top of the board for correction the records now according to strickland and kathy can we get right to one of his reasons that there's a long and documented history of domestic violence and involvement in which you called the f a p program short where is that borne out by the record as far as i can tell and i know the record you try to supplement they oppose they provided their explanation of what it said frankly given their explanation of what it said i don't understand why they opposed but as far as i can tell there are two incidents how is that a long history of domestic violence more respectfully it's domestic violence issues which does not necessarily compassed convictions i just want to be clear on that  point i understand that but that he at least the tenor of the secretary's decision is that this individual has had a long and sustained history of domestic violence and i don't see that in the record i see a history there is going to be improper here but there is other information and those records that suggest that history goes back farther than two thousand stuff and sed and mr strands command as mr strand notes in his brief would have been aware of those other incidents due to the fact that the command was involved and the family advocacy program when it was in one of the commands service members why weren't they in the ministry  in part because the family advocacy program is not there to punish a service member it's there to persuade the service member to get the help that the navy believe he or she means and so in the absence of a disciplinary action or some sort of counseling entry the navy does not routinely walk in the service records the service member's involvement in the family school went up to extra value as a as a recent case where a more recent case where the court affirmed that principle and so he in this case the executive director for the board determined that t that the panel had recommended may not be appropriate in view of the seriousness of mr strain and its felonious misconduct and forwarded that recommendation to the secretary to make the ultimate decision in accordance with  c fifteen fifty two and maybe regulations but to go back to your question your honor just to clarify that i'm sorry that secretary oh no deference to the morning and making has recommendation dry understand that correctly the secretary according to strickland the secretary's entitled to reject a board recommendation that it that in his estimation is not supported by the record before the board and i want to ask you one other question about the longstanding history did that come from the statement of the there is nothing in the record that indicates that mr strain had petition to be seen are to review the accuracy of that statement and perhaps have it stricken from these records were modified in some other way and so from the secretary's perspective also goes back seven years but i get all that was he represented when he went through this b c in our process or was he it was my understanding that he only got counsel after the court of the claims appointed that there was a long standing history but there's nothing in the record that disputes that history and in fact nothing in the record that shows that history either accept this statement which doesn't point to any document area of this well i would respectfully disagree with that your honor there conclusion for substantial evidence and it doesn't have to rely on a conclusory statement by the commanding officer if it can it can demand some kind of substantial of an assistant port that and you can't fall strand has pointed to in his brief simply doesn't do that that agonist shows that there were no non judicial punishment rather disciplinary actions which we've sort of touched on already that evidence includes letters from considered all of that information and did not find that it had controverted that state when when you said well it seems to me that you're bright he has the burden but when he comes back and says there's actually not a longstanding history it's only two incidents and points to the stuff in the record and that's all i see are you saying he has to disprove all of this other stuff that is that part of the record he has to come forward with evidence that would cast some doubt on that statement well why isn't his pointing to the evidence and say look here are q incidents late in my career occasioned by basically the same set of unfortunate circumstances that doesn't demonstrate a long history doesn't that at least put it into dispute and then require some kind of further rebuttal from you know what we attempted to  out make this point i believe it's in our reply brief that this issue of the domestic violence is is i don't want to characterize it as a distraction but what i mean is what i'm trying to say is the secretary really didn't need to rely on that in order to reject the recommendation of the board because the secretary had available to him the undisputed facts mr strands shooting incident that th policy explanations provided to be absolutely but he did rely on it and we have no way of knowing whether the shooting incident alone would have been sufficient for him to overturn the order corrections decision or whether it was the shooting in quotation marks but it used the exact same language so the board already considered this exact same contention and they granted mr strain relief anyway for seven years the courts have held that the secretary can't just disagree with this board and overturn it  and here if we look at his reasoning he says i disagree with the board's reasoning and he points to the same thing that they've already considered and nothing else that's not sufficient that's whately you're saying that the word found differently on the fac regarding the longstanding domestic violence is that what i hear you saying i'm saying that your honor it's been admitted there's nothing in the record that goes to the statement except the statement itself and the board has already considered that statement whatever encom his commanding officer recommended separation under other than honorable conditions in part but he had a longstanding history of family advocacy program involvement with mustard one of those issues that is mr kaplan starling's language so whatever that statement me it's been considered by the board and factored into the decision sure but that doesn't have one set it is racked the board considered all the facts and came up with a recommendation for the secretary and then the secretary considered and said i have a different view and i don't see where it sounds like you were just saying that the secretary found facts that were different from the board and i don't see them no your honor the sector didn't fund facts different than the board and that's the important part the cases for sixty years now have said that where you're looking at the same facts from the board's interpretation is reasonable and supported by the facts the secretary can't just overrule the board's decision that search result if the secretary finds the board's decision think that he doesn't use the term he disagrees with the reasonable well sure you know that's the obvious conclusion to draw i mean he he's not disagreeing with the facts he disagrees with the board are you really thing that the secretary various illustrated example and this also goes to the navy's other articulated reason about core values which i'd like to get into in a moment strickland was a navy petty officer who was convicted of a violent crime a sex crime against a child  was discharged just prior to his twenty year retirement he pursued his remedies up through the boards and was overturned by the agency and ultimately prevailed and was retired and so you know if you're going to say that you disagree with the board's reasoning they have to give more than one sentence that the board already considered and found didn't warrant denying mr strain relief and turning to the core values here it's important understand why the board exercises powers it corrects injustices and what's happened here is that mr strand admitted that what he did was wrong he had one mistake at the end of a nineteen year career where everything in the record is stellar he's a top performer top marks secretary it is the job of