[00:00:00] Speaker 05:
Our next case is number 25, 1017 Johnson versus United States.

[00:00:05] Speaker 05:
OK, Ms.

[00:00:05] Speaker 05:
Boehmer.

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

[00:00:09] Speaker 01:
May it please the court?

[00:00:11] Speaker 01:
My name is Michelle Boehmer for appellant Christopher Johnson.

[00:00:17] Speaker 01:
The issue in this case that warrants reversal of the district court, Court of Federal Claims, is involving two issues.

[00:00:29] Speaker 01:
both the scope of the half-a-loaf doctrine and the scope of the favorable determination for Mr. Johnson in 2017 by the Board of Corrections for Military Records.

[00:00:43] Speaker 01:
Both of those things are in dispute.

[00:00:45] Speaker 01:
In our brief.

[00:00:46] Speaker 01:
What was the second one?

[00:00:47] Speaker 01:
The second one?

[00:00:48] Speaker 03:
I heard you say the half-a-loaf document is wrong.

[00:00:51] Speaker 01:
But what was the second point?

[00:00:52] Speaker 01:
The scope of the favorable determination in the 2017 Board of Corrections decision.

[00:00:59] Speaker 01:
for Mr. Johnson.

[00:01:01] Speaker 03:
2017.

[00:01:02] Speaker 03:
2017.

[00:01:03] Speaker 03:
Yes.

[00:01:06] Speaker 01:
And then an additional error is also the failure of the trial court to provide the administrative record to Mr. Johnson upon his request, which happened during the briefing and also during the appellate argument.

[00:01:21] Speaker 01:
I'm sorry, the oral argument on the motion to dismiss.

[00:01:24] Speaker 01:
And that hearing transcript is before the court.

[00:01:26] Speaker 01:
And then the court also addressed it

[00:01:28] Speaker 01:
in its footnote in the decision.

[00:01:31] Speaker 01:
That's footnote 6 at the appendix 14 to 15.

[00:01:36] Speaker 02:
Do you raise that third issue in your briefing to us, though?

[00:01:40] Speaker 01:
We did, Your Honor.

[00:01:42] Speaker 01:
That is in footnote 11 on our opening verse on page 19.

[00:01:47] Speaker 05:
You can't raise issues in footnotes.

[00:01:49] Speaker 01:
I'm sorry, Your Honor.

[00:01:50] Speaker 05:
You can't raise issues in footnotes.

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

[00:01:55] Speaker 01:
Thank you, Your Honor.

[00:01:56] Speaker 01:
Thank you.

[00:01:58] Speaker 01:
Returning to the scope of the Hufflepuff Doctrine and the scope of the 2017 order.

[00:02:03] Speaker 01:
Governor, it's for you.

[00:02:06] Speaker 01:
So how could it be?

[00:02:07] Speaker 05:
The Martinez seems inconsistent with your brotherhood approach.

[00:02:14] Speaker 05:
Now, it doesn't mention brotherhood, but how can we take an in-bank decision and say, oh, well, it doesn't really mean what it said?

[00:02:24] Speaker 01:
Well, Your Honor, our position is that we're just asking the court to look at brotherhood as a way to interpret the half-a-loaf doctrine and apply it.

[00:02:34] Speaker 05:
I thought that was a separate argument from the half-a-loaf doctrine.

[00:02:38] Speaker 01:
Well, really, they're very similar.

[00:02:41] Speaker 01:
They could be two different arguments.

[00:02:46] Speaker 01:
And we presented them that way.

[00:02:48] Speaker 01:
With limited time here before the court,

[00:02:51] Speaker 01:
I don't think that adoption of brotherhood requires you to overturn Martinez for this reason.

[00:02:58] Speaker 01:
In Martinez, the issue was a dismissal by the Board of Corrections.

[00:03:02] Speaker 01:
And that does not reset the statute of limitations.

[00:03:07] Speaker 01:
What's different for Mr. Johnson is that in 2017,

[00:03:11] Speaker 01:
the Board of Corrections not only changed the line of duty determination, which allowed him.

