[00:00:00] Speaker 01:
Our last case this morning is Annette Hurley v. Secretary of Veterans Affairs, 2024-1387.

[00:00:07] Speaker 01:
Mr. Davis.

[00:00:08] Speaker 01:
Thank you, Your Honor.

[00:00:12] Speaker 04:
May it please the Court.

[00:00:13] Speaker 04:
Your Honor, my primary focus today is going to be on the language and context of the rule for willful misconduct and how

[00:00:20] Speaker 04:
That language and context demonstrates that the VA enacted a punitive measure aimed at punishing conduct that merited a dishonorable discharge.

[00:00:31] Speaker 04:
This is why the relevant probable consequences are those probable consequences of a dishonorable discharge.

[00:00:37] Speaker 04:
And this is also why, similar to other punitive measures, there's an element of immoral intent in the standard.

[00:00:43] Speaker 01:
Time for minutes.

[00:00:44] Speaker 01:
Council, why shouldn't we amend this?

[00:00:47] Speaker 01:
Because the regulations have changed.

[00:00:50] Speaker 04:
I think the regulations at issue in this case have not changed, Your Honor.

[00:00:54] Speaker 04:
This case involves the definition for willful misconduct, which was not changed last year when the VA changed the standard for willful and persistent misconduct.

[00:01:04] Speaker 00:
In fact, in the... So Counsel, does the amended version of 38 CFR Section 3.12 apply to Ms.

[00:01:11] Speaker 00:
Hurley's application for benefits?

[00:01:13] Speaker 04:
If the case were remanded, my understanding is she would have the benefit of the doubt as to the two different standards, so she could have either one applied, whichever would be better for her.

[00:01:25] Speaker 01:
Well, do you want to win an argument, or do you want to benefit the client?

[00:01:29] Speaker 01:
If she gets to benefit another compelling circumstances exception, why isn't that to her benefit?

[00:01:41] Speaker 04:
I think it's not to our benefit because, one, there are elements of the new standard that are more difficult.

[00:01:46] Speaker 04:
The part of persistence is more difficult.

[00:01:50] Speaker 04:
to fully win on character of discharge and get benefits all the way back to her date of onset.

[00:01:58] Speaker 04:
She may need to win under the old standard.

[00:02:00] Speaker 04:
I didn't get into too much depth on it in the briefing, but the way the VA processes character of discharge cases is also incredibly complex.

[00:02:09] Speaker 04:
And normally, what they do is they actually, even when you win on character of discharge, you have to submit a new claim.

[00:02:16] Speaker 04:
So she's not necessarily

[00:02:20] Speaker 04:
If the case were remanded and she wins, even under the VA standard practice, she would then normally have to file a new claim.

[00:02:28] Speaker 04:
So I don't think she's actually benefited by simply obtaining a remand.

[00:02:35] Speaker 04:
I do think in cases like the SKF case, this court has looked at its discretion to remand and has indicated

[00:02:44] Speaker 04:
when there's sort of, even though Chevron's no longer good law, when there's some sort of interpretation that's necessary by the court, that's not necessarily a reason to the case may not be appropriate to remand.

[00:02:56] Speaker 00:
And in this case, there's- What relief are you seeking from us?

[00:02:59] Speaker 00:
We're suggesting that remand might be an option.

[00:03:02] Speaker 00:
What relief are you seeking?

[00:03:04] Speaker 04:
We don't object to a remand.

[00:03:07] Speaker 04:
However, we do believe that the court should construe the standard for willful misconduct in 38 CFR 3.1n.

[00:03:15] Speaker 04:
I do believe that that is a specific definition.

[00:03:18] Speaker 04:
In the VA's recent rulemaking change, it specifically noted that that existing definition continued to apply.

[00:03:28] Speaker 04:
And I do believe that that standard does target the probable consequences of a dishonorable discharge.

[00:03:36] Speaker 04:
And you can see that in the Garvey case, this court indicated that while the standard, the VS discretion in this area comes from the discretion to describe a discharge under dishonorable conditions.

