Discharge for the Good of the Service. An Historical, Administrative and Judimal Potpourri

• Author: Lieutenant Colonel Donald W. Hansen
• Pages: 03

1. INTRODUCTION

   Private First Class Peter Poe robbed a taxicab driver on the Fort Wilderness Military Reservation after an argument over the amount of the fare. He was subsequently arrested and placed in pretrial confinement after which his unit commander preferred charges against him for robbery' under the Uniform Code of Military Jusrrce.1 Following consultation with his appointed defense counsel, Private Poe elected to request discharge from the Army far the good of the service' rather than stand trial. The case was processed to the Commanding General of Fort Wilderness who accepted the offer to resign. Fourteen days after the incident, Private Poe was given an Undesirable Discharge Certificate' and was released from the service with no further cnminal action having been taken against him.

   d in OCaliahan v Pirker. 395 US 258. 272 on IS not 30 c h i . rubPlanrial we~lion 15 to

   MILITARY L.AB REVIE!+ [Vol. 74

   The case of Private Poe is not uncommon in the Armed Forces. In the United States Army, for example, use of the resignation procedure by those charged with offenses increased steadily from Its inception in 1966 until fiscal year 1972 when over 25,000 soldiers initiated such requests for discharge.'

   Fortunately, this trend has been reversed In subsequent vears0 but u'hether the reduction in the number of soldiers seeking this form of administrative release from the senice will continue may depend on the extent to which the Army is able to attract more highly motivated personnel and eliminate those factors and which contribute to service dissatisfaction and the commission of court-martial offenses.' If, as a result of the termination of involvement in the Vietnam War and the full implementation of the Modern Volunteer Army Program, a substantial change In the attitude of the service member can be achieved, It may be increasingly against the interests of the individual soldier to resort to this expedient. Until that lime,

   however, resignations for the good of the service will be of

   interest to both the civilian community and the Armed Forces.8

   This article will examine the provisions of Chapter 10, Army Regulation 635-200, which set forth the manner in which an individual may seek to maid the complete adjudicatory processes of the Uniform Code o/ M h o r y Justice. The focus of the analysis will be to determine whether the procedures are administrative or judicial in nature, with particular emphasis on the manner in which the regulatory provisions are put into practice by those charged with the responsibility of administer-ing the system. The data and comments reflecting the manner in which the request for discharge procedure is administered were developed from a survey conducted by the author in September 1972: of the practices then being followed in 39 general caurt-mart,aljurisdictions.

   While the reasons motivating the soldier to resort to the process today may be different than many of those which provoked requests in 1972, the specific reasons motivating soldiers to utilize the procedure are only relevant to the initial decision to attempt to avoid trial. Elimination oi the anti-war irritant as a reason ior entering the system does not detract from the analysis oi its operation, for as long as the number of soldiers seeking voluntary diversion from the cnminal process remains high little change can be expected which would reduce the manner in which those numbers are handled. It is the opinicn of this author that a study and analysis of the managerial or Judicial aspects of the resignation process can be most productive when the data reflect the system operating at a high volume and under maximum stress as it was in 1971-1972, for it is at that time that errors and weakness in its operation are most apt to surface. To be sure, changes in the authorizing regulation may dictate different procedures or requirements which would

   'See * E . ~iccrpli of an addrail bi Majar General George S Prugh The Judge hdiacmle Genera8 of rhc Am). 10 the Arm) Commandor's Conlcrancc No\ 30 1971 iepoiird m THE

   Aavr L ~ a i r a ,

   Jan 1972 ill 4, *here he catirionrd the commanders to ''[~]>LF nn ~rpe~ialliuatchful eye ID thr uses af rhe Chapter 10 Before ~ccepung Ihc Chapter 10 aflri and impoimp mn undcnrahk discharge on the olfmdrr, the

   ellclt open ended rerponxs he 8ppmpmts calceary of ~ C I L indiiidual commsntr

   prclcd mr an lndlcauan thar other? ellhrr agreed or disagreed ulrh rhr srprrixd ,leu Ccmmsnlrtromlhliiunrrar~ciledai 'SIAResp I l l l c

   affect analysis of the previous practice; however. those changes will be identified in the appropriate section. 11. THE FRAME OF REFERENCE'O A. THE .VEED FOR A'VALYSIS

   The administration of the military criminal lau system has traditionally been an object of criticism by some segments of the civilian cammunity.ll It is highly likely that the utilmtion of the request far discharge procedure, both during the Vietnam era and thereafter, will be drawn within that circle of suspicion and distrust if for no other reason than that the procedures came into prominence during an exceptionally divisive time in our national history. Whether the criticism of military practices and procedures i s based upon a lack of understanding of ihe substantially greater rights of the service member as compared to his civilian counterpart," or an inability rr unwillingness to accept the essential difference in the goals to be semd by military and civilian penal law,lj it is clear that the military

   lawyer must be prepared to analyze military procedures in terms that will be meaningful in the civilian community.

