[00:00:00] Speaker 03:
25-12-33, Gersten v. United States.

[00:00:05] Speaker 04:
Mr. Wilkinson?

[00:00:06] Speaker 04:
Yes, sir.

[00:00:08] Speaker 04:
When an officer retires, the service secretary has a certain degree of control over how much he's going to be paid in his retirement.

[00:00:16] Speaker 04:
We've been arguing over how much control and how much the courts have to say about that.

[00:00:22] Speaker 02:
Mr. Wilkinson, as I understand it, and please cut me if I'm wrong, your argument is essentially this.

[00:00:29] Speaker 02:
If the Air Force finds facts A, B, and C, in other words, if the Air Force Secretary determines that Mr. Gerson committed those acts, that is something that can be reviewed for substantial evidence.

[00:00:46] Speaker 02:
However, what you're saying is what you acknowledge what can't be reviewed for substantial evidence is the secretary's determination that those facts amounted to unsatisfactory performance.

[00:00:59] Speaker 02:
Is that correct?

[00:01:00] Speaker 02:
Exactly.

[00:01:02] Speaker 04:
And the next minute of what I was going to say, you have just summed up.

[00:01:07] Speaker 04:
The only thing to add – well, not the only thing, but the thing to add after that is that we also say that before 2015, when Mr. Guston was appointed or promoted to the pay grade of 08, the Secretary doesn't have substantial evidence of any misconduct.

[00:01:25] Speaker 02:
You're talking about all the conduct before March of 2015, the conduct involving these other two women.

[00:01:32] Speaker 02:
Exactly.

[00:01:33] Speaker 04:
They don't have substantial evidence of any military misconduct, which we say is what you need to have in order to get to that waiting process.

[00:01:43] Speaker 03:
Well, except the IG report talks about evidence that this occurred.

[00:01:49] Speaker 03:
I thought your argument was that your client didn't have access to the secretary's decision, so they didn't know that her decision was based on the IG report.

[00:02:00] Speaker 04:
That was our argument on the waiver issue, but not on the justiciability issue.

[00:02:05] Speaker 04:
On the justiciability issue, our argument is, and it's... Well, put aside the justiciability.

[00:02:10] Speaker 03:
Okay, very good.

[00:02:11] Speaker 03:
I mean, let's assume you're right about that, that this is justiciable.

[00:02:15] Speaker 03:
So we have a situation in which the IG report said he did have these relations with these other women, and you got a chance to argue against that at the Corrections Board, and you didn't prevail.

[00:02:32] Speaker 04:
The problem was, at the Corrections Board and in the IG report and everywhere else, they never established a standard by which these relations with civilian women would be a military offense or military misconduct.

[00:02:47] Speaker 01:
Yeah, but the problem is, and I think this is just parodying what Judge Dyke said, if I understood him, was that if we assume

[00:02:54] Speaker 01:
Assuming we can review for substantial evidence to take the justice ability off the table, how could we not conclude that there was substantial evidence?

[00:03:04] Speaker 01:
You didn't press, if I'm reading what happened below, you didn't preserve the argument you're making here that this did not establish misconduct.

[00:03:15] Speaker 01:
I read your filing to challenge the nature of the evidentiary support for the alleged relationships, not whether those relationships constituted misconduct for violating some custom.

[00:03:26] Speaker 01:
So I don't understand how you could have preserved.

[00:03:29] Speaker 01:
And I think we all agree.

[00:03:30] Speaker 01:
Under Mets, I think that's the case.

[00:03:32] Speaker 01:
If you go to the board, you have to have preserved the arguments before the board when you go to the CFC.

[00:03:38] Speaker 04:
OK, that's all right.

[00:03:39] Speaker 04:
And that was first the waiver issue then, before I get to the rest of it.

[00:03:43] Speaker 04:
Firstly, at the board,

[00:03:45] Speaker 04:
Mr. Grestin was in no position to know that the secretary's decision was based entirely on a finding of conduct on becoming an officer, which is what you're talking about.

[00:03:59] Speaker 04:
Conduct on becoming an officer.

[00:04:01] Speaker 03:
That may be true, but he certainly knew that that was an issue.

[00:04:08] Speaker 03:
And that with your filings, you addressed that question.

[00:04:14] Speaker 03:
at length, and so where's the harm for not knowing that the secretary's decision specifically referenced it?

[00:04:23] Speaker 04:
Well, the harm is in a couple of things.

[00:04:26] Speaker 04:
Firstly, in our complaint in the court of federal things, we did raise the conduct on becoming, because we found out that it was based on conduct on becoming from the BCMR's opinion.

