[00:00:00] Speaker 01: OK, I think we're ready. [00:00:02] Speaker 01: The next argued case is number 22, 1365, Kelly against the United States, Mr. Manning. [00:00:11] Speaker 04: Good morning, Your Honors. [00:00:14] Speaker 04: My name is Jason Manapurse, and I represent Matthew Kelly, the veteran. [00:00:19] Speaker 04: Following a favorable decision by the Naval Discharge Review Board, which acts on behalf of the Secretary, Kelly was issued a revised certificate of discharge. [00:00:28] Speaker 04: The certificate is found on page 1153 of your appendix. [00:00:34] Speaker 04: In box 25, under the word separation authority, there's a change in code of what's called the MilPERS man, the Military Personnel Manual. [00:00:45] Speaker 04: I'm going to refer to these as regulations. [00:00:47] Speaker 03: I'm going to further all of these regulations and we can have a discussion as to whether or not they... Let me ask you a threshold issue in my mind anyway. [00:00:55] Speaker 03: This case is about military retirement, correct? [00:00:58] Speaker 03: Yes, sir. [00:01:00] Speaker 03: And we also have jurisdiction over veteran cases that deal with disability benefits for a veteran. [00:01:09] Speaker 03: One of the issues here is whether there's a property interest [00:01:15] Speaker 03: in this military retirement, just as I think we've ruled in the past if there exists in veterans' disability. [00:01:23] Speaker 03: Can you address that question? [00:01:25] Speaker 04: Well, yes. [00:01:26] Speaker 04: I mean, that's the due process issue. [00:01:29] Speaker 04: And I've switched the light on Cushman. [00:01:32] Speaker 04: And the trial judge cited some cases which I reviewed them, and they don't see an app as it. [00:01:37] Speaker 04: And the government has cited some cases [00:01:40] Speaker 04: None of which seem apposite. [00:01:43] Speaker 04: I mean, it's sort of inconsistent for the trial judge to say that 10 USC 1201 is a money-mandating statute and then say at the same time that it doesn't provide a property right. [00:01:53] Speaker 04: I mean, if it's a money-mandating statute, that means there's [00:01:57] Speaker 03: So I've looked into the difference in the terminology in the text of the statutes. [00:02:06] Speaker 03: What I don't understand is, why should there be a difference between military retirement and veterans benefits? [00:02:16] Speaker 04: Well, you made my case for me, Your Honor. [00:02:17] Speaker 04: That's a question for the government. [00:02:18] Speaker 03: No, I'm asking you to make it clear. [00:02:19] Speaker 04: There shouldn't be. [00:02:20] Speaker 04: There shouldn't be. [00:02:22] Speaker 04: There shouldn't be. [00:02:24] Speaker 04: The statute regarding military disability benefits provides a non discretionary obligation on the part of the military to provide [00:02:35] Speaker 04: disability benefits if a member meets certain criteria. [00:02:38] Speaker 04: The criteria are set out in the SECNAB instruction, which, as I said, is going to refer to as a regulation without discussing exactly what it is. [00:02:46] Speaker 04: You treat it as a regulation. [00:02:48] Speaker 04: You'll call it a regulation, probably, in your opinion, and you have in the past. [00:02:51] Speaker 04: So we'll call it a regulation. [00:02:53] Speaker 04: The government certainly is not going to dispute that you're not bound by it. [00:02:55] Speaker 04: And that SECNAB instruction is nondiscretionary. [00:02:58] Speaker 04: If you meet the criteria under the SECNAB instruction, you get disability benefits. [00:03:02] Speaker 04: So Judge Rainier, your question, as I said, should be prepared to the government, because I don't think anything they've cited or the trial judges cited distinguish this case from Cushman on due process grounds. [00:03:16] Speaker 04: What I started to say on the issue of the change in authority was the government acknowledges that this code changed Mr. Kelly's reason for separation. [00:03:30] Speaker 04: to best interests of the government. [00:03:32] Speaker 04: In other words, it was no longer a misconduct separation. [00:03:35] Speaker 04: And it was retroactive. [00:03:37] Speaker 04: It was a retroactive change. [00:03:39] Speaker 04: Now, the Navy regulation at paragraph 1002, and that's on page 110 of the appendix, states in just one sentence. [00:03:52] Speaker 01: Is it clear that it was intended to be retroactive? [00:03:56] Speaker 04: Oh, absolutely. [00:03:57] Speaker 04: Absolutely. [00:03:58] Speaker 04: I mean, it's a new DD-214 form. [00:04:01] Speaker 04: I mean, everything else on the form lists as it's a substitute thing. [00:04:08] Speaker 04: When he was given the new DD-214, he got a new certificate of discharge. [00:04:13] Speaker 03: Where's the support for that conclusion you're offering? [00:04:18] Speaker 04: This is one of those things that I think you [00:04:21] Speaker 04: You know, familiarity breeds contempt. [00:04:23] Speaker 04: You just have to know it. [00:04:24] Speaker 03: If you take a look at the certificate. [00:04:26] Speaker 03: We have to base our decision on the record. [00:04:29] Speaker 04: I know you are. [00:04:29] Speaker 04: And you're going to take a look at the DD-214 form. [00:04:34] Speaker 04: And you'll see that it says date entered, active duty, separation date, active duty. [00:04:41] Speaker 04: Well, certainly the narrative reason for separation and the separation authority, which says Milper's Man, 1910-164. [00:04:52] Speaker 04: I mean, how can that not be retroactive? [00:04:56] Speaker 04: I mean, they changed his separation authority. [00:04:58] Speaker 02: Excuse me. [00:04:59] Speaker 02: It's administrative, right? [00:05:01] Speaker 02: Isn't the reason for the removal was changed to administrative? [00:05:06] Speaker 02: Is that correct? [00:05:07] Speaker 04: No, best interests of the service. [00:05:10] Speaker 04: It was changed from serious misconduct to best interests of the service. [00:05:15] Speaker 02: So it wasn't changed to disability retirement or something? [00:05:19] Speaker 04: That's what we're arguing about. [00:05:21] Speaker 02: I know that's what we're arguing about, but I just wanted to make sure and just clarify that that doesn't answer the question before us today. [00:05:29] Speaker 04: No. [00:05:29] Speaker 04: But what it does say is my fundamental argument, which is, and I started to quote from the paragraph 102 of the SECNAB instruction, which says, when a punitive discharge or administrative discharge from misconduct does not result in disability processing, [00:05:48] Speaker 04: does not result, disability processing shall be resumed and completed. [00:05:51] Speaker 04: And what we've said is that all the board has discussed... Can I ask you a question just so I make sure I'm following along with you? [00:06:00] Speaker 02: Are you referring to the SECNAV that's in the appendix? [00:06:03] Speaker 02: Yes. [00:06:03] Speaker 02: Could you tell me what specific page you're looking at, please? [00:06:06] Speaker 04: The SECNAV instruction at Reading Firm is on page 110 of the appendix. [00:06:11] Speaker 02: Okay, is there a particular place... Pardon? [00:06:13] Speaker 02: OK, 1002. [00:06:14] Speaker 04: 1002 is the section page. [00:06:17] Speaker 04: The appendix page is 1002. [00:06:18] Speaker 02: I get it. [00:06:20] Speaker 02: Is there a particular part I should be looking at? [00:06:22] Speaker 04: Yes, the very last section of 1002. [00:06:24] Speaker 04: Let me open it up to just make sure I don't misquote it. [00:06:27] Speaker 03: What's the page number again? [00:06:42] Speaker 04: It's, as I said, it's page 110 of the appendix, and it is on, why is I not finding my tab? [00:06:53] Speaker 04: It is the very last sentence of section 102. [00:06:58] Speaker 02: It says, when a punitive discharge or administrative discharge from misconduct does not result, disability processing shall be resumed in court. [00:07:06] Speaker 04: That's correct, Your Honor. [00:07:07] Speaker 04: And what I'm saying is that, [00:07:09] Speaker 04: is that the board had an obligation to at least explain why the revised DDU 14 and the fact that he now was separated for the best interest of the service does not make him eligible for disability benefits if he met the disability threshold, which the member was vacated by the trial court, the decision that he did not. [00:07:30] Speaker 04: OK. [00:07:30] Speaker 04: So the Frizzell rule, which I'm urging you to adopt today in this circuit, was established by the District of Columbia Court of Appeals. [00:07:37] Speaker 04: It's actually just a single sentence in the larger Frizzell opinion, which I will quote, which basically says that the board's decision was arbitrary because it, quote, did not respond to two of Frizzell's arguments, which should not appear frivolous on their face and could affect the board's decision. [00:07:55] Speaker 04: This is what this call before. [00:07:56] Speaker 02: Which argument are you contending was unjust? [00:07:59] Speaker 04: We're contending that the board did not address the argument that, while it may not have been an injustice back then, because his discharge status was changed to being an honorable, misconduct was struck, and best interest of the service was substituted, that with those three changes, it's unjust now. [00:08:23] Speaker 04: In other words, the board needed to discuss why was it not in just after the changes were made so they no longer had been separated for misconduct. [00:08:35] Speaker 04: And we're saying that they did not comply with the Frizzell rule, and we're arguing that this court ought to adopt the Frizzell rule. [00:08:44] Speaker 04: I noted that the Court of Federal Claims has adopted the Frizzell