[00:00:00] Speaker 01:
The next case for argument is 22-2126, Perez versus McDonough.

[00:00:04] Speaker 01:
Good morning, please proceed.

[00:00:07] Speaker 03:
Good morning, Your Honor.

[00:00:07] Speaker 03:
May it please the court, Count Carpenter, appearing on behalf of Mr. Eddie Perez.

[00:00:13] Speaker 03:
The Veterans Court, in its decision, acknowledged that Mr. Perez was correct, that the regional office in its original

[00:00:20] Speaker 03:
administrative decision on the character of his discharge cited to what was referred to as the statutory bar under 3.12D.

[00:00:29] Speaker 03:
There is no, the statutory bar under 3.12... No, no, no, but everybody's confessed error on that.

[00:00:36] Speaker 01:
Everybody's tried to clean that.

[00:00:38] Speaker 01:
Okay.

[00:00:39] Speaker 01:
Yes, we get that.

[00:00:40] Speaker 03:
The VA's administrative decision, however, which is at appendix 20 to 21 at page 20, framed the issue as whether or not the veteran's discharge from a period from the date of his entry to the date of his discharge was a bar to benefits under 3.12D1.

[00:01:00] Speaker 03:
That simply is not the criteria or the correct statement of the issue under 3.12D1.

[00:01:11] Speaker 03:
12D1.

[00:01:13] Speaker 03:
That regulation specifically provides that a discharge or release, because of one of the offenses specified in the paragraph below, is considered to have been issued under dishonorable conditions.

[00:01:29] Speaker 01:
I was very confused by the argument we're making, even leaving aside for a moment the question of what was raised before the RL is a C lease.

[00:01:37] Speaker 01:
So that will be my second question.

[00:01:41] Speaker 01:
You're saying that you weren't challenging the validity of the wreck.

[00:01:46] Speaker 01:
Correct.

[00:01:46] Speaker 01:
But you are saying that what you are challenging is the inconsistency between the statute and the wreck.

[00:01:54] Speaker 03:
That's correct.

[00:01:55] Speaker 01:
What follows from, if there's an inconsistency between a statute and a reg, isn't that argument necessarily made to mean that the reg is invalid because the statute trumps the reg?

[00:02:10] Speaker 01:
So what is the practical difference between saying the reg is invalid because it's inconsistent with the statute or as saying, as you do, that the statute and the reg are inconsistent?

[00:02:22] Speaker 01:
I'm just at a loss.

[00:02:23] Speaker 03:
i thought i apologize your honor and i should have tried to make that more clear as we did in our briefing both before the agency and before the court below we pointed out that there is an inherent inconsistency between the regulatory requirements and the statutory requirements what makes this case

[00:02:45] Speaker 03:
not necessarily an indelidity case, is because within 5303A there is a limited provision, one of the, I believe, seven alternatives that were provided by Congress that specifically addressed the consequence of a discharge from an unauthorized absence for more than 180 days.

[00:03:08] Speaker 03:
And in that provision, within these seven exceptions,

[00:03:16] Speaker 03:
requirement to be disqualified from veterans benefits is an authorized absence for more than 188.

[00:03:26] Speaker 03:
Mr.

[00:03:28] Speaker 03:
Perez, as we pointed out repeatedly, both before the agency and before the court, didn't have an unauthorized absence for more than 180 days.

[00:03:38] Speaker 03:
Therefore, he could not have committed an offense that would qualify for review under 3.12D.

[00:03:47] Speaker 03:
But that does then implicate the plain language of the statute that calls for a different bar at a different legal standard and within that statutory.

[00:04:01] Speaker 01:
Can you show me when you made that argument?

[00:04:03] Speaker 01:
Is it in gray?

[00:04:05] Speaker 01:
Or can you show me in gray?

[00:04:07] Speaker 01:
I mean, you had to have made it in blue.

[00:04:09] Speaker 01:
But I'm looking for it in gray.

[00:04:12] Speaker 01:
The statutory argument you just made with regard to the exceptions

[00:04:25] Speaker 03:
Well, in the summary of our rebuttal, we point out that the Secretary focused on whether 3.12D1 was invalid and inconsistent with the statute.

[00:04:36] Speaker 02:
We then indicate that Mrs. DeMar... I'm sorry, was your great brief what page?