[00:04:39] Speaker 01:
But you have the IG opinion.

[00:04:40] Speaker 04:
But the IG is not a decision.

[00:04:43] Speaker 04:
It's just an investigation.

[00:04:44] Speaker 04:
The IG has no authority.

[00:04:48] Speaker 04:
But the trouble is what the IG did not do.

[00:04:51] Speaker 04:
The IG didn't do it, and this was in the BCMR.

[00:04:56] Speaker 04:
And it's also in our complaint.

[00:04:59] Speaker 04:
The IG never established that anything he's supposed to have done with these civilian women is military misconduct that would affect the character of his service.

[00:05:10] Speaker 04:
It is at most something that might be a bad mark on his private life, depending on how true it all is.

[00:05:16] Speaker 01:
But this statute does not allow- Wait, did you make the argument before the board that this conduct, even if true, would not constitute misconduct under the code?

[00:05:28] Speaker 04:
I wasn't there at the board, I will admit.

[00:05:31] Speaker 04:
I've read the argument in there.

[00:05:34] Speaker 01:
But that's pretty critical, at least speaking for myself.

[00:05:38] Speaker 01:
So do you have an answer to that?

[00:05:39] Speaker 01:
I mean, are you saying you did?

[00:05:41] Speaker 01:
Because I didn't think you were asserting that.

[00:05:49] Speaker 04:
I'll have to relook to see that one, because that is not something that was in my mind until I came here.

[00:05:56] Speaker 03:
But I thought it was clear from the IG that they addressed that question.

[00:06:02] Speaker 04:
Am I mistaken?

[00:06:02] Speaker 04:
Actually, yeah.

[00:06:03] Speaker 04:
But let me backtrack on that one point, which was that because we didn't know, even at the VCMR, didn't know what the actual decision was based on, there was no way we could waive an argument against the secretary's decision

[00:06:26] Speaker 04:
when we don't know what the secretary's decision is.

[00:06:29] Speaker 04:
And we didn't learn the secretary's decision until the BCMR issued its decision.

[00:06:39] Speaker 03:
But coming back to the question I just asked, is it not true that the IG's report found that that would be conduct unbecoming?

[00:06:50] Speaker 04:
Yes, the IG's report found that although there's two problems there,

[00:06:55] Speaker 04:
Firstly, the IG's report did not come up with an actual military standard that he's supposed to have violated before 2015.

[00:07:04] Speaker 04:
When you look at the particular arguments that the IG uses to get to conduct on the coming, firstly, he talks about the adultery with a subordinate that's very poorly conduct on the coming, and it's in 2018.

[00:07:16] Speaker 04:
He also talks about, well, his relations with one of these women

[00:07:22] Speaker 04:
is very public, and it was seen by people at this Air Force base that he didn't get assigned to until 2017.

[00:07:31] Speaker 04:
But what the IG did not do,

[00:07:33] Speaker 04:
And the IG would have to do it in order to establish military misconduct, is to show some military standard that forbids something he found Mr. Gerstin did before 2015.

[00:07:48] Speaker 03:
Doesn't address the military standard question?

[00:07:53] Speaker 03:
It doesn't address it enough.

[00:07:55] Speaker 04:
But what he does is he gives us a false standard.

[00:07:58] Speaker 04:
If I remember what he said, because we argued this a lot at oral argument on the MJAR that of course we never got to because it was dismissed.

[00:08:06] Speaker 04:
And that was, he just said, the only issue is, did he intend to act indecently or indecorously in his private life?

[00:08:14] Speaker 04:
And we argued at some length, that's not a proper military standard.

[00:08:19] Speaker 04:
And he didn't cite anything for it.

[00:08:21] Speaker 04:
I looked up enough case law to know where those words came from.

[00:08:25] Speaker 04:
But I argued for the MJAR that he didn't mean, that the standards do not mean that every time someone in his own personal life.

[00:08:33] Speaker 04:
When you say you argued, which argument are we talking about?

[00:08:36] Speaker 04:
The oral argument on the MJAR and also the briefs that I filed on the MJAR.

[00:08:44] Speaker 03:
I'm confused.

[00:08:48] Speaker 03:
This military standard question is not new.

[00:08:52] Speaker 03:
And you knew that the IG report

[00:08:55] Speaker 03:
made a finding that he engaged in these extramarital affairs, and it made a finding that that was conduct of the coming.

[00:09:04] Speaker 03:
It was certainly open to you to argue the military standard question.

