[00:00:00] Speaker 00:
The next case for argument is 24-2105, United States.

[00:00:11] Speaker 04:
Good morning, Your Honors.

[00:00:13] Speaker 04:
My name is Wojciech Kronacki, and I'm an attorney for appellant.

[00:00:17] Speaker 04:
Appellant is in the courtroom today with us.

[00:00:21] Speaker 04:
Your Honors, we would respectfully request that the court vacate the judgment of the Court of Federal Claims and remand it to the Court of Federal Claims for further decision.

[00:00:32] Speaker 04:
This case concerns certificate of discharge and other documents that indicate that appellant reached the maximum

[00:00:42] Speaker 04:
years of service and meaning that it was in... So let's just get down to it because we know what the case is about.

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

[00:00:48] Speaker 00:
Why was the Court of Federal Claims wrong to say that her retiring early voluntarily barred her because there's no money-mandating statute that comes into play naming whatever the Military Pay Act

[00:01:06] Speaker 04:
We would argue, Your Honor, for two reasons.

[00:01:09] Speaker 04:
The first one is the Rule 12D of the Court of Federal Claims that states that if the defendant is introducing matters outside of pleadings or outside of the administrative record, both parties have a right and must be given a reasonable opportunity to present all matters pertinent to this motion in this case.

[00:01:33] Speaker 04:
Appellant was not able to do so because the case was dismissed outright.

[00:01:38] Speaker 04:
Because this matter was in dispute, a motion for summary judgment would also not be appropriate.

[00:01:45] Speaker 00:
Are you disputing the time that she retired?

[00:01:47] Speaker 00:
I mean, that's an official thing.

[00:01:50] Speaker 00:
We're not disputing that it was before the 28th anniversary, which the statute seems to require.

[00:01:59] Speaker 04:
We're not disputing the timing, Your Honor.

[00:02:01] Speaker 04:
We're disputing that it was voluntary.

[00:02:04] Speaker 04:
We're arguing that it was

[00:02:05] Speaker 04:
Involuntary and consistent with Atkins, an early submission of a voluntary retirement doesn't automatically mean that it's a voluntary retirement.

[00:02:16] Speaker 04:
In Atkins, the Department of Defense notified a field grade officer that you will be mandatory retired.

[00:02:24] Speaker 04:
He submitted a request to early retire.

[00:02:28] Speaker 04:
And the Department of Justice moved to dismiss his case because they were arguing it was a voluntary retirement.

[00:02:34] Speaker 04:
But the Court of Federal Claims granted the motion to dismiss, and the Court of Appeals for the Federal Circuit overturned it because it stated that it would have still been a voluntary retirement.

[00:02:47] Speaker 04:
In this case, the administrative record shows that the Board for Correction of Naval Records, which are presumed to be the experts in military personnel law,

[00:02:57] Speaker 04:
have decided in their decision that Commander Frank has been mandatorily retired, which means involuntarily.

[00:03:06] Speaker 04:
In addition, we also have her request when she submitted a petition

[00:03:12] Speaker 04:
to the Board for Correction of Naval Records, and this is page 66 and also 755 and 89, where she specifically requested the Board for Correction of Naval Records to expedite the processing of her petition because she was scheduled to monetarily retire in October of 2021.

[00:03:33] Speaker 03:
And this is- I understand that all of that was in front of the Court of Federal Claims.

[00:03:37] Speaker 03:
What more would you have presented

[00:03:40] Speaker 03:
if on 12D you were given an opportunity to present more.

[00:03:45] Speaker 04:
We would definitely present additional evidence, including statements or maybe any additional records, to show that the appellant was notified in January of 2021 that this would be a mandatory retirement.

[00:04:03] Speaker 04:
Appellant specifically petitioned the Board for Correction of Naval Records in February of 2021 to expedite it because she knew that her only

[00:04:12] Speaker 04:
opportunity to be properly considered for promotion would be if the board made a decision before she was mandatory retired.

