hospitalization but there's no issue in this case that there's no claim that he should have been retired for disability right now there's not your honor with which strikes me as low on that seems to reflect in the sump deferment on the basis of medical board review the critical question is not whether he was fit are unfit for duty the critical question there is whether or not his fitness was questionable and suggests that the question of whether somebody should have been worth the non active duty or transfer to the reserves might not be a just issue will issue unlike an issue about disability retirement i don't know what you consider that a active duty that disability retirement claims are an exception to that i don't know whether you're familiar with that language and fisher but it does seem to raise this just sociability question well i think on we have a clear violation maybe regulations she's been harmed by that violation because she was denied a medical evaluation board well i'm not sure that guess in this case is september thirtieth so let's assume that you convince us that it should have been referred to a medical evaluation board all paid well and good but in order to keep him in the military the physical  board except a medical board abort on a service member that does not have anything to do with the physical evaluation boards evaluation of his fitness the physical evaluation board excepts a information necessary to evaluate the case appropriately has been received by the p p p so it's the receipt of information that is the trigger in this case it's evaluation of the fitness comes later so and as the lower court recognized i the medical so how do we know that the medical board if conveyed would have made such a determination well let me let me back up the and i think it's critical that we start with the lower court's determination the lower court determined that mr wells could state a claim on the basis if he could show that the navy violated its regulations in convening a medical evaluation board for mr ross the secretary of navy instructions make clear that questionable fitness is the trigger for getting a medical evaluation board that medical evaluation board convenes to investigate and document the service member's condition that his fitness to be questionable i think your honor raises an important question that requires a two part answer one i would like to mention dodson which we discussed at length in our brief dodson makes clear that a plane to need to plead improve a violation of military regulations that it's in makes clear that the service member does not need to prove that absent the military air indicate in the last eighteen months of mr walls a career with the navy his fitness was rapidly declining he had an m r i he was you had a spine xor that indicated school ego says he had to go to the emergency room multiple times and the critical critical fact that cannot be overlooked is that in september of two thousand before his retirement date a navy physician evaluated mr wattles evaluated his conditions in his back in his knee and determined mr wallace you're not fit to retire i would recommend you for medical hold and for further evaluation and hospitalization so that critical facts in the record cause the navy to have a duty to can was he was performing his duties but the the question of how well isn't clear from the record but performing duties that question comes in under an actual fitness inquiry that is the that the p e looks at and want to be clear that questionable fitness in titles you to a medical evaluation board that medical evaluation board convenes to actually investigate and document ok you're suffering from an essentially i'm fitting condition i'm going to talk to your commanders i'm going to see whether or not the how has this condition been affecting you and i'm also going to ask how many this condition to continue to affect your ability to perform in the board by looking at his actual fitness to know what was the true because it seems to me that the corrections or didn't believe is evidence of questionable fitness they were jack the well be the i don't believe that's correct your are sure that that's consistent with supreme court cases saying that where there's an agency decision you consider the validity of that decision based on the record before the agency i don't think there are any decisions of or o there suggesting that you can go outside the record before the elections board in judging that the what actions board acted with substantial evidence and there there are several cases where we have aro i believe around the united states is i can confirm but i do see that i am so please the court this courtroom from the decision of the trial court is substantial evidence supports the board for correction of naval records determination that mr wells was not entitled to active duty pay for the period of october two thousand and three may two thousand and one should or review of the corrections or decision be limited to the evidence before the corrections or a little trial court did consider the affidavit it would appear based upon it there is some question about that based on yesterday's decision from this court of axiom which specifically cited a florida power and light indicating that were an agency makes a decision and then that decision is essentially appealed to the court of federal claims the trial court's review should be limited to the materials presented to the agency in making its determination so although mr wallace has in fact cited to several cases where the  this particular instance so as i said in this particular instance the board here reviewed all of the evidence mr wallace had presented supports claim and found no evidence that he was other than a fit prior to  exit physical from june second two thousand and which he was proclaimed in good health not taking any medications having no significant back pain and deemed qualified for separation by the reviewing medical session he mr walsh went through subsequent medical examinations in august and september of two thousand but in none of those including the document that contains the medical hold language does any i'm sorry do any medical professionals deem him unable to perform his duties in fact the only that allegation only appears in his complaint and in this affidavit well it also appears and one of his medical records there's him i'm identified  respect to that as the truck or noted it's unclear who exactly wrote it although it appears on the medical document it is in and writing distinct from the reviewing physician dr calm and moreover there is no evidence that  memory be yes this court would have to find that there was no substantial evidence supporting the court's determination or an abuse of discretion for not ordering and i may be yes i believe that's correct yes enough merely to point to contrary evidence in the record and if there is to be perfectly clear there's not a lot of country evidence in the record here there is no evidence that a medical hold was even implemented in this case but it could should the medical reports that pleased to report of the record not conclusion or otherwise we're going to cave in the normal circumstances then we should have been cold before the final determination was