right ok you may be again may please the court or if there are two issues here one of the pretrial agreement the second one the promotion promotion issue is a clear cut lee one title of the p g a there was a breach if we look at article five section one half it says accordingly can you tell me where that is in the record in the record your honor it's  not be imposed for an offense tried by state or for court unless authorized by regulations of the secretary concerned and so if we look at the date of the free trade agreement rather phil smith entered into that pretrial agreement on the first i'm sorry the twenty ninth of september and so if we look at the conviction that for the dry reckless stuff from varna sustained that was on twenty one september so at the time that the colonel entered into this pretrial agreement she was aware of the conviction and state court and she did not seek any secretarial forty to further pursue the you're saying that it's not really a breach question property rights analogy you know her bundle of rights her bottle of authority changed because she has the sole authority to enter into this is really an argument in your blue brief i'm sorry that argument in your blueberry i'm sorry this is this argument was any legal authority to enter into this agreement in the first place if focusing just on the breach question yes i'm assuming that we agreed with you that it was a breach to incorporate the prior existing conduct into that the discharge wouldn't that only get him a specific performance remedy and therefore he still discharged based on what was in the agreement but no you are it says i agree to waive administrative discharge work based on any actor mission reflected in the charges and specifications are subject of this agreement so what you see is a sequence of events for a dry reference right so so if if he's entitled to that and if that's the agreement that that he entered into and that she should have stuck to then specific performance of that agreement is that he and you can see that that her purpose in the agreement was was getting him to be discharge so specific performance of that agreement is to to narrow the basis for the discharge and he still discharge this right no you are so she makes a recommendation so there's a process after which it happens and later october a few a few days later after the judicial punishment so she makes a recommendation so if the counsel at the time and i have not spoken accountable if i represented the person and said listen you know you don't need to go to administrative separation board you don't need to hire another counsel to deal with a dry reckless your three combat marine tore you know you know this is not something that would normally get you discharged so that is something that you complete on the papers to the convening authority and say you know hey general you know i'm a good guy i was almost becom contest the facts and under it to to make his pitch in front of a panel which then only makes another record which makes a recommendation to the general so there are two ways to do it basically plead on the paper or go in front of a panel and make the argument and then they make a recommendation based on those arguments so with the additional charges it changed the entire dynamic of what went up to the commanding general and what they relied upon in making the discharge determination and that of that his conduct with an article ninety two and eighty six additional misconduct that was alleged in this and j p that he was not put on prior notice of there are no additional facts or circumstances in the record reflecting the basis of of those charges the he was not given any get let's go back to the remedy so the remedy would be what he get specific performance as to the agreement which then would allow him to go before his panel that's correct yes right with a different set of and he would walk in with his counsel and basically lay out why he should not be discharge and they make a couple different a time and so what hearing did you wave in the agreement as it was with that particular hearing so not to be in front of a panel to not heard but he didn't waive his right to rebut or contest the basis of the discharge recommendation in what format then when he were but are contested if he doesn't interfere in his writing he would don't say so what you would say a specific performance would mean you'd start over the panel or a board would look at it again and he he doesn't get a hearing but he gets to submit written materials if you set the p t a aside he's back  to where he was before this war is that's they're two different questions yes they're setting it aside because there was no legal authority for it in the first instance is one question yesterday but assuming you don't set it aside and but you find a breach was a judge advocate as well as as well as a commander and so she was very you know a stooge and so what she was putting in here was aggravating language so that she could make a better argument when she went up to the general but rebut all but i want to know about these other two charges i mean even if we agree with you that they shouldn't have been referred with is in j p although i don't see any specific language and in the agreement it says that can't they just bring those charges again too so there are two things your honor first of all there's no so there are no severance agreement so she knew about the charges when she entered into this particular can you point to me he any explicit language in any other represent of the government that was on twenty nine september and on one october is when the n d p was conducted so two days later almost within a day or so at the time that she executed this document she said that there were no understanding  agreements and we all know that if someone parting the plea and sentence limitations in this case i don't see how we are and maybe this is bad drafting maybe this is what was intended or maybe it was intentionally not there but it doesn't say anything about any other uncharged instances of misconduct the the non judicial punishment can be conducted on additional charges but at the time when she entered into jail he pursuant to this agreement on just the one charge and then brought a separate in j p on these two other charges which she wouldn't have been able to do that with proper notice yes you are so she can still bring them he goes in there he reports six a center they have the conversation she says you're also accused of eighty six and ninety two is like wait a minute you know that this is not you know going to go whatever she's like well i find you guilty anyway sign the documents and get out of here proceedings he so there was a to go shisha in between the government and and the defense counsel that was the form the basis of this agreement they then submitted it the convening authority then waited till twenty nine september after the the  conviction out in town then he goes and reports and executes the n d p like he was told to do and then the next thing was he was separated because his understanding was there wasn't any issue because he had to accept it it doesn't say very clearly and that is a in our pool i fail to accept non judicial punishment doesn't say if there escher charges there or not you don't understand the legal difference if an attorney had been standing there they would if i was standing there to send your plea you know ma'am this wasn't the deal we did we you knew about these eighty six and ninety two if it was even valid right you know we could test these charges ok because he had permission from the sakho so they weren't if they didn't get added to the court martial which was pending so there were no additional charges that she could have levied if they were valid charges and that was two months when she knew of the charge and while there the court was pending he was arraigned before that the judge there are no there are no additional charges sitting there so she's well aware of all of this that the rule works and you say that it it just turns on when the disciplinary process begins and not when it ultimately is resolved or the the discipline is imposed then return to the br act this seems to me like the ultimate sandbag you negotiate with someone to the point where he knows he could be facing discharge he agrees to plead and then you say o it's agreement and