[00:00:00] Speaker 03:
The court has six appeals on its calendar today.

[00:00:04] Speaker 03:
Three are submitted on the briefs.

[00:00:08] Speaker 03:
The other three will be argued this morning.

[00:00:11] Speaker 03:
Two of them will be argued in person.

[00:00:13] Speaker 03:
One appeal will be argued by video.

[00:00:16] Speaker 03:
The first appeal is Labonte versus the United States, appeal number 21-1432.

[00:00:21] Speaker 03:
Mr. Fisher, please go ahead whenever you're ready.

[00:00:30] Speaker 02:
Good morning, Your Honors.

[00:00:31] Speaker 02:
Alexander Fisher for Mr. Labonte.

[00:00:34] Speaker 02:
Robert Labonte is an injured combat veteran who served honorably in Iraq and returned home with a traumatic brain injury and a case of post-traumatic stress disorder that one of his doctors called the worst that she'd ever seen.

[00:00:48] Speaker 02:
We're here because for the last nearly two decades now, Mr. Labonte has not received the full extent of the benefits that he's owed

[00:00:56] Speaker 02:
because of an incorrect and over-broad interpretation of a fairly narrow statutory provision.

[00:01:03] Speaker 05:
So that takes us to... Let me ask you, if I could please, and I'm sorry to jump in on you right at the start of your argument, but time is fleeting as you know.

[00:01:13] Speaker 05:
The Court of Federal Claims said that in order to change the record,

[00:01:21] Speaker 05:
You'd have to change the DD 214 form, correct?

[00:01:24] Speaker 05:
Yes, your honor.

[00:01:25] Speaker 05:
And then the court went along and said that the board did not have authority to do that because of the language of 1552 F1, correct?

[00:01:35] Speaker 05:
Yes, your honor.

[00:01:36] Speaker 05:
But looking at it, don't you really have to change the underlying record in terms of an army record?

[00:01:45] Speaker 05:
before you even get to the DD-214 form.

[00:01:48] Speaker 05:
In other words, I'm thinking of what's really, I guess, the second argument in the briefing before us.

[00:01:53] Speaker 05:
You argue at the end of the brief that the DD-214 form, in order to grant Mr. Labonte the relief he seeks, did not have to be altered.

[00:02:06] Speaker 05:
You could just go and change the underlying Army record.

[00:02:10] Speaker 05:
That's the argument, isn't it?

[00:02:12] Speaker 02:
That's close, Your Honor.

[00:02:13] Speaker 02:
The argument here is that there is no, I want to clarify what you mean by the underlying record.

[00:02:20] Speaker 02:
The point here is that there's no statutory or regulatory authority that actually requires the DD-214 to be changed in order to grant Mr. Levante the medical retirement he seeks.

[00:02:31] Speaker 05:
But for someone to be, just leaving aside this case for a moment, say someone is honorably discharged from the Army.

[00:02:39] Speaker 05:
And then they go back and they say, five years later, they say, no, wait a minute.

[00:02:43] Speaker 05:
I should have been retired with disability.

[00:02:48] Speaker 05:
And they go to the ABCMR.

[00:02:51] Speaker 05:
And the board looks at it and says, yes.

[00:02:55] Speaker 05:
And they say, Army, you correct your records to show disability retirement.

[00:03:03] Speaker 05:
What records are being corrected?

[00:03:05] Speaker 05:
There are certain records in the Army, right?

[00:03:08] Speaker 02:
Yes, Your Honor.

[00:03:09] Speaker 05:
So in other words, after those Army records are corrected, and our hypothetical person has now disability retirement, at that point, is it not the case that after the Army records have been corrected, the DD-214 form would be revised?

[00:03:28] Speaker 02:
Well, so, Your Honor, what would have to happen is Mr. Levante... Just in the hypothetical, leave this up.

[00:03:34] Speaker 02:
In the one I gave you.

[00:03:35] Speaker 02:
In the hypothetical, Your Honor, the service member would enter the P-E-B-M-E-B process.

[00:03:40] Speaker 02:
And then only at that point, having been determined on the merits that that person does deserve medical retirement, then the DD-214 may be corrected.

[00:03:49] Speaker 05:
But there would be some record in the Army, would there not, that would show a correction of the record, right?

[00:03:57] Speaker 02:
Your honor, I'm not sure exactly which documents your honor is referring to.

[00:04:00] Speaker 05:
Well, I'm thinking that because we were given several citations to correction board decisions and all of those correction board decisions seem to show the army or the correction board, whether it was naval or army, changing some service record.

[00:04:18] Speaker 05:
So that, I mean, I would think, am I wrong in thinking that there is some

[00:04:23] Speaker 05:
underlying service record, whether it's Army or Navy, that gets corrected.

[00:04:29] Speaker 02:
Your honor, we don't know of any underlying records that that may apply to.

[00:04:32] Speaker 02:
However,

[00:04:33] Speaker 02:
Your Honor's question does point to a critical element here of this case, which is that Mr. Labonte's DD214, to the extent that it would ever need to be changed, were actually talking about two separate boxes on his form.

[00:04:46] Speaker 02:
I do want to take one step back, though, before we get into sort of the nitty-gritty of which boxes we're talking about, and we need to focus a little bit, I think, on 1552F.

[00:04:56] Speaker 02:
We should start by just talking about whether this document, the DD-214, is even captured within 1552F at all.

[00:05:04] Speaker 02:
And clearly I think it is not.

[00:05:06] Speaker 02:
So 1552, we should just begin with A, the sort of broad authority granted in 1552, which gives the Secretary of the Army the power, acting through the board, to make... Can you just go straight to 1552F?

[00:05:19] Speaker 03:
Certainly, that's where I'm having a problem and trying to understand

[00:05:23] Speaker 03:
how to differentiate records of court martial from related administrative records pertaining to court martial cases.

[00:05:31] Speaker 03:
And the problem here is we have a lot of terms, whether they are in statutes or regulations, that are very, they sound close to each other, but they also aren't exactly identical.

[00:05:45] Speaker 03:
For example, records of court martial.

[00:05:48] Speaker 03:
court martial record, record, record of trial.

[00:05:52] Speaker 03:
And trying to reconcile them all or piece them together in some kind of logical way feels like a very uncomfortable exercise.

[00:06:02] Speaker 03:
It feels almost random to try to proclaim that records of court martial means one thing, court martial record, and doesn't mean other things, record of trial or record.

[00:06:16] Speaker 03:
Can you please try to walk through all four of these terms?

[00:06:21] Speaker 02:
Well, your honor, I think actually those distinctions can be captured fairly simply, which is to say that 1552 F was written specifically to protect documents that if altered would in some way undermine or impugn the integrity of the military justice system.

[00:06:37] Speaker 02:
So the critical distinction here is that we have categories of documents that arise from within the military justice system.