[00:09:09] Speaker 03:
Judge Post asked you whether you did or not, you don't remember, but why should we excuse your failure to do it or leave the IG's report as not reaching that question?

[00:09:25] Speaker 04:
because what we're challenging in this suit is the decision ultimately of the Secretary of the Air Force.

[00:09:35] Speaker 04:
That decision, because the Air Force was obstructed, we were not allowed to see until after the BCMR issued its decision.

[00:09:45] Speaker 04:
In fact, it was in the BCMR's decision itself that they told us, by the way, the Secretary based her decision on

[00:09:54] Speaker 04:
an IG report that made these particular findings.

[00:09:57] Speaker 03:
Fair enough.

[00:09:58] Speaker 03:
You know, it probably was error not to give you the report, okay?

[00:10:03] Speaker 03:
But it would seem to be almost error if you knew that the IG report was from up in the Center and had the opportunity to address that.

[00:10:13] Speaker 04:
How could we even know that it was from and said, we attacked

[00:10:16] Speaker 04:
or with his prior counsel, Mr. Gerstin, attacked what he had.

[00:10:21] Speaker 04:
The IG report was what he had, but it wasn't necessarily part of or a central part of the secretary's decision.

[00:10:29] Speaker 04:
He had no way of knowing what was in the secretary's decision.

[00:10:33] Speaker 04:
It could have been something completely different.

[00:10:35] Speaker 04:
It could have been only that, which is what it appears to have been, or some mixture of the two.

[00:10:41] Speaker 04:
But when he went to the BCMR, he had to fly blind.

[00:10:45] Speaker 04:
And because he's flying blind, because he doesn't know what it's, uh, decided on, it can't be a waiver.

[00:10:50] Speaker 01:
He did make the argument, didn't he, that the nature of the evidentiary support for the alleged relationships, he challenged the evidentiary support for the relationship.

[00:11:01] Speaker 01:
And that was in the AIT's report, right?

[00:11:03] Speaker 01:
So he did do that challenge.

[00:11:04] Speaker 04:
Yes.

[00:11:05] Speaker 04:
And furthermore, in the BCMR, that's an appropriate kind of challenge.

[00:11:10] Speaker 04:
Because the BCMR is not limited to substantial evidence

[00:11:13] Speaker 04:
or the sort of things you do in the court of federal court.

[00:11:15] Speaker 04:
In the BCMR, you can go into merits questions like, believe this witness, not that witness, and so forth, which you did.

[00:11:24] Speaker 04:
But that's because the IG investigation was all you had.

[00:11:31] Speaker 04:
But that doesn't foreclose making a challenge to the actual decision once we find out what's really in it.

[00:11:40] Speaker 04:
which he did not find out before he filed and got the results in the BCMR petition.

[00:11:46] Speaker 04:
And even then, the BCMR petition didn't give us a copy of it.

[00:11:50] Speaker 04:
They just summarized what they said it says.

[00:11:52] Speaker 02:
Mr. Wilkinson, do you agree the critical part of the IG decision is found at appendix 201 through 204 over to 205?

[00:12:04] Speaker 04:
Let me flip over to 201.

[00:12:10] Speaker 04:
This is Appendix 201.

[00:12:12] Speaker 04:
Right, that's Appendix 201.

[00:12:15] Speaker 04:
And let's see.

[00:12:16] Speaker 02:
This seems to be the part of the

[00:12:31] Speaker 02:
IG decision where it's talking about the evidence with respect to Matters that took place prior to March 2 of 2015 right and there But is this the critical part of the IG report and see that in terms of the evidence, right?

[00:12:49] Speaker 04:
I'm looking at the following page with it because um that is the part yesterday that I passed out from we were arguing the m-jar and

[00:12:57] Speaker 04:
to show why you haven't got something in the pre-2015 period.

[00:13:01] Speaker 04:
So this is the key part.

[00:13:07] Speaker 04:
Yes, sir.

[00:13:08] Speaker 04:
I know that there are a few other pages that I cited, but that's where the IG gets to his positions.

[00:13:13] Speaker 02:
It's where the IG talks about the evidence relating to those events.

[00:13:17] Speaker 04:
Right.

[00:13:18] Speaker 04:
And, you know, again, it's not even so much the events themselves.

[00:13:22] Speaker 04:
It was the IG's failure to come up with a military standard that those violate.

[00:13:28] Speaker 04:
And as it turns out, although we couldn't have known this before the BCMR, but as it turns out,

[00:13:35] Speaker 04:
The secretary didn't come up with this.

[00:13:38] Speaker 01:
Well, except on 205, it's allegation two.

