[00:00:00] Speaker 03:
Our final case this morning is number 23-1192, Nelson versus United.

[00:00:05] Speaker 03:
Okay, Ms.

[00:00:08] Speaker 03:
Alshabaaz.

[00:00:10] Speaker 04:
Good morning, Your Honors.

[00:00:11] Speaker 04:
May it please this honorable court.

[00:00:15] Speaker 04:
I don't hear myself.

[00:00:17] Speaker 02:
Working?

[00:00:18] Speaker 04:
It's intermittent.

[00:00:20] Speaker 04:
It was working just fine for everyone else.

[00:00:22] Speaker 04:
Now it's working.

[00:00:24] Speaker 04:
Good morning again.

[00:00:25] Speaker 04:
May it please this honorable court, my name is Ikeesha Alshabaz.

[00:00:28] Speaker 04:
And I, along with my co-counsel, Mark Crawford, represent the plaintiff appellant, Dr. Rudy Malson, on this appeal.

[00:00:36] Speaker 04:
Your honor, as we are asking that the court reverse the lower court that granted the government's motion for summary judgment on the administrative record.

[00:00:52] Speaker 04:
This court decided in.

[00:00:54] Speaker 04:
Steven versus United States that the plaintiff would need to show that personnel was involved, that ignored relevant and competent evidence to that they unreasonably construed the significant body of medical documentation or that in any other manner

[00:01:12] Speaker 04:
they fail to discharge their designated duties.

[00:01:15] Speaker 04:
And it is the position of the appellant that the board, in fact, failed on multiple levels.

[00:01:22] Speaker 04:
First, the board failed to consider the entirety

[00:01:26] Speaker 04:
of Dr. Nelson's medical history.

[00:01:30] Speaker 04:
Instead, they picked and they cherry-picked the fact that he had Lyme disease a year before he got into the military.

[00:01:38] Speaker 04:
They cherry-picked that he had an injection for his finger, a cortisol injection for his finger.

[00:01:48] Speaker 04:
But they completely disregarded the record where it shows that he was fit for duty

[00:01:54] Speaker 04:
on multiple times, that he completed and successfully passed his medical examinations, that he participated in unit activities.

[00:02:06] Speaker 04:
And that is where the record indicates that he suffered injuries.

[00:02:11] Speaker 04:
The record is clear that while he may have had some injury pre-existing before he came in, it definitely was exacerbated by the unit activities.

[00:02:22] Speaker 04:
Next.

[00:02:24] Speaker 04:
The Army Board of Corrections and Military Records, their actions were arbitrary and capricious and not supported by the evidence in the record.

[00:02:37] Speaker 04:
The record states that Dr. Nelson was able to perform all of his duties, that he passed the USMA Academy, and that he was treated

[00:02:49] Speaker 04:
He was treated for a line of duty injury, that he had good mental and physical health.

[00:02:55] Speaker 03:
And do you agree that there is a difference between the standards for appointment and retention?

[00:03:03] Speaker 04:
Yes, Judge, I do agree.

[00:03:05] Speaker 04:
And I think it's a distinction without a difference only in this case.

[00:03:10] Speaker 04:
In this case, because this particular service person was participating in a simultaneous program.

[00:03:17] Speaker 04:
In a simultaneous program, argument regulations require that if you are disenrolled, that you must be simultaneously discharged.

[00:03:25] Speaker 04:
And for some unknown reason, for which the record is silent, for which the board gave some sort of deference, there is nothing to explain why he was not simultaneously discharged.

[00:03:38] Speaker 04:
And that did harm him.

[00:03:40] Speaker 04:
He should have been given a physical evaluation board because his disenrollment was based on the fact that he was physically unable to do the job.

[00:03:50] Speaker 04:
So naturally, what should have happened next was that he was discharged simultaneously because this was a simultaneous cadet program.

[00:04:00] Speaker 04:
So that's the only position the government is taking is that we have somehow misconstrued the difference between enrollment and discharge.

[00:04:10] Speaker 04:
We haven't.

[00:04:12] Speaker 04:
What we're saying is that they should have happened at the same time.

[00:04:16] Speaker 03:
How could he remain in the military if he didn't qualify for an appointment to an officer position?

[00:04:23] Speaker 04:
He couldn't.

[00:04:24] Speaker 04:
And that's exactly the point, Judge.

[00:04:27] Speaker 04:
If he had been given a physical evaluation board, which should have been triggered once he was disenrolled, then it would have been determined as our position that he was disabled.