[00:06:43] Speaker 02:
And then outside of those, there are documents generated in the military that are not captured by 1552.

[00:06:49] Speaker 03:
We understand the purpose and this purpose makes sense.

[00:06:52] Speaker 03:
What we are left with though is the text of the statute.

[00:06:56] Speaker 03:
And now we're trying to differentiate what are records of court martial and what are related administrative records pertaining to court martial cases.

[00:07:03] Speaker 00:
And bear in mind that both sides have an argument that that purpose is satisfied or not satisfied in the 214.

[00:07:10] Speaker 00:
So setting aside the purpose argument.

[00:07:12] Speaker 00:
If you could address Judge Chen's question.

[00:07:16] Speaker 02:
Can I make sure I understand your question, Your Honor?

[00:07:17] Speaker 02:
So your question is about the specifics of what counts within a record of court-martial and what counts within the related administrative records?

[00:07:24] Speaker 03:
Right.

[00:07:24] Speaker 03:
And I know you were trying to map records of court-martial onto the regulation, court-martial record.

[00:07:33] Speaker 03:
But then there's also something called record of trial.

[00:07:36] Speaker 03:
And then there's also the statute, which says record.

[00:07:38] Speaker 03:
And how do we know, can we have any confidence that records of court-martial

[00:07:43] Speaker 03:
is how you choose to map it on to these various different other terms that are either in a statute or a regulation.

[00:07:49] Speaker 02:
Well, Your Honor, we certainly agree that across the code, these terms are used in a sort of imprecise and sort of difficult to parse way between many of the different statutes.

[00:07:59] Speaker 02:
In this particular case, I think we could use a fairly clear distinction thinking about records of court martial as being those that actually arise from the court martial trial process itself, and related administrative records being those that are generated still as part of the military justice process, but outside of the actual context of the court martial itself.

[00:08:20] Speaker 02:
One example, for instance, might be the charge form that happens actually documenting what the service member is charged with.

[00:08:27] Speaker 02:
before the proceedings of the court martial itself actually begin.

[00:08:30] Speaker 02:
That's plainly a document that is part of the military justice system, and if amended or altered, would constitute the board sort of exercising too much authority.

[00:08:42] Speaker 02:
And that's what 1552F really cabins and stops.

[00:08:46] Speaker 02:
So that's sort of our affirmative- Do you have other examples?

[00:08:49] Speaker 00:
I know the amici provided examples, but do you have other examples?

[00:08:54] Speaker 00:
What is your legal authority for the argument made?

[00:08:57] Speaker 00:
Which I think your argument makes some sense.

[00:08:59] Speaker 00:
But I want to know, are you relying just on the language of the statute itself?

[00:09:05] Speaker 00:
Or do you have other authority you're relying on?

[00:09:08] Speaker 02:
Well, there are a few authorities that I might point to, Your Honor.

[00:09:10] Speaker 02:
And I direct Your Honor's attention to our opening brief at 31 to 33, as well as the military law practitioner's amicus brief from 20 to 22 listing a large number of these such documents.

[00:09:22] Speaker 02:
And there are a couple of authorities I think we may point to.

[00:09:25] Speaker 02:
You know, of course, there's no statute that lists explicitly all of the potential documents that may constitute each of these terms.

[00:09:33] Speaker 02:
But we've got a lot of other places we can look.

[00:09:36] Speaker 02:
I mean, one point I would make, for instance, is that in the Uniform Code of Military Justice, the Manual for Court Martial, and Army Regulation 2710, which implements the Uniform Code of Military Justice in a regulatory fashion,

[00:09:50] Speaker 02:
In these hundreds of pages, nowhere does it even mention a DD-214.

[00:09:54] Speaker 02:
This document plainly exists outside of that universe.

[00:09:59] Speaker 02:
And I know that my time is running a bit short, so there's one final point that I'd like to make, if I may.

[00:10:03] Speaker 03:
Mr. Fisher, we're going to give you a little more time, because I think this appeal needs a little more time.

[00:10:08] Speaker 02:
So go ahead.

[00:10:09] Speaker 02:
Thank you.

[00:10:10] Speaker 02:
So the point that I was going to turn to next was that there's some debate in our briefing about the finality of Mr. Labonte's conviction.

[00:10:19] Speaker 02:
I want to say two points on that.

[00:10:21] Speaker 02:
The first is that this panel can rest assured that no matter what happens today, Mr. Labonte's conviction will remain in place.

[00:10:29] Speaker 02:
For the rest of his life, this conviction will remain in place.

[00:10:32] Speaker 02:
If he applies to a job that requires him to check a box, whether he's ever been convicted of a crime, he must check that box.

[00:10:39] Speaker 02:
It will show up on background checks for him for the rest of his life.

[00:10:43] Speaker 03:
It's not on the 214 form, then where will there be evidence of his conviction?

[00:10:50] Speaker 02:
Will it be in any personnel file?

[00:10:52] Speaker 02:
Yes, Your Honor.

[00:10:53] Speaker 02:
All of the documents from Mr. Labonte's court martial proceeding itself, including the verdict form and documents such as those, will still bear his conviction.

[00:11:05] Speaker 02:
And the reason that this is important in this particular case is because it points to a distinction between Mr. Labonte's conviction, on the one hand,

[00:11:13] Speaker 02:
and his sentence on the other hand, this is critical because 1552 F provide, or 1552 A, excuse me, provides that the board may make corrections for the purpose of fixing error or injustice.

[00:11:26] Speaker 02:
Plainly, I believe injustice exists in this case, but error does as well.

[00:11:31] Speaker 02:
And that's because of this conviction sentence distinction.

[00:11:34] Speaker 02:
Mr. Labonte's conviction remains in place.

[00:11:37] Speaker 02:
His sentence, however, he hasn't served for 10 years now.

[00:11:40] Speaker 02:
He was granted clemency, excuse me, nearly 10 years.

[00:11:42] Speaker 02:
He was granted clemency in 2014.

[00:11:46] Speaker 02:
Now, a service member can't actually be discharged pursuant to a court martial conviction.

[00:11:51] Speaker 02:
Court marshals can result in all sorts of other types of punishments, confinements, loss of pay, downgrading of pay grade, things like that.

[00:12:00] Speaker 02:
And there's some ambiguity between the briefing on these two sides.

[00:12:04] Speaker 02:
In the government's briefing, for instance, on pages 32, 34, 44, 55, and 56,

[00:12:12] Speaker 02:
It incorrectly refers to the reason for Mr. Labonte's discharge as his court-martial conviction.

[00:12:21] Speaker 02:
That's not so, however.

[00:12:22] Speaker 02:
It was his sentence, which he's no longer serving.

[00:12:24] Speaker 02:
And that's what's on the DD-214.

