Rule for Courts-Martial 306(c)(2) provides that a commander faced with a subordinate’s misconduct may elect to take administrative action against that subordinate. The discussion section to that rule makes clear that administrative separation is one of the adverse administrative actions available to a commander.

A recent report by the Government Accountability Office (GAO), entitled DOD Health – Actions Needed to Ensure Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) Are Considered in Misconduct Separations, posits that servicemembers with mental illnesses may not be receiving fair treatment in misconduct-based discharge proceedings. Then, in an article published by the Military Law Review entitled Justice in Enlisted Administrative Separations, ___ Mil. L. Rev. ____, Vol. 225, Issue 1 (May 2017), Major Latisha Irwin argues that servicemembers accused of sexual offenses are also receiving unfair treatment in discharge proceedings.

Before exploring those contentions, it may be helpful to recall that the rights afforded a respondent in administrative separation proceedings are primarily derived from regulation, not the Constitution. The Fifth Amendment is only implicated if the servicemember is facing an adverse service characterization or, in the case of an honorable discharge characterization, if the separation is being imposed as a “summary guise for punitive action.” See Keef v. United States, 185 Ct. Cl. 454, 467-468 (1968); see also Weaver v. United States, 46 Fed. Cl. 69, 77-78 (2000).

Even when the due process clause is implicated, though, discharge proceedings for misconduct are not Constitutionally required to be all that robust.

[T]he predetermination ‘hearing,’ though necessary, need not be elaborate. . . . In general “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action. [T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions – essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.

Cleveland Bd. of Educ. v. Laudermill, 470 U.S. 532, 545-546 (1985) (oyez).

That context – that a servicemember’s rights in discharge proceedings is mostly a matter of regulation rather than Constitutional due process – is important. That being said, it is a fundamental principle of administrative law that agencies must abide by their own rules and regulations. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (Justia). To that end, Department of Defense Instruction (DoDI) 1332.14 is the genesis of the rights that the subordinate service-specific regulations convey. Paragraph 2.b. of Enclosure 2 of the DoDI requires that a service apply its regulations consistently, that fact-finding be “conducted properly,” and that abuses of authority not occur. Section 3 of Enclosure 5 requires the services to convene discharge boards to determine whether a servicemember should be separated, but only in certain classes of cases.

In its report, the GAO has advised Congress that the practices of the various services have failed to adequately account for the potential that the misconduct which makes a servicemember vulnerable to involuntary separation might be the result of service-connected PTSD or TBI. The GAO found that “16 percent, or 14,816 of the 91,764 servicemembers who were separated [from fiscal years 2011 through 2015] for misconduct had been diagnosed with PTSD or TBI.” GAO Report at 12. Beyond those two illnesses, the GAO found that 62 percent of discharged servicemembers suffered from mental conditions – PTSD, TBI, depressive disorders, personality disorders, bipolar disorders, adjustment disorders, or the like – that could be associated with their misconduct. GAO Report at 12-13. The report concluded that two of the services (the Navy and the Air Force) failed to meet DoD screening policies designed to ensure that separation authorities consider such mental conditions as a possible mitigating factor.

Major Irwin asserts in her article that administrative separation proceedings are occurring in greater frequency than in the past “as an alternative to [] courts-martial because administrative separation boards have a lower standard of proof and afford the respondent[] less due process than a trial by court-martial.” Justice in Enlisted Separations at 37. She takes issue, in particular, with the fact that under service regulations, the alleged victim often does not to testify at the hearing. In Major Irwin’s estimation, “when the alleged victim does not testify, the respondent does not have a fair opportunity to present a defense.” Id at 37-38. In support of this contention, Major Irwin points to Weaver v. United States, cited above. Unfortunately, at least by my reading, Weaver does not establish such a principle. It instead establishes that:

[In those discharge proceedings where the Fifth Amendment right to due process is implicated, all the government must provide to satisfy the Amendment is:]

(1) written notice, (2) a reasonable time to prepare for the Board[] (3) an opportunity to appear in person, (4) representation by counsel before the Board[], and (5) full access to records relevant to the case except where national security interests required.

46 Fed. Cl. at 80. The Weaver Court made clear that respondents in discharge board proceedings have no Sixth Amendment right to compulsory production or confrontation. Id. at 79. Any right to cross examination or to compel production of a witness is purely a creature of service regulation. Id. at 80.

None of that is meant to say that robust procedural protections in discharge proceedings does not serve some of our government’s most fundamental interests. Procedural rigor fosters the perception that command authorities are fair, which is essential to maintaining good order and discipline, which is vital for combat effectiveness. Procedural rigor also fosters enhanced medical and mental health treatment for injured and ill servicemembers. That treatment is essential to meeting the public’s expectation that their government take care of veterans. Accordingly, there are powerful moral, practical, and legitimacy-based reasons for the government to extend greater protections to individuals facing involuntary administrative separation. But, there probably isn’t a Constitutional imperative for more rigor.

10 Responses to “Scholarship Saturday: Recent critiques of the military’s administrative discharge processes”

  1. Philip D Cave says:

    FIRE reports at least 90 lawsuits against schools since the Dear Colleague letter.
    A recent case in Indiana has an interesting discussion of how investigators and CW’s being allowed to cherry-pick texts to present can lead to problems for the “accused,” something we see in military cases.


  2. Isaac Kennen says:

    I’ve always been reluctant to compare discharge proceedings in higher education with military discharge proceedings.
    Students at institutions of higher education are paying to be there. That bargained-for exchange puts a student in a different position than a military respondent, who is being paid for their service.
    I think a student has a right to receive what they’ve paid for, or the government should be made to show why they should not receive the benefit of that bargain. A federal employee’s right to continue receiving a paycheck is, in my view, more attenuated.

