circumstances came together and resulted in mr pure for his removal all of which were triggered off of his efforts to receive treatment for that substance abuse would disappear if we want this to go back to work at the we're not asking for a checklist your honor and i think you're referring to the naval decision which says that irrelevant factors do not have to be considered we're not saying that the board needs to be  needs to to go through each one but the board does have to consider relevant factors and we would submit here factors such as the nature and seriousness of the defense the notice that was given to mr purefoy the potential for rehabilitation and particularly the adequacy of lesser sanctions especially where you have a situation with the ministry of judge sustaining  different charge than was alleged by the agency a significantly different charge one question i have for you is if i understand your argument but where's the board have to do or do they have to independently assess the relevant douglas to assess the relevant douglas factors and that one of the problems here is that at best the board cited back to the agency's consideration of some of these factors if you look for  example at the potential for rehabilitation it will go back to what the agency does here and it's briefed as well what back to the agency's consideration in light of the alleged to the proffered charge of the six months vaccine it didn't analyze it relative to the actual sustained charge of the two days at the beginning and the thirty eight to thirty eight days of the so you're saying that basically the here is the only reasonable outcome from the record here is what the administrative judge said that the careful and well reasoned analysis that the administrative judge went through we would of course certain eight day period out of that six month charge and then took the position that well even a forty day period is a serious amount of time that's a lot of lot of leave time and went on to talk about why nonetheless the mitigation is not appropriate with the board didn't go on with the two comparison of numbers of simply saying we have forty days here and then citing a case where fourteen days was serious and really setting another case where seven days was fair was serious and saying forty is bigger than fourteen have me i think we have the administrative judge a judge as to terminate and say i don't know that that that is necessary but but you think we could reverse out right based on the ministry of justice determination i believe that the case w does permit a reversal of the board's decision i think we have the record of the administrative judge to to reverse and remand for entrance of that of the administrative judge it's an issue of it with respect to notice it's an issue of what mr purefoy understood from these conversations and she received the testimony from these are these were verbal communications one side saying i communicated this to mr purefoy mr purefoy saying this is what i understood she heard live testimony from both sides of the conversation and she came to the the agency's brief here so i think the agencies brief is the prime exhibit with respect to the deficiency of the boards and dallas us the agency doesn't defend the board's decision on its merits the agency defends it entirely based on the proposed charge of the six months and to be clear that that was not that was not sustained by the  over grounds for a firm incident and saying that the original charge should have been sustained yes i do i believe that that's believe that's an argument that they could have made i don't believe they made that argument but even in that scenario i don't think it is within this court's purview to enter to change the sustained charge i think this court if if that's what your honor is believe the appropriate thing to do would be to say the removal penalty can not be it's not appropriate relative to the forty day charge but we would be we would remand it back to importunate have done something else that's not right yes your honor and i don't and i don't think the government here actually does defend the board's decision i think the government here is is trying to to rewrite history and rewrite the record if i may just sort of just to come back to your question on credibility of would also like to touch on the potential for rehabilitation because i'd i believe as well that the administrative judge's findings with respect to  is pursuit of rehabilitation and the the level with which he cared about his job workload ability findings that the administrative judge found i can appreciate your argument but what about th that's not all credibility determinations can you help me to understand it says it has to be either implicitly or explicitly based on tweeter so can you help me understand why here it was based on demeanor as opposed to just seeing a credibility determination as opposed to just viewing the facts differently saying you're viewing a more potential for rehabilitation is this claim that he was not taking full responsibility for his actions which is certainly something that the administrative judge would that the board did not make a decision as to whether or not the six months was applicable or the thirty eight days that we see in the board's final decision is them saying let's just assume what the administrative judge found let's assume this thirty eight days i don't think they said they said that that will sustain the lesser charge they didn't want to but i mean by that is that there is no fulsome discussion in the board's decision saying here's the reason why we're not accepting six months there is no they don't take up that i decision is that even the thirty eight days even sustaining the thirty eight day target time period where he was detained and incarcerated at the detention facility that that in addition to the two days on april fourth and april  deciding officials memorandum that detail