All right, the next case is that of a commander Hayden versus the United States of P.O. 5.0. 3.9 Mr. Welles. Well, you're on. Still is morning, but only bear welcome to the court. We'll go about two minutes, I believe. Do they please the court to like to reserve five minutes? Fine. Okay, kind of a maybe again. I think the couple of saline issues here is one. I think what is a retiring board? Is a retiring board the board for corrections of military records or in this case, naval records or is a retiring board by definition physical evaluation board? And we would submit it to the latter. I think the other saline issue here deals with Martinez and the applicability of Martinez to a separation rather than a mere discharge or complete discharge. If I can address those issues in order. In this particular case, Mr. Hayden was denied by a physical evaluation board in 2002. That was the first time his case went up before a physical evaluation board
. We agree that it had been submitted to the correction boards, but correction boards are not retiring boards. There's case load to support that. I think if you look at how the boards are made up, it sheds a lot of line on this. Is that the point we've missed a while? That it's a ton of retiring board, yes, sir. It's both the opening and the reply brief discussed. To me, a threat to argument was basically we should have a war, Martinez. Well, that was part of our argument. I'm taking reverse order. The wave was briefed. I'm just taking the order of which I presented it. So, Martinez, that is the second issue in the case, yes, sir. I don't see it, but I read the big rally, but I didn't see it. The starting, don't you cite chambers on that, say it. Because I understood it. Martinez doesn't apply to disability retirement claims. That's right, your honor. But doesn't chambers say that the decision by the first statutorily authorized board, that here's, or refuses to hear the claim invokes the statutor limitation. I think that the page perhaps 1224 of the case
. And if that's true, doesn't the statutor limitations apply? It only applies starting in 2002, sir, because that is the first statutorily retirement board. It's our position that our correction board is not a retirement. Well, and we didn't, didn't he ask in January of 2001, the physical evaluation board to evaluate him? Yes. And then in July of 2001, didn't they find him not fit for duty? And didn't they also find disability not the proximate results for forming military duties? Doesn't that start the limitations during July of 2001? He waits in November of 2007 to file suit more than six years of past. Even if he followed chambers like you asked, don't we reach the same result? Not quite, your honor, because actually he initially agreed with the results of that board and asked for a formal PEB, which in the Navy and I realize you got some Army background, your honor. They work pretty similar. You can ask for a formal PEB to evaluate it. Part of our issues dealt with the effectiveness of the council that he got during that process. And then he was given some. My understanding of the record, and I think I'm wrong, is that he asked the PEB to evaluate him. That was in January made that request. That's right. And they evaluated him and then in July, told him or made a finding, not fit for duty, disability, not proximate result. So that's the findings of the PEB. Why doesn't the statute start then? Your honor, he did ask for the formal board, which is part of the same process. Are you saying that that is not the formal board? No, sir. The formal board is actually a formal hearing type board. What he had was basically a paper board where they sent the package up and the three officers
. And that is not a notorially authorized board. Yes, sir, but it's still part of the formal board is part of the same process. It's in the same way. Well, it could be an appeal, but that isn't what the changes are. Is the first board. Was that not the first board? No, sir. Is it not such a poorly authorized? It was the first board, but the board process continued. In the same way, if we were to ask for a request for a reconsideration on Bonkler, or whatever if you were to rule against us, that would total any statute of limitations going to when I deval my petition for cert. For cert, for cert, for cert, for our, okay. What's the authority for saying that the statute is told when you go through the more formal board process as opposed to the initial informal paper process? Because it's all part of the same process. It's different steps. Yes, but that's just a lawyer argument. What statute or regulation or case says that the clock stops until the second stage of board review is concluded? Any time, because the decision is not final until such time as the board is final. As far as I know, there's nothing which specifically asks that question. Quite honestly, I didn't research, because I never thought about that. I mean, it's been my experience, both in the military and in the law, that when you're continuing along on the same process, the statute doesn't start until that process is complete. That may often be true, but my recollection is that with regard to statute of limitation problems in this military context, that it's the other way around. That there is no tolling while you pursue other available remedies
. But it's not a different remedy, you're on our part of the same remedy. It's the same remedy as long as you stay with that same board. I stay correct. It's the same remedy you're seeking, but it's in a different form. No, sir, it's the same form. It's still the Navy's physical evaluation board, as set down in the Second Abin structure in 1850.4 series, which sets out several steps in the disability retirement system. First step is, of course, is often a medical board, which is usually one officer. Second step gets to where they make a submission to a board of officers, usually two line officers, a Navy Marine officer, and a medical officer in the Navy. Once it goes there, they make, I guess, what you would call a preliminary finding. It comes back to the individual who can accept or reject that fine. If he accepts the finding and process ends there, if he rejects the finding, then it goes on to a formal hearing before the physical evaluation board. That's what happened here. Is he rejected the finding, asked for a formal hearing. In fact, he then turned around, you know, through other issues that aren't remained to the wall of the stage of limitations, made a decision to eventually accept the fine. The final decision came out on January 2, 2002. I think that's the important thing, Judge Clark, is kind of where we're going. Everything here up until then is a preliminary decision
