[00:00:00] Speaker 00:
Case number 23-519, Thomas G. Coleman, major U.S.

[00:00:06] Speaker 00:
Air Force, retired at balance, versus Gary A. Ashworth, acting secretary of the Air Force.

[00:00:12] Speaker 00:
Mr. Thayer for the balance, Ms.

[00:00:14] Speaker 00:
Otusa for the FLE.

[00:00:17] Speaker 04:
Mr. Thayer, good morning.

[00:00:18] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
Let's wait till the courtroom clears.

[00:00:23] Speaker 04:
All right, go ahead.

[00:00:26] Speaker 01:
Chief Judge, your honors may please the court.

[00:00:28] Speaker 01:
My name is Dylan Thayer and I'm here on behalf of the appellant, Major Thomas Glenn Coleman.

[00:00:34] Speaker 01:
The question before this court today is, when a military correction board identifies an injustice, is the board bound to fully correct that injustice?

[00:00:46] Speaker 01:
And the answer under the law of this circuit is yes.

[00:00:50] Speaker 01:
Major Coleman requested 49 days of constructive service time from the Air Force board for the correction of military records to compensate him for the eight to 14 months of time of which he was wrongfully deprived earlier in his career as a result of the Air Force's failure to properly correct the bureaucratic errors regarding his waiver and transfer requests.

[00:01:13] Speaker 01:
The board agreed that Major Coleman had suffered an error in justice

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but the board never fully corrected that injustice.

[00:01:22] Speaker 01:
In 2011, when Major- What was the error?

[00:01:26] Speaker 01:
The error was, Your Honor, when Major Coleman moved to Singapore in June of 2006, he should have either been transferred to inactive status effective December of 2006, pursuant to Air Force Instruction 362115, or he should have been granted a waiver of service for that year,

[00:01:47] Speaker 01:
Let's take both of those.

[00:01:49] Speaker 02:
Let's start with the waiver.

[00:01:51] Speaker 02:
What is your authority?

[00:01:53] Speaker 02:
That shows the Air Force should have granted the waiver faster than it did.

[00:02:01] Speaker 01:
Your Honor, the Air Force has this waiver process and the board recognized in determining Major Coleman's application that he had suffered an injustice.

[00:02:10] Speaker 01:
Whether that was an injustice as a result of the waiver or the transfer, there's not a specific with the waiver.

[00:02:15] Speaker 02:
What rule did the Air Force break?

[00:02:17] Speaker 01:
The Air Force did not break a specific rule regarding the waiver your honor there's no rule that necessarily requires the waiver to be processed within a certain period of time, but your honor as I mentioned the board recognize that there was an injustice which contributed to his discharge.

[00:02:33] Speaker 02:
I mean we have this precedent that says.

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The alteration of a record may correct one injustice only to commit another or perhaps only to incur some other equally significant institutional costs.

[00:02:45] Speaker 02:
So I get that maybe in another circuit, all you would have to do is show that there was an incorrect injustice, but it seems like our precedent suggests we're not going to vacate every military board decision that has an injustice.

[00:03:03] Speaker 01:
Two points on that, your honor.

[00:03:04] Speaker 01:
So yes, Christ, your honor, does give the board discretion to recognize an injustice.

[00:03:10] Speaker 01:
That's correct.

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When the board is determining whether an injustice has occurred, the board has complete discretion.

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However, under

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this court's holding in Hasselwander v McGee, the board is required, or v McHugh, excuse me, the board is required to correct an injustice which it identifies.

[00:03:29] Speaker 01:
If a board does not correct an injustice which it identifies, it is acting contrary to its statutory mandate under 10 USC 1552.

[00:03:38] Speaker 05:
So it seems to me that there's a tension between the two forms of error that you've identified.

[00:03:44] Speaker 05:
One is you're saying

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He should have gotten a waiver, which would have allowed him to continue active duty and earn more points.

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And the other is he should have been inactive, which would have taken him off the clock for promotion.

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You can't do both.

