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A good argument can be made that several areas of military administrative law  fail to comport with adequate Due Process.

For example, the Air Force has a stream-lined way of demoting relatively senior enlisted personnel.  Despite the recipient’s loss of the valuable property right of rank and pay, protection is minimal.    Similarly, decisions to simply refuse reenlistment on the basis of arguably mediocre performance can give rise to questionable results.  Finally, the Officer Grade Termination Act [OGDA] appears highly vulnerable to attack on Due Process grounds.

Here is a brief challenging the OGDA process fro mythical officer LTC XXX .  It can be applied to other administrative actions as well.



Question: Does the Officer Grade Determination Act  — which can reduce the value of  a pension — comport with essential fair play and minimal Due Process?   Citing the fact that this pension is a protected “property right,” LTC XXX respectfully places his concerns before the voting members.  Discussion must begin with a generalized analysis of the constitutional right of due process.

 1. Due Process — “the law of the land”

           The term “Due Process of law” as used in the Federal Constitution has been repeatedly declared the equivalent of the phrase “the law of the land,” as used in the Magna Carta and various state constitutions.

2. Overview: Procedural and Substantive Due Process

The concept of Due Process of law has a dual aspect, substantive and procedural.  Procedurally, the Due Process Clause of the Fourteenth Amendment demands that the process in a particular case follow an established and rational procedure.  Substantively, the Due Process Clause requires that the overall result be fair and consistent with a free, orderly, and law-abiding society.  See Harrah Independent School District v. Martin, 440 U.S. 194, 99 S. Ct. 1062, 59 L.Ed.2d 248 (1979).

Individuals in the military are entitled to the majority of civil liberties stated in the Bill of Rights, as incorporated through the Fourteenth Amendment, plus general protection against arbitrary, wrongful government action.[1]

Overall, there appear to be three minimum requirements for Due Process – despite variations in the various forums where the issue arises.  (1) A procedure must be established so that the complaining party whose property is to be taken can be heard.  (2) The determination under which the complainant is required to surrender property must be reasonable.  (3) The outcome must be free of arbitrary power.[2]

3.  Substantive Due Process in depth

The principle of “Substantive Due Process of Law” has its origin in England.  It began as a protection for individuals against arbitrary actions by the Crown.  In this country, the requirement is intended to act as a brake on governmental power – to secure the citizen against arbitrary depravation of rights relating to life, liberty, or property.  Vernon v. State, 245 Ala. 633, 10 So. 2d  388 (1944); Railway Mail Ass’n v. Corsi, 293 N.Y. 315, 56 N.E. 2d. 721 (1944).

Procedural Due Process requires the government to follow appropriate procedures when it seeks to deprive anyone of life, liberty, or property.  In contrast, substantive  Due Process prohibits certain government actions, regardless of the procedures used.

The concept of Due Process is reflected in a much quoted-Supreme Court decision three quarters of a century old:  “It is a rule as old as the law that no one shall be personally bound until he or she has had a day in court, by which is meant until he or she has been duly cited to appear and has been afforded an opportunity to be heard.” Synder v.Com. of Mass., 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).[3]

Elsewhere, Due Process has been defined as the inquiry into how life, liberty, or property is taken.  Due Process dictates that the aggrieved party has these rights:

  •  Notice of proceedings,
  • An opportunity to defend,
  • An impartial tribunal having jurisdiction of the cause, and
  • A decision consistent with essential fairness.

See Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed 2d 1307 (1960), reh’g denied, 364 U.S. 855, 81 S.Ct. 33, 5 L.Ed. 2d 79 (1960).

The Supreme Court pointed out in Hannah that Due Process embodies rules of fair play which — through the years — have been recognized in differing types of proceedings.  Whatever the forum, Due Process requires the government to act in a fair manner.  U.S. v. Salerino, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 140, 3L.Ed.2d 1377 (1959).

