the court below decided that he was entitled to a continuation board but the tech continuation board had to be a title thirty two board conducted by his state there's from you spent a long time with these facts and i'm sure each of my colleagues stick to your big problem is you have to get around deference which we owe to particularly to military judgments as to where things belong in in their own regs and their own procedures how would you advise us to sleep with that deference stop your honor i'm glad you asked that question because we would accept the greatest deference that can possibly be afforded to an not the department of the army the army regulation was designed to protect and to provide due process to our mean a g r tatarstan a g r officers and secretary  brown made it manifestly clear that he was unhappy with the national guard beatles way of doing things in the past which was at heart behind the green door kind of a process in all of the advisories before this court to say oh all title ten a g r officers so the eligible went up but that you continue on the cheap judge's questions because i think it's very important when this went to the army b c m was the advisories were not sent to the secretary of the army's office for manpower and reserve affairs it was not sent to the the head of personnel for the sect or for the army it was not sent to anyone except the national guard bureau a separate entity bound to be sure by the army's regulation but nevertheless the one that we would submit was culpable in this particular case and so i would say that the deference should not be afforded to the  d with the national guard and therefore the national guard board was the governing body to make this decision you're on of the same order said this transfers the officer from title thirty two to title ten steps still same order say that the one time occasional too much bruited and the basis in large measure for the corporals decision is a creature of no directive no regulation or anything else if all title ten officers a g r officers excludes people with one time occasional tours one would expect to see that somewhere someplace in any of the directors or regulations or in the orders or in the announcements one would not find it anywhere the only place that one time occasion tour is to find all of the panoply of d o d in the air force an army directives and so forth isn't it do you directive twelve o five point one eight that says there's only two kind of tours that you can have once you've and one is a probationary tour which nobody is saying that if the current gen was on and the other is a one time  as well the oregon national guard who cut these orders said this is the only kind of tour he could have been on the scene we call it there's nothing distinguishing that and that gets down to the few you know whether there or because that's the only kind of tour that can bring them on to active duty as well not in the b c m on a record you see the chief warrant officer o'donnell actually said and i have enclosed four different sets of orders for other officers in the same city which is colonel cameron's and they all say one time occasional two are now in the b c i'm on record two things of significance the first is the first time that this came back from the b c more of the three man from court t v the national guard bureau said the organizations are concurs with our assessment that turned out not to be true at all on the contrary the oregon national guard says this is the kind of orders we do all the though the last part of what i was trying to say was the record in this case is really very clear every citation to authority for the so called title for the one to have occasional tour or the career program pursues the career program finds no support in the law or director and that's why the question should we give deference to the agency's interpretation of its own regulations indeed we should but we don't have the army's interpretation in this case and that interpretation would swallow the whole rule because if the national guard bureau can decide on a song what eligible means then without having any referent without giving people notice you mark the way are not included in this there were two in both of the different announcements of two thousand and four the two thousand five announcements there was a list of ineligible provide the army in its own regulations as regards to national defense but then even further provides to the army in its regulation interpretation of its regulations that has to do with personnel matters that is original interpretation was communicated to colonel cameron before this litigation took place but also your honor the but any official record is almost all after this litigation is underway isn't proceeding is entitled to the same deference that would be presented to the that's kind of based on the supreme court's our disaffect rights your honor christopher dial back on that last year how does that affect everything  again your honor the is that the court's determination is clear and i the hour is clear that while that christopher addresses our and says we're back i think that's exactly the word the supreme court used that it and that there can be a post talk litigation driven rationalization which deserves less deference how do we address that christopher reorientation of the our standard well this this would be different than the our part in situation which an agency proffers before the court its interpretation of the regulation here you have it and adjudicate to proceed in the happens in many different agency proceedings you have for example department of commerce you have these or determinations happens in to proceedings are provided precisely for situations that did not arise when the regulation was passed and indeed title ten are these kinds of onetime occasional tours are very rare so the army of the regulation excuse me since were in is not very ambiguous it says and helps your ball officer automatically just this review i mean that's not very ten is the agency that is pursuant to statutes given the responsibility to as minister and oversee the a g r program the active guard reserve program eligible is not defined in the regulation as far as what is considered and in g b provided it pfizer opinion as to what those regulations it deem those regulations to mean in supervising administering the program and then the a b c m r which is the army board that interpret these regulations look to what the in its advisory and said this is reasonable this is really differ or we look to what the m g b stated and find that to be a reasonable interpretation it would why wouldn't the secretary regional letter that that's a it's often that people like me in the department of justice serve a detail i go to the office of personnel management for example because i'm working a detailed b m i don't be i don't enter the o p m career