[00:00:01] Speaker 03:
We have three cases under consideration this morning.

[00:00:05] Speaker 03:
Two cases have been submitted on the briefs and will be decided on the briefs.

[00:00:10] Speaker 03:
The case we have scheduled for argument this morning is B versus United States 24-2306.

[00:00:19] Speaker 03:
Mr. Clemente, you reserved three minutes of time for rebuttal, correct?

[00:00:35] Speaker 01:
Michael Clemente for Mr. B. On his fourth deployment to Afghanistan, Mr. B and his men were...

[00:00:46] Speaker 01:
On his fourth deployment to Afghanistan, Mr. B and his men were hit by multiple IED blasts that collapsed the building on top of them, killed two Marines, and left the rest seriously injured.

[00:01:01] Speaker 01:
Mr. B woke up hours later in a CT scanner with serious brain injuries.

[00:01:07] Speaker 01:
And one of the key questions today is whether those injuries left him unable to perform the duties expected of an infantry Marine.

[00:01:16] Speaker 01:
Those injuries left him with serious disabilities, erratic behavior, panic-level anxiety, causing his supervisors to tell his wife that she should hide the weapons in their home and sleep separately from him in a locked bedroom, spatial problems, difficulty using a GPS or a map, getting lost in unfamiliar surroundings, and more.

[00:01:40] Speaker 01:
The board's decision below, denying medical retirement from Mr. B, cannot stand for two main legal reasons.

[00:01:47] Speaker 01:
The first is that it did not apply the mandatory liberal consideration standard.

[00:01:51] Speaker 03:
Counsel, we've gone through the facts and the background of this case.

[00:01:57] Speaker 03:
Can you get right to the issue of the fitness determination?

[00:02:01] Speaker 01:
Yes, Your Honor, of course.

[00:02:03] Speaker 01:
On the fitness determination, as this court held in Kelly and as lower courts have implemented it,

[00:02:10] Speaker 01:
That standard, there's a sole standard for determining fitness.

[00:02:15] Speaker 01:
And what the board is required to do is to relate the nature and degree of the service member's disabilities with the duties reasonably expected of their office, grade, rank and rating.

[00:02:29] Speaker 01:
And this court held in Kelly that the ability to do some other narrow assignment does not necessarily equate with the ability to perform the broader scope of duties in one's office, grade, rank, or rating.

[00:02:45] Speaker 01:
And so this is one of our key legal arguments here, this and the liberal consideration argument.

[00:02:50] Speaker 01:
On this one, as Your Honor wrote in the Kelly decision,

[00:02:54] Speaker 01:
There's a duty-by-duty or a task-by-task analysis.

[00:03:00] Speaker 01:
That's how the White Court, which was submitted yesterday in a 28-day letter, that's how it implemented the Kelly decision.

[00:03:07] Speaker 01:
And so the board's failure to ever do that, in this case, the main error was on the fitness inquiry, it never identified the duties of an infantry unit leader in the Marine Corps.

[00:03:18] Speaker 03:
Didn't it equate those duties of being an infantry...

[00:03:22] Speaker 03:
man with the duties of being, let's say, the instructor to chaplains.

[00:03:27] Speaker 03:
So there was some consideration here.

[00:03:30] Speaker 01:
The board did look at his fitness reports from the time where he was on a shore tour.

[00:03:34] Speaker 01:
This is a temporary assignment he had where he was instructing navy chaplains and medics.

[00:03:39] Speaker 01:
And it's true that the board looked at his fitness reports from that time and said that they were sufficient and showed that he could do that job.

[00:03:47] Speaker 01:
But the board never said, can he do the other jobs that are going to be expected of him in his office grade rank and rating?

[00:03:56] Speaker 01:
And we know from the Marine Corps manual.

[00:03:58] Speaker 00:
Do we have clarity on whether it's undisputed what the official duties are?

[00:04:04] Speaker 00:
Well, in terms of the part of his position?

[00:04:13] Speaker 01:
The government and the board never outlined their view of what the duties are.

[00:04:18] Speaker 06:
So we don't know their actual view.

[00:04:35] Speaker 06:
Well, we did... I understand that, but there's certainly an essence saying, well, you didn't define the duties well enough so we don't have to look at it.

[00:04:43] Speaker 01:
Oh, yes.

[00:04:44] Speaker 01:
Yes, that's certainly an error, Your Honor.

[00:04:47] Speaker 06:
And let me ask this question.

[00:04:49] Speaker 06:
When looking at the duties, would you...

[00:04:53] Speaker 06:
be at all inclined to look at the duties that were actually performed by Sergeant B?

[00:04:58] Speaker 01:
100%.

[00:04:59] Speaker 06:
Well, if I'm not mistaken, a fit rep for him while he was in Afghanistan, when he was in the same position of a leader of the platoon, right, he actually went on 20 actual patrol missions with fellow Afghans.

[00:05:17] Speaker 06:
according to the fitness report.

[00:05:19] Speaker 01:
Yes, I entirely agree with one tiny modification just for clarity's sake.

[00:05:24] Speaker 01:
He was promoted before discharge to an infantry unit leader position, but that position required him to maintain all the exact same capabilities.

[00:05:32] Speaker 01:
That's what I understood them to agree with that.

[00:05:33] Speaker 01:
Exactly.

[00:05:33] Speaker 01:
So I 100% agree with you that one of the ways we...

[00:05:37] Speaker 06:
Just to come to the overlap issue, which had come up in Kelly.

[00:05:41] Speaker 06:
Yes.

[00:05:42] Speaker 06:
I think what I read the board to be saying was, here are the duties that he was assigned when he was out of garrison.

[00:05:50] Speaker 06:
He was over someplace where there are Navy doctors and nurses, and he's training them.

[00:05:54] Speaker 06:
And here are his listed duties.

[00:05:56] Speaker 06:
And then the board looked at the MOS document and the training manual that you had pointed to.

[00:06:03] Speaker 06:
And they went in there and said, well, look in here.

[00:06:05] Speaker 06:
There are some duties.

[00:06:07] Speaker 06:
in that manual that align, and so there's an overlap.

[00:06:10] Speaker 06:
Right.

[00:06:11] Speaker 06:
And I don't think you're disagreeing with that.

[00:06:13] Speaker 06:
You're saying that's not the question.

[00:06:14] Speaker 01:
Exactly.

[00:06:15] Speaker 06:
The question is, are there other duties outside of those delineates, outside of the overlap duties, that needed to be considered?

[00:06:23] Speaker 01:
Exactly.

[00:06:25] Speaker 01:
Just one.

[00:06:26] Speaker 01:
Excuse me?

[00:06:27] Speaker 01:
Such as what?

[00:06:27] Speaker 01:
What are the duties?

[00:06:28] Speaker 01:
So we outline the duties in our filings.

[00:06:33] Speaker 01:
They're outlined in the Marine Corps manual, which cross-references the Marine Corps Training and Readiness Manual.

[00:06:40] Speaker 06:
It says, in essence, it's a general description in the MOS, correct?

[00:06:46] Speaker 02:
Yes.

[00:06:47] Speaker 06:
And then you go down two layers, and it says, go look at the training manual to find out where the guts are.

[00:06:53] Speaker 01:
Right.

[00:06:54] Speaker 01:
And there, it describes the duties

[00:06:56] Speaker 01:
of a, for instance, an infantry Marine.

[00:06:59] Speaker 01:
And when it lists them, it says they must be capable of full spectrum of combat.

[00:07:05] Speaker 00:
Where are you in the record?

[00:07:06] Speaker 01:
This is on appendix 1283.

[00:07:08] Speaker 06:
1282.

[00:07:30] Speaker 01:
Yeah, so this is Appendix 1283.

[00:07:33] Speaker 01:
And this is describing the duties of an infantryman in the Marine Corps.

[00:07:38] Speaker 00:
But was that his position?

[00:07:40] Speaker 00:
I thought his position was some 0369.

[00:07:43] Speaker 01:
Yeah, so he was promoted to an infantry unit leader.

[00:07:50] Speaker 01:
And that, as we cite in our brief, he was required to maintain the Corps and Corps Plus capabilities of an 0300 Marine infantryman.

[00:08:00] Speaker 01:
So he still had all these same requirements.

[00:08:03] Speaker 01:
When he was promoted, he basically had additional administrative requirements.

[00:08:07] Speaker 01:
He was coordinating with command more.

[00:08:09] Speaker 01:
But he still had to keep all these capabilities.

[00:08:13] Speaker 01:
And those capabilities include capable of the full spectrum of combat day or night against opposing forces, using maneuver warfare to locate, close with, and destroy the enemy.

[00:08:25] Speaker 01:
able to secure defend vital terrain repelling the enemy's assault by fire maneuver in close combat Mr. B with his symptoms is

[00:08:36] Speaker 01:
clearly unable to do those things.

[00:08:39] Speaker 06:
And I would just point out that neither the board nor the government has ever... Before you go on, I thought the questions from both of my colleagues were sort of asking, well, how do we know, how do we know what these duties are?

[00:08:52] Speaker 06:
This is all very technical stuff there.

[00:08:53] Speaker 06:
For example, if you look at A1293, there are specific ballot descriptions.

[00:09:05] Speaker 06:
And I couldn't tell whether those are also pertinent.

[00:09:08] Speaker 06:
Sorry, which page did you?

[00:09:09] Speaker 06:
Page 1293 in the record.

[00:09:21] Speaker 01:
Yes, so these are the different types of positions you could have as an infantry unit leader.

[00:09:27] Speaker 01:
And what we point out in our brief is that all of these also require combat.

[00:09:31] Speaker 06:
Yes, I know that.

[00:09:32] Speaker 06:
But I mean, wouldn't they be pertinent as well, as you cited?

[00:09:36] Speaker 01:
Yes.

[00:09:37] Speaker 06:
So my point is that are we, who are not trained military experts, supposed to comb through the mountains of Department of Defense Marine Corps documents and sort of try to pick out?

[00:09:49] Speaker 06:
Or are we simply in a position of saying, the board, a la Kelly, failed to do this, and it's up to the board in the first instance to specify what the duties are?

[00:10:00] Speaker 01:
Well, I would say that in Kelly itself, there, the court did rely on the equivalent manual, Milper's, for the Navy, which is an equivalent manual to this.

[00:10:12] Speaker 01:
Right.

[00:10:13] Speaker 06:
It just seemed to me like combat, either training, either active, either duty training stateside for combat, which the four veterans' amicus brief pointed out as relevant, and the government conceded that to be true.

[00:10:30] Speaker 06:
So if you're taught combat seems to be core to your argument here.

[00:10:35] Speaker 02:
Yes.

[00:10:36] Speaker 06:
And so did you below to the board say, hey, you've got to less combat as one of the duties?

[00:10:44] Speaker 01:
Yes, we said you need to list the, and this is another error of the board on the fitness issue, you have to issue, and this is also said in Kelly, you have to go through the common military tasks and the deployability.

[00:10:55] Speaker 01:
These are the mandatory factors when you do this.

[00:10:59] Speaker 01:
And we said that the common military tasks for

[00:11:04] Speaker 01:
Infantry Marine include combat and we listed these same manuals that we cited and so I I take the point your honor that say combat You also refer to combat readiness or is that something separate?

[00:11:17] Speaker 01:
Well combat readiness is also expected of an infantry Marine So we think you can distinguish those but both are expected if you're an infantry Marine You're expected to be able and that's a core duty of a rifleman or infantry man

[00:11:30] Speaker 01:
Yes.

[00:11:31] Speaker 06:
Training for combat.

[00:11:32] Speaker 01:
Training for combat and being able and willing to participate in combat if called upon.

[00:11:37] Speaker 01:
And we also know that this wasn't expected... Did the court make a ruling on combat readiness?

[00:11:44] Speaker 01:
Did the... did it... excuse me, what was the question?

[00:11:48] Speaker 03:
Was there a ruling with respect to or consideration of combat readiness?

[00:11:54] Speaker 01:
The board did not find that Mr. B was ready to engage in combat.

[00:11:58] Speaker 01:
The closest the board came was to say that Mr. B, in its view, which we disagree with, but it said that he could train Marines in a garrison environment.

[00:12:13] Speaker 01:
And that's the furthest it would go.

[00:12:16] Speaker 01:
The board never said Mr. B was ready for combat or could engage in combat.

[00:12:22] Speaker 00:
And then the claims court said the board wouldn't need to because, at least in the claims court's view, this whole question of

[00:12:32] Speaker 00:
combat readiness is just another way of looking at the question of deployability.

[00:12:38] Speaker 00:
And deployability is not a decisive factor.

[00:12:41] Speaker 00:
I think that's something to the effect of what the claims court said.

[00:12:45] Speaker 00:
Is that right?

[00:12:45] Speaker 01:
Yeah, the claims court did say something along those lines.

[00:12:48] Speaker 01:
So part of what it did, though, is it

[00:12:52] Speaker 01:
The actual language for deployability, which, by the way, in Kelly, just by not considering deployability and the common military tasks, this court said remand was necessary just because of that error.

[00:13:04] Speaker 01:
And that error happened here.

[00:13:06] Speaker 00:
I understand that.

[00:13:06] Speaker 00:
I just want to hear your response to the claims court's reasoning for how it felt like it was OK for the board to not really directly confront the combat capable argument you had.

