[00:00:00] Speaker 03:
The next case for argument is Casares versus Solari.

[00:00:07] Speaker 03:
It's a Calera-Solari versus United States.

[00:01:04] Speaker 00:
I'm having myself a glass of water.

[00:01:06] Speaker 00:
Sure, thanks.

[00:01:28] Speaker 03:
Good morning.

[00:01:28] Speaker 00:
Good morning, members of the court.

[00:01:30] Speaker 00:
Chief Judge Prost, I don't know if you remember, I have argued before you previously.

[00:01:33] Speaker 00:
It's a pleasure to see you.

[00:01:34] Speaker 00:
I don't know if I've met you, Judge Raina.

[00:01:36] Speaker 00:
I don't know if Judge O'Malley is on speaker or if she is just participating, but send my regards.

[00:01:41] Speaker 00:
Your honors, my name is William Casera.

[00:01:43] Speaker 00:
I represent the appellant in this case, whose last name unfortunately sounds an awful lot like mine, Andres Casera S. Yeah, it wasn't.

[00:01:51] Speaker 00:
It's confused me more than once.

[00:01:52] Speaker 00:
Your honors, we are here to hear two issues in this case.

[00:01:56] Speaker 00:
Um, and the first is that under the substantial evidence rule, the trial court was obligated to review the whole record to determine whether the multiple diagnoses of PTSD and Dr. Baskoff's opinion that there was a nexus between Mr. Caseras, PTSD and his misconduct fairly detracts from the BCNR's decision.

[00:02:14] Speaker 00:
And secondly, that under the substantial evidence rule, the trial court was obligated to review the whole record to determine whether the lack of due process at the non-judicial punishment fairly detracts from the BCNR's decision.

[00:02:27] Speaker 00:
Your Honor, as a brief historical, I know the court knows the facts of the case and knows the history, but if I could have just a minute to do a brief historical.

[00:02:35] Speaker 00:
Mr. Major Kassar was a Marine who sustained a head injury from a combat-related deployment in Iraq in 2004.

[00:02:43] Speaker 00:
He had numerous other deployments during which he witnessed disturbing events.

[00:02:47] Speaker 00:
On July 5th of 2015, he attended a non-judicial punishment proceeding.

[00:02:52] Speaker 00:
I know the court is aware of what that is.

[00:02:55] Speaker 00:
He was not allowed to review the evidence until approximately, or not able to review the evidence, until approximately 60 minutes before he was to meet with the commanding general.

[00:03:05] Speaker 03:
OK, can I just interrupt?

[00:03:07] Speaker 00:
Yes, ma'am.

[00:03:08] Speaker 03:
But on this due process question, I mean, this proceedings, we don't get that many of these cases.

[00:03:13] Speaker 03:
But there is a whole, I can't even keep the acronyms straight, because there's so many proceedings he had.

[00:03:20] Speaker 03:
So he decided to forego the court martial proceeding

[00:03:25] Speaker 03:
You're not claiming that that's a criminal justice violation, that he had gotten to see the material.

[00:03:30] Speaker 03:
So it's just a matter of how much time he had to see the material.

[00:03:33] Speaker 03:
It is correct, however, that he was explicitly asked at this proceeding.

[00:03:37] Speaker 03:
Is it the NJP?

[00:03:39] Speaker 00:
The NJP, non-judicial punishment.

[00:03:41] Speaker 00:
Yes, ma'am.

[00:03:42] Speaker 03:
Did you consult with the lawyer?

[00:03:43] Speaker 03:
Did you have time to refer to it, yadda-da?

[00:03:47] Speaker 03:
And the answer to all of that was yes.

[00:03:49] Speaker 03:
And then it also seems that even if he

[00:03:52] Speaker 03:
accepting that he thought he needed more time and he didn't get it.

[00:03:56] Speaker 03:
There were subsequent proceedings, which he also had a further opportunity to dispute the evidence and make his case, right?

[00:04:03] Speaker 03:
So I'm having a hard time seeing, you know, we have a lot of due process allegations.

[00:04:09] Speaker 03:
I'm having a hard time seeing how this rises to that level.

[00:04:13] Speaker 00:
I understand, Your Honor, and let me try and help the Court both with a little bit of information and with some missing, some facts that the Court of Claims left out of their decision.

[00:04:22] Speaker 00:
There's one fact in there that is, we believe, extremely important, which is when he was told by his commanding general, quote, don't make this any harder on yourself.

[00:04:29] Speaker 00:
When one accepts non-judicial punishment or does not admission

[00:04:33] Speaker 00:
per se, of guilt.

[00:04:34] Speaker 00:
Now, in this case, he did plead guilty.

[00:04:36] Speaker 03:
Can we separate that out?

[00:04:37] Speaker 03:
Because I didn't meant, I mean, I'm talking about due process in terms of his being able to review the material with sufficient time to do that.

[00:04:43] Speaker 03:
Let's leave this hearsay argument and whatever to the side.