[00:03:49] Speaker 04:
And in the Garvey case, this court indicated that it's not the exact same as a dishonorable discharge, but that that core concept was well known and indicates that it does link to a dishonorable discharge.

[00:04:05] Speaker 04:
When the court, when the VA is defining disregard for the probable consequences, it is talking about that nature of issue, misconduct that sort of is of that level.

[00:04:19] Speaker 04:
And you can see that in some of the other types of issues that create a bar.

[00:04:24] Speaker 04:
So for example, mutiny, spying, these are all very severe standards of misconduct.

[00:04:33] Speaker 04:
even an AWOL of 180 consecutive days doesn't necessarily create a barter benefit, it can be excused by compelling circumstances.

[00:04:44] Speaker 04:
And so you have the VA and its standard, or in this case Congress actually for the AWOL, and the standard clearly indicating a desire to select the correct measure of punishment for the offense.

[00:05:00] Speaker 04:
And we also see that because

[00:05:02] Speaker 04:
In the case of injuries that come from willful misconduct, there's approximate cause link.

[00:05:07] Speaker 04:
So even if you commit willful misconduct, it has to approximately cause the specific injury.

[00:05:13] Speaker 04:
And in the case of even a fully dishonorable discharge, will not necessarily create a bar of benefits, because if the person was insane at the time of the misconduct, the bar doesn't apply.

[00:05:27] Speaker 04:
So in this way, you have a clear standard

[00:05:30] Speaker 04:
that's aimed at punishing a certain level of misconduct.

[00:05:34] Speaker 04:
And that's the probable consequences they're looking at is the probable consequence of a dishonorable discharge or at least something of comparable level of severity.

[00:05:43] Speaker 04:
It's something that truly deserves that level of punishment.

[00:05:48] Speaker 02:
Can I ask you this question?

[00:05:50] Speaker 02:
So this language of knowledge of or wanton and reckless disregard of its probable consequences

[00:06:00] Speaker 02:
I understand how central or important, intuitively sensible that is in the context, which is not this context, not character discharge, but in the willful discontent where the question is whether the injury that you're complaining about was the result of that.

[00:06:26] Speaker 02:
And so the question is about getting drunk

[00:06:30] Speaker 02:
deliberativeness of that, where you're talking about probable consequences being the physical consequences of the act taken.

[00:06:41] Speaker 02:
Can we or the Veterans Court talk about probable consequences to mean legal consequences?

[00:06:53] Speaker 02:
That is, predicting what a

[00:06:57] Speaker 02:
legal decision maker would decide.

[00:07:01] Speaker 02:
It seems a different kind of thing from the normal feasibility.

[00:07:09] Speaker 04:
I do believe it is a different kind of inquiry.

[00:07:12] Speaker 04:
I think it's a similar inquiry.

[00:07:13] Speaker 04:
I think the VA has indicated that it's the same rough standard.

[00:07:18] Speaker 04:
I don't know.

[00:07:20] Speaker 04:
It is a factual analysis in the sense of what the punishment deserved, what punishment was deserved, such as guilt or innocence.

[00:07:31] Speaker 04:
Or did your conduct rise to that level?

[00:07:34] Speaker 04:
And Your Honor, you mentioned the standard on intoxication.

[00:07:39] Speaker 04:
And I think there are a couple examples

[00:07:46] Speaker 04:
Of the specific rules on willful misconduct in the context of injury in 38 CFR 3.301 C2, it talks about the intoxicating beverages.

[00:08:00] Speaker 04:
And there is approximate cause part of that.

[00:08:02] Speaker 04:
But there's also a requirement that it's drinking to enjoy the intoxicating effect.

[00:08:11] Speaker 04:
and then an injury that comes after that.

[00:08:13] Speaker 04:
So they're clearly are looking at punishing not drinking to celebrate a wedding, not drinking socially.

[00:08:20] Speaker 04:
There is a clear intent element of enjoying the intoxicating effect.

[00:08:24] Speaker 04:
In this case, intoxication means the loss of control and approximate calls after that.

