[00:00:57] Speaker 04:
Okay, the next argued case is number 182370, Turner against the Secretary of Veterans Affairs, Ms.

[00:01:06] Speaker 04:
Flugfelter.

[00:01:09] Speaker 00:
May it please the court?

[00:01:13] Speaker 00:
The secretary claims the present issue on appeal involves a factual question, removing federal circuit jurisdiction over this appeal.

[00:01:22] Speaker 00:
However, the question on appeal involves the interpretation of a statute and regulation, namely 38 USC 5107B and 38 CFR 3.102.

[00:01:35] Speaker 00:
The question for the court is, do these provisions operate to place the burden of persuasion on the secretary to disprove veteran status?

[00:01:44] Speaker 00:
This court has jurisdiction over issues involving interpretation of statutes and regulations.

[00:01:50] Speaker 00:
The board and the Veterans Court erred by allocating the burden of persuasion to appellant to prove his veteran status.

[00:01:58] Speaker 00:
This legal conclusion misreads the text of 38 USC 5107B and 38 CFR 3.102.

[00:02:04] Speaker 03:
So one of the things I think that the government says is that this is not a legal proposition that you urged on the Veterans Court.

[00:02:13] Speaker 03:
Is that right, wrong, what?

[00:02:17] Speaker 03:
And indeed, maybe, I think I'm remembering right, but correct me if I'm wrong, in your motion for or petition for reconsideration, you seem to have said the opposite, that while you have the burden of persuasion, etc.

[00:02:36] Speaker 00:
No, Your Honor.

[00:02:38] Speaker 00:
Our stance is that the burden of proof is on the veteran, and then the burden of persuasion is placed on the secretary.

[00:02:53] Speaker 00:
The Board and the Veterans Court allocated the burden of persuasion to Appellant to prove his veteran status.

[00:03:00] Speaker 00:
Section 50107B and 3.102 say the reasonable doubt rule applies to all issues material to the determination of the claim.

[00:03:11] Speaker 00:
In agreement with the analysis of federal survey cases Ortiz and D'Amico, the secretary argues that appellant has confused the two different burdens of proof, the burden of production under 50107A and the burden of persuasion.

[00:03:28] Speaker 00:
The secretary is correct that the claimants bear the initial burden of production to come forward with some evidence to support the claim.

[00:03:35] Speaker 00:
If the burden is met, a low threshold, then the claim must be fully developed and adjudicated on the merits.

[00:03:42] Speaker 00:
At that stage, the burden decreases.

[00:03:43] Speaker 03:
I guess what I'm just trying to understand in this particular case, everybody agrees that there's a burden of production of coming forward with some evidence that kind of puts the issue of veteran status in play.

[00:03:59] Speaker 03:
And then the question is, OK, once you've reached that level, at what point, what happens when you near for the 50% probability mark?

[00:04:12] Speaker 03:
You say that when you near the 50% probability mark within some little range around it, you get the benefit of that doubt.

[00:04:20] Speaker 03:
And I'm not sure actually what the government's position is on that.

[00:04:23] Speaker 03:
But you never said that to the Veterans Court.

[00:04:30] Speaker 03:
I think.

[00:04:32] Speaker 03:
Just tell me if I'm wrong.

[00:04:34] Speaker 03:
Never said.

[00:04:37] Speaker 03:
We have a situation in which the evidence is in equipoise, and therefore, 5107 kicks in.

[00:04:44] Speaker 00:
OK, Your Honor.

[00:04:48] Speaker 00:
The Court of Appeals for Veterans claims

[00:04:56] Speaker 00:
mentioned that, and under 38 U.S.C.

[00:04:58] Speaker 00:
7292 extends the Federal Circuit's jurisdiction over all issues decided by the Veterans Court, even as raised to a stand date.

[00:05:09] Speaker 00:
The Secretary argues appellants confuse the two burdens.

[00:05:14] Speaker 00:
But the secretary argues the appellant loses because he failed to satisfy the initial burden of production.

