that's been codified by the secretary defense and department defense instruction thirteen hundred point seventeen it's no longer possible or in fact quite legal for somebody to get out of the situation of saying when a chapter can pray or in fact the chaplain can actually have his prayer censored as certainly happened in the two thousand and five in two thousand and six both aboard the ship the angio and later again at  the naval station chapel we had a situation where a chaplain of a certain faith was being told by a line officer it was not ordained how to do his job and how to control his prayer record a military funeral has a military portion but it also has a religious fortune just just as any other few in the would mean i understand your argument but the court of corrections factional fighting that that was not the bas for that action it made a factual finding that that action was based on the survey results and so how do you get around the fact that we have a deferential standard of review with respect to those determinations go to man i'm glad you brought that up because one of the longer case that i mentioned in the briefs is the d c circuit having reviewed this and saying that when you have something that is completely illogical and it does not connect to the facts of the factual finding they don't have to give the higher level of board of corrections had said that that relates to something like the fact that he drank coffee you know in a strange location or something we could spine that to be arbitrary or caprice is or not to make sense but here you actually had two different things that could conceivably have impacted the decision making and in this case there was an actual survey with survey results that were on board ok some of them filled out a survey some of them didn't presumably those that didn't fill out the survey obviously didn't have an issue and of those you know as we looked at the number and analyzed the numbers i don't remember m age progressed as my memory gets a little better that's why we put it down in the reply brief the actual number of people the actual percentage of the crew that had a problem was not all that mark plus it seems to be and or human or veto saying well a percentage of the crew whatever that percentage is x percent doesn't like the chaplain's particular grant form of religion so therefore if they have the right to retain or prevent him brand of religion the survey results were commenting on about how he approached those who he was supposed to be pastor very few of them were by the way your honor if you notice none of those surveys were in the administrative record ok we have no factual evidence as to what those surveys actually set we only know what somebody said they said and as you all know in these type of cases we should be tied to the administrative record i would love to have actually seen those surveys not represent the chaplain at the happy fourth of russian i came in late on the fourth federal claims case but i think it would have been a waste of time at that point to go back and ask for them they just don't exist but irrespective the burden is on the people who are referring to them or using this at this so called evidence to have put them in the administrative record the government puts together the administrative records not the not the plaintiffs in this case and there's nothing in the administrative record officer at that time was getting a car had so indicated in various investigation reports which by the way also did not include the surveys the article one thirty eight complained of wrongs report so that it was before the  and it was in the record it so here we go  to two thirds actually although we have to for forty two years we did a number of listings over this particular one the finding by the navy investigators in the record a three seventy six and four forty six but again what we're because the provisions allowed for him to have been brought back on are or to be retained on board and duties other than a chaplain you got to remember chaplain playing instrument was also an air force academy graduate he was a major in the air force he was a qualified missile officer and you're in a situation where there's a it's very hard to get into and it's a very narrow area of expertise you have to be qualified and special weapons seals that occasion system and so on a so consider all of those facts are they not well actually it's an interesting point judge an ally because court martial at that time had not been approved and of the military justice system after the trial the whole process goes up to the convening authority for review and they can actually set aside the results or they can affirm the results at the time of the care board that had not been affirmed and i'm into my rebuttal time now  this decision to discharge chaplain klingon schmidt was not arbitrary capricious or contrary to law the trial court also correctly found that the navy's decision to its sectarian as opposed to nonsectarian that was the basis for the poor fitness report where would he be would that be a violation of the religious freedom restoration act or not it might be your honor i don't know the answer to that question but be referred that way so i might mess up a little bit however chaplain clinging schmidt was separated and the grounds for his separation had everything to do with the violation of a logical order that was directed to it is it your position that even if there was a violation of the grifter are back in two thousand and five that we can ignore all that because of everything that happened after the fact the standard for  you here is the record that was before the b c n r and the record leading to the secretary's decision the