[00:08:31] Speaker 04:
So I do think it's, in the case of the probable consequences, that is a similar inquiry of,

[00:08:38] Speaker 04:
Are you risking getting punished by dishonorable discharge?

[00:08:42] Speaker 04:
Is it in that realm of punishment?

[00:08:45] Speaker 04:
And it would be, I think it is an inquiry that a court or judicial decision maker would be in position to make, because it can look at the severity of the misconduct.

[00:09:00] Speaker 04:
how it actually was handled, how the person risked whatever happened, I would say in a lot of cases, there is no risk of a dishonorable discharge.

[00:09:09] Speaker 04:
There is no risk.

[00:09:11] Speaker 04:
I don't want to get into the facts, but there are certain types of misconduct for which there is no risk that a person is ever going to be

[00:09:19] Speaker 04:
prosecuted through a general court martial and receive a dishonorable discharge.

[00:09:24] Speaker 04:
And that is the intent of the rule.

[00:09:27] Speaker 04:
The legislative history we cited, and it's also cited in Garvey, the intent of the rule was to capture people who were supposed to get a dishonorable discharge but did not.

[00:09:38] Speaker 04:
I'd also like, in transitioning a little bit to immoral intent,

[00:09:45] Speaker 02:
uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:10:10] Speaker 02:
during the service were punishable at court martial by imprisonment and the issuance of a punitive discharge.

[00:10:19] Speaker 02:
You have not contested that here.

[00:10:23] Speaker 02:
Is that right?

[00:10:24] Speaker 04:
That is a factual issue.

[00:10:25] Speaker 04:
Almost every offense under the UCMJ could potentially result

[00:10:30] Speaker 04:
in a punitive discharge.

[00:10:32] Speaker 04:
A court martial actually is a court martial that's reserved for minor misconduct.

[00:10:36] Speaker 04:
It's a summary court martial.

[00:10:38] Speaker 04:
So no, we have not contested that some of the offenses could have been punished in that way.

[00:10:45] Speaker 04:
The issue is, would they have been punished that way?

[00:10:48] Speaker 04:
Is it likely?

[00:10:49] Speaker 04:
And was she reckless as to that responsibility?

[00:10:53] Speaker 02:
And just to try to return to the question I asked you before,

[00:11:00] Speaker 02:
I'm just going to use that term.

[00:11:04] Speaker 02:
The probable consequences in the query being something about the probable reaction of a legal decision maker as opposed to the probable physical consequences.

[00:11:17] Speaker 02:
What case law is there that talks about the use of that kind of terminology where the consequence is a prediction of a legal decision maker's decision?

[00:11:31] Speaker 04:
In terms of a legal decision maker's decision, I'm not familiar with any case law.

[00:11:36] Speaker 04:
But it does talk about the consequence of the factual occurrence.

[00:11:41] Speaker 04:
In this case, there is a factual occurrence of whether you would receive a dishonorable discharge.

[00:11:47] Speaker 04:
That is an event that would happen or not happen.

[00:11:51] Speaker 04:
That is a determination that would be made.

[00:11:55] Speaker 04:
My understanding of those kind of determinations is that they are factual determinations.

[00:12:00] Speaker 04:
You receive a dishonorable discharge.

[00:12:03] Speaker 04:
Your misconduct is punished in that measure.

[00:12:05] Speaker 04:
You receive a one-year sentence.

[00:12:07] Speaker 04:
You receive a felony conviction.

[00:12:09] Speaker 04:
You are found guilty.

[00:12:10] Speaker 04:
The law is applied to find that fact.

[00:12:15] Speaker 04:
But it is a factual determination in terms of the appropriate level of punishment.

[00:12:23] Speaker 01:
And Your Honor, you're into your rebuttal.

[00:12:25] Speaker 01:
You can continue if you wish, or save it, of a combination thereof.

[00:12:30] Speaker 04:
I would like to do two quick points, Your Honor.

[00:12:36] Speaker 04:
So my first point would be that

[00:12:39] Speaker 04:
I don't think I've touched enough on the moral intent requirement of the standard.

[00:12:44] Speaker 04:
There is a clear requirement for moral intent.