[00:04:40] Speaker 03:
Oh, I'm sorry, on page one.

[00:04:42] Speaker 03:
Thank you.

[00:04:45] Speaker 03:
And in that follow-up sentence, it says that the focus misses the mark because Mr. Perez's appeal does not seek or require a finding of this court that the reg is itself invalid.

[00:04:59] Speaker 03:
We then point out that the issue raised on appeal to the Veterans Court presented both a statutory argument and a regulatory argument, both of which dealt with the interpretation of both of those readiness.

[00:05:13] Speaker 01:
OK, but where is the argument?

[00:05:14] Speaker 01:
As I understood, you were just making an argument about this 180 days, and there were specific exceptions found in the statute.

[00:05:21] Speaker 01:
Where is that argument in the brief?

[00:05:24] Speaker 03:
I don't believe we got into the particulars of that argument in the brief, because that's what was presented to the board.

[00:05:32] Speaker 03:
And it was the board's decision that was being reviewed.

[00:05:35] Speaker 01:
So you're explaining to us, you did five minutes ago, why you think the statutory language is inconsistent with the reg, or you were talking about all of these exceptions or whatever.

[00:05:47] Speaker 01:
But you didn't articulate that detail in the briefs?

[00:05:50] Speaker 01:
I mean, you've only got 15 minutes here.

[00:05:52] Speaker 01:
It seems a little odd that you go into so much detail if this was nowhere made in the briefs.

[00:05:57] Speaker 01:
The point was, you were trying to show us that there

[00:06:03] Speaker 03:
That was the issue that was presented below.

[00:06:08] Speaker 03:
And Judge Greenberg said that he did not see any basis for that as it related to the Q allegation.

[00:06:17] Speaker 03:
But the inquiry is not as it relates to the Q allegation.

[00:06:21] Speaker 03:
The inquiry relates as to what the meaning is of the statute and the regulation and whether those two can be reconciled.

[00:06:30] Speaker 01:
So what's your argument about how they can't

[00:06:32] Speaker 01:
They can be reconciled and why they violated the statute.

[00:06:39] Speaker 03:
I do not believe they can be reconciled, but that does not mean the regulation as written and as discussed by this court in Cranford makes that regulation invalid.

[00:06:54] Speaker 03:
because that regulation deals with a finding of an offense committed

[00:07:03] Speaker 03:
as resulting in dishonorable or being considered upon further review as dishonorable.

[00:07:10] Speaker 03:
As this court described in Craniford, the purpose of the 3.12D1 is to review a decision that was made that you would get a less than honorable discharge.

[00:07:25] Speaker 03:
The regulation refers to it as undesirable discharge.

[00:07:30] Speaker 03:
This court in Craniford said that the four or five different categories were all considered by the VA in using that language as a catch-all and that it necessarily included other than honorable conditions.

[00:07:51] Speaker 03:
which was the basis for Mr. Perez's discharge.

[00:07:56] Speaker 01:
OK, but you started this argument talking about, so you're saying that they misinterpreted them the statute here in the US.

[00:08:06] Speaker 01:
How?

[00:08:07] Speaker 03:
How?

[00:08:08] Speaker 03:
By saying that 3.12D1 was applicable and could be utilized under the facts, the undisputed facts that Mr. Perez had unauthorized absences for I believe it was 158 days, which didn't meet the statutory threshold for disqualification from VA benefits.

[00:08:34] Speaker 03:
Therefore, he could not, as a matter of law, have committed an offense.

[00:08:40] Speaker 01:
OK, can you show me in gray or blue where that argument is made about the 158 days, and he couldn't have committed that offense, et cetera, et cetera?

[00:08:58] Speaker 03:
I'm just going to confirm, Your Honor, but I don't think there was any discussion in the blue brief

[00:09:04] Speaker 03:
about the day computation.

[00:09:08] Speaker 03:
We were simply stressing that when you read this regulation, you cannot read that regulation without reading the statute.

[00:09:18] Speaker 03:
And when you read the statute and you see the criteria in the statute,

[00:09:22] Speaker 03:
You can't apply 3.12D1 to the facts of this case.

[00:09:28] Speaker 03:
And that rests on an interpretation of both.