made by the board i'm sorry are you asking if he could allege that or if he could establish not only because that wish no i don't believe that the government doesn't believe there's anything in the record to establish that his fitness was questionable prior to the date of the separation on september thirtieth no medical indications  questionable how should we be perceiving in these cases you know in were we have selection board issues under the richie in order i don't know if you're familiar with those cases we say that the remedy is to is to form a new selection board to determine how they would have acted when is that the appropriate procedure here if we conclude that that there was evidence that the shouldn't require the convening of  medical evaluation board that that should be the remedy the two to send it back to the corrections board to have them be such a board to make a determination of whether his fitness was questionable or not yes that is the remedy  walls in a few footnotes in there and in his brief indicates that the remedy should be a presumption that he is entitled to recover his back pay in fact the proper remedy the remedy imposed in several cases that mr wal separated from the service than an m e p ended up being convened in those disability cases i believe that they both were actual disability cases which is not presented here yes or who would the and it may be made may be convened by recommendation by a medical professional although the regulations also provide essentially a bypass of the n e p if a cognizant body refers the individual to a nice that essentially what happened in in this case is that the the navy obtain an opinion from the bureau of medicine and surgery which indicated that they did not recommend him for hoarding to the p e so essentially there was already then there's only been one court review of the evidence presented by mr wallace in this case medical evidence yes or the medical evidence presented by mr waterson medical evidence in the record at that point there is medical there is medical evidence in suggestion that his fitness was a question although mr walz attempts to make that argument there actually is nothing in the navy regulations and the trial court noted that in its opinion that equates medical hold with a question ability finding by reviewing physician and as the truck or also noted it's simply unclear that a medical hold was actually implemented in this case that is mr wallace is not established clear and convincing evidence wall's has failed to offer any evidence that he performed any duties after his separation from the navy record establishes conclusively that he was in fact separated from the navy on september thirtieth is not disputed what he was doing in that period hospital actually as it is your honor the the record has only two pieces of evidence regarding mr wells a stay at the national naval medical center it wasn't contradicted and since i don't recall it being contradicted duties and what he was doing while he was there in response to various orders or for all i know well interior well bather that that was not in dispute there is actually no evidence that he was ordered to report to the not but mr wallace had in fact i believe in letters indicated that he was ordered to report and he indicated those that were before the corrections letters that were in fact before the corrections board yes and  simply put there is no evidence that he performed any duties at the national naval medical center other than what he alleges in this complaint and in his affidavit neither of which were before the board and again the board specifically asked mr wallace if he could provide documentation supporting what he claimed claims to have done during that period of time and he failed to do so so the board's decision is therefore supported by substantial evidence  what about the justice should bill the question is the should we be worried about that my understanding of fisher is that military cases military personnel cases like this one percent just just a simple issues where the military service has in fact created a process for evaluation and review that the substantive merits of the decision are not necessarily reviewable but failure to follow procedure is and to the extent mr w extent this court finds that mr wallace is alleging the navy failed to violate or fail to follow its own procedure that would present it just as she will issue but if there is no failure to follow the procedure then i would agree that this like to make sure that the record is clear what is what is required for service member to be entitled for a medical evaluation board to be for me is service member is and isn't title to and i may be upon a showing that his fitness is questionable what that means is if you have a and as admitted by the government in its papers below it's the qualified judgment by treating physician that the service members condition is tension questionable she's potentially on that we had the judgment of dr cullen in this case which indicates in her clinical opinion mr wallace fitness was questionably unfit separate and apart from  retired she was going to refer him on for medical board evaluation but that does not occur in this case and there is nothing in the record to indicate that there may be made a conscious decision to reject her recommendation putting putting her documented in the record so either because a doctor comes recommendation or because of his condition the navy did have a duty to convene and that may be for walls and it did not comply with that duty punish owing a questionable fitness than a secretary navy instructions make clear mandatory yes it's mandatory that were is that this relevant instructions etc navy instructions are one thousand  for service member and that would be consistent with the language in one thousand and five which indicates that it's not within the mission of the navy to retain a member on active duty if his if his plan to provide prolonged definitive medical care if the members unlike the return to full duty if a service member's fitness is potentially questionable he needs to be reviewed by a medical administrative records in recognition that fact that these members haven't had a year in it understand that we can review a decision by the corrections or based on evidence which wasn't submitted to the corrections i mean every other agents there's one supreme court case after another after another and it doesn't make any difference whether it's the appellate review will or the view starts in the trial court you've got to review it based on the agency record or should this be different will be the problem here is the the lower court made the conscious decision to allow in mr wells declaration the problem in the legal area legal error excuse me that we would say was before the court on this issue is the court's violation of the substantial evidence to help them make a new determination why would we think that would be the most fair method method of action in this case if the court had a question it should have remanded it back to the court is not permitted to assess the credibility of this evidence it is if there was an issue after she let it in it should have been remanded back and as the court as your honour's indicated earlier the