[00:12:48] Speaker 04:
One of the ways that's shown is on the history of the standard for venereal disease as a piece of willful misconduct.

[00:12:56] Speaker 04:
If you look back at the 1931 attorney general,

[00:13:01] Speaker 04:
Decision or guidance the attorney general indicated that in trying to look at what the standard meant they he found two ways that produced light on it one was a Injury to avoid military service clear intent

[00:13:20] Speaker 04:
The other was venereal disease.

[00:13:23] Speaker 04:
If we think back on where morality might have been 100 years ago, we can kind of understand the intent that was being punished.

[00:13:30] Speaker 04:
Similarly, in the section of 38 CFR 3.65 cited by the secretary,

[00:13:36] Speaker 04:
At that point, it was already changing to not consider venereal diseases willful misconduct.

[00:13:42] Speaker 04:
And at that point, the secretary indicated that if the person was required to report it, they would have to show that it was actually innocent intent that had created the venereal disease.

[00:13:54] Speaker 04:
And now, if you look at the current section of 38 CFR 3.301, the venereal disease is not in moral intent because more

[00:14:02] Speaker 04:
is not willful misconduct because that intent, the conception of intent has changed.

[00:14:05] Speaker 04:
Thank you.

[00:14:08] Speaker 01:
We will save the remainder of your time.

[00:14:10] Speaker 01:
Mr. Golden.

[00:14:26] Speaker 03:
Good morning.

[00:14:27] Speaker 03:
Thank you, Your Honour.

[00:14:28] Speaker 03:
May it please the Court?

[00:14:29] Speaker 03:
I'd start by just addressing some of the questions the Court had for Appellants' Council, beginning with the question about whether the regs have changed, whether remand is appropriate in this case.

[00:14:39] Speaker 03:
And the regs have changed.

[00:14:40] Speaker 03:
I mean, 3.12 has had a new issue come out, a new version last year, effective in, I believe, July of last year at this point.

[00:14:48] Speaker 03:
That regulation, and this is on a federal regulation

[00:14:52] Speaker 03:
I believe it's 89.

[00:14:53] Speaker 01:
He can choose how to represent as counsel.

[00:14:57] Speaker 01:
And if he thinks remand for the benefit of the new regulation is less advantageous than winning on his issue, that's his choice, right?

[00:15:08] Speaker 03:
That is his choice.

[00:15:09] Speaker 03:
He can choose how to present his case as he wants.

[00:15:11] Speaker 03:
We're just answering the question as to whether or not the new regulations apply in this case.

[00:15:14] Speaker 03:
And when the new rule came out, we just point the court to 89-fed-fedge.

[00:15:19] Speaker 03:
32361, which states that this rule applies to any case pending before the United States Court of Appeals for the Federal Circuit.

[00:15:27] Speaker 03:
So it does apply to this case.

[00:15:29] Speaker 02:
So can I just ask?

[00:15:30] Speaker 02:
I mean, it seems to me there's one possibility is remand without deciding the issues he's presented.

[00:15:37] Speaker 02:
A second possibility is decide the issues he's presented and then remand for any change.

[00:15:44] Speaker 02:
And so there are two different kinds of remands.

[00:15:48] Speaker 02:
It seems to me, at least one question I would like to know, to the extent that you can state your position on this, I'd be most interested.

[00:15:57] Speaker 02:
Suppose that Ms.

[00:16:01] Speaker 02:
Hurley does or would prevail under the new circumstances.

[00:16:11] Speaker 02:
Would that be retroactive to the date of her current claim

[00:16:17] Speaker 02:
Or is that going to be limited in some way, either by a requirement of filing a new claim that doesn't seem quite right under the language of the new regulations saying it applies to cases that are pending here in the Federal Circuit.

[00:16:37] Speaker 02:
But under statute 38 of C-5110,

[00:16:43] Speaker 02:
Would this be a situation where there's been a liberalizing change in law so that the date of actual benefits would be adversely effective?

[00:16:59] Speaker 03:
Yes, Your Honor.