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You're either inactive or you get a waiver and you're active.

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And so there's a tension there.

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And it just seems to me underlying all of this is your client's failure to request either of those

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things in a more timely manner.

[00:04:16] Speaker 05:
He doesn't ask for the inactive status until September of 2007 when he moved in June of 2006.

[00:04:28] Speaker 01:
He moved in June of 2006.

[00:04:29] Speaker 05:
He doesn't request the inactive status until September and he doesn't request the waiver until

[00:04:36] Speaker 01:
He requested the inactive status in February of 2007, Your Honor.

[00:04:40] Speaker 01:
He initially requested the waiver.

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The waiver was initially requested in September of 2006.

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And the inactive status was requested in February of 2007.

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That's correct, Your Honor.

[00:04:51] Speaker 01:
That's correct, Your Honor.

[00:04:52] Speaker 05:
I understand.

[00:04:53] Speaker 05:
Let me just complete my thought, which is I understand that he knew he was being transferred to Singapore, right?

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That's correct, Your Honor.

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three months before he went in June.

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So he knew that in March.

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So he could have requested either the waiver or the inactive status before even he left in June.

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And so given that he kind of sat on his rights and didn't request either of these things, and then when he did, they were conflicting things, it's really not clear to me where the injustice is.

[00:05:21] Speaker 01:
Well, Your Honor, a few points on that.

[00:05:23] Speaker 01:
So the injustice is, first of all, the onus is on the Air Force.

[00:05:29] Speaker 01:
under Air Force Instruction 36-2115, paragraph 4422, when the Air Force is made aware that a reserve member is moving to a country where there is no status of our forces agreement, as is the case in Singapore, the Air Force must transfer the member to inactive status.

[00:05:49] Speaker 01:
Now, it's not clear when that transfer should occur.

[00:05:51] Speaker 05:
And it doesn't say that that has to happen to Espante as opposed to upon the application of the service member.

[00:05:59] Speaker 01:
It's it's my understanding, your honor, that the unit is required to do that of its own initiative.

[00:06:06] Speaker 02:
Can you read that?

[00:06:07] Speaker 02:
I don't think it says that either.

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And you could maybe convince me otherwise if you read all of 3621154422, but

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I actually didn't see you quote all that in your brief.

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I didn't see you attach it to your brief.

[00:06:27] Speaker 02:
I Googled it, and it was awfully hard to find.

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I'll tell you how I found it.

[00:06:31] Speaker 02:
It's with the Wayback machine.

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So I'm not even sure you can rely on 4422 when you didn't really make it available.

[00:06:44] Speaker 01:
Well, that brings me to my second point, Your Honor.

[00:06:47] Speaker 01:
Even if this court finds that there's no requirement that the unit acts su espante to transfer Major Coleman, it's not relevant because the board recognized that Major Coleman had suffered an injustice from his discharge.

[00:07:00] Speaker 01:
Here's what the 2016 board had to say.

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While the board recognizes that some error or injustice contributed to Major Coleman's discharge, he has been made as whole as this board is able or willing to make him under the circumstances.

[00:07:13] Speaker 02:
I think one way to read that is,

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all the injustices have been corrected.

[00:07:18] Speaker 01:
Your honor, I believe that that's not consistent with the plain language of what the board is saying.

[00:07:23] Speaker 01:
The board said some error or injustice contributed to his discharge.

[00:07:28] Speaker 02:
They made all kinds of corrections.

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They gave him credit for doing a ton of work he never did.

[00:07:32] Speaker 02:
They gave him years worth of good years when he wasn't working.

[00:07:35] Speaker 01:
They gave, Your Honor, they moved his transfer to inactive status back from September of 2008 to August of 2007 in recognition of, under Air Force instruction 362115, because he requested the transfer to inactive status in February of 2007, it should have been effective as of August 2007.

[00:07:54] Speaker 01:
So that was not compensating him for work he had not performed, Your Honor.

[00:07:59] Speaker 02:
Can I go back to 362115, Judge Pan's questions about it?