then fail to go to work later that day that's the equivalent of someone entering a settlement agreement or plea bargain for a specific crime and then walking out the door committing a brand new crime throwing up their hands and saying wanna mean that's precisely what happened here he was not sandbagged at all reach prior to and that's the article i had to charge that the trial court said was not part of any previous planes that was some false claims that he made about two weeks before he executed agreement and those were not no those not come to light until well after this process and the reason they do that is because there's only one punishment that comes out of energy so in effect here mr dorner committed three crimes and was only punished one time what mr morris counsel is arguing actually is to his client's detriment because to split those up was confinement there was a reaction rank all of that happened prior to the discharge and so what what mr morris counsel is suggesting is that he would have been better off by tripling all of that and that's precisely what would happen and that's exactly what with a similar fines for all three i think you're right that's doubtful but what we can escape is that there would have been three separate punishments for those crimes whatever whatever they would have been at this point it is just really speculation but i think as we're talking about this breach are you need to of broad immunity for all other misconduct well let me they don't understand that it that he was arguing that it should be for all for all hosting t v but certainly the three agreement activity in argument that he felt he was forced to go through with the non judicial punishment and signed it even though the two new charges were added i mean you agree that with the addition of the two new charges he could he would have had to breach the pretrial agreement the prep court martial in order to get that hearing on the other two points no not at all here when the when when the end of the non judicial punishment was put in front of them he had the option to decline that agreement and not breached that but elected a court martial and the other two charges certainly and none of that would have there's nothing in the pretrial agreement that prohibited him from refusing not just parchment in fact it's the exact opposite it him the option to break it out your honor there's nothing in the record that says that that she forced him to sign all three of these at one time there are three distinct charges he has the opportunity to essentially you've got a jag officer or someone who was a jag officer or judge and and and that soldier who doesn't have counsel and you're saying he had to understand that he was allowed to separate out this when she put presented to him as a counsel often different counsel but he's been represented at counsel literally every scene stage of this case now for him to come back that time he was dealing with as they say he signed an agreement saying that he had consulted with an attorney and for him to come back and in fact in the truck will consult with an attorney before the plea agreement but at that point no one had told him about those other charges when it when he when he signed that he indicated that he had discussed this matter with his attorney every step of the way he made that representation and then in the trial court he submitted an affidavit that the trial court didn't  except saying that well even though i represented that i have been speaking with counsel's home i actually wasn't well but regardless of that the document itself clearly read the document it gives him these rights so whether or not he was telling the truth in the ship consult an attorney or he was telling the truth in the second instance that he didn't consult an attorney regardless that document lays out all his rights he read all of that and you agreed to that non judicial pun produces a recommendation that then goes to the commanders on what to act upon and when mr barr is actually asking is that the court substitute its judgment for the military commanders that the second for the military commander have an option respect to it when we get sort of theoretical at this point because by the time that recommendation was made mr reiner was no longer in the marine corps and so the the recommendation had nowhere to go because mr and mr brown it literally the recommendation document that mr warner relies on to say that he's entitled to the promotion that document itself parsed manners to comply with regulations that have been speaking out so on as a factual matter the recommendation itself incorporates these where probations the second or the next problem certain is if it defies the law the only court that's ever looked at this issue is the western district pennsylvania in two thousand and twelve in the phrase frazier case it looked at precisely this issue is a marine corps medial promotion selection board able to promote someone who is facing any of these a number of our regulatory probations and actions to the individuals incarcerated for attempted murder the court found that not only is the  ok my time is short i understand so first is the promotion issue the discretionary part of this is whether or not he was going to be selected to the promotion and if we look at mark or second then it talks about the the there are certain instructions in the regular schedule selected boards are instructed to follow the e s b in their deliberations so the selection process and it also goes on to talk in depth about the case by case basis and the nature of that to see him see will make the final the terminations which cases are referred and also the selection process it will not be announced the proceedings or recommendations of the u s are you know sort of be will not be disclosed or released until they are approved by the commandant of the marine corps or is designated representative and that is exactly what one five eight one five nine are so the marine corps well aware of everything that was going on with mr mr barnett born at the time so accepted this went back to two thousand and eight because of the prohibition that says you cannot  prohibited from considering material adverse material regarding events occurring after the regularly convened schedule board for their meal promotion simply going back in time and they're determining at in two thousand and eight whether he was eligible under the rules or regulations and everything  that point they went through that process they selected him and then announced it right in accordance with the writ regulations so he has a clear cut legal entitlement this is not about whether they selected him or discretion or anything them or the common core issue this and said that is completely irrelevant it is up to the communion authority that is when that agreement becomes you know authorized so there are two parties here and the party that is meaningful according to the manual for courts mar is the convening authority and she signed that with her knowledge and awareness of everything prior to september the twenty ninth so whatever he submitted because she had the opportunity to say i don't want i'm not taking this deal you go to court martial and be and get your  another conviction or do this or you know i'm going to charge you would additional charges or i'm going to i'm going to withdraw and sent into a general court martial she could have done anything that she wanted to do on september the twenty ninth and was well informed on how to do all of that and she chose to sign that document so that is exactly correct that is the date that's most important because that's the date that she made that decision and when she made that decision she did it in full view of everything that counsel was referring to there are no mysteries here colonel smith was not you know  person that was ambushed was sas on barno when he walked in there because the document says you will except non judicial punishment there wasn't a parsing through that he's a simplistic you know lay person that doesn't understand the nuances he was he was expecting to hear about the want to leaven that was not an issue that's not what happened and when you see the subsequent discharge documents they rely heavily on khalid eighty six and ninety two to make a further determination as to his discharge and that's where the prejudice and