scholarship indoors until it is lawfully terminated pursuant to statute or regulation in this case since the plaintiff with never regularly disenrolled nor his scholarship otherwise terminate this court should reverse the court of federal claims and the right judgment for the plaintiff awarding the scholarship subsistence allowance and the cost of litigation i like to make three points before the court today first once a decision and that process includes consideration of reenroll in an officer candidate school possibly transferring to the navy option and any potential financial penalties which the secretary w let's say they were the man here there would be a terminations that that would be the case if there were such a determination that the result would not have been deferred then why should you be able to collect  the answer lies in the legal doctrine governing when harmless error is a political to military personnel decisions this court should hold that when the military is making in a set subjective assessment a subjective assessment of one individual's capacity for military service the integrity that incessant is necessarily defined by the process through which the assessment is render when the process is fundamentally flawed in a way that undermines the structural fairness of the assessment itself the integrity of the incessant is destroyed because the dish error would be incapable of replicating that thousand sets the secretary had the option to order him midshipmen to active duty enlisted status and indeed required in alyson in the reserves as a condition of receiving the scholarship on the front end or had the option of ordering reimbursement of the scholarship those are the two alternatives available to the secretary in the context of the reimbursement position provisions the scholarship is forfeit in the context of being ordered to activ case reimbursement was eventually waived was not yes your honor by the secretary acting through the board for crush of naval records but at the secretary chooses the second option of ordering active duty enlisted service image shipment is entitled that review by the secretary is not limited by his subordinates recommendations and that's the point that i made in my letter that what we were are trying to get is to say well in any circumstance that would provide for such a secondary post hoc review in this case just as in wagner of the u s there is no body that can make it authoritative decision as to what would have was able to make a determination post hoc to try and remedy in the scholarship program i'd like to make an observation as a matter of law in response to this one of query there is a difference between the playing disability to prove the sufficient nexus between the procedural error and the adverse action taken against him and that's different from the government's ability to prove harmless error or to defeat a problem fisher case as already been established in the latter con excuse me in the former prime tasks it is incumbent upon the plaintiff to show in some sense that the result might have been different that there was some form of prejudice and in this case that prejudice was found by the board for correction of naval records it's a different inquiry applies in the context of harmless error as we are in this case it becomes the united states burden to prove harmless error and the test is fundamentally different under texas the law sanji the harmless error inquiry requires that the government prove what would have been in the private fisher case the plaintiff is only required to show th sufficient nexus or relationship between the procedural error and the adverse personnel action as it was in the found in this case by the court for correction of eval records i like to make another observation regarding the regulations that binding by the board for correction of naval records does not address the inquiry as to either the nexus nor as to harmless error as this court recognized in the len us there the this court said that it determination that it adverse personnel action is permissive does not constitute a judgment regarding that mr retention in the military service so there has been no such determination and under the regulatory scheme scheme as it exists there's no mechanism for making that determination now the special the special selection boards that this court considered importer of us does not apply to mention it applies to officers whether an officer should be promoted so the secretary cannot send this case back to a special selection board to decide whether the if the question is whether or not the question out you were asked and i certainly will admit that that sentence as you have shown me right now is wrong i was unaware of it your honor as we only had a couple days to write this document while also are you going to one that signed i'm well your honor we believe that because the secretary has delegated this the marine corps of the decision on behalf of the marine corps officers regarding mr kennedy and yes not allowed back is a decision of the secretary program if we where  that they had that authority and that it was a due process violation for him not to be able to appear before the p r p i thought those things work that yes your honor but our position including in our prefers been consistent that what that the secretary p r p and the secretary could have reversed the decision of the commanding officer ok what are we supposed to do now before i mention i want to just mention that a section three fifteen that we were discussing earlier and i will certainly training it is our position that to say that the secretary delegates cannot make a decision regarding a training class would eliminate harmful our overall for military pay cases because no matter what happens and who along the chain of command makes a decision the secretary always has the authority to overrule that in that case there could never be any harmless error so that is our position as to why the marine corps to stand well i guess you are just trying to make the distinction between i guess that the distinction i'm trying to make is the secretary certainly has far out final authority over all parts of the marines and navy but he's delegated a lower level suv well we got to your honor's my final point because i believe i'm over here is that the harmless error decisions were made on pages thirty eight and forty of the record and so further rematch would be unnecessary here because we midshipman to retain his status in the in our d c scholarship program from the question of whether he should be permitted to enroll in officer candidate school there's no basis in law for that divorce th dick conceded before this court the secretary's discretion and what to do with the plaintiff status is broad and unbridled that includes reenroll and officer candidate school