[00:03:17] Speaker 05:
OK, but your problem is that Martinez is very clear as to what the statute of limitations trigger is.

[00:03:24] Speaker 05:
And it runs from the discharge, right?

[00:03:27] Speaker 01:
It does run from discharge, Your Honor, except for when the half-a-loaf doctrine applies.

[00:03:32] Speaker 01:
And that is noted in Martinez footnote four, when it refers to Friedman and

[00:03:42] Speaker 02:
Doesn't, doesn't half a loaf only apply when the administrative remedy is mandatory, when you have to exhaust your administrative remedies?

[00:03:52] Speaker 01:
Well, here, Your Honor, at the Half a Loaf Doctrine, the relief for Mr. Johnson is mandatory based on what the 2017 court did.

[00:04:02] Speaker 02:
I wasn't clear in my question, I think.

[00:04:04] Speaker 02:
Your client did not have to go to the BCNR, correct?

[00:04:09] Speaker 01:
That's correct.

[00:04:10] Speaker 02:
It was a permissive appeal.

[00:04:11] Speaker 02:
And I thought that we had said that the Half a Loaf Doctrine would only be available if the

[00:04:18] Speaker 02:
intervening proceedings were mandatory, not permissive, mandatory in the sense of you have to exhaust your administrative remedies before you go to the court of federal claims.

[00:04:28] Speaker 02:
Have we not said that?

[00:04:29] Speaker 01:
Well, respectfully, Your Honor, I don't believe that the holding in Wayless, which is interpreting the holding in X from this court in its predecessor.

[00:04:41] Speaker 05:
It's the Rumpf case, right?

[00:04:43] Speaker 01:
Yes.

[00:04:43] Speaker 05:
The Rumpf case by our predecessor.

[00:04:45] Speaker 01:
Yes, and the Rump case also sets that out.

[00:04:49] Speaker 05:
And that's what the trial- Because the Rump case would seem to be sort of in point.

[00:04:54] Speaker 01:
Well, the Rump case, in terms of the statement of the law, is factually accurate.

[00:05:01] Speaker 01:
But its application to the facts, the facts here for Mr. Johnson are distinguishable from the facts in Rump.

[00:05:08] Speaker 03:
How?

[00:05:09] Speaker 01:
How?

[00:05:09] Speaker 01:
Because the BCNR gave him a favorable determination.

[00:05:14] Speaker 01:
They determined that he should have a disability rating, that justice required that he be given a disability rating.

[00:05:24] Speaker 01:
And so when the trial court interprets that decision as only permitting him to have a line of duty redetermination, and that is his full relief, it actually is misinterpreting that Board of Corrections decision.

[00:05:38] Speaker 01:
which went further.

[00:05:43] Speaker 01:
I can provide you with a citation for that.

[00:05:49] Speaker 01:
It is in the appendix at 55 is the 2018 PED decision that takes away the corrective favorable determination of the BCNR in 2017.

[00:06:03] Speaker 01:
And that is on page 47.

[00:06:08] Speaker 01:
of the appendix and 48 where the board concluded that an injustice occurred when he was not rated initially in 1992 and he was discharged without consideration for a disability rating.

[00:06:22] Speaker 01:
And then the court on the same page went on to say that

[00:06:26] Speaker 01:
Petitioners in justice must be remedied by returning his record to the PEB to issue a disability rating and revise his disability adjudication.

[00:06:37] Speaker 01:
What the PEB did here and what the trial court found was that it was proper for the PEB to reassess fitness.

[00:06:45] Speaker 01:
But that's actually not what 10 USC 1552 requires and mandates.

[00:06:52] Speaker 01:
Once the board, in its permissive structure,

[00:06:56] Speaker 01:
Mr. Johnson was allowed to bring that claim before the board.

[00:07:02] Speaker 01:
So he brought it there, and then he won a disability rating, and then the P.E.B.

[00:07:08] Speaker 01:
took it away from him.