[00:12:26] Speaker 02:
The DD-214 refers to this sentence, this court-martial sentence.

[00:12:31] Speaker 02:
And that's why it's incorrect to have it there.

[00:12:34] Speaker 05:
Mr. President, your position is that in order to grant Mr. Labonte the relief he is seeking, his DD214 form does not have to be changed.

[00:12:45] Speaker 02:
Your Honor, that's correct.

[00:12:47] Speaker 02:
Before I move on, I just want to make sure, as I continue, will I still be able to reserve five minutes for the rule?

[00:12:52] Speaker 02:
Yes.

[00:12:52] Speaker 02:
Okay.

[00:12:52] Speaker 02:
Yes, Your Honor, that's correct.

[00:12:54] Speaker 02:
There is no statutory or regulatory provision that requires this to be removed.

[00:12:59] Speaker 02:
This, I think, is a significant hole in the government's briefing here.

[00:13:04] Speaker 02:
Neither in this court nor in the briefing before the court below has the government been able to point to any authority to support its assertion that, yes, something does require this notation to be removed.

[00:13:15] Speaker 00:
And you have authority suggesting the opposite, right?

[00:13:18] Speaker 02:
Well, Your Honor, this simply puts Mr. Levante in exactly the same default position that he would be in regardless.

[00:13:26] Speaker 02:
So the reason there's no affirmative statute that says yes, or that we know of, that says yes, after being granted clemency, a service member now may seek medical retirement, is because the clemency grant itself returns the service member to the position of having the discharge that he now actually has.

[00:13:44] Speaker 02:
So any service member with the discharge status general under honorable, which Mr. Labonte now has,

[00:13:51] Speaker 02:
may seek medical retirement under 10 USC 1201.

[00:13:56] Speaker 03:
I guess you're saying per that Army Regulation 635-40 he's now cleared all hurdles that are in the way under that regulation and then I believe it's the statute of Section 1201 he meets all of those recited eligibility requirements and so therefore he should have a clear path to benefits now or to making a case for medical retirement.

[00:14:20] Speaker 03:
That's exactly right, Your Honor.

[00:14:21] Speaker 03:
All right.

[00:14:23] Speaker 00:
I have one more very quick question for you, which is, do you know why the ADBR said that it lacked authority to change the narrative reason for Mr. Levante's discharge?

[00:14:33] Speaker 00:
I mean, I've read the opinion, but it's a little unclear to me.

[00:14:38] Speaker 02:
So the ADRB brought up that.

[00:14:41] Speaker 02:
We believe that was an administrative oversight on the part of the ADRB.

[00:14:44] Speaker 02:
They certainly, we think, could have amended the form in that way.

[00:14:48] Speaker 02:
And in fact, other decision review boards have done so in similar cases.

[00:14:53] Speaker 02:
We point in our briefing to the Navy.

[00:14:55] Speaker 02:
But they did say they couldn't.

[00:14:57] Speaker 02:
They did.

[00:14:58] Speaker 02:
However, Your Honor, in that particular case, the ADRB is enabled by a different statute.

[00:15:03] Speaker 02:
It's enabled by 10 USC 1553.

[00:15:05] Speaker 02:
So to the extent that the ADRB was interpreting anything in that opinion, it was interpreting a different statute, not actually the one that's before the court today, which is 10 USC 1552.

[00:15:15] Speaker 00:
I did look at that statute.

[00:15:17] Speaker 00:
It still wasn't clear to me.

[00:15:18] Speaker 00:
But thank you for answering my question.

[00:15:20] Speaker 03:
Certainly, Your Honor.

[00:15:21] Speaker 03:
What if we agree with you that the claims court

[00:15:26] Speaker 03:
mistakenly believed that the form needed to be changed under that one field for reasons for separation in order to qualify for medical retirement.

[00:15:40] Speaker 03:
Could this court just reverse on that score and not address the 1552F question?

[00:15:46] Speaker 03:
Yes, Your Honor.

[00:15:47] Speaker 03:
So these are alternative theories that you have?

[00:15:50] Speaker 02:
They are.

[00:15:51] Speaker 02:
The reason I hesitated there to refer to them as alternative is because we think it should be changed.

[00:15:57] Speaker 02:
This notation for reasons I've explained is inaccurate, and beyond that, it is stigmatizing.

[00:16:02] Speaker 02:
Every day that this inaccurate old notation... How is this inaccurate?

[00:16:05] Speaker 02:
As a historical fact, he was in fact court-martialed.

[00:16:09] Speaker 02:
He was court-martialed, Your Honor, but the form... That was the reason for his separation.

[00:16:13] Speaker 02:
Respectfully, no, it was not, Your Honor.

[00:16:15] Speaker 02:
The court-martial sentence was the reason for his separation.

[00:16:18] Speaker 02:
The court-martial conviction or the court-martial proceeding itself was not.

[00:16:21] Speaker 02:
The court-martial conviction, which could have resulted in a number of other things, including, by the way, no sentence at all, was the actual reason for his separation.

[00:16:30] Speaker 02:
And so the form refers to Mr. Levo as the reason for his approximate reason for his discharge.

[00:16:35] Speaker 02:
It refers to his sentence, a sentence that he has not been serving since 2014.

[00:16:41] Speaker 02:
So to that extent, it's inaccurate.

[00:16:43] Speaker 03:
And I hate to keep you around, but I'm going to be asking the government this, too.

[00:16:49] Speaker 03:
The phrase related administrative records pertaining to court martial cases, as I understand your brief, the types of documents and items you are referring to that would qualify under that subcategory, the 1552F,

[00:17:11] Speaker 03:
are all sound like substantive kind of documents and not necessarily what I would normally think of as being pure administrative documents.

[00:17:22] Speaker 03:
So what kind of work is the word administrative doing in your theory of what qualifies as a related administrative record?

[00:17:29] Speaker 02:
Your honor, I think probably what it's doing is making sure that Congress can write a statute that correctly captures the universe of documents they're going for.

[00:17:37] Speaker 03:
I'm not sure if we could- I'm not sure what that means.

[00:17:39] Speaker 02:
I don't know how to write that into an opinion.

[00:17:41] Speaker 02:
Certainly, Your Honor.

[00:17:43] Speaker 02:
I think what the word administrative is doing is making sure that you can capture all of the documents within the military justice system that bear on or directly refer to proceedings of the court martial in such a way that if those documents were changed, it would actually have, as the Senate said when it wrote this provision, it would have some legal bearing on the outcome of the court martial.

[00:18:07] Speaker 02:
The purpose of 1552f was to ensure that documents wouldn't get amended, that would overturn as a matter of law, the findings of a court martial.

[00:18:16] Speaker 03:
So we're talking about here- What's the purpose theory of how to understand the word administrative?

[00:18:21] Speaker 02:
Well, I think that's- That's your argument.