[00:04:48] Speaker 03:
So talk to me about the due process.

[00:04:50] Speaker 00:
Sure.

[00:04:51] Speaker 00:
So the further proceedings in this case, the Board of Inquiry specifically, which followed after the results of the NJP,

[00:04:59] Speaker 00:
And a board of inquiries and administrative board of officers that hears evidence in the case, that was predicated on the fact that he had received non-judicial punishment.

[00:05:10] Speaker 00:
So the failure to allow him adequate time to defend himself at the non-judicial punishment proceedings directly affects everything else that happens after that.

[00:05:20] Speaker 03:
You know, I appreciate that, you know, it's an intimidating process for most people who were faced with them against some tribunal.

[00:05:28] Speaker 03:
But what more?

[00:05:29] Speaker 03:
I mean, we're on the other end of that.

[00:05:31] Speaker 03:
The court asks them, or not the court, but the NGP asks them, did you have enough time to review?

[00:05:36] Speaker 03:
Did you talk to your lawyer?

[00:05:38] Speaker 03:
Ya-da-da.

[00:05:39] Speaker 03:
And the answer's all yes.

[00:05:40] Speaker 03:
I mean, if a court can't or a tribunal cannot accept that at face value, then we're going to have a do-over

[00:05:49] Speaker 03:
on millions and millions of cases.

[00:05:52] Speaker 00:
I don't believe that's the case, Your Honor.

[00:05:53] Speaker 00:
I believe that you have to look at it in a couple of different prisms, so to speak.

[00:05:57] Speaker 00:
The first is the very peculiar prism of the military, where you're not going in to speak to a impartial board of officers or, you know, I don't know what the case before us was about.

[00:06:08] Speaker 00:
I was trying to track and I'm sorry to say I probably caught about four words of it.

[00:06:12] Speaker 00:
But, you know, where there's, I mean, a clearly impartial board, the person that he is appearing before is his commanding general.

[00:06:19] Speaker 00:
who certainly is not an impartial observer in all of that, and who holds, if my client was a major general, five or six ranks above him, and telling him, don't make this any harder on yourself.

[00:06:32] Speaker 00:
Now, having said that, is everything okay with you?

[00:06:35] Speaker 00:
Well, sure it is, sir.

[00:06:37] Speaker 00:
Because you can't take that those statements out of the prism of what occurs.

[00:06:41] Speaker 03:
Can you give me a little more information on just if you can't resist going there.

[00:06:46] Speaker 03:
Let's go there.

[00:06:47] Speaker 03:
Which is his wife heard it.

[00:06:49] Speaker 03:
I don't understand the timing of when that statement was made.

[00:06:53] Speaker 00:
OK.

[00:06:54] Speaker 03:
So because he goes in he's only got an hour to look at the right stuff.

[00:06:59] Speaker 00:
Right.

[00:06:59] Speaker 03:
Is that what happens right before the person.

[00:07:01] Speaker 00:
So the way that this happens is he's given a

[00:07:04] Speaker 00:
He's given an hour to review the investigation.

[00:07:07] Speaker 00:
He then goes into the commander's room.

[00:07:10] Speaker 00:
And his wife, I believe the record is fairly clear on this, his wife was on the phone as a witness, and she heard the comments from the commander who was imposing the non-judicial punishment.

[00:07:21] Speaker 00:
So it's two separate rooms.

[00:07:22] Speaker 03:
So it's during the NGP?

[00:07:24] Speaker 00:
Yes, ma'am.

[00:07:25] Speaker 00:
That's when the commander says, don't make this any harder on yourself.

[00:07:27] Speaker 01:
Let's go back a little bit further.

[00:07:34] Speaker 01:
There was a report handed to him right before the hearing itself, correct?

[00:07:38] Speaker 00:
Correct, sir.

[00:07:40] Speaker 01:
And when was that report finished?

[00:07:42] Speaker 01:
When did the record doesn't reflect?

[00:07:45] Speaker 00:
It doesn't reflect that, but it does reflect that his military lawyer, who was in the States while this hearing was taking place in Germany, had emailed or spoken to the staff judge advocate in Germany on several occasions saying,

[00:07:57] Speaker 00:
When can we get the report?

[00:07:59] Speaker 00:
And then she says, well, he'll get it right before the hearing.

[00:08:01] Speaker 01:
And Mr. Casares was asking that lawyer, where's the report?

[00:08:06] Speaker 00:
How do I defend myself?

[00:08:07] Speaker 01:
Where's the report?

[00:08:07] Speaker 00:
Yes, sir.

[00:08:09] Speaker 01:
Now, during the colloquy that happened at the hearing itself, show me where in the record that occurred.

[00:08:16] Speaker 01:
We're watching it.

[00:08:17] Speaker 01:
Looking at page 98, I understand that to be the colloquy that occurred with respect to whether he was going to waive his court.

[00:08:27] Speaker 00:
Correct.

