Evidence and the Administrative Discharge Board

• Author: By Captain Jack Finney Lane, Jr.
• Pages: 03

Increasing controversy has surrounded the military ad-ministrative dischwge procedures. Opponents of the present system ckim that a servioemcn can be stigmatized for life a6 the result of a pmcedumlly unfair hearing. The author ezamines these procedurd and evidentiary cha2-lenges in light of presently proposed legdative reform. He concludes that changes w e necessary to insure detemh%tione fair to both the military and the individual servzceman.

I. INTRODUCTION

The power to discharge enlisted men has generally been left to the discretion of the Secretary of the service concerned, based on a broad authority granted by Congress.' Thus, the law of administrative discharge is found in seeretarial regulations limited only by a Department of Defense directive which prescribes uniform minimum service guidelines.% The system came under fire when Chief Judge Robert E. Quinn of the Court of Military Appeals stated that he was aware of instances in which the administrative discharge system was being used by the services to circumvent the judicial safeguards of the Uniform

*This article WBB adapted from B thesis presented to The Judge Advocate General's School, U.S. Army, Charlotteaville, Virginia, whiie the author we.1a member of the Nineteenth Advanced Course. The opinion8 and eondu~ions presented herein m e those of tho author and do not necessarily reprerant the view of The Judge Advocate General's School OT any governmental agency.

* * J A W U.S. Arm?; Inatruetor, Civil Law Division, The Judge Advocate General's Sehool. B.A.. 1963, University of the South. Sewanee, Tenneaaee; LL.B., 1966, University of Virginia: member of the bars of the Supreme Court of Appeals of Virginis. U.S. Diatrict Court, Weitern District of Virplnis, United States Court of Military Appeaia, Court of Military Re-view, and the United Statea Supreme Court.

'SSP 10 U.S.C. B 1169 ISupp. IV, 1969); Umwrasi Military Training Q

Service Act. 8 (Ibj, 50 U.S.C. App. I 454lb) (19M1.

'The Current regulator? proviiiona are found in Army Reg. NO. 636-2W(15 Jui. 19661, Army Fag. Ne. 636-2W (16 Jul. 18881, and Army Reg. NO. 636-212 (15 Jul. lsB8j. Special provisions eoneernlng conmientiow objectom are found in Amy Rez. No. 836-20 (31 Jui. 1970).

'Department of Defense Directive 1332.14 I20 Dee. 1966).

m

Code of Military Justice.' This statement prompted congressional Consideration of the administrative discharge during the 1962 military justice hearings and the introduction of legislation by Senator Sam J. Ervin (D-NC) the following year.' The Secreta2y of Defense responded to this concern by issuing a new directive which increased the rights of a serviceman in a, discharge proceeding and provided the procedural guidance previously lack. ins.' Further congressional hearings dealing with the rights of servicemen were held in 1966 which resulted in a new and more detailed bill authored by Senator Ervin the next year.'

This congressional interest prompted considerable discussion of the administrative discharge system.'Y A Special Committee an Military Justice of the American Bar Association recommended

'United Statea Y. Phipps, 12 U.S.C.M.A. 14, 30 C.M.R. 14 (1860). Judge Quinn stated: "I am also aware of eireumatanees tending to indieste that the undesirable discharge has been used 88 a subititute for a. court-martial, even in deprivation of an aeeued'a rights under the Uniform Code of M i l i t a ~ Justice, Herever, the remedy for thia trovblesDme situation rests ~n the handa of Congress." Id. at 16. Judge Quinn eonflrmed his opinion during his testimony during the Senste committee hearings in 1962. Hearinge on Con-stilutiml Rights o i Mditaw Personnel B e / m the Suboomm. 0% Camtitu-l i d Rights 01 tho Senate Cam. on the Jud-w, 87th Cang., Id Seas. 178 (1862) [hereinafter cited 8s 1862 Heoringal.

'Id. s t 2.'Senator Ervin's proposals-for iegiaistive changer in the discharge system were contained in severs.1 of the eighteen biila he introduced concerning military justice. 5.2001-18, 88th Cong., 1st Seas. (1863).

'Canpave Department of Defense Directive 1532.14 (20 Dee. 1865) wrth

Department of Defenae Directive 1331.14 (14 Jan. 1859). The new directive made representation by lawyer-counsel mandatary, with few exceptions, while the previous regulation WBB very rmmissive as to the requirement that emn.ael ahodd be a lawyer. The sections on board procedures, forme? jeopardy and review action were greatly expanded, with ineleased limitations placed an commanders.