[00:18:23] Speaker 02:
I think it's both, Your Honor.

[00:18:24] Speaker 02:
I think the purpose certainly agrees.

[00:18:27] Speaker 02:
I think it aligns with what I'm describing here, which is the universe of documents that sort of surrounds the court martial, but is not actually itself.

[00:18:35] Speaker 02:
directly generated inside of the actual proceeding of the court-martial.

[00:18:40] Speaker 02:
So one document that I mentioned earlier, for instance, the charge form.

[00:18:45] Speaker 03:
OK.

[00:18:46] Speaker 03:
Thanks so much.

[00:18:48] Speaker 03:
We will reserve the five minutes for final time for your colleague.

[00:18:52] Speaker 03:
I think it's time to hear from the government.

[00:18:54] Speaker 02:
Thank you, Your Honors.

[00:18:56] Speaker 03:
And in view of the way the opening argument occurred, let's give Mr. Schroeder 20 minutes to see how.

[00:19:08] Speaker 01:
May it please the court?

[00:19:11] Speaker 01:
The army discharged Mr. Labonte in 2008 as a direct result of his court martial conviction.

[00:19:19] Speaker 01:
And he did not exhaust his

[00:19:22] Speaker 01:
criminal justice appeals, military justice appeals.

[00:19:26] Speaker 03:
Can I ask you about Form 214?

[00:19:29] Speaker 03:
Yes.

[00:19:30] Speaker 03:
Assuming that this court agrees with the claims court that Mr. Levante passes all requirements under Army Regulation 635-40, now that his sentence has been, he's been granted clemency.

[00:19:53] Speaker 03:
What authority is there for still denying him his right to make a claim for medical retirement given that he does seem to, there's nothing blocking his claim under Section 1201 or Regulation 635-40?

[00:20:12] Speaker 01:
Yes, because it's really what the court said, 1552F.

[00:20:19] Speaker 01:
that limits the authority with respect to the records of court-martial and related administrative records.

[00:20:25] Speaker 01:
Right.

[00:20:25] Speaker 03:
That's a different avenue, I think, towards possibly getting medical retirement, which is trying to actually correct that one field in Form 214 when it comes to reasons for separation.

[00:20:39] Speaker 03:
My question is asking, why does that field in Form 214 need to be amended at all in order for him to qualify to make a claim for medical retirement?

[00:20:49] Speaker 01:
Well, as I understand it, medical retirement and a discharge without being retired are two different things.

[00:21:03] Speaker 01:
And as everybody has agreed to in this case, the DD-214

[00:21:07] Speaker 01:
is it's not only just an administrative record, it's really the administrative record that reflects, you know, in one concise place, the service member's history.

[00:21:19] Speaker 00:
What is the legal authority for saying that what the content of the 214 has to be corrected before disability retirement could be awarded?

[00:21:31] Speaker 00:
I don't see any legal authority at all for that proposition.

[00:21:36] Speaker 01:
Well, somebody has to change a record.

[00:21:43] Speaker 01:
The DD-214 just reflects a big history.

[00:21:45] Speaker 00:
Do you have a statute or a regulation or a memo or anything at all?

[00:21:50] Speaker 01:
I don't have anything on that particular.

[00:21:52] Speaker 01:
The parties, frankly, didn't brief that particular issue that I recall.

[00:21:57] Speaker 00:
That issue was briefed, I think.

[00:21:58] Speaker 00:
I believe it was ruled on by the court below.

[00:22:01] Speaker 01:
On the, they said the regulatory, what we argued in the case below was that regulation provided an independent ground for dismissal and the court ruled against us, but then nonetheless dismissed the complaint for failure to state a claim.

[00:22:27] Speaker 01:
What regulation are you relying on?

[00:22:34] Speaker 01:
635-40?

[00:22:34] Speaker 01:
I believe that was it, if I may.

[00:22:38] Speaker 05:
The judge said, though, that 635-40 was not an impediment to his seeking disability.

[00:22:45] Speaker 01:
Yes, exactly.

[00:22:46] Speaker 05:
And then the judge went on and said, at 10 and 11 of the appendix, it's at 10 and 11 of the appendix, the judge went on and said, in order to get the relief to which he is claiming,

[00:23:02] Speaker 05:
the DD-214 form would have to be changed, correct?

[00:23:06] Speaker 05:
Yes, and among other records, because... That's the question, though, that I think we're all kind of on the panel wrestling with.

[00:23:16] Speaker 05:
Why is it that the DD-214 form has to be changed?

[00:23:21] Speaker 05:
I mean, it goes back, I guess, to the question I was asking Mr. Fisher earlier.

[00:23:25] Speaker 05:
I said, just take it out of this situation.

[00:23:28] Speaker 05:
Someone's discharged.

[00:23:30] Speaker 05:
get an honorable discharge, and then they come back and they say, no, I should have been discharged with disability.

[00:23:35] Speaker 05:
I should have had a disability discharge or a medical discharge, if you will.

[00:23:40] Speaker 05:
And the Army Board for Correction of Military Records looks at that.

[00:23:45] Speaker 05:
And I've looked at these various board decisions that we were cited to.

[00:23:49] Speaker 05:
And the Army says, and the board says, the Army records should be changed to reflect a medical discharge.

[00:23:58] Speaker 05:
What Army records are we talking about?

[00:24:01] Speaker 05:
Well, other than that, there are more records than just the DD-214.

[00:24:06] Speaker 01:
Well, one of the records is the court-martial.

[00:24:09] Speaker 01:
No, no.

[00:24:09] Speaker 05:
Leaving aside the situation.

[00:24:12] Speaker 05:
Just an ordinary case.

[00:24:16] Speaker 05:
where someone wants their record changed and the board says, yes, it is changed to reflect a medical discharge or disability discharge.

[00:24:25] Speaker 05:
What army record is changed?

[00:24:28] Speaker 05:
Because these decisions that we have, board decisions, all say the appropriate service record is changed.

[00:24:36] Speaker 05:
Are there particular army records

[00:24:39] Speaker 01:
that are get get revised again not talking about mister levanti's well there are a lot of again the particular underlying records but there are um... if uh... for example there could be medical records that uh... i remember reading a case i forget which one it was where somebody fell on a submarine and there were medical records that uh... reflected that uh... he had an injured leg and uh...

[00:25:07] Speaker 05:
So in other words, the Army records would be revised to show that he was not fit for retention for medical reasons, right?

[00:25:19] Speaker 01:
Yes.

[00:25:19] Speaker 01:
It would declare that in a board of correction case.

[00:25:25] Speaker 05:
And the Army would then change its record, right?

[00:25:28] Speaker 01:
Well, I don't know if they actually go back and start changing those underlying records, but they issue a decision.

[00:25:34] Speaker 05:
That's what the board decisions say.