. It's a final decision that came out, which ends the physical evaluation board process. How do I get around, we get around chambers, which you want us to rely on, that says the decision by the first statutorily authorized board. And the statute, which sets out the statute of limitations, says six years, and no we're in there, in the case of the statute, is there, after all internal appeals in the military are exhausted or so on and so forth. How do we get around that break-fair line? Do we modify chambers now? No, not at all, Judge, because first of all, it's not an internal appeal. It's an issue in the sense of being in the military as opposed to going to the bringing suit. It's the same thing as it's a preliminary decision. The final decision, the feet decision of the physical evaluation board did not come until January 2. If you'll notice in there, they actually made a couple of decisions. So you're even accepting that the decision was not truly final until 02. That's not responsive to Judge Clark's question that the case law chambers specifically seems to focus on when the first board is finished, not when the later board is finished. Yes, sir, I think it does, because it's still all one board. It's not like you have a hierarchy of boards where you go to this one, and then there's an appellate. For example, it's not like if there's a court march. I'm not quite sure. I'm just agreeing with you on the description of the sequential steps in the military system or the structure of it. I'm trying to get you to focus on the case law that Judge Clark's question relies on. Well, how do we get around the languor in chambers which makes it sound like it's the very first decision of the very first authority that triggers the running of the six-year statute of limitation? Because you're on or against not a final one. One of the things, if you look at the complaint, they actually came
. The chamber says and say when you have a final decision, this is when you have a decision of the first board. Well, perhaps you're on, this will be an opportunity to clarify that. Well, the question is whether you're in effect requesting that we modify or perhaps even overrule chambers. I thought you were saying no. Chambers helped me. I like chambers, but there's that language that seems unfriendly to you. So I don't know why you like it. I don't think we were talking in obstinate interpretations. The way I interpret chambers, and obviously Judge Clark and I have a disagreement on this, is it probably doesn't need modification. Judge Clark being smarter than I am, may have found some reason in there where it does. So certainly we're not going to object to any kind of modification which clarifies it to say the final decision of the statute. Is it the heart of your case to say that the second trio of officers that reviewed this case, even though there are three different individuals, is really just the exact same as the first three officers who did what you're calling the preliminary work, the case where it reviewed. First of all, I'm not sure it is. I'm not sure it is three different officers. It may be the same ones, but just I don't know. I'm not sure how they actually assign that within the maybe personnel boards. The important thing is the identity of the three or the six. The important thing is you're saying that those two reviews are really one and the same
. And that there's no result until the second stage has occurred. I'm saying until the final decision is final because in this particular case there were actually three decisions. If you look at the complaint and this is a joint appendix 19, paragraph 63, it talks about June 2001, the plaintiff was found for duty. You win under the statute of limitations if we accept the second of the three. Actually, what we want you to do is accept is to, on the first stage, the limitations for the third of the three, the final one. Let's hear from the government. We'll give you back some rebuttal time when they're finished. Can I move on to the Margueritean's issue, sir? Very quickly. I think the issue is separation and discharge. The reserves, I spent 22 years in the Navy, I commanded reserve centers for six to those years. And it's different. Separation means you leave active duty for a period of time. You can go right back on two weeks later and it happens often. The Marquinas' discharge? Martinez actually addressed separation and discharge. My point is Martinez was wrongly decided. It hung on 37204 and said..
. You were aware that this panel cannot overrule my team. Yes, Your Honor. I said that in my brief that I believe that we were going to have to have an on-bomb on that issue. I understand possibly the best that you all could do would be to recommend an on-bomb. But in this particular case, 37204G applies. 37204G says that if you have a reserveist that was injured or had an illness on active duty, it should have been handled while it was on active duty, which is the crux of our complaint. Then he is actually eligible for a pay. It's an issue that was not present in the Martinez case. Your Honor, I've probably spoken longer than you want me to, so reserve the rest of my time and any other time you've been so gracious to give me. Thank you. Councillor for the government. Chief Judge Michelle, may I please the court. Commander Havens filed his claims five years too late. The trial court applied settled circuit precedent in reaching the conclusion that Commander Havens claims. What are you putting a file right after that first P.E.B. in the longer discussion here? Council was talking about the need to go through the ineffective review
. I'm looking at the one that was in the decision July 2001. What would have happened if he had filed right then? Would you have committed a seduadement? That's not final? You can't bring it. Your Honor, it depends on the service members' decision to contest those findings or not. As I understand it, in the regulations there's a procedure for having a hearing before an informal P.E.B. And if the result of that informal P.E.B. is unfavorable to the service member, the service member can then take the matter to a formal P.E.B. Much like if we were... Let's take a look at this. I mean, and I'm reading the record. Maybe I missed something
. Plan if ask for a physical evaluation board to evaluate. Where I read the record that happened in January of 2001. In July 2001, the board says not fit for duty, disability, not a proximate result of performing military duties. What happens if right then, he goes ahead and files his case as opposed to waiting. I mean, right now you're saying, okay, a seducination bar is you. And I guess I tend to agree on those dates. But if you're telling me that no, he couldn't file right then. And he had to go through this process that took him into the next year. But he filed right then. But he filed this case right then. You're on... Let me try to clarify this because I think we... There are two issues that are being conflated here. Number one is when does the claim accrue, which is a very important issue in this appeal? But I understand that there are questions about the July 2001 informal PEP decision. The service member, Commander Havens, could have accepted the informal PEP findings as final as to him and brought a suit at that time. Or brought a petition before the corrections board at that time to challenge the... Is that the first, that's totally authorized board that Chambers talks about? No, you're wrong. Oh, okay. Who what is? The first, that's totally authorized board to hear Commander Havens petition was the BCNR in this case. The BCNR rejected the disability claim asserted by Commander Havens three separate times prior to November of 2009. What's the significance of three versus one? You're on it. I'd be happy to focus on the first one. The point is just that this claim is time-barred three times over before we even get to the July PEP, where the January 2002 formal PEP decision. You have a decision by the BCNR in June of 2000 that ruled upon Commander Havens petition, which claimed that he sought disability retirement. He was really, he claimed he was improperly released without a medical board and the BCNR ruled in June of 2000 that Commander Havens fitness was not in question. And therefore he had no entitlement to claim a medical board much less disability pay. Then... Well, let me stop you
