] Speaker 04:
In fact, it's sentenced to that.

[00:25:32] Speaker 00:
Yes, I appreciate that.

[00:25:33] Speaker 04:
He was granted clemency by the convening authority, and that's how he results in a bad conduct discharge.

[00:25:38] Speaker 04:
Right.

[00:25:39] Speaker 04:
And the board here says, we've looked at that, and it identifies the circumstances as 40-some pages of what leads up to this point where the board makes the decision, and says simply that

[00:25:51] Speaker 04:
The mitigation here, whatever it is, isn't sufficient given the severity of the crime.

[00:25:56] Speaker 04:
And I understand that Your Honor's concern that the military has been, in your words, been thumped about less than- Well, I think it has.

[00:26:03] Speaker 00:
And I appreciate the concern for this.

[00:26:04] Speaker 00:
I genuinely do.

[00:26:06] Speaker 00:
But Congress had another concern in mind about taking care of veterans.

[00:26:12] Speaker 05:
Yes.

[00:26:13] Speaker 00:
There are competing concerns.

[00:26:15] Speaker 00:
And number one, where it says that the board shall consider,

[00:26:19] Speaker 00:
The first thing they say is, the military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances.

[00:26:30] Speaker 00:
I don't see any dispute about the sacrifices and achievements or that punishment was necessary, appropriate, and that he served his time.

[00:26:40] Speaker 00:
I'm trying to figure out whether they look where.

[00:26:42] Speaker 00:
They account for, when they make this decision about this isn't sufficiently mitigating, where do they account for the need to rehabilitate to the greatest extent possible and to favor second chances?

[00:26:54] Speaker 00:
I don't think they mention it.

[00:26:55] Speaker 04:
The board clearly mentions his service, his combat service, his services going to ranger school.

[00:27:02] Speaker 04:
The record makes clear that the board was aware of his military service and aware of the misconduct that resulted in the discharge.

[00:27:08] Speaker 04:
And the board makes a rational conclusion based on the evidence before it that there's not been an injustice.

[00:27:13] Speaker 00:
Can I?

[00:27:13] Speaker 00:
I'm sorry.

[00:27:14] Speaker 00:
There's not.

[00:27:15] Speaker 00:
Forgive me.

[00:27:15] Speaker 04:
There's not been an injustice here.

[00:27:16] Speaker 04:
That is not unjust for a service member convicted of wrongful sexual contact.

[00:27:21] Speaker 04:
In this case, touching a woman's vagina with his penis without her consent, that service member having a BCD is not an injustice.

[00:27:30] Speaker 00:
OK.

[00:27:30] Speaker 00:
So I just want to be sure that you don't see it either.

[00:27:34] Speaker 00:
any indication or consideration by the board in its decision of the need for this individual to receive these services or the availability of any other remedies to him.

[00:27:46] Speaker 00:
I don't see it.

[00:27:47] Speaker 00:
But if you do this, it is a sincere question.

[00:27:49] Speaker 00:
I'm not trying to set you up.

[00:27:50] Speaker 04:
I want to make sure I haven't missed it.

[00:27:52] Speaker 04:
In terms of other remedies, the board does comment early on that Mr. Bussey is seeking an upgrade so that he can serve, for example, VA medical care.

[00:28:00] Speaker 04:
And the board says, that's not within his purview.

[00:28:02] Speaker 04:
It cannot grant relief.

[00:28:05] Speaker 00:
So that's something he's not going to receive.

[00:28:07] Speaker 00:
Yeah.

[00:28:08] Speaker 04:
So in terms of other avenues, what is the other avenue of rehabilitation?

[00:28:12] Speaker 04:
I don't identify one in the application.

[00:28:15] Speaker 00:
Yes, but this has nothing to do with his application, as far as I'm concerned.

[00:28:18] Speaker 00:
But please, correct me if I'm wrong.

[00:28:20] Speaker 00:
This Wilkie memo is binding whether he said anything in his application.

