recruitment of such tuitions assistance is authorized in this case if at all both by statute and regulation only if there is an agreement emphasize agreement to reimburse the army for the cost of that education in terms of which recite to and refer to certain events which would authorize recruitment none of those events took place in this case including a voluntary failure to complete the agreed upon term which is the premise for recruitment that has been affected thus far against my client now my client did not complete the term he agreed upon but he did not do so voluntarily in fact he was involuntarily discharged from the army and this appeal we are simply asking this court to call an apple and apple it's separation of the service members in that case was in fact voluntary or involuntary that was a separation because the service members could not not comply  with the gym teachers firemen that they lose some weight and they were just separated from the army and their terminations and then recruitment bonuses in those cases was affected in this case your honor their record is complete replete with clear and repeated determinations by the army that my client separation was in fact the question was open there was no express determination by the agency as it affected the separation that it was that these people were being voluntarily separated or that involuntary separation was fact voluntary that the court in fabro engaged in more or less access tensional arguments about what constitutes voluntary as opposed to involuntary action that question is not in play here here the army has repeatedly stated that this discharge was involuntary and thus if indeed we are going to pay deference to that determination we must also conclude that my client was not voluntarily separated or that his actions for purposes of recruitment should be considered to be voluntary the agency itself has determined that this was an involuntary separation  honor there is i think only so much bending of the words the meaning of words in this case my client was indeed a separated for actions attributed to his performance the agency makes much of that in the statement of fact it follows from the argument but ultimately he was terminated on honorable conditions two hundred and fourteen dollars is in the record and that in that case and the army it classified that action determined this was involuntary i believe that determination distinguishes this case from fabro in that regard but your view and i apologize for interrupting but just to make sure i understand your position it's your view that because the separation was classified is involuntary and honorable that that can't be the result of a voluntary failure as a matter of law that is my view that in fact i had knowledge that we are to give the agency a great deal of deference and now to run the army when people are going to be separated not separated in fact course we're not arguing that we should not have been separated we're simply arguing that the agency itself made that determination that this was an involuntary separation and we rules apply rather than the contract yes your honor and be in the ministry of roles and the stats you all refer ultimately back to the agreement to serve whether or not you reach you may mean that reach is not the right word whether or not you apply contractual rules of interpretation or ministre to rules determination or statutory construction they all come back to the same place the same fork in the road if you will and that fork in the road is the us and a fifty the agreement to serve whether or not it's an administrative or contractual question the question this recruitment was authorized under that agreement it is the agency not the appellant who is arguing that this separation was involuntary and with all due respect to court's previous holding  it's got to the point where it makes no difference whether under those under fabro whether or not the separation was voluntary or involuntary and i think congress recognized that if indeed there was no distinction between those terms why then would have been necessary in the year following the year my client entered into this agreement to eliminate that distinction in the statute and make it clear that it is what is in fact being argued here that if the army decides that things quote didn't work out or for reasons that are unfavorable to my client that it wishes to seek recruitment that that it could do  so that's what the statute in two thousand and six was amended to to require my client however and in this regard it does make a difference whether the ministry of a contract my client agreement with dated prior to the effect d such a determination was not made the statute remains the same but the facts that you will feed into this mill so to speak are different in this case the army that made the determination that with involuntary not by any contractual deal that it makes your honor based on wearing off and bell and schism the government in fact is bound by a statutory pronouncements and this of course this agreement the  serve the purpose of him agreeing to serve it also with his oath of office and it also registered him for selective service which of course when all of us respond to the selective service  was also the discharge related to the voluntariness of his action which ultimately whether or not you determine this is as we would would say it should be administrative given that this is this comes or administrative record it was decided by a board under this court's prior decisions and mats and walls it should be treated as as whether or not the board's decision was arbitrary and capricious and that should be the standard review b and we have course that shouldn't it would still be it would still bottom of the same point because it would have based on what the statute says because the agreement derives directly from the statute includes identical terms  and moving on from that your honor whether or not it's contract or statute ultimately the question is is squarely determined by fabbro mr preston back counsel stated repeatedly that asks is what voluntary it is true that the administrative act of separation itself was long was not voluntary in any meaningful way indeed defendant has stipulated that in voluntarily that it in voluntarily separated plants so this is on all fours with with that row like fabro the mr preston back was involuntarily separated by life fabro the question isn't in the statute and in the agreement they both state the same thing which is active duty the action there is the is actually the service member's actions not the act of separation in fact as fabro pointed out separation is not used in the recruitment statute but you see respons there two bases two when when a service member fails to meet his obligation it can be either based on voluntariness or misconduct we're not contending that it's it's misconduct but that points us back to what is actions pointed the way that he was sub standard and his duty performance he knew that that that he these days actions could lead to separation in fact this is this is during the year being some form of notice i guess fabro didn't the form that the person in the service member signed or that that applying there actually state not being physically fit or being overweight after the st to refer to officer evaluation reports his rd one which was not the basis of separation in fact he did fail the way test so in some ways he's in the same as as  requirements of the the agreement and of the statute it's because of disability in the line of service that's one basis and it whether or not it's beyond the control of the individual and if there's a determination that in fact it was was beyond the president back controlled and then in fact he should have been then then he would have met that voluntariness standard and and he would wouldn't have to we wouldn't we were seeking to recoup that money from him but here there's no turned out to be a good performer which perhaps i don't know i can think of also some of the reasons why it took so long to figure that out but that the question is what is the consequence w about this very issue and emphasizes that the term separation is not used in the recruitment provision has said the relevant phrase is complete the term is unless meant can you talk about that issue and fibro i know you discussed it a little bit that you know it asks what voluntary in section two thousand and five and here in the form five hundred and fifty agreement ultimately it's not the act of separation because separation isn't in the statute it's not in point in fact the court repeatedly rejected other circuits and other courts that made dissimilar determinations and in fact found that voluntarily voluntariness deals with the underlying behavior and not honorably discharged notwithstanding the fact that they may have been a substandard performer because the term and the permanent determining whether or not somebody gets an honorable characterization is dependent on whether or not they've conducted if they've had misconduct that's one of the main reasons so if somebody is not discharged based on misconduct they are probably going to get at least an you know an honorable discharge or d at least a neutral discharge if  be upheld for that reason so and and that circumstance this court is looking at that board determination based on you know this court's precedent and mats and walls once a plaintiff goes or a service member goes to the board this court  you the board that mr hurst i'll just refer to in fact found this to be a question of breach of agreement that's found in the record at page one thousand and eight where they did indeed construe this to be a question of whether or not my comp client complied with the terms of his enlistment agreement and it is an agreement acceptance of an agreement or a contract can be demonstrated by performance and of express approval of the vote indeed it's demonstrated by the army's performance in this agreement it's clear that the army believed there was an agreement in fact the board found that there was a breach of agreement and the statute to where we began voluntary separation and whether or not chevron deference is applied here or not the question is unlike fabro in this case as my client was going through this he was repeatedly armed that he be in voluntarily separated we give deference to the army determinations in that regard recruitment should not be authorized in this case and it should be right reimbursed for that which is been recouped thus far thank you