The precedents call for two separate inquiries in evaluating an alleged Due Process violation. (1) Did the plaintiff lose life, liberty or property? and (2) If so, did the plaintiff receive at least the minimal procedural protections warranted under the circumstances?  Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995).

4.  Factors to consider

The requirements of Due Process will vary with the type of proceeding.  Due Process in the administrative setting does not always require the stringent application of the judicial model.  Due Process is flexible.  It requires the protections which the particular situation demands.

The question of what constitutes fair play or “the law of the land” in particular situation depends on the need for both: [a] decent, fair dealing; and [b] minimizing the risk of error in decisionmaking.  Golbert v. Homar,  117, S.Ct. 1807, 138 L.Ed.2d 120 (1997); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1893).

5.  Substantive Due Process – basic requirements

A fundamental requirement of Due Process is an opportunity to be heard.  That requires notice and proceedings adequate to safeguard the right for which the constitutional protection is invoked.  Richards v. Jefferson County, Ala., 517 U.S. 793, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996).

It follows that – except in emergency situations – the government must provide a hearing before depriving an individual of a protected interest. U.S. v. James Daniel Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).

Judicially, Due Process precedents are often said to involve a two-stage analysis.  First, the Court must ask whether the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of “life, liberty, or property.” Second, if such rights are implicated, the question becomes what procedures suffice to constitute “Due Process of law.” Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed 2d 711(1977).

The United States Supreme Court looks to the nature of the interest at stake.  Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).   The grieving party must have more than an abstract interest and more than a unilateral expectation of protection.  In short, there must be a legitimate, objective claim of entitlement which the courts are willing to enforce.

6.  Overall, what is required?

“Due Process” requires that the government provide essential fair play, consistent with the rules, before making a decision.

In this vein, the precedents recognize higher values than speed, convenience, or efficiency.  U.S. Dept of Agriculture v. Marry, 413 U.S. 508, 93 S. Ct. 2832, 32 L. Ed. 2d 767 (1973).

How much Due Process protection is required?  It depends on the extent to which an individual will suffer grievous loss.  Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).  Not every minor loss visited upon a person by the government suffices to invoke the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977).

7.  Minimum Requirement # 1: Notice of hearing

An opportunity to appear before a competent and impartial tribunal upon proper notice is one of the essential elements of Due Process.  U.S. v. James Daniel Good Real Property, 510U.S. 43, 114S.Ct.492, 126 L. Ed. 2d 490 (1993).  The right to be heard is a bedrock constitutional requirement. Rogal v. American Broadcasting Companies, Inc., 74 F. 3d 40 (3rd Cir. 1996).

It violates Due Process for a judgment to be taken against one who was not a party to the action and had no realistic opportunity to be heard. Parkade Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L Ed. 2d. (1979).

8.  Minimum Requirement # 2: Meaningful opportunity to be heard

A litigant must be informed that a matter is pending so that he/she can choose whether to appear or default, to acquiesce or contest. Litzenberger v. U.S, 89 F. 3d 818 (Fed. Cir. 1996). The right to be heard prior to suffering a major loss is basic to our society. Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).

There must be a meaningful chance to be heard.  No convenience or expediency can erase that minimal requirement.  Endler v. Schutzbank, 68 Cal. 2d 162, 65 Cal. Rptr. 297, 436 P. 2d 297 (1968).

(a) Hearings on property rights

The right to a salary or pension has been called a property right.  It cannot be taken away without due process of law.  In regard to such property rights, absent truly extraordinary reasons, a citizen always has the right to a hearing to contest the forfeiture of property or money.  Outright seizure of property is not the only kind of deprivation which must be preceded by a hearing.  Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed 2d 556 (1973). Such right is secured by the Due Process Clause and implemented by Federal rules.  Degen v. U.S., 517 U.S. 820, 116 S. Ct. 1777, 135 L. Ed 2d 102 (1996).