[00:17:01] Speaker 03:
First of all, just to clarify, so in both these scenarios, the court is remanding the case rather than just affirming and therefore dismissing the appeal, because that has its third possible consequence in terms of potential effective dates.

[00:17:13] Speaker 02:
And then presumably there would be a new claim.

[00:17:16] Speaker 03:
Exactly.

[00:17:17] Speaker 03:
So in that scenario where there's a new claim, of course, under she could try and bring a claim to you, as her counsel has pointed out, she could try and relate it back to the prior claim.

[00:17:26] Speaker 03:
But I'm not certain whether that would be possible if there was a final decision.

[00:17:29] Speaker 03:
And in that situation, if she's arguing for liberalizing law, the statute precludes her to either the date of the liberalizing law or one year before the claim is brought.

[00:17:38] Speaker 03:
At this point, it would be one year before because we've been more than a year.

[00:17:42] Speaker 02:
Right, so address the situation of remand even after we decide, let's just by assumption, reject preferential challenges.

[00:17:54] Speaker 02:
But remand, so it's still the same claim, if she prevailed under the new regulation on that claim, would the benefits go back to the day of that claim, or any later date when the onset of the issue?

[00:18:09] Speaker 03:
I believe because a claim is pending they go back to at least the date that the new law came into effect, the liberalising date of the law.

[00:18:17] Speaker 03:
The VA would have to of course look at the effective date question which is the fifth element downstream and make a decision.

[00:18:23] Speaker 03:
If the VA determined the facts existed to put the effective date before that

[00:18:28] Speaker 03:
Well, as this court's well aware, the government has limited abilities to appeal a decision of the VA that goes in the favor of the veteran.

[00:18:35] Speaker 03:
So the VA would have to look at that and decide whether this law requires it to stop.

[00:18:42] Speaker 02:
Just to make sure that we're meeting, so that you understand.

[00:18:49] Speaker 02:
My reaction to that is you just avoided the question.

[00:18:52] Speaker 02:
And that means she's entitled to have this decision because she cannot count under what you just said.

[00:18:58] Speaker 02:
on keeping her current effective date.

[00:19:02] Speaker 03:
I can't stand here and bind the VA's decision on what they'll do on the effective date.

[00:19:07] Speaker 02:
So as long as there's uncertainty, then there's truly a potential risk of our not answering the current date.

[00:19:14] Speaker 03:
There's a risk in some ways, but at the same time, Your Honor, the question would then be back before this court in that remand scenario regarding this issue if this happens where we have the exact same question come up, if the VA has determined that there is a character of service issue as of a certain date.

[00:19:32] Speaker 03:
And we don't know if the VA may determine there is none at this point.

[00:19:34] Speaker 03:
They may determine if 3.12D's change has had an effect where it now has no character of discharge issue with Ms.

[00:19:42] Speaker 03:
Hurley's claim, in which case,

[00:19:44] Speaker 03:
for the issue of how do we apply willful and persistent misconduct, which she would no longer have standing, because she would no longer have an adverse decision against her on that issue, and it would be in judicial efficiency.

[00:19:54] Speaker 03:
The reason we're, I mean, the government could be standing here saying we want affirmation, and not asking, we're the party asking for the remand, not the Palace Council.

[00:20:04] Speaker 03:
And part of the reason of that is, as I mentioned,

[00:20:07] Speaker 03:
If her claim is remanded, she has the continuous claim.

[00:20:11] Speaker 03:
She can at least look back to the date that the law went into place, which is more than a year from even if the court issued its order today affirming she could at most get a year.

[00:20:19] Speaker 03:
We're talking at this point 12 months versus 15 months.

[00:20:22] Speaker 03:
That gap may grab.

[00:20:23] Speaker 03:
It may not seem like a lot, but if she can get benefits, we want to get her the maximum she can.

[00:20:27] Speaker 03:
And that's simply why we want remand first, affirmation second.

[00:20:33] Speaker 03:
But with that said, I figure I would move on to the other questions the court had for appellants counsel just to address them.

[00:20:39] Speaker 03:
She would not need to file a new claim if this case was remanded.