   The direction this analysis will take largely depends upon the view of the purpose to be served by the criminal justice system, and those diversionary practices associated with it. 'For example, if the system is tested against a single concern-ffciency in processing the guilty-the questions that arise are likely to be somewhat different than if another concern-the extent to which regular procedures and adversary process arc employed-1s the frame of inquiry.'" '4 The view of the purpose to be served by the system is important because the criticism to be ansu'ered wil! persist as long as ths CrAics "base their arguments on different expectations and standards of evaluation."" This does not, of course, mean that the critics' view of the desired result will necessarily be changed: however, it does provide a common meeting ground upon which discussions and analysis can take place. Perhaps equally important is that any significant shift in eipectations of necessity reqiiires that society provide a sufficient number of professional military personnel of the quality required to support the model having the basic values it deems most desirable.

   Professor Packer suggests the creation of madcls by examin-ing both the regulatory provisions and the z&nner in which they areput into practice.lbOncecreated, the modelsafford a conxsmt way to hit sbuif thc o~nlion o i I pr- who= day-today iunclmins mwlvcs a comt~ni ="a of minw adimtrnenti b-t m n Ihr compting dcmsnds of two Y ~ Y C iyitcrm and uhou mrrmuvi furm likewe I O V ~ V C I a L ~ C *

   of rnalutionc b t r ~ rornprtiop slPlm(.''

   This article will attempt to note the nature of the value choices which have developed in the regulatory provisions of Amy Regulation 635-200 as well as those choices which have been made in day-today operations, and wmpare them with analogousactions inmilitary andciviliancriminalprocesses.

   Model building isnot without its pitfalls.

   There 1% P dit in an cntcrpriv of thm son t b t u Iatsnl m m y arumpr ID p01anzc it 11, simply, rhal ~IYLIare Io0 mrieu to b p i ~ d down (0 ycs.odr. no answcm Thr mcdrli arc diimniom of rrallly and, I ~ C C

   Lhcy PIC noma-

   Gmd 01 Bad.

   The attempt here IS p m n l y 10 clanfy the term, of d-non by twolstmp ihevivmpiioni thaL undcrlic cornprimp poiicyclnrn."

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   ADUINIITLAIIDN 28 [1%9) [krsinafki nEd

   RBYINOTON]

   The application ai any particular model to the resignation for the good of the service IS particularly difficult. The process involves a number of personnel wth varying news an the function of the system of criminal justice. From the accused, who desires to escape immediate punishment, Through the chain oi command whose contact with the individual decreases and whose desire to support subordinates increases with the distance from the offender, to the staff judge advocate and the auurovme authoritv u,ho are concerned with discloline and

   I/ ~

   justice within the command as a whole, different value judgments mag be operating I9

   B MODELS OF THE CRI.UIAVAL PROCESP 1. The Adminisiraiive Model." Th, Administrative Model

   YICWZ eniorcement ai the law as the basic protector of social freedom Disrespect for the law occasioned by the delay involved in screening suspects, bringing them to trial, and disposing of offenders after adludication ol guilt lowen the preventive impact oi punishment with a corresponding failure to suppress cnme. The ne! result 1s that the law fails to protect the law-abiding members of the society.

   In order to achieve the goal of effective law enforcement. the Administrative Model depends on a high state oi efficiency in which large numbers of cases can be quickly disposed of with minimum of effort and resources. Professor Packer aptly compares this madel to "an assembly-line conveyor belt i?

   The model looks to the preliminary determination oi factual guilt made by the arresting officer and prosecuting attorney ai so reliable that when "reduced to its barest essentials and operating a! its most successful pitch, it offers two possibilities: ng one inodrl 10 the ued A I 8 (inat c ' Id

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