[00:08:28] Speaker 00:
Correct.

[00:08:28] Speaker 00:
Is that is that it?

[00:08:30] Speaker 00:
I believe that's it.

[00:08:30] Speaker 00:
Yes, your honor.

[00:08:32] Speaker 00:
So does that answer your question, Judge?

[00:08:34] Speaker 00:
Okay.

[00:08:35] Speaker 00:
So Judge, what I would like to do is, I know this court is aware of the standard of review, so there's no reason for me to go through that.

[00:08:41] Speaker 03:
Yeah, but let's talk about that with the Nexus, because we haven't talked about the Nexus either.

[00:08:46] Speaker 03:
You've got arguably conflicting medical opinions.

[00:08:50] Speaker 00:
Yes, ma'am.

[00:08:51] Speaker 03:
How do you think that as an appellate court, given the standard of review, what are we supposed to do with that?

[00:08:59] Speaker 03:
Clearly, I mean, you had a lot of process here.

[00:09:02] Speaker 03:
You had numerous evaluations.

[00:09:04] Speaker 03:
I mean, I know you're not making a due process violation allegation with regard to the PTSD.

[00:09:09] Speaker 03:
No, we are not.

[00:09:11] Speaker 03:
Because the military stayed his removal.

[00:09:15] Speaker 03:
He saw numerous medical people.

[00:09:20] Speaker 03:
In what basis are we to say, no, all of you got it wrong, and we're going to pick this particular person over the conflicting evidence of the other people?

[00:09:31] Speaker 00:
Well, the Supreme Court gives you that authority in Consolidated Edison and Universal Camera.

[00:09:38] Speaker 00:
But we're not asking you to reweigh the evidence.

[00:09:41] Speaker 00:
And I know that there is a fine line of demarcation.

[00:09:44] Speaker 00:
I want to say distinction without a difference, because it is a distinction with a very big difference, between not reweighing the evidence and determining whether or not there is sufficient evidence in the record that fairly detracts from the decision of the administrative board.

[00:09:59] Speaker 00:
The law gives the court the authority not to, again, I know that it's somewhat of a distinction, but it's... I don't understand, fairly detracts.

[00:10:06] Speaker 03:
You could have six against one and the one on the other side arguably just detracts.

[00:10:13] Speaker 00:
But it doesn't fairly detract.

[00:10:15] Speaker 00:
And I think that's the term that the case law uses.

[00:10:17] Speaker 03:
You have to weigh it, right?

[00:10:18] Speaker 03:
That involves a weighing analysis.

[00:10:20] Speaker 03:
How do you decide whether it fairly detracts?

[00:10:23] Speaker 03:
Well, and I understand... Weighing all of the evidence.

[00:10:25] Speaker 00:
I understand, Your Honor.

[00:10:26] Speaker 00:
As I said, the courts have promulgated a couple of different standards of review that tend to seem like they are contradictory with one another.

[00:10:33] Speaker 00:
And we are the first ones to admit that.

[00:10:34] Speaker 03:
But we do believe, and Pellin argues, that the law does allow, as the Supreme Court has said, Congress has made it clear that it... Well, I'm not suggesting that under the standard review or the evidence, it's impossible to ever in the hypothetical for us to overturn that.

[00:10:50] Speaker 03:
But we're talking about this case.

[00:10:51] Speaker 03:
Yes, ma'am.

[00:10:53] Speaker 03:
We've got looking at the number of medical reviews and even the numbers of one.

[00:10:59] Speaker 03:
How on earth, given the deferential standard of review, are we to second guess the weight that was assigned the varying things?

[00:11:09] Speaker 03:
And your answer to me seemed to be whether it's fairly, but I don't understand how we evaluate under these circumstances in this case.

[00:11:15] Speaker 00:
Okay.

[00:11:16] Speaker 00:
Well, the evidence is three.

[00:11:17] Speaker 00:
Sure, Your Honor, and I think the answer to that question is clear, that the evidence of the PTSD diagnosis by three medical providers and a social worker on the nexus between PTSD detracts from the weight of the BCNR decision.

[00:11:29] Speaker 03:
Can you tell me that again?

[00:11:30] Speaker 03:
Because PTSD, there's no dispute that he has PTSD.

[00:11:34] Speaker 03:
That's correct.

[00:11:35] Speaker 03:
So the only question is the nexus, and you had Dr. Bashkoff that made a determination.

[00:11:42] Speaker 03:
And who were the others that said that was the nexus?

[00:11:44] Speaker 00:
Well, just so I'm clear, Your Honor, the PTSD diagnosis was made by three medical providers.

[00:11:49] Speaker 03:
Okay, but that's not disputed.

[00:11:51] Speaker 00:
I think it is disputed to some degree, Your Honor.

[00:11:53] Speaker 00:
I think that Dr. Evans said that it was, you know, severe stress.

[00:11:59] Speaker 03:
Let me take it off the table.