[00:09:32] Speaker 03:
And that's what we tried to bring before the Veterans Court to say to the Veterans Court, you have to examine how these two interact.

[00:09:40] Speaker 03:
We did not get into the weeds in our briefing here.

[00:09:45] Speaker 03:
about the day computation, simply because it is on its face in the statute.

[00:09:52] Speaker 03:
And the undisputed facts here are that he didn't meet the statutory requirements for the loss of his DA benefits.

[00:10:03] Speaker 03:
Had he met that qualification, then this

[00:10:08] Speaker 03:
action by the Secretary would have been brought under the statutory bars in 3.12C, which is where they are outlined.

[00:10:18] Speaker 03:
And within 3.12C, we see that there is a bar for unauthorized absences of more than 180 days.

[00:10:28] Speaker 02:
Mr. Carpenter, looking at your Q request before your client's Q, looking at the Q request before the RO to pages 8, 37 to 42, what do you rely on there to show that Mr. Perez's lawyer asserted that section 3.12D is inconsistent with statutory provision 5303?

[00:10:52] Speaker 03:
I'm sorry, could you give me the page number again?

[00:10:56] Speaker 02:
It's at A37 to 32.

[00:10:58] Speaker 03:
I believe

[00:11:05] Speaker 03:
It begins at the bottom of Appendix 39, where we then on 40, Appendix 40, cite the full text of the statute and specifically assert that the record before the VA in April of 2013 lacked a basis in law or fact for the finding that Mr. Perez's discharge under other than honorable conditions was considered to be a bar under 3.12D.

[00:11:35] Speaker 03:
there is no bar under 3.12 D for a unauthorized absence of 180 days or more.

[00:11:46] Speaker 03:
That bar appears in C. But you've gone beyond what's said here.

[00:11:52] Speaker 02:
I mean, I hear what you're saying.

[00:11:53] Speaker 02:
I truly appreciate your argument.

[00:11:56] Speaker 02:
My concern I'm having is that I'm having a hard time seeing what you're saying here on page A40 or A39.

[00:12:06] Speaker 03:
um... so uh... but what you're looking at that page forty one we offer proposed findings of fact and it's specifically says in proposed finding a fact one mister presses period of unauthorized absence from march five to august ten was only and that's bolded and highlighted for one hundred and fifty eight days uh... i

[00:12:34] Speaker 03:
It is probably an error on my part to assume or to have assumed what I believe is the obvious connection.

[00:12:42] Speaker 03:
You either have a qualifying offense of AWOL or, excuse me, unauthorized absence of 180 days or more, or you don't.

[00:12:53] Speaker 03:
If you do, it's under 3.12C, which is not what the Secretary relied upon.

[00:13:00] Speaker 03:
The Secretary specifically relied upon 3.12D1.

[00:13:06] Speaker 03:
And D1 would work if there was a discharge that was an offense.

[00:13:18] Speaker 03:
But I am hard pressed to understand

[00:13:21] Speaker 03:
how my client violates the intent of this regulation to revisit discharges that didn't have an underlying qualifying offense.

[00:13:35] Speaker 03:
Because the examination, the purpose is to determine whether that discharge should have been considered under dishonorable conditions.

[00:13:44] Speaker 03:
under the statute, it would have been under dishonorable conditions because it's an absolute statutory bar that had he been AWOL for what would have been 28 more days, then that would have been a bar and 3.12 would have never come into play.

[00:14:08] Speaker 01:
What about our case in Crawford, where we said we're not limited to the statutory language to which the regulatory provision can go beyond that?

[00:14:23] Speaker 01:
And providing for the ability of them and regulations provide for additional situations which a former service member is considered to sign up for just

[00:14:41] Speaker 03:
I want to make sure we're talking about the same case now.

[00:14:44] Speaker 03:
Sure.

[00:14:45] Speaker 03:
We both, I think, said Crawford, and I'm looking at Craniford.

[00:14:50] Speaker 01:
Crawford, Cranford.

[00:14:51] Speaker 01:
I'm sorry.

[00:14:52] Speaker 01:
I'm so sorry.

[00:14:53] Speaker 01:
Cranford.

[00:14:54] Speaker 01:
OK.

[00:14:54] Speaker 01:
At 52 for 22.

