in this case we have a sailor of the quarter and a man who joined to service country for a with a twelfth grade education and just two points above the as reps or with a meritorious you did a good job he served his country faithfully in the past in the final two months of his service things precipitated and it is clear from the record that the command abused their appellant has a concern with at least one part of that analysis the access to counsel and the desperation of the statement marketing within the regulations that's not court however in making its determination that there was harmless error focused that harmless error on the fact that at some subsequent discharge review board that some relief had been granted but we did and then somehow his discharge had been converted to an audible and therefore he was not entitled to the protections that he could have vaile during the process we believe that to be an error we believe that the point of review is at the time of the alleged inappropriate action that's what v c r should have reviewed the point of time that that was was during the discharge process and those that's where the errors in the case for him signs a contract and then fulfills a contract term so that in this case he was a couple months away from fulfilling that particular contract term and the command made a decision to discharge him prematurely now there are a number of reasons why someone would be discharged prematurely one of them could be medical one of them could be the good of the service something's going on in this case it was alleged misconduct and it was that that alleged misconduct in that very short period of time that they allege was the basis upon which he had to leave the service early and as a result in consequence of that alleged misconduct then they could give him a certain discharge which was a lower level discharge not an honorable formal discharge they could give him a realism and code they could do given the characterization of service and that all falls on to this what's called the deed you fourteen the final discharge document and then that discharge document this duty to fourteen is what carries with him for the rest of his life because that's the official record of service so whenever somebody looks at this duty to fourteen and they see the narrative or the characterizations there it affects their employment you know and a number of different other you know issues security clearance etc so that's all connected because it's one of the that the actions that they take in that process based or premised upon the the trigger for the fourteen these are different blocks on his d d two fourteen that are entries that are filled them the realistic code entry already for indicates to the military and anybody who will look up the code we believe not to exist we believe that the allegations of for example he was not where he was supposed to be is without basis in fact and that mr payoffs are huffman substantiated that very well in the record even though he was acting p se there was a third submission that was attempted to be made with counsel eventually because he wasn't able to succeed with a b c and r and you know there was new evidence that should have been considered audiotapes showing that the command was presented this new material evidence they disregarded it but we believe that in the record it is very clear that the basis upon which they said he was being discharge was without merit he senior officer told him to be at a point of place he had been at that point placed the record is clear that he was there a subordinate person told him to be somewhere else that's a conflict the way it works in the military is the senior officer when they make that order that's the order that you need to follow he communicated this effectively we have the phone records we have history we have the discussions and statements by parties there was no dispute a fact that he was doing what he was supposed to be doing in the command but the command disregarded all of so the nature of the decisions was not based off of the facts it was because they did not want chaos or huffman in the military anymore and it is not a valid basis to say that now that his characterization is honorable because it was upgraded by the discharge of you board that you know there no longer relief to be granted or consideration of these violations because if that's the case then he should have been elected allowed if there's no misconduct here he should've been allowed to run to his his end of active service as he would have normally and he would have received that bar so either it's a misconduct and you know they have a proper basis or there is no misconduct and he should have received the one so he should've either ran  relist whether he was a realist the bill is not the question is whether he was eligible to realist so here the determination that he was ineligible to relist was not based off of the facts that were in existence for and he was also deprived of the substance of due process rights you know on his way out the door particularly as it relates to council because had council learned counsel had this before they could have addressed these issues and most likely resolve this the few months that preceded his discharge he was insubordinate he was disrespectful to superior officers he disobey direct orders multiple times he was absent without leave he committed a number of military offenses these are in the military very serious matters and it began first with his violation of the first military no contact order that the coast guard issued after mr hartman was arrested for battery in connecting his wife some relief from the board of corrections the board concluded the discharge and the ari for reenlistment code that council had referenced during his organ was a direct a natural consequence of mr hoffman's misconduct and the board further found that mr hoffman had not proven by a preponderance of the evidence which was his burden in that review that the discharge was unjustified erroneous you know ask you what about these objections yes the but i want to clarify one point on that the the board did not find its source is unaware that the procedural protections in the manual did not apply that was the finding of the district court that was not a finding of the board that the board found that looking at the text of the regulation for example that the quote opportunity between the coast guard discharge officials one of the the officials was involved in this hart said you should give him five days but what was communicated to mr huffman was you get three days definition of  the military position is that the the regulation itself doesn't specify a specific number of days and here what the board's decision hinged on was the fact that the board acknowledged that he didn't have the full three days but the board nonetheless concluded that it was that any error in the discharge process which the board of knowledge it appears that there were errors didn't matter didn't affect the outcome because mr because although the discharge officials didn't consider the rebuttal statement the board certainly did and so before we get to that because when we get to that i do have a question about harmless error visa v it counsel opportunity requirement as opposed to the requirement about a statement but putting that to one side just on the interpretation of whether the the counsel opportunity requirement was on or breached here indicate that it's not just formalistic lee an opportunity in the sense that everybody has an opportunity consult i have enough to do because of counsel right now because i could turn around and use my cell phone and call a lawyer but the question is is that a meaningful bona fide opportunity and when you're told you have three days to do something and it turns out you're not given those days how does that square with what seems to me to be a requirement to give an opportunity end of day one he gets a call that says you know actually it's one day now it's eleven fifty five so you've got five minutes by your understanding that's an opportunity to call somebody within five minutes is that  it counts as an