thank you your honor at least the court judgment in this matter should be reversed because in rejecting the correction board's recommendation the secretary addressed the factors that mr strand believes believed were relevant and after weighing conflicting consideration she made a discretionary decision that a service member who had been discharged for having convicted for shooting a gun on his wife and then the person is not entitled to six months of service credit and honorable retirement from the navy secretary followed all  he provided during the remaining mention the need or values the service record this can the convictions other cases in the secretary consider all of those factors mr strand has not identified anything i i it seems to me this shooter believes that there were two separate incidents but i don't i'm not sure because i don't see where else there's a description of what the night at that event was and really all we have to go on here your honor is is the nd paragraph your the following are recommendations for corrective action role in courses offered by the navy family services center as a building effect of anger management skills or stress management  punishment in one thousand nine hundred if simply a warning or merely a warning there was no punishment so to speak it was just the just apparently there was some incident  but i think the point the secretary referred to these two entries simply to illustrate that mr strand was on notice that he needed to abide by the navy think as i read these these records i believe they described two different events one was an alcohol related incident and one stemmed from song something involving inability to control his anger or stress and not you know the fact that he needed to follow the navy or needed to meet the navy standards of conduct and those always included honor courage and commitment even before they were designated as a core values but certainly after they were designated as a core values is a to you think it would about or to the secretary up there were too early incidents or want to really and so you basically just summed up exactly what i was trying to say and i don't think that it matters what matters is that he was i mean the ones that want is not getting it six months credit is because he shot his wife and served what like three months three years in jail for correction i mean that's one of the reasons the main reason certainly and so you're exactly country well i was i was wrong the st time i will i will say that mr strain is never challenge that these were two separate incidents i maybe i shouldn't mention that beginning but if you look through the secretary's remain in order to justify the removal they said you did this this and if you'd only done one of these things we may not have moved to is that it's you know the secretary's letter or email at least is pretty clear that the serious charge here that correct relief is d committing a felony and serving jail time and that she relied on these other incidents to give notice that you shouldn't do that i mean honestly i don't know why anybody needs  notice particularly if you're serving in the military that you shouldn't shoot at somebody and commit a felony but at least she pointed that out that there was at least one instance in the record where he was given notice about not committing this that's correct your honor i said i completely agree with what he just said and it is the convictions i mean i think she makes clear there at the end of the last paragraph and ultimately it came down to the clearly what mr green just said to you when at the start of this argument is really the important the navy is seeking to create a car out of unreviewable and absolute discretion that it does not have under the current statu life i don't think the government is saying it's unreviewable altogether it's just that the secretary has statutory authority and regulatory authority to override the board if he or she gives good reasons and we have to review those reasons with  standard that's correct your honor and in fact the last time we were here you and i had a colloquy on exactly that point but to answer your honor's concerns it's important to look at what the statute actually says and in the navy in their reply brief on page eight backed off of a hard and fast rule that says that the agency can never agree more and in fact this court has more recently reaffirmed that instant cases like strickland it's said that that's not the rule it's not a bright line you can never but weiss says is that the application is controversial and you have to look at the facts and that's what this court has always done what the navy ignores and making their arguments is that proper the case that established that rule in the late fifty's very close to the establishment of these boards was a case about disputed evidence and the way that the board weighted it versus the way that the agency waited and the court found that it was improper for the agency to weight the evidence differently and if you look at the proper case there's a dissent that talks about this and they mention that there was also a dissent b c at why wasn't the b c in our it was a different board but there was a dissent on the board and the agency had just related the opinion so it's not the case that just because there's a dispute there's a difference of opinion about how this should be weighed that the honor that provision expressly carves out some cases where the secretary concerned is not required to act through a board those cases or cases where enlisted members are eligible for promotions or reimbursements mr sharon's case doesn't fall where everything else falls under one thousand five hundred and fifty to a one where such correction shall be made by the secretary acting through boards of civilians and that's consistent with the language in cases like hert all together it's a case where the secretary will generally after the board but i think you can see to it that the secretary can at least in some circumstances over with the board is there anything in the statute that specifies which of those circumstances are no your honor and it's a bright line that this court has wisely refused to draw right and i think she answered your question this goes back to the last colloquy what and what it is the standard for determining mid leave this is from dick then the cases the cases have indicated that one of the reasons you can do that is if the circuitry points to additional evidence that the board didn't consider and i think we had an exchange on this the last time we were up here this this  incident the incident so your i get