[00:08:03] Speaker 02:
Do you concede that we really can't rely on an authority that you didn't make available to us?

[00:08:13] Speaker 01:
Your honor, I concede that you can only rely on the authority to the extent that it's quoted in our briefs and the government's briefs and that you can't rely on anything outside of that.

[00:08:23] Speaker 01:
But again, your honor, I would posit that because the board recognized that there was an injustice here, the exact language of instruction 362115 is not the precise issue before this court.

[00:08:37] Speaker 02:
Fair enough.

[00:08:38] Speaker 02:
It seems like you're maybe hanging your hat on that board quote about an injustice.

[00:08:43] Speaker 02:
And so would you concede that if I read it differently than, if I read that sentence differently than you read it, if I read the board to have said there were injustices in the past, we corrected all the injustices that have happened.

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There are no remaining uncorrected injustices.

[00:08:58] Speaker 02:
If I read it, if I read it that way, would you concede that I'm supposed to rule for the government here?

[00:09:04] Speaker 01:
Well, your honor, I think you can't just rely on that one sentence.

[00:09:06] Speaker 01:
You have to rely on the board's full constellation of actions here.

[00:09:09] Speaker 01:
You have to rely on the 2011 board, which, as you mentioned, recognized that he'd suffered an injustice as a result of the Air Force's bureaucratic waiver bungling.

[00:09:19] Speaker 01:
Now they didn't fully correct that injustice.

[00:09:22] Speaker 01:
You can rely on the 2013 board, which

[00:09:24] Speaker 01:
also granted him relief, even though they didn't fully correct the eight to 14 months of time for which he has never been compensated.

[00:09:30] Speaker 01:
And you can rely on the 2019 board on reconsideration, which said that it concurred with an advisory opinion, finding that Major Coleman was unable to serve, was unable to serve from May 11, 2006 until August 17, 2007, because he hadn't received his transfer request.

[00:09:47] Speaker 01:
So your honor, that one sentence, you're right.

[00:09:52] Speaker 01:
That one sentence is very important, Your Honor, because it does get to the root of the issue, but the board has acted in a widely inappropriate way here.

[00:10:01] Speaker 02:
It seems like in 2011, there was a decision in 2011, and there were arguments made leading up to that decision.

[00:10:10] Speaker 02:
And I think your client asked that 2011 board to make his inactive status effective June 2006.

[00:10:22] Speaker 02:
and they declined.

[00:10:24] Speaker 01:
The 2011 board, yes, Your Honor, he did ask that his status be made effective June 2006, and he argued in reply to an advisory opinion that if they weren't willing to do that, they should do it in December of 2006.

[00:10:35] Speaker 01:
That's correct, Your Honor.

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And so they declined to give him all the relief he asked for then in 2011.

[00:10:42] Speaker 02:
That's right, Your Honor.

[00:10:44] Speaker 02:
It seems a little weird that we're litigating

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That 2011 decision now, whether it's that there's a six year statute of limitations, I think for board to challenge board decisions in court.

[00:11:00] Speaker 02:
Or whether it's or if it's your I don't I don't know exactly what the.

[00:11:05] Speaker 01:
I understand what you're getting at, Your Honor.

[00:11:07] Speaker 01:
I understand what you're getting at, Your Honor.

[00:11:09] Speaker 01:
Here's why we're litigating this now, Your Honor.

[00:11:12] Speaker 01:
You're right.

[00:11:12] Speaker 01:
There is a six-year statute of limitations for board decisions.

[00:11:16] Speaker 02:
I'll let you say why you're litigating it now, but before I forget, could you have gone to federal court after 2011 and challenged that 2011 decision for not making him inactive effective June 2006?

[00:11:28] Speaker 01:
I suppose Major Coleman could have done that, yes, but Major Coleman wasn't aware in 2011 that he was only going to be discharged 49 days prior to achieving his 18-year right of safe harbor status.

[00:11:44] Speaker 01:
So that's the key, Your Honor, is that, yes, he could have gone prior to, or excuse me, following that decision.