[00:04:38] Speaker 04:
And he would have been eligible for disability pay.

[00:04:41] Speaker 04:
But instead of doing that, they said, there's nothing in the record for us to make a determination as to what happened in that five-month period.

[00:04:49] Speaker 04:
This is the military.

[00:04:51] Speaker 04:
How could the military not be able to account for an entire five-month period of a service member's record?

[00:04:59] Speaker 04:
It should not be accepted by any court.

[00:05:01] Speaker 04:
It should not be countenance by this court.

[00:05:04] Speaker 04:
And I submit that that is evidence that their decision was irrational.

[00:05:09] Speaker 04:
It was arbitrary and capricious.

[00:05:13] Speaker 04:
Further, Your Honor.

[00:05:14] Speaker 04:
The board found that Dr. Nelson was not harmed.

[00:05:18] Speaker 04:
That also is irrational, because one, if he would have been given a physical...

[00:05:26] Speaker 04:
If he had been given a physical evaluation board or a medical evaluation board, then maybe he would have been qualified for disability pay.

[00:05:39] Speaker 04:
The second thing that because he was discharged and it was classified uncharacterized, he was ineligible for the full GI Bill.

[00:05:48] Speaker 04:
And as the court knows, his dedication to not only the armed services,

[00:05:54] Speaker 04:
led him to continue in the military, even after.

[00:05:59] Speaker 04:
The next thing I want to say, and I would ask the court to look at the honorable Judge Meyer's decision in granting the government's motion, in its footnote one on page three, Judge Meyer observes that he could have sent this back to the board for further consideration of the fact that Dr. Nelson had a waiver for ROTC.

[00:06:24] Speaker 04:
That waiver basically said he was fit for duty.

[00:06:27] Speaker 04:
And that it would rebut the board's conclusion that the pre-existing conditions that he had was not connected to his service.

[00:06:39] Speaker 04:
Everything in the record suggests that it was.

[00:07:02] Speaker 04:
There is nothing in the record that indicates that any pre-existing condition that the board may have found impacted Dr. Nelson's participation in his unit.

[00:07:11] Speaker 04:
For over a year, he participated in that unit, and only one time, only one time did he report that he had an injury, and that injury was as a result of him participating in the unit Trojan Games.

[00:07:25] Speaker 04:
In the other time that in the record was a result of him participating in bear crawling activities, everything in the record suggests that any condition he may have had has been exacerbated by his participation in basic training and other unit activities.

[00:07:43] Speaker 04:
Furthermore, the lower courts reading that in that five month period, he continued to drill and participate in activities, there's nothing in the records to support that.

[00:07:53] Speaker 04:
Nothing whatsoever.

[00:07:55] Speaker 01:
So your argument is not that your client should not have been discharged, but that he should have been discharged with a disability.

[00:08:06] Speaker 01:
Yes.

[00:08:07] Speaker 04:
That he should have been disenrolled and discharged simultaneously as required by.

[00:08:13] Speaker 01:
But once a disability was known by most of the parties involved, Mr. Messer continued

[00:08:21] Speaker 01:
I don't know what to call it.

[00:08:24] Speaker 01:
He continued with participation for five months.

[00:08:27] Speaker 04:
He did not.

[00:08:29] Speaker 04:
So he was separated.

[00:08:30] Speaker 04:
And that's the problem, is that the record is silent as to what participation means.

[00:08:36] Speaker 04:
He was sent back to his unit, but he did nothing there for five months, Your Honor.

[00:08:42] Speaker 04:
And the record is silent.

[00:08:44] Speaker 01:
The record doesn't... He literally did nothing.

[00:08:46] Speaker 04:
He literally did nothing.

[00:08:48] Speaker 04:
He literally did not participate.

[00:08:51] Speaker 04:
He did not do any unit activities.

[00:08:53] Speaker 01:
Is that in the record?

[00:08:53] Speaker 04:
There's nothing in the record.

[00:08:55] Speaker 01:
The record that's before us, is that in the record that he did nothing when he was sent back?

[00:09:02] Speaker 04:
What's in the record before us is that he was sent back to his unit.

[00:09:06] Speaker 04:
That's it.

[00:09:06] Speaker 04:
The board did not undertake any

[00:09:13] Speaker 04:
findings to determine what happened in that five-month period.