[00:05:24] Speaker 00:
Therefore, the burden of persuasion is not implicated.

[00:05:27] Speaker 00:
Our response is that the board's decision expressly found the appellant failed to satisfy his burden of persuasion under 50107B.

[00:05:35] Speaker 00:
Nothing was mentioned about the burden of production under 50107A.

[00:05:40] Speaker 00:
thus the secretary cannot raise a new issue on judicial review to defend the court's decision.

[00:05:47] Speaker 00:
No matter the setting one party must bear the burden of persuasion, this burden falls upon the party who loses when the evidence is evenly balanced.

[00:05:58] Speaker 00:
That's the baseline bedrock principle in civil litigation the plaintiff bears.

[00:06:02] Speaker 05:
Well, where is the evidence in equipoise here?

[00:06:06] Speaker 05:
Where is it evenly balanced?

[00:06:08] Speaker 05:
There's a little question that he was discharged for willful and persistent misconduct.

[00:06:15] Speaker 05:
And therefore, he did not have the status of a veteran.

[00:06:19] Speaker 05:
What is the uncertainty about that such that the veteran's canons comes into play?

[00:06:29] Speaker 00:
The military found

[00:06:32] Speaker 00:
that willful and persistent misconduct of the a doesn't have to agree with that that's the appeal we have no review of that.

[00:06:44] Speaker 00:
But the the board failed to apply.

[00:06:48] Speaker 00:
5107B and place the burden of persuasion on the secretary.

[00:06:57] Speaker 00:
On page 96 of the appendix, the discharge board actually found the nature of the charges indicates or suggests presidential intent against the appellant.

[00:07:12] Speaker 00:
And the board failed to address that.

[00:07:15] Speaker 00:
which would have brought the evidence into ecapose.

[00:07:19] Speaker 05:
They're trying to say that there were real factual issues here when this individual was almost court martialed.

[00:07:29] Speaker 00:
Yes, Your Honor.

[00:07:31] Speaker 00:
There were factual issues that should have, that the court and the board should have then applied the burden of persuasion onto the secretary that should have brought 5107B up.

[00:07:46] Speaker 00:
the existence of this reasonable doubt rule places the burden of persuasion on the secretary.

[00:07:52] Speaker 00:
If there's a finding that preponderance of the evidence is against the claim, the secretary met this burden of persuasion.

[00:07:57] Speaker 00:
If not, the evidence is evenly balanced.

[00:08:01] Speaker 00:
And the secretary loses because he hasn't met his burden of persuasion.

[00:08:04] Speaker 00:
Any modification of this formulation of the burden of persuasion is error.

[00:08:08] Speaker 00:
In our opinion, the government confuses the analysis by arguing the board here did not make a finding that the evidence was evenly balanced.

[00:08:15] Speaker 00:
Thus, the reasonable doubt rule does not apply.

[00:08:17] Speaker 00:
The argument is missing the point that no matter how the judge weighs the evidence, either for or against the claim, the burden of persuasion still rests with the secretary.

[00:08:27] Speaker 00:
The allocation of the burden of persuasion does not change based on the state of evidence.

[00:08:32] Speaker 00:
As with all issues or elements of the claim, including the issue of veteran status, the government bears the burden of persuasion because it loses if the evidence is evenly balanced.

[00:08:43] Speaker 00:
Or stated differently, the evidence does not preponderance.

[00:08:45] Speaker 00:
proponder against the claim.

[00:08:47] Speaker 00:
If the board here had determined the preponderance of the evidence was against the veteran status, we would not be appealing the case.

[00:08:54] Speaker 00:
But that's not what happened.

[00:08:55] Speaker 00:
The board and the Veterans Court ruled the appellant board the burden of persuasion to prove the veteran status by a preponderance of the evidence.

[00:09:03] Speaker 00:
That was clear error.

[00:09:09] Speaker 00:
To be sure, the board did not make a finding that the evidence was evenly balanced.

[00:09:15] Speaker 00:
This finding is kind of irrelevant given the board's burden of persuasion.