Rule. [00:08:48] Speaker 04: And although Frizzell itself does not explain the rationale for the rule, the rule that military decisions are given deference is a judge-made rule. [00:08:58] Speaker 04: And Frizzell certainly makes sense to counterbalance that rule. [00:09:01] Speaker 02: Does the APA apply to the board's decision? [00:09:06] Speaker 04: Oh, what a question. [00:09:11] Speaker 04: Technically, no. [00:09:13] Speaker 04: Realistically, yes. [00:09:14] Speaker 04: I mean, that's a thicket in which I don't want to get into. [00:09:17] Speaker 04: I mean, why don't I want to get into it? [00:09:19] Speaker 04: Because if you characterize it as an APA claim, the Court of Federal Claims will say, well, we don't have jurisdiction over APA claims. [00:09:27] Speaker 04: But as a practical matter, the Court of Federal Claims in conducting judgment for administrative on the record will apply APA standards. [00:09:35] Speaker 04: So that's why I'm sort of moaning here to ask your honor as to the question. [00:09:38] Speaker 03: Wouldn't a due process claim within this claim, wouldn't just the due process invoke the APA? [00:09:45] Speaker 04: Yes, there was a due process claim in addition to the [00:09:48] Speaker 04: APA, in quotes. [00:09:52] Speaker 04: In addition to the Fuzell rule, the government cited the regulation 723.3. [00:09:57] Speaker 04: This is part of the board's regulations, 32 CFR 723.3. [00:10:02] Speaker 04: And I acknowledge that I didn't bring that up. [00:10:04] Speaker 04: It was the government who inserted it into this case. [00:10:07] Speaker 04: And as you look at that regulation, it requires the board to address all claims of constitutional, statutory, or regular violations and recite all the essential facts on which a denial was based. [00:10:18] Speaker 04: So even if you don't adopt the Frizzell rule, you still have 723.3 and the issue of what are all the essential facts. [00:10:24] Speaker 04: And certainly one of the essential facts is that his narrative region of separation was changed, and that his service-connected disabilities contributed to his misconduct. [00:10:39] Speaker 04: I want to make very clear, Your Honors, that there is no regulation allowing the board or the Navy to deny disability unless they misconduct separation results. [00:10:51] Speaker 04: The definition of misconduct found in the SECNAV says you can deny disability benefits if a... It can be denied if the disability didn't arise in the line of duty, too. [00:11:01] Speaker 04: That's exactly what I was going to say. [00:11:03] Speaker 04: That's where the misconduct applies in. [00:11:05] Speaker 03: But this isn't a line of duty injury. [00:11:07] Speaker 03: You have limited time, so let me ask you a question that really matters to me. [00:11:11] Speaker 03: In section 1201 and the issue of whether this [00:11:18] Speaker 03: There's a mandate in there, a money mandate, that provides a private interest similar to what we have said before exists with respect to veterans claims, a property interest. [00:11:36] Speaker 03: If we were to find that there's a property interest in military retirement benefits, how does that change? [00:11:44] Speaker 03: Now, I know it alters completely your case. [00:11:47] Speaker 03: I want to understand from your perspective, in what ways does it, what happens after that? [00:11:54] Speaker 04: Well, what happens after that is, unless you want to venture into it, is the trial judge has to determine how much process is due. [00:12:00] Speaker 03: So we'd have to remand number one. [00:12:02] Speaker 04: Yes, you'd have to remand it. [00:12:03] Speaker 04: And then the trial judge would have to determine, is this the type of situation where [00:12:09] Speaker 04: The board could make its credibility determinations based solely on the police report, or did Kelly have to have an obligation to tell his side of the story? [00:12:17] Speaker 04: So I emphasize, all the board had was the police report. [00:12:21] Speaker 04: Although the police report has some things that are very favorable to Kelly. [00:12:25] Speaker 03: So there would be a remand on this particular issue? [00:12:29] Speaker 04: That's right. [00:12:30] Speaker 04: And the trial judge would decide how much process is due. [00:12:32] Speaker 04: In other words, was the board required to provide an in-person hearing? [00:12:37] Speaker 04: There's a footnote, because the clerk wouldn't allow me to attach the foyer response. [00:12:43] Speaker 04: You can peek at it if it wasn't deliberate. [00:12:46] Speaker 04: You can peek at it if you want, because it's attached to the nine compliant brief, and that's visible. [00:12:51] Speaker 04: But the board has said they had granted, I think, two hearings in seven years, two hearings and thousands of cases in seven years. [00:13:00] Speaker 04: They don't like to do hearings. [00:13:02] Speaker 