[00:09:17] Speaker 04:
The board did not seem to undertake why the military regulations weren't followed, which prevented him from being discharged when he was just enrolled.

[00:09:32] Speaker 04:
Now, if the board had followed their own regulations, or military personnel have followed their own regulation, Army Regulation 601-210 makes a provision for a simultaneous membership program cadet who is disenrolled from ROTC to be retained in their enlisted status by their Reserve Guard TP unit until the expiration of their contractual or statutory service obligation.

[00:09:59] Speaker 04:
Yet, in the same vein,

[00:10:02] Speaker 04:
There is a caveat that says, provided the soldier is not otherwise processed for discharge under provisions of Army Regulation 135-178.

[00:10:11] Speaker 04:
And that was what Dr. Nelson falls under.

[00:10:16] Speaker 04:
He was, in fact, discharged under that provision.

[00:10:20] Speaker 04:
Under Army Regulation 135-178, Chapter 15,

[00:10:26] Speaker 04:
Paragraph eight, that is the medical discharge, which states that because it's simultaneous, he has to both be disenrolled and discharged at the same time.

[00:10:38] Speaker 04:
Even the honorable judge... But that happened.

[00:10:40] Speaker 04:
It didn't.

[00:10:41] Speaker 04:
That's the thing, Judge, it didn't happen.

[00:10:44] Speaker 04:
He was disenrolled and then in May... He was disenrolled from the ROTC?

[00:10:50] Speaker 01:
Correct.

[00:10:51] Speaker 01:
Now, I understand he was dissimilar not because he could not fulfill the duties being in ROTC, but because he should have never been appointed.

[00:11:01] Speaker 04:
That is not correct, Your Honor.

[00:11:03] Speaker 04:
Or I would disagree with the court's assessment.

[00:11:07] Speaker 04:
He received a waiver to participate in the ROTC, which found that he was fit, which is one of the things which the Honorable Judge Meyer said the board didn't consider.

[00:11:19] Speaker 01:
Can you point us to the waiver in the record?

[00:11:22] Speaker 04:
So Judge, it is not in the record, and the Honorable Judge Myers

[00:11:51] Speaker 04:
makes mention of that fact, that the waiver is not in the record.

[00:11:55] Speaker 04:
However, he does mention that the board did not consider it and that he could remand it for the board to further consider that in his footnote on page 3, which is footnote 1, which is my position that that supports

[00:12:11] Speaker 04:
our position that the board didn't consider all the substantial evidence if the court is considering sending it back for further consideration.

[00:12:19] Speaker 04:
And we're not asking for that relief.

[00:12:21] Speaker 04:
We're not asking that this court send it back for remand.

[00:12:25] Speaker 04:
We are asking that this court resolve this in Dr. Nelson's favor, that the board did not fully consider all of the relevant medical evidence

[00:12:37] Speaker 04:
That the board did not comply with its own guidelines, which that would make it per se arbitrary and capricious and Let me see if I can understand what your argument is.

[00:12:51] Speaker 03:
Are you saying that he has to meet the standards for appointment or that he doesn't have to meet the standards for appointment?

[00:12:58] Speaker 04:
You went out.

[00:12:59] Speaker 04:
Sorry, Judge, you went out.

[00:13:01] Speaker 03:
Is your argument that he did not have to meet the standards for appointment or that he did meet the standards for appointment?

[00:13:08] Speaker 04:
My argument is that once he failed to meet the standards for appointment and he was disenrolled, that he should have also been discharged.

[00:13:19] Speaker 04:
Because of this particular type of program, this SMP, this Simultaneous Cadet Program,

[00:13:25] Speaker 04:
He couldn't be retained.

[00:13:30] Speaker 04:
It was not possible for him to be retained once he was disenrolled.

[00:13:34] Speaker 03:
Okay, so the argument, you're not contesting that he didn't meet the standards for appointment.

[00:13:40] Speaker 04:
We are not contesting that.

[00:13:42] Speaker 04:
No, we're not contesting that.

[00:13:44] Speaker 04:
What we're saying in fact is he didn't know, right?

[00:13:48] Speaker 04:
That was part of the argument for the statute of limitations arguments that he didn't know and he kept trying to be a part of the military and they never said to him, you know what, you're permanently disabled.

[00:14:00] Speaker 04:
He was never able to appreciate that his injuries were fixed

[00:14:04] Speaker 03:
So you're saying they couldn't discharge him without sending it to a physical evaluation board?

[00:14:11] Speaker 03:
Yes.