record does not demonstrate in this case that dog chapman playing in schmidt was  reprimanded as a result of his sermon or that is beliefs or rights to practice his beliefs were infringed upon at all there is no connection between  sermon the survey and between the sermon and the survey there is a connection between the survey and the declining finish record there is a connection between d chaplin klingon schmidt disobeying a lawful order a lawful order that was directed to him a lawful order that was consistent with a neutral regulation a neutral regulation that is generally applicable so again you send you your answer presupposes that there is no connection between the sermon and the first initial two thousand and five fitness report we were to disagree that that that the b c n r c finding that that was tied to the survey as opposed to the sermon is is supportable even under a deferential standard of review assuming we were to disagree that yes does that what what does that matter given in the record that the subsequent actions that the chaplain hundred truck and from which he was  that's what i'm trying to understand yes now i understand your honor and i apologize for not understanding a little bit sooner i would prefer that you agree with our position however assuming that you disagree with respect to the two thousand chaplin cleon schmidt being discharged and no longer being qualified to as a chaplain or to serve as a chaplain those factors include it essentially in sports nation  to give them an opportunity to do what based on the correct factors well your honor of my understanding here is that assuming the war or to believe that the survey or the two thousand  fitness report was based upon a sermon then you might apply the stander for the religious restoration  record that demonstrates that any of chaplin clinton schmidt's activities with respect to his beliefs religious beliefs were burdened so we would be left with a two thousand and five fitness report where there is no indication or evidence that any of his rights have been violated with respect to it this is discretionary  certain i don't understand that or even if they relied on the sermon to give him a lower fitness rate in the two thousand and five fitness report of the rule why the two thousand and five fitness regime were not renewing his chaplain upon a survey that was conducted by our position here is that the two thousand and five fitness report to the extent that it was bad at all with only with respect from going to an early promote to a m promote the fitness report was actually this is a very good understanding that you think it's a hypothetical because you don't think it had anything to do with the certainty unlike that supplemental authority that you provided i understand and respect the difference that the court is pointing out our position is that there is also another difference and that difference is that he is in a community military community where and also acting under the commander of the n c o and the commander of the anzio is in charge of the not the only person on the n c l and chaplain klingon schmidt's duties and responsibilities as a chaplain pertain to all of the crew and not only to himself the record establishes that he was not infringed with respect to exercising his beliefs with those people on the crew who wanted to hear  s i don't believe that it existed at the time of the decision sure it could be worked or descriptions that is correct in the descriptions that were of the survey were provided during the article one thirty eight perceiving said best so we do have and there's there there has never been with respect to the is the primary issue before the court in our view is whether or not there is there w action action not contrary to the law or evidence lacking in the administrative record to support the navy's decisions regarding chaplain clinton and the court of federal claims found that there was substantial record evidence that supports the navy's decisions here and for all of those reasons the two thousand coffin this report didn't exist but here are we don't know and there's no way to look into the minds of that but i would point out to you and this is kind of goes to an answer to your question that you had asked earlier one of the things that  character was required to do and that's on page forty seven to forty eight of the regional brief to have eleven twenty point nine is to wreck make a recommendation as to further service which they did not do the other thing and this is also on my page twenty two twenty three in my reply brief the second haven't struction sector the navy structure i'm sorry going to the knacker specifically says that in the case of loss of indorsement still don't process somebody out of the navy navy as to how to do that and that goes with the needs of the navy they may have found they may not have found that they wanted to retain him they could have also found that they want to put him as a missile officer on a submarine i mean there's just no way that we can try to based upon the secretary of navy instruction seven hundred thirty point seven charlie or seven c which was later rescinded by the secretary of the navy ponder rection of congress in the national defense authorization act of two thousand and seven and you know we had kind of an interesting circumstance year we had a court martial in september then we had the national defense authorization act passed in october the official recession in november the clemen the court martial even though you had an opportunity to do so actually the accuser issue was raised at the court martial and e q serious a form of command influence command influence it's a subset of command influence in another words