A service member facing involuntary administrative separation is entitled to “qualified counsel,” not the “effective assistance of counsel”
So finds the Court of Federal Claims in its decision in Helferty v. United States, No. 11-358C, __ Fed.Cl. __ (Nov. 15, 2013) (link to slip op.).
In 2005, Mr. Helferty was a 16-year enlisted member of the Navy who had risen to Aviation Ordnanceman First Class (E-6). In June of that year he was serving as a Substance Abuse Rehabilitation Program Counselor at the Naval Branch Clinic in Key West, FL, when he tested positive for the metabolite of cocaine during a random urinalysis. Mr. Helferty was offered and refused nonjudicial punishment, and was then processed for involuntary administrative separation.
Mr. Helferty was assigned military defense counsel, then-Lieutenant Spencer, JAG Corps, U.S. Navy. LT Spencer represented Mr. Helferty before an administrative discharge board conducted on September 27, 2005. The Government’s case consisted of the positive urinalysis. Mr. Helferty’s case consisted of his performance evaluations, a character statement from Mr. Helferty’s supervisor, evidence about prior errors at the drug testing laboratory, an unsworn statement from Mr. Helferty, and the results of a polygraph examination taken by Mr. Helferty at his own expense. “The proceeding lasted 55 minutes. The board deliberated for 45 minutes and returned a unanimous decision finding that the preponderance of the evidence supported drug abuse. They unanimously recommended separation via a general discharge.” Helferty, slip op. at 5 (citations to record omitted).
A year later, in October 2006, Mr. Helferty petitioned the Board for Correction of Naval Records (BCNR). Mr. Helferty alleged numerous errors, including that he received ineffective assistance of counsel from LT Spencer during the administrative board proceedings. The BCNR considered this assertion, applied the Strickland standard, and denied Mr. Helferty’s claim.
In Strickland v. Washington, 466 U.S. 668, 685-86 (1984), the Supreme Court explained that a person accused of a federal or state crime “is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair,” and that “the right to counsel is the right to the effective assistance of counsel.” The Court then established a two-part test for ineffective assistance of counsel: (1) that the counsel’s performance was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment (meaning that his performance fell measurably below an objective standard of reasonableness), and (2) that this deficient performance prejudiced the defense (meaning that but for the deficiency, the result would have been different). The client/appellant has the burden to prove both parts of the test.
In the military, administrative discharge boards are serious proceedings with lifelong consequences, and service members are detailed qualified military defense counsel to represent them before such boards. But whether a service member is entitled to “effective assistance of counsel” during such proceedings, and whether such a service member may complain of ineffective assistance under the Strickland standard, is a big question.
In Helferty, the BCNR “assumed without deciding that the Strickland standard applied to Mr. Helferty’s ineffective assistance of counsel claim.” Slip op. at 8. The BCNR then rejected the claim on the basis that LT Spencer’s decisions were reasonable.
Mr. Helferty appealed to the Court of Federal Claims, and asked the court “to reach a decision on Mr. Helferty’s claim without addressing whether Mr. Helferty enjoys a Sixth Amendment right to effective assistance of counsel before the [administrative discharge board], stating that military record boards and judges of this court have applied Strickland in reviewing past separation proceedings.” Slip op. at 13.
But the court doesn’t follow the tradition of assuming that Strickland applies to such claims and conducting that analysis. Rather, the Court determines that Strickland doesn’t apply at all:
Because Strickland constitutes a test developed to pertain to criminal proceedings where the Sixth Amendment right to counsel is at issue, some courts have rejected application of Strickland to administrative proceedings, even those with significant consequences. In Williams v. Wynne, 533 F.3d 360, 369 (5th Cir. 2008), the Fifth Circuit held that “the Sixth Amendment right to effective assistance of counsel [does] not apply to the appellant’s non-criminal administrative discharge hearing.” Instead, the court in Williams applied a “competent (or qualified) counsel” standard in reviewing the representation that an Air Force Reservist received before an Air Force ADB. The Fifth Circuit applied that standard based on the language in the reservist’s Notification of Initiation of Separation Action, and it further stated that “[t]he right to have qualified counsel appointed does not necessarily create a coordinate right to effective assistance of counsel under the Sixth Amendment.” Cases in this court addressing claims under the Military Pay Act have applied the Strickland test to an administrative separation proceeding and to resignation in lieu of a court-martial, assuming but not deciding that it is the applicable test.