[00:09:21] Speaker 00:
The board and the court ruled that appellant bore the burden of persuasion by a preponderance of the evidence.

[00:09:27] Speaker 00:
Therefore, a finding of approximate balance would not have served any purpose.

[00:09:31] Speaker 00:
An appellant would still have lost.

[00:09:33] Speaker 00:
Under the board and court's allocation of the burden of persuasion, the appellant needed to establish entitlement to veteran status by a preponderance of the evidence, not by an approximate balance.

[00:09:47] Speaker 05:
Assuming the... If I can be helpful for future use, persuasion is more effective when an argument is stated rather than just written.

[00:10:01] Speaker 05:
Thank you, Your Honor.

[00:10:04] Speaker 00:
Assuming the Veterans Court erred by placing the burden of persuasion on appellant, the Secretary argues such error was harmless.

[00:10:11] Speaker 03:
Can you help me just understand it?

[00:10:13] Speaker 03:
Because I found the government's position on this a little confusing.

[00:10:17] Speaker 03:
So the basis on which you rest for the assertion that the government should have the burden of persuasion by a preponderance is the benefit of the doubt rule.

[00:10:33] Speaker 03:
which kicks in only at equipoise, which would seem to me to be pretty consistent with at least the kind of elementary picture of what a preponderance is, is somewhere near 50.

[00:10:47] Speaker 03:
What do you do with 50% probability?

[00:10:50] Speaker 03:
What are you going to do with a case which is near there?

[00:10:54] Speaker 03:
So why, if it is right that the evidence here really isn't

[00:11:02] Speaker 03:
near or in equipoise, why would the question, who has the burden by a preponderance matter?

[00:11:19] Speaker 03:
I'm just not sure there are two different questions.

[00:11:23] Speaker 00:
Applying the burden of persuasion only if the

[00:11:28] Speaker 03:
evidences and aquapose is what we're arguing against the burden of persuasion should apply after I guess I'm having trouble understanding in some sort of concrete way how those two things could be any different that is who had who wins when the evidence is close seems to me to be

[00:11:50] Speaker 03:
I don't understand why that is in any way different and maybe you can explain from deciding who has the burden of persuasion by a preponderance.

[00:12:03] Speaker 00:
Because let me go back to what I previously stated.

[00:12:10] Speaker 00:
So in civil litigation, the plaintiff bears the burden of persuasion because he or she loses when the evidence is evenly balanced.

[00:12:16] Speaker 00:
In VA adjudication, the reasonable

[00:12:19] Speaker 00:
under the reasonable doubt rule, the government bears the burden of persuasion since it loses when the evidence is evenly balanced.

[00:12:26] Speaker 00:
So the burden of persuasion on the government.

[00:12:29] Speaker 03:
Right, but unless you're in that space around 50% of being evenly balanced, it just doesn't matter.

[00:12:37] Speaker 00:
It does still apply after the veteran initial burden of production is what we're arguing.

[00:12:47] Speaker 00:
The veteran status is just one of five elements of a claim.

[00:12:52] Speaker 00:
There's the presence of disability service connection, disability level, and effective date.

[00:12:58] Speaker 00:
And 5107B and the 3.102 regulations say the reasonable doubt rule applies to all issues material to the determination of a claim.

[00:13:08] Speaker 00:
the veteran's status element is clearly material to the outcome of a claim.

[00:13:13] Speaker 00:
There's a line of cases.

[00:13:15] Speaker 00:
The court has created an exception to the general burden of persuasion rule.

[00:13:20] Speaker 00:
In Aguilar, the court said the claimant, veteran's wife, had the burden to come forward with evidence of a valid merit to a veteran in order to satisfy a now-defunct, well-grounded claim requirement.

[00:13:32] Speaker 00:
Aguilar is

[00:13:33] Speaker 00:
best read as placing the burden of production of veteran status under 5107A, not the burden of persuasion.

[00:13:41] Speaker 00:
Yet the struck case cited Aguilar for the larger proposition that the claimant also bore the burden of persuasion.