[00:20:43] Speaker 03:
As the appellants counsel said, it would be a continuous claim.

[00:20:46] Speaker 03:
She would potentially have to explain and present arguments as to why she believes the compelling circumstances and now exists applies to her case.

[00:20:54] Speaker 03:
But that would be the true of any party, even if she had not been remanded when she was still before the VA, when this case came out.

[00:21:00] Speaker 03:
I think we've addressed whether 3.12 applies to confirm an appendix 14.

[00:21:04] Speaker 03:
On page 14 of the appendix, you can see that the Veterans Court is applying 3.12 to her case.

[00:21:12] Speaker 03:
So 3.12 is the applicable law as to what's happening in this case.

[00:21:17] Speaker 03:
I do want to just point out the arguments we heard on the opening discussion regarding

[00:21:23] Speaker 03:
whether or not 3.12 or 3.1n are punitive in some ways.

[00:21:29] Speaker 03:
I don't believe these arguments were presented in the briefs.

[00:21:30] Speaker 03:
I don't believe the consensus of courts below.

[00:21:32] Speaker 03:
To that extent, we would argue that they're waived.

[00:21:35] Speaker 03:
We've certainly not been preparing to discuss the punitive nature.

[00:21:39] Speaker 03:
And in any event, we would reject that argument.

[00:21:41] Speaker 03:
The language of the statute is clear.

[00:21:43] Speaker 03:
And as this court has found in the Garvey case and other cases, 3.1n allows the average person full understanding as to what will be applied to them if they engage in willful and persistent misconduct.

[00:21:54] Speaker 03:
So we don't see a punitive nature here, nor do we see an argument in the brief regarding Chevron.

[00:21:59] Speaker 03:
Chevron was not cited in the brief, nor was Loper-Brite.

[00:22:03] Speaker 03:
As far as I can tell, and I apologize if that's not correct, and as for the arguments regarding other sections that talk about willfulness conduct, that bring in questions about is it an approximate injury, is there a, I believe the insanity, these are specific exceptions

[00:22:23] Speaker 03:
and then extra requirements written into other parts of the code.

[00:22:27] Speaker 03:
They don't exist in the code that we're concerned with in this case.

[00:22:30] Speaker 03:
The Instancy does apply and the course below took factual findings on that.

[00:22:37] Speaker 03:
But what the briefs argue for and what has been argued for below was essentially what is now the compelling circumcised exception.

[00:22:44] Speaker 03:
The new 3.12e that couldn't be applied before and can be applied now.

[00:22:48] Speaker 03:
The request that she be found not to have committed willful and persistent misconduct because she was doing so in response to harassment, abuse, duress, coercion.

[00:23:00] Speaker 03:
Those words were not in the regulations until July of last year.

[00:23:05] Speaker 03:
And now they are.

[00:23:06] Speaker 03:
And we'd like a chance to basically consider that and see if we can find an opportunity to where the VA has the duty to assist when it has these sort of situations and try to assist as it can.

[00:23:19] Speaker 03:
I'd also like to talk, Judge Toronto, you had a question regarding, do the possible consequences have to be criminal in some sense?

[00:23:26] Speaker 03:
Or do they have to be?

[00:23:26] Speaker 02:
No, no, no, no.

[00:23:28] Speaker 02:
Right.

[00:23:30] Speaker 02:
I'm not quite sure what you mean by criminal.

[00:23:32] Speaker 02:
In the 38-UC-105 context about whether the injury that you've had followed from willful misconduct, the consequence that's being examined is a physical consequence of the aptitude.

[00:23:52] Speaker 02:
This doesn't seem to be that.

[00:23:54] Speaker 02:
This seems to be about whether a decision-maker, initially the

[00:24:07] Speaker 02:
probable action, which a legal decision maker would be.

[00:24:13] Speaker 02:
It's an odd fit.

[00:24:15] Speaker 02:
And so I don't think I've ever thought about that idea before.

[00:24:20] Speaker 02:
So I'm trying to get some understanding of what history there is of that application of probable consequences.

