suspend dr lose wars program just to practice medicine that mr jerk are you saying that anything a service member does while they're over in a combat zone is irrelevant their conduct in service as the basis for an average of one connection and that's exactly what happened here well let me get the facts straight you know your client is a serving both position an officer of the armed services he engages in conduct which results in him facing court martial charges  resigning from the armed forces he comes home he fills out a form when he gets home for the v a and he fails to accurately list what happened and i as i understand the v a s position it's not what he did it's that he also five the information about what he did have i summarized accurately what they're saying i'm sorry that's not an that even though they said they were musing him for lack of candor that was just a loose and they were really discriminated against him because he had served in the military or is your theory that there was no obligation for him to there's no dispute is there that they fired him in substantial part if not entirely for lack of candor that's what they said so you've got to either accept that or argue that they're lying about that young thing call it anything they want then call  wire doesn't make a difference the fact of the matter is the basis of their decision is his conduct in service interact the entire purpose e sirrah is that we do not over that's what i want to understand so you're saying he was out you're not disputing that he had to answer these questions  candor or are you arguing that we cannot view this as a lack of candor because the basis to conclude that he wasn't truthful was his military sixteen claim we were arguing before that court and a lot of the record in a lot of the argument before the court a lot of the testimony before the court was whether or not there was notice to dr leslie gore that lack of candor is a charge that would be vulcan terminations we  martial and he is punished then he leaves the army comes back he wants to get certified for a new position and the question is have you ever been court martial and he says no good are you saying that well because his conduct in service cannot be viewed as a factor in any sort of personnel action that he cannot  you saying that's an inappropriate charge for that they cannot make that charge because the basis to conclude that there was a lack of candor was is conduct in service and you services that doesn't count is are you arguing that is conduct in service doesn't count and therefore any charge whether it's lack of candor lying anything any charge if it's based on what he did when he was in the service the question was please list any kind of disciplinary proceedings including court martials almost a whole lot of things and he listed nothing with that also not being used there a violation of that follow on the line if if i'm sorry or if you've listed and if you've been asked a question has there been any proceedings and you let it in i mean and he didn't answer the question in other words he didn't list the court martial but that also be enough of a l  section thirty four of the my appendix you'll see that enough was that letter came from the army and when miss porter saw that letter that raised a red flag or mine issues they would back to the vet pro application dr were suspended doctor listen gore gave mrs ailing porter the privileges technician for like a very term the information that was needed to be able to contact the army to find out exactly everything that happened during dr lives of  are exactly the facts that the v a use determined but let let me let me ask you counsel you have a very broad statement which which bothers me and that is the conduct in service cannot be the basis for adverse action under use here and it and it seems to me if you're really going to stand by that then you're saying that if somebody commits a mass murder and comes back police officer that questions already been asked and answered by six thirty in any case didn't involve mass murder and we don't have those facts here where the doctor who performed the surgery to save someone's life you have a doctor when you sort of lay it out under a lights on a table as opposed to holding it up with by the hand with your hand your honor i wasn't there dr liz ago was there and we have the statements that render record that  but back to your original question about the broad statement yes i make that i don't make a prostate i don't need to congress wrote the law and the law says you can't use someone's military service to their disadvantage their civilian employment and that i think that's really what we have here the question about a mass murderer you know come back become a police officers already been answered in any case the guy was a liar and he got enlisted people drunk  the petitioner really is attempting to use these userra as a shield to provide kind of absolute immunity from whatever he did with regard to his status as a service member or his service in iraq and there's no support for that in fact the m s p be found based upon a huge record that there was no evidence in the record nothing to support any of the u c r claims his burden first was to establish  that there was a discriminatory motive could i ask if if this case had come down if there had been no that pro forma he filled out but his colleagues or his supervisors simply received notice that they put him back again as to his conduct in iraq and on that basis and that's basis alone they decided they were going to fire him not for a lack of candor there was no candor question because there was no form fell about would that be a use they got became used of his background and the record of that we've discussed this morning of what occurred in iraq and they terminated him for that and for that alone would that be a problem to use there are no no your honor because here for example the testimony was clear from the three doctors who testified that they would have approached these matters with respect to dr lives ago in the same manner hunting knife and the photograph of the arm because under userra you have to establish a discriminatory motive so if they would have done the same thing if he explained it back to the v is obligated we put in the record the handbooks and manuals to presidential and privilege doctors and actually doctor lives of our side of the medical executive committee that passed on application by surgeons and they have v a is required to in exercising due diligence and credentialing people to view any material and even periodically during their tenure they have a responsibility to the veterans to ensure patient safety and care even if there hadn't been  an alert from one of these or two of these national databank health care integrity databank in the s s m e that the state medical boards that there were problems with dr lizza gore they have t o primary sources when there are high information about the doctors so that they are sure that whatever doctor is continuing to perform surgery for example that the doctor is is qualified and otherwise they open themselves up to negligent prudential and issues what would happen if you take a judge close hypothetical where there is no that pro application we are only talking about conduct here  and the the the surgeon in question was acting under orders and performing surgery