[00:04:22] Speaker 04:
So she would not have submitted this request had she been properly informed.

[00:04:28] Speaker 03:
Why did she even submit a retirement request?

[00:04:31] Speaker 03:
My understanding was that would be unnecessary if she was going to be mandatory retired

[00:04:40] Speaker 03:
involuntarily on the 28th anniversary, she didn't need to do anything.

[00:04:46] Speaker 04:
Your Honor, the reason why Appellant submitted this request is it was because it was her understanding that she was going to be mandatory retired anyway.

[00:04:56] Speaker 04:
And when the Navy says to clear your desk, you clear your desk.

[00:05:00] Speaker 04:
So she submitted this request.

[00:05:03] Speaker 01:
Just so I can also understand this same

[00:05:06] Speaker 01:
question a little better.

[00:05:07] Speaker 01:
Is there some advantage to the service member when they are about to be mandatorily retired to choose to file a retirement application that would occur at the same time that the mandatory retirement would occur?

[00:05:26] Speaker 04:
Yes, Your Honor.

[00:05:28] Speaker 01:
Because if there is none, then it does seem like almost a redundant, empty exercise.

[00:05:34] Speaker 04:
Yes, Your Honor, there could be.

[00:05:37] Speaker 04:
One is you can get quicker to the court.

[00:05:40] Speaker 04:
Because by requesting to retire early, just like in Atkins, you keep the process moving forward.

[00:05:48] Speaker 04:
Appellant has been fighting for justice in this case since 2017.

[00:05:52] Speaker 04:
So she filed a petition with the Board for Correction of Naval Records in January of 2021.

[00:05:59] Speaker 03:
I'm confused.

[00:06:00] Speaker 03:
I think you're now talking about petition and litigation filings.

[00:06:04] Speaker 03:
I think the question is, why did she file a request for voluntary retirement?

[00:06:10] Speaker 03:
when she was going to be mandatorily retired on the 28th anniversary?

[00:06:15] Speaker 04:
Because this made her retirement date earlier, and then this would allow her to... But if it makes her retirement date earlier, doesn't that defeat your case?

[00:06:27] Speaker 03:
Isn't that an acknowledgement that she asked voluntarily, perhaps based on mistaken information, but she voluntarily asked to be retired earlier

[00:06:38] Speaker 04:
then she mandatorily would have been retired.

[00:06:54] Speaker 04:
I think ultimately the logic is you don't have to wait until the last day when you're being told you're being mandatorily retired.

[00:07:02] Speaker 04:
You can apply early and it's still considered mandatory retirement.

[00:07:07] Speaker 04:
In this case, Appellant has already been not selected for promotion twice.

[00:07:12] Speaker 04:
She was removed from the promotion list in 2019, then in 2020, and in 2021 she was not selected for promotion.

[00:07:20] Speaker 04:
So that was another

[00:07:21] Speaker 04:
mandatory grounds that the appellant would have been forced to mandatory retire anyway.

[00:07:28] Speaker 04:
In this case, the Navy issued a certificate of discharge.

[00:07:31] Speaker 04:
Now it's important to note that the process of issuing a certificate of discharge starts approximately one year early.

[00:07:38] Speaker 04:
So this coincides with submitting the petition to the Board for Correction of Naval Records in early 2021.

[00:07:45] Speaker 04:
where first the Navy has to issue orders, then they have to issue the proper code, and then they have to issue the reason for separation.

[00:07:55] Speaker 04:
The Navy has been working on this since early 2021.

[00:07:58] Speaker 03:
To address the justiciability argument, the government seems to offer that as an alternative basis to affirm the dismissal

[00:08:08] Speaker 03:
I think of your entire case that the promotion at least is non-justiciable and therefore everything else isn't.

[00:08:16] Speaker 03:
What's your response?

[00:08:17] Speaker 04:
Your Honor, we would respectfully disagree with this argument and we have two on-point cases.