[00:13:43] Speaker 01:
And it calls out that seriously compromised his standing as an officer in violation of 133.

[00:13:49] Speaker 01:
That's what the IG report says.

[00:13:52] Speaker 04:
Yeah, but that's just a conclusory statement that doesn't fit his evidence before 2015.

[00:13:59] Speaker 04:
Because if you look at his facts that support that statement,

[00:14:02] Speaker 04:
It's like the biggest one outside of the adultery in 2018 is he said, well, his relation with this woman was named to people at this Air Force base that he was assigned to in 2017.

[00:14:17] Speaker 04:
But the IG, and this is apparently making the complaint as well, the IG was never really focused on when.

[00:14:25] Speaker 04:
The IG was not doing this in support of a

[00:14:28] Speaker 04:
retirement rate determination.

[00:14:30] Speaker 04:
The IG was trying to find out did he commit the misconduct.

[00:14:33] Speaker 04:
And so the IG was given these allegations, one of which I think goes back from 2008 to 19, and took those as a block.

[00:14:45] Speaker 04:
But when it came to actually doing the analysis to say that he found violations of the standards, he didn't take the trouble.

[00:14:53] Speaker 04:
He had no reason to take the trouble to say, now, wait a minute.

[00:14:56] Speaker 04:
Do I have a violation before?

[00:15:00] Speaker 04:
March 2015.

[00:15:01] Speaker 01:
Can I ask you one quick question before time runs out?

[00:15:04] Speaker 01:
Yes, ma'am.

[00:15:05] Speaker 01:
Is it the case that misconduct must be found in order to deem service at a particular level unsatisfactory under 1370?

[00:15:15] Speaker 01:
And if so, do you have a case in which we've said that?

[00:15:18] Speaker 04:
I don't have a case in which you've said it.

[00:15:20] Speaker 04:
I have an argument for it, which I can make.

[00:15:23] Speaker 01:
OK.

[00:15:24] Speaker 01:
I have your argument in your briefs.

[00:15:25] Speaker 01:
I'll just... Right.

[00:15:26] Speaker 04:
But it's partly from A3 of the statute itself.

[00:15:29] Speaker 04:
in the fact that A3 is even there.

[00:15:32] Speaker 01:
It's arguably implicit.

[00:15:33] Speaker 01:
It's not.

[00:15:34] Speaker 04:
Right, right.

[00:15:35] Speaker 04:
Although with the A3 and with the Air Force instructions.

[00:15:38] Speaker 01:
Well, I was hoping you got a case on that.

[00:15:40] Speaker 04:
Right, no.

[00:15:41] Speaker 04:
I could find a case where someone's already said that.

[00:15:43] Speaker 01:
All right.

[00:15:44] Speaker 03:
Thank you.

[00:15:45] Speaker 03:
We're out of time.

[00:15:46] Speaker 03:
We'll give you two minutes.

[00:15:52] Speaker 03:
Ms.

[00:15:52] Speaker 03:
Pizak?

[00:15:55] Speaker 00:
Afternoon, may it please the court.

[00:15:57] Speaker 03:
I've got to say that I find it rather odd that the government argues that this whole thing is non-justiciable and convinced Judge Smith that that was the case in the light of Fisher and now Bader.

[00:16:13] Speaker 00:
Your Honor, I think what our position is that when the question is, is service satisfactory, that is a question that absent a procedural problem,

[00:16:25] Speaker 03:
Well, Fisher and Bader reject that.

[00:16:30] Speaker 03:
To the extent that the decision rests on factual findings, there's a substantial evidence question, and the court can review that.

[00:16:41] Speaker 03:
And I see no basis for your argument that that's non-justiciable.

[00:16:46] Speaker 00:
Mr. Jenner, I would especially disagree that those cases reject that premise.

[00:16:52] Speaker 00:
I think it may be true that there are

[00:16:55] Speaker 00:
certain underlying allegations that are deemed to be procedural?

[00:17:02] Speaker 00:
And where that line is, is perhaps a question?

[00:17:06] Speaker 01:
I would say, to add you, the other thing that I find odd, relatedly, about the position the government is taking is that it's all about reviewing what the Secretary of the Air Force did.

[00:17:18] Speaker 01:
not what the board did.

[00:17:19] Speaker 01:
And I think based on our cases or whatever, I'm looking at it and saying, we're talking about what the board did, and our cases analyze the board's review.

[00:17:28] Speaker 01:
And you, I think, if I'm recalling correctly, rely exclusively on the Secretary of the Air Force's decision.

