good morning members of the court q coach broke the law i don't know if you remember a have argued before you previously it's a pleasure to see you i don't know if i'd let you judge raina i don't know if judge malley is on speaker or she was just participating but send my regards your honor of my name is william sarah i ars decision and secondly that under the substantial evidence for all the trial court was obligated to review the whole record to determine whether the lack of due process at the non judicial punishment fairly detracts from the b c on ars decision you four he had numerous other deployments or during which he said witness disturbing events on july th of two thousand and fifteen he pretended a nontraditional punishment proceeding on to the court is aware of what that is he was on he was not that many of these cases but there is a whole i can't even keep the acronyms because there are so many proceedings you have so he decided to forego the court martial proceeding you're not claiming that yes ma'am so the lawyer did you have time to refer it away and the answer to all of them was yes and then it also seems that even if he accepted that he thought he needed more time to be didn't get it there were subsequent proceedings which he also had a further opportunity to dispute the evidence and his case right so i'm having a hard time saying you know we have a lot of due process allegations i'm having a hard time seen how th that i understand your honor and let me try and help the court both with a bit of information and with some missing some facts to think that the court of claims left out of their decision there's one fact in there that is what we believe extremely important which was when he was told by his commanding general after the result of the end g p and j p and the board of inquiry is an administrative board of officers that hears evidence in the case that was predicated on the fact that he had received non judicial punishment so the failure to allow him adequate time to defend himself at the non judicial punishment proceedings directly affects everything else that happens after that and you know i appreciate that you know it's an intimidating process for most people who  prism so to speak the st is the very peculiar prism of the military where you're not going in to speak to a impartial board of officers or a board you know i don't know what the case before us was about i was trying to track and i'm sorry to say i probably caught about four words of it but you know where there is a i mean it clearly impartial board the person that he is appearing before is his commanding general who certainly is not and you know an impartial observer in all of that and who holds if in my client was a major in the major general's five or six ranks above him and telling him don't make this any harder on yourself now having said that is everything ok with you well sure it is sir because you can't take that those statements out of the pris and his wife i believe the records of her crew fairly clear on this is wife was on the phone as a witness and she heard the comments from the commander who was imposing the non judicial punishment so it's two separate words you read me and she yes ma'am that's when the of you got it wrong and we're going to get this particular person over the conflicting evidence of the other people well the supreme court gives you that authority and consolidated us edison and universal camera but we're not asking you to really weigh the evidence and i know that there is a fine line of demarcation that's a distinction without a difference because of the distinction with a very big difference between not really weighing the evidence and determining whether or not there is substantial sufficient evidence in the record i understand weighing all the up and i understand there are other said the courts have promulgated a couple of different standards of review that tend to seem like they're contradictory with one another and we are st ones to admit that but we do believe and helen argues that the law does allow as the looking at the number of medical review and even the numbers of one how on earth even the deferential standard are you are we to nd guess the way that was assigned the very things and your answer to me seemed to be whether it fairly but i don't understand how we evaluate under the circumstances in this case ok well the evidence is really i'm sure your honor and i think the answer to that question is clear that the evidence of the p t s d diagnosis by three medical providers and their social in your favor was dr bash my right on that is correct or on of him yes and so if the question is you know as you look at the sort of two contrary opinions but the court has sort of taken off the table dr evans and dr research the government's own doctor said i want it done for the research you want to do further evaluation or even consider hospitalizing him so what you're really left with is commander  but doc is saying you know come into rector excuse me saying that you know making his findings dr evans saying i need to do more evaluation and dr vass cough saying dr rec fails to take into account all of these other factors and the courts or the b c are simply said well we picked this one over these and we believe that that is where the for the evidence group fairly detract of the facts that the forgotten she had or he did he had that well in advance and had an opportunity to go through that with this attorney so what he didn't see are the specific witness statements except her against him until approximately an hour before in j p and even at that point he had every opportunity to reach out to his lawyer to ask for de lay he did none of that as we noted the very st question in j p is do you understand that you have a right to refuse non judicial punishment to which he answered yes and so i think  decision was that was not but that was all and see all right and now with approximately one hundred pages in what he had an opportunity to review before in j p now granted appears to says some technical errors were computers he only received the hour but again he understand your right to refuse in j p so if he understood that comment to be directing him to accept non judicial punishment but he then later asked do you understand your right to refuse non judicial punishment at a minimum he could say i do and i'd like to  another case that said that waivers not only must be voluntary must be knowing intelligent and actually doing a sufficient awareness of all of the relevant circumstances in the likely consequences if he did know that time to consult with his attorney to get more time he didn't do any of that he absolutely accept that the non judicial punishment and i know just don't just ask because i'm unclear chris is as i said we don't have that many of these cases in this hierarchy of different arguably a proceeding bet if he had come and what if he had had one hour two hours and said i want to argue for or not you know for a lower punishment or against some of these charges of is that the body that  i understand if he would have come in and said i'm even more time he would have been given but more time for what was the tribunals supposed to be doing this trial going to ultimately issued a letter of reprimand so they were looking at the misconduct and making a decision as to what judicial punishment is where he actually has to make the final decision so i believe he received the notice at the very same time he is assigned defense counsel and he has an opportunity to read the charges against him to work with his counsel to make a decision as to whether he wants to accept so what does somebody just get two bites of an apple or is this under a more limited standard or few there were several buy for the apple your honor but ultimately the board of inquiry is a bit different from non judicial punishment the board does is obviously presumably predicated on what happened before hand as i understand it is not so it's predicated on the finding a misconduct but the decision to separate them i today they haven't said they want to be back where they were before they accepted and a big argument was that the board of inquiry might have gone different but he's never requested to be put back where he was but that i don't think that even is an consider whether or not he should be separated under the circumstances and then once the decision was finally made at this misconduct with so egregious that he should no longer sir he appealed to the board of correction of naval records so it had already been through several levels of review before we got before the board and then just further quickly to lead us to the next issues a lot of time were presented to the board again offense or several levels with the board looked at exactly what this court is looking at and exactly what was before the trial court and so indeed right here which is whether they're come flick thing opinions being presented they said this course was simply noted that this court may not displace the bourse choice between two conflicting views even if the court would have justifiably made a different choice of the matter were before you know opinions from military medical professionals who said the conduct was not there was no nexus between misconduct and that no your honor for the for the court the board made a finding the force with the quickly said even if there consideration to the next arguments and i specifically note that they gave a liberal consideration in order to move the record is that they said we don't care i mean in other words it doesn't matter not that we don't care just that it doesn't make any difference because even if find that it's connected to the misconduct and we don't find that it's another to outwait or mitigate the seriousness of the offense here and so we believe he should still be separated and that is what the board said that's at appendix seventy five thank you thank you to accept nontraditional punishment they are still allowed to present evidence to their commander in the fence and in mitigating that to my st point i mean there were several other proceedings after this including the b o r i mean did judicial punishment should be vacated because he was not afforded due process no i know i'm just thinking those are two separate questions they are and i've to answer your question as to whether he specifically requested to redo no but that's not the normal remedy if a b c if a non judicial punishment is determined to be invalid the normal remedy is to wash it for you know it is through not a do over but it's just