[00:08:23] Speaker 04:
One is Atkins and the other one is Dessert that specifically say that the court will not question the

[00:08:31] Speaker 04:
at the discretion of the Navy for promotion, but the court will question the process.

[00:08:37] Speaker 04:
And the court will check whether the process was followed.

[00:08:40] Speaker 04:
And in both in Atkins and in this area, the court determined that the military didn't follow its process, and that's why the court stepped in and was involved.

[00:08:53] Speaker 04:
Frank Appelant has never argued that she's entitled to promotion.

[00:08:58] Speaker 04:
She's arguing that she's entitled to the correct application of all the naval instructions here.

[00:09:05] Speaker 04:
And then in this case, the Board for Correction of Naval Records, the experts,

[00:09:09] Speaker 04:
have determined that the Navy has not complied with the proper detachment for cause because one of the grounds was not documented by the evidence.

[00:09:18] Speaker 04:
And this is the removal for the loss of trust.

[00:09:22] Speaker 04:
Commander Frank has always explained that she was never in command.

[00:09:26] Speaker 04:
The Board for Correction of Naval Records has agreed with it.

[00:09:29] Speaker 04:
And we would respectfully request that the court hold the Navy accountable instead of just allowing the Navy to throw this harmless air blanket

[00:09:38] Speaker 04:
over all those violations.

[00:09:40] Speaker 04:
In addition, the Navy has delayed the consideration of the removal for over two years.

[00:09:47] Speaker 04:
It was two years and two months, which goes against the congressional intent of limiting how long the Navy can decide on this.

[00:09:56] Speaker 04:
And then finally, the Navy has spent over a year issuing certificate of discharge orders and the special codes to all indicate

[00:10:05] Speaker 04:
that Commander Frank, the appellant, has been being mandatorily retired for meeting the maximum years of service.

[00:10:12] Speaker 04:
But when she filed a lawsuit to contest this, all of a sudden the appellee is arguing that these records are incorrect and that the motion should be granted for the dismissal.

[00:10:28] Speaker 04:
So we would respectfully request that Your Honor deny the motion.

[00:10:35] Speaker 00:
Can I just ask you kind of a housekeeping question?

[00:10:37] Speaker 00:
You've mentioned Atkins here a number of times in response.

[00:10:42] Speaker 00:
I don't see it in the table of authorities in blue.

[00:10:44] Speaker 00:
Did you cite Atkins in your blue brief?

[00:10:47] Speaker 04:
Yes, Your Honor.

[00:10:48] Speaker 04:
We believe we referenced Atkins in our response brief.

[00:10:53] Speaker 00:
In gray, it's like seven sites.

[00:10:58] Speaker 00:
But I'm asking about blue.

[00:11:00] Speaker 04:
No, we haven't referenced there because we were relying on the arguments made by the appellee.

[00:11:10] Speaker 04:
An appellee started to argue that this issue was not revealed by the court.

[00:11:16] Speaker 04:
So we explained that it was.

[00:11:17] Speaker 04:
And we have Atkins, and we also have this.

[00:11:20] Speaker 00:
consistent with what the court of federal claims said, and here you are appealing the court of federal claims.

[00:11:25] Speaker 04:
We would argue that the primary issue for us would be the motion to dismiss.

[00:11:31] Speaker 04:
And then Commander Frank has never argued that she's entitled to promotion.

[00:11:36] Speaker 04:
She's arguing to a proper review.

[00:11:38] Speaker 04:
And then Atkins states that she can submit an early request to retire that can still be considered mandatory, and that courts can review whether the Navy followed the proper promotion procedures.

[00:11:52] Speaker 04:
In this case,

[00:11:53] Speaker 04:
the Navy issued documents stating that it was a mandatory retirement because she reached her mark.

[00:11:57] Speaker 00:
No, I understand the merits.