[00:24:31] Speaker 03:
Well, I think one thing we could direct the court's attention to is the McFarlane v. Shinseki case.

[00:24:36] Speaker 03:
That's 446 Fed Appendix 287 from this court in 2011.

[00:24:42] Speaker 03:
This case involved a military person who was driving over the speed limit on the wrong side of the road and was found, I don't believe it was under 3.12, but they were found to have willful misconduct.

[00:24:56] Speaker 03:
And this court in that case talked about this malum per se and this malum prohibitum.

[00:25:01] Speaker 03:
These are the two concepts that are captured by the Will from its conduct 3.1n, conscious wrongdoing, unknown prohibited action.

[00:25:10] Speaker 02:
And that's the truth.

[00:25:11] Speaker 02:
Just as you were describing, it's self-evident what probable consequences, physical consequences might be of that.

[00:25:20] Speaker 02:
What's the counterpart to that here?

[00:25:23] Speaker 02:
Being rude to?

[00:25:26] Speaker 02:
the commanding officers not showing up for a particular military duty?

[00:25:35] Speaker 03:
Well, exactly, Your Honor.

[00:25:36] Speaker 03:
Multiple times.

[00:25:37] Speaker 03:
So on Appendix 147 through 151 is the charges that was brought against Ms.

[00:25:45] Speaker 03:
Hurley.

[00:25:46] Speaker 03:
And they involve three counts of failing to go to a place of duty.

[00:25:50] Speaker 03:
They involve three counts of disobeying orders and three counts of disrespectful language.

[00:25:57] Speaker 03:
I won't repeat the language, but it's available on those appendix pages.

[00:26:00] Speaker 03:
And the board noted this was not to a single person.

[00:26:03] Speaker 03:
As we've noted, she claims that she was responding to abuse and harassment from a single individual.

[00:26:09] Speaker 03:
We'd like to consider that on remand.

[00:26:12] Speaker 03:
But to multiple persons, she made these statements and disobeyed these orders.

[00:26:17] Speaker 03:
And in that situation,

[00:26:20] Speaker 03:
As the claims court predated this court and was then later cited by the Supreme Court in the Parker v Levy case from 1974 in Justice Blackmun's concurrent

[00:26:34] Speaker 03:
there is a different standard applied in the military.

[00:26:39] Speaker 03:
So in that case, Justice Blackmun quoting from Fletcher v. United States from the Claim Court in 1891 states, we learn as law students in Blackstone, there are things which embalmments say in addition to them.

[00:26:51] Speaker 03:
things which are merely mal and prohibitum.

[00:26:54] Speaker 03:
It goes on to say, in military life, there is a higher code termed honor which holds a society to stricter accountability and is not desirable at the standard the army shall come down to the requirements of a criminal code.

[00:27:05] Speaker 03:
There are certain things which are maybe not immoral, maybe not evil, but are prohibited.

[00:27:11] Speaker 03:
And in the military, continually engaging in prohibited actions, knowingly, with reckless disregard for the consequences, as I believe Counsel for the Appellant mentioned,

[00:27:22] Speaker 03:
almost every offense in the military, if done in a certain way, could result in a punitive discharge.

[00:27:29] Speaker 03:
Reckless disregard does not require, in the statute, reckless disregard for a specific consequence, just reckless disregard for consequences, for probable consequences.

[00:27:40] Speaker 03:
Again, we point to the McFarlane case as well as that Parker v. Levy case for more guidance on that.

[00:27:49] Speaker 03:
And regarding the moral intent question just in general, I think we've briefed this sufficiently.

[00:27:52] Speaker 03:
The language just simply doesn't exist.

[00:27:55] Speaker 03:
It could have.

[00:27:56] Speaker 03:
The Army and the military could, the VA and Congress could have said it must be something done with evil intent.

[00:28:02] Speaker 03:
They didn't.

[00:28:03] Speaker 03:
And to that extent, the fact that they included mal and prohibitum, we would argue means they did not require any sort of specific evil intent.

[00:28:12] Speaker 03:
I believe I've covered all the points I wish to make in front of this Court, unless the Court has any further questions at this point.