[00:14:55] Speaker 03:
OK.

[00:14:58] Speaker 03:
The difference is, Your Honor, there that as the opinion said, the only question before us is one of interpretation, whether

[00:15:11] Speaker 03:
Those who accept an OTH or otherwise than honorable discharge in lieu of a general court martial are barred from receiving benefits, meaning an undesirable discharge.

[00:15:29] Speaker 03:
Those are not the facts in this case.

[00:15:33] Speaker 03:
Those were not the facts before the agency in the first instance.

[00:15:36] Speaker 03:
They weren't the facts before the board when they reviewed it.

[00:15:39] Speaker 02:
Just to be clear, though, we're not supposed to be looking at the facts like that in this case.

[00:15:42] Speaker 02:
We're being asked to look at a legal question.

[00:15:47] Speaker 03:
Absolutely, Your Honor, but this court's case law is very clear that it is permissible to look at the facts when the facts are not in dispute.

[00:15:56] Speaker 03:
They are not, they're not capable of dispute.

[00:16:00] Speaker 03:
He was only under unauthorized absence for 150 days.

[00:16:04] Speaker 02:
You're saying you're presenting a different question than what's in Cranford.

[00:16:08] Speaker 01:
Absolutely, Your Honor.

[00:16:28] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:31] Speaker 00:
We respectfully request that this Court dismiss this appeal for lack of jurisdiction.

[00:16:36] Speaker 00:
This Court has long held that each new theory of Q is a distinct matter and needs to be raised in the first instance before the VA regional office.

[00:16:45] Speaker 00:
This doctrine presents a problem for Mr. Perez because his appeal presents an argument rest upon a completely new theory than the one that underpins his Q request.

[00:16:58] Speaker 01:
Well, where is it?

[00:16:59] Speaker 02:
Yeah, so page A41 with the proposed findings in fact, and page A40, I think that those were the pages.

[00:17:08] Speaker 02:
And A39 were primarily relied on.

[00:17:11] Speaker 02:
Could you walk through those?

[00:17:12] Speaker 01:
Yeah, well, ironically, even though I didn't see the argument for 180 days in his briefing to us, it seems like he did raise this issue of 158 days versus 180 days in his Q.

[00:17:26] Speaker 01:
I don't see it in the briefing before us, so what's your view of that?

[00:17:30] Speaker 00:
A couple of things, Your Honor.

[00:17:32] Speaker 00:
So to be clear, the arguments before this court involves an inconsistency between the statute and the regulation.

[00:17:38] Speaker 00:
The statute requires an actual discharge via court-martial.

[00:17:49] Speaker 00:
whereas the regulations don't specifically require that.

[00:17:53] Speaker 00:
And so Mr. Perez contends that the VA and the Veterans Court failed to grapple with this inconsistency.

[00:18:00] Speaker 00:
That discussion of inconsistency is not on any of the pages that Your Honor is looking at in the queue request.

[00:18:09] Speaker 00:
Regarding this issue,

[00:18:13] Speaker 00:
involving the length of the unauthorized absence.

[00:18:17] Speaker 00:
That's not an issue that the regional office decided when they denied his request for benefits.

[00:18:23] Speaker 00:
They denied his request for benefits specifically under 38 CFR 3.12 D.1.

[00:18:29] Speaker 00:
And D1 states that a dishonorable condition involves an acceptance of an undesirable discharge to escape trial by General Court Marshall.

[00:18:42] Speaker 00:
And that's exactly what Mr. Perez did.

[00:18:44] Speaker 00:
He accepted discharge in order to escape General Court Marshall.

[00:18:48] Speaker 01:
So what would he have had to raise in the original QTAC plan?

[00:18:52] Speaker 00:
Well, it would be one that reflects the arguments here, that there's some sort of inconsistency.

[00:18:57] Speaker 00:
We can actually look at what he raised before the board, which does- Can we look at this page, page A41?

[00:19:02] Speaker 02:
And, specifically, there's, uh,

[00:19:08] Speaker 02:
The proposed findings of fact one, two, three.

[00:19:11] Speaker 02:
One is talks about the 158 days.

[00:19:14] Speaker 02:
Two is that, you know, talks about, you know, how the statute requires at least 180 days.