Cost effectiveness (measured in time, effort, or expense of a hearing) cannot outweigh the constitutional right to said hearing prior to deprivation of property. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed 2d 556 (1972).  When it comes to doing justice, Due Process cannot be measured in minutes or hours; and it cannot be measured in dollars and cents.   Taylor v. Hayes, 418 U.S. 488 94 S. Ct. 2697, 41 L. Ed. 2d. 897 (1974).

(b) Examples of situations requiring hearing

Does the OGDA require greater hearing rights than is provided in the pertinent instruction?   LTC XXX suggests the answer is yes.   A good measuring rod can be found in legal precedents.

The requirement of a hearing in accordance with Due Process of law has been applied to a wide variety of proceedings, persons, and subjects:

  • Institutionalizing a child for mental health care.  Parham v. J. R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).
  • Discharging an employee from a government-created job.  Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct 2963, 41 L. Ed. 2d 935 (1974).
  • Depriving a citizen of a driver’s license and vehicle registration. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1186, 29 L. Ed. 2 90 (1970).
  • Ending public assistance payments.  Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed 2d 287 (1970).
  • Garnishing wages.  Sniadach v. Family Finance Corp of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed 2d 349 (1969).

(c)  Conditions and restrictions

The requirements of Due Process are not met where hearing conditions are so harsh and oppressive that they are tantamount to a denial of the right. St. Louis, IM & S. Ry Co. v Williams, 251 U.S. 63, 40 S. Ct. 71, 64 L. Ed. 139 (1919).

(d) Character and sufficiency

The hearing process must be appropriate.  Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) . More specifically, it must be as fair and as reasonable as practicable,  given the circumstances.  Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Butler v. State, 111 Miss. 40, 63 So. 2d 779 (1953); Link v. Wabash R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed 2d 734 (1962).

9. Minimum Requirement # 3: An appropriate level of evidentiary hearing is required

A full hearing is one in which ample opportunity is afforded to all parties to make a showing fairly adequate to establish the propriety of the step asked to be taken.

Due Process rarely demands full evidentiary hearings.  Whether the required hearing satisfies the Due Process Clause will depend on a balancing test.  The courts will consider the competing interests, the length or finality of deprivation, the likelihood of government error, and the magnitude of governmental interests involved.  Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982).  However, it must be an orderly proceeding, adapted to the nature of the case, in which the person affected has an opportunity to defend. George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S. Ct. 620, 77 L. Ed. 1265 (1933).

10.  Minimum Requirement # 4: Presence of grievant and  counsel is mandated

A party to a civil action is entitled to be present and to be represented by privately retained counsel at all stages.

The right of the party to be represented by counsel before the court is unquestioned.  The arbitrary refusal of a court to hear a party or counsel is a denial of Due Process.  See 75 Am. Jur. 2d Trial Sec. 226.

11.  Minimum Requirement # 5: Right to raise issues and defenses is crucial

Due Process requires that an affected party have the right to raise issues or set up defenses.  Blakeway v. Texas Business Investments Co., 12 Ariz. App. 390, 470 P.  2d 710 (Div. 1 1970): Butler v. State, 217 Miss. 40, 63 So. 2d 779 (1953).  A municipality’s policy of automatically suspending fire department employment applications of veterans not honorably discharged from the service denied applicants with a General Discharge basic Due Process. Applicants should have received an opportunity to demonstrate whether the reasons for a General Discharge had any relationship to the ability to be a firefighter.  West v. Sprayberry, 247 Ga. 306, 275 S.E. 2d 654 (1981).

The right to be heard must necessarily embody a right to file motions and pleadings so as to present claims and raise relevant issues.  Holt v. Virginia, 381 U.S. 131, 85 S. Ct. 1375, 14 L. Ed 2d 290 (1965).  A hearing which does not give the right to interpose reasonable and legitimate defenses cannot constitute Due Process of law.  Tomayako v. Thomas, 143 So. 2d 227 (Fla. Dist. Ct. App. 3d Dist. 1962).