[00:25:37] Speaker 05:
the appropriate army records are to be changed.

[00:25:39] Speaker 06:
Okay.

[00:25:40] Speaker 05:
So now, we're in the situation where an army record has been changed to show disability retirement, correct?

[00:25:48] Speaker 05:
What then happens to the DD- and that's happened without any reference to the DD-214.

[00:25:54] Speaker 01:
Then the DD-214 would be, just as it was in this case, in that one block, which

[00:26:04] Speaker 01:
where it should have had combat discharge.

[00:26:06] Speaker 05:
But the DD-214 is now changed after the underlying Army records are changed, correct?

[00:26:13] Speaker 05:
Yes.

[00:26:14] Speaker 05:
Okay, well then the starting point is changing the underlying Army records, and that suggests the DD-214 form

[00:26:23] Speaker 01:
doesn't need to be changed to give the relief it's just sort of it reflects what the department has done well in this case though the department really can't there's a court martial there was an appeal process the congress wishes to keep the criminal side separate from the board of corrections side so there was an appeal process uh... the time to challenge

[00:26:50] Speaker 01:
and raise any defenses uh... was during the trial then uh... their appeals uh... mister about the one got his automatic appeal up to the highest army level judge channels pointing out in his colloquy with you the uh... the regulation six thirty five dash forty i guess you know what i'm not the court said

[00:27:16] Speaker 05:
That was not an impediment to granting him disability retirement.

[00:27:22] Speaker 01:
Right?

[00:27:23] Speaker 01:
Right.

[00:27:24] Speaker 01:
But that was in the context of that we use that as a defense on a motion to dismiss, arguing that it barred it.

[00:27:34] Speaker 01:
The fact that it's not an impediment simply means you can remove that as an impediment.

[00:27:40] Speaker 01:
The court did not declare that he had a right to

[00:27:46] Speaker 01:
obtain retirement under that provision.

[00:27:49] Speaker 05:
But it's no bar to his retiring, to getting, I mean, the way it was, it looked to me like the way it was set up, the government said, he can't get disability because of this.

[00:28:03] Speaker 05:
And the court said, no, that's wrong.

[00:28:07] Speaker 05:
And now that issue isn't, the parties aren't disputing that issue anymore.

[00:28:11] Speaker 01:
No, what we're disputing is, and the court nonetheless dismissed the case, and the reason it dismissed the case is because there's a statutory prohibition.

[00:28:20] Speaker 01:
So this is a record correction case.

[00:28:22] Speaker 01:
There's no record to correct here.

[00:28:25] Speaker 01:
There's no injustice to correct because there was a conviction by court martial.

[00:28:31] Speaker 01:
The appeals were not exhausted.

[00:28:34] Speaker 01:
There's no disagreement that... That's fetishism before us, right?

[00:28:38] Speaker 00:
I mean, I just want to make sure that it sounds like you're arguing the merits right now.

[00:28:42] Speaker 01:
No, what we're arguing is that court-martial conviction still stands.

[00:28:47] Speaker 00:
Your argument is that the language pertaining, the language in 10 U.S.E.

[00:28:54] Speaker 00:
1552F covers the DD 214, right?

[00:28:59] Speaker 01:
Yes, and also that it prevents

[00:29:01] Speaker 00:
Is it specifically that it covers the DD-214, or is it that it covers Box 28 of the DD-214?

[00:29:08] Speaker 01:
Well, I think to be more precise, it covers Box 28, because there was a change on the DD-214.

[00:29:17] Speaker 01:
That's right.

[00:29:19] Speaker 01:
Because the board can issue a change for purpose of clemency.

[00:29:26] Speaker 00:
So your point of view is that this language that says

[00:29:31] Speaker 00:
records of court-martial we're talking about related administrative records pertaining to court-martial cases.

[00:29:37] Speaker 00:
It's not the whole document.

[00:29:39] Speaker 00:
It's just part of the document.

[00:29:42] Speaker 01:
In this particular case, yes, because they've already changed the character of service, upgraded it, which, by the way, allowed plaintiffs to obtain veterans benefits.

[00:29:54] Speaker 00:
It's interesting to me.

[00:29:56] Speaker 00:
I mean, you know, this statute, the way it's written, to me doesn't sound as if

[00:30:01] Speaker 00:
uh... it sounds like they're prevented from having the power to alter documents not parts of documents well this document you can alter some of this document can't alter it at all that seems inconsistent with the language well in this case if there was a typo in his name they could correct that in this case they actually again in this box the statute said that they didn't have the power to correct records of court martial and related administrative records pertaining to court martial cases

[00:30:30] Speaker 01:
Right.

[00:30:30] Speaker 00:
So we're saying that you can correct some of it, but not all.

[00:30:35] Speaker 01:
Because his birth date is not a record pertaining to a court martial.

[00:30:41] Speaker 00:
So you're interpreting this as saying Box 28 is a record pertaining to court martial because it says court martial.

[00:30:52] Speaker 01:
Yes.

[00:30:53] Speaker 01:
It's specifically referencing the court martial.

[00:30:57] Speaker 03:
Didn't both the board and the claims court

[00:31:00] Speaker 03:
conclude that this particular field in Form 214 needed to be changed in order for Mr. Levante to go through the disability processing process?

[00:31:13] Speaker 01:
Well, the court concluded effectively that by saying the board lacks authority to do anything.

[00:31:22] Speaker 03:
But if I'm right, that both the Claims Court and the board

[00:31:27] Speaker 03:
among other things, ruled that this form, this particular field of the form, needed to be corrected, needed to be altered in order for Mr. Labonte to go through disability processing.

[00:31:42] Speaker 03:
And we disagree with that because no one has pointed to us any authority, regulatory or statutory or otherwise, for why that is.

[00:31:51] Speaker 03:
Then couldn't we reverse on that ground alone?

[00:31:56] Speaker 01:
The question is, and it's a question of law, is whether 1552f bars the board from making the type of correction here.

[00:32:08] Speaker 03:
Right.

[00:32:10] Speaker 03:
I understand why you want to keep talking about 1552f.

[00:32:13] Speaker 03:
And we still have some time to do that.

[00:32:15] Speaker 03:
But I'm talking about something that's different, separate, and distinct from 1552f.

[00:32:21] Speaker 03:
1552F is Mr. Labonte's pursuit to have this particular field of Form 214 altered.

[00:32:28] Speaker 03:
My question right now with you is all about the claims court's ruling that he needs to have that field altered in order to get disability processing.

[00:32:41] Speaker 03:
And right now,

[00:32:43] Speaker 03:
I'm just being frank with you, I don't see why that's required.

[00:32:47] Speaker 03:
Why that particular field needs to be corrected in order for the Army to start doing disability review for it.