[00:19:21] Speaker 02:
And three involves section 3.12D and says that there is no basis in fact for this to apply, presumably because of the 158 days versus 180 days.

[00:19:34] Speaker 02:
So why shouldn't I read that to be saying

[00:19:38] Speaker 02:
that the statute and the regulation are inconsistent?

[00:19:42] Speaker 00:
Well, Your Honor, because it doesn't say that.

[00:19:44] Speaker 00:
It doesn't discuss inconsistency.

[00:19:45] Speaker 00:
This court just decided in Percival that when a claimant is filing a pro seque request, we can read that liberally and give the claimant the benefit of the doubt.

[00:19:58] Speaker 00:
This was drafted or filed by the same counsel of record

[00:20:02] Speaker 00:
is handling the appeal, so we can't afford this some liberal construction.

[00:20:07] Speaker 00:
It simply does not discuss the issue that the regulation impermissibly goes beyond the statute.

[00:20:15] Speaker 02:
What's a minimum that it could have said here?

[00:20:18] Speaker 02:
I mean, I presume, I mean, you're saying it had to expressly say the statute and the regulation are inconsistent.

[00:20:27] Speaker 00:
I think, at a minimum, it should say that the statute and the regulation are inconsistent.

[00:20:31] Speaker 00:
And it simply doesn't do that.

[00:20:32] Speaker 00:
Instead, what it does on page 38 and 39 is it lists the five different subsections of 3.12 and then, in conclusory fashion, states that Mr. Perez doesn't fall into any of those.

[00:20:47] Speaker 00:
Of course, if we look at page 38, the first one is acceptance of an undesirable discharge to escape trial by General Court Marshall.

[00:20:54] Speaker 00:
And that is exactly what Mr. Perez did.

[00:20:57] Speaker 00:
it squarely applies to the facts of this case.

[00:21:00] Speaker 00:
So this whole discussion about the number of days that he had an unauthorized absence, it is totally peripheral to the issue that the RO decided here.

[00:21:13] Speaker 00:
While the number of days is important under the statute, this court in Garvey decided very clearly that the VA has

[00:21:24] Speaker 00:
permissibly gone beyond the statute when it defines what it means to have a dishonorable discharge.

[00:21:29] Speaker 02:
What do you think is being argued here in this Q provision at page A41?

[00:21:32] Speaker 02:
Is it that there's no way he could have accepted an undesirable discharge as a matter of fact because he wasn't even qualified for that kind of an undesirable discharge under file 303A because he was not absent for 180 days?

[00:21:51] Speaker 02:
Do you think that's what the allegation is there?

[00:21:54] Speaker 00:
again your honor it's difficult to discern what's being said in his Q request I don't see

[00:22:08] Speaker 00:
the specific point about the inconsistency between the statute and the regulation.

[00:22:13] Speaker 00:
At the time that Mr. Perez drafted this Q request, or filed this Q request, he knew that the regional office decided his claim under 3.12D1.

[00:22:23] Speaker 00:
Again, D1 is acceptance of an undesirable discharge in order to avoid a general court martial.

[00:22:28] Speaker 00:
So he knew that the basis for his bar to benefits

[00:22:34] Speaker 00:
was this acceptance of a discharge.

[00:22:39] Speaker 00:
So him bringing up the AWOL period of 158 doesn't address the basis of the RO's decision.

[00:22:58] Speaker 01:
our case law is clear in Cranford or whatever, that the regs can go beyond the statute.

[00:23:04] Speaker 01:
So even if we construe his CUB claim to be saying, they went beyond the statute, because this wasn't 180 days, and they couldn't do that, implicitly saying, even if the reg allows them to do that, they can't do that on the reg, because it exceeds what the statute says.

[00:23:22] Speaker 01:
And that's been addressed as a legal issue, because it

[00:23:25] Speaker 00:
Exactly right, Your Honor.

[00:23:27] Speaker 00:
With the one caveat that there's also the waiver issue, this wasn't raised at the Veterans Court.

[00:23:32] Speaker 00:
But even if this court were to go beyond both the jurisdiction issue and the waiver issue and address the merits, number one, it's not even whether this honorable court believes that this regulation is valid.