. The service member, Commander Havens, could have accepted the informal PEP findings as final as to him and brought a suit at that time. Or brought a petition before the corrections board at that time to challenge the... Is that the first, that's totally authorized board that Chambers talks about? No, you're wrong. Oh, okay. Who what is? The first, that's totally authorized board to hear Commander Havens petition was the BCNR in this case. The BCNR rejected the disability claim asserted by Commander Havens three separate times prior to November of 2009. What's the significance of three versus one? You're on it. I'd be happy to focus on the first one. The point is just that this claim is time-barred three times over before we even get to the July PEP, where the January 2002 formal PEP decision. You have a decision by the BCNR in June of 2000 that ruled upon Commander Havens petition, which claimed that he sought disability retirement. He was really, he claimed he was improperly released without a medical board and the BCNR ruled in June of 2000 that Commander Havens fitness was not in question. And therefore he had no entitlement to claim a medical board much less disability pay. Then... Well, let me stop you. Now, if I understand your position, the six-year clock starts running right then. Actually, your honor started even before then. The allegations in... Don't hold on, honestly. Tell us when it started and then we're kind of doing the math. Surely. And I apologize to your honor. I'm trying to be responsive to the questions about what happened in 2001-2002. But the disability claim is time-barred because it accrued upon the release from active duty in 1996. And the reason for that... Didn't he go into the reserves in 1996? That's right, your honor. But he was released..
. Now, if I understand your position, the six-year clock starts running right then. Actually, your honor started even before then. The allegations in... Don't hold on, honestly. Tell us when it started and then we're kind of doing the math. Surely. And I apologize to your honor. I'm trying to be responsive to the questions about what happened in 2001-2002. But the disability claim is time-barred because it accrued upon the release from active duty in 1996. And the reason for that... Didn't he go into the reserves in 1996? That's right, your honor. But he was released... Well, he was in the reserves the entire time. He was in the reserves on active duty from 1980 until 1996. And then Commander Havens... His status changed in 1996 and he went on inactive duty, also in the reserves, for an additional period of time until his retirement in 2000. But the active or was that with drills in two weeks, towards? My understanding, your honor, from the complaint is that there was... There was annual duty training that Commander Havens performed for two weeks one year. The drills that... An inactive duty service member in the reserves is required to perform is not a form of active duty. The one weekend a month that reserves perform that is inactive training duty. The two weeks a year is a form of..
. Well, he was in the reserves the entire time. He was in the reserves on active duty from 1980 until 1996. And then Commander Havens... His status changed in 1996 and he went on inactive duty, also in the reserves, for an additional period of time until his retirement in 2000. But the active or was that with drills in two weeks, towards? My understanding, your honor, from the complaint is that there was... There was annual duty training that Commander Havens performed for two weeks one year. The drills that... An inactive duty service member in the reserves is required to perform is not a form of active duty. The one weekend a month that reserves perform that is inactive training duty. The two weeks a year is a form of... It's a special temporary form of active duty. But for the most part, from 1996 onward, Commander Havens was on inactive duty. And what happened before his separation from active duty? Is he... You can be accumulating points with education and so forth during that time towards your retirement, can't you? They didn't active. I mean, I'm dredging from a long time ago on a different branch, but he can be accumulating points, maybe not very quickly, but maybe he's taking for response classes, maybe he's performing occasional duty, but... Not many points, maybe not good years, but something. That's... That's for our honor. But the issue in this case is not the accumulation of retirement credit. The issue in this case is the disability claim for an alleged disability diagnosed in 1995, as to which the serviceman, where Commander Havens twice alleges that he requested a board prior to his separation in 1996. And he alleges he got the diagnosis. He alleges he asked for the medical board twice, and he alleges that he never got one and was released from active duty in 1996
. It's a special temporary form of active duty. But for the most part, from 1996 onward, Commander Havens was on inactive duty. And what happened before his separation from active duty? Is he... You can be accumulating points with education and so forth during that time towards your retirement, can't you? They didn't active. I mean, I'm dredging from a long time ago on a different branch, but he can be accumulating points, maybe not very quickly, but maybe he's taking for response classes, maybe he's performing occasional duty, but... Not many points, maybe not good years, but something. That's... That's for our honor. But the issue in this case is not the accumulation of retirement credit. The issue in this case is the disability claim for an alleged disability diagnosed in 1995, as to which the serviceman, where Commander Havens twice alleges that he requested a board prior to his separation in 1996. And he alleges he got the diagnosis. He alleges he asked for the medical board twice, and he alleges that he never got one and was released from active duty in 1996. All of those factors line up right under the Friedman rule, which says that a claim for disability accrues upon the denial of a service member's request for a medical board. So the request for a medical board is made in early 1996. The service member knows that he did not get the medical board prior to the separation from active duty. He knows that the disability that is alleged to exist was diagnosed in 1995. So all of the information that Commander Havens would have to have in order to bring a cause of action was available to him, and in fact he had that information in 1996. He said he knows that he didn't get a board, of course, it's true in a congenitical way, because no proceeding ever occurred. But was he notified that his request for a board was being denied? Your Honor, the allegation in paragraph 26 of the complaint is that Commander Havens was notified that the Commanding Officer at the Medical