04: So this is something serious for the Navy if they have to grant personal hearings before the BCNO when credibility is at issue. [00:13:13] Speaker 04: On the other hand, the VA does it. [00:13:16] Speaker 04: Welfare departments do it. [00:13:17] Speaker 04: Social Security does it. [00:13:19] Speaker 04: Everybody else does it. [00:13:21] Speaker 04: Why should the military be exempt? [00:13:22] Speaker 04: Yes. [00:13:23] Speaker 04: But the board does not like to grant hearings. [00:13:28] Speaker 04: Professor Fidel used to say, [00:13:31] Speaker 04: I'm sorry. [00:13:33] Speaker 01: I'm sorry, Judge. [00:13:34] Speaker 01: Just trying to follow the train of thought that we're going down. [00:13:37] Speaker 01: If, in fact, the change of status is deemed retroactive, is any of these other conditions relevant anymore? [00:13:47] Speaker 04: I don't understand the question. [00:13:49] Speaker 01: As to whether he was properly considered at the initial discharge. [00:13:57] Speaker 04: I don't think so. [00:13:58] Speaker 04: Well, I mean, you have the disability issue, which the trial judge reversed on. [00:14:02] Speaker 04: And then there's the misconduct issue. [00:14:03] Speaker 04: And as I've been discussing with Judge Raina, there is no authority to just say, well, he had gotten an altercation to police. [00:14:11] Speaker 04: We're going to deny him disability benefits unless there was a misconduct discharge. [00:14:15] Speaker 04: And there is no longer a misconduct discharge. [00:14:17] Speaker 01: Well, that was my question. [00:14:19] Speaker 01: Is that still a factor if, in fact, [00:14:22] Speaker 01: or as a matter of law and as a matter of the statutory procedures, the change of status is retroactive? [00:14:33] Speaker 04: You know, Judge, I've struggled with that. [00:14:35] Speaker 04: I mean, I presented this as an explanation issue, because there are always corner cases. [00:14:39] Speaker 04: And I was sitting there struggling with the fact this could there be a corner case where the misconduct was so heinous that the board would deny disability benefits and be sustained [00:14:52] Speaker 04: even with the change of character of service. [00:14:58] Speaker 04: And that's why I presented it as an explanation. [00:15:00] Speaker 04: I didn't think I could forsake absolutely positively the change in character of service drove the result positively. [00:15:09] Speaker 04: But it certainly should. [00:15:10] Speaker 04: It certainly should. [00:15:11] Speaker 02: Any case where- Do you have any cases [00:15:16] Speaker 02: where that has occurred. [00:15:17] Speaker 02: I mean, I'm struggling also. [00:15:19] Speaker 02: It's a corner case. [00:15:21] Speaker 04: I'm thinking of murderers and stuff like that. [00:15:23] Speaker 02: Well, the problem is that obviously that's not what was done here. [00:15:27] Speaker 02: Instead, they looked at whether an injustice occurred [00:15:31] Speaker 02: at the time, right? [00:15:33] Speaker 04: And they should have looked at whether an injustice exists now. [00:15:37] Speaker 02: But you don't have any support for saying that's the way. [00:15:40] Speaker 02: That's my question to you. [00:15:42] Speaker 02: What is your legal support for saying that that's how they should have analyzed the case? [00:15:47] Speaker 04: That's why I argued it as an explanation case. [00:15:50] Speaker 04: That's why I argued it as an explanation case. [00:15:52] Speaker 01: In other words... What do you mean? [00:15:53] Speaker 01: What's an explanation case? [00:15:54] Speaker 04: Well, his DD-214... 214... We haven't gotten into meds and I'm not gonna have the authority at the time to get to it. [00:16:00] Speaker 02: Are you saying this is a case of first impression? [00:16:02] Speaker 04: Well, let me answer that question. [00:16:06] Speaker 04: His DD-214 clearly said... Excuse me. [00:16:08] Speaker 04: His DD-149 form. [00:16:10] Speaker 04: That's on page 1010 of the appendix. [00:16:14] Speaker 04: That's the form he filed to begin the review at the board. [00:16:17] Speaker 04: said in relevant part, given the DRB finding that a applicant warranted a fully honorable discharge. [00:16:24] Speaker 04: and his VA rating, military requirement, uses VA criteria, he should get his 60% military medical retirement pay. [00:16:31] Speaker 04: So his issue that he presented was that, given the DRB finding, he should get his pay. [00:16:37] Speaker 04: OK? [00:16:37] Speaker 02: And the poor- They're saying there's a lack of explanation saying, it doesn't matter. [00:16:42] Speaker 02: It's not retroactive for purposes of disability retirement. [00:16:45] Speaker 02: That's what you want an explanation. [00:16:48] Speaker 04: They need to explain why they're looking at the original separation rather than the change. [00:16:53] Speaker 04: That's what- [00:16:55] Speaker 