[00:23:45] Speaker 00:
It's whether at the time that this original claim was adjudicated,

[00:23:49] Speaker 00:
was there clear and unmistakable error in applying this regulation and there was nothing absolutely nothing suggests that the straightforward application of that valid contained clear unmistakable error so even if this court were to for some reason believe that this this regulation was invalid and because of Garvey it would be taken en banc but it wouldn't even matter because

[00:24:20] Speaker 01:
We saw that here.

[00:24:23] Speaker 00:
There are several avenues.

[00:24:24] Speaker 00:
Because this is a question of law, this court could decide this regulatory statutory interpretation interplay.

[00:24:30] Speaker 00:
But again, that would be assuming that this court has jurisdiction and the government's position.

[00:24:35] Speaker 00:
I should note, Your Honor, our brief asked principally to affirm the decision of the Veterans Court.

[00:24:40] Speaker 00:
Upon further consideration of this issue, we would now principally ask that this court dismiss for lack of jurisdiction or an alternative.

[00:24:47] Speaker 01:
Tell us again.

[00:24:48] Speaker 01:
The jurisdictional question rests on the fact that he did not preserve this in his original QK.

[00:24:54] Speaker 00:
Exactly right, Your Honor.

[00:24:54] Speaker 01:
And what is it he did not preserve?

[00:24:57] Speaker 01:
The challenge to the reg is going beyond what the statute requires?

[00:25:01] Speaker 02:
That's exactly right, Your Honor.

[00:25:01] Speaker 02:
That they're inconsistent.

[00:25:03] Speaker 01:
That's right.

[00:25:03] Speaker 02:
Now, can I ask you, at this point, this is a question kind of outside the case, but I'm just wondering, can Mr. Perez go to the corrections board to change the characterization of his service from other than honorable?

[00:25:19] Speaker 02:
per section 3.112e.

[00:25:26] Speaker 00:
Although I'm hesitant to answer, because it's not something that I'd discuss.

[00:25:29] Speaker 02:
I've just seen it in other cases.

[00:25:30] Speaker 02:
It's romantic.

[00:25:31] Speaker 00:
I believe he could challenge it through a corrections board, hit the character of a discharge.

[00:25:38] Speaker 00:
What he could do, certainly, is file a cute claim that actually raises this inconsistent allegation.

[00:25:44] Speaker 00:
He can do that at any time.

[00:25:45] Speaker 00:
So he has other avenues to present the claims that were not properly preserved for this court's decision.

[00:25:52] Speaker 01:
And a cute claim would have to say what?

[00:25:55] Speaker 00:
The Q claim would argue, basically we could copy and paste what is in the appeal, which is that there's the statutes, and there's the regulation, and the regulation goes beyond the statute, and there's an inconsistency there that was that.

[00:26:12] Speaker 01:
Well, the problem I have is that the QK claim is more specific and more clarified, in my view, than the briefing here.

[00:26:20] Speaker 01:
Because at least in the QK, he seems to identify

[00:26:23] Speaker 01:
what the inconsistency was, but I didn't get that from his briefs, so I don't know what to do with that.

[00:26:33] Speaker 01:
I mean, would you agree with what I just said?

[00:26:35] Speaker 00:
Well, again, I don't read the Q-Request as raising an inconsistency argument.

[00:26:44] Speaker 00:
What I do read at the Q-Request as saying that the statute doesn't apply because he was under the 180-day threshold.

[00:26:53] Speaker 00:
But again, that has nothing to do with the actual regional office decision, which was based upon an acceptance of undesirable discharge and not based upon any length of day of his unauthorized absence.

[00:27:09] Speaker 00:
So I would respectfully disagree that the Q request is any clearer.

[00:27:14] Speaker 00:
I believe they're both difficult to both reconcile and understand in the first instance.

[00:27:19] Speaker 00:
But again, Your Honor, if this Court is inclined to reach the merits, this issue was squarely decided in Garvey, in which this Court decided that the VA can promulgate regulations to define what it means to have dishonorable conditions of discharge.

[00:27:41] Speaker 00:
And so for that reason, the regulations are valid today, and they were most certainly valid back in 2013 when the VA adjudicated this claim in the first instance.

[00:27:51] Speaker 00:
And if there are no further questions, Your Honor, we would rest on our briefs.