Facility did not want to do a medical board. So he was notified in some fashion, it's written in the passive voice, so we don't know who notified Commander Havens, but that issue is not in dispute. What happens if I'm the service member and I ask for a board and I never get any answer? Does that hold open the time frame until I do get an answer? No, Your Honor, because the medical board would have to be convened prior to separation from active duty. But then the latest date that would trigger the accrual would be the separation from active duty. If I haven't gotten a board by then, then that separation action triggers the six-year statute. That's exactly right, and that's the Frieden rule. But let's just assume for a moment that, because we don't have any record one way or the other of a request for a medical board, or denial of a request for a medical board. That all comes from the allegations and the complaint. But even if we were to assume that Commander Havens hadn't pled himself out of court with those allegations and his Friedman problem, he would still have a chambers problem. Under the decision and chambers, the first statutory authorize board to hear the matter, which is on. What does statutory authorize me? A board that is just self-appointing and acting with authority, who is it really me? That's what's actually authorize to do what? To hear the petition for disability benefits, as long as the board had jurisdiction. Is the correction board a board that's authorized to hear medical problems? Indeed, Your Honor
. All of those factors line up right under the Friedman rule, which says that a claim for disability accrues upon the denial of a service member's request for a medical board. So the request for a medical board is made in early 1996. The service member knows that he did not get the medical board prior to the separation from active duty. He knows that the disability that is alleged to exist was diagnosed in 1995. So all of the information that Commander Havens would have to have in order to bring a cause of action was available to him, and in fact he had that information in 1996. He said he knows that he didn't get a board, of course, it's true in a congenitical way, because no proceeding ever occurred. But was he notified that his request for a board was being denied? Your Honor, the allegation in paragraph 26 of the complaint is that Commander Havens was notified that the Commanding Officer at the Medical Facility did not want to do a medical board. So he was notified in some fashion, it's written in the passive voice, so we don't know who notified Commander Havens, but that issue is not in dispute. What happens if I'm the service member and I ask for a board and I never get any answer? Does that hold open the time frame until I do get an answer? No, Your Honor, because the medical board would have to be convened prior to separation from active duty. But then the latest date that would trigger the accrual would be the separation from active duty. If I haven't gotten a board by then, then that separation action triggers the six-year statute. That's exactly right, and that's the Frieden rule. But let's just assume for a moment that, because we don't have any record one way or the other of a request for a medical board, or denial of a request for a medical board. That all comes from the allegations and the complaint. But even if we were to assume that Commander Havens hadn't pled himself out of court with those allegations and his Friedman problem, he would still have a chambers problem. Under the decision and chambers, the first statutory authorize board to hear the matter, which is on. What does statutory authorize me? A board that is just self-appointing and acting with authority, who is it really me? That's what's actually authorize to do what? To hear the petition for disability benefits, as long as the board had jurisdiction. Is the correction board a board that's authorized to hear medical problems? Indeed, Your Honor. Section 1552 of Title 10, which authorizes the establishment of corrections boards, specifically states that the the secretary concerned may pay from applicable current appropriations, be claim for the loss of pay, allowances, compensation, or other pecuniary benefits. So a claim for disability benefits is certainly something within the jurisdiction of the BCNR. In fact, the court in chambers expressedly held that it was the corrections board's decision in that case that was the triggering event for purposes of the statute of limitations. The statutory authorize means a given power by a statute to adjudicate the sort of claim that's an issue. Indeed, Your Honor. And just help me out, which is the one that your position is that first statutory authorize board that we should be looking at for calculation and statutes limitations and when did they mean? June 2000, Your Honor. It's the first decision of the BCNR. And that's when they denied the November 1999 application. That's right, Your Honor. And it's in the record. I just want to know which, I've got a whole list of them. I want to know which one you're picking. Well, Your Honor, certainly the first BCNR decision. Okay. And I believe that was the trial court in its analysis found that under Commander Haven's own allegations, he did have a Friedman problem because he had asked for a board and didn't get one. So under Friedman, the statute of limitations would begin to run upon release from active duty. But even if he hadn't made that on a allegation, the June 2000 BCNR decision is insurmountable. All right
. Section 1552 of Title 10, which authorizes the establishment of corrections boards, specifically states that the the secretary concerned may pay from applicable current appropriations, be claim for the loss of pay, allowances, compensation, or other pecuniary benefits. So a claim for disability benefits is certainly something within the jurisdiction of the BCNR. In fact, the court in chambers expressedly held that it was the corrections board's decision in that case that was the triggering event for purposes of the statute of limitations. The statutory authorize means a given power by a statute to adjudicate the sort of claim that's an issue. Indeed, Your Honor. And just help me out, which is the one that your position is that first statutory authorize board that we should be looking at for calculation and statutes limitations and when did they mean? June 2000, Your Honor. It's the first decision of the BCNR. And that's when they denied the November 1999 application. That's right, Your Honor. And it's in the record. I just want to know which, I've got a whole list of them. I want to know which one you're picking. Well, Your Honor, certainly the first BCNR decision. Okay. And I believe that was the trial court in its analysis found that under Commander Haven's own allegations, he did have a Friedman problem because he had asked for a board and didn't get one. So under Friedman, the statute of limitations would begin to run upon release from active duty. But even if he hadn't made that on a allegation, the June 2000 BCNR decision is insurmountable. All right. Well, I think your case is clearly stated. Let's hear from Mr. Wells on remote. Thank you. Thank you. Thank you. If I may address some of the issues that were raised. First of all, Judge Clark's question. Could he, after the in July 2001, have filed a suit right then? What the government said, well, if he had accepted the findings, yes, he could. However, should be noted that he did not accept the findings of the board until November 8, 2001, the suit was filed on November 7, 2007, within the six years' statute of limitations. Very close. Let's start with them. The government has repeatedly said the board for correction of records as a statutory retiring board. It is not. And chambers, I believe, what's not a record of Ms. Quote, Judge Michelle, but don't mean to, but my understanding is that that only applied for a page three in my reply brief, I listed a number of cases. Van Allen versus United States, as Tom Pottos versus United States, which basically says the same thing is you can't, if there's no retiring board then find the correction board counts. But if they go to a retiring board, that trumps it