[00:13:21] Speaker 01:
Right.

[00:13:22] Speaker 01:
So the first problem, at least on the deployability issue, because its premise was deployability can't be decisive.

[00:13:29] Speaker 01:
But that's not what the regulation says.

[00:13:31] Speaker 01:
It says the inability to be deployed in every conceivable circumstance to every geographic reason will not be the sole reason to find someone unfit.

[00:13:42] Speaker 03:
Counselor, you're well into rebuttal time.

[00:13:44] Speaker 03:
I'm going to let you continue, because we obviously have more questions.

[00:13:48] Speaker 03:
But I want you to move on to liberal consideration.

[00:13:50] Speaker 03:
That's that issue.

[00:13:51] Speaker 03:
Yes.

[00:13:54] Speaker 06:
Can I just make one more?

[00:13:55] Speaker 06:
Before you move on there.

[00:13:56] Speaker 06:
Because I do think we need to spend a little more time here, and we only have one on your case today.

[00:14:02] Speaker 06:
I'm troubled by where your argument on combat is leading, because it suggests to me, possibly, that a Sergeant B or another

[00:14:14] Speaker 06:
fine Marine who is not fit for combat must be referred into the MES system.

[00:14:24] Speaker 06:
And so if you see what I'm talking about, I mean, you take, I mean, lots of people get injured in ways.

[00:14:31] Speaker 06:
They may lose an arm or leg or something else, and they may not be fit for combat, but they wish to remain in the service.

[00:14:39] Speaker 06:
And they are fully capable of performing excellently necessary and important duties for the country.

[00:14:48] Speaker 06:
But the logic of your argument seems to be that any service member who is unfit for combat, there's a requirement to refer him to an MES.

[00:14:59] Speaker 01:
Well, so I take your point, and I would make two responses.

[00:15:04] Speaker 01:
One is, if there's a service member who's injured and can no longer perform the duties of their office grade rank and rating, and it includes combat, they can be reclassified.

[00:15:14] Speaker 01:
So they could, if the military says, would you like to be reclassified so that your expected duties are different,

[00:15:24] Speaker 01:
That could happen where the member could still serve.

[00:15:26] Speaker 06:
That's almost saying that we're going to put the Marine Corps, the Defense Department, through the Marine Navy and Marine Corps through a massive task of going through and determining all these fine service members who are no longer capable of combat.

[00:15:43] Speaker 06:
of giving them a new rating of some sort?

[00:15:46] Speaker 01:
Well, I mean, it depends on the specifics of what the duty is expected of that particular office-grade rank and rating.

[00:15:55] Speaker 01:
So there could be different ratings that don't require combat readiness, but if it does require combat readiness and you're not combat ready, then you don't mean... Well, the problem is that all, I mean, what you've said is that even at the infantry unit leader status,

[00:16:13] Speaker 06:
I'm Sergeant B. Nonetheless, all of his duties include that of the buck private.

[00:16:19] Speaker 02:
Yes.

[00:16:20] Speaker 06:
Well, the buck private is always going to have to do combat because that's what they're signing you up.

[00:16:24] Speaker 01:
Right.

[00:16:24] Speaker 00:
And so in his case, another option would be... The military has to constantly re-evaluate the Corps for possible demotions.

[00:16:34] Speaker 01:
Well, it depends.

[00:16:35] Speaker 01:
If you suspect someone is unfit to... I'm just thinking, although

[00:16:41] Speaker 00:
Your client here maybe would have wanted that.

[00:16:46] Speaker 00:
My instinct is most enlisted infantrymen wouldn't want that.

[00:16:52] Speaker 01:
And my instinct is also that they wouldn't be found unfit if they had a minor injury and they were still able to participate meaningfully in combat.

[00:17:00] Speaker 01:
If they weren't able to participate in combat, and that is what's expected of them,

[00:17:05] Speaker 01:
then they would need to either be reclassified, or under the binding regulations, they cannot perform the duty that's expected of them, the core duty that's expected of them.

[00:17:15] Speaker 01:
Now, I'd also say there's qualifying language in the regs, which is reasonably expected of the member.

[00:17:21] Speaker 01:
So you could imagine situations where a service member has the ability to engage in combat is very small, and it's actually not the focus at all of the expected duties.

[00:17:34] Speaker 01:
and in that case the inability to engage in combat wouldn't be reasonably expected.

[00:17:39] Speaker 01:
So there is some leeway there for those types of situations but your honor if you had a service member whose core duty was to be able to engage in combat and he could no longer do it because he was injured in service then you have to be either reclassified or found unfit.

[00:17:59] Speaker 01:
On liberal consideration

[00:18:05] Speaker 06:
I just asked a question upfront on that.

[00:18:07] Speaker 06:
We're dealing with the statute here, right?

[00:18:10] Speaker 01:
Both the statute and binding DOD numbers.

[00:18:13] Speaker 06:
Well, that's true.

[00:18:13] Speaker 06:
But I mean, the statute is the one that tells, requires as a mandatory way in H2B that you review the liberal consideration.

[00:18:25] Speaker 06:
And it's looking at whether or not, whether PTSD potentially contributed to the discharge.

[00:18:34] Speaker 06:
Right?

[00:18:35] Speaker 06:
Circumstances of the discharge.

[00:18:37] Speaker 06:
Here, your circumstances, your discharge, were entering into the VSP program.

[00:18:44] Speaker 02:
Right.

[00:18:44] Speaker 02:
So.

[00:18:45] Speaker 06:
So the board, in its opinion, looked at the reasons you gave them.

[00:18:51] Speaker 06:
You said, well, I'm going in VSP because I'm fearful that I may not be promoted.

[00:18:57] Speaker 06:
Right.

[00:18:57] Speaker 06:
That's the reasoning in footnote 32, I think it is.

[00:19:00] Speaker 06:
Yeah.

[00:19:00] Speaker 06:
Right?

[00:19:01] Speaker 06:
And so I'm saying to you, that doesn't have anything to do with PTSD.

[00:19:05] Speaker 01:
So a few points in response.

[00:19:08] Speaker 01:
One is the current memo independently is binding.

[00:19:12] Speaker 01:
And I know you want to focus on the statute, but I just would flag that.

[00:19:15] Speaker 01:
On the statute itself, I would point your honor to 1552 H1, where it says, this subsection applies to a former member whose claim.

[00:19:25] Speaker 06:
I understand that, but the problem is that that's simply defining the claim.

[00:19:30] Speaker 06:
Before H1 comes along, who knows whether there's even a legitimate claim to be made that PTS contributed to the circumstances of your discharge.

[00:19:43] Speaker 06:
And so H1 defines that claim broadly to cover, I think, even what you're talking about.

[00:19:48] Speaker 06:
But the statute seems to narrow what it is that PC actually applies to.

[00:19:54] Speaker 06:
And also it's focusing on a real discharge.

[00:20:00] Speaker 06:
What actually happened here?

[00:20:03] Speaker 06:
And your focus is on something that didn't happen that should have happened.

[00:20:08] Speaker 06:
Aren't you talking about a hypothetical discharge that you think should have been put in place?

[00:20:14] Speaker 06:
Your claim is PTSD affected you and the government should have realized, the Marines should have realized, who?

[00:20:22] Speaker 06:
This guy never should have even been allowed to sign up for VSP.

[00:20:26] Speaker 06:
He should have been taken out on M-E-B-P-E-B.

[00:20:31] Speaker 06:
So the government, as I read the red brief, they're saying that liberal consideration just doesn't apply.

[00:20:38] Speaker 06:
to a case like yours, where the reason why you're going out is because of a voluntary desire to separate.

[00:20:46] Speaker 06:
I didn't see your argument.

[00:20:48] Speaker 06:
I didn't see you responding to that government's argument.

[00:20:53] Speaker 06:
Why in your case?

[00:20:54] Speaker 06:
I mean, Doyan, I think even the government recognizes that Doyan falls within the statute.

[00:21:00] Speaker 01:
And so we are seeking the exact same thing that Mr. Doyon saw it.

[00:21:05] Speaker 06:
So when it says review of... His discharge, he was discharged for unsuitability.

[00:21:13] Speaker 06:
And his argument is my unsuitability was triggered, the conduct was triggered by my PTSD.

[00:21:25] Speaker 06:
And the government is arguing that's a very different kettle of fish, different situation from somebody who says,

[00:21:30] Speaker 06:
Well, I'm voluntarily separating voluntarily.

[00:21:33] Speaker 06:
And the reason why I'm doing that is I'm fearful I may not be promoted.

[00:21:37] Speaker 06:
Doesn't have anything to do with PTSD.

[00:21:42] Speaker 01:
In Doyan, the court said that liberal consideration applies to a record correction request

[00:21:50] Speaker 01:
You're asking to correct the discharge record.

[00:21:53] Speaker 01:
So what's being referred to?

[00:21:54] Speaker 06:
I'm referring to what Doyan said.

[00:21:55] Speaker 06:
But the first question is whether Doyan actually decided the question in front of us, which is, does liberal consideration apply to a fitness determination?

[00:22:06] Speaker 06:
And there's argument back and forth.

[00:22:08] Speaker 06:
And the judges of the court of federal claims seem to disagree.

[00:22:12] Speaker 06:
about whether or not Doyan actually decided that?

[00:22:16] Speaker 01:
All the courts of claims decisions that have come out and actually decided this have all come out in our favor.

[00:22:23] Speaker 01:
There's not any court of claims that have held otherwise.

[00:22:27] Speaker 06:
In this very case, Judge Hagee said he didn't think that was decided.

[00:22:32] Speaker 01:
He didn't resolve, he said, I don't need to resolve the issue because in his view, the board did apply liberal consideration.

[00:22:38] Speaker 01:
So he didn't issue a ruling on that.

[00:22:40] Speaker 06:
Every judge... He said his opinion says that Doan reserved that issue.

[00:22:46] Speaker 01:
He said that there's an argument about that, but he doesn't need to decide it because in any case, he thought that the board did in fact apply liberal consideration.

[00:22:58] Speaker 00:
Get to the statutory concern that I heard Judge Clevenger articulate which is that H2B is premised on

[00:23:09] Speaker 00:
trying to figure out whether PTSD potentially contributed to the circumstances resulting in the discharge, the actual historical discharge that actually occurred.

[00:23:21] Speaker 00:
And the actual historical discharge that occurred in this case was a voluntary separation.

[00:23:30] Speaker 00:
But the way you've constructed your argument is

[00:23:34] Speaker 00:
You want to propose an analysis of whether PTSD could have resulted in a medical unfitness discharge that never actually happened.

[00:23:49] Speaker 00:
And when we go back to the statute and it talks about the historical discharge, that's a different inquiry than the one that you're running in the appeal.

[00:24:01] Speaker 01:
Right.

[00:24:03] Speaker 01:
In 1552, what it's talking about when it says discharge is the discharge record.

[00:24:07] Speaker 01:
In 1552H, this is all being directed to the Record Correction Board.

[00:24:12] Speaker 01:
All that they do is correct records.

[00:24:14] Speaker 01:
And when it says a claim to correct a discharge, it's the DD-214 form.

[00:24:20] Speaker 01:
And on that form, there's a box that says narrative reason for discharge.

[00:24:23] Speaker 01:
And this court held in Doyan that liberal consideration applies when you're asking to change that box on the DD-214 form.

[00:24:31] Speaker 01:
And that is what Mr. B is asking here, which is exactly what Mr. Doyan asked for.

[00:24:36] Speaker 01:
Mr. Doyan said, the narrative reason for my discharge, the box of my... Did he actually answer that, or is that the effect?

[00:24:46] Speaker 06:
Judge Hagee said, in essence, that that's it is.

[00:24:51] Speaker 06:
Presumably what you're trying to do, but you didn't make a specific request to that effect.

[00:24:55] Speaker 01:
No, we did.

[00:24:56] Speaker 01:
The specific request is for medical retirement, and what that means, the way that this board would grant that relief is by correcting the narrative reason for discharge in the DD214 form.

[00:25:08] Speaker 01:
For Mr. B, it said personality disorder, the code for personality disorder.

[00:25:12] Speaker 01:
For Mr., I'm sorry, for Mr. Doyant, he said that.

[00:25:15] Speaker 01:
For Mr. B, it says VSP.

[00:25:17] Speaker 01:
But it's the same box.

[00:25:18] Speaker 01:
They're both trying to change the narrative reason for discharge to get medical retirement.

[00:25:24] Speaker 01:
And this court said liberal consideration plainly applies to that.

[00:25:28] Speaker 01:
It applies to a request to correct your record.

[00:25:32] Speaker 00:
I mean, what would make perhaps more sense to me is if you leaned into the phrase potentially contributed to the circumstances resulting in the discharge.

[00:25:42] Speaker 00:
And here, I think you're trying to say the circumstances were

[00:25:47] Speaker 00:
that at the time when Mr. B was in service, he just was not well.

[00:25:56] Speaker 00:
And he wasn't feeling he was fit to carry on with the duties that he was officially assigned and therefore felt like he had to voluntarily separate.

