partly we believe that you need to look at that before you look at the deal that actually you know work well and work together with that d f that's are we believe that the the thirty one point one two has been  misapplied here and that he had continuous service and that it actually does apply to him and he meets the qualifications of value and i didn't understand the argument but if we were to conclude for example if we were to disagree with you and conclude that thirty one  not entitled to live in quarter adjustment allowance that would be the end of the case right i don't believe so the case was premised originally on a violation of userra and when which is are obviously the reason for us being in the image to be in here today to start with but also when you review the record that we have here which unfortunately does not includ transcript of the issue of the continuous service came up in the hearing and was briefly discussed and i believe that you look at it in context that supports are harmful their argument that that is where it goes to the h their argument not necessarily determination and was uniformed services substantial and motivating factor in ages decision those three arguments go hand in hand and i believe the judge just just discussed that the  last argument was there prejudice when the hearing was not reported by the presiding judge if i have time to get to it i will but it's quite clear from looking at the record the judge the administrative judge with respect to that in his opinion doesn't do a lot of legal analysis of anything that we have raised on appeal but instead uses a lot of words like this person recollect this person remembers there's not a lot of this person testified to there's no credibility finding on the record which the agency tries to bring up  that issue of prejudice what would be the remedy vailable that would have changed the outcome what evidence would you think we should have before us in transcript form that which is not available now will to thin prior hearing these arguments were in fact made and because we don't have the hearing record we don't have access to them but with respect to the st issue of the continuous service a hearing with respect to issues that they regard as being important was not done here not by either  s was not mr venters the sort he was called to active duty as a gap filler meaning they didn't have another civilian to take his position when his term expired this was not something where he resigned to find his happ elsewhere his term expired as a federal employee and was not allowed by federal regulation or two stay in that job agency itself filled that stopgap measure by ordering him to duty it isn't relevant  view that he's a marine reservist he could have been an air force in service an army reserve and coast guard service it doesn't matter he was ordered to duty by the army and continuously served in the same exact role for a period of time prior to accepting a position another army position as a civilian and that that has been completely overlooked by the judge and it's not apparent in the record but we believe the benefit of the military member here is the fact that he was supposed to be protected during its military time a time in which he was not a volunteer and his rights as a civilian should have been protected and it was not the agency itself did that treated him the same as if he was still a us hire during his period of reserve time and get a bout face during the civilian service that we're talking about for periods of time in his new job the using the theory that the documents are a record of the service and that the service underlying the documents are not issue are not important we completely disagree with this and we believe that all of them align with ericsson where the gentleman was absent from duty and the postal service fired bonaire substantial evidence in the record establishes that it did not specifically the evidence in the record demonstrates that the army did not in appropriate we consider mr bin heiresses reserve military service  its determination to  let me ask you a question about the scope of the m s p's jurisdiction in a case like this i mean we know that the m s p b has jurisdiction over the usera claim but does it also have jurisdiction to decide the underlying regulatory issue that is and what i mean by that is this supposed that we were to conclude that you sara was not violated this much as there was no prejudice there was no discrimination against midst of an heiress based on his military service but that the  agency misapplied the regulations and that under proper application of those regulations he and other people like him who do not have a usera claim would be given the benefit does the m s p be have the jurisdiction not only to decide to use their issue but also to decide the what otherwise would be an a p a type issue of whether that regulation has been violated in a particular well your honor that question was not raised and spent time i'm interested because it's not inconceivable that one could conclude that the regulation was violated but honor if if the question had been raised to the board yes it's possible that they could they could have reached that issue as to whether or not the regulation was appropriately applied however in this case as i mentioned that wasn't the question that was raised it was whether or not  military service impacted the denial of the usa so i wouldn't go so far as to say that it's outside the scope of the board's  just simply state that it's outside the scope of this case and with regard to that the two key issues that support the board residing in germany this is a stablished in the record both by his reserve orders which are in the appendix in fourteen and also by his discharge papers which are in the appendix at page ninety one  them show that he was living in austin just that germany and had and the record further establishes that he had been there for the length of that reserve term position going beyond that there's this issue that's been raised of what mr binaries would have done had he not been called to the military service as we discussed in our briefing testimony rather we simply state that as a hypothetical scenario it's impossible to