. Well, I think your case is clearly stated. Let's hear from Mr. Wells on remote. Thank you. Thank you. Thank you. If I may address some of the issues that were raised. First of all, Judge Clark's question. Could he, after the in July 2001, have filed a suit right then? What the government said, well, if he had accepted the findings, yes, he could. However, should be noted that he did not accept the findings of the board until November 8, 2001, the suit was filed on November 7, 2007, within the six years' statute of limitations. Very close. Let's start with them. The government has repeatedly said the board for correction of records as a statutory retiring board. It is not. And chambers, I believe, what's not a record of Ms. Quote, Judge Michelle, but don't mean to, but my understanding is that that only applied for a page three in my reply brief, I listed a number of cases. Van Allen versus United States, as Tom Pottos versus United States, which basically says the same thing is you can't, if there's no retiring board then find the correction board counts. But if they go to a retiring board, that trumps it. And there is nothing in 1552, tenuously 1552 that allows for a disability retirement. It allows for correction of records, allows for a lot of things. But nothing for that. In fact, tenuously 1554 is probably is a permissive disability board, but that doesn't apply to the board for correction records. You know, you've got three civilians sitting there on a record corrections board against military, physically examination board. You've got a medical doctor and two active duty line officers. The third thing that I wanted to hit was the med board denied in 1996. There is no denial of the record, nothing that I've been able to find. Maybe a piece of paper exists. I haven't seen it. But he asked for a medical board. The fact is they never got around to it. They didn't get one year round to it. They stole the wall. That's not a denial. More importantly, DOD directly, 13.1332.38 says that even if you transfer into the reserves, and this is quoted on, and referred to on page five of my brief, even if you go into the reserves, you're protected because of its determined
. And there is nothing in 1552, tenuously 1552 that allows for a disability retirement. It allows for correction of records, allows for a lot of things. But nothing for that. In fact, tenuously 1554 is probably is a permissive disability board, but that doesn't apply to the board for correction records. You know, you've got three civilians sitting there on a record corrections board against military, physically examination board. You've got a medical doctor and two active duty line officers. The third thing that I wanted to hit was the med board denied in 1996. There is no denial of the record, nothing that I've been able to find. Maybe a piece of paper exists. I haven't seen it. But he asked for a medical board. The fact is they never got around to it. They didn't get one year round to it. They stole the wall. That's not a denial. More importantly, DOD directly, 13.1332.38 says that even if you transfer into the reserves, and this is quoted on, and referred to on page five of my brief, even if you go into the reserves, you're protected because of its determined. You need to be a physical evaluation board. You go back and treat it just like you're on active duty. So the fact that, and I think that in this case, this directive also provides another exception to Martinez, as well as to the, the whole, the whole 17-year breach. Yes, sir. In this one dealt with page five on my brief. Actually, he's one I quoted the DOD directive. I believe it's also in the Secretary of the Navy instruction 1770.3 Bravo. I would also quote a page five of the brief. We've long since exhausted your rebuttal. I think we have we have the series of points well in mind that you've made and we can refresh our memory from your brief. Thank you. We'll take the appeal on advice when we thank you both. Thank you.
All right, the next case is that of a commander Hayden versus the United States of P.O. 5.0. 3.9 Mr. Welles. Well, you're on. Still is morning, but only bear welcome to the court. We'll go about two minutes, I believe. Do they please the court to like to reserve five minutes? Fine. Okay, kind of a maybe again. I think the couple of saline issues here is one. I think what is a retiring board? Is a retiring board the board for corrections of military records or in this case, naval records or is a retiring board by definition physical evaluation board? And we would submit it to the latter. I think the other saline issue here deals with Martinez and the applicability of Martinez to a separation rather than a mere discharge or complete discharge. If I can address those issues in order. In this particular case, Mr. Hayden was denied by a physical evaluation board in 2002. That was the first time his case went up before a physical evaluation board. We agree that it had been submitted to the correction boards, but correction boards are not retiring boards. There's case load to support that. I think if you look at how the boards are made up, it sheds a lot of line on this. Is that the point we've missed a while? That it's a ton of retiring board, yes, sir. It's both the opening and the reply brief discussed. To me, a threat to argument was basically we should have a war, Martinez. Well, that was part of our argument. I'm taking reverse order. The wave was briefed. I'm just taking the order of which I presented it. So, Martinez, that is the second issue in the case, yes, sir. I don't see it, but I read the big rally, but I didn't see it. The starting, don't you cite chambers on that, say it. Because I understood it. Martinez doesn't apply to disability retirement claims. That's right, your honor. But doesn't chambers say that the decision by the first statutorily authorized board, that here's, or refuses to hear the claim invokes the statutor limitation. I think that the page perhaps 1224 of the case. And if that's true, doesn't the statutor limitations apply? It only applies starting in 2002, sir, because that is the first statutorily retirement board. It's our position that our correction board is not a retirement. Well, and we didn't, didn't he ask in January of 2001, the physical evaluation board to evaluate him? Yes. And then in July of 2001, didn't they find him not fit for duty? And didn't they also