[00:14:11] Speaker 04:
That's what I'm saying.

[00:14:12] Speaker 04:
They denied him the physical evaluation board.

[00:14:15] Speaker 04:
He should have had that.

[00:14:17] Speaker 04:
Your Honor, I believe, I'm hoping that we have reserved at least two or three minutes.

[00:14:22] Speaker 04:
We'll give you two minutes.

[00:14:23] Speaker 04:
Thank you, Judge.

[00:14:28] Speaker 03:
Mr. Hellman?

[00:14:48] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:50] Speaker 00:
First, I'd like to touch briefly on this waiver point that was just brought up by opposing counsel that wasn't argued in their briefs.

[00:14:58] Speaker 00:
I believe Judge Zakey asked, or Judge Rainer, one of you asked if it was in the record.

[00:15:02] Speaker 00:
It was brought up, and the waiver was submitted as part of the briefing for our motion to dismiss.

[00:15:07] Speaker 00:
Below, the waiver that Mr. Nelson received, and he received this in September of 2005, end of September, right before he stopped drilling with his National Guard unit.

[00:15:21] Speaker 00:
That waiver, he never submitted that to the boards of correction, to the ABCMR, and under this court's decision in Barnick,

[00:15:30] Speaker 00:
591 F.

[00:15:30] Speaker 00:
3rd, 1372, evidence that could have been submitted to a corrections board but wasn't is not properly before the Court of Federal Claims and certainly not before this Court.

[00:15:42] Speaker 00:
So that's the waiver point.

[00:15:44] Speaker 00:
But more importantly, the bigger issue is that Mr. Nelson has not identified any statute or regulation that would have required the

[00:15:56] Speaker 00:
army to have given him an evaluation.

[00:16:00] Speaker 00:
He was not found to be unfit for duty.

[00:16:02] Speaker 00:
He was only found to be unfit for appointment.

[00:16:05] Speaker 03:
If I understand correctly, they're saying, well, if he were applying to become a commissioned officer in the first instance, he could probably properly be rejected because of his physical condition.

[00:16:22] Speaker 03:
but that somehow this program is different and that even though they didn't have to give him employment as a commissioned officer, they couldn't discharge him from the military entirely without going through the physical evaluation board process.

[00:16:39] Speaker 03:
Is my understanding the same as yours as to what they're arguing?

[00:16:46] Speaker 00:
I think that's what they're arguing as well.

[00:16:48] Speaker 00:
That's what I heard now.

[00:16:49] Speaker 00:
I don't think that's exactly what they argued in their briefs, but it sounds like that's what they're arguing now.

[00:16:54] Speaker 00:
And the first part of that is correct, that Mr. Nelson was found to be

[00:17:01] Speaker 00:
ineligible for appointment in the ROTC, the simultaneous program, and that's why he was disenrolled.

[00:17:08] Speaker 00:
The regulation for that is 145-1, paragraph 3-43.

[00:17:14] Speaker 00:
A scholarship cadet may be disenrolled

[00:17:17] Speaker 00:
from the program and a medical condition that precludes appointment will be cause for disenrollment.

[00:17:23] Speaker 00:
And they appear to concede that in response to your question.

[00:17:26] Speaker 00:
They appear to concede that.

[00:17:28] Speaker 00:
So he was disenrolled because a medical condition precluded his appointment.

[00:17:32] Speaker 00:
That doesn't mean he was unfit for services and enlisted for service member.

[00:17:37] Speaker 00:
And there's nothing in the record.

[00:17:39] Speaker 00:
There's some indication that he had intermittent joint pain, but as the board

[00:17:45] Speaker 00:
found, as the medical evidence shows, he had no limitations.

[00:17:50] Speaker 00:
And this is Appendix 519, for instance.

[00:17:54] Speaker 00:
It's a note from his own doctor from 2003 that says, there are currently no restrictions in his military or personal activity.

[00:18:02] Speaker 00:
So the Army had no reason to give him

[00:18:05] Speaker 00:
and he'd be a medical evaluation board.

[00:18:07] Speaker 00:
He had no restrictions.

[00:18:09] Speaker 03:
Your argument is that the regulation doesn't permit retention of somebody who doesn't qualify for appointment as a commission officer.

[00:18:17] Speaker 00:
For the ROTC.

[00:18:20] Speaker 00:
Yes.