[00:12:01] Speaker 00:
Okay.

[00:12:01] Speaker 03:
Just talk to me about Nexus.

[00:12:03] Speaker 00:
Sure.

[00:12:03] Speaker 03:
It seems to me that the only person that you witness or medical professional you had opining about the Nexus in your favor was Dr. Bashkoff.

[00:12:12] Speaker 03:
Am I right about that?

[00:12:13] Speaker 00:
That is correct, Your Honor.

[00:12:14] Speaker 00:
Okay.

[00:12:14] Speaker 00:
Yes.

[00:12:15] Speaker 00:
And so if the question is, you know, as you look at the sort of two contrary opinions that the court has sort of taken off the table, Dr. Evans and Dr. Richter, they don't

[00:12:29] Speaker 00:
Because they don't really find PTSD, they sort of skirt around it, then they certainly don't find nexus.

[00:12:33] Speaker 03:
Well, I don't suggest we take it off the table.

[00:12:37] Speaker 03:
So I'm not taking them off the table.

[00:12:38] Speaker 03:
So take them off.

[00:12:39] Speaker 03:
For this argument, I understand that.

[00:12:41] Speaker 03:
These are medical professionals who did an evaluation, and they are on the table.

[00:12:46] Speaker 00:
Right.

[00:12:47] Speaker 00:
And so the BCNR is not free to simply say, well, we're going to disregard these four.

[00:12:51] Speaker 03:
So you think they had to do a two step and they should have looked at all of this and made an initial evaluation.

[00:12:57] Speaker 03:
Did he have PTSD?

[00:12:59] Speaker 03:
And then once they, if they concluded that the weight of the evidence was that he did have PSD, then they should have ignored the other doctor.

[00:13:07] Speaker 03:
No, Your Honor.

[00:13:08] Speaker 00:
And in fact, their own doctor, Dr. Evans, wanted to do further research.

[00:13:12] Speaker 00:
The government's own doctor said, I want further research.

[00:13:15] Speaker 00:
He wanted to do further evaluation and even considered hospitalizing him.

[00:13:19] Speaker 00:
So what you're really left with is Commander, I want to say Dr. Bischoff, I may have the name wrong, but saying, you know, Commander Richter, excuse me.

[00:13:31] Speaker 00:
saying, you know, making his findings, Dr. Evans saying, I need to do more evaluation.

[00:13:36] Speaker 00:
And Dr. Bashkoff saying, Dr. Richter's decision fails to take into account all of these other factors.

[00:13:46] Speaker 00:
And the courts or the BCNR simply says, well, we picked this one over these.

[00:13:51] Speaker 00:
And we believe that that is where the evidence fairly detracts or there is not substantial evidence to prove

[00:13:58] Speaker 00:
for the BCNR in which to rest its decision.

[00:14:02] Speaker 00:
Subject to further questions from members of the court?

[00:14:04] Speaker 00:
Thank you.

[00:14:15] Speaker 02:
Good morning.

[00:14:17] Speaker 02:
May I please report?

[00:14:18] Speaker 02:
Thank you, Your Honor.

[00:14:20] Speaker 02:
As you heard from my opponent, the appellant raises two issues on appeal, nexus and due process.

[00:14:25] Speaker 02:
And given that you just left off with nexus, I'll start by addressing a nexus argument.

[00:14:29] Speaker 01:
And we absolutely.

[00:14:30] Speaker 01:
Can we go first to the due process?

[00:14:32] Speaker 01:
Sure, Your Honor.

[00:14:34] Speaker 01:
How we started this argument.

[00:14:38] Speaker 01:
Did Mr. Caceres ever get a chance to go over the investigative report with his lawyer?

[00:14:45] Speaker 02:
As I understand it, he did not get a chance to go over the report with his lawyer.

[00:14:49] Speaker 02:
It was approximately 100 pages and it is in the record.

[00:14:55] Speaker 01:
But I want to be clear what didn't contain both.

[00:14:59] Speaker 01:
evidence that incriminates him and also evidence that may exculpate him.

[00:15:04] Speaker 02:
Yes, it does.

[00:15:05] Speaker 02:
And I note for the record, Mr. Caseras-Solars did receive a charging sheet.

[00:15:10] Speaker 02:
He received before the non-judicial punishment a fairly detailed and extensive charging sheet that went through

[00:15:16] Speaker 02:
each of the charges being raised against him and the specification so some of the facts he had he did he had that well in advance and had an opportunity to go through that with his attorney so what he didn't see are the specific witness statements etc against him until approximately an hour before NJP and even at that point

[00:15:35] Speaker 02:
He had every opportunity to reach out to his lawyer, to ask for a delay.

[00:15:39] Speaker 02:
He did none of that.

[00:15:40] Speaker 02:
As we noted, the very first question at NJP is, do you understand that you have a right to refuse nonjudicial punishment?

[00:15:46] Speaker 02:
To which he answered, yes.