find disability not the proximate results for forming military duties? Doesn't that start the limitations during July of 2001? He waits in November of 2007 to file suit more than six years of past. Even if he followed chambers like you asked, don't we reach the same result? Not quite, your honor, because actually he initially agreed with the results of that board and asked for a formal PEB, which in the Navy and I realize you got some Army background, your honor. They work pretty similar. You can ask for a formal PEB to evaluate it. Part of our issues dealt with the effectiveness of the council that he got during that process. And then he was given some. My understanding of the record, and I think I'm wrong, is that he asked the PEB to evaluate him. That was in January made that request. That's right. And they evaluated him and then in July, told him or made a finding, not fit for duty, disability, not proximate result. So that's the findings of the PEB. Why doesn't the statute start then? Your honor, he did ask for the formal board, which is part of the same process. Are you saying that that is not the formal board? No, sir. The formal board is actually a formal hearing type board. What he had was basically a paper board where they sent the package up and the three officers. And that is not a notorially authorized board. Yes, sir, but it's still part of the formal board is part of the same process. It's in the same way. Well, it could be an appeal, but that isn't what the changes are. Is the first board. Was that not the first board? No, sir. Is it not such a poorly authorized? It was the first board, but the board process continued. In the same way, if we were to ask for a request for a reconsideration on Bonkler, or whatever if you were to rule against us, that would total any statute of limitations going to when I deval my petition for cert. For cert, for cert, for cert, for our, okay. What's the authority for saying that the statute is told when you go through the more formal board process as opposed to the initial informal paper process? Because it's all part of the same process. It's different steps. Yes, but that's just a lawyer argument. What statute or regulation or case says that the clock stops until the second stage of board review is concluded? Any time, because the decision is not final until such time as the board is final. As far as I know, there's nothing which specifically asks that question. Quite honestly, I didn't research, because I never thought about that. I mean, it's been my experience, both in the military and in the law, that when you're continuing along on the same process, the statute doesn't start until that process is complete. That may often be true, but my recollection is that with regard to statute of limitation problems in this military context, that it's the other way around. That there is no tolling while you pursue other available remedies. But it's not a different remedy, you're on our part of the same remedy. It's the same remedy as long as you stay with that same board. I stay correct. It's the same remedy you're seeking, but it's in a different form. No, sir, it's the same form. It's still the Navy's physical evaluation board, as set down in the Second Abin structure in 1850.4 series, which sets out several steps in the disability retirement system. First step is, of course, is often a medical board, which is usually one officer. Second step gets to where they make a submission to a board of officers, usually two line officers, a Navy Marine officer, and a medical officer in the Navy. Once it goes there, they make, I guess, what you would call a preliminary finding. It comes back to the individual who can accept or reject that fine. If he accepts the finding and process ends there, if he rejects the finding, then it goes on to a formal hearing before the physical evaluation board. That's what happened here. Is he rejected the finding, asked for a formal hearing. In fact, he then turned around, you know, through other issues that aren't remained to the wall of the stage of limitations, made a decision to eventually accept the fine. The final decision came out on January 2, 2002. I think that's the important thing, Judge Clark, is kind of where we're going. Everything here up until then is a preliminary decision. It's a final decision that came out, which ends the physical evaluation board process. How do I get around, we get around chambers, which you want us to rely on, that says the decision by the first statutorily authorized board. And the statute, which sets out the statute of limitations, says six years, and no we're in there, in the case of the statute, is there, after all internal appeals in the military are exhausted or so on and so forth. How do we get around that break-fair line? Do we modify chambers now? No, not at all, Judge, because first of all, it's not an internal appeal. It's an issue in the sense of being in the military as opposed to going to the bringing suit. It's the same thing as it's a preliminary decision. The final decision, the feet decision of the physical evaluation board did not come until January 2. If you'll notice in there, they actually made a couple of decisions. So you're even accepting that the decision was not truly final until 02. That's not responsive to Judge Clark's question that the case law chambers specifically seems to focus on when the first board is finished, not when the later board is finished. Yes, sir, I think it does, because it's still all one board. It's not like you have a hierarchy of boards where you go to this one, and then there's an appellate. For example, it's not like if there's a court march. I'm not quite sure. I'm just agreeing with you on the description of the sequential steps in the military system or the structure of it. I'm trying to get you to focus on the case law that Judge Clark's question relies on. Well, how do we get around the languor in chambers which makes it sound like it's the very first decision of the very first authority that triggers the running of the six-year statute of limitation? Because you're on or against not a final one. One of the things, if you look at the complaint, they actually came. The chamber says and say when you have a final decision, this is when you have a decision of the first board. Well, perhaps you're on, this will be an opportunity to clarify that. Well, the question is whether you're in effect requesting that we modify or perhaps even overrule chambers. I thought you were saying no. Chambers helped me. I like chambers, but there's that language that seems unfriendly to you. So I don't know why you like it. I don't think we were talking in obstinate interpretations. The way I interpret chambers, and obviously Judge Clark and I have a disagreement on this, is it probably doesn't need modification. Judge Clark being smarter than I am, may have found some reason in there where it does. So certainly we're not going to object to any kind of modification which clarifies it to say the final decision of the statute. Is it the heart of your case to say that the second trio of officers that reviewed this case, even though there are three different individuals, is really just the exact same as the first three officers who did what you're calling the preliminary work, the case where it reviewed. First