know what would have happened had he not gone on military orders but even going beyond that and there's one point that i would like to clear up both before the board and in our and we reference this argument in our briefing to the court the the  army asserted that if we take that hypothetical scenario where mr of an heiress had not been called reserve orders and had returned to the united states even in that scenario he would not have been eligible for a living quarters allowance that is that is correct and it's established by evidence in the record one point i would like to clear up is that the government stated that he would have needed saying is that you can't ultimately find there was any prejudice even if the judge had based a decision in part on military service or military records because the same result would have applied had he returned and never been called up on active duty to begin with that's correct your honor that's that's part of our mr this is judge just to you're saying that if he had been hired in and seventeen after having been living back at his original home residence in illinois after his two thousand and sixteen job and did in stuttgart he wouldn't have qualified under this regulation requirement of needing to be back in the united states for a year your honor he would have had to have returned to the united states and permanently resided there for a full year that's correct i don't recall the precise facts here but just on the precise facts here are you saying that he wasn't he would not have been able to have been present and residing in the united states for a full year on these facts yes that's correct your honor in the appendix that page two hundred and thirty seven dollars it shows that  and as i mentioned it's in the record and page two hundred and sixty five paragraph seven a once they said i'm quoting employees who previously vacate and outside the united states civilian or contractor position must have so again there was there was just over three months from when he left the civilian term position when he accepted the formal job offer she find to stand in ny i'm a little confused by one of the applicable regulations here i think it's three thousand one hundred and twelve b of the state department regulations suppose that he had taken a four year job with the civilian agency and then that that arrangement had with a one year company option and which the company decided to exercise so he spent the th year with and twelve b would he in that situation be eligible because he had been recruited for the st job in the united states and the job with this nd civilian agency was his nd job generally yes your honor the way i understand your hypothetical is essentially you're saying that instead of going to the marines he basically stayed with the questionable whether or not the l q way that he had been granted for the term position was appropriately granted but beyond that the general hypothetical where someone is recruited from the united states is serving overseas and then moves directly from that position applied for except and then moves directly into another overseas position yes three thousand one hundred and twelve would granted in that you yes however the distinction that i would make here is that while we've been engaging in this hypothetical discussion based on the assertions made by mr the record establishes that there was no way for that to happen because the term position terminated in june two thousand and sixteen so were guard lists of whether he was called to military  service again he would not have been able to return to the united states for a longer period of time for a sufficient period of time but looking back at the state department regulation which controls in this case the individual who is serving overseas not of their own accord in other words someone who may have been called on military orders it offers them that path to qualify for elp us the reason why didn't qualify is that when he was called to military service he was in fact living in germany of his own accord he applied for the civilian position in germany that was his choice so in that sense he was there voluntarily as he accepted that position and worked in the position and then was called to to military duty from his residence in germany not the united states so to the facts in the record essentially and the inquiry because the question was not where was he for his military service the question is where was he prior to his military service and the that it did four years earlier it's just not relevant to your what you have to look at here i believe the agency is off on it in the universe that we're not off on with respect to what is hypothetical if mr venner it had not been called to active duty in the same exact job he did not have the choice but to go home the record is clear what would have happened to him the status of forces agreement required him to return home he had a hypothetical or not his testimony is not hypothetical it is actual he took all reasonable steps to at the terminations of his term appointment to go back to the united states and the only reason he didn't is because the agency called him to active duty  so the other question i'd like to address is the agency policies in effect here say to treat him as a deployed reservist as if he had never if it never happened then this goes to one of the your questions about the continue the point and it shows there's usera discrimination here that goes right to the point if he had been for some reason able to extend his term appointment premier there's no question that he would have gotten record and to the extent it's not because the testimony is excluded from the judge's decision it's prejudicial killer noted in her testimony and the ministry of judges knowledge preserve military duty does not alter is us higher st that is exactly what we're arguing is that when he went on reserve did alter his us higher status which was impermissible basically the one plus years he was on reserve duty should have been treated just exactly as the court has suggested which was a continuation of the job he was doing before and constituted substantially continuous employment under thirty one dollars and the supplemental guidance that w