  3. Vulture says:

    Other authority exists but looking at Cooney v. Dalton, 877 F.Supp. 508, it would be advisable to contest the process early and often.
    The powers that be knew what they were getting into when the recruiting push went up and then looked to duck out when the bill came due: Misconduct forces soldiers out.  Testimony before the House Veterans Committee was:
    Denying the soldier basic due process is unconscionable after they have been wounded. And if I may give this analogy: How many people here would agree that if I was in a car wreck, that the attorney of the person who ran into me, and it was their fault of course, was at my bedside in the hospital asking me to sign paperwork on a settlement. We know that that is absolutely unethical. And what is happening in these situations because the soldiers don’t have advocates, they are losing out on the due process.
    So what has occurred in the sense of protections of service member rights is wholly inappropriate.  But I think this is preaching to the choir.

  4. Javert says:

    The key issue as I see it is that administrative separation proceedings do not merely terminate a service member’s employment with the military. It takes away benefits that they would have otherwise earned.  Got it, they haven’t vested or any such thing – but tell that to the kid that joined specifically because of the Post 9/11 GI Bill, and then was told that “Gee, we can’t prove it in court, but we’re taking away your education benefits without allowing you to cross-examine your accuser.” 

  5. anon says:

    This comments section is the first place I’ve seen an argument that students deserve more rights than military members. 

  6. Isaac Kennen says:

    anon said,

    This comments section is the first place I’ve seen an argument that students deserve more rights than military members. 

    I don’t know what is “deserved.”  I’m only pointing out that the due process clause is only implicated if the person being impacted stands to lose liberty or property they already own.  I don’t mean to make a value judgment there – in fact, I think there are compelling moral, practical, and legitimacy-based reasons for the government to extend robust protections to service members in discharge proceedings.  There just aren’t strong constitutionally-based reasons.
    I think it’s important to remember what a discharge proceeding is not – it’s not a criminal proceeding.  Nobody’s going to jail.  Nobody’s being punitively fined.  
    And, it’s important to remember that when the government does resort to true criminal proceedings to address student or military member misconduct, the student receives many protections denied to the service member.  Only the student will get the right to a jury trial.  The military member will have to settle for a three-member panel of military members who were hand-picked by the commander who charged her, and who, rather than having to be unanimous, can convict with a mere 2/3 majority vote.  
    Given those differences in the rights provided to students vs. military members in the criminal context, the idea that students receive more rights than military members in administrative proceedings as well shouldn’t be that surprising.

  7. Bad Company says:

    Here’s an interesting view from a board member’s perspective

    Having now sat on one, it’s about as fair as you can get.  I didn’t know the person I sat the board for, didn’t see the evidence until that day, and had all the correct procedures and pieces of information there to work with the board members and make a decision.  I always worried that we were becoming a zero-defect Navy, but the ADSEP process showed me you can get a fair shake even if you screw up.

    I’ve seen some unfair boards, and many very fair boards who seem to not like Recorders making shortcuts and sidestepping [in an attempt to slam the respondent]. It really seems to often boil down to command climate and culture.
    IMO the greatest danger to “fundamental fairness” in weighing PTSD, etc… comes when the respondent isn’t entitled to a board. And IMO the greatest danger at a board is not respecting 5th Amendment rights.

  8. vulture says:

    Brown v. The Board of Education had some interesting things to say about the rights of students so maybe the reference isn’t such a bad one.  Laudermill shows up a lot in motion for summary judgment for affirmation of administrative and quasi-judicial hearing, it’s no big deal.  But when the Supremes get it up to hear a case involving this separate but awkward society it’s going to be the failure of Congress to regulate the process that comes into question.

  9. stewie says:

    One of the things I might change is that officers cannot lose their vested retirement through an administrative separation but an enlisted person can. I’d make that equal one way or the other (I’d lean towards extending the officer protection to enlisted).

  10. Concerned Defender says:

    It’s a totally unfair process, that is only made fair by super honest above-board Trial Counsel who are hyper-vigilant to protect the integrity of the system, and super fair minded Board members, SJA, and Commanders.  
    For those that don’t know, otherwise, this is how it plays out:
    1. Allegation
    2. Regardless of the strength or merits, almost universally the service member suffers immediate adverse actions with no due process – Flag (often meaning lost promotion, lost money from lost promotion, lost PCS, lost awards, and lost any positive career action); Dropped from any class (had a client who was kicked out of a course on graduation day on a weak allegation); lost/suspended clearance; removed from leadership position; given a GOMOR (which is almost impossible to squash) which is probably permanently filed (an ultimate career ender), and then possibly an Article 15 conviction (very difficult to beat an Article 15).  [I have represented clients and beat these, but they are very very hard.]  Up until now, s/he has had almost no due process other than a short window to deny the allegations.
    3.  A month or several months later, Soldier then goes to a separation hearing.  The government then presents the Article 15 guilty finding, the GOMOR filed, the lost/suspended clearance, the fact s/he was relieved of his/her position/job, etc.  
    All of this demonstrates that an allegation kicks off a presumption of guilt, a piling on of adverse actions that are very hard to get out from under, or fix down the road.  The first real opportunity for any meaningful “due process” is at the hearing, after the government has already pretty much blocked any positive actions, and drug the service member’s reputation and career through the mud. 
    While I have an extremely good track record for winning these, I have seen some extremely egregious scenarios that are frankly shocking to the conscious that fellow veterans treat other fellow veterans in such a dastardly fashion.
    One real fix that needs to be made is actual real prosecutoral ETHICS.  Not the fake garbage that the JAG school currently teaches, but real ETHICS on how you treat an accused.  How you turn over evidence.  Concepts of innocence until proof of guilt.  These fundamental things seem LOST on a scary high percent of Trial Counsel.