'Joint Haoringe on S.745 (and other hlls) Belo78 tkr Suboomm. on Conetitutid Rights a/ the Ssnolc Camm. on the Judidow and the Special Suboom. a/ tha Senate Comm. on Amed SeirDsa. 88th Cong., 2d Sess. (1~681 [hereinafter cited a3 IS66 Hendwa]. S.2Wg. 00th Cong., 1st Seal. (18671, reintroduced with ehangea BI S.2241,

8Pd Cong., 1st Seas. (1871). Senator Ervin's hili proposes a new chapter to Titie 10, United Stater Code, containing twenty-nix seetmna. The hili would establish an entire statutory diacharge %atem from jurisdiction through final review, mth little discretion vested ~n the Secretary. An identical bill T V ~

introduced in the House by Rep. Roman heinski (D-Iii.1, H.R. 8916. .92d Cong., 1st Seas. (1871).

'#See Lynch, The Admmletrative Dischoipe' Chanpes Needed?. 22 MAIXE L. Rw. 141 (1810) ; Everett, Mditary Admmiatrotzas Disohwpea-The Pen.ddum Swings 1960 DUXE L. J. 41; Dovghertp and Lynch, Admmiatrotive Diathorgea' Militow Justice*, 33 Gm. WAS". L. Rm. 498 (1966); Powers, Administratius Due P~oeeaa in Miiitavy Proccedinga, 20 WASR. B LIZ L.

m. 1 (186s).

RULES OF EVIDENCE

minimum standards in 1968." These recommendations were later used as the basis for "opposition" legislation introduced by Representative Charles E. Bennett (D-Fla.),l" This bill, like the ABA recommendations, is general in scope and places few limitations on the discretion of the Secretary.'j

The Ervin bill, with its more specific provisions, provides the best vehicle for discussion of changes in the administrative discharge system. Because the bill covers the entire system, any study in depth must concentrate an only a portion of the bill. Due to the rather serious indictment made against the field board of officers by various witnesses during the congressional hearings," this article will examine the issue of evidence and related problems in the board of officers, drawing upon case law and civilian administrative law parallels for analytical purposes. In making this study, it must be remembered, that the Ervin bill concern8 itself solely with the undesirable diacharge certifi-cate. the most severe of the administrative discharges.'s It must

"Ripwt o i the Spend Committee on Milztary Jurtice, OS A.B.A. Rep. 577 (1868). The recommendations ineluded the power to issue process, greater diacovery righte, and findings based on a preponderance of the evi- lE"^n "1..._.

"H.R. 10607, 80th Cong., Id Seas. (18681, reintroduced s.8 H.R.

623, 02d

cong., 1st sese. i1971).

"The Bennettm propsies to amend 10 U.S.C. 5 1161 alone, and ewers only thiee pages. The bill follows the ABA committee's philosophy that the detailed provisions in Senator Ervin's bill wovld eonatitute an improper invasion of the aewiee aeeretariea' administrative discretion end that policy guidance alone is needed. 03 A.B.A. Rep. 517, 560 (1866). The Bennett bill adds little to the current DOD directive except for granting aubpoena power to the board ai affieera and requiring findings based on B prepnderance of the evidence.

"Several Washington sttorneye teatified concerning their experiences h-fore discharge boards. Fred W. Shields atated that:

, . . my own opinion IS that the fieid bard of officers wver no really uaefvl purpose. It only divides respnsibility for the action takenand preaenti the appearance a i proteetion. , . ,1982 Heonnoa 270. Neil Kabstchnick aaid the system was too iooe, and was enpeeiaiiy eritieal of the procedures concerning witneaaea, leea1 advice to the board and the burden of proof. 1966 Xearrnge 264.

"Discharges were firat eharseterired in 1893 as honorable, without honor and dishanorable: the first two were administratwe snd the third punitive. A third adminiatrative discharge, labelled "unclaseified." WBI added in 1813,but it and the "without honor" digcharge were replaced by the so-called "blue" diacharge in 1816. In 1041, at the insistence of the Veteran's Administration, the "blue" discharge was replaced by the general and undesirable discharges, the latter one aim being termed aa "leas than honorable." See 10BP Heannos 108 (testimony of Alfred 8. Fitt, Deputy Under Secretary of the Army) : Offer, Adminietvdive Dischor#os-What It's Ali About, 25 ARMY D I O ~ S T

No. 8 p. 5 (1810). Thus, today. there are three administrative discharges and two punitive disehargea, in order as foliowe:

also be recognized that there is a general feeling that the undesirable discharge carries with it a social and economic stigma. Therefore, it is worthwhile to discuss briefly the nature of this stigma as articulated in court opinions and congressional testimony.

A soldier being discharged from the Army is advised that an undesirable discharge may result in the loss of many or a11 veteran's benefits and causes substantial prejudice in civilian life." While there has never been an empirical study conducted to determine the exact number of former servicemen who have been denied employment solely because they received an undesirable discharge, the consensus of opinion among witnesses at the congressional hearings was that a "stigma" was attached to this discharge.'' Major General Kenneth J. Hodson testified that he had no evidence to refute the stigma allegation Is and one

congressman stated that the result of a "little" poll of industry indicated that a man with an undesirable discharge would generally not be granted an interview.'8 Some statistical support for the stigma proposition is found in the records of the Army Discharge Review Board...