The analysis in Williams is persuasive. Mr. Helferty was ordered to be discharged through an administrative separation process regulated by provisions of the Naval Military Personnel Manual (“MILPERSMAN”), NAVPERS 15560D. His separation process specifically was governed by MILPERSMAN 1910-146, Separation By Reason of Misconduct – Drug Abuse. Mr. Helferty received notification of his impending hearing before the ADB via form NAVPERS 1910/31, which allowed him to elect “representation at an administrative board by qualified counsel.” MILPERSMAN 1900-010 defines key words for Article 1910. “Qualified counsel” means “[c]ounsel qualified per [Uniform Code of Military Justice] [A]rticle 27(b) who does not have any direct responsibility for advising the convening authority or separation authority on the proceedings involving the respondent.” Article 27(b) of the Uniform Code of Military Justice states that counsel:
(1) Must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and
(2) Must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.
Given this statutory language and the Sixth Amendment’s inapplicability to proceedings before administrative boards, Mr. Helferty’s claim is appropriately analyzed under the qualified counsel standard. In this context, qualified means competent, as recognized by the Fifth Circuit in Williams and by Article 27(b)(2) of the Uniform Code of Military Justice.
Slip op at 14 (numerous citations omitted) (emphases added).
The court then finds that, “Without a doubt, then-Lt. Spencer’s representation of Mr. Helferty before the ADB was less than perfect.” Slip op. at 15. However, the court concludes that, “Even assuming Mr. Helferty is correct in his assertions, then-Lt. Spencer satisfied the standards for ‘qualified counsel.’ He presented a rationale for his choices during the representation, and while the court disagrees with several of those decisions, it cannot find that then-Lt. Spencer breached his duties as Mr. Helferty’s counsel.” Slip op. at 17.
It’s hard to say whether this case would have turned out differently had the Court of Federal Claims found that Strickland applied and used that standard instead of the “qualified counsel” standard. The court doesn’t elaborate on the meaning of “qualified,” but implies that mere certification under Article 27 and the applicable service regulations is enough. However, the court also considers the actual performance of LT Spencer, seeking his rationale for certain decisions in a Strickland-like analysis (and throwing some perhaps unfair jabs at the now-LCDR along the way).
But virtually all appeals of involuntary administrative discharges are brought under the Military Pay Act (37 U.S.C. § 204), which creates a right to monetary damages if the involuntary separation of a service member is vacated due to an impropriety, and the Court of Federal Claims has jurisdiction over all but the smallest such claims (the 5th Circuit decided Williams as a mixed case that involved claims of employment discrimination). Accordingly, the Helferty decision will have wide application.
Mr. Helferty could appeal to the Court of Appeals for the Federal Circuit, but that’s likely a waste of time. Just last year that court determined “that the right to the effective assistance of counsel does not apply to proceedings before the [Court of Appeals for Veterans Claims]. Pitts v. Shinseki, 700 F.3d 1279, 1286 (Fed.Cir. 2012) cert. denied, 133 S. Ct. 2856 (2013). The Federal Circuit’s analysis in Pitts would easily apply to the facts of Helferty:
In determining the scope of the constitutional right to the effective assistance of counsel in civil cases, the courts have consistently held that where only property interests are at stake, there is no due process right to the effective assistance of counsel, regardless of how unique or important the property rights in question may be. Proceedings in veterans’ benefits cases are of course important to the claimants, but they are directed at the adjudication of property claims, not liberty interests. Based on that distinction, and the long line of precedents refusing to extend the constitutional right to counsel to benefits proceedings of that type, we reject Mr. Pitts’s contention that he is entitled to relief on appeal based on what he characterizes as ineffective assistance by his lawyer while representing him before the CAVC.
Pitts, 700 F.3d at 1286 (emphasis added).
So the decision of the Court of Federal Claims in Helferty, finding “the Sixth Amendment’s inapplicab[le] to proceedings before administrative boards,” and concluding that claims of deficient performance by military defense counsel before such boards are “appropriately analyzed under the qualified counsel standard,” is now clearly the rule.