[00:11:59] Speaker 00:
I'm just talking about how if this becomes the heart of your case, it's kind of problematic or at least questionable why it wasn't cited in blue at all.

[00:12:08] Speaker 00:
I mean, it's not like you didn't know this issue was here and you heard about it for the first time.

[00:12:15] Speaker 04:
Your Honor, we would respectfully submit that this is not the primary issue in this case.

[00:12:19] Speaker 04:
The primary issue is that

[00:12:21] Speaker 04:
Her complaint was dismissed by considering matters outside of pleadings and she never had a chance to breathe this.

[00:12:29] Speaker 04:
The argument that the courts cannot review promotion considerations has been well laid and explained because it's clear in Atkins or in dissents that the court can always review the procedures.

[00:12:42] Speaker 04:
Here she was detached for cause for

[00:12:46] Speaker 04:
for one of the grounds that was not applicable.

[00:12:50] Speaker 04:
The Board for Correction of Naval Records agreed with that, but there was no relief granted.

[00:12:55] Speaker 04:
So we would argue that the Secretary of the Navy, when he took care of the promotion list, relied on the improper ground and this tainted the whole process.

[00:13:20] Speaker 00:
Good morning.

[00:13:22] Speaker 02:
May it please the court?

[00:13:24] Speaker 02:
I'll start with the justiciability issue that was just discussed.

[00:13:27] Speaker 02:
I think that's an important point that was raised.

[00:13:29] Speaker 02:
Mr. Kornacki just said that Commander Frank has never argued that she's not entitled to a promotion.

[00:13:35] Speaker 02:
If that's the case, then I'm not sure what the claim for monetary damages is in the complaint.

[00:13:39] Speaker 02:
And the reason for that is that Commander Frank served in the rank of commander up until her retirement and was paid for that service.

[00:13:47] Speaker 02:
So I've always understood the complaint to mean

[00:13:49] Speaker 02:
There has to be some monetary damages for back pay, meaning I should have been promoted to captain maybe in 2017 or 2018 and received a pay for that service as a captain.

[00:13:59] Speaker 02:
Without that claim for back pay, I don't think there's any claim for monetary damages in the complaint.

[00:14:03] Speaker 02:
And it appears to be just a request to correct Commander Frank's military records.

[00:14:09] Speaker 02:
That's a problem because under the Tuckrack 1491, any correction of military records has to be incident of or collateral to the monetary damages.

[00:14:19] Speaker 02:
So in other words, the court just doesn't sit as one.

[00:14:21] Speaker 03:
What if, and I'm not sure if this is what she was arguing or alleging, but perhaps, am I right, you can stay, if you're on the promotion list as a commander on the list, potentially eligible to become a captain, you could serve longer than the 28 years?

[00:14:38] Speaker 03:
Is that right?

[00:14:40] Speaker 03:
As an officer?

[00:14:41] Speaker 02:
Yes, Your Honor.

[00:14:42] Speaker 02:
I do believe you could go over the 28 years if you're actually on the capital promotion list.

[00:14:46] Speaker 03:
So could it be that her money damages claim is for continued pay at the commander level during the time she would have stayed on the promotion list?

[00:14:56] Speaker 03:
I'm not trying to make her case, but is it possible that that's what the complaint alleged?

[00:15:02] Speaker 02:
If, for example, that's the complaint, I still think that it's not a justiciable issue because the secretary of the Navy decided to remove her from the captain promotion list.

[00:15:10] Speaker 02:
In other words, to say we're not going to appoint you to the rank of captain.

[00:15:13] Speaker 02:
And that decision in itself is not justiciable under DICERT.

[00:15:17] Speaker 02:
That decision, that exercise of discretion.

[00:15:19] Speaker 03:
To remove her from the promotion list is not justiciable.

[00:15:22] Speaker 03:
We have no authority to review the removal from the promotion list, you're saying.

[00:15:26] Speaker 02:
In this case, yes.