[00:13:49] Speaker 00:
A person seeking to establish veteran status must do so by a preponderance of the evidence, and the benefit of the doctrine is not applicable to the determinant of the status, but we're arguing that that was misinterpreted and

[00:14:03] Speaker 00:
that misinterpreted Aguilar and ignored the command of 50107B and the 3.102.

[00:14:11] Speaker 00:
Assuming the Veterans Court erred by placing the burden of persuasion on the appellant, the Secretary argues that the error was harmless.

[00:14:21] Speaker 00:
The Federal Circuit has limited jurisdiction here and cannot resolve the factual issues.

[00:14:28] Speaker 00:
Here the record must indisputably show that the appellant would have lost the veteran status issue even if the Board and the Veterans Court had correctly allocated the burden of persuasion.

[00:14:36] Speaker 00:
The record here does not indisputably show that.

[00:14:40] Speaker 00:
Most conspicuously, the board decision reveals the judge failed to review a substantial and critical part of the record in rejecting appellant's allegations of prejudicial intent, i.e.

[00:14:51] Speaker 00:
the charges and findings of the military were the product of prejudicial intent.

[00:14:56] Speaker 00:
Specifically, Lieutenant Bond was out to get him, contriving ways to document appellant for any disciplinary infraction.

[00:15:05] Speaker 00:
The board's finding of willful and persistent misconduct was based upon Apollon's conduct during his entire period of service.

[00:15:12] Speaker 00:
The board did not rely upon a specific time frame or a specific charge or series of charges for this finding, even if one or more of the alleged offenses

[00:15:24] Speaker 00:
Indisputably occurred, appellant maintains that many others were fabricated and improperly informed the board's finding of willful misconduct.

[00:15:33] Speaker 00:
Since the board did not specify which charges were the basis of his adverse finding, the court here cannot make the necessary determinations which and how many of the offenses were based upon prejudicial intent against appellant and assuming some were, would this finding affect the veteran status determination?

[00:15:55] Speaker 04:
Okay, thank you.

[00:15:56] Speaker 04:
Let's hear from the government.

[00:15:58] Speaker 04:
Mr. Kane.

[00:16:18] Speaker 01:
May it please the court?

[00:16:19] Speaker 01:
I'd like to turn to two issues that Judge Torano addressed.

[00:16:22] Speaker 01:
The first was about our position regarding the benefit of the doubt rule.

[00:16:26] Speaker 01:
Generally, the benefit of the doubt rule applies to all elements of establishing a veteran's claim to include the element of veteran status.

[00:16:33] Speaker 01:
In our response brief, we discussed some of the evolution from the preponderance of the evidence that was addressed in D'Amico and the Veterans Court's decision in Laoran and how that has changed over time.

[00:16:45] Speaker 01:
And now the Secretary does advance

[00:16:48] Speaker 01:
or advocate for the benefit of that rule when it's appropriate.

[00:16:51] Speaker 01:
It's not for application in all cases, however.

[00:16:54] Speaker 04:
I'm trying to really understand where the lines here are drawn.

[00:16:59] Speaker 04:
So this was not an honorable discharge, is that right?

[00:17:04] Speaker 01:
That's correct, Your Honor.

[00:17:05] Speaker 04:
But it was not a dishonorable discharge, is that right?

[00:17:09] Speaker 04:
So now, are there more than one, or are there several formal

[00:17:17] Speaker 04:
intermediate classes.

[00:17:21] Speaker 04:
How does one know if it's not a dishonorable discharge that nonetheless this veteran is cut off from all benefits?

[00:17:33] Speaker 04:
At what point are these lines to be drawn?

[00:17:37] Speaker 01:
Well that's in the regulation 38 CFR section 3.12.

[00:17:40] Speaker 01:
The particular issue here is subsection D which includes four different

[00:17:47] Speaker 01:
grounds when again we're in this sort of middle category where it's not dishonorable and it's not honorable where there's definitively you know denied definitively at least that element is established.