12.  Minimum Requirement # 6: The applicant must have his “day in court” and given an appropriate opportunity to attend his hearing

Due Process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place or circumstance.  Generally, Due Process of law is afforded litigants if they have an opportunity to be heard at any time before a judgment has been entered.  Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088(1950).

The required hearing is afforded where the judgment or order affecting liberty or property — although not itself preceded by a hearing — is addressed in proceedings where there is the right to be heard.  Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L. Ed 2d 18 (1976); C v. Superior Court for Sacramento County, 29 Cal App. 3d 909, 106 Cal. Rptr. 123 (3d Dist. 1973).

Exceptions are allowed, but only in extraordinary situations when some valid governmental interest is at stake, justifying postponing the hearing until after the event.  U.S. v, James Daniel Good Real Property, 510 U.S. 43, 114 S. Ct. 492, 126 L. Ed 2d 490 (1993).

13.  Minimum Requirement # 7:  The applicant is guaranteed  various protections with regard to the taking of evidence.

In an adjudicative context, Due Process entitles a person to: (1) fact finding based on the record produced, (2) before a decision-maker  (3) available to the litigants (4) with an individualized determination of his or her interests.   Due Process also requires that the decision maker actually consider the evidence and the arguments presented.  Brock v. Roadway Exp., Inc., 481 U.S. 252, 107 S. Ct. 1740, 95L.Ed.2d239(1987).[4]

Summary: measured by court precedent, the OGDA fails to meet minimal standards of procedural and substantive due process.

The applicant recognizes that OGDA voting members — whatever their view of the argument above — will view constitutionality of the process as a matter for the Federal courts.   Nevertheless, an impartial reviewer must be troubled by the lack of essential fair play.   A young airman separated from the service with a UOTHC Discharge would have far greater due process rights,

Through the last 50 years, administrative law has dictated a series of protections designed to ensure that a given process is fair to both the individual and the establishment.  See Lane, “Evidence and the Administrative Discharge Board,” 55 Military Law Review 95, 100 (Winter 1972); ICC v. Baird, 194 U.S. 25 (1964).

In contrast, OGDA detractors describe this process as an impermissible “backroom” proceeding:

  • What standards are to be applied?
  • How is the initial decision made?
  • Where is the verbatim record of the hearing?
  • Where is any cross-examination?
  • Where is the chance for the applicant to testify under oath?
  • What litmus is followed for the evidentiary standard of proof — substantial evidence, preponderance, or clear and convincing?
  • Who makes the final decision and by what standards?

These and numerous other questions can only be answered with a shrug of the shoulders.

The process is all the more problematic because of vastly differing implementations in different services.

[1] Substantive Due Process (fair play) is a Norman concept.  It is required regardless of the established procedures used.  This is to say, the system must BE fair, and not merely appear to be fair.

 [2] The Supreme Court has noted that wise public policy may require even higher standards than those minimally tolerated under the Constitution.  Lassiter v. Department of Social Services of Durham County, N.C., 453 U.S. 18, 101 S.Ct. 2153, 68 LEd. 2d. 640 (1981).

[3] The legislature, as well as the judiciary, is forbidden to act arbitrarily in contravention of fundamental principles of liberty and justice.  Palko v. State of Conn., 302 U.S. 319, 58S.Ct. 149, 82 L.Ed 288 (1937).

[4] An opportunity to submit evidence to rebut charges or adverse claims and testimony is an essential requirement of a full and full hearing. Due process requires the hearing of evidence from both sides, a comparison of the merits of the evidence, a conclusion from the evidence as to where the truth lies, the application of the appropriate laws to the facts found, and the rendition of judgment accordingly.  LeSirange v. City of Berkeley, 210 Cal. App. 2d 313, 26 Cal. Rptr. 550 (1st Dist. 1962).


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