[00:28:16] Speaker 00:
So just to wrap up.

[00:28:18] Speaker 00:
Are proposing just a vacant remand given the new law?

[00:28:23] Speaker 00:
Are you saying we should or should not weigh in on the question that they want us to weigh in on?

[00:28:27] Speaker 03:
We believe judicial efficiency and judicial restraint suggests not weighing in.

[00:28:31] Speaker 03:
For one thing, the statute has changed.

[00:28:33] Speaker 03:
And does that make a difference in how we apply it?

[00:28:36] Speaker 03:
The VA hasn't had a chance to look at that.

[00:28:38] Speaker 03:
The Veterans Court hasn't had a chance to look at that.

[00:28:40] Speaker 03:
For this court's information, there are two, and obviously the Veterans Court cases are not binding on this court.

[00:28:47] Speaker 03:
There are two situations where the Veterans Court has had a 3.12 case come before it within the last year.

[00:28:54] Speaker 03:
And in both situations, the Veterans Court has remanded for the VA to consider it because we need to understand how the ROs, how the VA personnel are going to apply these laws.

[00:29:05] Speaker 03:
Bowman v. Collins, that's, I have the Westlaw citation, 2025 WL 2374116 in that situation.

[00:29:17] Speaker 03:
What are other reasons for remand?

[00:29:18] Speaker 03:
The defense court noted that the VA has amended the regulation, applicable to all claims pending before the VA, this court, or the Court of Appeals Federal Circuit, including in compelling circumstances, and remanded for the VA to consider.

[00:29:31] Speaker 03:
And that was from August, that was just from, I think, three weeks ago.

[00:29:35] Speaker 03:
From February of this year, Cane v Collins 2025 Westlaw 615138 similarly noted that there was a lack of detail in the board's decision, but also that 3.12 had been updated, and it wasn't the board that considered both of those on remand.

[00:29:49] Speaker 03:
So we think that this report should

[00:29:51] Speaker 03:
consider allowing the VA, allowing the court of evidence claims to build an understanding of what these new terms mean.

[00:29:57] Speaker 03:
And then, if there is still an issue to be decided on this level, at that point, it would make sense.

[00:30:03] Speaker 03:
But nevertheless, our primary argument request is for a remand to the extent that the court wants to address these issues.

[00:30:08] Speaker 03:
We think affirmance is necessary because the language regarding evil intent simply just doesn't exist in the statute.

[00:30:14] Speaker 01:
Thank you, counsel.

[00:30:14] Speaker 03:
Thank you very much.

[00:30:19] Speaker 01:
Mr. Davis, you have a little more than a minute.

[00:30:22] Speaker 04:
Thank you, Your Honor.

[00:30:23] Speaker 04:
First of all, we did raise the punitive measures in the brief.

[00:30:26] Speaker 04:
We mentioned specifically it was a punitive rule that it was looking at the punishment.

[00:30:31] Speaker 04:
Secondarily, the Secretary ignores the fact that wrongdoing or known prohibitive action is distinguished at first, and then the intent element only punishes deliberate or intentional wrongdoing, not deliberate or intentional wrongdoing or known prohibitive action.

[00:30:46] Speaker 04:
wrongdoing has been defined as a malem in se.

[00:30:49] Speaker 04:
So that part of the standard only punishes, requires deliberate or intentional malem in se.

[00:30:57] Speaker 04:
That's a clear immoral intent requirement.

[00:30:59] Speaker 04:
It's in the attorney general opinions.

[00:31:01] Speaker 04:
Finally, Your Honor, I don't think the context of judging probable consequences

[00:31:08] Speaker 04:
Is that unusual in this context?

[00:31:11] Speaker 04:
Because, for example, you could say someone was reckless as to the idea of getting caught speeding.

[00:31:16] Speaker 04:
They're driving 80 in a 55.

[00:31:19] Speaker 04:
That is a fact that could be found.

[00:31:22] Speaker 04:
And so unless there are further questions, thank you.

[00:31:26] Speaker 01:
Thank you, Thompson.