[00:15:27] Speaker 02:
I think, Your Honor, under DICERT and the precedent that follows, yes.

[00:15:30] Speaker 01:
I guess maybe the argument is, because process wasn't properly followed, then the act of removing her from the promotion list was inappropriate, even if meritorious, because the process wasn't followed properly.

[00:15:47] Speaker 01:
It was therefore, it sort of blocks the ability to remove her from the promotion list.

[00:15:56] Speaker 02:
Yes, Your Honor.

[00:15:57] Speaker 02:
probably where this is going, but I don't think that's the case.

[00:16:00] Speaker 02:
I think we actually have the Secretary of the Navy's decision in the Appendix 224-27, and it explains the Secretary reviewed her arguments, it addresses her arguments, so it had both her arguments and the evidence that she submitted

[00:16:14] Speaker 02:
and the results of the command investigation and based on all that information the secretary of the Navy at that point exercised his discretion and decided to remove Commander Frank from the Captain promotion list.

[00:16:26] Speaker 02:
So I don't think that involves any sort of procedural violation.

[00:16:29] Speaker 02:
This is in a case where I was reviewing the other cases where maybe for example a doctor was up for promotion and

[00:16:35] Speaker 02:
the government thought that the doctor needed a license that the doctor didn't need.

[00:16:39] Speaker 02:
That'd be like a statutory violation.

[00:16:41] Speaker 02:
But here it's just an exercise of discretion.

[00:16:43] Speaker 02:
The secretary said, based on this conduct in your service, I just don't think that you should remain on this captive promotion list, because I don't think you should be promoted captain.

[00:16:51] Speaker 02:
So that's a bit different there.

[00:16:52] Speaker 02:
There's really no procedural or regulatory violation here.

[00:16:56] Speaker 00:
What about the involuntary, voluntary question that your friend relies on, Atkins?

[00:17:01] Speaker 02:
Yes, Your Honor.

[00:17:02] Speaker 02:
So the two points I had on that.

[00:17:03] Speaker 02:
So Atkins was, in that case, the officer was dismissed under Section 638, and here it's 633, 10 USC 638.

[00:17:13] Speaker 02:
That allows for, in that case, the Army to selectively choose to retire someone early.

[00:17:19] Speaker 02:
So the officer in that case had been passed over once to promotion, I think, as lieutenant, but not a second time.

[00:17:26] Speaker 02:
So the officer could have actually continued serving.

[00:17:28] Speaker 02:
It wasn't an issue where the officer was reaching the maximum time in grade and was statutorily required to retire.

[00:17:36] Speaker 02:
The officer could have kept serving, but the Army made the decision selectively to say, we're going to force you to retire involuntarily.

[00:17:42] Speaker 02:
At that point, under the statute, section 638, the officer has the option to retire early.

[00:17:49] Speaker 02:
Essentially, the government says, well, you don't have to keep serving if we're going to retire you early.

[00:17:52] Speaker 02:
And that's what the officer chose.

[00:17:55] Speaker 02:
I'm going to retire early.

[00:17:56] Speaker 02:
But the statute itself says this as a matter of law is involuntary retirement under 638.

[00:18:02] Speaker 02:
There's a separate provision.

[00:18:04] Speaker 01:
The statute actually says that?

[00:18:05] Speaker 02:
Yes, it says that.

[00:18:06] Speaker 00:
Now it says what?

[00:18:09] Speaker 01:
His point is, Atkins stands for the proposition that when you are about to be mandatorily retired, you can, under those circumstances, request an early retirement.

[00:18:20] Speaker 01:
And your retirement will still be deemed involuntarily retired.

[00:18:24] Speaker 02:
Yes.

[00:18:25] Speaker 02:
Atkins is completely distinguishable because the statute says it's involuntary.

[00:18:30] Speaker 02:
If you retire pursuant to this section, it's involuntary.

[00:18:33] Speaker 02:
Now, I think it's subsection D. At the time of Adkins, it was a different one.