using techniques that perhaps another hospital disagreed with w it be proper for the hospital in the united states to say well we we we decline to hire you because we don't approve of the kind of techniques that you use when you were in iraq when when is it proper to look at some of these conduct in the military and when it's not proper to look at somebody well for a v a hospital it would be proper to look at a doctor's conduct if it affected decisions on credentialing and privile g but again the doctors what about hypothetically if i'm going to employ someone in there from the military civilian position and i get letters anonymous letters that say this individual who served in iraq for two years was part of a rowdy group of officers who got drunk every night and and i looked at that behavior and i said i'm not going to hire anybody who had two years and from keeping nine with that the use there a problem no your honor i think what hospital here the v a would be required to do is look at the underlying facts and give the doctor an opportunity to be heard about what happened in a could have been it will swell to still been a problem even if this went but the candor issues weren't there and i thought you were getting toyed tactic elating that test along the lines of if it were something that he had done in a civilian capacity you wouldn't have lot just because he happened to a been in service when he did it like drinking it would be ok because it wouldn't be discriminatory based on service is that and i don't know whether that's right or wrong whether i agree or disagree i'm just trying to find out what tests what standards he would apply well i think the conduct might not be ok if the v a were looking as they want to have this doctor on staff but what i'm trying to get at is here the doctors testified that they would have viewed these matters in the same way had dr lizza gore been in a civilian hospital so the fact that he was in the military in iraq was not really a motivating or substantial factor in their decision so to my hypothetical of of this by the drunk every night when he was in the service your answer would be if it was the fact that he was drunk it doesn't matter in the context of the venue and if i could establish that  it seems to me that you're on dangerous ground all career if you're not going to have some kind of qualification about whether the conduct is proper within the military and that because there are things that you can do in a combat zone that are unacceptable in civilian society i think you sir are protect proving a usera violation the the burden is on the petitioner to establish either a discriminatory motive that is and someone had animists against this person because of his status or service and there was no evidence on the record here or that the status or service was a substantial motivating factor and again there's no evidence here so a different fact to chew ation you know would have to be a fact there was a lot of discussion about lack of candor that was the charge before the m a p b dr live the board tried to establish he had no intent to lie or mislead or anything else and that was not the charge the charge was imposed he says no issues were identified that's not entirely accurate either because they identified the issue of the knife and photo no adverse primly action was taken he was suspended from doing surgeries from november to may never did any more surgeries with the army during that time and one thing that pro is interested in is has a surgeon actually done surgeries and so what have been the outcomes are there any minute malpractise issues then he says my privileges were which were in  abeyance full by that point they were suspended recently reinstated that's not accurate either because the peer review recommended that his privileges be inst is reinstated he was a competent surgeon but be limited to stateside non combat non stress situations so everything about the initial answer to that pro was really not fully forthcoming and then when asked and yun to provide supplemental responses he again deflected attention to the quality period view which was not the issue in the n g p with number seventeen that was a wrong answer because it said within the last five years have you ever retire from the army after questions about your clinical competence were raised clearly after the incidents with the knife and other complaints by his surgical team that they he was willing and intimidating and threatening them with court mar not charge him with intentional falsification that's an appropriate charge it's hard to prove intent but they did prove lack of candor based upon the that pro i mean he had a number of opportunities to submit replies and rebuttals and he did then it went to the v a suspended him he went they they started this administrative investigative board because it was a complex matter he had to and one of the territory i mean you know candor is it not to establish that there's some nexus with the efficiency of service in other words if it was some harmless question about how many times you've been married and so on was embarrassed to list that so they listen or i mean there's the government has grieve that decision to be a doctor he doesn't have direct appeal right to the board but because it involved a matter of misconduct he was allowed to grave that decision they had another full blown hearing abundant opportunities to try to make his case and the administrative judge mean basically the way dr lizza gore has framed the issue here is a substantial evidence case will be administratively judge that after reviewing the entire record there is nothing in the record evidence to establish any usera violation and in fact while a mystery a judge then under one of the theories that he's abandoned you know if you fire if you fire a veteran within a year you have to do it for cause and he was employed for more than a year but basically the administrative judge said for all the reasons i set out in that length a decision weather is no evidence of any usera violation the v a would have established cause to remove him given the lack of candour and the notice of proposed removal and the lack of candor while it was a short document referred to the a i b record which was  which chris had all the records up to that point and then it went to the a miss p d and the m a c b said there's nothing in the record evidence so he's arguing that a substantial evidence case but here is there was nothing and the question about the the appendices that was submitted it seems to me that the government went off the rails a little bit here with what happened i apologize for that your honor actually this is the first time in all my years that i filed a confidential appendix and i  the case as somewhat different given the statute eleven and two that provides for these enormous financial penalties for disclosing any of the army's peer review records so we filed a motion at the time w information perhaps not this sensitive but confidential information and this is not difficult so i was just simply suggests that maybe made you take another look through the procedures and the standard that dr lazareff the question before the merits of some protection board was whether his service for it was whether or not it was discrimination or forty three eleven there is a very specific test for just to determine motivating