04: I'm out of time. [00:16:56] Speaker 01: Does the court have any other questions? [00:17:12] Speaker 00: Thank you, Your Honor. [00:17:13] Speaker 00: May it please the Court. [00:17:14] Speaker 00: Mr. Kelly concedes that the Navy did not err in administratively separating him from his conduct in 2013. [00:17:21] Speaker 00: So the primary issue in this case is whether the BCNR rationally determined that there was no injustice in Mr. Kelly's separation from the Navy without a disability retirement. [00:17:30] Speaker 00: And the trial court correctly concluded that the BCNR rationally determined that it was not an injustice because Mr. Kelly was ineligible for disability retirement processing at the time of his separation due to the administrative separation proceedings that resulted from Mr. Kelly's conscious decisions to commit alcohol-related misconduct, including disorderly conduct. [00:17:49] Speaker 03: Mr. Kelly's status, the characterization of his discharge, the first time that that happened, it's only happened once. [00:18:00] Speaker 03: When he was first discharged, and there was a characterization of his discharge, that was later changed, correct? [00:18:08] Speaker 00: The NDRB, for equitable reasons, upgraded his discharge. [00:18:11] Speaker 03: So in a way, his discharge was upgraded. [00:18:14] Speaker 03: He got a promotion in his discharge. [00:18:16] Speaker 00: His discharge was upgraded by the NDRB. [00:18:19] Speaker 03: You're saying it's OK for the board not to consider that? [00:18:23] Speaker 00: No, the board did consider that. [00:18:25] Speaker 00: The board expressly [00:18:27] Speaker 00: Expressly stated in its decision that in 2015, the Naval Discharge Review Board upgraded your characterization of service to honorable and changed your narrative reason for separation to secretarial authority based on equity reasons related to your diving-related medical diagnoses. [00:18:45] Speaker 00: The board expressly stated. [00:18:46] Speaker 02: But did they explain why that wasn't sufficient? [00:18:50] Speaker 02: as an explanation for why it would be unjust to now not allow him to have retirement benefits. [00:18:58] Speaker 00: Yes. [00:18:58] Speaker 00: So the board explained this is all in Appendix 1006. [00:19:04] Speaker 00: It said, the board agreed with the analysis provided by the Naval Discharge Review Board that the Naval Academy properly processed and discharged you for misconduct. [00:19:15] Speaker 00: The board found no evidence that supported an argument that you were not criminally responsible for your misconduct and noted that there was no evidence. [00:19:22] Speaker 02: That's looking at the time. [00:19:23] Speaker 02: Isn't that looking at the time before the correction? [00:19:28] Speaker 00: Well, it's looking at the fact that the Naval Discharge Review Board found no error in his separation. [00:19:35] Speaker 00: For purely equitable reasons, it decided a couple years later to upgrade his discharge. [00:19:42] Speaker 00: So the question now becomes, [00:19:44] Speaker 00: Does that compel the BCNR to say it's an injustice that he doesn't get a disability retirement if he was, in fact, on fit or duty? [00:19:51] Speaker 03: There was a reason for the board to change its mind. [00:19:55] Speaker 00: The Discharge Review Board, yes, for purely equitable reasons. [00:19:59] Speaker 03: Again, it's a... Okay, equitable reason, but they did have a reason. [00:20:03] Speaker 03: Yes. [00:20:04] Speaker 03: Why shouldn't that reason apply back to the initial characterization of discharge? [00:20:11] Speaker 00: Well, because the BCNR here made a rational decision that it was not required to upgrade his, excuse me, not upgrade. [00:20:20] Speaker 00: It was not required to grant him a disability retirement simply because his cognitive issues may have contributed to his misconduct. [00:20:33] Speaker 00: Rather, the board. [00:20:35] Speaker 03: So that's the reason that they provided, that the board provided. [00:20:39] Speaker 03: that at the time of the initial characterization of the discharge, the board was unaware, or the service was unaware of the connection between his service-connected, I'm going to use veteran law term, but his disability that arose in the line of duty and the behavior for which he was discharged. [00:21:02] Speaker 03: Later, there's an understanding as to the behavior, what drove it. [00:21:09] Speaker 03: And that caused the board to change the characterization of his discharge, correct? [00:21:15] Speaker 00: The discharge review board, yes. [00:21:18] Speaker 00: As a matter of equity, it decided to change it. [00:21:21] Speaker 03: And your argument is that, well, we can't do anything about it, because at the time that he was initially discharged, we didn't know that he had this medical condition. [00:21:32] Speaker 00: If by we, you mean the BCNR