the secretary or honor but the boards have the power to direct certain personnel actions and for seventy years that's been the law and if direct of the approval it's nothing short of well not subject to his absolute discretion commitment about the idea of redemption about the idea of paying penance for what you've done i hear what you're saying but i think that kind of thing of looking at the conduct and determining whether it's consistent whether they're somebody who was convicted for six years and served two years of prison whether that is consistent with navy current values and what they're going to focus on penance versus the crime to begin with that's not something for the court to judge well your honor and so we're not going to second guess that if his decision is supported by some sense of no i do think you have an argument that on the domestic violence point that it's pretty dead although i wonder if if we do order it sent bac itself and if if that's the case then it seems like a waste of time so there are two questions that you just asked your honor the first is is it going to turn out the same way the navy already told you in their docking statement it is and that's why this request from a man shouldn't be honored it's just stricken and we had to litigate them on the merits to protect our fine that first incident the journal talked about and that mr greene has referred to about stalking what happened in that incident what's in those files is that after mr strand returned from his last combat deployment supporting operations in afghanistan he found his wife had left him unexpectedly taken his children cleaned out his bank account and wasn't talking to him wouldn't let him see his children for months he found out where she was living when to her apartment and confronted her on the sidewalk she had three overturn policy judgments that seem like the secretaries and part of the magic of sectors not entitle to make these policy judgments your honor again no substantial evidence we talked about that he's pointed he's entitled to make them at their substantial evidence that supports his argument you're going between two things i mean it seems to me that you're arguing almost some kind of rule that the secretary is by the ructions for absent some changing x or some kind of between for seventy years the second we've said secretary can overrule the correction or that's just not right but the secretary can't do is overrule the corrections board without substantial evidence you're right on that yeah but you leave out that core part when you talk of that some of the years so we're talking about substantial evidence here sure enough we did agree with you that there's a lack of substantial evidence then we can either affirm or we can make it and remain for the secretary to actually provide more substantial evidence as well that i think that you could affirm i don't think vacating remained it's appropriate because there is necessarily a substantial evidence and if there was the secretary would have provided that it's not there and so it seems like there's a dispute between the two of you at least on the domestic violence front about whether there is at the center not sure your honor but let's remember there's also another articulated reason on this piece of paper that we have to consider here and we've talked about core values if you read the navy's papers one of their pr remember here the navy is also bound by its core values mr strand has now for almost a decade been out you know in the civilian world trying to make amends he set himself right with the state with his victims with his family this is a guy who is living on a couch so that ever scarce money go he earns can go to support his children one of whom has a serious medical condition and what prevents him from getting gainful employment based on that the training and expertise he got he was in the service is one black mark on his record what we want people who get in the criminal justice system to do is to rehabilitate themselves and go back to a productive civilian life and this one black mark is what's preventing it and the na navy hasn't explained and what the cases say that he has to do when he points to a policy reason like this is explaining and there's no explanation how denying mr strand relief so that he can move on with his life is consistent with navy core values this is a guy who made one mistake why is it consistent with honor courage and commitment to say that for the rest of his life he should have a hard time putting food on his table that's not consistent with the navy's core values and your honor to search your point about the counter claim that the government filed this is a pretty straightforward application of the court of federal claims jurisdictional statute the statute is twenty eight u s c twenty five zero one it establishes a strict six year limitation period for claims that are filed in that court this court has held that that's an independent jurisdictional requirement in cases like ronna and rocky mountain helium those are cited in our papers and here at the absolute latest the government's counter claim started to run on june twenty sixth two thousand not because as of that date all the events that fixed mr franz liability to the government had occurred twenty four fifteen y you no it doesn't your honor i'm sure the government will give you its views on that in a moment but if you look at twenty four fifteen they cited two totally provisions the first is subsection f it starts with the provisions of this section shall not prevent the assertion it's referring to twenty four fifteen itself it's a tolling provision for the limitations and subsections a b and c similarly subsection d which is another tolling provision that they attempted to invoke says that and accept as otherwise provided by congress congress has otherwise provided that the court of federal claims cannot hear cases that accrued more than six years prior and so this is just a fairly straightforward application purportedly holds the secretary can just disregard a decision by the corrections word refers to the cases and proper a waste hertzog in these cases and in each of those cases the secretary the courts found secretary had violated section fifteen fifty two because he'd involved in military advisor in the process of correcting records and in each of those cases all the evidence favored the recommendation provided by the corrections board and so that's not the circumstance we have here and at the very least we have evidence on both sides we have mr strand's post discharge conduct in a satisfactory service but we also have the other evidence is the secretary relied on been barred by twenty four fifteen more than likely ok and the second reason is that twenty five zero and you would have been left with administrative attempts to recoup that money and you couldn't have gotten the court or fifteen on the first two causes of action brought by the government and so on the face is the statutes twenty five and one doesn't apply i would also like to point the court to three cases in which the court has analyze united states to twenty six have thirteen forty nine united states versus hanover insurance eighty two f thirteen fifty two and sealand services versus united states four ninety three affected thirteen fifty seven and none of those cases did the court analyze this jurisdiction question hundred twenty five all one they all refer to twenty four fifty five and so that indicates that the statute of limitations provided  appreciate that your honor may please the court your honour's first quickly twenty five a one says every claim of which the united states court of flight federal claims has jurisdiction shall be barred it doesn't apply only to plaintiffs claims it applies to every claim now i'd also like to briefly address strickland here's the test from strickland other circuits to have held that the secretary is authorized to reject the board recommendation so long as  waived if they are not raised and the government never played an offset in the court below so it is not entitled to a certain offset now the government did make a reference to that i believe in a footnote in one of their filings and to the extent that the government intends to take an offset here or attempt to