[00:11:50] Speaker 01:
But he went to the board in 2016 in an effort to correct the new injustice, which was because the board had failed to fully correct the record in his previous applications, he was then denied his statutory right to attain 18 years of safe harbor because he was never fully compensated for that time.

[00:12:09] Speaker 05:
Isn't the other piece of this that he couldn't be passed over promotion twice within the time allowed and your arguments

[00:12:19] Speaker 05:
are saying he should have gotten, I guess, more time in which to prove himself.

[00:12:26] Speaker 05:
But if he was just not going to be promoted anyway twice within this time frame, these arguments don't really get him where he needs to go, because there were two times where he was not promoted.

[00:12:40] Speaker 05:
And without getting promoted, he still isn't entitled.

[00:12:48] Speaker 01:
So, Your Honor, there's two things that are working together there.

[00:12:51] Speaker 01:
So, yes, a service member can be discharged or will be discharged when they're twice passed over for promotion if they're of Major Coleman's rank.

[00:13:01] Speaker 01:
However, if a service member attains the 18-year safe harbor under 10 USC 12646, they cannot be discharged for failure to promote.

[00:13:13] Speaker 01:
Had Major Coleman been able to attain time

[00:13:16] Speaker 01:
towards that 18-year safe harbor for retirement, as he should have been permitted to do and would have been able to do had it not been for the Air Force's bureaucratic errors during those eight to 14 months that I've been talking about, he would have attained the safe harbor.

[00:13:31] Speaker 01:
And at that point, he can't be dismissed for failure to promote.

[00:13:34] Speaker 01:
So the failure to promote, Your Honor.

[00:13:36] Speaker 05:
The facts are just pretty intricate and convoluted.

[00:13:38] Speaker 05:
And it's just weird that he wouldn't have been up for promotion twice before that 18-year period anyway.

[00:13:45] Speaker 01:
He was up for promotion twice, and he was passed over twice for promotion.

[00:13:49] Speaker 01:
But that's not relevant, Your Honor, because that has no impact on whether he can attain the 18-year safe harbor status in this circumstance.

[00:13:56] Speaker 01:
Because if he'd been able to earn that time, he would have earned the 18 years.

[00:14:01] Speaker 01:
And at that point, he can't be discharged for failure to promote.

[00:14:04] Speaker 05:
I guess my question is, if he has had a few different, I guess, promotion reviews and has been denied,

[00:14:14] Speaker 05:
And I guess my question is, if he is denied twice before he even gets to 18 years, then the 18-year sanctuary is of no moment.

[00:14:21] Speaker 05:
And are we clear on this record that he would not have been denied twice, even if he had, I guess, gotten some more corrections?

[00:14:30] Speaker 05:
Because with all the corrections, his promotion clock has already been extended beyond what's normal.

[00:14:40] Speaker 05:
And so it's just not clear to me on this record that he would not have had

[00:14:44] Speaker 05:
to promotion reviews in which he did not get promoted even before he got to the 18 year mark on this record.

[00:14:53] Speaker 01:
So if I understand your honor's question correctly, he did have two promotion reviews.

[00:15:01] Speaker 01:
where he was not promoted.

[00:15:03] Speaker 01:
That's what happened.

[00:15:04] Speaker 05:
And then he'd be discharged before the 18-year mark, even if you had made these corrections.

[00:15:07] Speaker 01:
But Your Honor, it's not automatic.

[00:15:11] Speaker 01:
So you're still able, even after you're passed over for promotion.

[00:15:15] Speaker 01:
So he was passed over for promotion, but he wasn't automatically discharged.

[00:15:19] Speaker 01:
You're still able to earn time toward your clock for the 18 years of retirement.

[00:15:25] Speaker 01:
And he was having time taken off of that clock because he wasn't in inactive status during the eight to 14 months, which he lost as a result of the bureaucratic errors.

[00:15:36] Speaker 01:
So he's having time taken away that he can't serve, which doesn't allow him to get to 18 years of retirement.