know, would the BCNR? [00:21:36] Speaker 03: You, your client. [00:21:39] Speaker 00: So it's not that the BCNR could not have given him a disability retirement if it found that he were unfit. [00:21:49] Speaker 00: It's that it made the equitable determination that it was not an injustice for somebody who was lawfully separated from the service for serious misconduct [00:21:59] Speaker 00: for him not to get a disability retirement when he was, in fact, ineligible at the time of separation because of this serious misconduct. [00:22:08] Speaker 03: But the provisions for that ineligibility was changed. [00:22:11] Speaker 03: It altered. [00:22:13] Speaker 00: For purely equitable reasons, though. [00:22:15] Speaker 00: The NDRB simply determined that as a matter of equity, it was going to grant him an upgrade in characterization of service and change the narrative reason. [00:22:27] Speaker 03: OK. [00:22:27] Speaker 03: Let me ask you a question. [00:22:28] Speaker 03: Are you familiar with the case Kelly versus US 22-1365? [00:22:32] Speaker 00: I don't believe so. [00:22:37] Speaker 00: There's nothing about. [00:22:41] Speaker 03: It's a case that identifies military retirement benefits as mandatory. [00:22:51] Speaker 03: And if that's the case, then why should we not find that it's also mandatory under the military retirement system? [00:23:05] Speaker 03: Well, ordinarily, if somebody were to- There's all this argument about whether Section 1201 is mandating or not. [00:23:17] Speaker 00: And we don't dispute that Section 1201 is a money-mandating statute. [00:23:22] Speaker 03: You don't? [00:23:23] Speaker 00: No. [00:23:28] Speaker 03: You would agree that the government is required by law to provide benefits if the soldier is able to demonstrate eligibility? [00:23:42] Speaker 00: Well, not if they were ineligible for disability processing. [00:23:47] Speaker 00: There's regulations in the service. [00:23:51] Speaker 00: The Navy has one of them here, or at least had one of them, that if you are subject to administrative separation proceedings for misconduct. [00:24:01] Speaker 03: The reason I ask, is this supposed to be a question of due process? [00:24:07] Speaker 00: Right. [00:24:08] Speaker 00: Yes. [00:24:10] Speaker 00: Yeah, although this court has held that it's a money-mandating statute, 1201, it's never held that, as far as I'm aware, that military disability retirements, that there's a due process property interest in that. [00:24:23] Speaker 03: I want you to look at Kelly v. US. [00:24:26] Speaker 03: What happens if we determine that it is mandating, that Section 1201 is mandating? [00:24:35] Speaker 00: Well, if the results of that were to be, as Mr. Kelly seems to argue, that the board would have to grant a hearing in every disability retirement case, that would just grind the board's business to a halt, most likely. [00:24:52] Speaker 00: We don't think that that's what that would require, as we've contended in our brief, even if the court were to find that Mr. Kelly had a property interest in a disability retirement. [00:25:04] Speaker 00: that it's still discretionary whether the board needs to grant a hearing or not. [00:25:10] Speaker 00: There's several cases from the Court of Claims, the predecessor court, finding that it was not arbitrary and capricious for the board to deny a hearing in disability retirement cases. [00:25:23] Speaker 00: That's a matter within the board's discretion. [00:25:28] Speaker 00: So that's another reason why the due process, even if the court were to. [00:25:32] Speaker 03: And that's because it was determined that that type of benefit was not in property interest. [00:25:39] Speaker 00: No, I don't think that was the basis of those cases, simply that the board has discretion as to whether or not to grant a hearing. [00:25:51] Speaker 00: The flute case that we cited, that didn't involve a disability retirement, I don't believe. [00:25:55] Speaker 00: But I mean, it's not necessarily a due process violation for the board not to grant a hearing. [00:26:00] Speaker 00: It's a matter of discretion. [00:26:01] Speaker 03: Are you aware of any case where the soldier has been granted a hearing after the fact, where the board decides, yes, let's go ahead and have a hearing? [00:26:14] Speaker 00: I believe there's probably cases, published cases, where that's happened. [00:26:19] Speaker 00: I'm not disputing that it's [00:26:22] Speaker 00: it's uncommon for the board to grant hearings. [00:26:24] Speaker 00: If it granted hearings in every case, then there would, I mean, the ability, there's already complaints that the process is slow enough, and then grant hearings in every case would slow down the process significantly more. [00:26:39] Speaker 00: So I mean, if that were the holding that the board meets the granted hearing every time there's a disability retirement claim, that