[00:17:57] Speaker 04:
The technical term is what less than honorable?

[00:18:01] Speaker 01:
Well here is the other under conditions other than honorable there could be other things as bad conduct discharge and things like that or general discharge.

[00:18:09] Speaker 04:
That sounds quite arbitrary does it not?

[00:18:12] Speaker 04:
One can understand with a dishonorable discharge you lose

[00:18:17] Speaker 04:
or your veterans' benefits.

[00:18:19] Speaker 04:
But here, and I think it's not disputed, that there were serious infractions.

[00:18:26] Speaker 04:
At the same time, the military did not take the step of the dishonorable discharge.

[00:18:36] Speaker 04:
So that in terms of the consequences, one between honorable and dishonorable, the only consequence is entitlement to veterans benefits or plus a certain stigma, I suppose, but not one with legal consequences.

[00:18:57] Speaker 01:
Well, I think there are certainly implications with dishonorable discharge here, bar the receipt of benefits in the category that Mr. Turner is.

[00:19:07] Speaker 01:
And within, he was in this sort of middle ground where the VA did have to make that determination.

[00:19:12] Speaker 01:
Essentially, it's a policy choice that Congress and the VA have made to say these certain categories of offenses could lead you to lose your benefits.

[00:19:22] Speaker 01:
And I think that's not something that's before this court.

[00:19:25] Speaker 01:
And I think, additionally,

[00:19:28] Speaker 01:
As you said, there were, I don't think there should be any dispute that there were these offenses that were committed.

[00:19:35] Speaker 01:
And to sort of draw the line about where exactly Mr. Turner loses everything versus he retains some benefits.

[00:19:43] Speaker 01:
He was granted treatment benefits for his right finger injury in 2009.

[00:19:49] Speaker 01:
However, he was denied the compensation that he was seeking.

[00:19:54] Speaker 05:
But this appeal is about burden of proof, right?

[00:19:57] Speaker 05:
Correct, Your Honor.

[00:19:58] Speaker 05:
And whether the balance of positive and negative comes into play here.

[00:20:08] Speaker 01:
Well, yes.

[00:20:08] Speaker 01:
That's actually a point I'd like to get to with Judge Torano had mentioned that where he had stated essentially that the proponents of the evidence doesn't matter in this particular situation because the evidence was not an equipoise.

[00:20:21] Speaker 01:
And I think here, we'd like to go back to Mr. Turner's arguments, where he seems to latch on to a single reference in the Veterans Court decision about the preponderance of the evidence, and then some references in the board decision.

[00:20:35] Speaker 01:
But I think this appeal creates some unnecessary confusion about just exactly what rule that he seems to be advocating for here.

[00:20:42] Speaker 03:
Well, what's the rule you think is correct?

[00:20:45] Speaker 03:
Does the government have, or does the veteran have,

[00:20:51] Speaker 03:
the burden of persuasion on the issue of veteran status.

[00:20:56] Speaker 01:
The veteran retains that burden, the burden of persuasion.

[00:20:59] Speaker 03:
The burden of persuasion.

[00:21:00] Speaker 03:
Now, how could that possibly be correct with the benefit of the data rule?

[00:21:05] Speaker 01:
Well, as long as there's enough evidence in the record, I guess, I see your point, Your Honor, where there is some distinction with the burden of persuasion.

[00:21:14] Speaker 01:
And I think that's what Ortiz tried to explain, where the risk of non-persuasion is on the VA.

[00:21:19] Speaker 01:
Uh, if, uh, the, uh, uh, yeah.

[00:21:23] Speaker 03:
Doesn't that mean that the VA has the burden of persuasion by a preponderance, which it's really easy to meet if the veteran, um, you know, if the veterans, uh, burden of the veterans production of getting some evidence about veteran status, um, you know, doesn't rise anywhere to near 50%.

[00:21:45] Speaker 03:
But if you're in the 50% realm, um, he wins.

[00:21:49] Speaker 01:
I think that generally would be accurate, Your Honor.

