the evidence shows in this case and we would argue with your honor that it's misleading to try and figure out exactly what was attacked because that is the job of the top four and when we look at the talk or not only have the responsibility to understand what was said but also to decide who was telling the truth about those stats and determination as to what happened and that's miles and the information was that what the testimony was how the witnesses appear and whether in general he believes one witness over the next now in this case the decidedly official in detail set out the reasons why  third when the first letter hit the editorial pages it's apparent that the presiding judge pointed out that this was a high profile investigation with a high profile matter the commandin circumstance and if you look at their investigation is fraught with the issue the problem italians they came away with the recommendation that this man should be referred to a mental referral because of with the issue of whether or not the agency who by clear and convincing evidence that it otherwise was a remove mr ray we've cited cases and bork doesn't address this issue but in general the board attacked the entire question that looked at the stack of documents that were generated in the investigation hundreds of sheets of paper and on that but mr matthews is making a point which is made in several of our cases that the rules that apply in these in this p b cases are somewhat different in situations in which the  administrative judge has made a determination that's overturned by the board and in particular when the administrative judge a determination is credibility based and there's a set of rules that apply there and he was i think invoking those rules to overturn every fact made by the administrative judge there's no question when there's no demeter base pretty building fine is that the only the board's findings are at issue and so the only time this this issue even comes into play is the rare circumstance in which there may be demeanor based credibility find your distinguishing between demeanor based credibility and credibility that may be based on inferences from the facts perhaps it aren't specifically the question of whether the witness had sweaty palms and didn't look the questioner or the judge in the eye is that is that you think it's that narrow yes  the board at least were taken at a sound basis now in jackson i believe that was the case where the court found that there was no sound articulation that's where that stand comes from now in this case the reason this cases is it's not that difficult detail was go through its paces for overturning some of the ministry of justice decisions that were even a close call its credibility and to the extent that the board relied on documentary evidence to reverse the ministr similarly the board found that the ministry of judge improperly didn't consider the fact that for similar conduct and this is one of the specifications  in the favor of the government the administrative judge said well i'm looking at the two not really i really believe mr ashley mind believe mr right now when it came to whether mr ray have made the same disclosure to mislead  core as part of the petition for review so that wasn't even before the board at the time but by not referencing this inconsistency where the judge said well i just don't believe this lee that mr mystery would have made in sustaining specs six and eight they did not go on to say that even without spec six and eight they would come same conclusion no that is not enough sense so they needed in effect they needed six and eight in order to sustain the penalty to take it hard least they didn't say anything to the contrary that were going in as obviously as if we were to conclude that those specifications for all we'd have to send it back as opposed to the board to assess what to do with the other specifications including abuse and support insubordination derogatory comments about officers and civilian employees spreading rumors these were all specifications expressing my opinion as to the weight of the evidence in pointing out to the court that that's not the issue that's the case here are those two specifications the other the other issues in this case of course concerning the fact that mr ray had previously been disciplined for similar misconduct and the fact that the based on all of the evidence that was considered or that there was extensive evidence before the board that mr ray had used his authority abused his power had been threatening and untrustworthy it was upon that basis that the decision maker upon that basis that i believe that the army would have sustained its that the army would come to the same conclusion i certainly can't speak for the for the board but they i think the evidence is there and sufficient  blowing reprisal and so i think it's important to point out to the court that that the best occasion to those allegations on the occurred after those are really an ongoing investigation of mr rove and of course as far as inferring intense when he when the board found that mr ray had actually spread false information and the for chance it was based on again these types of facts where mr ra determined that these were not significant charges and then most likely would not be sufficient for a move actions each of the board agreed and and left undisturbed even to the extent that the three were not challenged by either the or the agency and the three that were challenged by agency the board staying and agreed with the precise and official with respect to the fact that they were and not sufficient looking at those facts given that they used the very general terms of inherent probability the basis upon which mr ray reported the march fift incidents concerning mrs lee had nothing to do with the investigation that was in place at the time the investigate or rose to a email to the editors about mr ray being in  charge rating military members that was the principal and the sense of the charge upon which mr ray and everyone else understood that the investigation is taking place and that's the reason why colonel sullivan decided well we have to then start another investigation if in fact it was already part of the investigation that would have been no need so we would submit that the rationale that a doctor is adopted by the board which is just pull  no place that because of this two week delay that somehow that meant that he was trying to influence an ongoing investigation it's just inherently improper but in any event there is no way that a reasonable person looking at those facts was fine at the agency is to by a preponderance of evidence that it would hurt remove mr gray based upon what happened when he communicated to the colonel and the discussions between himself and mrs late i think that's important because they wouldn't necessarily have allowed him to remain in that position where they were and that's the issue