would be severely problematic for the, [00:26:50] Speaker 00: For the government. [00:26:51] Speaker 00: For the government, for the board, and for the veterans. [00:26:53] Speaker 00: Not for the soldiers. [00:26:54] Speaker 00: No, for the soldiers, yes. [00:26:55] Speaker 00: Because I mean, there's requirements that I think a certain percentage of cases are supposed to be decided within 10 months. [00:27:03] Speaker 00: The boards are already routinely going past that. [00:27:06] Speaker 00: And so to then add a hearing requirement to that, it's going to delay the ability of soldiers who are entitled to relief to get it. [00:27:14] Speaker 00: And so it would be problematic for the soldiers as well. [00:27:18] Speaker 00: if that were the case. [00:27:30] Speaker 00: So again, this wasn't a situation where the BCNR ignored the NDRB's decision. [00:27:37] Speaker 00: The BCNR's decision, it's consistent with the NDRB's decision. [00:27:42] Speaker 00: where the NDRB concluded that failing to pay for food and drink at a local restaurant in a timely manner, disorderly conduct, and resisting arrest were all conscious decisions that violate the tenets of honorable and faithful service. [00:27:56] Speaker 02: Just want to make sure I understand. [00:27:59] Speaker 02: What do you think they said in response to the argument that his misconduct was based on his disability and his [00:28:11] Speaker 02: self-medicating through alcoholism and such. [00:28:15] Speaker 02: I just don't necessarily see a direct response to that. [00:28:22] Speaker 02: Do you? [00:28:24] Speaker 00: Well, basically, the standard that the board put in here for whether or not there would have been an injustice in Mr. Kelly's case was whether he was criminally responsible for his misconduct or whether there was any mental incompetence. [00:28:40] Speaker 00: They found that there was not. [00:28:42] Speaker 00: And in the injustice context, that's well within the board's discretion. [00:28:45] Speaker 02: So what was the standard for mental incompetence that it was looking at? [00:28:48] Speaker 02: Did it consider his traumatic brain injury? [00:28:51] Speaker 02: Did it consider his depression? [00:28:52] Speaker 02: Did it consider the other illnesses that were identified in the record? [00:29:00] Speaker 02: Well, I mean- I just don't see where it's addressed. [00:29:04] Speaker 00: The term not criminally responsible, it's really a term of art, meaning substantial capacity to either appreciate the criminality of the conduct or conform the conduct to the law. [00:29:15] Speaker 00: And the board found that there was no evidence that Mr. Kelly couldn't do that. [00:29:19] Speaker 00: In fact, he said himself that he simply behaved stupidly at the restaurant incident. [00:29:24] Speaker 00: That's at Appendix 1385. [00:29:27] Speaker 00: when he was resisting arrest and acting in a disorderly manner. [00:29:31] Speaker 02: So the response is that it doesn't matter. [00:29:34] Speaker 02: I guess I'm supposed to infer from what you're saying that he should infer that those arguments weren't convincing and they don't matter. [00:29:44] Speaker 02: It doesn't matter that he was self-medicating with alcohol. [00:29:49] Speaker 02: It doesn't matter that he had depression. [00:29:50] Speaker 02: It doesn't matter that he had a traumatic brain injury in the line of duty. [00:29:55] Speaker 02: None of that's discussed, but I'm supposed to just understand that it didn't matter because of the standard that the board applied, which is the kind of misconduct that would allow you to get away with a crime. [00:30:11] Speaker 00: Yes, because, Your Honor, the board determined in the context of whether this was an injustice that the fact that his cognitive issues may have contributed to his misconduct, that that wasn't sufficient for it to be an injustice that he doesn't receive a disability. [00:30:31] Speaker 02: I don't see where they slide what you're saying right now. [00:30:33] Speaker 00: Well, they acknowledge what the NDRB said, that he was upgraded based on equity reasons related to your diving-related medical diagnoses. [00:30:44] Speaker 02: Is this board decision representative in your experience of the kind of detailed explanation provided by the board usually? [00:30:51] Speaker 00: I mean, it depends on the board, I think. [00:30:55] Speaker 00: In the Navy's case, there is a requirement that they provide a brief statement of the reasons. [00:30:59] Speaker 00: So I guess under the regulations, brevity is encouraged for BCNR decisions in particular. [00:31:09] Speaker 00: Other boards typically have longer decisions. [00:31:13] Speaker 02: What is the standard of review that we are to apply to this? [00:31:16] Speaker 00: It's the APA standard of review, arbitrary and capricious. [00:31:21] Speaker 02: I'm just wondering, how is a reviewing court supposed