[00:26:09] Speaker 00:
And then I can understand better why that

[00:26:16] Speaker 01:
Theory lines up with the language of the statute Yes, I completely agree the circumstances resulting in his discharge was that he had PTSD and Traumatic brain injury he was struggling in the service They gave him a quote break on this short tour, but these short tours are rotational I knew his was coming to an end so he needed circumstances didn't result in the discharge

[00:26:41] Speaker 01:
Well, but his claim is that they did.

[00:26:44] Speaker 01:
His claim, because this is about the nature of the claim, his claim is that because of his pushback and stress disorder and his traumatic brain injury, he left the service and he should have been instead given medical retirement.

[00:27:01] Speaker 06:
The reason why I'm fussing with this and I think maybe the other judges are is because your brief contended that the plain meaning of the statute

[00:27:11] Speaker 06:
Governor is in your favor.

[00:27:13] Speaker 06:
Yes, and by the plain meaning it means that you look at the words and the word just line up exactly and where there's no room for debate, right?

[00:27:21] Speaker 06:
That's that's what plain meaning means and so you got to admit that when you get to Potentially contributed to the circumstances of the actual discharge and the actual discharge here was for VSP You say well, what's that got to do with the rest?

[00:27:35] Speaker 06:
I think the way you're doing it is by saying we're be says review the claim of

[00:27:41] Speaker 06:
And the claim from H1 carries with it the full scope of what you're talking about.

[00:27:48] Speaker 01:
I think that's probably... Yes.

[00:27:50] Speaker 01:
So that's true.

[00:27:52] Speaker 01:
And yes, I agree with that.

[00:27:53] Speaker 06:
And in addition... I mean, can you... Am I nuts?

[00:27:58] Speaker 06:
Or can you appreciate me and being very particular in the plain meaning analysis to fit your case into B?

[00:28:08] Speaker 01:
I appreciate that.

[00:28:09] Speaker 06:
So there's a hiccup because it's looking at the actual circumstances, the actual kind of discharge you got.

[00:28:17] Speaker 06:
And you want to bring in the full scope of your H1 claim.

[00:28:22] Speaker 06:
Right?

[00:28:22] Speaker 01:
yes I think the one I agree the one other thing I would add I take your point that it's not crystal clear but when you look at it in context when it's talking about a discharge it's talking about a discharge record because this is all being directed to the record board so that's the only caveat I would answer I would add but I I I agree with

[00:28:43] Speaker 01:
where we've sort of come out on that.

[00:28:45] Speaker 03:
So, Counselor, can you answer something even more basic that I need to get clear?

[00:28:51] Speaker 03:
And that, what is liberal consideration?

[00:28:55] Speaker 01:
So, in, Doyan, this court said that 1552-H codified these prior memos.

[00:29:04] Speaker 01:
So there's the Curda memo and the Hegel memo before it.

[00:29:08] Speaker 01:
And that it provides a more lenient evidentiary standard.

[00:29:13] Speaker 06:
So that clarified or just actually incorporated.

[00:29:17] Speaker 01:
It says codified codified codified.

[00:29:23] Speaker 00:
But then what did we mean by that.

[00:29:26] Speaker 01:
Well, so I think what you would do then is when you're trying to understand, you have an evidentiary standard that is admittedly, whenever you have a new standard, it's always going to be a little bit abstract until it gets filled in with case law and individual decisions.

[00:29:40] Speaker 01:
But here what we have is some guidance.

[00:29:43] Speaker 01:
because it was based off of this memo, the CURTA memo, which gave, which by the way is still independently binding, but telling the other side, the CURTA memo gave specific examples about how to apply liberal consideration.

[00:29:57] Speaker 06:
So when you're interpreting... Back up for a second, when you say independently binding, so even if I were to determine

[00:30:02] Speaker 06:
On a sort of a Clevenger, very narrow-minded reading of B, that you don't get LC under B because you're only focusing on a VSB, that's irrelevant.

[00:30:13] Speaker 06:
You're still going to get it because of the incorporation of Curda.

[00:30:19] Speaker 01:
Yes, but also just not even, we don't even need 1552.

[00:30:23] Speaker 06:
So the boards, the government can clarify this, but the boards are independently obligated to follow CURTA.

[00:30:30] Speaker 02:
Yes.

[00:30:31] Speaker 01:
Right?

[00:30:32] Speaker 01:
So what about Vazrayani?

[00:30:34] Speaker 06:
Well, so... Aren't they obligated to follow that as well?

[00:30:38] Speaker 01:
The government concedes that's not applicable here because the timing of that decision was released after this.

[00:30:44] Speaker 01:
So the government does not argue that that memo is binding in this case.

[00:30:49] Speaker 06:
And...

[00:30:51] Speaker 06:
I understand it's not applicable in this case, but we're looking at the broader picture of all this.

[00:30:56] Speaker 06:
So aren't the boards obligated both to follow Curda and Vazirani, and how can they do that?

[00:31:06] Speaker 01:
The courts of claims that have looked at this question have said that Vazirani is inconsistent with Duane.

[00:31:14] Speaker 01:
that memo, which is trying to say that liberal consideration, yeah, it applies to the narrative reason, but they're saying it bifurcates.

[00:31:24] Speaker 01:
And the White decision actually, which was submitted yesterday, goes into this and explains it as well.

[00:31:31] Speaker 01:
Doyan said that liberal consideration necessarily applies to the underlying factual determinations to correct or maintain the narrative reason.

[00:31:39] Speaker 06:
I apologize to the presiding judge.

[00:31:42] Speaker 06:
My question deviated away from where the presiding judge was pushing you, which is to try to say, can you really tell us exactly what it is?

[00:31:49] Speaker 06:
Correct.

[00:31:50] Speaker 03:
We've been talking about what triggers liberal consideration.

[00:31:54] Speaker 03:
And I'd like for you to answer, what is it?

[00:31:57] Speaker 03:
How do you define it?

[00:31:58] Speaker 03:
And I'm going to ask your friends on the other side the same question.

[00:32:04] Speaker 01:
So as I said, Doyle said it's a more lenient evidentiary standard, but there's also in CURTA specific guidance on how to apply liberal consideration.

[00:32:14] Speaker 01:
So for instance, in paragraph four says that the board must consider evidence from these outside sources.

[00:32:23] Speaker 00:
Why don't you try to walk us paragraph by paragraph through the CURTA memo?

[00:32:27] Speaker 00:
Can you just summarize?

[00:32:28] Speaker 00:
Can you attempt to summarize in a single sentence?

[00:32:32] Speaker 00:
What does it mean to give liberal consideration?

[00:32:36] Speaker 01:
Liberal consideration requires giving a more lenient review of the evidence.

[00:32:42] Speaker 01:
What does that mean?

[00:32:43] Speaker 01:
How much more lenient?

[00:32:44] Speaker 01:
I might need more than a sentence.

[00:32:46] Speaker 06:
I mean, that's what we're asking for some specificity if you can guide us.

[00:32:49] Speaker 06:
I mean, you know, your brief doesn't adopt Boosie, the opinion in the Ninth Circuit.

[00:32:56] Speaker 01:
So we submitted that as a 28-J letter because it came in after our briefs.

[00:33:02] Speaker 01:
We agree with it with the Bussey decision authored by Judge Wallach.

[00:33:06] Speaker 01:
There it said that it requires resolving doubts in favor of the veteran.

[00:33:12] Speaker 06:
Right, but that's inconsistent with Curtis because Curtis says that the LC doesn't make you win.

[00:33:18] Speaker 01:
Well, but Bussey doesn't say it makes you win.

[00:33:21] Speaker 01:
It said that it requires you to solve the doubt in favor of the veteran.

[00:33:25] Speaker 06:
So the veteran comes in and says my PTSD affected my performance.

[00:33:30] Speaker 06:
And if there's doubt, then the veteran wins.

[00:33:33] Speaker 01:
Well, if there's contrary evidence in the record that discredits the I mean, it doesn't I don't I don't read bussy to say that the veterans test.

[00:33:42] Speaker 06:
You don't have a formula, for example.

[00:33:45] Speaker 06:
I mean, we know what preponderance is.

[00:33:48] Speaker 06:
We know what clear and convincing evidence is.

[00:33:50] Speaker 06:
You wouldn't argue that this, for example, is presumptive correctness?

[00:33:55] Speaker 01:
I would not argue that it's

[00:33:59] Speaker 01:
No, I would not argue that liberal consideration requires the board to say, no matter what all this other record evidence says, we're going to presumptively assume you have PTSD.

[00:34:10] Speaker 00:
So walk us through the facts here with Mr. B.

[00:34:15] Speaker 00:
and show us where liberal consideration enters the picture of that analysis and how it affects the analysis.

[00:34:23] Speaker 00:
Yes.

[00:34:23] Speaker 00:
Because you didn't explain any of that in your brief.

[00:34:26] Speaker 00:
You just said, we're entitled to liberal consideration.

[00:34:28] Speaker 00:
Give me liberal consideration.

[00:34:30] Speaker 00:
But you didn't give us any guidance on exactly how does that impact your desire to fitness determination by the board.

[00:34:38] Speaker 01:
We tried to explain it, but apparently... Go for it.

[00:34:42] Speaker 01:
One example is that in his case, the board discounted Dr. Vogel's diagnosis and his VA disability rating, which for him cumulatively was 100% disabled, 90% for his TB.

[00:34:55] Speaker 01:
The board accepted that he has PTSD and TBI.

[00:35:00] Speaker 01:
When they looked at Dr. Vogel, his diagnosis, and the VA disability rating, it said it's inherently unreliable and irrelevant.

[00:35:09] Speaker 01:
And then what it proceeded to do, which is contrary to paragraph four of the critical memo and liberal consideration, is what it did again and again was it used the veteran service record to disprove any outside... Don't tell me what the board did.

[00:35:21] Speaker 00:
Tell me how, just track the analysis.

[00:35:24] Speaker 00:
Just walk us through the analysis here that you want.

[00:35:28] Speaker ?:
Okay.

[00:35:29] Speaker 00:
So I can see it, because right now assume that I can't.

[00:35:32] Speaker 01:
Okay.

[00:35:35] Speaker 01:
In this case, there's outside evidence from Mr. B, his declaration, from his wife with her declaration, giving evidence about what was happening to him when he was in the Marine Corps.

[00:35:50] Speaker 01:
The board should have

[00:35:53] Speaker 01:
should have taken that evidence very seriously and not discounted it because it wasn't corroborated by the veteran service record.

[00:35:59] Speaker 01:
And that's what it did time and again.

[00:36:01] Speaker 01:
And I won't go down that with the board, but what liberal consideration requires is you can't discard or discredit outside new evidence submitted by a licensed psychiatrist, paragraph nine of CURTA, submitted by a family member, submitted by the veteran's statement alone,

[00:36:23] Speaker 01:
can be sufficient to mitigate the discharge.

[00:36:26] Speaker 01:
So those outside sources of evidence, you can't say, well, we don't see that in the veteran service record.

[00:36:33] Speaker 01:
Therefore, it must not be true.

[00:36:35] Speaker 01:
OK, is that it?

[00:36:38] Speaker 01:
I think that alone would change the outcome here, because that's how the board rejected all of that.

[00:36:44] Speaker 01:
Is that it?

[00:36:45] Speaker 01:
No.

[00:36:46] Speaker 01:
So I mean, liberal consideration

[00:36:50] Speaker 00:
The memo has lots of different... The statute says potentially contributed to the circumstances resulting in the discharge.

[00:36:57] Speaker 00:
It doesn't say caused the circumstances that resulted in the discharge, right?

[00:37:02] Speaker 01:
Correct.

[00:37:03] Speaker 00:
So potentially contributed to just to me seems give liberal consideration that the PTSD was potentially a factor that led to whatever the circumstances were.

[00:37:17] Speaker 00:
Yes.

[00:37:17] Speaker 00:
That resulted in the discharge.

[00:37:19] Speaker 00:
Yes, I agree.

[00:37:21] Speaker 00:
So, I mean, in that way, it feels like potentially a lighter touch on the overall fitness determination inquiry.

[00:37:35] Speaker 01:
So, when you say potentially contributed to, I don't know how that would mean the application of

[00:37:41] Speaker 01:
That's the scope of what it's going to be applying to.

[00:37:44] Speaker 01:
But that doesn't tell you the level of how the standard will then be applied.

[00:37:50] Speaker 00:
Right.

[00:37:50] Speaker 00:
And you didn't explain that in your briefing, which is why I'm trying to pull it out of you now.

[00:37:54] Speaker 00:
But I get the feeling after an hour, maybe it's not going to happen.

[00:37:59] Speaker 01:
I'm trying my best.

[00:38:01] Speaker 01:
I mean, I think, honestly, we cited their specific paragraphs.

[00:38:05] Speaker 01:
This is also how the Court of Claims has implemented it.

[00:38:08] Speaker 01:
This is how they've implemented it.

[00:38:09] Speaker 01:
They've looked at these paragraphs, paragraph seven saying the veteran's testimony alone may be sufficient.

[00:38:17] Speaker 01:
And when the board discredits it because it's inconsistent with the service record, that's not liberal consideration.

[00:38:23] Speaker 01:
So what you have to do is actually look at and treat that as legitimate evidence.

[00:38:29] Speaker 01:
and not discount it solely because you don't see it already in the service record.