[00:17:36] Speaker 01:
And that seems odd to me.

[00:17:37] Speaker 00:
Your Honor, I don't disagree.

[00:17:39] Speaker 00:
And we did that because- You don't disagree that it's odd?

[00:17:42] Speaker 00:
I don't disagree that typically the focus is on the board's decision.

[00:17:47] Speaker 00:
plaintiff here, now petitioner, basically disregarded the board's decision below and was solely attacking the secretary's decision.

[00:17:57] Speaker 03:
What they're saying is that it was error for you not to give them the secretary's decision, which is clearly correct, right?

[00:18:06] Speaker 00:
I'm not sure that's true.

[00:18:08] Speaker 03:
How could it not be true?

[00:18:11] Speaker 03:
How could it be that you didn't have an obligation to give them the secretary's decision that they were challenged?

[00:18:18] Speaker 00:
I don't know what the disclosure requirements are in front of the board.

[00:18:21] Speaker 00:
As far as I know, that question never came up in front of the board.

[00:18:24] Speaker 00:
There was a FOIA request a month after the board's decision for the secretary's memorandum.

[00:18:32] Speaker 00:
And granted, perhaps it should have been provided at that point, and it was not.

[00:18:37] Speaker 00:
It was provided through the administrative record of the court.

[00:18:41] Speaker 00:
But that was after the board had already rendered its decision.

[00:18:44] Speaker 00:
As far as I know, it did not come up

[00:18:46] Speaker 00:
whether or not that decision was available in front of the board.

[00:18:50] Speaker 01:
Unjusticiability isn't.

[00:18:57] Speaker 01:
Can't the board adjudicate the issue of whether the secretary's 06 decision was erroneous?

[00:19:03] Speaker 01:
I mean, that's what it did, right?

[00:19:07] Speaker 00:
Yes, Your Honor.

[00:19:07] Speaker 00:
I think the board, with the discretion

[00:19:13] Speaker 00:
appropriate discretion provided to the secretary for that decision can review that decision, which I believe is what it did.

[00:19:20] Speaker 01:
So if that's so, then why couldn't we review the secretary's decision, if that's what we were doing, which I don't agree with, but under the same standard that the board used?

[00:19:31] Speaker 01:
It seems like it's not an entirely standardless undertaking.

[00:19:37] Speaker 00:
Your Honor, I think that is exactly the point of the

[00:19:41] Speaker 00:
the court's decisions in Atkins, and then something that was echoed in the courtifier or claims decision in Bader prior to... That argument is uncannable.

[00:19:52] Speaker 03:
In Fisher, that interpretation of Atkins was specifically rejected.

[00:19:57] Speaker 03:
And for you to revive it as though Fisher never existed seems to me to be impossible.

[00:20:04] Speaker 00:
Understood, Your Honor, and I'm happy to move on.

[00:20:06] Speaker 00:
I think we would just say that to the extent it goes, any question about the character of an individual's service

[00:20:12] Speaker 00:
That limited, certainly that limited question.

[00:20:15] Speaker 03:
Your argument was that this was an effort to re-determine who should be a member of the military.

[00:20:21] Speaker 03:
An argument which was discussed at length in Fisher and explicitly rejected, which said that this is a question of retirement compensation.

[00:20:30] Speaker 03:
And you shouldn't be making arguments that are contrary to established precedent.

[00:20:35] Speaker 00:
I understand, Your Honor.

[00:20:35] Speaker 00:
I think we understood our argument to be a bit different.

[00:20:38] Speaker 00:
But I take the court's point, and I can move on.

[00:20:42] Speaker 01:
Well, can I move?

[00:20:43] Speaker 01:
Oh, go ahead, Commissioner.

[00:20:45] Speaker 01:
Just on the specifics, is it the case that misconduct in the government's view must be found in order to have a level, unsatisfactory level, under 1370?

[00:20:58] Speaker 00:
So one of the Air Force's instruction includes, it references improper conduct, it references misconducts, and it also references substandard performance.

[00:21:15] Speaker 00:
So I don't know that that term is particularly defined, but I think it requires

[00:21:20] Speaker 00:
a determination that there was something wrong, but I think certainly not misconduct in the sense that there has to be a criminal violation of either the UCMJ or some other criminal statute.

[00:21:33] Speaker 00:
That's not in any reg or statute.

[00:21:35] Speaker 03:
Should we set aside the decision if we were to conclude that it was not established that this was conduct unbecoming?

[00:21:42] Speaker 00:
Sorry?