very distinction that i was making with your friend over here and it actually is different in these circumstances so i reckon it's not like it until it is huge you were pulled out of the department of justice and became an opium employees for all purposes that you'd be an opium boy not apartment justice i'm sorry well for all intents and purposes except for my career path my career path would still be department of justice even though i be working with o p m i would not be subject p m career program according to them not the way they aren't well yes it is your honor if you look at army regulation one thirty five dash eighteen subsection that means your honor that simply because a soldier that is on tight a title thirty two career program soldier serves on a one time occasional tour does not have a break in service from the title thirty two  indeed if your honor looks at for example subsection r c c section two dash six of that same regulation it is only careers of soldiers that are subject to the twenty year retire or mandatory release date so you're saying he was still under title thirty two he was still under the title thirty two  him to colorado is the army which means he was in title ten well you're one of the greatest nation actually states on one thirty five daschle eighteen that a soldier at the state of oregon or the state made order if soldier to title ten a g r or another program for a one time occasional tour and yes the army can provide these orders but it was from the state of oregon can we go back to your your response to my comment that he's automatically entitled was that only if he's eligible but that's defined very clearly in the october two thousand and four memo for instance and that definition of eligible it's colonel cameron duty well i would disagree your honor i think the the regular season failed to fit the well there's a regulations are scuse me the letter and thirty one a g r officers who have nineteen or more years of active service and then one thousand norm or years of active service is considered the zone of consideration would come down the paragraph seven in the two thousand and four october memo and we get category which is eligible officers correct and that fits colonel cameron as well says time but doesn't fit colonel cameron maybe as well as i need to know well certainly he falls under this of being eligible however what we're talking about here is who is eligible under the title ten continuation board which is interpreted by the army and you're talking about the title thirty two continuation board which is held by the state of oregon now to the extent eligibles interpreted by the state of oregon to mean soldiers like colonel cameron we submit that that is an error and in fact the state of oregon has no authority but i'm kind of back to the point where i don't see any ambiguity in the order which requires interpretation if it says eligible officers automatically go here he is eligible he's an officer he automatically goes there so certainly he is eligible he's eligible for a board he was eligible for a board the question responsible sir for supervising into ministering the a g r program the extent soldiers were eligible for the title thirty two ford that was to be held still being interpreted as an army regulation and supervised and administered by the  b soldiers that are eligible for the title sees me title thirty two boards was interpreted to be those soldiers in the title thirty two career program and indeed again as i stated subsection one thirty five what ended up happening is his home career position was not extended so the colonel herron had nothing to return to in the state of oregon it's the rule today in this is that same area  rule today is not relevant your honor however but it's exactly the opposite this yes your honor but at the time this was the first board that was passed there was a first floor that was held and  subject to the title ten and the title thirty two was the interpretation by the agency that was supervising and overseeing it was brand new and the but this seems to be somewhat relevant because you want us to defer to the army's thousand and four and two thousand and five boards as to who was and who wasn't eligible for those title ten boards the time however simply because an agency has switched its mind agencies changed their policies all the time and didn't mean that the earlier interpretation would be entitled to less deference simply because the agency changed its policies later on and this also happens fairly regularly in agencies you'd proceedings council means the point here and she said one time occasional tours are rare there's no support of the record for that being the case the only thing in the record which talks about one time occasional tours about that language in the orders comes from the very agency that created those orders in the same at the same time indicated it was a commonplace and standard practice for any officer is senior as colonel cameron was to be ordered into  goes back to the point that we make with respect to mr gonzales testifying because the only support for the court's findings on the rare team or the significance of the orders is actually found in what he told the court that day about title ten orders there's no support in the record for that your honor to to sort of bring this all together if we were to take a hypothetical where this court affirmed lower court's judgment and carl cameron were to take that judgment and go back into federal court under title thirty two and go back to oregon and say you see i was entitled to avoid any all fail to give it to me didn't even give me any notice defending that would be absurdly easy because the o say how can we state entity extend you on federal active service i think to john malley ask you a question similar to this but i i want to explore it a little more is there any officer that you know of  the same situation as colonel cameron that really didn't get access i've ordered the answer to your question sir as i don't know any i just don't know the current chairman of course had his contemporaries there who found he got announcement from a friend of his who was assigned to the same time and that's when he expressed a sense of well women i'm in the same situation but beyond that i don't know i only know that was that friend on one time active duty or whatever that characterization is there was that friend had constitution and indeed there's a there's a court of criminal appeals or on forces court of appeals for the armed forces opinion that says just that states can't continue anybody on active duty so if we were to take this judgment and say ok it's conceded you look you are entitled to a board but it's a total thirty two board and you were to take that i would submit very respectfully that he would be flown out of court before the first pleading hit the desk thank you are very much for your time