An officer stumbles badly in his/her military career.  The case is forwarded to a service administrative reduction board.  The task there is to determine whether the officer served satisfactorily in the present grade or should be reduced to some lesser, honorably-held grade.

 

Military implementation of this the Officer Grade Determination Act  process  [OGDA]  reveals a dismal and troubling lack of essential fairness.  OGDA detractors describe it as an impermissible  “backroom” proceeding, utterly failing to provide minimal Due Process.

 

How bad is service implementation under such directives as Air Force Instruction  36-3203 or  Army AR 15-80?  Bad!

 

Consider – officers undergoing the process are denied:

 

 

• Chance to be heard
• Right of confrontation
• Right to a lawyer
• Impartial tribunal
• Right to raise issues and defenses
• Right to testify under oath
• Right to call witnesses
• Right to cross-examine adverse witnesses
• Fair play regarding evidence – the right to review and contest the evidence
• Role of mitigating factors such as war service or a distinguished record in the contested grade
• A decisional document, essentially verbatim, containing written findings of fact and reasons for the decision
• Initial determination measured by what standard — substantial evidence, clear and convincing, preponderance?
• Designation of is the final decisionmaker by name and what standard applies there?

 

The precedents generate an impressive case for the discredited officer: A military pension [retirement at an earned grade] is a protected property right.  And the OGDA — which radically reduces the value of a military pension (perhaps by half a million dollars) — fails to achieve Constitutional Due Process.  

 

Determining whether an applicant receives fair play under the OGDA begins with an in-depth Constitutional analysis of Due Process.  Then, the OGDA can be assessed to see whether it comports with those Due Process standards.

 

 Part I – a survey of Due Process requirements – begins below.

 

1. Due Process — “the Law of the Land”

Outline.  The term “Due Process of law” in the Constitution has been repeatedly compared to the phrase “the law of the land,” created in the 13^th century Magna Carta and advanced in U.S. state and federal constitutions.   It means simply that the government must operate in accordance with the law.  See Peter Strauss, “Due Process of Law,” online at cornell.eduwex/ due process.

The Constitutional Due Process clause ensures that — before depriving a citizen of life, liberty or property — the government must employ fair procedures.   Yet as will be seen in the next section, it is not enough for the government merely to follow existing laws or regulations [procedural Due Process].  Beyond that, citizens are also entitled to fundamental fair dealing, even beyond what any applicable regulation/ law provides  [substantive Due Process].

Military Examples.  A couple of military examples might clarify the difference between the two types of Due Process.

• Suppose Captain Dwight Moody, a judge advocate, is up for major; he is nonselected. Applicable regulations guarantee at least one senior judge advocate on his voting panel.  However, somebody erred, and Moody’s panel does not meet that requirement.  Moody has been denied procedural Due Process – his “right” to the senior JAG, as required by Air Force instruction.  Here is a clear violation of procedural Due Process; the AFBCMR will almost surely award him a new promotion board.

 

• In contrast, suppose Lt Col Dwayne Wright is up for O-6. He learns that his promotion board included a general officer fiercely antagonistic to the Prince Hall Masonic Lodge.  Wright is a member of that Lodge, and his membership was known to the voting members, including the biased general.  Wright now asserts that he was deprived of substantive Due Process.  True enough, there is nothing in promotion board guidance addressing Masonic lodges.  But fundamental fair play dictates that this was unwarranted discrimination.  Wright almost undoubtedly will win redress at the AFBCMR.

Early case law.  Hurtado v. California, 110 U.S. 516 (1884), is generally considered the embryonic Supreme Court ruling illuminating  Due Process.   See Israel, “Criminal Procedure: the Supreme Court’s Search for Interpretive Guidelines,” 45 St. Louis U. L.J. 303, 306 (2001).  See also Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899).

How can anyone know what fair process is “due?”  The law is murky.  However, the Supreme Court has developed some reasonably-dependable precedents throughout the years.  Strauss, supra.   They will be developed – and applied – later in this brief.

2. Digging Deeper: Twin Concepts – Procedural and Substantive Due Process.  The dual substantive and procedural aspects of Due Process can now be analyzed more deeply.

 

Overview.  The Due Process Clause of the Fourteenth Amendment demands that — before depriving an individual of life, liberty, or property — the government must follow fair procedures.[1]   To reprise:

 

• Procedurally, the process in a particular case must adhere to an established, rational framework, typically set forth in an ordinance, rule, or regulation.

 

• Substantively, the overall result must be fair and consistent with a free, orderly, and law-abiding society. See Harrah Independent School District v. Martin, 440 U.S. 194 (1979); Enquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008).

 

Substantive Due Process Boundaries.  There are limits on substantive Due Process safeguards; not every “hangnail” is entitled to Constitutional redress.  The crux is whether rights have been attacked which are so rooted in the precedents and conscience of Americans that they are viewed as fundamental.  Michael H. v. Gerald D, 491 U. S. 110, 112 (1989).  As the Supreme Court explained in Perry v. Sindermann, 408 U.S. 593, 601 (1972):

For at least a quarter-century, this Court has made clear that, even though a person has no “right” to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest….

Property interests “take many forms,” as the Supreme Court noted in Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972); and they can arise in diverse settings.   When individuals  allege unfair depravation, three minimum Due Process requirements come into play:

 

• The complaining party must have a forum where the matter can be adjudicated.

 

• The determination to commandeer the property must be reasonable, fair, and free of gross error.

 

• The outcome must not be arbitrary.[2]

 

See Carey v. Piphus, 435 U.S. 247, 259 (1978).

 

Military application.  Unless military necessity mandates to the contrary, military members are entitled to civil liberties stated in the Bill of Rights, as incorporated through the Fourteenth Amendment, as well as general protection against arbitrary, wrongful government action.[3]  The highest military court has confirmed the general applicability of the Bill of Rights to those serving in uniform.  See United States v. Easton, 71 M. J. 168, 174-175 (CAAF 2012). See also Weiss v. United States, 510 U.S. 163, 194 (1994) (Ginsburg, J., concurring): “men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service.”

 

NEXT TIME: OGDA – Substantive and Procedural Due Process in Depth

 

 [1]      Judicial reviews typically examine whether there has been deprivation of a fundamental right or whether a suspect classification exists.  United States v. Oreto, 37 F.3d 739 (1^st Cir. 1994).

 

[2]    The Supreme Court has noted that wise public policy may require even higher standards than those minimally acceptable under the Constitution.  Lassiter v. Department of Social Services of Durham County, N.C., 453 U.S. 18 (1981); Mathews v. Eldridge, 424 U.S. 319 (1976); see also Broom v Derrick and South Carolina. Dept. of Social Services. __ S.Car. __ Opinion 27251 (2013).

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[3]    Substantive Due Process (fair play) is a Norman concept.  It is an overarching requirement, regardless of established procedures.  In simple terms, the system must BE fair, and not merely appear to be fair.  See Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).  See generally Justia, “The Requirements of Due Process, http://law.justia.com/constitution/us amendment-14 36/-procedural-due-process-civil.html