[00:07:09] Speaker 01:
So we respectfully submit that the half-a-loaf doctrine applies in this case because the disability rating became mandatory and is something that the P.E.B.

[00:07:20] Speaker 01:
was required to do.

[00:07:21] Speaker 01:
Now, that's a factual situation that hasn't come up.

[00:07:24] Speaker 03:
Accepting for the moment you say all of this was after well well after the August 1992 discharge, so how's it relevant?

[00:07:37] Speaker 01:
It's relevant, Your Honor, because of the Hapalove Doctrine, which says a new cause of action accrues when a board.

[00:07:44] Speaker 03:
But he didn't have to go to the PEB again.

[00:07:48] Speaker 03:
And he didn't have to go to the board.

[00:07:49] Speaker 03:
I mean, I guess what I'm saying is the statute of limitations.

[00:07:52] Speaker 03:
Had the six-year period already run from 92, with respect to what you're talking about.

[00:07:58] Speaker 03:
So how is it relevant?

[00:08:01] Speaker 01:
Well, it's relevant, Your Honor, because of the

[00:08:05] Speaker 01:
the structure of the Board of Corrections.

[00:08:08] Speaker 01:
What this court would be telling veterans is that if they go to the Board of Corrections and they win, there's no judicial review of the enforcement or the interpretation of that order if it's ultra viris and contrary to law.

[00:08:23] Speaker 01:
And in Martina's footnotes four,

[00:08:25] Speaker 01:
This court said that a different analysis applies to the statute of limitations when that's happening.

[00:08:31] Speaker 01:
And that's what happened for Mr. Johnson.

[00:08:33] Speaker 03:
But I think in Martinez, and correct me if I'm wrong, but it also said, and unfortunately we often don't see this, that someone can file a suit and go to the correction board, and then timely go to a correction board, and then file in court and have the court proceedings suspended or put in abeyance.

[00:08:53] Speaker 03:
While the while the correction board proceedings are continuing Understood your honor I I Admit that mr. Johnson could have done that but there is no requirement in the half a loaf doctrine that requires him to have done that So in other words doesn't that I guess what I'm getting at maybe I'm repeating myself I don't see how the half a loaf of doctrine can apply when

[00:09:22] Speaker 03:
He was in a spot where he'd already lost the statute of limitations in terms of the court of federal claims.

[00:09:30] Speaker 01:
Well, I think that's precisely why we're bringing up brotherhood, so that this court can evaluate the Hufflepuff Doctrine and see that it doesn't help a veteran that's in this position.

[00:09:39] Speaker 01:
I'm sorry.

[00:09:40] Speaker 05:
I don't understand what the brotherhood case has to do with the Hufflepuff Doctrine.

[00:09:45] Speaker 01:
Well, Your Honor, it just has to do with a continuing claim or a new cause of action, because that's what the reopening rule under Brotherhood says, that if a board, an administrative body reopens a decision, that it then resets the statute of limitations.

[00:10:01] Speaker 01:
And we understand that in Martinez, a dismissal is not going to reopen the statute of limitations.

[00:10:08] Speaker 01:
We're not even arguing that every favorable decision reopens the statute of limitations.

[00:10:13] Speaker 01:
But the government here is arguing that Mr. Johnson had to fully win everything, a disability rating and medical retirement, in order for the half a loaf doctrine to apply to him.

[00:10:25] Speaker 01:
That's what happened in Wayless and X. But to us, that limits the half a loaf doctrine too much for veterans who have this permissive action.

[00:10:37] Speaker 01:
with the board.

[00:10:39] Speaker 02:
Can you help me with your complaint?

[00:10:41] Speaker 02:
I'm not sure that I see in the complaint the theories that you're arguing to us on appeal.

[00:10:48] Speaker 02:
Do you do you allege in the complaint that there was something arbitrary and capricious about what the PEB did on remand from the board to BCNR and so where can I see that?

[00:11:00] Speaker 01:
We do your honor.

