Administrative Due Process Requirements in the Revocation of On-Post Privileges

• Author: Major J. Neill Wilkerson
• Pages: 04

I. INTRODUCTION

The revocation of some on-post privileges' by the installation2 commander3 involvesimportant interests of individualswhich, under recent court decisions, may be protected by the due process clause of the fifth amendment to the United States Constitution.' The status of these interests may require that certain procedural safeguards be afforded the beneficiary of post services before his ability to obtain such services may be affected. In light of recent federal court decisions dealing with procedural due process, and the large number of legal suits filed against the Army and its ex.

This article IS an adaptation of a them presented toTheSudgeAdvacateGsners~s School. U S Amy, Charloftesi~lle.Vlrglnia, whdethe authorwas amemberofthe Twentythird judge Advocate Officer Adranced Class. The opm~ons and con. clumons expressed are rhore of the author and do not necessarily representihe blew8 of The Judge Advocate General s School or eny other go\~emmentd agency'*JAGC C

A A ,

1960, Tyler Jr Ca1lege.B B A 1963.LL B 1968. Universifj ofTexas hlemberofthe State Bar of Teras, theC S Cavrtof~\lllitaryAppealsandtheU S SupremeCovrt

I The term ''prw~legeo"~sused throughout this article to include all benafltaextended to persons whether by enf~flemeni

01groiis and uhether they are denammated

"nght,'' "benefit' 01 "privilege " While "ptiv~lege"includes all benefits. this arrde

*ill deal speaficall~with only those perqurtea delineated in the text immedmtely

preceding faatnote 11 The ranauo rems m e used lnterchangeshly at rimes Because thls article LS pnmanly c a m already vested benefits. discusam ofthebayand the ~ m p e of this article'Theterm"~nsrallation' is definedmArmyReg.Xo 210-10,para 1-312iAug 1975) Ihereinafrer cited a8 AR 210-101, and includes depots. arsenals, ammunltmn plants. hospitals forts. esmpa and %fafmn%

Serolsa ArmyRes No 310-25 pars S(l6Sept

1976) [heremafter elted a8 4R 310-261

The commander of an installamn 1s generally the senm regularls asslsned officer an themstallanan, unless he is lnellgible SPP Amy Reg S o 600-20 para 3.1(30 Map 19ij)[heremaftercned a8 AR 600.201 This idnot alwayrthecabe butinthis article the concern IS always with the installation commander, rhomever he mag be Khen the term "commsnder"Isvsed 11 refelsrorheInatallat~oneommsnderas opposed to a troop commandera "No person,dhall be depmed of hie Ihberrr. or properts wnhoutdueproeesd of la%, L! S COUST amend. V

S Arm) Millfary Judge,ThlrdSudlclalClrculr,FartHood,Texaa

ecutives at every level,5 it is appropriate to reevaluate the present regulatory procedures' employed by a commander when he seeks to suspend or revoke various privileges accorded persons visiting, working or residing on B military reservation.

A commander has broad authority' to revoke or othemiae diminish ompost privileges of servicemenB and their dependents for misconduct or abuse of the particular privilege. This extensive authority flows from the post commander's responsibility to ad. minister the military instal1ation.e This authonty is in many respects comparable to the police powers exercised by state and local governments.

The purpose of this article is to establish a methodology for evaluating revocation procedures. This scheme will assist the judge advocate10 in protecting the commander from inadvertently

Teleohone cmnyers~tion virh Colonel iv~lliam H Neinart Chief L~nranon

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sion Office of The Judge Advocate General of the Arm? Apnl 8 19:: The Arm) has been L~YOI\ed in some 1.126 cases ~n c~iiliancourts betueeadsnuari 19'0 and December 19'1 The Armr's Lineation Dnision has emended from 14 to 21 BC

otherwise alreadi rested in the bene

j

See grnarofli AR 600 20 6 A

mander's dunes Thaseresponr of abandoned properti maint fmope for combat IO name iuet cited in note $umo

apprupnare Ln gome cases

violating the limitations imposed on him by the due process clause of the fifth amendment. Furnishing this protection as part of his preventive law program, the judge advocatemay help reduce poten. tial sources of litigation against his commander.

This article will examine the concept of due process, by considering first, how to determimifaprivilegeorrightisprotected by the constitutional guarantee, and if so protected, how to ascertain what procedures are necessary to comply with the Constitution. A capsulated discussion of the various judicially recognized due process elements or safeguards will be followed by a demonstration of how the opposing interests oftheGovernment and the individual are balanced to determine the proper mix of safeguards in a given

The myriad of rights, benefits, andprivileges that fall under the commander's supervision precludes individual treatment of each. Only the most frequently involved privileges will be addressed in this article, but the methodology proposed is equally applicable with respect to other on.post benefits. The areas specifically covered are the post driving privilege, the post housing privilege, the commissary and past exchange shopping privileges, and a con. solidated category which for convenience is denominated the "recreational/entertainment" privilege." Finally, recornmen. dations are made to correct noted due process deficiencies in the current regulations.

case.