[00:18:21] Speaker 00:
But as an enlisted service member, it's

[00:18:24] Speaker 00:
He started out, he enlisted in the Army Reserve in early 2002, in September of 2002.

[00:18:31] Speaker 00:
It's only later when he got admitted to this simultaneous membership program in the ROTC that he started switching streams.

[00:18:40] Speaker 00:
It turns out he couldn't go down that path because his medical condition would preclude his ultimate appointment.

[00:18:47] Speaker 00:
There's no point in him being in the ROTC if he can't be appointed as an officer.

[00:18:51] Speaker 00:
It's at the Reserve Officers' Training Corps.

[00:18:53] Speaker 03:
But his enlisted obligation... What he seems to be saying is, you know, even though I didn't qualify for a commission under the ROTC program, I still should have been retained by the military under this particular program.

[00:19:08] Speaker 03:
I mean, the regulation that you read says you're discharged from the ROTC program.

[00:19:15] Speaker 03:
But if I understand their argument, and maybe I'm wrong about this, is that he had some other status other than as an ROTC member, which allowed him to be retained by the military.

[00:19:28] Speaker 00:
Well, he had enlisted status, and he continued to stay in that status for five months.

[00:19:33] Speaker 00:
That's what the Court of Federal Claims explained.

[00:19:35] Speaker 00:
And I think that's the issue where they are conflating the two standards.

[00:19:41] Speaker 00:
They're saying, well, because he was disenrolled from the ROTC program, that automatically means he's considered to have a disability and should have been given a medical evaluation.

[00:19:52] Speaker 03:
They don't seem to be arguing that now, right?

[00:19:56] Speaker 00:
Well, they're still saying that he should have been given the medical evaluation board.

[00:20:00] Speaker 00:
That's what I heard them say.

[00:20:01] Speaker 03:
Yeah, but I think what they're saying is he could be retained in the military even without qualifying for a commission under the ROTC program.

[00:20:13] Speaker 00:
If that's what they're saying, I think that's the argument that we're making as well.

[00:20:16] Speaker 00:
And that's what the board found, and that's what

[00:20:20] Speaker 00:
Judge Myers found as well is that there's a difference between appointment and retention.

[00:20:27] Speaker 00:
There was no reason why he couldn't have been retained as an enlisted service member.

[00:20:30] Speaker 00:
And there's nothing in the... He wasn't.

[00:20:34] Speaker 03:
How could... I mean, they seem to be saying because he wasn't, he could have been retained as a service member, but wasn't, the only way that they could get rid of him is through a physical evaluation.

[00:20:53] Speaker 00:
The evidence in the record shows that he was disenrolled.

[00:20:57] Speaker 00:
It's not that he was disenrolled from his California Army National Guard at the same time.

[00:21:02] Speaker 00:
In fact, I think he continued drilling with that unit.

[00:21:06] Speaker 00:
He's not in it anymore, right?

[00:21:08] Speaker 00:
Was he discharged from that?

[00:21:11] Speaker 00:
Not automatically, not by operation of this disenrollment from the ROGC.

[00:21:15] Speaker 00:
And I think that's the issue.

[00:21:16] Speaker 00:
How did he get discharged from the reserve program?

[00:21:20] Speaker 00:
He subsequently, I think, was discharged from the ROTC program.

[00:21:25] Speaker 00:
And I'm trying to find the... You mean the reserve program.

[00:21:29] Speaker 00:
I'm sorry.

[00:21:30] Speaker 00:
You said ROTC.

[00:21:31] Speaker 00:
You mean the reserve program?

[00:21:32] Speaker 00:
From the California Army National Guard, which it's also a state program.

[00:21:39] Speaker 00:
So in order to qualify for federal military disability retirement, he'd have to demonstrate that he was somehow under federal status when he was in the

[00:21:49] Speaker 00:
state guard unit.

[00:21:53] Speaker 00:
That's another issue that he doesn't address.

[00:21:55] Speaker 00:
But I'm trying to find the record site for when the court of federal claims concluded that he stopped drilling with his unit in October of 2005.

[00:22:07] Speaker 00:
And then he was discharged from that unit.

[00:22:14] Speaker 00:
He was credited with the time.

[00:22:17] Speaker 00:
I don't think the orders show why he was discharged.

[00:22:24] Speaker 00:
So the reason he was there to begin was because of the simultaneous membership program.

[00:22:31] Speaker 00:
So once he's no longer part of that simultaneous

[00:22:34] Speaker 00:
membership program, he could have still stayed on.