[00:11:01] Speaker 01:
That's in paragraphs 19 to 26 in the complaint and the complaint begins at appendix 22

[00:11:08] Speaker 01:
I see that my time is almost up.

[00:11:16] Speaker 02:
Well, I don't see paragraphs 19 to 26.

[00:11:19] Speaker 02:
I see the complaint ending at paragraph 18 on Appendix 24.

[00:11:24] Speaker 00:
One second, Your Honor.

[00:11:36] Speaker 01:
Our cause of action begins at Appendix 23.

[00:11:45] Speaker 01:
And in paragraph 18 on Appendix 24, we state that the decision of the BCNR, which would be the 2020 decision that affirmed the ad hoc PEB, which is the 2018 decision, is arbitrary capricious contrary to law and made without regard to procedures by law and abuse of discretion.

[00:12:06] Speaker 02:
And so it was at the BCNR, then it was at the PEB, then it was back at the BCNR.

[00:12:13] Speaker 02:
And you're challenging that second BCNR?

[00:12:16] Speaker 01:
And the PEB as well.

[00:12:19] Speaker 01:
Because under 1552, that PEB did not have the authority to not grant a disability rating once the board aborted that.

[00:12:28] Speaker 02:
You don't cite 1552 in the complaint.

[00:12:30] Speaker 02:
Does that matter?

[00:12:34] Speaker 01:
I don't believe so, Your Honor.

[00:12:35] Speaker 02:
I think that that is- Here's my concern.

[00:12:41] Speaker 02:
If the complaint could be only read as asking the Court of Federal Claims to give your client the disability benefits going back to 1992, as opposed to asking for maybe procedural relief, send it back to the PEB to do what the BCNR told it to do,

[00:13:03] Speaker 02:
The statute of limitations argument is arguably different.

[00:13:07] Speaker 02:
That is, the claim for the actual benefits may be accrued in 1992, and therefore the statute ran in, whatever, 1998.

[00:13:18] Speaker 02:
But if what you're really challenging is just some procedural mix-up in 2017, 2018, maybe it's a different analysis.

[00:13:26] Speaker 02:
And it seems like your complaint is just about the 1992.

[00:13:29] Speaker 02:
But can you help me on that?

[00:13:31] Speaker 01:
Yes, Your Honor.

[00:13:31] Speaker 01:
With all due respect, we allege quite specifically in those allegations, so that would be paragraphs 10 through 13, about what the PEB did and what the BCNR did after that to affirm the PEB that was different from the 2017 BCNR decision.

[00:13:59] Speaker 01:
So the disability rating that I've been talking about today that the BCNR required to be given to him in 2017, that is a prerequisite to his medical military retirement.

[00:14:13] Speaker 01:
He needs both a fitness determination and a disability rating.

[00:14:17] Speaker 01:
What the PED did in 2018 is it took away the fitness decision that he had in 1991.

[00:14:25] Speaker 01:
So it's a new cause of action.

[00:14:27] Speaker 01:
And they also refused to give him a disability rating, which the 2017 BCNR had required.

[00:14:34] Speaker 01:
So we do allege that very specifically in the complaint.

[00:14:37] Speaker 01:
And that is the basis.

[00:14:38] Speaker 05:
We were hoping that the- In any event, the Court of Federal Claims addressed those issues.

[00:14:43] Speaker 01:
Pardon me, Your Honor?

[00:14:44] Speaker 05:
The Court of Federal Claims addressed those issues.

[00:14:48] Speaker 05:
It didn't dismiss for the inadequate complaint.

[00:14:52] Speaker 01:
Correct, Your Honor.

[00:14:54] Speaker 01:
But we contend that it should have applied the half-a-loaf doctrine to allow him to file this claim.

[00:15:03] Speaker 01:
Thank you, Your Honors.

[00:15:04] Speaker 05:
OK.

[00:15:05] Speaker 05:
We'll give you a couple of minutes for a while.

[00:15:09] Speaker 05:
Ms.