[00:32:57] Speaker 01:
Well, I mean, for one thing, the claims court noted that was a relief he sought in his complaint was for his

[00:33:11] Speaker 05:
court-martial to be substitute for a... I took a look at the briefing below and he said, I have the briefing here and he said you don't need to change it, among other things, to pick up on what Judge Chan was saying.

[00:33:34] Speaker 05:
In other words, why

[00:33:37] Speaker 05:
If it's not, what is the authority for the propositions Judge Chen was saying that in order to get disability, you have to change the 214 form?

[00:33:51] Speaker 05:
What is the statutory, regulatory, or case authority?

[00:33:54] Speaker 05:
And I'm sort of picking up on what Judge Chen was saying.

[00:33:56] Speaker 01:
Well, it's really, it comes back to F, and I understand that that's the ground the court dismissed this on.

[00:34:02] Speaker 05:
But where does F1, you're saying F1, 1552 F1 is directed to not only, is directed to more than just the DD-214 form?

[00:34:16] Speaker 01:
Well, it's any administrative record.

[00:34:19] Speaker 05:
But it has to be an administrative record relating to a court martial.

[00:34:22] Speaker 01:
Well, that's what this is.

[00:34:24] Speaker 01:
And just going back to that, there are two types of records.

[00:34:29] Speaker 01:
One are the court-martial records, and one are administrative records that relates to privilege.

[00:34:34] Speaker 05:
You said earlier, though, that one of the records that would be changed would be maybe some medical records.

[00:34:42] Speaker 05:
in a situation where somebody's got disability, and that's not really into a court-martial.

[00:34:46] Speaker 01:
That's in a normal non-court-martial context.

[00:34:51] Speaker 05:
But if we don't have to change the DD214 form, and there's no impediment because of the court-martial, that's the kind of document you'd be talking about, isn't it?

[00:35:01] Speaker 01:
Actually, there's a, again, the court-martial is carved in stone, so what he's really asking is to

[00:35:11] Speaker 01:
almost canceled court martial from his military records.

[00:35:13] Speaker 01:
DD-214 is supposed to accurately... I want disability retirement.

[00:35:18] Speaker 05:
I mean I asked Mr. Fisher to say that

[00:35:22] Speaker 05:
Sure, he'd like to have the DD214 form changed, but it's not necessary for his relief that he's seeking if the board were to grant.

[00:35:33] Speaker 05:
He just wants disability or medical retirement.

[00:35:36] Speaker 01:
But what still stands is the court-martial.

[00:35:39] Speaker 01:
There's still, even putting aside the form, there's a court-martial that's reflected on the form.

[00:35:45] Speaker 01:
But the forms only reflect the reality of his service.

[00:35:49] Speaker 00:
Is it your view that the court-martial prohibits the award of disability retirement, regardless of the existence of the 214?

[00:35:58] Speaker 01:
Is that what you're saying?

[00:35:59] Speaker 00:
And what is your authority for that?

[00:36:02] Speaker 01:
Again, F talks about related administrative records.

[00:36:05] Speaker 01:
So there's a court-martial.

[00:36:07] Speaker 01:
This was the ground for his discharge, was the court-martial.

[00:36:12] Speaker 00:
I want to ask you about the Kurth memo for a minute.

[00:36:15] Speaker 00:
So the Kurth memo is something that specifically says that the board has the authority to change the characterization, the area of reason, the separation code, all these different things, including Box 28 that we've been talking about on Form 214.

[00:36:29] Speaker 00:
What is your response to that?

[00:36:32] Speaker 01:
My recollection of that is that these memos were not dealing with court martial cases.

[00:36:40] Speaker 01:
If I'm thinking of the Hegel memo.

[00:36:55] Speaker 01:
This is a very narrow set of circumstances in which somebody is court-martialed and discharged not administratively but pursuant to the court-martial.

[00:37:09] Speaker 01:
So these memos address more run-of-the-mill cases.

[00:37:17] Speaker 01:
And in any event, are there?

[00:37:20] Speaker 03:
The CURTA memo is talking about precisely the kinds of things that Mr. Labonte went through, PTSD, TBI.

[00:37:30] Speaker 00:
And considering those things, considering the severity of the misconduct,

[00:37:36] Speaker 00:
should be considered with any mitigating effects of the PTSD or their traumatic brain injury.

[00:37:45] Speaker 00:
I don't understand why it's your position that these aren't dealing with court martial cases.

[00:37:50] Speaker 01:
Because for one thing, these memos are post date of the statute.

[00:37:55] Speaker 01:
But also, those are the types of things that during sentencing at the court martial can be brought up as a defense.

[00:38:05] Speaker 01:
It doesn't look like this memo is intended to allow.

[00:38:09] Speaker 00:
But this is guidance to the Military Discharge Review Board and the Board for Correction of Military Naval Records.

[00:38:16] Speaker 00:
That's who the memo is directed to.

[00:38:18] Speaker 00:
So it's not directed to the court martial proceedings, but it's directed to some attempt to correct a military member's records afterwards.

[00:38:32] Speaker 01:
Yes, as I look through this, I do not see a reference to cases in which somebody is convicted pursuant to the type of court martial involved here where the sentence is now final.

[00:38:48] Speaker 03:
OK, what about the Navy Corrections Board and the Air Force Corrections Board decisions?

[00:38:53] Speaker 03:
Does the government disavow the decisions by those boards where they have altered the field

[00:39:02] Speaker 03:
the form from saying court-martial to secretarial authority.

[00:39:09] Speaker 03:
Your Honor, there's... The government disavow those decisions and say, no, those were wrongly decided.

[00:39:14] Speaker 03:
The Army Correctional Board here is doing it right, and so therefore, necessarily, those decisions by the Navy Correctional Board and Air Force Correctional Board, when they granted the correction

[00:39:27] Speaker 03:
to say secretarial authority instead of court-martial are wrong.

[00:39:31] Speaker 03:
Is that the government's position?

[00:39:33] Speaker 01:
To the extent they conflict, I mean, there's different types of court-martials that are different.

[00:39:40] Speaker 03:
Do you disagree with my reading of those board decisions by the Air Force and Navy Corrections Board as granting this kind of correction that Mr. Labonte seeks here?

[00:39:50] Speaker 01:
Well, none of them, for one thing, none of them granted military retirement, which is what he's seeking here.

[00:39:57] Speaker 03:
No, but they all granted a change to the form so that it erased the word court martial and replaced it with secretarial authority.

[00:40:08] Speaker 03:
Am I misremembering those decisions?

[00:40:10] Speaker 01:
No.

[00:40:11] Speaker 01:
OK, so is the government disavowing those decisions?

[00:40:15] Speaker 01:
We don't know of any authority where that could have been done under

[00:40:20] Speaker 01:
the statutory reading by Judge Hurtling in this case, and where if there is a conflict, reading the language of the statute must take precedence.