[00:18:37] Speaker 02:
But the decision itself lays it out and says, as a matter of law, this was involuntary.

[00:18:41] Speaker 02:
And it's really, at that time, it was a simple issue of statutory analysis.

[00:18:46] Speaker 02:
They just had to interpret the statute.

[00:18:47] Speaker 02:
The statute says this is involuntary.

[00:18:49] Speaker 01:
Is that, to me again, would you say 10 U.S.C.

[00:18:51] Speaker 01:
638?

[00:18:52] Speaker 02:
Yes.

[00:18:52] Speaker 02:
Yes, Your Honor, 10 U.S.C.

[00:18:54] Speaker 02:
638.

[00:18:54] Speaker 02:
And statute at issue 33 here.

[00:18:57] Speaker 02:
633.

[00:18:57] Speaker 02:
Yes.

[00:18:58] Speaker 02:
Same thing, 10 U.S.C.

[00:18:59] Speaker 02:
633.

[00:19:00] Speaker 02:
And that just says,

[00:19:01] Speaker 02:
when you reach 28 years of service and you're not on the list, you're going to have to retire.

[00:19:05] Speaker 02:
It doesn't contain the same provision that says, if you actually retire early because this is impending, that's involuntary.

[00:19:10] Speaker 02:
This case is much more similar to SAMT, which isn't in the briefs because Adkins was raised in the reply.

[00:19:18] Speaker 02:
But there's other cases from this court that says essentially just because

[00:19:23] Speaker 02:
a service member is facing an impending resignation and has a couple of undesirable decisions, that doesn't mean that it's involuntary.

[00:19:33] Speaker 02:
So this is much more akin to SAMT, and I can just give that for the record here.

[00:19:38] Speaker 02:
That's 780 Federal Second 31.

[00:19:42] Speaker 02:
So it's closer to that case, and Adkins really is distinguishable.

[00:19:45] Speaker 02:
I'd also note that the reply brief talks about the notification in Adkins.

[00:19:49] Speaker 02:
It's not like a notification you're reaching your statutory max.

[00:19:52] Speaker 02:
Like I said, that was a selective decision by the Army to retire that officer early.

[00:19:57] Speaker 02:
So it's not just your time's coming up, it's we've selected you, you're going to have to retire.

[00:20:01] Speaker 02:
So it's different than a statutory maximum time of service.

[00:20:05] Speaker 03:
Could there have been some advantages to Commander Frank to putting in her voluntary retirement to get out a few months ahead of the mandatory 28-year retirement that would have happened had she done nothing?

[00:20:20] Speaker 02:
None that I'm aware of, Your Honor.

[00:20:23] Speaker 02:
Speaking with the agency and others, it just would be a personal decision maybe to retire early and pursue other endeavors.

[00:20:31] Speaker 03:
Does your non-justiciability argument, does it go to the whole complaint, that is, we could affirm and not reach any other issue if we were persuaded by the non-justiciability argument?

[00:20:44] Speaker 02:
So yes, Your Honor, based on my understanding that Commander Frank was actually requesting a retroactive promotion, which I think was the trial court's understanding.

[00:20:53] Speaker 02:
And if that's not the case, like I said when I began,

[00:20:55] Speaker 02:
It's not clear at all what sort of monetary damages are being requested here, and it's just a request to correct the records, which the Court of Federal Claims is of limited jurisdiction, and it doesn't have jurisdiction to do.

[00:21:07] Speaker 03:
What about if we were to reach the issues she says you don't address?

[00:21:12] Speaker 03:
Her argument that under 12 D, she was entitled to notice that she could submit additional information.

[00:21:17] Speaker 03:
And then this should have been converted to a motion for summer judgment, which should have been denied.

[00:21:21] Speaker 03:
So there could be further proceedings.

[00:21:23] Speaker 03:
What is your response to that?

[00:21:26] Speaker 02:
Respectfully, I would suggest we did address it.