[00:15:09] Speaker 05:
Yang?

[00:15:12] Speaker 00:
Good morning, Your Honors.

[00:15:13] Speaker 00:
May it please the Court?

[00:15:15] Speaker 00:
For over 70 years, the settled rule has been that a military disability retirement claim accrues upon the determination of the first competent board and that later administrative proceedings do not restart that clock.

[00:15:27] Speaker 00:
There's no dispute here that the first competent board denied Mr. Johnson's claim in 1992, that he accepted that denial, and that he did not challenge that denial in the Court of Federal Claims within six years.

[00:15:39] Speaker 00:
His claim is therefore time barred.

[00:15:41] Speaker 00:
Just now I heard Mr. Johnson's counsel effectively collapse the arguments that had been presented independently in the brief.

[00:15:49] Speaker 00:
into effectively one ask that the court apply and expand the half aloof doctrine.

[00:15:55] Speaker 00:
So I can certainly sort of rejigger my responses accordingly because really Martinez forecloses the independent reopening rule that had been presented separately in the briefs.

[00:16:06] Speaker 00:
So I think that sort of takes care of the reopening issue.

[00:16:10] Speaker 00:
So I can turn to half a loaf, Your Honors.

[00:16:12] Speaker 00:
And I have a couple of things to say about this.

[00:16:15] Speaker 00:
The first I would say, Judge Stark, is that, as you pointed out, this doctrine, as the court's presidents teach, really only apply when you're talking about a mandatory administrative process.

[00:16:26] Speaker 00:
And here, there's no question that the administrative proceedings that Mr. Johnson went through were absolutely permissive.

[00:16:32] Speaker 00:
So that's one reason alone on which to not apply half a loaf.

[00:16:37] Speaker 00:
More critically, though, the crux of half a loaf is when the relief that the member now seeks must have followed as a matter of law from whatever favorable determination the board made.

[00:16:50] Speaker 00:
The board's only determination here that was favorable to Mr. Johnson was about line of duty.

[00:16:56] Speaker 00:
It said, yes, we're going to correct your records to show that your injuries were incurred in the line of duty.

[00:17:02] Speaker 00:
It did not say anything about, Mr. Johnson, you are also entitled to disability retirement pay.

[00:17:08] Speaker 00:
And so disability retirement pay could not have followed as a matter of law from the board's determination about line of duty because the board doesn't decide entitlement in the first place.

[00:17:18] Speaker 02:
What does the board mean then when it says it was returning it to the PB to issue a disability rating and revise final disability adjudication?

[00:17:28] Speaker 00:
Certainly, Your Honor.

[00:17:29] Speaker 00:
What the board was doing there was it was returning the case to the PEB, which does these adjudications in the first instance, and saying, give him a revised disability adjudication.

[00:17:39] Speaker 00:
There's no question that Mr. Johnson got that revised disability adjudication.

[00:17:44] Speaker 00:
So between getting the correction to his line of duty determination and the revised adjudication that he got from the PEB undisputedly, that's the full loaf.

[00:17:53] Speaker 00:
And that really takes this case squarely outside of the half-loaf doctrine.

[00:17:57] Speaker 02:
But the line of duty, I'm sorry, the fitness to serve had not been contested as I understand it, maybe ever, but probably since 1992.

[00:18:12] Speaker 02:
What is it about the return instructions that I just read to you that gave authorization to the PEB to undo a favorable fitness finding that had not been contested as far as anyone can tell?

[00:18:29] Speaker 00:
I think the authorization rests first and most squarely with the underlying statute, which would be the Disability Retirement Statute 1201.

[00:18:37] Speaker 00:
And that's the one that vests the applicable administrative body with the authority to determine these issues in the first instance, including not just line of duty, but also fitness.

[00:18:48] Speaker 00:
And then once you get past those two hurdles, then also the actual reading itself and ultimately entitlement.

[00:18:53] Speaker 00:
So I'd start there.

[00:18:54] Speaker 00:
I would also point, Your Honors, to the Board's referral at Appendix 48 for a revised disability adjudication.