memorandum which is cited by the board is that the reference is not only to the fact that it was a six month period the references there that we see or the fact that it was it continued an excused absence and whether that is a thirty eight day period of time or forty days counting the detention period in the previous two days or whether it's a six month period that is not a small amount of time for somebody not to show up for work not to submit plato or a member do the  analysis despite the fact that the penalty ranges from fourteen days suspension all the way up determination doesn't that imply that there has to be some assessment as to whether or not a lesser sanction would be sufficient i think given the facts and once again  severe i'm sorry not the penalty but the charge the charges themselves and the impact that it had on the agency was so severe and was not mitigated by those things cited by the administrative judge owed to the agency and unless it exceeds the parameters of reasonable pnas or the board did not consider the twelve douglas factors unless those things happened that the deference should be given to the chosen penalty of the board and so yes there's a broad that the proper calculated from bank robbery we're going to defer to even though we're really only looking at larry i mean that's a totally different there apples and oranges respectfully your honor i would i would submit that their orders in oranges were just talk about the size of the orange using the burglary example it would really be more that the charges burglary and instead of stealing twelve million dollars you know little six he was in fact on continued an authorized absence he was counseled repeatedly to submit this paperwork and he simply did not tell the tale today didn't find things count routinely to submit paperwork and in fact the answer he found as a matter of fact that he didn't really receive that well with respect to the period when he was in treatment they don't pay the administrative judge seems to agree that for that period of time for which he was incarcerated and not receiving treatment that he is not excuse for that period of time for not having submitted paperwork and so again what would have  view on the potential rehabilitation she says he has good potential for rehabilitation lines that given any difference by the word it's not going to deference by the border out of because that's not a demeanor based credibility determination there is no where within the administrative judge's opinion where it's implied or it's expressly stated that based on all of the demeanor of the witness when testified i believe what he's saying and it doesn't have to be expressed the same day from the context it can be clear implied and and you know the context here is several days of testimony in which she flushes out everything that happened including what she apparently believed to be some real unfairness in terms of the way he was treated  and you know both by the agency and by his parole officer so i mean how do you how do we say that a potential for rehabilitation doesn't have you know everything to do with demeanor well i think even if the court were to find that it were a demeanor based credibility domination that and of itself is not insulated from the board reaching a different conclusion if it states if it has sound reasons for doing so in that reflected in the record and here what the what the board refers to when it addresses this issue on the  ability or i'm sorry it's likely to be for rehabilitation it is it goes back to those findings of that deciding official and says we have a deciding fishel here who is saying this man is not is no longer although he was in the beginning of the agency was behind  the beginning when he was taking these steps towards treatment when he threatened that the inmate in treatment and was forced into lock up at that point he was not taking responsibility for his treatment at the point at which he never communicated what his address would be when he was gone  away from work for those forty days he never communicated that's the agency that's not taking responsibility what about the fact that in the agencies memorandum decision i'm considering this factor it doesn't even talk about the fact that he went to his third line supervisor and said have a problem and that their line supervisor sent him to a v a facility for treatment and then this whole thing happened with the proof officer and everything but it's not even addressed how is it that the agency can make an informed  las analysis without even addressing that part of the rehabilitation fact i think looking into the whole of what mr mr purefoy did i think that is reflected in the decision the deciding official but when we're talking about now where we are not rich started in the beginning not when his work is addressed in the agency decision how can you say it's reflective i thought i may be mistaken or i thought that it was mentioned in the beginning that he was initially at the v a the v a medical center but in any event it wasn't mentioned brings out that it was actually his own supervisor present america and said take care of yourself get yourself where you need to be and so that there was a felt that there could be mr pure for its position and that's why they did what they did that's why they excused the time for which he was going to be in treatment voluntarily it was the series of bad decisions that mr pure ford made after he left treatment at the v a medical center that leaves us where we are now and that is what reflects what his current possibility or potential for rehabilitation is and so when you look at the series of bad mistakes that he made it was certainly rational even if we disagree even if the court disagrees it was certainly rational for the agency to reach the conclusion that it reached and it was written it was reasonable and supported by the evidence for the board to look at the agency's point of view on