Analyzing the tension between military force reductions and the Constitution: protecting an officer's property interest in continued employment.

Author:Flynn-Brown, Joshua

    In 2011, the unemployment rate for military veterans discharged between the years 2001 and 2011 stood at 12.1%. (1) The jobless rate for all veterans stood at 8.3%. (2) Meanwhile, the overall unemployment rate hovered at 8.8%. (3) Between the U.S. government's current budgetary tailspin and the ongoing drawdown with respect to the wars in Iraq and Afghanistan, it is inevitable that service members will feel the impact of economic challenges. Nevertheless, this impact becomes even more dramatic when analyzing the Department of Defense's (DOD) force-shaping measures in 2011 because these force reductions are responsible for discharging tens of thousands of service members. (4)

    Such deep military cuts present a unique opportunity to legally dissect the military's employment culture. Can the military fire service members at-will even when they are on the eve of retirement? Do constitutionally protected property rights attach, and if so, when? Can a legislative remedy protect officers? (5) These are some of the questions this Article addresses.

    Generally speaking, there is an assumption that military personnel can be fired at-will simply because they are in the military. For decades, however, the DOD, in conjunction with the support of Congress, has recognized a career expectation in continued employment, specifically within the officer ranks. For instance, in support of the Defense Officer Personnel Management Act (DOPMA), (6) signed into law in 1980, the House of Representatives openly declared that an officer, "on attaining permanent O-4 grade, has a career expectation of 20 years of service. At the completion of 20 years of service he is eligible for immediate retirement." (7) Thus, Congress--the lone body that has plenary constitutional power to regulate the military--expressed a belief that officers have a career expectation in continued employment once a service member reaches the grade of O-4. (8) This is clear evidence that members of Congress intended to limit the application of the "up or out" system as applied to officers. (9)

    The career expectation in continued employment is all the more clear when analyzing the rules that the DOD has promulgated under the authority of DOPMA to protect O-4s not promoted to O-5. For example, when an O-4 is not promoted to the next grade, the officer is subjected to a selective continuation board. (10) This board's purpose is to continue officers on active duty even when not promoted. Such boards illustrate that the military's promotion system is not an absolute "up or out." More importantly, the DOD rule that governs the continuation process, Instruction Number 1320.08 (the Instruction), states that "[a] commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge ... shall normally be selected for continuation if the officer will qualify for retirement ... within 6 years of the date of continuation." (11) The 2007 version of the Instruction, applied during the historic 2011 reduction-in-forces program, has the force of law. (12)

    Irrespective of the 2007 version of the Instruction and Congress's intent, force reductions in 2011 undercut the career expectation in continued employment for the first time in thirty years. (13) These actions suggest an ugly prioritization of economic concerns over troop welfare. To use the Air Force as a specific example, in one month the Air Force decided to involuntarily "separate"--or in other words, fire--157 o-4s who were not promoted to O-5. (14) These 157 O-4s will never receive retirement after more than fourteen years in service--contrary to the 2007 version of the Instruction and the intent of Congress--because the DOD refused to comply with the mandate that officers within six years of retirement be continued. (15) In April 2012, a few months after these terminations, the DOD conveniently changed the Instruction to conform to the mass firings, and attempted to give cover to service branches that had terminated qualified officers. (16)

    This Article examines whether federal statutes, DOD regulations, and military practices and procedures have created a constitutionally protected property right in continued employment for officers in the context of a force-reduction policy. In addition, this Article analyzes the tension between the property interest in continued employment and the historic force reductions the DOD implemented in 2011, and continued through 2012. This Article concludes that, in some instances, service members have a vested, constitutionally protected property interest in continued employment.


    Case law illustrates that a property interest can exist without a clear contractual provision granting the property right. (17) The Supreme Court has noted that existing rules or understandings that stem from independent sources, such as state law, can create and define the dimensions of property rights. (18) These rules or understandings secure certain benefits and support claims of entitlement to those benefits. (19) Such rules or understandings can arise both from words and conduct in light of surrounding circumstances, (20) and in the absence of a contractual provision. (21)

    Perry v. Sindermann is the seminal case in which the Supreme Court indicated that a property right can arise from mutual understandings and rules rather than an explicit contractual right. (22) In Perry, the respondent was an untenured junior college professor who did not have his contract renewed. The college professor relied upon the college's official Faculty Guide to prove that he had a legitimate reliance upon his continued employment because the Guide said that professors who were under contract for at least seven years would have their employment continued. (23) Notably, the rule in Perry is quite similar to the DOD rules that mandate continuation if personnel are within six years of retirement; or in other words, if personnel have served at least fourteen years. (24)

    The same day that Perry was decided, the Court also decided Board of Regents v. Roth (25) Just as in Perry, this case involved the issue of whether a reliance interest in continued employment can exist without tenure or a formal contractual provision. (26) The Court made clear that property interests are subject to procedural due process and are not limited by a few rigid, technical forms. (27) On the contrary, property denotes a broad range of interests that are secured by existing rules or understandings. (28) These rules or understandings can be explicit guarantees such as an employer's handbook, or implied guarantees such as words or conduct over the course of a number of years. (29) Thus, as defined by the Supreme Court, rules or understandings need not be explicit contractual guarantees. (30)

    The factual setting in Perry is similar to the circumstances military personnel were subjected to during the 2011 force reductions. For example, some of the officers terminated were Reserve Officer Training Corps (ROTC) graduates that arguably had an explicit guarantee of continued employment upon attaining the rank of Major. (31) Those that were not ROTC graduates were still subject to explicit and implicit rules and understandings, leading them to reasonably believe that they had a constitutionally protected property interest in continued employment. (32) Moreover, the language in the Faculty Guide in Perry pales in comparison to the clarity of the 2007 Instruction that these service members are subjected to, which clearly indicates that O-4s would be continued if they were within six years of retirement. (33) The language is stronger and more forceful than the college's Faculty Guide because the 2007 Instruction explicitly states that officers shall be continued. Thus, if the Court in Perry determined the baseline for a property interest to be existing rules or understandings in a school's Faculty Guide, the officers' case is even more compelling because they can point to specific DOD rules, the legislative history of DOPMA, and a pattern of conduct over decades, which, taken together, amount to a wealth of evidence that the respondent in Perry did not have. (34) If the Supreme Court found that a constitutionally protected property right based on a reliance interest in continued employment may have existed in Perry, it should reach a similar conclusion in the present matter involving the termination of officers. (35)

    Finally, a property right in continued employment is further evidenced by looking at how some military branches are handling force reductions. For example, the United States Army operates under a clear set of rules for determining continuation. First, by statute, "[Captains or Majors] must be selected for continuation by a board convened under the provisions of 10 U.S.C. 611 to be continued on active duty after a second failure of selection for promotion." (36) Second, "DOD policy requires that all active Army [Majors] within six years of retirement eligibility be continued." (37) Third, "the board must continue all [Majors] who are twice nonselected and within 6 years of retirement eligibility." Thus, when considering United States Army legal memoranda, DOD rules, the legislative history of DOPMA, and the thirty-year pattern of conduct in conjunction with the holdings of Perry and Roth, it becomes apparent that some officers (especially O-4s) in 2011 had a constitutionally protected property interest in continued employment. Because a constitutionally protected property interest existed, the DOD violated that interest by terminating O-4s who qualified for continued employment.

    Although it appears that a property interest in officers' continued employment was created, the question becomes whether circuit courts would apply the holdings of Perry and Roth in a...

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