of all, I'm not sure it is. I'm not sure it is three different officers. It may be the same ones, but just I don't know. I'm not sure how they actually assign that within the maybe personnel boards. The important thing is the identity of the three or the six. The important thing is you're saying that those two reviews are really one and the same. And that there's no result until the second stage has occurred. I'm saying until the final decision is final because in this particular case there were actually three decisions. If you look at the complaint and this is a joint appendix 19, paragraph 63, it talks about June 2001, the plaintiff was found for duty. You win under the statute of limitations if we accept the second of the three. Actually, what we want you to do is accept is to, on the first stage, the limitations for the third of the three, the final one. Let's hear from the government. We'll give you back some rebuttal time when they're finished. Can I move on to the Margueritean's issue, sir? Very quickly. I think the issue is separation and discharge. The reserves, I spent 22 years in the Navy, I commanded reserve centers for six to those years. And it's different. Separation means you leave active duty for a period of time. You can go right back on two weeks later and it happens often. The Marquinas' discharge? Martinez actually addressed separation and discharge. My point is Martinez was wrongly decided. It hung on 37204 and said... You were aware that this panel cannot overrule my team. Yes, Your Honor. I said that in my brief that I believe that we were going to have to have an on-bomb on that issue. I understand possibly the best that you all could do would be to recommend an on-bomb. But in this particular case, 37204G applies. 37204G says that if you have a reserveist that was injured or had an illness on active duty, it should have been handled while it was on active duty, which is the crux of our complaint. Then he is actually eligible for a pay. It's an issue that was not present in the Martinez case. Your Honor, I've probably spoken longer than you want me to, so reserve the rest of my time and any other time you've been so gracious to give me. Thank you. Councillor for the government. Chief Judge Michelle, may I please the court. Commander Havens filed his claims five years too late. The trial court applied settled circuit precedent in reaching the conclusion that Commander Havens claims. What are you putting a file right after that first P.E.B. in the longer discussion here? Council was talking about the need to go through the ineffective review. I'm looking at the one that was in the decision July 2001. What would have happened if he had filed right then? Would you have committed a seduadement? That's not final? You can't bring it. Your Honor, it depends on the service members' decision to contest those findings or not. As I understand it, in the regulations there's a procedure for having a hearing before an informal P.E.B. And if the result of that informal P.E.B. is unfavorable to the service member, the service member can then take the matter to a formal P.E.B. Much like if we were... Let's take a look at this. I mean, and I'm reading the record. Maybe I missed something. Plan if ask for a physical evaluation board to evaluate. Where I read the record that happened in January of 2001. In July 2001, the board says not fit for duty, disability, not a proximate result of performing military duties. What happens if right then, he goes ahead and files his case as opposed to waiting. I mean, right now you're saying, okay, a seducination bar is you. And I guess I tend to agree on those dates. But if you're telling me that no, he couldn't file right then. And he had to go through this process that took him into the next year. But he filed right then. But he filed this case right then. You're on... Let me try to clarify this because I think we... There are two issues that are being conflated here. Number one is when does the claim accrue, which is a very important issue in this appeal? But I understand that there are questions about the July 2001 informal PEP decision. The service member, Commander Havens, could have accepted the informal PEP findings as final as to him and brought a suit at that time. Or brought a petition before the corrections board at that time to challenge the... Is that the first, that's totally authorized board that Chambers talks about? No, you're wrong. Oh, okay. Who what is? The first, that's totally authorized board to hear Commander Havens petition was the BCNR in this case. The BCNR rejected the disability claim asserted by Commander Havens three separate times prior to November of 2009. What's the significance of three versus one? You're on it. I'd be happy to focus on the first one. The point is just that this claim is time-barred three times over before we even get to the July PEP, where the January 2002 formal PEP decision. You have a decision by the BCNR in June of 2000 that ruled upon Commander Havens petition, which claimed that he sought disability retirement. He was really, he claimed he was improperly released without a medical board and the BCNR ruled in June of 2000 that Commander Havens fitness was not in question. And therefore he had no entitlement to claim a medical board much less disability pay. Then... Well, let me stop you. Now, if I understand your position, the six-year clock starts running right then. Actually, your honor started even before then. The allegations in... Don't hold on, honestly. Tell us when it started and then we're kind of doing the math. Surely. And I apologize to your honor. I'm trying to be responsive to the questions about what happened in 2001-2002. But the disability claim is time-barred because it accrued upon the release from active duty in 1996. And the reason for that... Didn't he go into the reserves in 1996? That's right, your honor. But he was released... Well, he was in the reserves the entire time. He was in the reserves on active duty from 1980 until 1996. And then Commander Havens... His status changed in 1996 and he went on inactive duty, also in the reserves, for an additional period of time until his retirement in 2000. But the active or was that with drills in two weeks, towards? My understanding, your honor, from the complaint is that there was... There was annual duty training that Commander Havens performed for two weeks one year. The drills that... An inactive duty service member in the reserves is required to perform is not a form of active duty. The one weekend a month that reserves perform that is inactive training duty. The two weeks a year is a form of... It's a special temporary form of active duty. But for the most part, from 1996 onward, Commander Havens was on inactive duty. And what happened before his separation from active duty? Is he... You can be accumulating points with education and so forth during that time towards your retirement, can't you? They didn't active. I mean, I'm dredging from a long time ago on a different branch, but he can be accumulating points, maybe not very quickly, but maybe he's taking for response classes, maybe he's performing occasional duty, but... Not many points, maybe not good years, but something. That's... That's for our honor. But the issue in this case is not the accumulation of