[00:22:37] Speaker 00:
He could have stayed on in a different and less intense sense, in the National Guard or possibly he could have gone back to the Army Reserve.

[00:22:45] Speaker 00:
But he was also pursuing other, you know, he was pursuing his waiver.

[00:22:50] Speaker 00:
He was seeking employment.

[00:22:53] Speaker 03:
But his argument is he wasn't allowed to continue.

[00:22:56] Speaker 00:
He's not shown any record evidence of that.

[00:23:00] Speaker 00:
There's nothing that says he had to be

[00:23:03] Speaker 00:
that he couldn't.

[00:23:04] Speaker 00:
And in fact, the evidence the board found so contrary that he could have stayed on as an enlisted.

[00:23:10] Speaker 00:
And he chose not to.

[00:23:11] Speaker 00:
And he chose not to.

[00:23:12] Speaker 00:
That's exactly right.

[00:23:13] Speaker 00:
That there's no evidence that he had a disability causing him to be unfit to perform his duties as an enlisted member of the California Army National Guard.

[00:23:22] Speaker 00:
And this is at appendix 540.

[00:23:28] Speaker 00:
So there's no indication that he

[00:23:31] Speaker 00:
was discharged for that reason.

[00:23:36] Speaker 00:
I think the complicating factor in this case is this dual status, the simultaneous membership program that conflated the, well, it didn't conflate, but he was disenrolled because he was ineligible for appointment, and then says that that would mean that he should also have been discharged from all parts of the army.

[00:23:56] Speaker 00:
But as the board found, that's not the regulation.

[00:23:58] Speaker 00:
They haven't identified a regulation that requires the army to do that.

[00:24:01] Speaker 00:
So they say, well, the Army didn't follow its own regulations.

[00:24:05] Speaker 00:
They don't actually identify the regulations that the Army didn't follow.

[00:24:08] Speaker 00:
The only regulation they identify in the brief is Army Regulation 635-40, which is a regulation addressing the physical evaluation, retention, and retirement.

[00:24:25] Speaker 00:
But that expressly doesn't apply to ROTC cadets.

[00:24:31] Speaker 00:
There is, Dr. Melsen has not identified any regulation that the Army failed to follow here and for that.

[00:24:40] Speaker 03:
So the basic difference is they're saying that he was discharged from the military and your position is he wasn't discharged from the military, only he was denied a commission, and that because he wasn't discharged from the military, there didn't need to be a physical evaluation.

[00:24:58] Speaker 00:
That's correct.

[00:25:01] Speaker 02:
Now, you said he came into the Army Museum initially.

[00:25:05] Speaker 02:
Yes.

[00:25:06] Speaker 02:
And in the end, he was in the California National Guard.

[00:25:11] Speaker 02:
How did he go from one to the other, and what effect does that have in this case?

[00:25:17] Speaker 00:
Sure, Your Honor.

[00:25:18] Speaker 00:
So you're correct.

[00:25:19] Speaker 00:
He came in initially in the Army Reserve, initially signed up for an eight-year commitment, and that's at Appendix 532.

[00:25:29] Speaker 00:
In August of 2004, he discharged from the Army Reserve to enlist in the California Army National Guard.

[00:25:39] Speaker 00:
And this is at Appendix 504-505.

[00:25:44] Speaker 00:
Because he found out he was going to be in the simultaneous membership program in ROTC, he wanted to join the National Guard out in California, where he was going to be going to school.

[00:25:55] Speaker 00:
And so he was able to

[00:25:59] Speaker 02:
Was it transfer?

[00:26:00] Speaker 00:
Essentially transfer, yeah.

[00:26:02] Speaker 00:
You know, they say he discharged from one, but it was the same day he enlisted in the other.

[00:26:08] Speaker 00:
But that's what happened.

[00:26:09] Speaker 02:
And the discharge rules are the same for both?

[00:26:13] Speaker 02:
The discharge rules for... The reserve, Army Reserve and the National Guard?

[00:26:18] Speaker 02:
With respect to what facet of discharge?

[00:26:21] Speaker 02:
To his final discharge.

[00:26:25] Speaker 00:
With respect to his... In October.

[00:26:29] Speaker 00:
I don't know if there are any, I mean they certainly haven't argued that there's any regulation that the national... No, but I remember earlier that this is their state control as well as federal and that that is a complicating factor, but I didn't...