[00:28:26] Speaker 00:
Yes.

[00:28:26] Speaker 00:
Board is required to consider these points.

[00:28:28] Speaker 04:
I would agree that under the Fisher decision, I don't believe the Federal Circuit, when the Army promulgates guidance, they're required to follow it.

[00:28:33] Speaker 00:
Thank you for your patience with my questions.

[00:28:35] Speaker 00:
I cut off Judge Hurwitz.

[00:28:36] Speaker 03:
Well, I was going to ask you about, and

[00:28:40] Speaker 03:
I'm not sure I know the effect of any of these memoranda after Loeb or Bright, but let's put that aside for a second.

[00:28:48] Speaker 03:
The fourth criterion in the CURTA memorandum is, does that condition or experience outweigh the discharge?

[00:28:57] Speaker 03:
And in this case, the board says it does not.

[00:29:00] Speaker 03:
But do you agree that if we think the board didn't properly evaluate the PTSD, we have to send it back for them to do a proper evaluation of it and then do the weighing?

[00:29:12] Speaker 03:
See, I don't think they said.

[00:29:14] Speaker 03:
I do not, Your Honor.

[00:29:15] Speaker 03:
Even if we believe everything, even if we believe this condition, this crime was caused by the PTSD, it doesn't matter to us.

[00:29:24] Speaker 03:
I don't think I read them as saying that.

[00:29:26] Speaker 03:
Do you read them as saying that?

[00:29:28] Speaker 04:
I do, Your Honor.

[00:29:29] Speaker 04:
What the board says is whatever the mitigating effect.

[00:29:31] Speaker 04:
The board acknowledges that there is disputed expert evidence on whether PTAs.

[00:29:35] Speaker 03:
Well, but it doesn't say, even if we believe Dr. Burdine, we don't care.

[00:29:42] Speaker 03:
I mean, and that's my difficulty.

[00:29:44] Speaker 03:
That's a function for the board, not for me.

[00:29:46] Speaker 03:
But I'm trying to figure out whether I should treat their final statement as saying, which would be kind of strange, because they've devoted 50-something pages to

[00:29:58] Speaker 03:
debunking Dr. Pradeep's opinion.

[00:30:00] Speaker 00:
Could you just finish your answer to this question?

[00:30:01] Speaker 00:
Because I want to make sure I get your point here.

[00:30:04] Speaker 03:
Yeah.

[00:30:04] Speaker 03:
So is it that this is an independent ground for affirming the board?

[00:30:08] Speaker 03:
Or is it that we really, the board, in doing that, took into account its evaluation of the PTSD evidence?

[00:30:16] Speaker 00:
And now we're going to let you answer that question.

[00:30:18] Speaker 04:
Yes, I believe that even if this court finds there was some irregularity in the treatment of the expert testimony or expert opinions, this court can affirm.

[00:30:27] Speaker 04:
Because the board's clear on the basis of its decision.

[00:30:30] Speaker 04:
Whatever the mitigation, the severity of this offense outweighs it.

[00:30:42] Speaker 00:
So there'd be no way for a person convicted of this offense, a vet, to ever receive relief?

[00:30:48] Speaker 04:
No, all the board is considering is the evidence before it and whether Mr. Bussey met his evidentiary burden of establishing an injustice by a preponderance of the evidence.

[00:30:57] Speaker 00:
Right, right.

[00:30:58] Speaker 00:
So finish this point if I could.

[00:30:59] Speaker 00:
Please, please.

[00:30:59] Speaker 00:
Forgive me.

[00:31:01] Speaker 00:
And your point is that I think you're saying, yes, you read the report to say this conviction, the conduct, was so severe.

[00:31:11] Speaker 00:
that even taking in all of the factors, which you're wanting to read, and that they, I didn't mean that pejoratively, that they considered the three memos, and that it could not have been mitigated by anything in this record?

[00:31:26] Speaker 00:
Could not have been?

[00:31:27] Speaker 04:
This could not have been, which I don't agree with.