[00:38:36] Speaker 03:
Is it your view that the board has to, they shall provide liberal consideration?

[00:38:45] Speaker 03:
There's no discretion?

[00:38:46] Speaker 03:
Yes.

[00:38:51] Speaker 03:
Okay, great.

[00:38:52] Speaker 06:
That just says shall.

[00:38:55] Speaker 03:
Judge.

[00:38:57] Speaker 03:
We thank you for your argument.

[00:38:58] Speaker 03:
We went well over your time Give equal time to the other side, and I'm going to restore your three four minutes Rebuttal time that you had initially reserved, okay?

[00:39:10] Speaker 03:
Let's hear from the other side now.

[00:39:11] Speaker 03:
Thank you councillor Gillingham

[00:39:15] Speaker 05:
Yes, Your Honor, thank you.

[00:39:16] Speaker 05:
I'd love to put in a pitch for jurisdiction, but I know you're focused on office-grade ranker rating, which has become so famous because... Can I ask a question about jurisdiction?

[00:39:26] Speaker 06:
Oh, I'd love to have a question, yes.

[00:39:27] Speaker 06:
So, at the time relevant here, did Sergeant B have the right to self-refer into a MES-MEB-PEB system?

[00:39:38] Speaker 06:
So I don't know that, well, the way this works is- Did he have the right to do it?

[00:39:42] Speaker 05:
Yes or no?

[00:39:43] Speaker 05:
I don't have a regulation in front of me and I can't say whether to self-refer.

[00:39:46] Speaker 00:
So for example- He decided a regulation saying he did not have the power to self-refer.

[00:39:54] Speaker 05:
Probably in the sense that he could not have walked up, knocked on the door to the board and said, I'd like to hold a hearing as a reform I can fill out.

[00:40:02] Speaker 05:
What he would have done, pursuant to the medical disability system,

[00:40:06] Speaker 06:
Gone his doctors as he did you're not answering the question I mean other courts have looked at this and have said written and said no the the service member did not have the right to self-refer Well, maybe under the relation that was cited by my sergeant B He's the one that says that there's an obligation duty on the military to refer right certain circumstance That's the way the system works.

[00:40:27] Speaker 06:
That's right.

[00:40:27] Speaker 06:
That's the way the system work right and you should be able to tell me if

[00:40:31] Speaker 06:
where there is somewhere in these big, great big documents, whether it's in SECNAM, VIST, or in DOD, where there is a right to the service member to self-refer.

[00:40:43] Speaker 05:
So self-refer... You can't answer that question?

[00:40:45] Speaker 05:
I will not give you a document that says a service member can self-refer in the sense that he can insist

[00:40:52] Speaker 05:
to the board itself that they hear his case.

[00:40:55] Speaker 05:
So he can somehow get in there?

[00:40:57] Speaker 05:
He can definitely get in there.

[00:40:59] Speaker 06:
How can he get in there on his own?

[00:41:01] Speaker 05:
Just as he did here.

[00:41:03] Speaker 05:
He goes to doctors who looked at him because he was diagnosed with PTSD and TBI upon his return from Afghanistan in 2010.

[00:41:11] Speaker 05:
That then kicked off a series of medical meetings, including one when he... What kicks off a system is whether or not the actual process gets started.

[00:41:21] Speaker 06:
Yes, that's right.

[00:41:22] Speaker 06:
The argument that's being made, you raised jurisdiction in your red brief.

[00:41:28] Speaker 06:
Right.

[00:41:28] Speaker 06:
The answer came from Sergeant B that said, hey, if I don't have a right to self-refer, there's nothing to waive.

[00:41:35] Speaker 06:
And so there's real can't bite.

[00:41:38] Speaker 06:
And I want your answer to that argument.

[00:41:42] Speaker 05:
He does that by saying to his military providers, who are the gatekeepers to the system, that, I don't believe I can perform my duties.

[00:41:52] Speaker 05:
Instead, he said, I have an excellent overall general feeling.

[00:41:55] Speaker 06:
My point is, when he says that, does that give him, does that mean that there has to be an MEB opened?

[00:42:05] Speaker 06:
Well, first of all, there doesn't have to have been.

[00:42:07] Speaker 05:
The statute of limitations.

[00:42:10] Speaker 06:
You're desperately trying to avoid the question.

[00:42:13] Speaker 06:
I'm really not.

[00:42:14] Speaker 05:
Jurisdiction hinges on the rights of the court, the jurisdiction of the Court of Federal Claims.

[00:42:18] Speaker 06:
So what did you waive?

[00:42:19] Speaker 06:
In order to make real work, there has to be a waiver.

[00:42:22] Speaker 06:
Right.

[00:42:22] Speaker 06:
There has to be a waiver of a right.

[00:42:24] Speaker 06:
Right.

[00:42:24] Speaker 06:
So what did Sergeant B do here that constituted a waiver?

[00:42:31] Speaker 05:
by failing to come to the court of federal claims in within the six years.

[00:42:35] Speaker 06:
That's too late.

[00:42:38] Speaker 06:
He is too late.

[00:42:39] Speaker 06:
No, the waiver has to happen back at this point in time before there's ever a correction board filing.

[00:42:46] Speaker 05:
Right.

[00:42:47] Speaker 05:
So by failing to bring it to the attention

[00:42:50] Speaker 05:
of anybody, really, that he believed he was unfit for duty, which is contrary to the record in this case, he would have triggered that.

[00:42:58] Speaker 05:
Now, if he says, I did trigger it because I was saying something contrary to what the record was saying.

[00:43:04] Speaker 05:
He triggered a right?

[00:43:06] Speaker 05:
He triggered the system which says when the military provider, a medical doctor, determines that his fitness, his medical condition is questionable.

[00:43:18] Speaker 06:
I understand the obligation on the military when the medical provider has doubt.

[00:43:24] Speaker 06:
He pushes him to the MEB.

[00:43:26] Speaker 06:
That's the first step.

[00:43:27] Speaker 06:
I understand that.

[00:43:29] Speaker 06:
But if we have to write an opinion that responds to B's argument as to why

[00:43:34] Speaker 06:
The real just doesn't apply because there was no waiver here.

[00:43:39] Speaker 06:
You're not giving me an answer yet to the question of whether or not he had a right to get himself into the system.

[00:43:46] Speaker 05:
Well, there would never be a real case.

[00:43:48] Speaker 06:
That wouldn't trouble a lot of people.

[00:43:52] Speaker 05:
I know that.

[00:43:53] Speaker 06:
It would trouble you, but so what?

[00:43:55] Speaker 05:
No, not necessarily.

[00:43:56] Speaker 05:
Well, first of all, courts are courts of limited jurisdiction.

[00:43:58] Speaker 05:
They have the responsibility to determine their own jurisdiction.

[00:44:02] Speaker 05:
And so when he walked out the door and didn't do anything to trigger that, said nothing in the record to say, I'm disabled.

[00:44:08] Speaker 05:
He's no different than the cases that appeared before Real or that the Real exception applies to.

[00:44:14] Speaker 00:
All the Real says- Maybe it's because he didn't completely appreciate.

[00:44:18] Speaker 00:
I'm sorry?

[00:44:18] Speaker 00:
Maybe it's because he didn't appreciate that he was permanently disabled at the time.

[00:44:23] Speaker 05:
And while the record says otherwise, everything he said today is exactly what he could have said within the statute of limitations.

[00:44:31] Speaker 03:
Didn't his superiors pull him out of this cycle of combat that he was going through?

[00:44:38] Speaker 03:
He was like four tours in Afghanistan.

[00:44:41] Speaker 03:
His own superiors pulled him out and told him, take a knee.

[00:44:45] Speaker 03:
stop, get out of this combat situation, we're going to put you something else.

[00:44:50] Speaker 05:
Does that qualify him?

[00:44:52] Speaker 05:
No, I'm not sure as to why, but his tour was ending anyway.

[00:44:55] Speaker 05:
And so it just so happens that the assignment authorities determine the best use of this.

[00:44:59] Speaker 03:
At bottom, a veteran cannot self-refer to the medical review board.

[00:45:04] Speaker 03:
Would you agree with me?

[00:45:06] Speaker 05:
If you say self-refer means he's unable to speak to a doctor.

[00:45:10] Speaker 03:
Yeah, to show up and say, I want a review, and they say, yes, you may have one.

[00:45:14] Speaker 05:
Come on in, yeah.

[00:45:15] Speaker 05:
Yeah, he could certainly have said that to a doctor.

[00:45:17] Speaker 06:
A doctor under the system, then, would have had to disagree with him and say, sorry, you can't do it.

[00:45:22] Speaker 05:
OK, then he would have made his... Forget the doctor.

[00:45:25] Speaker 03:
I'm talking about self-referred, just him on his own two feet to show up and say, I want a review by the medical review board.

[00:45:32] Speaker 03:
He can do that.

[00:45:34] Speaker 05:
By saying it to a doctor?

[00:45:35] Speaker 03:
Where is the authority on that?

[00:45:37] Speaker 05:
Well, it's the way the system works.

[00:45:39] Speaker 05:
First of all, he appears before a medical provider.

[00:45:42] Speaker 05:
The nature of these diseases, this is not a gunshot wound.

[00:45:46] Speaker 05:
The nature of these diseases are internal.

[00:45:48] Speaker 05:
He would have to relate, and he did.

[00:45:50] Speaker 05:
his conditions to a medical provider, and then say on top of that, I'm not fit to perform my duties.

[00:45:57] Speaker 05:
He was saying all of the opposite things.

[00:46:00] Speaker 05:
And if a doctor then said, look, we're not referring you to a medical evaluation board even though you think you're not fit, which he obviously didn't think because he performed his duties for two and a half years.

[00:46:10] Speaker 05:
If he had said that, that would have been a denial of the military evaluation board.

[00:46:14] Speaker 05:
And that would have been the waiver right there.

[00:46:16] Speaker 05:
But just on the record evidence in this case,

[00:46:19] Speaker 05:
There's no evidence of him saying to the front door of the IDES system, the Disability Evaluation System, I don't believe I'm fit.

[00:46:29] Speaker 05:
I can't do my job.

[00:46:31] Speaker 05:
I need to go to a military evaluation board.

[00:46:33] Speaker 05:
You need to consider me for discharge.

[00:46:38] Speaker 00:
If he had said all of those things and that was in the record, then maybe that would be grounds for triggering the statute of limitations.

[00:46:45] Speaker 00:
But he didn't have any of that.

[00:46:47] Speaker 00:
He didn't say any of that.

[00:46:48] Speaker 00:
So therefore, I don't see why we would say that the claims court clearly erred in concluding that there was no time bar here.

[00:46:57] Speaker 05:
It's the reverse.

[00:46:58] Speaker 05:
It's his failure to say that.

[00:46:59] Speaker 05:
What he's saying now, first he says, well, I got out of the military because, according to his complaint, he didn't think he was fit to perform his duties.

[00:47:09] Speaker 05:
If that's what he thought, and that's the basis of his case now, there's nothing that said he could not have said exactly that to a military provider.

[00:47:16] Speaker 05:
But that's not in the record.

[00:47:18] Speaker 05:
So his failure to say that, even though he says he knew that all along, that's what his complaint says.

[00:47:23] Speaker 03:
There's a matter that what is in the record is that the court of federal claims said that he did not have knowledge.

[00:47:32] Speaker 03:
He could not have had knowledge, or perhaps he did have knowledge because of his brain injury.

[00:47:38] Speaker 03:
Right, so what?

[00:47:38] Speaker 03:
That was a finding of fact by the court.

[00:47:41] Speaker 05:
Well, you said exactly, Your Honor, this court says exactly as the Court of Federal Claims said.

[00:47:45] Speaker 05:
This is a review on a motion for judgment on the administrative record, similar to summary judgment.

[00:47:50] Speaker 05:
So you're almost sitting as a court of first review, right?

[00:47:53] Speaker 05:
You can look at the same record.

[00:47:55] Speaker 05:
And when it comes to jurisdiction, that decision can be made, certainly is made, de novo.

[00:48:02] Speaker 03:
We looked at whether the Court of Claims clearly erred

[00:48:05] Speaker 03:
whether this fact finding was clearly erroneous.

[00:48:08] Speaker 03:
That's the standard to review.

[00:48:10] Speaker 05:
Right.

[00:48:10] Speaker 05:
So on the facts, there's no fact.

[00:48:12] Speaker 05:
What the judge said was, this was legal reasoning.

[00:48:15] Speaker 05:
The judge said, I think I have jurisdiction because I'm not convinced that he had sufficient knowledge as laid out and be in chambers to appreciate the extent of his injuries.

[00:48:26] Speaker 05:
That's what they said.

[00:48:27] Speaker 05:
The standard is not whether the judge is convinced.

[00:48:29] Speaker 05:
The standard is whether the plaintiff has established jurisdiction by a preponderance of the evidence, and he did not.

[00:48:36] Speaker 05:
But his reasoning behind that finding of not convinced was because he said it was not until October of 2013 that the Veterans Administration finally signed off on a document saying, we believe your disability is 70%.

[00:48:52] Speaker 05:
That document started with his filling out VA forms, I think it was in February of 2013, two months before he got out of the service, answering a questionnaire entitled Disability Benefits Questionnaire.