this and take that side and disagreed with what the administrative judge found you said that you thought the memo but i think your honor is correct it it seems to pick up with his thank transfer is entering the detention facility and again i think that simply reflects what really created the problem account all the relevant information i think i think your honor is correct that that's not mentioned in that particular douglas factor but i'm not sure that it's relevant as to what that at the point at which this was written  that's to say that this was written in october of two thousand and thirteen at this point again we have these unexcused absences we haven't whether you counted beginning at six months or whether you counted after mr your boy had been kicked out of the treatments the treatment program at the detention facility we have continued unexcused absences and it's at that point that the agency evaluated what his potential for rehabilitation is at that point and at that point what mr purefoy has is a series of bad decisions everything that started that on the road down this road i'm not suggesting that at all at all your honor i am saying that as it relates to the charges and those charges were the periods of his absence without leave and so the period even if we take the thirty eight days in two days where she was asked to do a substance abuse in the thirty days where she was in the detention facility and not receiving treatment those what's what's relevant to those charges is where she was what his state of mind was and relevant to that he still had obligations and so the question is did he act responsibly even in light of what she was going through and the answer here is clearly no she was told to submit paperwork he did not submit paperwork even if he understood for the period of his treatment that she did not need to do so it was clear that she before he even left for treatment at the v a medical center that he did submit paperwork for those two days that he missed prior to entering voluntary treatment he never did that when he spoke with h r after that and started when he went into when he was incarcerated the period that even the administrative judge agreed that he was incarcerated for that period of time there is no effort on the part of mr purefoy to submit the required paperwork and that simply isn't you know it's a small thing to have to comply with the terms of your employment and we're not looking at one or two days again we're looking at forty days that's and workdays you know somewhere the neighborhood of six weeks it's hard to believe that any of us wouldn't expect to be removed from our employment if we were absent for a period of six weeks for regardless of the reason perplexed as to what those bad decisions were when you look at the page that judge stroll directs us to one of the six in terms of the potential for rehabilitation with the agents who looked him saying that he did not have a good potential for rehabilitation they were treating that entire period at the m s g at that entire six months as incarceration there's several problems with that one had voluntarily sought treatment at the v a medical facility so it's i'm not sure whether the government is saying that his compliance with his parole agent to report to the m s d f was a bad decision war is the entrance into the alternative to revocation process at the m s d f was was a bad decision this was written not from the perspective of his exit from the treatment program it was written from the perspective of him being at the m s d f in the first place what do you say in response to counsel's argument that you know he he didn't submit the paperwork when he entered the v a medical facility to receive treatment he received verbal approval from his supervisor who said at that time said to him go take care of yourself you're going to be to submit paperwork would he did not admittedly did not submit paperwork when he went to madison to receive treatment he was excuse that he was excused for that period of time and found that he was authorized to have leave  he had a similar verbal conversation with his supervisor before he entered the m s g after his testimony at the hearing with the administrative judge was i understood that i was following the directions by by attempting to contact by telephone my supervisors and there is additionally testimony at the hearing and from the ministry of judge that verbal approval is often given for four leave was made aware when the when the agency made raised this contention of not submitting the required paperwork and they did that in their first removal decision he responded in writing in his first rule decision  understood the verbal approval to be enough if i was incorrect i'm here by requesting i'm here by requesting leave the agency ignored that and so you have this this extended period of a wall that that they eventually charged him with that was really of their own making they knew where he was he told he had told them where he was he told supervisor where he was going he at a minimum requested you know requested leave or at least request of how to how to obtain the leave in response to their removal action and yet they kept him in a wall until his release  in november so that this contention that they didn't know where he was at that he was not making any effort to to apprise the agency or to incident no obligation on his part at that point he knew he was not going to be able to go back to work for long period of time in new that is this treatment was effectively zero or no obligation after the program would have taken him through the the in the program would have taken him up to that with these dates so it's not as though he was there for some extended period of it was i'm enjoying this alternative education program there is a treatment and this treatment program starts in july and it will run through the end of october he was eventually released on november third or fourth i