[00:15:42] Speaker 01:
All the while, his retirement clocks are running.

[00:15:45] Speaker 01:
So it's getting him closer and closer to that deadline.

[00:15:48] Speaker 01:
And he's not able to get what he ultimately has earned.

[00:15:54] Speaker 01:
Does that make sense, Your Honor?

[00:15:56] Speaker 05:
It does make sense, but it's still a piece of the puzzle that he has just not earned promotion.

[00:16:01] Speaker 01:
It's true that he has not earned promotion, Your Honor, but it's not ultimately... Because the other way to get around this is to earn promotion, and then we are not... Of course.

[00:16:08] Speaker 01:
Of course, Your Honor.

[00:16:09] Speaker 01:
Of course it is, Your Honor.

[00:16:11] Speaker 01:
But ultimately, it's not this positive because even if he doesn't earn promotion, he still has the ability to earn that time in order to get to 18 years of safe harbor, and he was deprived of that opportunity, Your Honor.

[00:16:25] Speaker 02:
I have one, I think, technical question.

[00:16:28] Speaker 02:
Do you know if, when he moved to Singapore in June 2006, did he have a military service obligation?

[00:16:38] Speaker 01:
He had an obligation to continue to earn, to try and earn time as a reserve service member toward his retirement.

[00:16:48] Speaker 01:
That's why he sought the waiver, Your Honor.

[00:16:51] Speaker 01:
that he sought a waiver clearing him of his requirements for that year, so that the time would no longer continue to run.

[00:16:58] Speaker 02:
Until the waiver came through, and to be honest, to the extent military service obligation is a term of art, I don't, I'm not an expert in that area of law, so I'm not exactly sure what that term of art means, but it's referred to in 362115, so I'm just trying to figure out whether before he got the waiver,

[00:17:18] Speaker 02:
Did he have a military service obligation?

[00:17:23] Speaker 01:
All reserve service members have to complete certain requirements, Your Honor, each year in order for that year to be considered a good year for the retirements.

[00:17:33] Speaker 01:
Right.

[00:17:33] Speaker 01:
50 points, 35 participation points plus the 15 points.

[00:17:37] Speaker 01:
I think that's a yes.

[00:17:37] Speaker 01:
Until he... Right.

[00:17:39] Speaker 01:
Yes.

[00:17:39] Speaker 01:
Yes, Your Honor.

[00:17:40] Speaker 01:
Yes.

[00:17:40] Speaker 01:
Okay.

[00:17:40] Speaker 01:
Yes.

[00:17:42] Speaker 05:
And can you explain that waiver this was kind of interesting to me he was trying to wave the bad year designation for 2006.

[00:17:50] Speaker 05:
In order to.

[00:17:54] Speaker 01:
He was trying to obtain a waiver for the coming year, Your Honor.

[00:17:57] Speaker 01:
Because of the move, the waiver would mean that he wouldn't have to fulfill the service requirements for the coming year.

[00:18:03] Speaker 01:
And so therefore, it would not be counted as an incomplete year on his record.

[00:18:07] Speaker 01:
So he would have an opportunity to earn the time going forward.

[00:18:11] Speaker 01:
That waiver ultimately wasn't- No, I understand.

[00:18:13] Speaker 05:
But the way that it's been briefed, it said in order for him to be able to continue to earn points in his new assignment, he would have to get a waiver

[00:18:21] Speaker 05:
of the 2006 bad year.

[00:18:23] Speaker 05:
That's where it was briefed.

[00:18:24] Speaker 05:
And I was confused about waiving a bad year.

[00:18:27] Speaker 05:
Is that waiving a bad year for purposes of transfer versus waiving a bad year?

[00:18:33] Speaker 01:
If you could just apply and waive a bad year, then... Yeah, it doesn't work that way, Your Honor.

[00:18:38] Speaker 01:
If I phrased it that way in my brief, what I was driving at is what I'm saying now, which is...