11. DUE PROCESS IN THE CIVILIAN SECTOR The fifth amendment to theunited States Constitution provides that "no person shall . . . be deprived of life, liberty, or property, without dueprocess of law. . . ."'2By the terms oftheclause, only life, liberty andpropertyinterestsareprotected.Priortotaking any

action which will deprive a person of one of the protected interests, the federal g~vemment'~must afford the party concerned certain procedural safeguards" before the adverse action may be deemed

I See Section 111 F infra for examples of such programs ' U S COUBT amend Y' The fifth amendment protects ~itnensfrom depm sfions by the federal govern ment, the fourteenth. from dare actm Because the commander 18 an agent afthe federal gwernment the fifth amendment applies to his actions Still, eoun decisions under the due pmeess dame of the founeenrh amendment axe equally ~n.itiuctive m the area becauae the clauses are Idanneal m pert~nenf part Thus the Supreme Covn opmmns regarding due process requmments mpased on state ae tions must be studied die, especially m those cases dealing with activities a"a1ogoYs to federal actmns.

I* Xonce of the proposed action and an oppartumfi tarebvtadrerseeildence areex. ample8 of evch safegverdr See Section I1 B inira far discusion of the elements of due process

constitutionally permissible. Examination of the clause indicates that there are two issues that must be resolved in situations in.volving governmental action against an individual. First, it must be determined whether or not the individual's interest is one that 1s

protected: whether itfallswithin theambit oflife, liberty, orproperty. If not, the fifth amendment's requirement of due process is not applicable, although the regulatory process may prescribe certain procedures. If the interest in question is constitutionally protected, then the issue becomes what type procedures and procedural safeguards are required to meet the constitutional limitatmns.'b

The succinct characterization of due process by the second Justice Harlan as "fundamental fairness"'6 is a starting point in any discussion of due process. The concept is of ancient origin;--still in the wordsofMr. JusticeFrankfurter, it is "theleast confined to history and themost absorptiveofpowerfulsacialstandardsofaprogressive society."-B That opinion is indicative of the greatflexibility which characterizes due process. That flexible quality wa6 emphasized by thecourtin Cafeteria &Restaurant Workers Gnmn

The ,,e" nature aidue pmess negates m y canceptniinflexibleprocedurea um\eisally applicable to eiery imaginable ~iiuafien

Due pmceis unlikeromrlegalrules. LQ not atechnical ~oncepiion unh a Bx-ed conrent unrelated IO time. place and circumrtaneer

Mr. Justice Cardozo stated that the very essence of due process is "protection from arbitrary actmns."21 But, even though thereis no fixed definition of what constitutes due process, the courts are continually called upon to delineate when due proces6 requires the imposition of procedural safeguards to avoid arbitrary action Courts first must determine the precise nature of the interests of both the Government and of the individuaI.22 Then the court weighs the con-

U. M C E ~ ~ O ~ ' ~

reGorr, Loper 115L-9 5fi5119iil BoardofRegenrsi Rorh 40CUS 1973,uncan 1 Lauii~ana 391 L- S 146 156 8- 119681 $Harlan J dissentinhere 1s evidence of the concept recorded in the Book of St John ~n the BIble A upoiPhanreergslhered and plorfedrohaveJesusoiS~2arerharreeted basedon their rumor-engendered fear of him Knademur m e of that group of ruleis chasnred them saying, ''According ra our Ian we cannot coheanng him and finding out uhaf he has done ' Sr Janne Ye- Teetament ~n Today's English Vern1s 361 U S 12 20 115561

L \lcGrsrh 311 V 5 123

Pub Unl Comm'n, 301 U S 292 1133;)> Cafeteria & Retaurant Narkers Umon % McElra) 36- L S ZRfi 895 ,19511 110

- Ohla Bell Tel Ca ,

flicting interests against each other. It is this balancing of governmental interests against those of the individual that iscriticaP and results in the determination of what safeguards or elements of due process are required in a given case. Thus a four step processisused by courts toresolvechallenges togovernmental action; they consider 1. What interests are protected by due process; 2. How is the protection achieved; 3. What part does the governmental interest play; and 4. By what means are the resultant safeguards determined for each case?

A. WHAT INTERESTS ARE PROTECTEDBY DUE PROCESS?

When dealing with the intereste that are protected by the Con stitution, the due process clause speaks of "life," "liberty" and "property."2' Thus when seeking to ascertain what constitutional requirements, if any...