the twenty four years that he served today he likely wouldn't be able to even obtain a security clearance to use the financial dire situation created by the government's negligence the district court erred and holding that it lack subject matter jurisdiction and by entering dismissal under the fairness doctrine a judgment granting a motion to dismiss should not be affirmed unless it appears beyond doubt that the plaintiff can prove no set of facts of his claim that would entitle tim's relief unfortunately that is not what happened here that is for treatment for his diabetes i would assume that he went  to a primary physician and obtain some sort of treatment that issue that we have this and that he obtained and was diagnosed with diabetes while he was in active service member our contention is that his injury occurred following that diagnosis we're not arguing that his entering it was diabetes and i think that's where the district court and the government missile launches his entry was economic in that he nearly lost his home to foreclosure he had a vehicle repossessed he was in attempting to obtain a business loan and his credit rating had dropped so low he went thirteen months were not  i am not entirely clear on that i did review the documents that he submitted as part of the administrative claims he had a letter as a decision written back to him and it's very unclear as to what extent of the investigation was actually like the district court actually reasoned that by mr few trail taking advantage of the processes that he had to go through following his diagnosis of diabetes being the physical evaluation board and the medical the argument and three of which mr petero complains is not the fact that he was diagnosed with diabetes and diabetes in fact it's something that can affect each and every one of us at any point in our life and and it has very little correlation with what i think everybody was clear on what the injury was that the judge said the entry was negligence and timely processing disability issue how the government interprets whether or not his engine really was service related it's a case of judicial interpretation and it's clearly service related because the claim is that the military dragged its feet in processing his disability issue that that's necessarily suppressed related he's on active status and then he's on reserve status and all the while this claim is being prosecuted processed or the disability discharges she was being processed and it takes too long so he suffers these financial consequences as a result that's clearly related to his military status just because something is related to military status does not really does not automatically lead to the interpretation and conclusion that it is barred under the f doctor and that is one of the factors that a court can look at is whether or not mr pugh troll was active duty status whether or not you know he was under me and or different combat command decisions and subject to military discipline that is not a conclusory opinion that because he was active status and because the entry was perpetrated against him by members of the military does not automatically presume that it is was notified by the military we no longer need your services you know cease and desist us doing any and everything for the military you're no longer under our command we don't need you because of your diabetes it was from that date forward that am not exactly clear and that your honor he was still on reserve status when they released him from active duty shows over a lot of people working on  he had a neck and a back injury so there was a period of time that he was enjoyed following to diagnosis of diabetes that might have limited his ability to go out and get a job i believe it happened during reserve status and had is not going to carry renewed it did happen and while he was a military member i was doing it probably was active duty because he was doing some kind of combat l did sign up for the military but he did not sign up for the personal injury that happened to him as a process he served several combat missions in iraq and reasonably so received entries  and took that as a part of the job and the duty but what happened in this case was the military did not follow their own rules and the regulations that were specifically put into place to prevent this pacific sort of injury happening to mr few trial and other those in this manner yes he found out he had diabetes it was the negligence following that determination that caused the most injury to him and the dispositive question is whether or not it was about the  following those steps then that taking the actions that they were supposed to do is why he went thirteen months without pay now he did receive that back pay back but the damage was done in those thirteen months they had no means to financially support himself or his family right in those duties are owed to him only because of his status as a member of the military so the claim was based on the military relationship between your client and the u s government development perhaps for unemployment compensation if unemployment dragged their feet and get their head in the game and process the payments for thirteen months and somebody loses their car their home is emotionally distressed loses their life term insurance policies and i'm not questioning whether there's a basis for negligence claim i'm talking about the source of the duty here the source of the duties military in nature that is present that brings this squarely within the respond to that your honor though is that in part of the analysis of whether or not the fare structure and bars someone from bringing a claim under the federal tort claims act is if that person were not in the army and were injured in the clearly making this claim for disability benefits based on his status as a member of the military and he received those disability benefits right and so anyway any delay in receipt of those benefits to the extent that it's actionable at all as negligent the source of that duty is the military relationship between your client and the u s government well during the thirteen months period did he ever complain to the army you know  need the money or if you're too slow about this numerous times your honor he actually started from the lowest chain of command and he went all the way up to writing the president of the united states it's well documented have any legal remedy with the government  he was still should he be stuck here are that seems that there's no internal military procedure just you're owed money and they're dragging their heels and you think you could military personnel decisions this judge just just just this gentleman against the secretary of the army mandamus in fact or to act make a decision sure i think that's plausible i will i will say this one thing that hasn't been mentioned and first of all all indications from the record and anything else i've ever heard are the mr charles a talented guy who served effectively the indications in the record which is scant at the motion  dismiss stage are that delays were at least in some part caused by indications from the board that his own submitted l o d's were into place i'm not saying that i put my opinion or or even necessarily true that they were incomplete but that's part of the record that if they were really just provided counsel in some cases doesn't it doesn't there's nothing in the record to indicate why or how any decision in that regard was made here the record is of course clear your honor that there were delays well the the declaration of box in the record indicates that procedures would go through him and that i think the record is clear enough that mr futrell was aware of mr vox's oversight of this and so as with other matters in the military had to answer most directly i'm not aware of a specific regulation providing more documentation procedures et certain and all that but he would have been aware of the people in charge of this decision and i just want to come back full circle little bit to reiterate the point that cites made but also just using the wording that he uses to characterize his claims even here before the court of your argument that is the military did not follow military rules and if that's the nature of the case whatever i fortunate events there might be they cause a delay which we don't know what they are at this stage ferrous applies and i don't know how the   there i also want to clarify two other quick points there was a reference to a gap of time of a month between his release and his actually being taken off active duty she was but the most seven days after his october two thousand and eleven release told about how to apply for him to press the pay and maybe seven days is a long time but it seems to me that that's relatively short that did not wait until december and i think started the process relatively quickly again if it was delayed but he did he did receive compensation and the the statement that argument was and i don't know if this is exactly how it's put in the complaint but that in december he was told you are no longer under the army's command i don't think there's any way to see that as accurate given that he was still under title thirty two reserve status that he was under military that he was right language right you know understanding of the rationale for the fairest doctrine is that the f t c is limited to use civilian and the federalist context and that this belongs in the jurisdiction of the military and the military has its own courts and its own systems for enforcing regulatory bars like this one yes and to use another tamer military which is the federal relationship and here because he had many  there were company story schemes available to him and because he knew about them because he availed themselves of them there were a web of contacts that that made that religious federalism ship multifaceted and which i think makes this a peak param peak for space in some regards moving as smoothly as they are supposed to be doing and it is well documented over and over everything that mr pugh trial did in order to try to get this process to go along he was aware of the people that were in charge of the people that were in charge did not do what they were supposed to do and did not help him in the way that they were supposed to help him he was advised i can give you the exact date that mr control was first advised to apply for the incapacit pay that was october fourteenth two thousand and eleven and it was december fifteenth two thousand and eleven that he was notified his services were no longer wanted in the military and to recap that did not mean that he was no longer a member of the military that is not what i was presenting in my argument the argument is that there have been military members still listed in both active and reserve status who have been able to proceed under the fairness doctrine as an exception to the federal tort claims act and in fact one of the rationales of the court stating that it doesn't want to allow these sort of suits and that faris is a bar to them is that it would cause the courts to have an adverse impact on military discipline and in fact this ruling would encourage military effectiveness by creating solidarity in the army's own regulations are you saying there's no  was anything different that mr p felt could have done aside from what he did which was go up the chain of command and ask who do i need to talk to what paperwork do i need to find saying there's no administrative procedure with you know with ministry of law judges and lawyers that you could