[00:19:02] Speaker 00:
That's precisely what the PEB gave to Mr. Johnson, and that's the full loaf.

[00:19:07] Speaker 00:
I would also say, Your Honors, that the 1981 decision in Rumpf is actually quite useful in this instance, because it's

[00:19:16] Speaker 00:
It's actually not at all distinguishable, as Mr. Johnson's counsel suggested, so let me give you a sense of the relevant facts in that case.

[00:19:26] Speaker 00:
In Rumpf, that was a half-a-loaf case.

[00:19:28] Speaker 00:
A decade after the members' separation, he got a favorable board determination that upgraded the characterization of his discharge from, I think, less than honorable to honorable.

[00:19:39] Speaker 00:
And the board referred that member to the equivalent of what is now today DFAS for a determination of whether he was owed any money due to that correction, the discharge characterization correction.

[00:19:52] Speaker 00:
DFAS said no back pay.

[00:19:55] Speaker 00:
It left the determination as to the discharge characterization untouched.

[00:20:00] Speaker 00:
But it said no back pay.

[00:20:01] Speaker 00:
We did exactly what the board told us to do.

[00:20:03] Speaker 00:
We determined no back pay.

[00:20:05] Speaker 00:
And this court said that doesn't create a new statute of limitations because he got his full loaf.

[00:20:10] Speaker 00:
And that's precisely what happened here at Your Honors.

[00:20:14] Speaker 02:
Would the BCNR have had authority to return the case to the PEB

[00:20:21] Speaker 02:
and direct them only to limit their analysis to, I guess, disability rating.

[00:20:29] Speaker 02:
That is, could they have sent it back and said, look, line of duty is established, no one's ever questioned fitness, so you have to give a disability rating and you can't unpack anything else.

[00:20:44] Speaker 02:
Would the board have had authority to do that?

[00:20:46] Speaker 00:
I confess I'm not certain, Your Honor, under the statute.

[00:20:49] Speaker 00:
Again, what I do know is that the correctional board really sits as a board of review.

[00:20:53] Speaker 00:
And so it is going to have the applicable service board determine these first instance issues first before the board is going to take them up.

[00:21:04] Speaker 00:
So I don't know precisely the answer to Your Honor's question, but certainly what happened here is that the board said,

[00:21:10] Speaker 00:
We're going to correct your records with respect to line of duty, but we're otherwise going to defer to the PEB to issue that revised adjudication.

[00:21:17] Speaker 00:
That's precisely what Mr. Johnson got.

[00:21:18] Speaker 00:
And so that takes this case out of the half a loaf exception.

[00:21:23] Speaker 00:
I won't say much more about brotherhood, because I think this court understands that given the Martinez decision, the brotherhood and other APA cases really don't apply.

[00:21:32] Speaker 00:
What we're talking about at the core of this case is a money claim in the court of federal claims.

[00:21:37] Speaker 00:
And that injury accrues upon the determination by the first competent board that the member is not entitled to money, and that happened here in 1992.

[00:21:46] Speaker 00:
So we respectfully request that the court affirm, unless there are any other questions.

[00:21:49] Speaker 02:
Just one more for me.

[00:21:51] Speaker 02:
Ms.

[00:21:51] Speaker 02:
Vollmer said something to the effect of, if we were to affirm the court of federal claims here, we'd be telling veterans, essentially, you can win a victory, and then it's

[00:22:01] Speaker 02:
I don't remember what her language was, but it's basically a nullity, the victory.

[00:22:06] Speaker 02:
And that that's the meaningful distinction from Martina's and many of our other cases is that here at the BCNR, her client got a victory as opposed to a dismissal.

[00:22:19] Speaker 02:
What would be your response to that?

[00:22:23] Speaker 00:
Certainly, Your Honor.

[00:22:23] Speaker 00:
I think it would matter significantly what that victory was.