retirement credit. The issue in this case is the disability claim for an alleged disability diagnosed in 1995, as to which the serviceman, where Commander Havens twice alleges that he requested a board prior to his separation in 1996. And he alleges he got the diagnosis. He alleges he asked for the medical board twice, and he alleges that he never got one and was released from active duty in 1996. All of those factors line up right under the Friedman rule, which says that a claim for disability accrues upon the denial of a service member's request for a medical board. So the request for a medical board is made in early 1996. The service member knows that he did not get the medical board prior to the separation from active duty. He knows that the disability that is alleged to exist was diagnosed in 1995. So all of the information that Commander Havens would have to have in order to bring a cause of action was available to him, and in fact he had that information in 1996. He said he knows that he didn't get a board, of course, it's true in a congenitical way, because no proceeding ever occurred. But was he notified that his request for a board was being denied? Your Honor, the allegation in paragraph 26 of the complaint is that Commander Havens was notified that the Commanding Officer at the Medical Facility did not want to do a medical board. So he was notified in some fashion, it's written in the passive voice, so we don't know who notified Commander Havens, but that issue is not in dispute. What happens if I'm the service member and I ask for a board and I never get any answer? Does that hold open the time frame until I do get an answer? No, Your Honor, because the medical board would have to be convened prior to separation from active duty. But then the latest date that would trigger the accrual would be the separation from active duty. If I haven't gotten a board by then, then that separation action triggers the six-year statute. That's exactly right, and that's the Frieden rule. But let's just assume for a moment that, because we don't have any record one way or the other of a request for a medical board, or denial of a request for a medical board. That all comes from the allegations and the complaint. But even if we were to assume that Commander Havens hadn't pled himself out of court with those allegations and his Friedman problem, he would still have a chambers problem. Under the decision and chambers, the first statutory authorize board to hear the matter, which is on. What does statutory authorize me? A board that is just self-appointing and acting with authority, who is it really me? That's what's actually authorize to do what? To hear the petition for disability benefits, as long as the board had jurisdiction. Is the correction board a board that's authorized to hear medical problems? Indeed, Your Honor. Section 1552 of Title 10, which authorizes the establishment of corrections boards, specifically states that the the secretary concerned may pay from applicable current appropriations, be claim for the loss of pay, allowances, compensation, or other pecuniary benefits. So a claim for disability benefits is certainly something within the jurisdiction of the BCNR. In fact, the court in chambers expressedly held that it was the corrections board's decision in that case that was the triggering event for purposes of the statute of limitations. The statutory authorize means a given power by a statute to adjudicate the sort of claim that's an issue. Indeed, Your Honor. And just help me out, which is the one that your position is that first statutory authorize board that we should be looking at for calculation and statutes limitations and when did they mean? June 2000, Your Honor. It's the first decision of the BCNR. And that's when they denied the November 1999 application. That's right, Your Honor. And it's in the record. I just want to know which, I've got a whole list of them. I want to know which one you're picking. Well, Your Honor, certainly the first BCNR decision. Okay. And I believe that was the trial court in its analysis found that under Commander Haven's own allegations, he did have a Friedman problem because he had asked for a board and didn't get one. So under Friedman, the statute of limitations would begin to run upon release from active duty. But even if he hadn't made that on a allegation, the June 2000 BCNR decision is insurmountable. All right. Well, I think your case is clearly stated. Let's hear from Mr. Wells on remote. Thank you. Thank you. Thank you. If I may address some of the issues that were raised. First of all, Judge Clark's question. Could he, after the in July 2001, have filed a suit right then? What the government said, well, if he had accepted the findings, yes, he could. However, should be noted that he did not accept the findings of the board until November 8, 2001, the suit was filed on November 7, 2007, within the six years' statute of limitations. Very close. Let's start with them. The government has repeatedly said the board for correction of records as a statutory retiring board. It is not. And chambers, I believe, what's not a record of Ms. Quote, Judge Michelle, but don't mean to, but my understanding is that that only applied for a page three in my reply brief, I listed a number of cases. Van Allen versus United States, as Tom Pottos versus United States, which basically says the same thing is you can't, if there's no retiring board then find the correction board counts. But if they go to a retiring board, that trumps it. And there is nothing in 1552, tenuously 1552 that allows for a disability retirement. It allows for correction of records, allows for a lot of things. But nothing for that. In fact, tenuously 1554 is probably is a permissive disability board, but that doesn't apply to the board for correction records. You know, you've got three civilians sitting there on a record corrections board against military, physically examination board. You've got a medical doctor and two active duty line officers. The third thing that I wanted to hit was the med board denied in 1996. There is no denial of the record, nothing that I've been able to find. Maybe a piece of paper exists. I haven't seen it. But he asked for a medical board. The fact is they never got around to it. They didn't get one year round to it. They stole the wall. That's not a denial. More importantly, DOD directly, 13.1332.38 says that even if you transfer into the reserves, and this is quoted on, and referred to on page five of my brief, even if you go into the reserves, you're protected because of its determined. You need to be a physical evaluation board. You go back and treat it just like you're on active duty. So the fact that, and I think that in this case, this directive also provides another exception to Martinez, as well as to the, the whole, the whole 17-year breach. Yes, sir. In this one dealt with page five on my brief. Actually, he's one I quoted the DOD directive. I believe it's also in the Secretary of the Navy instruction 1770.3 Bravo. I would also quote a page five of the brief. We've long since exhausted your rebuttal. I think we have we have the series of points well in mind that you've made and we can refresh our memory from your brief. Thank you. We'll take the appeal on advice when we thank you both. Thank you