[00:15:48] Speaker 02:
And so I think with respect.

[00:15:49] Speaker 01:
But for example, did he know that charge one was later found to be unsubstantiated?

[00:15:54] Speaker 02:
Yes, as I understand it, Your Honor, he did.

[00:15:56] Speaker 02:
And if you'll indulge me, I'll point you to the record.

[00:15:59] Speaker 01:
Show me what he knew then.

[00:16:19] Speaker 02:
If you look at Appendix 87, Your Honor, I believe it starts at Appendix 85, my apologies.

[00:16:27] Speaker 02:
You will see the notification of intent to impose non-judicial punishment.

[00:16:32] Speaker 02:
And here we see Charge 1 laid out, and it continues to go through each of the charges and specifications which set forth in fairly good detail exactly what the charges against Mr. Casera Solari were.

[00:16:45] Speaker 03:
And then did he respond to this?

[00:16:47] Speaker 03:
Is there an intermediate response by him or his lawyer?

[00:16:51] Speaker 02:
There was not a response, I think, here.

[00:16:53] Speaker 02:
What he did, though, was reach out to several individuals for character witness statements.

[00:16:57] Speaker 02:
So he absolutely had an opportunity to prepare for NJP.

[00:17:01] Speaker 01:
But did he know that charge one was found to be unsubstantiated by the investigating officer?

[00:17:11] Speaker 02:
I'm not aware, based on this record, Your Honor, that he was aware of that.

[00:17:15] Speaker 02:
I do know he received this charge sheet, so he would have known what the charges and specifications were.

[00:17:21] Speaker 02:
I'm not aware that he received the report from the command-directed investigation, which would have told him what the decision was.

[00:17:27] Speaker 03:
That was all in the CID.

[00:17:30] Speaker 02:
Right.

[00:17:30] Speaker 02:
And that was approximately 100 pages in what he had an opportunity to review before NJP.

[00:17:36] Speaker 02:
Now, granted, it appears due to some technical errors with computers, he only received the hour.

[00:17:41] Speaker 02:
But again, he did have counsel that he could consult with with respect to the charge sheet and could have, if he felt like he needed more time, requested more time or reached out to his counsel to ask for more time.

[00:17:50] Speaker 03:
Well, I think their answer to that is that his commander made some intimidating statement that made him think that as a practical matter, he couldn't ask for more time.

[00:18:00] Speaker 02:
Right, and I think that that statement appears to have been, don't make the situation worse.

[00:18:05] Speaker 02:
I think that statement is up to interpretation.

[00:18:07] Speaker 01:
He's in subordination, correct?

[00:18:10] Speaker 01:
And here he is before a superior officer who's told him, don't make this harder than you need to, or something like that.

[00:18:17] Speaker 01:
If he disobeys that, is he being insubordinate?

[00:18:21] Speaker 02:
Well, I would say no, Your Honor, particularly because a few minutes later he's asked the question, do you understand your right to refuse NJP?

[00:18:28] Speaker 02:
So if he understood that comment to be directing him to accept non-judicial punishment, but he's then later asked, do you understand your right to refuse non-judicial punishment?

[00:18:38] Speaker 02:
At a minimum, he could say, I do, and I'd like to consult with my attorney.

[00:18:42] Speaker 02:
Instead, he just said, yes.

[00:18:44] Speaker 02:
And so he accepted the terms of NJP.

[00:18:46] Speaker 02:
He went in quite prepared, having consulted with his lawyer, having reached out to character witnesses, et cetera.

[00:18:51] Speaker 02:
His time was shortened in terms of review of the report.

[00:18:54] Speaker 01:
But again, how can he be prepared if he doesn't have the investigative report that identifies potential witnesses that may testify on his behalf or against him?

[00:19:03] Speaker 02:
Well, no, Your Honor, for the record, too.

[00:19:05] Speaker 01:
At that point in time, he says, wow, I should get this witness.

[00:19:08] Speaker 01:
I should have this particular person here at the hearing.

[00:19:11] Speaker 01:
And yet, it's an hour before the hearing.

[00:19:13] Speaker 02:
And he could have requested more time, but he didn't.

[00:19:16] Speaker 01:
You're familiar with the case Fairchild versus Lehman, right?

[00:19:21] Speaker 02:
Which one is that, Your Honor?

[00:19:22] Speaker 02:
Was this cited in the briefs?

[00:19:25] Speaker 01:
Well, it's 814 Federal Second, 1555.

[00:19:30] Speaker 01:
It's not cited in the Bruce.

[00:19:43] Speaker 01:
not only must be voluntary, but must be knowing intelligent acts done with sufficient awareness of all of the relevant circumstances and the likely consequences.

[00:19:54] Speaker 01:
If he didn't know that one of the charges that was brought against him was later found to have been unsubstantiated by one of the investigating officers, if he didn't know that, then how can we say that he,

[00:20:10] Speaker 01:
He waived his court martial with sufficient awareness of all of the relevant circumstances.