[00:27:54] Speaker 01:
Thank you.

[00:28:06] Speaker 03:
Is very frustrating to articulate a

[00:28:11] Speaker 03:
allegation of clear and unmistakable error, where this court has put the burden on attorneys to be precise, I'm not sure how I could have been any more precise in the allegation.

[00:28:24] Speaker 03:
I agree that my briefing... Are you talking about the Q claim or your briefing?

[00:28:27] Speaker 03:
The Q claim.

[00:28:28] Speaker 03:
No, the Q claim, not the briefing.

[00:28:30] Speaker 01:
I accept responsibility.

[00:28:32] Speaker 01:
Don't you have to press that clearly?

[00:28:34] Speaker 01:
I mean, you're on appeal here on the Q claim.

[00:28:36] Speaker 01:
And you don't even mention, I mean, if the gravellment of your, if you're saying your accrued claim is clear, you're saying because you said they didn't meet the 100-A threshold of the statute, therefore they can't use the regulation because the regulation is inconsistent with the statute.

[00:28:52] Speaker 01:
if that's the way you had it read it.

[00:28:54] Speaker 01:
That argument is made on appeal.

[00:28:56] Speaker 03:
But Your Honor, what was decided below was, is that Judge Greenberg would not address the statutory and regulatory interpretations that were requested to be reviewed.

[00:29:08] Speaker 03:
He said, I wouldn't do that.

[00:29:10] Speaker 03:
He wasn't satisfied that I had persuaded him that there was need.

[00:29:15] Speaker 03:
I am here to try to persuade this court that there is need.

[00:29:19] Speaker 03:
But let me go back to the fundamentals of Q. An allegation of Q is that a statute or a regulation was not correctly applied.

[00:29:30] Speaker 03:
Not that it was invalid, but it wasn't correctly applied.

[00:29:34] Speaker 03:
And that's precisely what was alleged, and that's precisely what happens here as a matter of law.

[00:29:41] Speaker 03:
The VA could not use 3.12D1

[00:29:47] Speaker 03:
to review whether his discharge because he was UA for 158 days was to be considered dishonorable.

[00:29:59] Speaker 03:
The only way it can be considered dishonorable as a matter of law is under 5103A for a UA more than 180 days.

[00:30:12] Speaker 03:
He did what he was required to do.

[00:30:14] Speaker 03:
What the government asked this court to do is to dismiss this because I didn't plead it right.

[00:30:20] Speaker 03:
I'm going to go back and plead it again and try to make it more clear that I made it, and then I'm going to have to go through the lengthy litigation to get back here all over again to address the exact same issue.

[00:30:35] Speaker 03:
The issue of invalidity that the government keeps harboring about is a red herring.

[00:30:39] Speaker 03:
There is nothing inherently invalid about 3.12d1, but it is a clear and unmistakable error to use 3.12d1 when the applicable reg was 3.12c.

[00:31:01] Speaker 02:
At the risk of frustrating you further, I just want to ask one question, which is about Mr. Perez's options to go to the Corrections Board.

[00:31:10] Speaker 02:
Given his circumstances, he seems like he could be a candidate for that.

[00:31:14] Speaker 03:
Absolutely not, Joanne.

[00:31:15] Speaker 03:
Because they can't change the fact that his discharge was under other than honorable conditions.

[00:31:22] Speaker 03:
because he couldn't get an honorable discharge because almost all of his time in service was on unauthorized absence.

[00:31:35] Speaker 03:
It's noteworthy that in this decision that he's attacking for Q, the VA actually decided, even though he had a very limited number of days in actual on active duty service, that they would allow him

[00:31:49] Speaker 03:
care by the VA.

[00:31:51] Speaker 03:
In this same decision, they granted him care for medical purposes under the provision that's available.

[00:31:59] Speaker 03:
But what they don't want to do is to run the risk of having the opportunity for him to just present a claim.

[00:32:06] Speaker 03:
They haven't even adjudicated his claim.

[00:32:09] Speaker 03:
He could adjudicate his claim and be denied, and that would be the end of it unless he appealed that and was able to establish that no, he in fact had a resulting disability.

[00:32:21] Speaker 01:
Thank you.

[00:32:22] Speaker 01:
Thank you very much.