[00:31:30] Speaker 04:
This board was only charged with evaluating the evidence before it.

[00:31:33] Speaker 04:
And on the record before it, it found the severity of this crime weighed whatever mitigation came from PDST.

[00:31:40] Speaker 03:
OK, but is it whatever mitigation they accepted or whatever mitigation he presents?

[00:31:45] Speaker 03:
So I want to go back to Judge Kristen's question.

[00:31:48] Speaker 03:
Let's assume that the board had found, yes, Dr. Burdine is right.

[00:31:54] Speaker 03:
Your conduct in this case arose from your PTSD.

[00:31:58] Speaker 03:
And let's assume that they even found it was caused by your PTSD.

[00:32:04] Speaker 03:
And you're saying, even if they found all that,

[00:32:08] Speaker 03:
they were entitled to say, we don't care because the crime is serious enough.

[00:32:14] Speaker 04:
I wouldn't phrase it as we don't care, but the board was within its discretion to say, yes, we agree with Dr. Perdine.

[00:32:23] Speaker 04:
Yes, you have PTSD.

[00:32:25] Speaker 04:
Yes, PTSD results in a heterosexual behavior, including rape.

[00:32:29] Speaker 04:
But we're still not granting a relief because the severity of this crime warranted a bad conduct discharge.

[00:32:34] Speaker 03:
And that's how you read their opinion.

[00:32:36] Speaker 03:
That's how you read their opinion.

[00:32:38] Speaker 00:
Okay, yeah.

[00:32:41] Speaker 00:
We'll give you more than eight seconds, I promise.

[00:32:43] Speaker 00:
Go right ahead.

[00:32:44] Speaker 01:
I want to go back to my first question, which I don't think you answered.

[00:32:48] Speaker 01:
So I'm going to rephrase it.

[00:32:51] Speaker 01:
And I want to put the United States on record here.

[00:32:53] Speaker 01:
Does the United States recognize that PTSD can result in high-risk behavior, generally?

[00:33:04] Speaker 04:
The board in this case recognized that that is a potential.

[00:33:07] Speaker 04:
I can't speak for the United States at large on that question.

[00:33:10] Speaker 04:
What I can speak to is this record.

[00:33:12] Speaker 04:
And the board is very clear.

[00:33:13] Speaker 04:
It says, we do not dispute that PTSD can lead to high-risk sexual behavior.

[00:33:20] Speaker 04:
So the board took into account Dr. Bernier's opinion.

[00:33:24] Speaker 01:
Was what Mr. Ducey was charged with

[00:33:31] Speaker 01:
and what he was convicted of, high-risk behavior.

[00:33:36] Speaker 01:
I'm not using the word sexual.

[00:33:38] Speaker 01:
Was it high-risk behavior?

[00:33:41] Speaker 04:
Well, I think all crimes are high-risk in the sense that you can be convicted and sentenced.

[00:33:46] Speaker 04:
But I don't see on this record that the conduct that resulted in his conviction falls within the scope of the articles relied on by Dr. Burdeen.

[00:34:00] Speaker 04:
Because it was not consensual.

[00:34:01] Speaker 04:
Those articles speak to consensual, sexual.

[00:34:03] Speaker 04:
Because it was not consensual.

[00:34:05] Speaker 04:
Yes, Your Honor.

[00:34:07] Speaker 03:
So let me go back to that for a second.

[00:34:10] Speaker 03:
This is why this case is so confusing to me.

[00:34:14] Speaker 03:
Apparently the jury into court martial found that he was engaged in

[00:34:20] Speaker 03:
both consensual and non-consensual sexual behavior?

[00:34:24] Speaker 00:
I don't think so.

[00:34:26] Speaker 00:
My understanding of the record, I'm not sure it matters.

[00:34:28] Speaker 00:
I'm with you on the first point, which I'm not sure it matters.

[00:34:30] Speaker 00:
But my understanding is that both parties submitted evidence of three instances of sexual intercourse, and that the only question was consent.