[00:20:17] Speaker 02:
Well, I'd argue, Your Honor, that he did have an hour to review the record.

[00:20:22] Speaker 02:
And if he felt like he needed more time, he could have at that time requested more time or asked for time to consult with his attorney to get more time.

[00:20:28] Speaker 02:
He didn't do any of that.

[00:20:29] Speaker 02:
He absolutely accepted the nonjudicial punishment.

[00:20:33] Speaker 02:
And I know just to go.

[00:20:34] Speaker 03:
Can I just ask you, because I'm unclear, because as I said, we don't have that many of these cases in this.

[00:20:39] Speaker 03:
hierarchy of different acronyms to decide this.

[00:20:43] Speaker 03:
I understood that before the day of this NJP or whatever, he had already decided he wanted to do an NJP and gave up his right to a court-martial.

[00:20:56] Speaker 02:
Yes.

[00:20:57] Speaker 03:
So that was already a done deal with his lawyer.

[00:21:01] Speaker 02:
I believe that happened when he received the notice we just talked about, which was at Appendix 87.

[00:21:04] Speaker 03:
So then the question here is even if he's got, he waived the right to a court martial.

[00:21:12] Speaker 03:
His due process issue is before the NGP, he still, even though he agreed to an NGP, should have had opportunity to make more of his case.

[00:21:24] Speaker 03:
Was that arguably a proceeding that if he had come in, what if he had had one hour or two hours and said, I wanna argue for a lower punishment or against some of these charges?

[00:21:37] Speaker 03:
Is that the body that adjudicates that?

[00:21:40] Speaker 02:
I understand that if he would have come in and said, I need more time, he would have been given more time.

[00:21:43] Speaker 03:
But more time for what?

[00:21:44] Speaker 03:
What was this tribunal supposed to be doing?

[00:21:48] Speaker 02:
This tribunal ultimately issued a letter of reprimand.

[00:21:50] Speaker 02:
So they were looking at the misconduct and making a decision as to what the consequence for non-judicial punishment should be at that time.

[00:21:59] Speaker 01:
But it was at this tribunal that he officially waived his right to court martial.

[00:22:03] Speaker 01:
Yes.

[00:22:04] Speaker 01:
That's your position, that he did it at this tribunal.

[00:22:07] Speaker 03:
OK.

[00:22:08] Speaker 03:
Can you make that clear?

[00:22:09] Speaker 03:
Because I didn't understand.

[00:22:10] Speaker 03:
I didn't understand the record.

[00:22:13] Speaker 03:
I may be wrong.

[00:22:14] Speaker 03:
I thought he waved his right to a court martial weeks before.

[00:22:19] Speaker 02:
Well, I know he received the notice weeks before, Your Honor, but I think it is during... I mean, I may absolutely be wrong on this.

[00:22:30] Speaker 03:
Maybe I misunderstood.

[00:22:31] Speaker 02:
Yeah, I think it is during the actual NJP proceeding.

[00:22:35] Speaker 02:
So if you look at Appendix 979,

[00:22:39] Speaker 02:
That is, in July of 2015, at non-judicial punishment is where he actually has to make the final decision.

[00:22:46] Speaker 02:
So I believe when he received the notice, at the very same time he is assigned defense counsel, and he has an opportunity to read the charges against him, to work with his counsel, to make a decision as to whether he wants to accept non-judicial punishment.

[00:22:58] Speaker 02:
Up until the moment he walked into the room and said yes and signed this, he had every opportunity to either request more time or to go another route.

[00:23:06] Speaker 03:
Okay, so he could have recent or you know, he absolutely can't could have gone another route so he chose to accept So once they did the reprimand, yes, then there's another proceeding and he had he challenged I mean by then he obviously had plenty of time to look at the report and

[00:23:25] Speaker 03:
And he challenged that.

[00:23:26] Speaker 03:
He did.

[00:23:27] Speaker 03:
So does somebody just get two bites of an apple?

[00:23:31] Speaker 03:
Or is this under a more limited standard of review?

[00:23:35] Speaker 02:
There were several bites of the apple, Your Honor.

[00:23:37] Speaker 02:
But ultimately, the Board of Inquiry is a bit different from non-judicial punishment.

[00:23:41] Speaker 02:
The Board of Inquiry did its investigation, and it is the one that makes a recommendation for separation from the US Marine Corps.

[00:23:48] Speaker 02:
And so there was, as you mentioned, the command-directed investigation followed by non-judicial punishment.

[00:23:53] Speaker 03:
But what the BOI does is obviously presumably predicated on what happened beforehand.

[00:24:03] Speaker 02:
As I understand, it is not.

[00:24:05] Speaker 02:
So it's predicated on the finding of misconduct.

[00:24:09] Speaker 02:
But the decision to separate him is totally separate, and the BOI makes that decision.

[00:24:13] Speaker 03:
So would he have an opportunity then?