opportunity because it's actually physically possible to make a that's right and if you take take that to the logical conclusion of if it's only five minutes then yes that that is theoretically  possible but here as as i said it was it was two full days and the board's decision notes that he was he did you know everything else going on during this time and he did the promise he didn't know ex ante that he was going to have two full day proceedings until such time as counsel is available yeah this is an area where as the government noted in its brief a lot of significant discretion is entitled to the board to interpret its own regulations on the facts of a given case and here that's what the board did and although the court may have done it differently or although mr hope may have a different interpretation of what that opportunity demands that the board's interpretation is not on the face of the regulation incorrect or erroneous it's it's that was the board's interpretation of its own regulation in the context of a discharge proceeding of a service issue in their in their decisions as with the other arguments and allegations of mr having raised so that under the discretionary if you review that we have here where the board has articulated a clear and very detailed explanation of i'm not sure about that because this is i think that there's generally a standard of the a p a that the challenger has to show that an error was present and yes that's one way that we ordinarily review asserted errors and administrative proceedings to determine whether even assuming an air didn't result in prejudice so there is a harmless traditionally harmless error component that attends a peer review i wasn't sure whether you were relying on that because another way to look at it is did the that shows otherwise but as i saw the record the determination made was that with respect to the statement any error was harmless with respect to the opportunity for counsel the resolution was that that was actually harder it wasn't reached and we never get to the question of arms there that would mean that you couldn't argue on judicial review and he asserted there was non prejudicial but i don't quite sure of what your arms their argument was with respect to the council compo so there's a two part answer to your question your honor the first is i want to make that distinction as well is that we're talking about harmless error there are really two separate levels of that there there's the the board's own determination that there paragraph nine and they do they do refer to both under article twelve be eighteen e of the personal manual in effect a member being separated with a general discharge misconduct entitle to consult not attorney and to quote have an opportunity make a written statement and then the regulation does not mandate a particular number of days for this opportunity court opportunity and the so the board is discussing both of these issues in this paragraph and if you look at the way the regulation set up those two paragraphs opportunity can to consult with counsel and then opportunity and say what they really do go hand in hand and so as i read this they are addressing their addressing both issues even though the final sentence is therefore it appears the african may have been misled about how long his quote opportunity to submit his discharge rebuttal would be i really do think those two issues go hand in there there's another the language is mostly somewhere between the two decisions i know in the first decision which goes back  substantially affect the outcome it's harmless and that really is what happened here because in mr harkins challenge to his just charge his theory of the case at that point time was based on his claim that he was the victim of unlawful discrimination and reprisal are counted as a religion that was really what his his challenge was about that those allegations have completely disappeared from mr ruffin's claims and in this appeal in the district court proceedings but that was what his theory was and at that point in time as i said before he had an opportunity to retain counsel during the board's review he did not so any of these additional arguments that  lawyers are coming up with now in the reply brief on appeal are much too late he had an opportunity to argue for example that the indefinite no contact order was unlawful and that was never an argument that they made to the board just one  question decider standard and then all i'm done with this line of increase of as i understood what you were saying in terms of the species of mammals that are given you're making what you're saying is that you think what we ought to do is find that the agency was correct in determining page forty are you pointing to something else for that or determination of the wrong and even asked me to point to something because as i understand it we need to we need to look at where the board found that something that happened in the discharge proceedings was harmless yet i think these two paragraphs paragraphs twelve and thirteen they do go together and the previous paragraph is similar to the one that we're looking at earlier in the the second opinion where they discussed what constitutes an opportunity under the c  thirty nine and forty of those those paragraphs the focus is on the rebuttal statement the entirety of what is happening here is the board's focus on whether he petty officer hussman statement would have made a difference that is the genesis and interpretation of what the board is focused on not whether he had an opportunity to speak with counsel and just from a layman's personal perspective a counsel cannot be effective in giving any advice on less they consider the facts the law relevant to the matter the procedures involved and then make some recommended course of action if a counsel says that he's not available to do that he's acknowledging that he can engage in meaningful advice and that's what we have in this case then there is nowhere in any of these opinions that the address this idea that the command should have given him one time it is mandatory it wasn't discretionary the board's determination did not consider that review that or rely upon that they were solely focused on whether pay huffman statement with out counsel without the systems of counsel would have made a difference their conclusion was no and therefore they found that to be harmless error we believe that to be area so that is not consistent with the reading of you know the indication by a government tells about you know that there are serious issues here there are we have false statements by the command we have proof that the command lied in the investigation this is what's in the record so are the false official statements made by people that are trying to kick out produce huffman sailor of the quarter this guy who served honorably for eight years they're not those not to be considered if a close scrutiny of this and a fair reading of forty paragraph fourteen that discusses the fact that that the applicant has not proven by a preponderance of the up so on one level is their discretion to administer a discharge answer yes is their discretion to put a narrative reason answer is yes all of these issues relating to the separation of the member  discretionary the problem is when that discretionary is not based on the facts and in this case the facts that and the evidence was disregarded so you cannot get to a fair discretionary analysis if you haven't gotten there through proper consideration of the facts and so while it is true that it is a discretionary function the the facts in this particular case you cannot get to a conclusion that that was an available option and even the  guard disagree with that because she upgraded his service to honorable and did other corrections so we believe that the record had been properly considered and the impact of it would have changed the outcome of this or he would have been allowed to e a s to his natural conclusion which would have a few months away and he would have been eligible for realism and whether they would have relist on him or he could a realist in the service is another matter it's