what you're trying to do but that's not in our normal arbitrary and capricious review is it when the secretary if they're entitled to take another look and there is something statutorily that restricts them from new evidence or new arguments or the like then they can look at the same evidence and say you just blew it i have i think you got it wrong this this guy doesn't deserve how it is records corrected and here's the reason as long as they're not arbitrary why isn't that within the secretary's report as long as they're not arbitrary but also that's going to put here is that you know you're trying to suggest that there's something kind of legally wrong about it here why are you not just directing guy you think the secretary's decision here i arbitrary well the secretary's decision here is d i think we've talked about this guy shot of his wife committed a felony was convicted of a felony and served jail time or which prevented him from serving others twenty years that's what she relied on she fact that he'd been notified of each and do things like this a long time ago what's arbitrary about well the navy's regulations for the board say that consideration of that incident and the fact that the navy reached the right decision in that with respect to that incident discharging mr strand administratively should not it cannot be the sole basis upon which he's denied relief that we've cited that in our papers it's thirty two dollars c f r seven  concerned it's not credible for the secretary where the statute says and as such right fall in this line of argument are you saying that because he was administrative leave discharge the millet from the navy because of this felony conviction and jail time that they can't further use that as a basis to for not giving him relief under the correction or decision and saying it can't be the sole basis your honor and the reason for that goes to the very heart of why congress established these boards in the st place and you see that in language in proper proper talks a little bit about the legislative history and we've also cited it in our papers i believe pages eighteen through twenty talk a little bit about the creation of these boards the boards were created in the wake of world war two when congress realized that as part of the war effort mobilization lots of people got sucked into the military justice system and that system has to be harsh in order for the military to function but when people get exit that system with black marks on their record that prevent them from reintegrating into civilian life the way that they've been treated doesn't always align with civilian notions about due process fairness equity and so the congress carefully created the boards and directed that these decisions be made by some billions in fact proper court specifically noted that it said neither the act itself nor the legislative history warrant such an interpretation this is in response to an argument similar here that these are just advisory opinions that can be rejected proper court said since the errors were injustices which might require correction were originally made by the military congress made it manifest that the correction of those errors and injustices was to be in the hands of civilians and so the reason your honor that you can't just look at the one act that that he was punished for that he got right is this is a holistic review that the board and gauges in based on not just a split nd mistake one time but a thirty year period twenty years of which is service to this nation eleven an almost eleven and a half years of it deployment supporting three war efforts where everything in the record shows that his fate reps are stellar everybody says he was one of the best sailors you know that served in the navy up until this incident and then now here we are ten years later where he earned  n early release from prison he's putting his life back together he's reconciled with the people that he's hurt the board is answering the question has he suffered enough for his soul indiscretion that's what they say in their decision and the reason that the rule exists in thirty two c f r and thirty three is because if you ignore all of that other stuff you're just defaulting back to the harsh military system that congress sought to get away from this case and so that's the reason your hon or you know from in a in a more holistic view of this case that mr sherman should be granted relief and i do want to caution i think the navy has invited this court to feel that it is that it is going to issue a ruling if it was in favor of mr strand that's going to have some broad and detrimental impact to the navy's personnel management or its ability to apply its core values or define what they are that's not what this court is being asked to do at all  case can be decided on his unique merits and indeed that's what the real maybes regulations were wire and that's all that should be done you're not asked to define courage for the navy you're just asked to say whatever courage means you can apply it warning a good conduct medal for the same period realist him for twenty years and at the end say sorry you had an alcohol incident when you were nineteen now you're going to be denied a retirement because you violated the core values you know it doesn't matter his conduct was inconsistent with core values in practice in similar cases throughout the arguments the last time this case came up through the courts the navy expounded on that a bit and a lot of what they said is similar to what they now say that they give a more fulsome tre the initial r counseling that you see in the record you know it references it right there in the st paragraph it's you know it's advanced by twenty seven agree ninety nine to the record suggests that this is just a follow up warning and also the reminder you got to get counseling for alcohol treatment that's exactly right your honor it's a continuing course to make sure that great sailor stays on the right path and doesn't mess up again that's all it is and your honor wait you think that that nd ninety three letter is just some kind of recommendation to keep getting counseling and stuff like that well i think your honor really at that i mean when when military people get these kinds of counseling letters and their records it's not just because somebody saying oh keep up you know with their network this is actually a detrimental notice in their records i agree your honor but and this is a little more it's attempting to characterize that as a follow on to just keep it getting counseling from the ninety two of that conduct and that doesn't seem like something