[00:34:37] Speaker 00:
Is that right?

[00:34:39] Speaker 00:
Which is why I don't think the verdict makes a whole lot of sense to me.

[00:34:42] Speaker 00:
But that was my understanding of this record.

[00:34:47] Speaker 04:
But the trial judge and the board both identify one of the distinctions between the first three specifications of rape, which require penetration.

[00:34:58] Speaker 04:
But they also require either physical threat or violence or the fear

[00:35:03] Speaker 04:
I don't want to paraphrase too loosely, but the first three specifications, and this is in 2SER 36, the first three either require physical violence, strength, power, restraint, or a fear of physical injury.

[00:35:17] Speaker 04:
The charge that he was convicted of didn't require those.

[00:35:20] Speaker 04:
So it's not just a distinction between penetration.

[00:35:22] Speaker 04:
You can be convicted of a latter one.

[00:35:24] Speaker 04:
For example, if a woman was intoxicated to the point that she could not consent, a jury here could rationally conclude that we can't meet the element of physical violence, physical violence.

[00:35:34] Speaker 04:
We don't have beyond a reasonable doubt fear, but we can find him guilty beyond a reasonable doubt of all of the elements of the fourth specification of Article 120.

[00:35:43] Speaker 04:
And it's no different than any civilian jury.

[00:35:46] Speaker 04:
They can accept and reject evidence.

[00:35:48] Speaker 03:
Or they can reach inconsistent verdicts.

[00:35:50] Speaker 03:
You're not required to explain an inconsistent verdict.

[00:35:54] Speaker 03:
Inconsistent verdicts get to stand.

[00:35:55] Speaker 03:
Exactly.

[00:35:56] Speaker 04:
And here there's no inconsistency between the now overturned adultery conviction, which would require sexual intercourse,

[00:36:02] Speaker 04:
and not finding guilt in the first three specifications.

[00:36:06] Speaker 00:
I'm going to just respectfully agree to disagree with you on part of this.

[00:36:11] Speaker 00:
For me, there's still some problems with the verdict.

[00:36:13] Speaker 00:
I don't know that it matters at all here.

[00:36:16] Speaker 00:
My premise is he was convicted, he was sentenced, and he's done his

[00:36:22] Speaker 00:
jail time.

[00:36:23] Speaker 00:
And that's my starting point, just to be clear.

[00:36:26] Speaker 04:
Yes.

[00:36:27] Speaker 04:
But part of his sentence was the bad conduct discharge.

[00:36:30] Speaker 00:
I understand.

[00:36:31] Speaker 04:
I understand your honest point that he has served the time he was sentenced to.

[00:36:34] Speaker 04:
But part of that sentence was the stigma of having a bad conduct discharge.

[00:36:37] Speaker 00:
Part of his sentence?

[00:36:38] Speaker 00:
Well, there's stigma, right?

[00:36:39] Speaker 00:
He's going to have to be registered as a sex offender, right?

[00:36:43] Speaker 04:
That's my understanding, yes, Your Honor.

[00:36:45] Speaker 03:
But I guess the question I was asking, and I'm not sure you can answer it, to be fair to you, is that it does seem to me that some aspects of the circumstances that led to his discharge involved a consensual sexual encounter.

[00:37:00] Speaker 03:
They were, I mean, it may have gone too far, but the encounter began as consensual, did it not?

[00:37:09] Speaker 04:
I had no evidence about how the... Well, that's not going to... There is evidence in the record that they were out dancing and they went back to the barracks together.

[00:37:17] Speaker 04:
How the actual physical contact started, I don't have any record on that.

[00:37:21] Speaker 00:
Is there anything further?

[00:37:22] Speaker 00:
No.

[00:37:24] Speaker 00:
No.

[00:37:25] Speaker 00:
I don't think we have anything further.

[00:37:26] Speaker 00:
And I want to thank you for your patience with our questions.

[00:37:29] Speaker 00:
You'll have two minutes.