[00:49:07] Speaker 05:
And he answered all the questions.

[00:49:08] Speaker 05:
He answered all the facts of the case were then established by his own words.

[00:49:13] Speaker 05:
He then sent that on to the VA.

[00:49:15] Speaker 05:
Actually, that was conducted by VA personnel.

[00:49:18] Speaker 05:
It then eventually got to the doctor in the rating system, which this court is very familiar with.

[00:49:23] Speaker 05:
And eventually, some doctors said 70% for PTSD.

[00:49:27] Speaker 05:
But Mr. Ran, sorry, Sergeant B did not have to know the number associated with his claim.

[00:49:34] Speaker 05:
What he had to know was that he had a claim that he could establish in court.

[00:49:38] Speaker 05:
And he does have a claim.

[00:49:39] Speaker 05:
And he did establish it in court.

[00:49:41] Speaker 05:
And the government simply argued with him.

[00:49:43] Speaker 06:
He has to have known that his disability was permanent.

[00:49:47] Speaker 06:
Right.

[00:49:47] Speaker 06:
And he's arguing now that he was doubtful that he knew that it was permanent.

[00:49:52] Speaker 06:
And then the disability has to be at least 30%.

[00:49:55] Speaker 06:
That's to qualify for him.

[00:49:57] Speaker 05:
Right, to qualify.

[00:50:00] Speaker 05:
But there's nothing in the record to this day that says it's permanent.

[00:50:05] Speaker 05:
There is a VA rating that says 70%.

[00:50:06] Speaker 05:
And there's a code.

[00:50:08] Speaker 05:
And if you look up the code, it talks about the persistence of his illness.

[00:50:12] Speaker 05:
But those facts have never changed.

[00:50:15] Speaker 05:
He had a viable claim that he could have brought.

[00:50:18] Speaker 05:
Now, the government may have argued with him about that claim.

[00:50:20] Speaker 05:
That's what makes horse races.

[00:50:23] Speaker 05:
But he certainly had a viable claim.

[00:50:25] Speaker 05:
And it's the exact same claim he brought too late.

[00:50:27] Speaker 06:
But the test under Chambers Real isn't a viable claim.

[00:50:32] Speaker 06:
It's a claim.

[00:50:32] Speaker 06:
It's a claim that he would succeed.

[00:50:35] Speaker 06:
That's the way I read what the Chambers Real is saying.

[00:50:40] Speaker 05:
Well, I would never put a duty on a soldier to exercise clairvoyance concerning, at the end of the day, through all the boards, all of the courts, all of the appellate reviews and so forth,

[00:50:52] Speaker 05:
that the service member would have to know and to be able to take an oath and certify that he knows beyond a reasonable doubt that he will win.

[00:50:59] Speaker 05:
He can't know that.

[00:51:01] Speaker 05:
I can't know that standing here as a lawyer.

[00:51:03] Speaker 06:
I appreciate that.

[00:51:06] Speaker 05:
He has to know.

[00:51:07] Speaker 06:
I'm stuck with what the words in these opinions say.

[00:51:09] Speaker 05:
Right.

[00:51:10] Speaker 05:
It says he has to know that he has a disability.

[00:51:13] Speaker 06:
That would entitle him to a disability retirement.

[00:51:18] Speaker 06:
Right, but to think... The losses.

[00:51:20] Speaker 05:
But the word is claim, though, that also appears in those things.

[00:51:23] Speaker 05:
What you've quoted is exactly right.

[00:51:24] Speaker 05:
That's what it says.

[00:51:25] Speaker 05:
But the courts could not have meant that he had to know he had a winner.

[00:51:29] Speaker 05:
He had a viable claim.

[00:51:31] Speaker 05:
He had all of the elements of a claim.

[00:51:33] Speaker 05:
And he submitted that claim.

[00:51:35] Speaker 05:
No one's saying this is a violation of Rule 11 or that it's a frivolous claim.

[00:51:38] Speaker 06:
The problem is where the exception has been applied have been instances in which the veteran

[00:51:43] Speaker 06:
confessed.

[00:51:44] Speaker 06:
He said, I honestly believe that I'm disabled so as to earn a disability requirement.

[00:51:51] Speaker 06:
So it was almost like a concession.

[00:51:53] Speaker 06:
Right.

[00:51:53] Speaker 06:
And that's evidence.

[00:51:54] Speaker 06:
That's an easy case.

[00:51:55] Speaker 05:
But that's right.

[00:51:56] Speaker 05:
And that's evidence.

[00:51:57] Speaker 05:
And admission against interest is evidence.

[00:52:00] Speaker 06:
But in the setting, that's an easy case.

[00:52:03] Speaker 05:
It is the easy case.

[00:52:03] Speaker 06:
But in all these other cases, there are a number of cases, in all the cases in which the exception is not applied,

[00:52:10] Speaker 06:
There is some basis for claiming the disability.

[00:52:13] Speaker 06:
The veteran is aware that he has a PCSD.

[00:52:17] Speaker 06:
And he's obviously asking for a disability retirement, which means he's hoping that he can show that he's totally disabled well beyond 30 in this case.

[00:52:26] Speaker 05:
Right.

[00:52:27] Speaker 05:
He's hoping.

[00:52:28] Speaker 05:
So Jones, for example, he had a rating of 25%.

[00:52:31] Speaker 05:
This court's decision in Jones.

[00:52:33] Speaker 05:
The service member there, Jones, had a rating of 20%.

[00:52:36] Speaker 05:
And he said, well, I didn't know I had 30%.

[00:52:39] Speaker 05:
So I didn't know I was entitled to it.

[00:52:40] Speaker 05:
So I couldn't file a claim.

[00:52:41] Speaker 05:
And this court disagreed and said, no, you knew the extent of your injuries.

[00:52:46] Speaker 05:
You knew you had a claim.

[00:52:48] Speaker 05:
Whether somebody else agreed, it was 20 or 30, was yet to be determined by the machinations, the machinery of the disability evaluation system and the VA system.

[00:53:00] Speaker 05:
I think it would be remarkable for this court.

[00:53:04] Speaker 03:
Can you move us to our fitness determination, that issue, please?

[00:53:08] Speaker 05:
Sure.

[00:53:08] Speaker 05:
Pretty much everything that's been talked about here is second guessing of the military.

[00:53:12] Speaker 05:
So we have a military board that's made rather specific findings.

[00:53:16] Speaker 00:
What are the official duties for Sergeant B?

[00:53:20] Speaker 00:
What were they?

[00:53:21] Speaker 00:
Do you agree that it comes out of this?

[00:53:24] Speaker 00:
training manual and it's the various core capabilities that are listed for various billets between A1293 and A1303.

[00:53:39] Speaker 05:
Right, that's the Marine Corps's official documentation concerning the sort of... Okay, so we all agree then.

[00:53:46] Speaker 00:
You agree with Mr. B that these are the core capabilities.

[00:53:51] Speaker 05:
Right, and within those capabilities

[00:53:54] Speaker 05:
which the board made specific findings about as to whether he measured up or not.

[00:53:57] Speaker 06:
Do we look at the training manual?

[00:54:00] Speaker 06:
There's the MOS, and then it has the general description, and then it says down below, it says see the training manual for specific details.

[00:54:09] Speaker 05:
So personnel, as someone who has to assign somebody an MOS, would look to see, all right, if we're going to put this person in this MOS, they're going to start with basic training.

[00:54:18] Speaker 05:
And those regulations you're referring to specifically talk about

[00:54:22] Speaker 05:
what's necessary, what qualifications are necessary for an 0369 MOS.

[00:54:28] Speaker 05:
And so, just as it would happen in the civilian world.

[00:54:30] Speaker 06:
I think what Judge Chen was asking is, well, where do we look for a document in order so we can write down a list of what the duties are?

[00:54:38] Speaker 05:
So the MOS description that I think Mr. Clement, I don't know the number off the top of my head, and I can certainly get it for you, that Mr. Clement I think referred to, basically describes the parameters of the MOS.

[00:54:50] Speaker 05:
So once you've qualified for that MOS, you are assigned that MOS, and then throughout your career, you sort of carry that with you.

[00:54:57] Speaker 05:
But there's a wide variety of duties that can take place within that.

[00:55:00] Speaker 06:
And those are all specified out in the training manual?

[00:55:05] Speaker 06:
I think the training manual sets them out, right.

[00:55:08] Speaker 06:
So we looked at the training manual to find duties.

[00:55:13] Speaker 05:
Yeah, so the point the colonel's making is

[00:55:30] Speaker 05:
that not everything can be put in writing.

[00:55:33] Speaker 05:
So for example, if you look at his fitness reports.

[00:55:36] Speaker 06:
Not everything is put in writing?

[00:55:37] Speaker 06:
What does that mean?

[00:55:40] Speaker 05:
Well, there are parameters set out for what qualifies you.

[00:55:43] Speaker 05:
And the military made a decision he was qualified.

[00:55:45] Speaker 05:
Nobody has ever said in this case that he has ever not been qualified.

[00:55:49] Speaker 05:
All the things he has done, first of all, the assignment of an MOS to him.

[00:55:53] Speaker 00:
We're just trying to figure out right now if the board did enough to compare

[00:56:00] Speaker 00:
his condition to the actual duties that were part of his official rank and rating.

[00:56:07] Speaker 00:
And so right now you're telling me, yes, we can look at all these different core capabilities that are listed in these various billets between A1293 and A1303.

[00:56:18] Speaker 00:
And then when we look at those lists of core capabilities, some of them include things like locate, close with, and destroy the enemy by fire and maneuver.

[00:56:28] Speaker 00:
repel the enemy assault by fire in close combat.

[00:56:32] Speaker 00:
So we don't see anything in the board decision that wrestles with those listed core capabilities, for example.

[00:56:42] Speaker 00:
So can we agree with that premise, that the board didn't address those particular itemized core capabilities?

[00:56:53] Speaker 05:
I think they've fully analyzed it in the way they did.

[00:56:55] Speaker 00:
What page would I be able to find that?

[00:56:57] Speaker 05:
You would look at pages.

[00:56:59] Speaker 05:
And I can read these to you.

[00:57:00] Speaker 05:
Now, what you will not find.

[00:57:01] Speaker 00:
I would like to see it in the board decision.

[00:57:04] Speaker 05:
So look at, for example, pages.

[00:57:06] Speaker 05:
It's where the board describes pages 4259.

[00:57:14] Speaker 06:
4259, right?

[00:57:15] Speaker 05:
Yeah.

[00:57:16] Speaker 05:
4256, I should say.

[00:57:18] Speaker 05:
4256.

[00:57:18] Speaker 05:
4256?

[00:57:20] Speaker 06:
I'll need a quote.

[00:57:24] Speaker 06:
Where on 4259?

[00:57:25] Speaker 00:
There's a lot of words on these pages.

[00:57:28] Speaker 00:
I mean, this is the premise of their entire Kelly argument, that there was never an apples to apples analysis here.

[00:57:42] Speaker 05:
And that premise we reject.

[00:57:44] Speaker 05:
Right.

[00:57:45] Speaker 00:
So that means you know where it is here in the board decision.

[00:57:49] Speaker 06:
On 4256, for example, the page you mentioned, could you tell me which words you're talking about?

[00:57:58] Speaker 05:
There are more.

[00:57:59] Speaker 05:
And they come later in the decision.

[00:58:02] Speaker 06:
I agree with you on 4259.

[00:58:10] Speaker 05:
My notes say it says, we believe you could have continued to serve.

[00:58:16] Speaker 05:
We're not dealing here with beliefs.

[00:58:18] Speaker 05:
We're dealing with facts.

[00:58:19] Speaker 05:
So point to me.

[00:58:20] Speaker 05:
This is a belief of the military concerning his support.

[00:58:22] Speaker 05:
Where are you on the page?

[00:58:24] Speaker 05:
What page are you on?

[00:58:26] Speaker 05:
So I started 42.56.

[00:58:27] Speaker 05:
I just notably made a note that there was a statement there in the board's decision that the board believed

[00:58:33] Speaker 05:
He could have continued to serve successfully.

[00:58:35] Speaker 00:
The third full paragraph, the second full paragraph, the third full paragraph.

[00:58:38] Speaker 00:
Yes, I know.

[00:58:38] Speaker 05:
I'm sorry I did not highlight that.

[00:58:40] Speaker 05:
I have the others highlighted.

[00:58:50] Speaker 05:
So in the second full paragraph.

[00:58:53] Speaker 06:
Second full paragraph, the finally paragraph.

[00:58:56] Speaker 05:
Finally, yes.

[00:58:57] Speaker 05:
Which line?

[00:58:58] Speaker 05:
What stands out to you maybe in the middle, you'll see your marine corals are capitalized.

[00:59:06] Speaker 05:
Count the longest.

[00:59:07] Speaker 05:
One, two, three, four, five, six, seven.

[00:59:15] Speaker 05:
It begins on seven.

[00:59:16] Speaker 05:
One, two, three, four, five, six, seven.

[00:59:20] Speaker 05:
That's the one, Your Honor, yes.

[00:59:22] Speaker 06:
I'm sorry, it's the next one.

[00:59:28] Speaker 05:
No, I'm sorry, it's the next one, Your Honor.

[00:59:32] Speaker 05:
It's the next one after that.