[00:24:14] Speaker 03:
I mean, if he had time by then to look at the CIT, does he have the same opportunity as he would have had when he was before the NJP to court?

[00:24:27] Speaker 01:
question and make assertions about the merits of certain of the allegations absolutely he did and in this case he did he has several character witnesses etc so isn't it the case that he gets a challenge at the at the board of inquiry he gets a challenge there but he never gets back his full court martial rights never gets back the right to subpoena witnesses and to present other evidence that wasn't presented before

[00:24:52] Speaker 02:
He doesn't give back his court martial rights, but he never requested them.

[00:24:55] Speaker 02:
And even today, they haven't said they want to be back where they were before they accepted NJP.

[00:25:01] Speaker 02:
I mean, the argument was that the board of inquiry might have gone different.

[00:25:05] Speaker 02:
But he's never requested to be put back where he was.

[00:25:09] Speaker 02:
So I don't think that even is an issue, Your Honor.

[00:25:12] Speaker 02:
At the next stage, the board of inquiry, he absolutely had an opportunity to defend himself, and in fact did, and part of the reason that this record is so voluminous is exactly that, that there were various steps.

[00:25:24] Speaker 02:
After the board of inquiry, his separation, well one, the board of inquiry decision had to go up two levels to hierarchies to be approved for his separation.

[00:25:32] Speaker 02:
And it was approved at both levels.

[00:25:34] Speaker 02:
But that decision to separate Mr. Kasara Salari was put in abeyance twice while the government looked again and considered whether or not he should be separated under these circumstances.

[00:25:44] Speaker 02:
And then once the decision was finally made that this misconduct was so egregious that he should no longer serve, he appealed to the Board of Correction of Naval Records.

[00:25:53] Speaker 02:
So it had already been through several levels of review before we got before the board.

[00:25:58] Speaker 02:
And then just further quickly to lead us to the nexus issue, by the time we're presented to the board, again it's been through several levels, but the board looked at exactly what this court is looking at and exactly what was before the trial court.

[00:26:09] Speaker 02:
And so indeed, although we can focus on, my opponent focuses on it in tracts from language, the fact is all of the evidence that's before you is the same evidence that was before the board that was carefully considered and weighed.

[00:26:20] Speaker 02:
And so what opponent asked this court to do is to re-weigh that evidence.

[00:26:25] Speaker 01:
Is it your position that we don't, that the question with respect to the weigh with the court marshal, that that's not before the court or that we don't have the jurisdiction to review that at this point?

[00:26:37] Speaker 02:
The question of whether the waiver of it is your honor.

[00:26:41] Speaker 02:
It is right.

[00:26:43] Speaker 02:
It seems clear from the record, even at the levels of review, because again, due process issues, as you said, Chief Jeff came up several times.

[00:26:50] Speaker 02:
It's clear from the record that these questions were considered by the board and considered at other levels and found to be without mayor.

[00:26:57] Speaker 01:
So the fair game for this appeal for it.

[00:27:00] Speaker 02:
Absolutely.

[00:27:01] Speaker 03:
Okay, let's turn to the nexus.

[00:27:04] Speaker 03:
You heard what your friend said about the evaluation of various medical experts.

[00:27:12] Speaker 02:
So Appellant Cites to the Universal Camera Appropriation Case, which is a 1950s Supreme Court case where

[00:27:19] Speaker 02:
the court looked at appellate court's ability to review decisions of administrative bodies under the APA.

[00:27:25] Speaker 02:
And I just know they address what's happening right here, which is whether they're conflicting opinions being presented.

[00:27:32] Speaker 02:
And they said, this court specifically noted that this court may not displace the board's choice between two conflicting views, even if the court would have justifiably made a different choice if the matter were before de novo.

[00:27:43] Speaker 02:
And so as we discussed, we're looking at an opinion from Dr. Baishkoff, who did find that the PSTD was connected to Mr. Kasara-Solari's misconduct, versus the advisory opinion of Dr. Richter, Dr. Evans' opinion, and other opinions from military medical professionals who said the conduct was not.

[00:28:01] Speaker 02:
There was no nexus between the misconduct.

[00:28:03] Speaker 02:
And I note, Your Honor, for the court, the board made a finding.

[00:28:10] Speaker 02:
The board specifically said, even if there was PTSD, so if we go where you said earlier, and we just give the PTSD, the seriousness of the misconduct here outweighed any mitigation that would be offered by the PTSD.

[00:28:23] Speaker 02:
And so the board did its job.

[00:28:24] Speaker 02:
It carefully reviewed this.

[00:28:26] Speaker 02:
It gave liberal consideration to the nexus arguments.

[00:28:29] Speaker 02:
And they specifically note that they gave liberal consideration to the arguments.

[00:28:32] Speaker 03:
So your view of the record is that they said, we don't care.

[00:28:34] Speaker 03:
I mean, in other words, it doesn't matter.

[00:28:37] Speaker 03:
Not that we don't care.