[00:21:51] Speaker 01:
But I think Mr. Turner's now tried to take it further to say now somehow the VA has an affirmative burden to disprove his claim.

[00:21:59] Speaker 01:
And he does use burden of proof and burden of persuasion interchangeably.

[00:22:03] Speaker 03:
Right.

[00:22:03] Speaker 03:
I guess I'm trying just for the moment to focus on the legal propositions.

[00:22:09] Speaker 03:
And it seems to me

[00:22:12] Speaker 03:
It could just be me.

[00:22:14] Speaker 03:
I find it very confusing to say that there's a benefit to the doubt rule, which means that if you're in the equipoise area, that the veteran wins and simultaneously say, nevertheless, the veteran has the burden of persuasion by a preponderance.

[00:22:33] Speaker 03:
I genuinely do not understand how those two sentences both could be true.

[00:22:37] Speaker 01:
I don't think we're saying that the veteran has the burden of persuasion by a preponderance of the evidence.

[00:22:42] Speaker 01:
I think in this particular case here, I think the unnecessary confusion comes with the preponderance and the benefit of the doubt rule were not even implicated because the board made a finding that weighed against the veteran's claim.

[00:22:54] Speaker 01:
I.e.

[00:22:54] Speaker 01:
the preponderance of the evidence was against his veteran's status.

[00:22:58] Speaker 01:
Therefore, you didn't even need to address the preponderance or the burden of the proof.

[00:23:01] Speaker 01:
The evidence was not neck with poison in his particular case based off the board's review of his entire service history.

[00:23:09] Speaker 01:
the chart, the events that led up to his first court-martial, the nonjudicial puncture that occurred in between, the counseling and the warning, and then the second referral to the court-martial.

[00:23:22] Speaker 01:
So there was evidence weighed against that particular element where the benefit of the doubt rule or preponderance are not even implicated.

[00:23:30] Speaker 01:
And I think one of the other confusing points here is he argued below on the reconsideration that

[00:23:37] Speaker 01:
essentially that there was evidence in equipoise, and that I should get the benefit of the doubt rule.

[00:23:41] Speaker 01:
But that's not what the board actually found.

[00:23:44] Speaker 01:
Again, the board found that.

[00:23:46] Speaker 03:
You said that he did make a point about that.

[00:23:47] Speaker 01:
He did make a point about that.

[00:23:49] Speaker 01:
But the board actually found the evidence preponderated against the claim.

[00:23:53] Speaker 01:
And that's actually what Ortiz explains, that you only get the benefit of the doubt rule when the evidence is in equipoise.

[00:23:59] Speaker 01:
When the evidence is against the claim, you're necessarily precluding a finding that the evidence is in equipoise,

[00:24:05] Speaker 01:
And if the board finds the evidence is against the claim, then there's no application of the benefit of the doubt rule.

[00:24:12] Speaker 01:
The rule he seems to be advocating for here never had any application in this particular case.

[00:24:17] Speaker 04:
There was no court martial, right?

[00:24:20] Speaker 01:
On the first discharge, Your Honor, no.

[00:24:22] Speaker 01:
He accepted discharge in lieu of proceeding before the court martial.

[00:24:25] Speaker 01:
There was an earlier court martial.

[00:24:27] Speaker 01:
Yes, there was a first court martial.

[00:24:28] Speaker 01:
We had picked up several charges that he was not guilty.

[00:24:31] Speaker 04:
Well, there was a first court martial.

[00:24:33] Speaker 01:
Yes.

[00:24:34] Speaker 04:
But there was no adverse consequence.

[00:24:39] Speaker 04:
Is that right?

[00:24:40] Speaker 04:
He was retained?

[00:24:41] Speaker 01:
He was retained for service, Your Honor.

[00:24:44] Speaker 01:
And then he had some hard time, right?

[00:24:47] Speaker 01:
He did have some punishment related to his first court martial.

[00:24:51] Speaker 01:
But then there were other instances that occurred.

[00:24:53] Speaker 01:
There was an event, a counseling, that occurred in January around the time of his discharge board.