[00:59:34] Speaker 06:
It begins with the word based.

[00:59:39] Speaker 06:
Yeah.

[00:59:39] Speaker 05:
over an extended period, no medical limitations aboard, believed that you could have continued serving successfully if you had chosen to rent list.

[00:59:46] Speaker 05:
That's the military saying you would have continued to perform serving if you had not left.

[00:59:51] Speaker 06:
Yeah, but in terms of the specific analysis.

[00:59:53] Speaker 06:
Right.

[00:59:53] Speaker 00:
So one of these core capabilities that I quoted, one is locate, close with, and destroy the enemy by fire and maneuver.

[01:00:02] Speaker 00:
The other one is repel the enemy assault by fire in close combat.

[01:00:06] Speaker 00:
So the question is, these are itemized core capabilities.

[01:00:11] Speaker 00:
And to what extent did the board analyze, in light of the fact that he had an established diagnosis of PTSD and TBI,

[01:00:19] Speaker 00:
He, at the time of his discharge, was capable of locating, closing with, and destroying the enemy by fire and maneuver, and repelling the enemy assault by fire and closing with that.

[01:00:29] Speaker 05:
Well, you won't find those words.

[01:00:31] Speaker 05:
And as the trial judge said in Kelly, there's no statement in the regulations that require that level of detail.

[01:00:40] Speaker 05:
For example, the regulations, the DOD regulations, there's something like- Well, what did we ask for in Kelly?

[01:00:44] Speaker 00:
Didn't we essentially ask for some kind of task by task?

[01:00:47] Speaker 05:
No.

[01:00:49] Speaker 05:
And the regulations, what you said, would have been based on the regulations.

[01:00:53] Speaker 06:
Well, sir, can't you identify for us, in the board's opinion, where they actually did an analysis of reasonable ability to perform your assigned duties?

[01:01:04] Speaker 06:
So you mentioned 4259.

[01:01:06] Speaker 06:
Right.

[01:01:07] Speaker 05:
So for example.

[01:01:07] Speaker 06:
So if you look at 4259.

[01:01:08] Speaker 05:
Yeah, I'm looking at it.

[01:01:10] Speaker 06:
What they do is they say, you last four fit reps when you were over to the Navy doctors and nurses out of Garrison, here are the, here's what your duties were according to your fit rep.

[01:01:22] Speaker 06:
Right.

[01:01:25] Speaker 06:
And so they say, okay, you were doing all those very, very well.

[01:01:29] Speaker 06:
So then they say, we're going to look at what your duties would have been if you'd been assigned in Garrison.

[01:01:36] Speaker 06:
Right?

[01:01:37] Speaker 06:
And they are able to go through the MOS and through even the training manual.

[01:01:41] Speaker 06:
And out of the training manual, they pick out a handful of obligations.

[01:01:47] Speaker 06:
And they say those obligations are overlapped with what you're doing over and with the Navy doctors and nurses.

[01:01:55] Speaker 06:
And because you're fit there, you're going to be fit there, so there's the answer.

[01:02:00] Speaker 06:
I believe that is the core of the analysis of the issue.

[01:02:04] Speaker 06:
Would you agree with me?

[01:02:05] Speaker 05:
More or less.

[01:02:07] Speaker 05:
The core of the analysis is contained on those pages.

[01:02:10] Speaker 06:
You can't point anyplace else in the opinion where there's a similar analysis.

[01:02:16] Speaker 05:
I just want to make sure we're looking at the same things.

[01:02:18] Speaker 05:
I'll take this whole page and put it in our column.

[01:02:21] Speaker 06:
This is the analysis that you were defending here as sufficient on the question of fitness.

[01:02:30] Speaker 05:
On pages 4259, 4260.

[01:02:33] Speaker 05:
Basically, you can read it yourself, of course.

[01:02:35] Speaker 06:
You understand what I'm saying.

[01:02:37] Speaker 06:
Let's not play games here.

[01:02:39] Speaker 06:
No, I understand.

[01:02:39] Speaker 06:
You understand what I'm saying.

[01:02:40] Speaker 06:
So that is the question.

[01:02:42] Speaker 06:
So I think the argument that's coming at you from the bench is fine.

[01:02:47] Speaker 06:
There was an overlap.

[01:02:49] Speaker 06:
And the duties that Sergeant B was performing with the Navy doctors and nurses, he did beautifully on that.

[01:02:55] Speaker 06:
And we'll agree with you.

[01:02:56] Speaker 06:
If he'd been back in Bereson, the only difference would have been different students and the CO would have had a different uniform.

[01:03:04] Speaker 06:
But B, Sergeant B is saying that's not the question.

[01:03:08] Speaker 06:
The question is whether or not those limited duties in the two settings is the correct assessment of the range of his normal duties.

[01:03:18] Speaker 05:
So what's really underlying all this is the idea that there has to be a list, one through 56.

[01:03:26] Speaker 05:
of every task or skill.

[01:03:30] Speaker 06:
That's the task by task, right?

[01:03:32] Speaker 06:
That's your characterization of what Sergeant B is asking for.

[01:03:37] Speaker 06:
I think what Sergeant B is asking for is to say, you can't just assume that when you have a limited category of duties, that that's the only duties to which your office and rank assigns you.

[01:03:52] Speaker 06:
And there's an obligation on the board to look beyond the subset, because I think you've agreed in your answers to Judge Chen that Sergeant B's range of duties was broader than footnote 31.

[01:04:10] Speaker 06:
You've agreed with that?

[01:04:11] Speaker 06:
Yes.

[01:04:12] Speaker 06:
So when you agree with that, the question is, doesn't the board have to then look at at least some of the other duties that are core?

[01:04:20] Speaker 06:
Well, they did.

[01:04:21] Speaker 05:
So for example, and I think- But the combat.

[01:04:24] Speaker 05:
No.

[01:04:25] Speaker 05:
But first of all, there's no question that he was capable of these things in the sense that he had done them before.

[01:04:30] Speaker 05:
So he has muscle memory.

[01:04:32] Speaker 05:
He has experience.

[01:04:33] Speaker 05:
There's nothing in the record the board found that suggested that he had lost any of those.

[01:04:38] Speaker 05:
And in fact, not only was he doing these, the court gave examples.

[01:04:44] Speaker 05:
So they basically said, here's how they sort of covered the waterfront on this without going 1 through 56.

[01:04:50] Speaker 05:
my example, by saying that the duties you're performing are consistent with the duties of an infantry unit leader, MOS 0369.

[01:05:01] Speaker 05:
So if you're responsible for duties 1 through 56, and maybe in one assignment you're doing 1 through 13, another you're doing 14 through 26, it depends.

[01:05:11] Speaker 05:
Are you in an S3 shop, an operations shop, where you're planning combat?

[01:05:16] Speaker 05:
Are you on the front lines?

[01:05:18] Speaker 05:
Are you training soldiers to go to combat?

[01:05:20] Speaker 06:
So your argument basically is that so long as a service member is capable of performing any of his duties, then he's fit, does not unfit.

[01:05:29] Speaker 05:
There's no suggestion that he was not unfit.

[01:05:31] Speaker 05:
The only way that I think Sergeant B would be satisfied is if they sent him to some sort of certification, sent him to Fort Riley, Kansas or Fort Bragg or something and said, we're going to run you through 10 days of simulated combat and we're going to see if you can do land navigation and so forth.

[01:05:48] Speaker 05:
I also want to call the court's attention to the fitness reports that the board clearly did review.

[01:05:53] Speaker 05:
And those are at pages 4896, 4901, and four.

[01:06:00] Speaker 06:
Those are the four while he was in the Navy?

[01:06:04] Speaker 06:
Right.

[01:06:06] Speaker 05:
Yes, 4896, 4901, and 4891.

[01:06:09] Speaker 05:
And there they list more than simply they talk about, for example,

[01:06:17] Speaker 05:
Close combat.

[01:06:19] Speaker 05:
Let me see, I'll turn to the page rather than guessing.

[01:06:27] Speaker 05:
There's a lot more infantry type stuff, tactics.

[01:06:31] Speaker 06:
I have a question related to combat deployability.

[01:06:34] Speaker 06:
My understanding of your response to the four veterans in NECA's brief is that you agree that, as a general proposition, stateside training for combat is relevant.

[01:06:48] Speaker 05:
It's very important because that's where most service members are right now and hopefully for the foreseeable future.

[01:06:55] Speaker 06:
Would you think that in Sergeant B's ranking and rating that one of his duties is to be able to engage in stateside combat training?

[01:07:07] Speaker 05:
He was delivering combat training.

[01:07:09] Speaker 05:
Excuse me?

[01:07:10] Speaker 05:
He was delivering combat training.

[01:07:11] Speaker 05:
So I just refer to those pages 4896.

[01:07:14] Speaker 06:
Well, I don't know what delivering training means.

[01:07:18] Speaker 06:
I mean, I would think that what the four veterans are talking about is participating in training.

[01:07:26] Speaker 06:
going out on whatever military camp, pickle meadows, if it's winter training.

[01:07:32] Speaker 05:
You may know the adage that the best way to learn is to teach.

[01:07:36] Speaker 05:
So, for example, if you look at page 4896, for example, they identify the sort of accomplishments he did, which are all of the sort of things you're talking about.

[01:07:47] Speaker 03:
So the first one at 4896, and this is in... Just to be a little bit clear, you're pointing us now to like the billet description and things like it, right?

[01:07:57] Speaker 03:
But is it on the reverse?

[01:07:59] Speaker 03:
Are these duties that a soldier would undertake on the combat field?

[01:08:06] Speaker 05:
many are in terms of coordinating, providing guidance, things of that nature.

[01:08:13] Speaker 05:
As an E6, you're sort of a higher level, you're approaching management level, so he's doing more soft skills.

[01:08:19] Speaker 05:
But Your Honor, what I was referring to is the last... As an infantry troop leader.

[01:08:24] Speaker 05:
Oh, sure.

[01:08:24] Speaker 05:
I mean, sergeants are not the same as privates, for sure.

[01:08:28] Speaker 05:
And for example, so one of the things here talks about Provides guidance and instruction on military matters.

[01:08:38] Speaker 05:
There's something in the military known as shade tree shade tree classes or shade tree instruction where when you have a break in the action or you're back in the rear or whatever and

[01:08:50] Speaker 05:
You can actually exercise or continue to train or hone your military skills.

[01:08:54] Speaker 05:
Not everybody's fighting at all times.

[01:08:56] Speaker 05:
But Your Honor, what I was referring to on page 4896 and the other sites I've referred to is block C of this fitness report called Billet Accomplishments.

[01:09:05] Speaker 05:
So for example,

[01:09:06] Speaker 05:
the board says, the supervisor, the raider, says here, assisted in the development and refinement of the battalion's culminating field exercise, resulting in more realistic and current tactics, techniques, and procedures used in the fleet marine force.

[01:09:21] Speaker 05:
Are you reading from 4896?

[01:09:23] Speaker 05:
4896, Your Honor.

[01:09:25] Speaker 05:
It's that bottom block.

[01:09:28] Speaker 03:
So in your view, is there any difference between simulation combat and real combat?

[01:09:36] Speaker 05:
Well, yeah, you can get killed in real combat.

[01:09:41] Speaker 03:
In fact, Sergeant B's superiors pulled him out of actual combat, right?

[01:09:48] Speaker 03:
And said, you've had enough, buddy.

[01:09:50] Speaker 03:
Take a knee.

[01:09:51] Speaker 05:
Well, he was given a three-year assignment to train, which is the court found.

[01:09:55] Speaker 03:
But his supervisors acknowledged or saw in him

[01:09:59] Speaker 03:
brave, courageous, well-worn soldier.

[01:10:02] Speaker 03:
He's a hero.

[01:10:03] Speaker 03:
Yeah.

[01:10:03] Speaker 03:
And it was time for him to step down, take a knee, do something else.

[01:10:08] Speaker 05:
That would be true of anybody.

[01:10:10] Speaker 05:
First of all, it's not enough.

[01:10:11] Speaker 05:
That's correct, right?

[01:10:13] Speaker 05:
There is a statement in the record where somebody said, take a knee, which is a colorful phrase.

[01:10:18] Speaker 05:
But what we're dealing with is nothing more than routine assignment philosophy.

[01:10:23] Speaker 05:
He had four assignments back to back to back to back.

[01:10:27] Speaker 05:
That's unbelievable, number one.

[01:10:29] Speaker 05:
To have a fifth, even if he sort of got the rule by escape.

[01:10:33] Speaker 03:
It's quite incredible that he's, well, anyway.

[01:10:36] Speaker 03:
So he was a hero.

[01:10:40] Speaker 03:
Yeah, no question about it.

[01:10:41] Speaker 03:
And he was told, come home.

[01:10:43] Speaker 03:
You've done enough for the country.

[01:10:46] Speaker 03:
Combat duty, anyway.

[01:10:48] Speaker 03:
We're going to have you do something else where you don't get killed or further injured or hurt.

[01:10:54] Speaker 05:
Well, that was a natural consequence of his assignment, but that's the way assignments work.

[01:10:58] Speaker 05:
As Judge Clevenger pointed out, there's a long tooth to tail ratio.