[00:37:30] Speaker 04:
Thank you.

[00:37:31] Speaker 00:
Thank you, sir.

[00:37:46] Speaker 02:
I want to touch on one point that the respondent raises on their previous argument.

[00:37:53] Speaker 02:
The respondent stated that whatever the mitigation of Mr. Bussey's conduct, that it does not outweigh the conduct that actually occurred.

[00:38:01] Speaker 00:
Quoting the board.

[00:38:02] Speaker 00:
He was attributing that to the board, yeah.

[00:38:03] Speaker 02:
Yes, adopting that opinion of the board.

[00:38:05] Speaker 02:
But that is inconsistent with the directive of the Curtin Memorandum.

[00:38:10] Speaker 02:
On page one of the Curtin Memorandum... And the Wilkie Memorandum.

[00:38:12] Speaker 02:
That is correct.

[00:38:13] Speaker 02:
But specifically on page one of the Curtin Memorandum, it directs that the board is to give liberal consideration to veterans

[00:38:20] Speaker 02:
Petitioning for discharge relief from the application for relief is based in whole or in part on matters relating to mental health conditions Including and then it proceeds to give a list of potential Actions which includes sexual assault or sexual harassment it appears that the board here is acting in contrary to the curtain memorandum when it's saying that mr. Bussey's conduct is

[00:38:42] Speaker 02:
whatever the mitigating factor cannot outweigh his conduct.

[00:38:46] Speaker 03:
Well, finish this.

[00:38:48] Speaker 03:
I didn't want to cut you off.

[00:38:49] Speaker 03:
But let's assume the board had done what I posited to your friend.

[00:38:54] Speaker 03:
It had said, we accept Dr. Burdine's opinion.

[00:38:57] Speaker 03:
We think this was a contributing factor.

[00:39:00] Speaker 03:
But we think the PTSD was a contributing factor.

[00:39:05] Speaker 03:
It mitigates.

[00:39:06] Speaker 03:
We think it's a mitigating factor.

[00:39:09] Speaker 03:
But we don't think that mitigating factor is sufficient to outweigh the circumstances of the discharge in this offense, in this situation.

[00:39:20] Speaker 03:
Could we overturn that decision?

[00:39:23] Speaker 03:
I'm not sure that's a decision they made, but assume they'd done that.

[00:39:27] Speaker 03:
They'd gone through everything else perfectly well done, everything you wanted, but said at the end, you know?

[00:39:32] Speaker 03:
We have to engage in weighing.

[00:39:34] Speaker 03:
And when we engage in the weighing here, we think this particular offense, Mr. Busse's, not the elements of the offense, the mitigation doesn't outweigh it.

[00:39:44] Speaker 03:
Could they reach that conclusion?

[00:39:46] Speaker 02:
The board certainly could.

[00:39:47] Speaker 02:
And we're not foreclosing that that could be a possibility if this were to be remanded.

[00:39:51] Speaker 02:
But that's not our objection here.

[00:39:53] Speaker 03:
But your friend says that's the conclusion they did reach.

[00:39:57] Speaker 03:
And so would you respond to that?

[00:39:58] Speaker 02:
Our position is that that's not the position that's reached by the board.

[00:40:04] Speaker 02:
The board, instead of weighing the evidence, adopts an improper opinion that is neither supported by either medical doctor, instead bases it on this conclusion, as evidenced by their statement, that they are concerned about whether or not this would grant a PTSD-based exoneration for all sexual misconduct.

[00:40:24] Speaker 02:
And here it appears that the Board is not weighing whether or not Mr. Bussey's individual conduct mitigates his individual PTSD, but instead considering factors that are outside of the scope of what it was directed to consider.

[00:40:36] Speaker 02:
That in itself is arbitrary and capricious.

[00:40:38] Speaker 02:
If the Board were to properly weigh these factors, it could reach the position as dictated by the Council for the Secretary, but that's not what occurred here.

[00:40:46] Speaker 02:
And Mr. Bussey was in turn deprived of having that opportunity to be heard in that matter.