[00:24:59] Speaker 01:
And like in May of 1982, there was also a non-judicial punishment related to being absent from his appointed place of duty.

[00:25:05] Speaker 01:
And then I believe there was another counseling in December of that year.

[00:25:09] Speaker 01:
And then the following year in the spring, there was the second court martial, which he accepted his discharge in lieu of receiving.

[00:25:20] Speaker 04:
But a discharge under conditions other than dishonorable.

[00:25:26] Speaker 01:
under conditions other than honorable, Your Honor.

[00:25:29] Speaker 04:
Other than honorable, but not dishonorable.

[00:25:32] Speaker 01:
Not dishonorable.

[00:25:33] Speaker 01:
And under 38 U.S.C.

[00:25:34] Speaker 01:
and Section 101, a straight dishonorable discharge will bar you from benefits.

[00:25:38] Speaker 01:
So again, they're sort of the two extremes, or you're dishonorable or you're honorable, where there's a definite determination on at least that element of veteran status.

[00:25:48] Speaker 01:
And then Mr. Turner is in this middle category, where the VA makes the determination on whether the particular facts

[00:25:56] Speaker 01:
in his service history would amount to or be equate to a dishonorable discharge.

[00:26:04] Speaker 01:
And to bring the court back to some understanding of what I think the Veterans Court recognized and the board recognized here about that there was no application of the benefit of the doubt rule that Mr. Turner seems to be pointing to,

[00:26:20] Speaker 01:
I'd like to start with actually the principle that this court recently recognized actually right after we thought our response brief in Janes v. Willoughby.

[00:26:27] Speaker 01:
It's 917, Fed 3rd, 1368.

[00:26:29] Speaker 01:
The quote here is, when determining whether a court committed legal error in selecting the appropriate legal standard, we determine which legal standard the tribunal applied and not which standard it recited.

[00:26:41] Speaker 01:
And if you look at the Veterans Court decision, particularly the discussion of Bruce v. McDonald, which is another Veterans Court case, the Veterans Court clearly understands how the benefit of the doubt rule is supposed to operate.

[00:26:54] Speaker 01:
The issue in Bruce was about veteran status also.

[00:26:57] Speaker 01:
In that case, there was an approximate balance of positive and negative evidence on the character of service determination, similar to Mr. Turner, except it was under a different prong of the same regulation under Section 3.12.

[00:27:10] Speaker 01:
That subsection D1 says, if you accept an undesirable discharge to escape a general court marshal, then that will be considered dishonorable.

[00:27:20] Speaker 01:
The Veterans Court below in Turner's case recognized that the benefit of the doubt rule had applied in Bruce because there was a balance of evidence whether it was a general court marshal or a special court marshal.

[00:27:31] Speaker 01:
One would bar him from benefits, and one would allow him to essentially get the benefit of the doubt rule and proceed with the rest of his claim.

[00:27:40] Speaker 04:
So just to be clear, for a discharge of an honorable, whether or not it is also called a dishonorable discharge, that eliminates access to veterans' benefits in the government's view?

[00:27:55] Speaker 01:
Under section 3112.

[00:27:57] Speaker 04:
Anything other than an honorable discharge, or is there a gray area of flexibility depending on how kindhearted the decision maker is?

[00:28:09] Speaker 01:
Well, I think some of that flexibility is built into the regulation.

[00:28:11] Speaker 01:
In Mr. Turner's case under Section 3.12D4, it says, Wolfman persistent misconduct will be a bar to benefits.

[00:28:19] Speaker 01:
But then there's what's called the second sentence of that is what's sometimes called the single offense exception.

[00:28:24] Speaker 01:
That if the veteran's service is otherwise honest, faithful, and meritorious, we're not going to punish you for having a single infraction that could be relatively minor.

[00:28:35] Speaker 01:
But here in the board actually considered that and said his discharge was not because of a single minor offense and that the rest of his service history was not otherwise honest, faithful, and meritorious.