[00:18:44] Speaker 01:
you waive the requirements for that year.

[00:18:47] Speaker 01:
And when you apply for that waiver, you can't just snap your fingers and there's an old bad year and you get rid of it.

[00:18:55] Speaker 05:
But that 2006 year ended in April of 2006.

[00:18:57] Speaker 05:
So that's why I was confused why you had to waive the 2006 year when you were moving in June of 2006.

[00:19:05] Speaker 01:
Yes, Your Honor.

[00:19:08] Speaker 01:
I'm not clear myself as to the intricacies of exactly how that process works.

[00:19:14] Speaker 01:
What's relevant for the purpose of this appeal, Your Honor, is that by not obtaining that waiver, he was accumulating time, which was being taken off of his clock, which would allow him to attain 18-year safe harbor, and he was not earning points, which could allow him to earn complete or good years toward retirement.

[00:19:36] Speaker 05:
And why didn't he apply earlier for either the waiver or the?

[00:19:39] Speaker 01:
For the waiver?

[00:19:40] Speaker 01:
I'm not certain of that, Your Honor, but what I am certain of is that the board never in any of its decisions stated that Major Coleman had done anything wrong or failed to meet any of his obligations or requirements regarding applying for the waiver or applying for the transfer request.

[00:20:03] Speaker 04:
All right.

[00:20:03] Speaker 04:
We'll give you a couple of minutes to reply.

[00:20:23] Speaker 03:
Good morning, Your Honors.

[00:20:24] Speaker 03:
May it please the court, Christina Otsusa for the Secretary of the Air Force.

[00:20:31] Speaker 03:
It appears based on the exchanges that have just taken place, the court already has very thorough understanding of the case and the Secretary completely agrees with all of the court's comments that have been made thus far.

[00:20:46] Speaker 03:
One additional point that I would like to add is that Mr. Coleman never applied

[00:20:53] Speaker 03:
for the he never applied for a change to his record based on this waiver argument.

[00:21:01] Speaker 03:
In his first application, he had only made the argument regarding the transfer to inactive status.

[00:21:06] Speaker 03:
And that was the sole issue that was addressed in that opinion.

[00:21:09] Speaker 03:
Now, of course, the secretary has argued on appeal that this issue is forfeited because it was never argued for the district court.

[00:21:17] Speaker 03:
And therefore, the secretary realized primarily on that argument.

[00:21:21] Speaker 03:
But had this issue been

[00:21:23] Speaker 03:
clearly addressed such that both the district court and the secretary understood that he was making this argument.

[00:21:31] Speaker 03:
The secretary would have explained that this theory just does not add up.

[00:21:36] Speaker 03:
I think that the court has already noted that the actual years at issue, it just, I mean, first, there's no such thing as a- Based on my reading of the record, I think Coleman did preserve the challenge to the waiver request.

[00:21:51] Speaker 05:
And I'm just

[00:21:52] Speaker 05:
looking at the joint appendix before the board, he raised it.

[00:21:56] Speaker 05:
He requested remedies for the delay in transfer to inactive status, as well as the waiver argument.

[00:22:07] Speaker 05:
He did that in, I think, the third request.

[00:22:09] Speaker 05:
But in any event, and then I think he did raise it also before the district court.

[00:22:14] Speaker 05:
So on the merits, though, of this waiver argument, all the board said was, we don't see any

[00:22:21] Speaker 05:
un-remedied injustice.

[00:22:23] Speaker 05:
And that's a pretty broad statement.

[00:22:26] Speaker 05:
So what are your view on the merits defeats the waiver argument?

[00:22:34] Speaker 05:
The argument about not addressing his waiver request.

[00:22:39] Speaker 03:
So your honor just noted that it was raised in the third application it actually that argument was not raised in the third application it was raised in the application for reconsideration and therefore that is why it's actually not specifically addressed in the first decision on the third application because that it was not an argument that was presented to it.

[00:22:59] Speaker 03:
As I just noted, Mr. Coleman did raise this argument in the application for consideration.