[00:21:28] Speaker 02:
We noted that the court could consider official public records and documents in her will

[00:21:33] Speaker 02:
Complaint the trial court relied on those two documents I think on that basis than a footnote it describes it so we did address it And we said no the trial court can look at these two documents or this court de novo review can do the same Well, she says at least today I think it's in her brief too.

[00:21:50] Speaker 03:
She has other evidence.

[00:21:52] Speaker 03:
She would have Presented what are we to make of that?

[00:21:55] Speaker 02:
So it's not clear what that evidence is, but she could have presented that evidence below in response to our motion.

[00:22:01] Speaker 02:
There was also an argument here about presenting statements potentially.

[00:22:06] Speaker 02:
She could have amended the complaint after we filed that motion to dismiss and included a discussion of all these issues and explained why her decision to submit that retirement request was involuntary if she'd been directed or anything like that.

[00:22:19] Speaker 02:
So she had an opportunity to amend her complaint, attach documents in response to our motion.

[00:22:25] Speaker 02:
And we also worked on the administrative record together.

[00:22:28] Speaker 02:
So I mean if there were any documents, certainly we could have discussed that or supplemented or completed the records.

[00:22:33] Speaker 02:
There was numerous avenues still at that point in time to add documents or consider other arguments if there was just an amendment to the complaint.

[00:22:46] Speaker 02:
If there's no further questions, we respectfully request the court to confirm the dismissal for failure to state a claim.

[00:22:59] Speaker 04:
Your Honor, she rebuttals.

[00:23:01] Speaker 04:
First, we would like to address the point that the Secretary of the Navy properly removed Appellant from the promotion list.

[00:23:11] Speaker 04:
In the record on pages 224 and 225, it specifically references that Appellant was detached because of the loss of trust, even though

[00:23:22] Speaker 04:
the Board for Correction of Naval Records agreed that this was not a proper ground.

[00:23:27] Speaker 04:
We would respectfully agree with Your Honor's argument that had the Navy properly considered Appellant's responses and the detachment for cause issues, she could have continued to serve more, and then she could have served beyond 20 years.

[00:23:44] Speaker 04:
properly considered, she could have been promoted, and she was denied this opportunity because the Navy simply just said, yes, we know we violated our own rules, but we're still going to remove her from promotion.

[00:23:54] Speaker 04:
And considering the notices in terms of what Navy sends out when someone is about to separate, either mandatorily or not, we would reference section 1456, which is the military personnel manual

[00:24:09] Speaker 04:
Section 1810-020 that says that the declaration from Mr. Yarbor, who is the personnel individual at the Navy, who explains that this whole process starts about a year before.

[00:24:22] Speaker 04:
And this is in early 2021 when Commander Frank was submitting all these applications that the Navy will send out notices.

[00:24:31] Speaker 04:
And also we would like to add that, yes, we did work on the administrative record.

[00:24:35] Speaker 04:
And as far as we were told, the three documents that were later used for the motion to dismiss were not added to the administrative record.

[00:24:44] Speaker 04:
They were only used at the time of the motion.

[00:24:47] Speaker 04:
And my learned colleagues' argument that this could have been submitted later essentially complies with the rule, with what the Court of Federal Claims Rule 12D requires that

[00:24:57] Speaker 04:
each party will be allowed to make additional submissions.

[00:25:00] Speaker 04:
Because in this case, an appellant has not been able to make these submissions, we would respectfully request to remand it to the Court of Federal Claims and allow appellants to make those submissions.

[00:25:11] Speaker 04:
A service member should take an oath to defend the Constitution of the United States with their lives, deserve the system that follows its own regulations.

[00:25:19] Speaker 04:
And in this case, the evidence and the Board for Correction of Naval Records

[00:25:23] Speaker 04:
agrees that the Navy didn't follow its regulations and based on this we would respectfully request to remand this case to the Court of Federal Claims.