[00:22:26] Speaker 00:
If there is a monetary compulsory follow-on to that victory that was obtained below, then that conceivably, but they didn't get, but the member didn't then get that monetary remedy,

[00:22:38] Speaker 00:
then conceivably there would be a half a loaf issue, because then you have a money issue that sort of brings the court of federal claims into play, and you have the board saying you are entitled to this money, but then the member not getting that money.

[00:22:52] Speaker 00:
So that would be, I think, sort of the scenario that I would point the court to.

[00:22:56] Speaker 00:
But that's not what happened here, where instead the board says, you know, we're going to correct these things, don't have an immediate determination, don't have an immediate effect on the actual money that you claim you're entitled to,

[00:23:07] Speaker 00:
then, you know, maybe at best they can go to district court and bring an APA claim saying, hey, look, you know, there are procedural irregularities that happened here.

[00:23:17] Speaker 00:
But of course, what they couldn't do is they couldn't bring monetary claims to a district court.

[00:23:22] Speaker 00:
All they could do is fix the implementation with respect to that procedural issue.

[00:23:26] Speaker 00:
Again, that's not what happened here.

[00:23:29] Speaker 04:
Thank you, Your Honor.

[00:23:34] Speaker 04:
OK.

[00:23:35] Speaker 04:
Thank you.

[00:23:36] Speaker 04:
Mrs. Vollmer?

[00:23:36] Speaker 04:
We'll give you two minutes.

[00:23:40] Speaker 01:
Thank you, Your Honors, for the additional time for rebuttal.

[00:23:43] Speaker 01:
I appreciate it.

[00:23:48] Speaker 01:
I wanted to draw the Court's attention to the government's brief at the responding brief on my opening brief at page 19, where it talks about the fact that the BCNR predicted that

[00:24:11] Speaker 01:
that the PEB could have undone the fitness for duty decision.

[00:24:22] Speaker 01:
That is nowhere in the PEB decision at the appendix 46 to 49.

[00:24:33] Speaker 01:
Instead, as Judge Stark quoted, the board determined that

[00:24:41] Speaker 01:
justice required that he be given a disability rating.

[00:24:46] Speaker 01:
And so I wanted to return to 10 USC 1552A4, which gives the TEB the authority to carry out a mandate of the district, I'm sorry, of the Board of Corrections.

[00:25:04] Speaker 01:
And that's what we're really arguing here as to why this is mandatory and why the half the loaf doctrine should apply.

[00:25:11] Speaker 01:
to veterans in the position of Mr. Johnson, because he will be without any judicial review, was what I was trying to say, Judge Stark, is that if veterans are permitted to do this type of corrective appeal permissively with the Board of Corrections, and then they win, but they don't win absolutely everything, they basically have no judicial review.

[00:25:35] Speaker 01:
And here, he won the right to a disability rating.

[00:25:38] Speaker 01:
And that's important to Mr. Johnson to have his disability rating.

[00:25:42] Speaker 01:
And he didn't get that here.

[00:25:44] Speaker 02:
Thank you.

[00:25:45] Speaker 02:
The government says he did get a disability rating.

[00:25:47] Speaker 02:
It's just not the rating you wanted.

[00:25:49] Speaker 01:
Your Honor, a finding of fitness for duty is not the same as a zero disability rating.

[00:25:57] Speaker 01:
It's not the same.

[00:25:59] Speaker 01:
He was determined to be fit for duty.

[00:26:01] Speaker 01:
And he does not understand.

[00:26:03] Speaker 01:
And that took away a finding.

[00:26:06] Speaker 01:
that was made in 1992.

[00:26:07] Speaker 01:
And we have alleged that it's not based on law or fact.

[00:26:14] Speaker 01:
And he has no judicial remedy for that.

[00:26:18] Speaker 05:
Thank you.

[00:26:18] Speaker 05:
OK.

[00:26:18] Speaker 05:
Thank you.

[00:26:19] Speaker 05:
Thank you, Your Honor.

[00:26:19] Speaker 05:
Thank you for counseling the cases today.