to review something that's brief and given that brevity and understand that it's not arbitrary and capricious if the four reasons are provided or all the arguments aren't addressed? [00:31:37] Speaker 00: Well, even Mr. Kelly's own opening brief acknowledged that the court can affirm a decision of less than ideal clarity as long as the basis is reasonably discernible from the record. [00:31:50] Speaker 02: So that's the question, is whether the basis is reasonably discernible. [00:31:53] Speaker 00: Yes. [00:31:54] Speaker 02: OK. [00:31:55] Speaker 02: Thank you. [00:31:58] Speaker 00: See, I only have a few seconds left, so unless the court has any further questions. [00:32:05] Speaker 00: We respectfully request that the court affirm the judging of the court for the plaintiff. [00:32:10] Speaker 01: Thank you. [00:32:10] Speaker 01: Thank you, Mr. Madden. [00:32:11] Speaker 01: We'll be in the middle of the job. [00:32:15] Speaker 04: Thank you both. [00:32:16] Speaker 04: Oh, you're giving me five minutes. [00:32:17] Speaker 04: That's very nice. [00:32:21] Speaker 04: Just three very short points, and then we can all go to lunch. [00:32:25] Speaker 04: First, there's been no mention of Robert Neal's involvement in here. [00:32:29] Speaker 04: Judge Arano, you'll remember Captain O'Neill from the Strand case. [00:32:33] Speaker 04: You were on that panel. [00:32:34] Speaker 04: He was executive director of the board back then. [00:32:37] Speaker 04: We don't have a record on it because the government didn't disclose his involvement. [00:32:40] Speaker 04: But there's certainly something strange about Mr. O'Neill, something strange, something inappropriate about Mr. O'Neill being involved in the separation of Mr. Kelly. [00:32:51] Speaker 04: And then when it comes to the board, for him being the examiner, that helps adjudicate his case. [00:32:56] Speaker 04: What's the saying? [00:32:56] Speaker 04: No man should be the judge of his own actions? [00:32:59] Speaker 04: It certainly looks to me like, and maybe I'm wrong, that Captain O'Neill decided to have the last word on a discipline that he was involved in having caused at the Academy. [00:33:15] Speaker 04: The court did not take my suggestion that you issue a letter directing the government to explain what Captain O'Neill's involvement here was. [00:33:24] Speaker 04: I don't want to detonate Grinninger Captain O'Neill if you look at his LinkedIn profile, which [00:33:28] Speaker 04: He has an extraordinary military career, but he just shouldn't have been involved in this case. [00:33:33] Speaker 04: He shouldn't be involved in separating a member and then adjudicating his appeal. [00:33:42] Speaker 04: None of you would let your Lord Kirks do that. [00:33:44] Speaker 04: And I guess at this stage, the best I can ask you to do is drop a footnote disapproving of that arrangement, because all they've admitted is that he is, in fact, one and the same person. [00:33:55] Speaker 04: Criminality, if the board relied on the alleged criminality, but the record shows that Kelly disputed it, and that's where the due process issue comes in, if you're going to rely on criminality, he needs to have an opportunity to tell his side of the story. [00:34:10] Speaker 04: The DRB brief is in the appendix. [00:34:13] Speaker 04: And in that DRB brief, I represented him before the DRB. [00:34:16] Speaker 04: I did not represent him before the BCNR. [00:34:18] Speaker 04: We explained that. [00:34:21] Speaker 04: He disputed the criminality of his actions. [00:34:24] Speaker 04: I think our contention was that he was, if you read the police report, which again is only one side of the story, basically the Annapolis police were trying to resolve a collection problem for a local vendor, and he did not want to provide his ID. [00:34:39] Speaker 04: Well, a lot of military people don't want to provide their ID to people who they don't know for good reasons, for good reasons. [00:34:45] Speaker 04: This man was a front line warrior. [00:34:47] Speaker 04: He was involved when he was overseas and under water demolition. [00:34:51] Speaker 04: He may have had a good reason. [00:34:53] Speaker 04: He should tell that side of the story. [00:34:56] Speaker 04: And the final point I'll have, Judge, is this issue of incompetence. [00:34:59] Speaker 04: I don't know where that standard come from. [00:35:01] Speaker 04: The incompetence standard is defined in the regulation as financial incompetence. [00:35:07] Speaker 04: So when the board said there's no evidence of you being incompetent, where does that standard come from? [00:35:11] Speaker 04: Why isn't the standard, did your service-connected disabilities contribute to your misconduct? [00:35:17] Speaker 04: The board does not explain that, which then ties back into my argument of the Frizzell rule. [00:35:23] Speaker 04: Thank you very much, Your Honors.