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.