[00:28:46] Speaker 01:
When you looked at the entirety of the service history from the time that he joined and the time he was discharged, there was misconduct.

[00:28:53] Speaker 01:
So that made a clear finding that he didn't meet willful and persistent misconducts to meet that be a bar to benefits or as a dishonorable discharge.

[00:29:08] Speaker 01:
And turning briefly back to the discussion of the Veterans Court's discussion of Bruce, Mr. Turner tried to, again, analogize his case to Bruce and actually say that there was some evidence in equipoise, but instead the Veterans Court simply recognized that the board found that the evidence was against the claim, again, necessarily precluding a finding that the evidence was in equipoise and there was no application of the benefit of the doubt rule possible.

[00:29:35] Speaker 03:
What is the statutory provision that 3.12 is implementing?

[00:29:53] Speaker 03:
Is it just 1.012, the definition of veteran?

[00:29:55] Speaker 01:
I believe there's a different statute, Your Honor, that it's implementing.

[00:30:16] Speaker 01:
I don't have that relatively handy right now, but I can provide it to the court if you'd like after the hearing.

[00:30:27] Speaker 03:
5303 says something about this, but it's not clear to me that it says something about a general class of discharges other than honorable.

[00:30:37] Speaker 03:
The veteran definition is about discharge other than dishonorable.

[00:30:42] Speaker 01:
But I believe there is another statute.

[00:30:43] Speaker 01:
There are statutory bars to benefits.

[00:30:47] Speaker 01:
Sorry, I didn't have that regulation.

[00:30:48] Speaker 01:
The statute is directly in front of me.

[00:30:50] Speaker 01:
I can write it to the court.

[00:30:52] Speaker 01:
But I believe it is implementing some of the grounds, say, in this middle category of not dishonorable but not honorable, and the VA now makes that determination.

[00:31:03] Speaker 02:
I see.

[00:31:04] Speaker 02:
It's 5303E2, maybe.

[00:31:09] Speaker 02:
That's OK.

[00:31:10] Speaker 02:
I'll look.

[00:31:16] Speaker 01:
In conclusion, Your Honor, I see my time is almost up, but I would believe that the Veterans Court properly found that the Board made a correct factual finding regarding Mr. Turner's character of discharge and such.

[00:31:30] Speaker 01:
That's a factual issue that's outside this Court's jurisdiction that the Court can dismiss, or in the alternative, the Court can affirm the decision below.

[00:31:37] Speaker 01:
Thank you.

[00:31:42] Speaker 04:
Thank you.

[00:31:42] Speaker 04:
Mr. Lutfelder?

[00:31:45] Speaker 04:
So you have a couple of minutes of rebuttal if you need them.

[00:31:52] Speaker 00:
Did you have any further questions?

[00:31:56] Speaker 00:
The 3.12 is a discharge or release because one of the events is specified and this paragraph is considered to have been issued under dishonorable conditions.

[00:32:07] Speaker 00:
Acceptance, willful and persistent misconduct,

[00:32:15] Speaker 00:
if service was otherwise, unless service was otherwise honest, faithful, and meritorious.

[00:32:22] Speaker 00:
And here the discharge board actually found, recommended, found that his recommendation for discharge was under prejudicial intent and actually recommended that he be transferred

[00:32:40] Speaker 00:
to another unit and his commanding officer Lieutenant Bond failed to transfer him to another unit and continued to accumulate charges against him and then threatened to resign unless Mr. Turner was discharged under a court martial.

[00:32:58] Speaker 05:
Judge, to run a statutory basis for 312 wars, could it be 5303, which is cited on the same lines as 312?

[00:33:10] Speaker 00:
I'm not sure, Your Honor.

[00:33:15] Speaker 00:
Thank you.

[00:33:16] Speaker 04:
Thank you.

[00:33:17] Speaker 04:
Thank you both.

[00:33:17] Speaker 04:
The case is taken under submission.

[00:34:22] Speaker 04:
The next argued case is number 18, 2414, Amgen, Incorporated, against Amnio Pharmaceuticals, Mr. Botkin.