[00:40:31] Speaker 01:
And if some boards view a statute one way and other boards view it another way, perhaps in this case the Army

[00:40:41] Speaker 01:
uh... uh... correction board reviewed it at least initially another way then i haven't heard your answer to judge hens question about whether the government is disavowing those questions those cases is that a yes or no i don't want to say that we disavow them but if to the extent they conflict with this we disagree with them because we believe that this is the correct decision and uh... that they may have uh... differences that are distinguishable on the facts

[00:41:11] Speaker 01:
to the extent that they conflict with Judge Hurtman's decision, we think this is the correct reading.

[00:41:16] Speaker 03:
My last question goes back to 1552F and the phrase related administrative records pertaining to court martial cases.

[00:41:28] Speaker 03:
That last piece of that phrase, pertaining to court martial cases, why shouldn't we read that entire phrase so that

[00:41:37] Speaker 03:
it's necessarily confined to administrative records, whatever that term means, that are a function of the court martial case itself, and not necessarily any other form that could be regarded as a military record, including personnel file HR forms that happen to say the word court martial on it.

[00:42:03] Speaker 01:
Because I think again, in the decision, it was explained that you have a separate section that would almost be rendered meaningless because it would be covered by the court martial record part.

[00:42:18] Speaker 01:
there's more than just the record of trial, or the indictment, or whatever they call it at the court-martial record.

[00:42:27] Speaker 01:
Everything that happens in that criminal type of case.

[00:42:31] Speaker 03:
If this particular form, 214, resulted, so it erased court-martial instead, said secretarial authority,

[00:42:38] Speaker 01:
uh... you government wouldn't be that is overturning or setting aside the actual court-martial conviction well it would look like it would be not it's not actually doing no not it would not your honor however it would convey any in in incorrect picture of service which is what the two fourteenths work and uh... it would it

[00:43:04] Speaker 01:
essentially cancel, at least on the most important administrative document that every service member has, it would essentially cancel the court martial as the reason for the separation.

[00:43:22] Speaker 01:
And that's a radical thing to do.

[00:43:28] Speaker 00:
Let me ask you one other question.

[00:43:30] Speaker 00:
When I look at your interpretation of related administrative records pertaining to court martial cases, it seems as if you're reinterpreting that to be, or maybe this would have been an easier way for Congress to say what you wanted to say, which is related administrative records pertaining to a military person's court martial conviction.

[00:43:52] Speaker 00:
It's like you're looking at the particular person and what their record says as opposed to a category of documents.

[00:44:01] Speaker 00:
Do you have a response to that?

[00:44:02] Speaker 00:
Because I feel like it's, I don't know of very many cases where the category of document is going to change based on who it is and what it says.

[00:44:11] Speaker 01:
Well, I think it's, as I look at that language, it seems to refer to the particular record of the particular service member.

[00:44:24] Speaker 00:
says administrative records pertaining to court martial cases, right?

[00:44:28] Speaker 00:
And so your view is?

[00:44:30] Speaker 01:
I think it has to be looked at in context of the specific facts of the particular case, even though it uses plural.

[00:44:38] Speaker 01:
So I think in this case, it applies to these facts.

[00:44:43] Speaker 01:
That's how we read it.

[00:44:46] Speaker 03:
OK.

[00:44:47] Speaker 03:
Mr. Schroeder, thanks very much.

[00:44:48] Speaker 03:
Thank you.

[00:44:49] Speaker 03:
We now hear rebuttal from Mr. Herman.

[00:44:53] Speaker 04:
Thank you, Your Honors, and may it please the court.

[00:44:56] Speaker 04:
I'd like to start with Judge Chen's assertion that this court can in fact rule for Mr. Labonte on the theory that the DD-214 does not need to be changed to grant medical retirement.

[00:45:09] Speaker 04:
Fundamentally, Mr. Labonte is seeking benefits.

[00:45:13] Speaker 04:
He is not seeking a form change.

[00:45:15] Speaker 04:
And despite repeated direct questions in the briefing and from this panel, the government has not pointed to a single authority mandating that the DD-214 form must be changed.

[00:45:26] Speaker 04:
And on that theory alone, the decision below should be vacated.

[00:45:30] Speaker 03:
So just so I understand the complaint in front of the claims court,

[00:45:36] Speaker 03:
was seeking to have the claims court force the corrections board to make this particular correction to form two 14, right?

[00:45:43] Speaker 04:
Yes, your honor.

[00:45:44] Speaker 03:
Mr. Levante does want this form to be changed.

[00:45:47] Speaker 03:
And, but if you're right, that, that particular form doesn't need to be changed.

[00:45:53] Speaker 03:
Then, um, I'm just wondering, is this the right avenue to go through in order to make your claim for disability?

[00:46:02] Speaker 04:
I understand your honor.

[00:46:04] Speaker 04:
The ABCMR was the correct avenue to go through because fundamentally Mr. Labonte again was seeking medical retirement and the appeal to the court of federal claims included the issue about the DD-214 and whether or not it could be changed specifically because that was the reason that the ABCMR appeared to incorrectly deny his claim in the first place.

[00:46:27] Speaker 04:
And so appealing on the nature of the form and what could be altered was relevant.

[00:46:32] Speaker 04:
But fundamentally, when Mr. Levante was before the ABCMR, he was just asking for medical retirement and wanted to be heard on the merits of his case.

[00:46:40] Speaker 05:
Assuming for the moment that you don't have to change the DD-214 form to award him medical or disability retirement, which is what you're saying, right?

[00:46:51] Speaker 05:
Yes, Your Honor.

[00:46:53] Speaker 05:
would the board have to do?

[00:46:55] Speaker 05:
In other words, what would the board have to tell the military department to do?

[00:47:03] Speaker 04:
This speaks to a question your honor asks to my colleague about what records would actually be generated.

[00:47:09] Speaker 04:
If Mr. Labonte, if

[00:47:11] Speaker 04:
wins before this court and goes back to the court of federal claims, what he's seeking is to be entered into the PEB or MEB discharge process.

[00:47:21] Speaker 04:
And that would generate records on its own reflecting that he's qualified to be discharged via medical retirement.

[00:47:28] Speaker 04:
And so that would be essentially what the board is telling the army to do.

[00:47:32] Speaker 05:
So those are the records with quotes around the word records, because it's a term of art when we're dealing with the ABCMR.

[00:47:41] Speaker 05:
That's what would be changed if he was successful in the Court of Federal Claims.

[00:47:45] Speaker 04:
Yes, Your Honor.

[00:47:48] Speaker 04:
I'd also like to clarify a little bit the discussion that occurred earlier about what qualifies as a related record under Mr. Labonte's proposed interpretation of the statute.

[00:47:59] Speaker 04:
A related administrative record.

[00:48:01] Speaker 04:
Uh, yes, thank you, your honor.