that would happen in the military i agree the ninety three notice itself is very very confusing but it doesn't necessarily seem to me that it's clearly tied to the ninety two again it seems like you had a problem in ninety two you got some kind of reprimand or punishment or at or whatever they got and then you did something else in ninety three and you got to get some counseling for this it may be we don't understand it that way your honor we understand it to be one incident where there have been two counseling and the reasons for that we don't know but  right the test here is whether the agency's decision nearly twenty five years later to look back to these two things that ultimately in mr transcript proved to be very minor i mean it was i mean you're the thrust of your argument basically is when this guy was you know a young kid he did it even if it's two incidents that he had two incidents of of of inappropriate conduct he got a purple they were solved and then twenty almost twenty years later you know he committed a much more serious act and served jail time for it but the corrections board got it right when they said that one serious incident should it you know keep him from getting retirement that's service credit your honor i see i'm out of time as you put in your control why is it arbitrary for the secretary or reach a different conclusion would it have been arbitrary for the board to reach that conclusion in the st instance i don't know because the board didn't reach that conclusion hypothetically if it did would that have been arbitrary it could have been your honor if we had a decision like this where we apply core values to conduct that pre dates them where we look at cases like we're not supposed to i mean there decision on or most of the seven pages are about the incident and an argument that the navy got it right to discharge mr strain which is they are hungry rivers discharge to horrible discharge well and that's another problem that makes this arbitrary the navy has already upgraded the characterization of his discharge to honorable under general or general under honorable conditions if the navy sees fit to say that his core values aren't violative enough of the standards to prevent him having a care a discharge is characterized as honorable what why should the secretary and upgrade to a general under honorable is good enough to allow him to have paper d to do that or get a job but he's still not entitled to full release i mean where does a court come  thank you my question is we were talking earlier in your brief around page thirty two talks about procedural issues but that it was procedurally improper for the retired military officer to recommend although i well let me rephrase that it was made the st time that this court this case came up i cannot recall off the top of my head whether that was specifically appealed because i don't believe i'm not i'm not are that are squarely in dispute and the problem here is the reason this got a raise i'm sorry is that the navy argued this for the st time in front of the court as a defense of why the secretary was allowed to reexamine then on the nd appeal them back to us you complain about that the secretary of the navy's involvement in the case it seems to me that that's been waived regard lists of what the government has are here well no your honor so what we argued previously was that the secretary didn't have absolute discretion to reject the board's decision cases like hertzog weiss and proper have that issue about a military officer making that recommendation and we cited all those cases before the focus wasn't on the fact that mr o'neill was a military officer because the navy didn't argue it that way the way that they argued it was they had discretion and we argued no you don't because of the statute it wasn't until we came up this time in the navy's briefs when they said the way it got framed up was why did that there was a question as to why the secretary had revisited the decision and they pointed to the cover note that  o'neill affixed to the decision and said this invited us so it wasn't a case where the board said it had made a decision the board invited us or invited the agency to nd guess it and it was at that point that we looked at it and said well wait a nd mr a meal is a retired military officer and you're squarely in in this law that says that that's improper so so we would say we had it waived it because it was never it was just never an argument that was before the court both times for the trial court and now both times for this ordinance at or well at that time one time for this court and never raised this issue up mr o'neil status as a military officer until i believe it was his reply brief and in a vacuum when it made its decision without disciplinary incident that's a factual finding the board made but that's not accurate as we've discussed here today the two paragraphs of analysis of the correction ward don't mention the core values and don't mention the navy's practice in other cases it seemed that the board was focused just on what mr strand said and his convictions then take this broader view that the secretary took and considered other things that were appropriate and the last thing i want to discuss briefly is what do you have to exemplify those principles so those are our two responses to that mr strand spent a considerable amount of time on the proper case there's two points i'd like to make about that st of all an in any doubt on that and that principle the nd thing is that there was a dissents among the board members in proper two members dissented the court looked at the evidence that those dissenting members relied upon for their conclusion and determined that the evidence they relied on actually didn't support their conclusion that isn't proper was whether the plaintiffs i believe it was multiple sclerosis with some neurological disorder rendered him in able to s dissenters on the board referred to medical examinations that did not include a neurological component and said well look his medical examinations don't show any symptoms of multiple sclerosis really anything like that and this court looked at that happen in the swelling all those medical examinations are complete all of the evidence in the record related to his neurological disorder favors granting the recommendation and so when the secretary in that case relied on the military advisor to deny the recommendation or not he went outside the record he committed a procedural error and this court and hertzog and weiss held reached similar conclusions on for similar facts and both of those cases all the evidence in the record