[01:11:03] Speaker 00:
Is this bill at accomplishment pointed out by the board?

[01:11:07] Speaker 05:
I don't know that they quoted it, but they may have quoted it in part.

[01:11:10] Speaker 05:
But they certainly said they reviewed it.

[01:11:11] Speaker 05:
This was a large part of their basis, and they can presume to have read it when they talk about it.

[01:11:16] Speaker 05:
So also it says, led and mentored, trained over 268 students in combat leadership, offensive and defensive operations.

[01:11:23] Speaker 00:
No, I understand.

[01:11:24] Speaker 00:
You're reading from something that the board didn't specifically say.

[01:11:28] Speaker 00:
So I understand.

[01:11:30] Speaker 05:
Right.

[01:11:30] Speaker 05:
But this court has long held that whether you're reviewing the decision of a trial judge or of a board.

[01:11:35] Speaker 00:
Read the liberal consideration.

[01:11:38] Speaker 00:
Pardon me?

[01:11:38] Speaker 00:
Liberal consideration.

[01:11:39] Speaker 00:
Could you speak about that?

[01:11:40] Speaker 00:
Do I talk about liberal consideration?

[01:11:41] Speaker 05:
Sure.

[01:11:47] Speaker 03:
What is it?

[01:11:48] Speaker 03:
First, define it for me.

[01:11:50] Speaker 05:
It's defined.

[01:11:50] Speaker 05:
It won't be defined to Judge Chen's satisfaction, but he has to take up with either the Congress or with Mr. Kurta.

[01:11:58] Speaker 03:
Define it to my satisfaction, then define it to his, and we'll see what the difference is.

[01:12:04] Speaker 05:
So here's the current memo.

[01:12:05] Speaker 05:
And as Mr. Clement said, it's hard to summarize in a sentence because it's got all these words in it.

[01:12:11] Speaker 05:
And it basically breaks down what liberal consideration means without defining the term per se.

[01:12:17] Speaker 05:
So it's not defined any better than

[01:12:20] Speaker 05:
Well, when we talk about preponderance of the evidence, for example, we talk about 5149.

[01:12:24] Speaker 03:
There's no clear definition.

[01:12:26] Speaker 05:
Yeah, there you go.

[01:12:27] Speaker 05:
Exactly.

[01:12:28] Speaker 05:
And there's no clear definition of maybe even beyond a reasonable doubt or clear and convincing.

[01:12:33] Speaker 00:
Could it be as simple as, well, the fact finder shouldn't?

[01:12:37] Speaker 00:
somehow give more weight than it ordinarily would to evidence that supports a PTSD diagnosis and also evidence that supports that PTSD potentially contributed to whatever the circumstances were that led to the discharge?

[01:12:59] Speaker 05:
I think it's more of what

[01:13:03] Speaker 05:
Mr. Hagel did, what Mr. Kurta did, what Mr. Wilkie said, is to say to people that make decisions, you need to be aware that we're in a different world.

[01:13:13] Speaker 05:
The Hagel memo in 2014 began with the concern that PTSD did not exist for military veterans.

[01:13:20] Speaker 05:
They had no way to articulate what happened to them.

[01:13:22] Speaker 05:
They had no medical documentation in particular.

[01:13:25] Speaker 05:
What they might have had is a buddy statement that can describe conditions, they could have the service members own, and they would say- Can you get to the answer?

[01:13:32] Speaker 00:
We understand, we've read the memos.

[01:13:34] Speaker 00:
What is your analysis?

[01:13:36] Speaker 00:
I gave you one proposed theory of what liberal consideration could mean in the context of 52-H.

[01:13:44] Speaker 00:
What's yours?

[01:13:45] Speaker 05:
Liberal consideration says you have to be sensitive to the fact that there's a lack of proof coming from traditional medical sources.

[01:13:54] Speaker 05:
So you have to be aware of the fact and pay attention to the fact that a service member may only have his own words.

[01:14:02] Speaker 05:
And those words are not to be discounted because they are just his own words.

[01:14:06] Speaker 05:
They are to be considered as potentially establishing, but not necessarily proving, that a condition exists.

[01:14:16] Speaker 00:
In the recent white opinion from the claims court, the claims court there expressed something like, we should give less scrutiny or more moderate scrutiny to evidence and testimony that someone has PTSD in order to establish such a PTSD diagnosis.

[01:14:41] Speaker 00:
Do you recall this from the opinion?

[01:14:43] Speaker 05:
I don't know what to call his exact words, but I would not say it that way.

[01:14:46] Speaker 05:
I would simply say what I just said, that a service member's testimony, what it means is, you asked me what liberal consideration means to me, my interpretation, is that a service member's testimony cannot be discounted solely because he is a layman, solely because it's coming from him alone, and he doesn't have traditional sources.

[01:15:08] Speaker 03:
The testimony of the veteran's wife or friends or

[01:15:11] Speaker 03:
Yeah.

[01:15:12] Speaker 03:
Service members, all that should be considered.

[01:15:14] Speaker 05:
100%.

[01:15:16] Speaker 03:
But it wasn't in this case.

[01:15:17] Speaker 05:
It was.

[01:15:18] Speaker 05:
So what it goes to, one of the things that Curtis talks about is that liberal consideration might help, may, these things are all in the conditional, may establish, may establish that he had such a condition, even without a doctor's note.

[01:15:33] Speaker 05:
In this case, the board accepted

[01:15:35] Speaker 05:
So it's, there's no error there, accepted that he had TBS.

[01:15:45] Speaker 03:
Driscoll, that's a case from this Ninth Circuit.

[01:15:52] Speaker 03:
Judge Wallach, sitting on the Ninth Circuit, addressed the issue, the definition of liberal consideration.

[01:15:59] Speaker 03:
He said, thus liberal consideration is a lenient evidentiary standard that is not strict or literal for reviewing the veterans claim that PTSD potentially contributed to the circumstances resulting in the discharge.

[01:16:15] Speaker 05:
Do you think that captures it?

[01:16:22] Speaker 05:
Do you pretty much agree with that?

[01:16:29] Speaker 06:
Pretty much agree with that, yes.

[01:16:31] Speaker 06:
You agree with what the opinion said the consequences were?

[01:16:36] Speaker 06:
Basically that in dispute, the benefit of the doubt goes to the veteran?

[01:16:41] Speaker 05:
No.

[01:16:42] Speaker 05:
There's no benefit of the doubt rule here.

[01:16:44] Speaker 05:
It doesn't go any further.

[01:16:45] Speaker 05:
Do you agree that that's what Ducey is saying?

[01:16:48] Speaker 05:
I think that's what he said, and we disagree with that.

[01:16:51] Speaker 05:
So there's nothing in CURTA that says that, and there's nothing in the statute, plain words or otherwise, that says that.

[01:17:00] Speaker 06:
if we were to conclude that whatever it is, it's less than what Bussey says is we'd create a conflict in the circuits?

[01:17:16] Speaker 06:
I suppose if you were... Well, what's an issue there and why that case is not... The argument here is that I think basically what the veteran is trying to argue is that he thinks Bussey's correct.

[01:17:28] Speaker 05:
So what he's saying, so the question here ultimately is whether this applies to fitness.

[01:17:33] Speaker 06:
Was it issued in Bussey?

[01:17:36] Speaker 05:
No, it was issued there.

[01:17:37] Speaker 05:
Why he agrees with it is not, I don't think there's any big debate about liberal consideration is because it's defined in the Curda memo.

[01:17:45] Speaker 05:
Those are plain words.

[01:17:47] Speaker 05:
I'm not going to put a gloss on them.

[01:17:49] Speaker 06:
Whatever it is.

[01:17:50] Speaker 06:
I mean, we've now been talking for a while, and our minds and your minds haven't been able to come up with an expression of what it is, the way you can describe what current convincing evidence is or what substantial evidence is.

[01:18:03] Speaker 06:
You have a broader argument here, which is that whatever liberal consideration is, it doesn't apply.

[01:18:10] Speaker 06:
Right.

[01:18:10] Speaker 06:
And then that argument has to be in two pieces.

[01:18:14] Speaker 06:
It doesn't apply to the statute or

[01:18:17] Speaker 06:
doesn't apply under CURTA, because you agree that CURTA binds the boards independent of the statute.

[01:18:25] Speaker 06:
Yes.

[01:18:26] Speaker 06:
Correct.

[01:18:28] Speaker 06:
So what is your argument as to why liberal consideration doesn't apply to this case under the statute?

[01:18:35] Speaker 05:
I think Judge Bonilla's contribution to the jurisprudence in this area was to adopt sort of a- First, why don't you look at your brief and tell us what you told us why it didn't apply?

[01:18:48] Speaker 05:
what we said was there were two different regimens.

[01:18:52] Speaker 06:
Your brief didn't look at section H1, correct?

[01:19:03] Speaker 06:
You have to agree that your brief is a little thin in response to the question that starts on page 40.

[01:19:12] Speaker 06:
Thin on why it is a matter of statutory interpretation.

[01:19:16] Speaker 06:
There's no LC.

[01:19:20] Speaker 06:
And if I might mistaken, your entire argument on the statute is on page 47 in one sentence.

[01:19:33] Speaker 06:
Unlike the request Joanne decided, Mr. Beas is not a request, quote, for review of a discharge or dismissal.

[01:19:44] Speaker 06:
Let me just turn it back, Your Honor.

[01:19:47] Speaker 06:
Did you write the brief?

[01:19:49] Speaker 06:
I did.

[01:19:50] Speaker 06:
Did you sign the brief?

[01:20:03] Speaker 06:
Yeah.

[01:20:03] Speaker 06:
I'm not mistaken.

[01:20:04] Speaker 06:
What I just quoted on line 47 refers to paragraph H1 of 1552.

[01:20:14] Speaker 06:
I think that's right.

[01:20:18] Speaker 06:
You have the statute with you?

[01:20:21] Speaker 06:
I do.

[01:20:21] Speaker 06:
I have it on my phone.

[01:20:23] Speaker 06:
I brought it up here.

[01:20:24] Speaker 05:
OK, Your Honor.

[01:20:35] Speaker 05:
I'm looking at H1.

[01:20:46] Speaker 00:
Do you have any more questions?

[01:20:49] Speaker 00:
I do, but I don't know.

[01:20:53] Speaker 05:
Yes.

[01:20:53] Speaker 05:
And so I'm reading H1.

[01:21:00] Speaker 05:
And so your question about H1.

[01:21:03] Speaker 06:
OK.

[01:21:05] Speaker 06:
So you see where you're saying there, well, this is a different case, because you're not asking for review of a discharge or dismissal.

[01:21:13] Speaker 06:
And can you tell me what Sergeant B's response to that argument was?

[01:21:24] Speaker 05:
So you're asking about page 47 of our brief?

[01:21:26] Speaker 06:
47, yeah.

[01:21:27] Speaker 06:
I'm trying to find there was an argument being made by Sergeant B that the plain meaning of 1552B says they get liberal consideration.

[01:21:38] Speaker 06:
And this is your statutory construction argument here.

[01:21:50] Speaker 05:
So I think what we were saying there harkens back to an earlier call.

[01:21:53] Speaker 06:
Did you read his criticism?

[01:21:57] Speaker 06:
I'm sorry?

[01:21:59] Speaker 06:
Sergeant B filed a response to your reply.

[01:22:04] Speaker 06:
And he said, you're basically reading out of H1 the word claim, because his reviewers were a claim or review, not just reviewing the discharge.

[01:22:18] Speaker 05:
Right.

[01:22:20] Speaker 05:
I understand that that's his claim and that's exactly what the statute says.

[01:22:23] Speaker 05:
I'm not saying he's not made a claim.

[01:22:25] Speaker 05:
What I'm saying is liberal consideration does not apply to the military disability evaluation system.

[01:22:31] Speaker 05:
This does not speak at all to that system.

[01:22:34] Speaker 06:
Why not?

[01:22:35] Speaker 06:
If you read, if you read H1 broadly, right, is, is the claim, okay, or review based in wholly in part on anything having to do with PTSD.

[01:22:52] Speaker 05:
Right.

[01:22:52] Speaker 05:
So what we've said about that is there are two separate systems.

[01:22:56] Speaker 05:
One of the things points judgment he made in white was that if this is operating within the lane constructed by the... I'm trying to stay with the specific language of the statute.

[01:23:06] Speaker 06:
I'm trying to deal with the argument you made here at 47.

[01:23:11] Speaker 06:
And then Sergeant B responded to that.

[01:23:13] Speaker 06:
And Sergeant B said, well, you've read the key word out of the statute.

[01:23:18] Speaker 06:
Right.

[01:23:18] Speaker 06:
And you have read the key word out of the statute.

[01:23:20] Speaker 05:
What the distinction we're trying to make is that a claim for disability is not covered by this statute at all, as opposed to a change to the narrative reason.

[01:23:32] Speaker 05:
But why not?

[01:23:33] Speaker 05:
Well, if he wanted to change the narrative reason, like in Doyan, we'd have no argument.

[01:23:37] Speaker 05:
I mean, Curtin makes plain.

[01:23:39] Speaker 05:
He could do that.

[01:23:40] Speaker 05:
He is asking for entry.

[01:23:42] Speaker 06:
That's what he's saying here.