[00:40:51] Speaker 00:
I'm going to take a point of privilege and ask you both to address one more point.

[00:40:56] Speaker 00:
I'm really struggling with, and again, I'm just one of three, but I am struggling with these two very

[00:41:04] Speaker 00:
very critically important competing imperatives and the dearth of guidance available, certainly from the court, for the board.

[00:41:13] Speaker 00:
And so I'm wondering whether or not we can be helpful or should by publishing an opinion on this matter.

[00:41:19] Speaker 00:
And I'm not sure what my own view on that is.

[00:41:22] Speaker 00:
But if you have thoughts you want to share on that, I'd welcome them.

[00:41:25] Speaker 00:
Maybe we'll hear from your first minute.

[00:41:27] Speaker 00:
I'd like to hear from the government, for sure.

[00:41:30] Speaker 00:
Just briefly, please.

[00:41:38] Speaker 02:
In terms of publication of this matter, if that is the discretion of the court to publish it, would Mr. Bassees would see in fact that there would be a benefit to that as it would?

[00:41:48] Speaker 00:
Here's the deal.

[00:41:48] Speaker 00:
Maybe I should have asked more.

[00:41:50] Speaker 00:
I know it's within our discretion.

[00:41:51] Speaker 00:
The reason I'm asking is because these cases are such a mix.

[00:41:54] Speaker 00:
They're such a soup, and they're so individualized.

[00:41:56] Speaker 00:
I don't know that we can be helpful.

[00:41:58] Speaker 00:
Do you think there's guidance we could add as a matter of law that would be helpful?

[00:42:03] Speaker 02:
there is a matter of guidance that perhaps could be added as a matter of law, but I agree with your position, and my argument was going to be the same, that these are specific cases that require in-depth weighing of these individual factors.

[00:42:15] Speaker 02:
These are hard decisions.

[00:42:16] Speaker 02:
It requires weighing of information that is messy and difficult to consider.

[00:42:20] Speaker 00:
Thank you.

[00:42:21] Speaker 00:
Council, I'd like to hear from you.

[00:42:23] Speaker 00:
Come on up.

[00:42:23] Speaker 00:
It's clear to me that you've taken this case very, very seriously, which I really appreciate.

[00:42:27] Speaker 00:
If this is a hard one, what do you think about whether we can be helpful with a published opinion on the law?

[00:42:33] Speaker 04:
On the meaning of liberal consideration under 10 U.S.E.

[00:42:37] Speaker 04:
1552, the statute does not find what liberal consideration means.

[00:42:42] Speaker 04:
The courts then had to look at the Hegel memo or the Kurta memo.

[00:42:48] Speaker 00:
The Wilkie memo.

[00:42:48] Speaker 04:
I think the Federal Circuit recently issued a decision in Doyon v. U.S.

[00:42:54] Speaker 04:
58 at 4th, 12335.

[00:42:57] Speaker 04:
that does take on what does liberal consideration mean, and determines that it's a less or more lenient evidentiary standard to establish the fact of PTSD.

[00:43:08] Speaker 04:
And there's some language that says also whether there's a nexus between that PTSD.

[00:43:14] Speaker 04:
But that liberal, that more lenient evidentiary standard doesn't actually change the standard of the board or standard of the Secretary of the Senate, which is has there been an error in justice.

[00:43:24] Speaker 04:
I don't believe there's a Ninth Circuit published opinion on that issue.

[00:43:27] Speaker 00:
I want to thank you for this.

[00:43:28] Speaker 00:
I'm sure you weren't expecting this last round of this final question, so thank you for accommodating that and for your very careful briefing, both of you, and excellent advocacy.

[00:43:38] Speaker 00:
It's an important case, and we'll get an answer for you as soon as we can.

[00:43:43] Speaker 04:
Thank you, Your Honor.

[00:43:44] Speaker 00:
We'll stand in recess.

[00:43:45] Speaker 00:
Thank you.