[00:23:05] Speaker 03:
And this is something that was specifically addressed by the advisory opinion, which was effectively agreed with and incorporated by reference by the board's decision.

[00:23:16] Speaker 03:
And the advisory opinion noted that there's no such thing as a waiver of your retirement and retention year points.

[00:23:25] Speaker 03:
That's just not a thing that exists.

[00:23:28] Speaker 03:
advisory opinion provides the citation for the policy on that issue.

[00:23:32] Speaker 03:
And in response, Mr. Coleman had the opportunity to present a rebuttal and he prevents no evidence to the contrary.

[00:23:39] Speaker 03:
So this idea that this waiver of obligations has anything to do directly with retirement or retention year points is just completely unfounded.

[00:23:52] Speaker 03:
And I think the reason... I'm sorry, I'm not following your argument because my understanding of the argument was

[00:23:57] Speaker 05:
that he needed a waiver in 2006 before he could earn points in a new position in Asia.

[00:24:10] Speaker 05:
And he raised this, I guess I'm looking at JA 145 where the board acknowledges the contention of error resulting from quote, his September 2006 requested relief from his fiscal 2006 obligations.

[00:24:23] Speaker 05:
And then JA 140 in 2019

[00:24:25] Speaker 05:
acknowledging he was unable to participate from May 2006 to August 2007, quote, due to not receiving a transfer to a new reserve position.

[00:24:33] Speaker 05:
So I think he did raise that.

[00:24:36] Speaker 05:
But what is your argument on the merits about why he was not prejudiced or that the board adequately dealt with this contention?

[00:24:46] Speaker 05:
Because from my reading of the board's decision, all it said was they talk a lot about the inactive status issue.

[00:24:54] Speaker 05:
And then it says, and we see no un-remedied errors.

[00:24:57] Speaker 05:
So what is the argument on the merits that that was adequately addressed?

[00:25:03] Speaker 03:
Sure.

[00:25:03] Speaker 03:
So I'll address both of those questions.

[00:25:06] Speaker 03:
First, I think it might make sense if I address your question regarding what the nature of the argument actually is.

[00:25:13] Speaker 03:
And it's the Secretary's position that this, quote unquote, waiver does not have to do with his

[00:25:20] Speaker 03:
ability to complete the 50 points in a given retirement or retention year.

[00:25:23] Speaker 03:
Instead, he indisputably received a bad R&R year in 2006.

[00:25:29] Speaker 03:
And as a result of that, he got what is effectively a black mark on his record.

[00:25:35] Speaker 03:
And sometimes service members, reservists can be even discharged prematurely and not be permitted to continue with their

[00:25:45] Speaker 03:
active reserve duties when they don't complete a given year.

[00:25:50] Speaker 05:
So you're just saying it's not entitled to waiver of that 2006 year?

[00:25:55] Speaker 03:
Right, so it's the Secretary's position that there's no such thing as a way to just eliminate this bad R&R year that happened.

[00:26:05] Speaker 03:
the way that we understand it is that it was just a way for him to actually just be hired, because he needed to find another job in order to continue in his reserve status.

[00:26:13] Speaker 03:
But because he had this black mark on his record because he had a bad R&R year, he needed some acknowledgment from his command that kind of excuses his failure to complete a good year.

[00:26:26] Speaker 03:
And that's what he was seeking.

[00:26:28] Speaker 03:
And to date, Mr. Coleman is pointing to no requirement that

[00:26:33] Speaker 03:
his unit, I guess, even grant this waiver issue.

[00:26:38] Speaker 03:
And so I guess that would be the Secretary's response to, I guess, the merits of the issue.

[00:26:46] Speaker 03:
I guess to get to the second point with respect to the forfeiture issue, in

[00:26:53] Speaker 03:
I think certainly defendant's brief, defendant makes clear that it is understanding Mr. Coleman to solely be arguing about the transfer to inactive status.