[00:26:51] Speaker 02:
hear what the factors were and whether it matters to this case.

[00:26:58] Speaker 02:
You mentioned it, but I don't remember seeing it in the opinion and briefs.

[00:27:04] Speaker 02:
I understand your question, Judge Mayer.

[00:27:06] Speaker 00:
I think the issue would be that if he was

[00:27:10] Speaker 00:
part of his state's national guard unit and he is seeking disability retirement there may be a jurisdictional problem because it's not a federal depending on the status of his service if he was the state national guard sort of wears dual hats they're often serving for the state and then sometimes their service members can be federalized and deployed as

[00:27:37] Speaker 00:
as army or reserve federal components.

[00:27:40] Speaker 00:
And so depending on what status he was in, he wouldn't have a claim here against the army.

[00:27:46] Speaker 00:
It would be maybe some sort of state claim against the California Army National Guard.

[00:27:51] Speaker 00:
That wasn't briefed below.

[00:27:52] Speaker 00:
And that hasn't been certainly raised here.

[00:27:55] Speaker 00:
So I don't want to go too far down that path.

[00:27:57] Speaker 00:
But that's what it was.

[00:27:59] Speaker 00:
That's what I was referring to there.

[00:28:04] Speaker 03:
Yes.

[00:28:04] Speaker 03:
But your position

[00:28:06] Speaker 03:
is that he wasn't discharged at all, whether he was in the reserves of the National Guard after he was exited the ROTC program.

[00:28:15] Speaker 03:
He wasn't discharged from either of those objects, right?

[00:28:18] Speaker 00:
That's correct.

[00:28:21] Speaker 00:
If there are no further questions, we respectfully request that you affirm the decision below.

[00:28:30] Speaker 03:
Ms.

[00:28:30] Speaker 03:
Al-Shabazz?

[00:28:31] Speaker 04:
Thank you, gents.

[00:28:38] Speaker 04:
Just two points on Roberto.

[00:28:39] Speaker 04:
First, the government is misstating the record.

[00:28:42] Speaker 04:
He was absolutely discharged and on the discharge form.

[00:28:46] Speaker 04:
Unfortunately,

[00:28:48] Speaker 04:
We don't have access to the appendix.

[00:28:50] Speaker 04:
We're having some technical difficulty.

[00:28:53] Speaker 04:
But the discharge form specifically states that he is being discharged.

[00:28:59] Speaker 04:
There is no question that he was discharged.

[00:29:02] Speaker 03:
And the discharge was basically- Do you know the page of the appendix that was out?

[00:29:06] Speaker 04:
I do not, Your Honor.

[00:29:07] Speaker 04:
I do not.

[00:29:08] Speaker 04:
I apologize.

[00:29:11] Speaker 04:
but because this was a simultaneous program, the discharge had to be concurrent with the disenrollment.

[00:29:19] Speaker 04:
In fact, your honor, there is, when Mr. Nelson

[00:29:24] Speaker 04:
applied to the board for correction, they did relate back the discharge to the disenrollment.

[00:29:30] Speaker 04:
So they are acknowledging that it should have happened at the same time, and the fact that it didn't happen at the same time.

[00:29:36] Speaker 04:
And the government is saying, I haven't cited any rules, any army regulations, but they know that the regulations are there.

[00:29:43] Speaker 04:
It's regulation 135 through 178, chapter 15 page, paragraph 8.

[00:29:50] Speaker 04:
which specifically relates to Army Regulation 40-501, which states that in this simultaneous cadet program, disenrollment for medical reasons, or when you find that he's unfit, also means discharge.

[00:30:06] Speaker 04:
Now, the fact that it didn't happen for five months again, militates to the fact that the Army was not following their regulations and doing the things they should have been doing, the fact that he wasn't given a physical evaluation board when he was discharged, and the fact that they did relay back his discharge to the time he was disenrolled, all bolsters

[00:30:27] Speaker 04:
the fact that they acted arbitrarily and capriciously and did not base their record on all of the substantive records that were before them.

[00:30:37] Speaker 04:
So for those reasons, we ask that this court reverse the lower court and grant Dr. Nelson's motion for a summary judgment on the administrative record.

[00:30:52] Speaker 04:
Thank you.

[00:30:53] Speaker 03:
Thank you.

[00:30:53] Speaker 03:
Thank you both, counsel.

[00:30:54] Speaker 03:
The case is submitted.

[00:30:55] Speaker 03:
That concludes our session for this morning.