[00:28:38] Speaker 03:
That was too strong.

[00:28:39] Speaker 03:
that it doesn't make any difference because even if he had PTSD and even if we believe that there was a nexus between the charge conduct here and the PTSD, it just doesn't make any difference.

[00:28:52] Speaker 03:
Is that an excuse?

[00:28:53] Speaker 02:
My view of the record is that they said, first, we don't believe that PTSD is connected here.

[00:28:58] Speaker 02:
They said the timing of when the PTSD treatment was raised, which was after he was ordered to separate, suggests that what's happening here is stress related to the job and not PTSD.

[00:29:09] Speaker 02:
But if there is PTSD, we don't find that it's connected to the misconduct.

[00:29:14] Speaker 02:
And we don't find that it's enough to outweigh or mitigate the seriousness of the offense here.

[00:29:20] Speaker 02:
And so we believe he should still be separated.

[00:29:22] Speaker 02:
And that is what the board said.

[00:29:23] Speaker 02:
That's at Appendix 75.

[00:29:24] Speaker 01:
Thank you.

[00:29:28] Speaker 02:
Thank you.

[00:29:46] Speaker 00:
Your Honor, what I would like to do is to go to the due process issue and sort of help Judge Raina and yourself with how the process works in a general sense.

[00:29:58] Speaker 00:
Your Honor, when you're commanding it.

[00:29:59] Speaker 03:
Well, can you just ask there specifically?

[00:30:01] Speaker 03:
Maybe this will help us do it, because we've only been on time.

[00:30:05] Speaker 03:
I didn't understand, but maybe I'm wrong, that your complaint here is we didn't have the appropriate opportunity to make an evaluation as to whether or not we should have picked the court marshal as opposed to this non-judicial proceeding.

[00:30:19] Speaker 03:
So your relief would therefore be that you get to go to square one and get to a court marshal to adjudicate these claims.

[00:30:27] Speaker 03:
I didn't know underappreciate that that was what you were arguing.

[00:30:30] Speaker 03:
So is that what your position is that what this case is?

[00:30:33] Speaker 00:
It is part a yes and part a one is but even if this court finds that the decision that

[00:30:40] Speaker 00:
of whether or not to accept non-judicial punishment is, to use our previous lexicon, off the table.

[00:30:45] Speaker 00:
The issue is still that when one accepts non-judicial punishment, they are still allowed to present evidence to their commander in defense and in mitigation.

[00:30:55] Speaker 03:
No, but back to my first point.

[00:30:56] Speaker 03:
I mean, there were several other proceedings after this, including the BOI.

[00:31:01] Speaker 03:
I mean, did he ever raise?

[00:31:03] Speaker 03:
I didn't have an opportunity to look at this material.

[00:31:06] Speaker 03:
And therefore, I want to go back and have

[00:31:09] Speaker 03:
court-martial?

[00:31:10] Speaker 00:
The BOI would not have the authority to do that.

[00:31:13] Speaker 03:
Well, does anybody have the authority?

[00:31:15] Speaker 00:
The BCNR did, and it was raised at the BCNR.

[00:31:18] Speaker 03:
And he asked to go back and have a non-judicial court-martial?

[00:31:22] Speaker 00:
Well, I don't know that we specifically, I was in the counsel of that.

[00:31:25] Speaker 00:
I'd have to reread the BCNR petition.

[00:31:27] Speaker 00:
I don't know that we specifically asked for that remedy, but he certainly did point out that the non-judicial punishment should be vacated because he was not afforded due process.

[00:31:36] Speaker 03:
No, I know.

[00:31:37] Speaker 03:
I'm just thinking those are two separate questions.

[00:31:40] Speaker 00:
They are.

[00:31:41] Speaker 00:
And to answer your question as to whether he specifically requested to a redo, no.

[00:31:48] Speaker 00:
But that's not the normal remedy.

[00:31:50] Speaker 00:
If a nonjudicial punishment is determined to be invalid, the normal remedy is to wash it, is to not a do-over, but it's just vacated, for lack of a better term.

[00:32:03] Speaker 00:
Does that help the court?

[00:32:04] Speaker 00:
Yeah.

[00:32:05] Speaker 00:
Okay.

[00:32:05] Speaker 00:
Subject, any further questions from the members of the court?

[00:32:07] Speaker 03:
My time is up.

[00:32:09] Speaker 03:
Hold on.

[00:32:09] Speaker 03:
Maybe Judge Reyna.

[00:32:09] Speaker 00:
Judge Reyna?

[00:32:10] Speaker 00:
No, I think we're fine.

[00:32:11] Speaker 00:
All right.

[00:32:11] Speaker 00:
Thank you very much, members of the court.

[00:32:13] Speaker 00:
Have a wonderful day.

[00:32:13] Speaker 03:
Thank you.

[00:32:14] Speaker 03:
Thank you both sides.

[00:32:14] Speaker 03:
The case is submitted.