[00:27:03] Speaker 03:
And while it is a little bit unclear because of the way that Mr. Coleman has framed the issues, what is clear is that he is only making an argument based on past decisions.

[00:27:12] Speaker 03:
And therefore, because this was never an issue that had been raised previously, it couldn't have possibly extended to this waiver argument, which was raised for the first time.

[00:27:22] Speaker 03:
the application for reconsideration, which is the fourth application to the board.

[00:27:26] Speaker 03:
And if you look specifically at the text, the secretary makes clear that this is the understanding that he's making this argument with respect to the transfer to active status in the court.

[00:27:38] Speaker 03:
And its decision also makes clear that that was its understanding of the issue, because that was the only issue that was raised in that first application in the court.

[00:27:49] Speaker 03:
I appreciate that he may have raised it in the background section of the facts, but it went to the merits of his argument.

[00:28:00] Speaker 03:
There was no reference included.

[00:28:02] Speaker 03:
And certainly, had the secretary been on notice that he was raising this argument, I think the secretary, of course, would have addressed it more clearly.

[00:28:12] Speaker 03:
And certainly, I think the district court as well would have

[00:28:19] Speaker 03:
also address the issue had it been aware that this was the argument being made.

[00:28:23] Speaker 03:
Thank you.

[00:28:31] Speaker 03:
We would ask that the court affirm the judgment of the district court.

[00:28:35] Speaker 03:
Thank you.

[00:28:38] Speaker 04:
Mr. Thayer, why don't you take two minutes?

[00:28:47] Speaker 01:
So my friend on the other side talked a lot about the waiver argument and how it wasn't presented in the district court.

[00:28:56] Speaker 01:
Your honor.

[00:28:57] Speaker 01:
Judge Pan, I believe you said this, but it was argued before the district court.

[00:29:00] Speaker 01:
If you look on pages five and six of the plaintiff's motion for summary judgment, it's referenced very clearly, and it's referenced again by implication on pages 16 through 18, and the district court on page 13 of its memorandum opinion clearly makes reference to those pages.

[00:29:18] Speaker 01:
In the government's brief as well, the government, this is on page 34 of the government's brief,

[00:29:26] Speaker 01:
The government states while he, Major Coleman, is dissatisfied with the amount of time that it took for his unit to waive his service requirements, he does not identify any policy or regulation that compelled his unit to grant him the waiver.

[00:29:39] Speaker 01:
So the government has recognized the way the waiver works is it waives your service requirements for a given year.

[00:29:47] Speaker 01:
That's stated right in their brief on page 34.

[00:29:50] Speaker 01:
There's also been a lot of

[00:29:54] Speaker 01:
Discussion today from the government about how perhaps the arguments weren't properly presented because Major Coleman could have presented these arguments in his first application or his second application, but they weren't presented until his third application or they weren't presented until the request for reconsideration.

[00:30:13] Speaker 01:
Here's the bottom line, Your Honors.

[00:30:18] Speaker 01:
Under 10 USC 1552,

[00:30:22] Speaker 01:
The board for the correction of military records in any military service department has broad discretion to correct any record in response to an application made by an applicant when there is a showing of error or injustice.

[00:30:37] Speaker 01:
It doesn't matter how many applications there previously have been.

[00:30:40] Speaker 01:
If the board decides to review an application, it has broad discretion

[00:30:45] Speaker 01:
to correct any error or injustice.

[00:30:47] Speaker 01:
The secretary was on notice that these arguments existed because they were in Major Coleman's applications.

[00:30:54] Speaker 01:
The board in 2016 said an error or injustice contributed to his discharge.

[00:31:01] Speaker 01:
He has been made as whole as this board is able or willing to make him under the circumstances.

[00:31:05] Speaker 01:
Now I don't hang my hat exclusively on that one sentence.

[00:31:09] Speaker 01:
But it does show that the board recognized that an error in justice contributed to Major Cohen's discharge.

[00:31:15] Speaker 01:
It declined to fully correct that injustice.

[00:31:17] Speaker 01:
That's arbitrary and capricious agency action.