[01:23:43] Speaker 06:
He's saying we need to change the narrative reason.

[01:23:45] Speaker 06:
We need to change the coding.

[01:23:47] Speaker 05:
OK, he could change the narrative reason.

[01:23:49] Speaker 05:
If he wants to change it from voluntary separation program to disability, or whatever the suitable code would be that pertains to a circumstance, that would be one thing.

[01:24:01] Speaker 05:
No different than in Labonte, where Mr. Labonte was court-martialed.

[01:24:06] Speaker 05:
And in real life, he was court-martialed in sentence.

[01:24:09] Speaker 05:
But this court made a distinction and said his paperwork that he needs to be something different.

[01:24:15] Speaker 06:
The breadth of his claim isn't clearly embraced as a matter of plain meaning by H1.

[01:24:21] Speaker 06:
He has a claim, right, for review of a discharge.

[01:24:29] Speaker 06:
He's saying, I want to review my volunteering out, and I want to do it based in whole and part on a matter related to PTSD, because I think I should have been found disabled.

[01:24:43] Speaker 05:
And that's a different circumstance.

[01:24:44] Speaker 06:
But that's his claim.

[01:24:45] Speaker 05:
Yeah, I understand that.

[01:24:46] Speaker 05:
And that's plain language.

[01:24:47] Speaker 06:
And so his claim falls within age one as plain meaning.

[01:24:53] Speaker 05:
He does.

[01:24:54] Speaker 06:
Right, it does.

[01:24:55] Speaker 06:
OK, so let's stop there.

[01:24:56] Speaker 05:
It falls within.

[01:24:57] Speaker 05:
And the most he would get out of that is liberal consideration that he had PTSD.

[01:25:02] Speaker 05:
And he got it.

[01:25:03] Speaker 05:
The board accepted that he had PTSD.

[01:25:05] Speaker 05:
But H2B goes further.

[01:25:08] Speaker 00:
It says, you review the claim with liberal consideration that the PTSD potentially contributed to the circumstances resulting in the discharge.

[01:25:19] Speaker 00:
And so then the next question for circumstances like Mr. B is,

[01:25:25] Speaker 00:
was his PTSD a potentially contributing factor that would lead to a medical unfitness?

[01:25:36] Speaker 00:
As I understand the BCNR, they do undertake fitness determinations in analyzing whether to do a correction to a military record.

[01:25:48] Speaker 00:
That's all that would be happening here, another fitness determination.

[01:25:52] Speaker 00:
And maybe, just maybe, just tracking the statutory language, when it comes to someone with PTSD, when it comes to someone who's saying that the PTSD should have led to a medical retirement, you give a little boost to the analysis as to whether the PTSD potentially contributed to supporting a medical and fitness funding.

[01:26:24] Speaker 05:
So we don't think that any of this applies.

[01:26:26] Speaker 05:
I understand the plaintiff's argument.

[01:26:27] Speaker 05:
I'm not fighting on that at all.

[01:26:29] Speaker 05:
What I'm saying is, as Judge Bonilla pointed out in white under the so-called old soil document, this exists within the lane created by DOD that began with Mr. Hagel.

[01:26:41] Speaker 05:
saying service members have a hard time establishing why they did what they did.

[01:26:47] Speaker 05:
And their paperwork indicates bad conduct discharge, unauthorized.

[01:26:52] Speaker 05:
He specifically spoke about it.

[01:26:53] Speaker 00:
So if I could just quickly translate to cut this short.

[01:26:57] Speaker 00:
Your view is?

[01:26:58] Speaker 00:
Whatever these words are on the statute, just go look at Hegel and Kurta and restrict yourself to what Hegel and Kurta speak to.

[01:27:08] Speaker 00:
And neither Hegel nor Kurta speak to medical retirements.

[01:27:11] Speaker 05:
That's right.

[01:27:12] Speaker 00:
OK.

[01:27:12] Speaker 00:
So that's your argument in response to the statutory question.

[01:27:17] Speaker 05:
Yes.

[01:27:17] Speaker 05:
And in addition, this statute, which was within the lanes of Hegel and Kurta, codified it.

[01:27:23] Speaker 05:
never said, and Hagel and Kurden never said, and Basarani says they never said, that this was aimed at fitness determinations.

[01:27:31] Speaker 05:
The fitness determinations are part of an entirely different regimen under 10 USC 1201, where the benefit of the doubt, the presumption of fitness is involved, where the preponderance of the evidence has to show that a service member was not fit, and so forth.

[01:27:47] Speaker 05:
So if all he wanted was to change the narrative reason,

[01:27:51] Speaker 05:
And it just sat there as a paper entry, like in Labonte.

[01:27:55] Speaker 05:
I suppose he could have that.

[01:27:56] Speaker 05:
But ultimately, if you wanted to say, now I need to be found unfit, he would have to appear before basically the BCMR or at this point the BCNR.

[01:28:06] Speaker 05:
And they would decide, which they pretty much did, fitness, applying the fitness rules.

[01:28:11] Speaker 00:
But the board did do a fitness determination.

[01:28:13] Speaker 05:
They essentially did.

[01:28:14] Speaker 05:
In fact, in using the term proponent to the evidence, they were echoing the requirements

[01:28:19] Speaker 05:
of that system.

[01:28:20] Speaker 00:
They seem to do fitness determinations regularly.

[01:28:24] Speaker 05:
I'm sorry, Your Honor?

[01:28:25] Speaker 00:
They seem to do fitness determinations regularly.

[01:28:27] Speaker 05:
They do do fitness determinations.

[01:28:29] Speaker 05:
And what they're saying is, and what the Vazirani memo says is, when you're sitting as a fitness board, because members have already left, they don't have access to a PEB and so forth, then you're going to apply the rules that pertain to how we determine fitness.

[01:28:45] Speaker 05:
Those are determined by the statute, 1201,

[01:28:47] Speaker 05:
and by the secretarial regulations underneath that.

[01:28:50] Speaker 05:
That includes the presumption of fitness and all the other things.

[01:28:53] Speaker 05:
That's one system.

[01:28:55] Speaker 05:
Congress never spoke to that system in the entirely different circumstance of correcting a DD214.

[01:29:02] Speaker 05:
You might have paperwork saying one thing.

[01:29:04] Speaker 03:
I think we have your argument, and we thank you for that.

[01:29:07] Speaker 05:
Thank you.

[01:29:08] Speaker 05:
I appreciate the attention you've spoken to.

[01:29:10] Speaker 05:
You've spent on this.

[01:29:12] Speaker 03:
The reality is we could sit here all day discussing this case.

[01:29:16] Speaker 05:
I could for sure, and I know you don't want to.

[01:29:19] Speaker 03:
All right.

[01:29:20] Speaker 03:
Let's hear from Mr. Clemente.

[01:29:21] Speaker 03:
And you had three minutes of rebuttal time.

[01:29:27] Speaker 03:
You could take a little bit more if you need it.

[01:29:30] Speaker 03:
But you're on for three minutes, OK?

[01:29:31] Speaker 01:
Thanks, Your Honor.

[01:29:33] Speaker 01:
On liberal consideration,

[01:29:38] Speaker 01:
Just to be clear, when Mr. B took the voluntary separation, he did that because of his disabilities, because of his PTSD and TBI.

[01:29:49] Speaker 06:
Where is that in the record?

[01:29:53] Speaker 01:
Where's what?

[01:29:54] Speaker 06:
You're saying that the reason why he went to VSP was because of his PTSD?

[01:30:00] Speaker 01:
Well, we have in the record his statements of struggling with his TBI and his PTSD and his declaration, and those same statements from his wife.

[01:30:10] Speaker 01:
I don't believe off the top of my head that we have a statement saying, I did VSP.

[01:30:19] Speaker 06:
Not by him.

[01:30:19] Speaker 06:
You have it in your briefs.

[01:30:21] Speaker 06:
Two points in your brief below.

[01:30:22] Speaker 06:
You'd make that argument.

[01:30:24] Speaker 01:
Well, right.

[01:30:24] Speaker 01:
And I think that that's what the evidence in the record

[01:30:28] Speaker 01:
supports that conclusion.

[01:30:31] Speaker 01:
And so as far as 1552H is concerned, these would be the circumstances that potentially contributed to the discharge, would be that his traumatic brain injury and his PTSD.

[01:30:46] Speaker 01:
In terms of, and this will be my shot at answering

[01:30:54] Speaker 01:
the liberal consideration standard.

[01:30:56] Speaker 01:
I guess I would just say, when these standards are filled in, normally this is just, it happens to the accretion of case law, and those facts then give shape to a broader standard.

[01:31:06] Speaker 01:
But I think here, I would say at least two main things.

[01:31:12] Speaker 01:
One, you need to say that you're applying liberal consideration.

[01:31:15] Speaker 01:
The board needs to say that and show how it's impacting its analysis throughout.

[01:31:21] Speaker 01:
Here, it didn't do that.

[01:31:23] Speaker 01:
Two, the board should start with the presumption that the evidence submitted by the veteran from outside the service record is legitimate evidence.

[01:31:34] Speaker 01:
It shouldn't, like on par with the service record evidence.

[01:31:37] Speaker 01:
It doesn't mean that that evidence is going to be dispositive.

[01:31:40] Speaker 01:
doesn't mean it has to win the day.

[01:31:42] Speaker 01:
But you can't take all of this evidence submitted by a veteran based on a licensed psychiatrist, based on his testimony, his wife, all this evidence, the VA ratings.

[01:31:53] Speaker 01:
You can't dismiss that and say, well, we don't see it in the service record.

[01:31:58] Speaker 01:
Therefore, it's not reliable.

[01:32:01] Speaker 01:
So I think at minimum, at a high level, that's what's required in liberal consideration.

[01:32:07] Speaker 01:
So giving that outside evidence, outside the service record, legitimate weight, doesn't mean it has to win the day, but you can't dismiss it because you don't see it in the service record.

[01:32:17] Speaker 06:
But it is subject to being discounted, rejected for sufficient valid reason.

[01:32:23] Speaker 01:
Yes.

[01:32:25] Speaker 01:
On fitness, I think that, as I understand it, the government has basically agreed that these are the duties that are the correct duties.

[01:32:36] Speaker 01:
And we think that that is essentially just positive.

[01:32:39] Speaker 01:
I'll just remind the court.

[01:32:40] Speaker 01:
We also think under Kelly, the failure to consider the relevant criteria, deployability, and common military tasks is an additional basis to vacate and remand.

[01:32:53] Speaker 01:
Finally, on jurisdiction, just very briefly, you can't self-refer, that's Kelly at 890.

[01:32:59] Speaker 01:
Also, the trial court findings were much more extensive and they are reviewed for clear error.

[01:33:04] Speaker 01:
As you said, Judge Raina, this is Appendix 6 to 7, and that's where the trial court didn't say

[01:33:10] Speaker 06:
What's your response to the government's argument on the right to self-refer?

[01:33:15] Speaker 06:
As you could tell, I wasn't getting as sharp an answer as I wanted.

[01:33:20] Speaker 06:
I realized it may be a more separate concept than I appreciate as a non-military person.

[01:33:28] Speaker 06:
Well, actually there had been, Sergeant B did have a right to get into the system by going to the doctor and saying, look, I'm in very bad shape and you need to pay attention to me.

[01:33:44] Speaker 01:
Kelly at page 890 says, a service member cannot self-refer to the disability evaluation system.

[01:33:50] Speaker 01:
Kelly says this on page 890.

[01:33:52] Speaker 01:
We cite the regs as well in our brief.

[01:33:56] Speaker 03:
And doesn't it set out who can make the referral for the veteran, like the superior officer?

[01:34:01] Speaker 01:
Yeah, there are specific people identified who can do that.

[01:34:07] Speaker 06:
Well, if that's the case, then we might as well just take real and so long until the military changes its rules.

[01:34:13] Speaker 06:
It's sort of real in the trash can.

[01:34:15] Speaker 01:
Well, that's why I think in the 20 years since Chambers was decided,

[01:34:20] Speaker 01:
There have been only three cases ever finding the real exception satisfied, one of which was overturned.

[01:34:26] Speaker 01:
That was Reeves.

[01:34:27] Speaker 01:
And the other two, as your honor mentioned, there were express disability waivers.

[01:34:31] Speaker 01:
That's Woods and Pohl.

[01:34:33] Speaker 01:
And here, the waiver of the entitlements of disability benefits.

[01:34:36] Speaker 01:
And there's nothing of the sort here.

[01:34:39] Speaker 03:
We thank you for your argument.

[01:34:40] Speaker 03:
We thank all the parties for your patience and your argument.

[01:34:45] Speaker 03:
It was very well done.

[01:34:47] Speaker 03:
And this course now stands to recess.

[01:34:50] Speaker 06:
If I was a little sharp with either one of you, I apologize for that.

[01:34:54] Speaker 06:
But I hope you can appreciate that what we are trying to do is to be as precise as we can.

[01:34:59] Speaker 06:
So we are trying to turn the square corners that our honorable members in the military do.

[01:35:05] Speaker 06:
And sometimes it's a little frustrating.

[01:35:07] Speaker 06:
I realize that you all are doing your best.

[01:35:10] Speaker 00:
Thank you.

[01:35:12] Speaker 00:
Same here.