[00:21:43] Speaker 03:
Should we set aside the decision if we conclude that there was no proof of conduct unbecoming?

[00:21:52] Speaker 00:
No, Your Honor, for a few reasons.

[00:21:55] Speaker 00:
First, at least on the basis that this takes me into a different argument, I guess the waiver argument, there was no decision yet.

[00:22:01] Speaker 00:
There has been no consideration by the board of the plaintiffs of Mr. Christin's arguments about whether or not there was a violation of

[00:22:12] Speaker 00:
article 133 and I don't think the court should be the one to make that in the first instance.

[00:22:18] Speaker 03:
I understand but I'm just saying let's assume that we conclude that there was a violation of article 133 wasn't established.

[00:22:26] Speaker 03:
I understand that you say we shouldn't do that and so on and so forth but if that's the case then the secretary's decision would have to be set aside, correct?

[00:22:35] Speaker 00:
I don't believe so, Your Honor.

[00:22:37] Speaker 00:
Why?

[00:22:37] Speaker 00:
Because what the Secretary did was rely on factual findings made by the IG.

[00:22:45] Speaker 00:
And that decision, whether or not, or excuse me, that report, whether or not it rises to the level of an actual criminal violation or not sets out facts specifically.

[00:22:59] Speaker 03:
But didn't the Secretary find it was a violation of 133?

[00:23:02] Speaker 00:
No, Your Honor.

[00:23:03] Speaker 03:
She simply... Where do we find her decision?

[00:23:07] Speaker 00:
Her decision is... 161.

[00:23:11] Speaker 00:
161, yeah.

[00:23:15] Speaker 03:
And all it does is restate... That says, we're starting an engagement in inappropriate personal relationships with multiple women, which seriously compromises standard in violation of 133.

[00:23:25] Speaker 00:
Yes, Your Honor, that is a recitation of what the

[00:23:29] Speaker 00:
IG report found.

[00:23:30] Speaker 00:
So the beginning of that sentence is, the SAF IG investigation substantiated that one, the first allegation, and two, between honor about 1 October, et cetera, which you just read.

[00:23:42] Speaker 00:
And if you compare that to the IG allegation, it's identical.

[00:23:46] Speaker 00:
She just took what the IG report said and is reporting what they found.

[00:23:51] Speaker 01:
But she concludes in the next paragraph that

[00:23:58] Speaker 01:
He was in the meeting of, she cites 1370.

[00:24:02] Speaker 01:
Yes, Your Honor.

[00:24:06] Speaker 01:
So I asked you the question about whether misconduct is an implicit requirement of 1370.

[00:24:11] Speaker 01:
And I think that's at least a fair question.

[00:24:16] Speaker 01:
Or your answer was, maybe it's not misconduct.

[00:24:19] Speaker 01:
It could also include improper conduct.

[00:24:22] Speaker 00:
Your Honor, I don't think 1370 speaks at all to

[00:24:27] Speaker 00:
what is required for that finding other than some procedural, not procedural, mostly timing aspects.

[00:24:35] Speaker 00:
But 1370A, which is what she cites to, is simply that the person entitled to retired pay

[00:24:45] Speaker 00:
shall be credited with satisfactory service in the highest permanent grade at which that person serves satisfactorily at any time in the armed forces as determined by the secretary of the military department concerned in accordance with this section.

[00:24:57] Speaker 00:
It's simply the requirement of the secretary.

[00:25:03] Speaker 01:
That talks about to determine that an officer committed misconduct by a lower grade.

[00:25:09] Speaker 01:
I mean, I don't think it's absolutely clear.

[00:25:12] Speaker 01:
And I asked your friend, and I'll ask you.

[00:25:14] Speaker 01:
I don't think we've decided that question in construing 1370.

[00:25:19] Speaker 01:
Could I ask you a related question to Judge Dykes that you're going to like a lot better?

[00:25:24] Speaker 01:
Suppose we were to assume that at least some of the, we're looking at the, we're reviewing the board opinion, and we're assuming that some of the underlying issues that we write into his downgrade were justiciable, but that under our deferential standard of review, there's no reversible error because, largely because of the waiver.

[00:25:48] Speaker 01:
So that's a hypothetical.

[00:25:50] Speaker 01:
What do we do with the judgment?

[00:25:53] Speaker 01:
I don't think you can affirm it, because this was a dismissal.

[00:25:56] Speaker 01:
There was a government's motion for whatever on the record, adjudication on the record, and the court of federal claims that that's moved.

[00:26:05] Speaker 01:
So do we, I mean, this is just a kind of technical question, but do we send it back and say that he should undo this result and find on the record?