[00:48:02] Speaker 04:
A related administrative record pertaining to a court martial.

[00:48:05] Speaker 04:
This category we believe refers to documents within the military justice system, but similar to documents that would be generated by a clerk's office.

[00:48:14] Speaker 04:
So not documents such as a written summary or a decision, but documents that are maintained within that system and are produced by that system.

[00:48:24] Speaker 04:
So section 1552 F.

[00:48:26] Speaker 04:
is essentially trying to insulate the products of that system so that those products cannot be altered by outside forces.

[00:48:35] Speaker 04:
And so we provide a number of examples.

[00:48:37] Speaker 04:
So what if 1552F just said any and all records of court marshals?

[00:48:43] Speaker 03:
And would that not include these types of records that you're referring to that are coming out of the clerk's office?

[00:48:51] Speaker 04:
Your Honor, yes, that phrase would also include these.

[00:48:55] Speaker 04:
But we believe that that phrase would be even broader.

[00:48:59] Speaker 04:
Congress could have adopted a magic words interpretation here.

[00:49:05] Speaker 04:
saying that any document that has the words court martial anywhere in the military system is a related record, but it didn't say that.

[00:49:14] Speaker 04:
The Congress's intent here, as illustrated through the Senate report, was to protect the products of the military justice system.

[00:49:22] Speaker 04:
And so we believe that the language adopted in section 1552F reflects a desire to be narrow in that exception to the broad authority in section 1552A.

[00:49:33] Speaker 04:
Lastly, I see that my time is expiring.

[00:49:35] Speaker 00:
I want to ask you a question.

[00:49:36] Speaker 00:
Don't worry about your time right now.

[00:49:38] Speaker 04:
OK, thank you.

[00:49:39] Speaker 00:
So my question to you is, how is your answer that you just gave consistent with the statutory definition of record, which includes broadly or other writing relating to the proceedings?

[00:49:52] Speaker 00:
I mean, I think I understand your answer to be saying, yet Congress provided this language about related administrative records pertaining to the court martial just to make sure they captured everything.

[00:50:02] Speaker 00:
My question is, I mean, if we're going to refer to the statutory definition, which we kind of presume that Congress legislates with an understanding of statutory definitions, why isn't their proposed language overkill if it's just limited to the UCMJ record?

[00:50:22] Speaker 04:
Well, so, Your Honor, I think you're referring to the definition as provided in Section 801-14, if that's correct.

[00:50:30] Speaker 04:
By the plain language, which we agree is important, Section 80114's definition should not apply here.

[00:50:36] Speaker 04:
The section actually starts in this chapter.

[00:50:39] Speaker 04:
And section 801-14 sits in chapter 47, whereas section 1552 sits in chapter 79.

[00:50:45] Speaker 04:
So we don't believe that that definition should necessarily control here.

[00:50:49] Speaker 04:
But even if it does, we've provided a couple of examples, for example, on page 17 of our reply brief of documents that fall outside of the 801-14 definition, but still within the military justice system and related to a court martial.

[00:51:05] Speaker 04:
For example, we point to the DA form 7568 or copy of the commander's checklist for pretrial confinement, which could not reasonably be portrayed under ADA 114.

[00:51:16] Speaker 04:
So our definition is consistent across chapters, but we still don't believe that that definition of record of court martial should even apply in this context.

[00:51:27] Speaker 03:
I understand your position.

[00:51:30] Speaker 03:
records of court martial tracks the regulatory definition for court martial record and the definition for related administrative records pertaining to court martial records refers to everything under the definition for record of trial that does not include the things that make up a court martial record.

[00:51:53] Speaker 03:
Is that your position?

[00:51:55] Speaker 03:
We believe that there are... No, Your Honor.

[00:51:57] Speaker 03:
Do you have to do a carve out of record of trial of everything that's deemed a court martial record to fall within the meaning of related administrative record?

[00:52:08] Speaker 04:
Sorry.

[00:52:08] Speaker 04:
Yes, Your Honor.

[00:52:09] Speaker 04:
We do believe that that carve out is meant to include things such as the record of trial.

[00:52:14] Speaker 03:
Seems like a peculiar way to define the statutory meaning of related administrative records, doesn't it?

[00:52:21] Speaker 04:
Well, no, we don't believe so, your honor.

[00:52:23] Speaker 04:
We think that the phrase related administrative records pertaining to a court martial might go beyond just the record of trial.

[00:52:31] Speaker 04:
The example that I just provided, the DA form 7568 would not really be considered a record of trial.

[00:52:36] Speaker 04:
It's a document that's produced by the military justice system before the court martial process has even begun.

[00:52:42] Speaker 04:
And so it's related to his court martial because it occurred maybe earlier in the process.

[00:52:48] Speaker 04:
But it's not a record of trial.

[00:52:49] Speaker 04:
So the first question that we would ask by section 1552 F is whether the document was produced within that system.

[00:52:57] Speaker 04:
And a DD-214 is not.

[00:52:59] Speaker 04:
It's more equivalent to a document from an HR department than a clerk's office.

[00:53:04] Speaker 04:
It sits entirely outside of that system and would never be touched or created by a judge advocate.

[00:53:11] Speaker 05:
So we don't- Let me ask you just one quick question.

[00:53:15] Speaker 05:
The DD-214 form.

[00:53:18] Speaker 05:
Who, in the first instance, prepares it?

[00:53:20] Speaker 05:
Does the Army prepare it in conjunction with the Department of Defense, or is it mutual, or is it just the Department of Defense that does?

[00:53:28] Speaker 05:
Who prepares that form?

[00:53:31] Speaker 04:
Your Honor, I believe that it's built both within the Army and the Department of Defense, but if I may confer with my co-counsel quickly.

[00:53:41] Speaker 04:
I believe that that's the case, but I would have to refer again.

[00:53:48] Speaker 04:
Yes.

[00:53:49] Speaker 04:
And so if I may very briefly conclude, under the theory that the DD-214 doesn't need to be changed, Mr. Levante wins.

[00:53:57] Speaker 04:
Under the interpretation of Section 1552F, we still believe that Mr. Levante wins, but at most the reach of the government's argument here is that Box 28 is related.

[00:54:07] Speaker 04:
They never even attempted to argue that Box 23 is also a related record.

[00:54:13] Speaker 04:
And that's the box that Mr. Labonte would actually need to be changed under standard practice.

[00:54:18] Speaker 04:
So to fully effectuate his clemency, we ask this court to vacate the decision below and remand for further proceedings on the merits of Mr. Labonte's case.

[00:54:27] Speaker 04:
Thank you.

[00:54:28] Speaker 04:
Thank you.

[00:54:28] Speaker 04:
The case is submitted.

[00:54:29] Speaker 04:
Appreciate the arguments.

[00:54:31] Speaker 04:
Very helpful.