[00:26:17] Speaker 01:
How do we handle that if things go your way on the underlying record?

[00:26:24] Speaker 00:
Very interesting question, Your Honor.

[00:26:26] Speaker 00:
I think that's correct.

[00:26:28] Speaker 00:
I think I would really say that the court can affirm the decision based on any grounds supported by the record.

[00:26:35] Speaker 00:
No, but not when it's a dismissal.

[00:26:37] Speaker 00:
But not when it's a dismissal if the affirmance would be on the record.

[00:26:40] Speaker 01:
On the record.

[00:26:41] Speaker 01:
And you specifically ruled that those were moved.

[00:26:44] Speaker 00:
Yes, Your Honor.

[00:26:44] Speaker 00:
So I think what the court would do in that situation would be to remand with an instruction to enter a judgment on the record.

[00:26:54] Speaker 00:
and in the direction that the court finds.

[00:26:58] Speaker 02:
Are you finished answering Judge Deit and Judge Gerstin?

[00:27:01] Speaker 00:
I think so, unless I actually answered the question.

[00:27:06] Speaker 02:
Is it your position that we can review whether substantial evidence supports the finding that Colonel Gerstin, or I'll call it saying Mr. Gerstin, engaged

[00:27:24] Speaker 02:
in conduct with these people before 2015.

[00:27:30] Speaker 02:
We can look, can we not, at whether substantial evidence supports what the board found he did, correct?

[00:27:42] Speaker 02:
The physical acts, whatever it is.

[00:27:44] Speaker 00:
Yes, Your Honor.

[00:27:45] Speaker 02:
You're saying we can review that for substantial evidence.

[00:27:51] Speaker 02:
I mean, the cases make it clear that we can review a board decision for substantial evidence.

[00:27:58] Speaker 00:
Yes, to the extent that we're talking about the board decision, yes.

[00:28:01] Speaker 02:
So we can review whether substantial evidence supports the board's finding that he did A, B, and C, correct?

[00:28:09] Speaker 02:
Yes.

[00:28:09] Speaker 02:
But you're saying what we can't review is the determination that having done A, B, and C, he did not perform satisfactorily.

[00:28:20] Speaker 00:
Certainly, Your Honor, yes.

[00:28:22] Speaker 03:
Well, there's an interim step in there.

[00:28:25] Speaker 03:
Can we also review a determination that this conduct violated 133?

[00:28:35] Speaker 00:
So first of all, I would say I don't believe so, at least under this record.

[00:28:47] Speaker 03:
I also don't believe that it's... Well, what do you mean on this record?

[00:28:50] Speaker 00:
Well, again, it hasn't... It hasn't been presented to the Air Force in any way, so there is no Air Force consideration whatsoever about the specific question of that 2010 to 2015 time limit.

[00:29:04] Speaker 03:
We'll put aside the facts of this case.

[00:29:06] Speaker 03:
Okay.

[00:29:07] Speaker 03:
In a typical case, we would be able to review both the underlying issue of whether the facts took place

[00:29:14] Speaker 03:
and whether that was a violation of 133.

[00:29:19] Speaker 00:
I think that's correct, Your Honor, although I'm not sure what the standard would be for that review.

[00:29:25] Speaker 00:
And that would also be setting aside the question of whether or not a finding of a violation of 133 is actually required for this.

[00:29:35] Speaker 00:
But yes, I think, again, I'm not sure what the standard would be, but certainly the court could review whether or not there is a violation.

[00:29:44] Speaker 02:
Let me just finish.

[00:29:46] Speaker 02:
I would have thought, and maybe I'm wrong, maybe you did say, because if I'm wrong, I would have thought you would say that we cannot review the determination that the conduct was unbecoming.

[00:30:00] Speaker 02:
Because you have facts and the secretary says, or in fact the review board that came up with the decision that he could retire as an 07, right?

[00:30:14] Speaker 02:
That word found the conduct not disqualifying, because it didn't find conduct unbecoming.

[00:30:23] Speaker 00:
Respectfully, I don't think that's correct, Your Honor.

[00:30:25] Speaker 00:
They found that the charge of conduct unbecoming was substantiated even for that time frame.

[00:30:31] Speaker 00:
But in weighing the satisfactory service, which again requires, sort of, it requires, in theory, the type of misconduct weighed against the

[00:30:40] Speaker 00:
on the service and the correctness of the service.

[00:30:44] Speaker 02:
My question is, are you saying that the question of whether conduct is unbecoming, which was what you were discussing with Judge Dyke, is that something we can review?

[00:30:54] Speaker 02:
Or can we only review whether the conduct that took place occurred?

[00:31:01] Speaker 00:
You understand what the difference is?

[00:31:02] Speaker 03:
Yeah, I do, Your Honor, and I think it's... When you just told me that we could review the conduct, but we can't determine whether...

[00:31:10] Speaker 03:
whether that is the sole ground for satisfactoriness or not.

[00:31:16] Speaker 00:
That is certainly true, Your Honor.

[00:31:17] Speaker 00:
I think there are certain circumstances where the courts review, for example, an actual court martial conviction, or whether or not the conviction should stand.

[00:31:30] Speaker 00:
Under the circumstances here,

[00:31:33] Speaker 00:
And again, this is why I brought up, I'm not sure what the standard of review would be.

[00:31:37] Speaker 00:
It could be that it is something basically akin to substantial evidence.

[00:31:43] Speaker 00:
I don't think that would be exactly right.

[00:31:45] Speaker 00:
But a very deferential standard of whether or not the article was violated.

[00:31:54] Speaker 00:
So it certainly wouldn't be a de novo review or anything that high.

[00:32:02] Speaker 00:
But I'm simply acknowledging that courts are, in at least certain circumstances, have the ability to review UCMJ violations.

[00:32:14] Speaker 00:
And again, I apologize for not knowing what the standard of review is typically for those cases.

[00:32:20] Speaker 03:
OK.

[00:32:20] Speaker 03:
Unless there are other questions, I think we're done.

[00:32:23] Speaker 03:
OK.

[00:32:23] Speaker 00:
Unless there are any questions about the waiver issue, I think we're OK.

[00:32:28] Speaker 00:
Thank you.

[00:32:29] Speaker 00:
Thank you, Your Honor.

[00:32:30] Speaker 03:
Mr. Wilkinson, you have two minutes.

[00:32:34] Speaker 03:
Yes, sir.

[00:32:36] Speaker 04:
All right.

[00:32:36] Speaker 04:
The question one of you just asked about the right remedy I think is very important, I mean the right action for you to take.

[00:32:44] Speaker 04:
If you do find that there is a waiver in this case,

[00:32:48] Speaker 04:
Under these circumstances, the sensible thing is to remand it to the court.

[00:32:53] Speaker 04:
I thought I had six rebuttals.

[00:32:54] Speaker 03:
No, two.

[00:32:55] Speaker 04:
Oh, I beg your pardon.

[00:32:56] Speaker 04:
Okay.

[00:32:59] Speaker 04:
You used some of it.

[00:33:00] Speaker 04:
Oh, I see.

[00:33:03] Speaker 04:
All right.

[00:33:03] Speaker 04:
But the thing to do would be to remand it to the court and say, remand this back to the BCMR and let them raise that issue in front of the BCMR.

[00:33:13] Speaker 04:
I think that would be a much fairer option in this case since the first time he went to the BCMR.

[00:33:19] Speaker 04:
He didn't know what he was up against in terms of the secretary's decision.

[00:33:25] Speaker 04:
And that would be the most efficient way to let the BCMR have a crack at the issue of whether there is any evidence of conduct and becoming or another violation of a military standard.

[00:33:39] Speaker 04:
Yeah, especially because since this was a decision on dismissal, it wasn't clear to me how the trial court was even able to reach this waiver issue.

[00:33:47] Speaker 04:
Because the waiver issue doesn't come out of the complaint.

[00:33:50] Speaker 04:
The waiver issue comes out of a reading of documents in the administrative record, which you normally don't get to if you're just ruling on a dismissal.

[00:33:59] Speaker 04:
So instead of saying, now we're granting an MGR based on this, especially when it has this dubious aspect of the Air Force hiding the most important document, then the most sensible way to handle that is to say, back to the trial court, trial court, remanded to the BCMR.

[00:34:15] Speaker 04:
At least the Air Force BCMR does have instructions requiring them to give a high priority to petitions when those petitions are sent to them by federal courts.

[00:34:24] Speaker 04:
And that is more important than anything else that I was going to say, except to reiterate that section A3 of the statute does suggest that the satisfactory determination is limited by some kind of misconduct, whether it's criminal or a violation of a custom that can be established with evidence.

[00:34:48] Speaker 03:
OK.

[00:34:48] Speaker 03:
I think we're out of time.

[00:34:49] Speaker 03:
Thank you.

[00:34:49] Speaker 03:
Thank Bob Jones for the case.

[00:34:50] Speaker 03:
And so that concludes our session for this afternoon.