Evidentiarv Standards and the Rieht to Cross.Examine Witnesses in Administrative Elimination HearingsEvidentiarv Standards and the Rieht to Cross.Examine Witnesses in Administrative Elimination Hearings

• Author: Captain Thomas G. Tracy
• Pages: 03

I. INTRODUCTION

Inlate 1973, the United States Court of Appeals for theFifthCir. cuit struck down a municipal ordinance which barred veterans with other than honorable discharges from holding city employment.' Such a statute, the court held, wasrepugnahttothe fourteenth amendment's guarantees of due process and equal protection of the laws.

In strildng down the ordinance of Plaquemine, Louisiana, the appeals court may have opened thedoortoveterans oftheVietnam War togetjobs, schooling, andother benefitsthathavebeendenied them as a result of an undesirable discharg?. The decision, although not particularly startling, is unprecedented; andit would appear to reject the characterization of an individual's discharge from military service as anacceptable basis for arbitranlyrefusing him employment-at least by the gpmment.

This judicial viewpoint represent a significant departure from the time-honored conclusion that a soldier should expect to en. counter "substantial prejudice" in civilian life if he receives aless than honorable discharge,* and perhaps a reevaluation of the in. ferences mciety should draw from the nature of a serviceman's die

*This article IS an adaptanon of B them presenredtoThe Jvdge AdvocateGenera~B School US Amy in sahsfacuan of the rnting requirement8 far the Nonresident Jvdge Adioeste Officer Adreneed Course. The opimons and e~nclusmns presented herem are those of the author and do not necessanlg represent the mew of The Judge Adiocate Genedi School or an) other governmental agency

**JAGC USAR B S B.A 1966, J D., 1969,A M (inAceauntancy), 1975, Umuersirg

of Mmsoun hlemberoftheBarbofMlssovln andfheLmmtedSrstesCovnaf~ilitary Appeala Captivn Tracy LS currentlyassociated~ulth theiirmofCoaperb& Lybrand Cenified Public Accountants. ~n Kansas City. Mmsoun

lThompaan \ Gallagher, 469 F Zd 443 15th Cir 19731'Jones. The Gra~ify a/ AdmrnisfiafrLr Discharger A Lega! and Emprrieo! Eaaluafian. 69 MIL L REV 1119731.

MILITARY LAN REVIEW [VOl. il

charge.' For years, it was an accepted fact that the military ser-vices would be allowed a free hand in eliminating from their ranks those foundta be unamenable to the reqmrements of military duty and in characterizing their service by the type of discharge awarded. Such ''internal" actions bv themilitarv~'.erenatcons,dered subject to judicial review.?

Today, however, the venerable system of eliminating soldiers by administrative action and classifying their discharges as either "good" or "bad" has sailed into rougher waters. Beginning in the early 1960's. congressional concern over the administrative elimination system prompted the issuance of a Department of Defense Directive5 which added certain important procedural rights for respondents,O andconstituted a significant changein the direction of the administrative system. But even with this greater degree of protection. attention is still focused on the administrative discharge, and today some federal courts are applying con. stitutional standards to administrative proceedings

The increased attention accorded administrative mscharges by the federal courts has no doubt been prompted by what some commentators and judges perceive as inherent weaknesses in the system. Critics of the system do not question the military's right to eliminate ineffective personnel, but rather challenge the procedures under which servicemen receive certain types of discharges, and as the Fifth Circuit decision elaborates, the effect the discharge has on a serwceman after he leaves the military

Criticisms of the Army's administrative discharge system, a system whch often stigmatizes an individual by the characteriza. tion which it sves his senice, can best be analyzed by comparing its evidentary and procedural rules to the standards mandated for mwlian proceedings which have the potential forinflicting similar

work ~n a glren occupation] may lead to other than honarabl; dmchargea from the

'In Janusr) 1966, shortly before the Senate heannps on admmetratlve du charges reopened the Depanmenr of Defense issued Depsrtmenf of Defense Direchie 1332 14, dated December 1965, which provlded se/erd ne* procedural prokc-tmns forthe seriiceman[here~nsfterreferred to as DOD Dlr 1332 141

*Besides prohibiting the conalderahon of c e r t m types of emdenee svch as p ~ e 8erwe ecfintm and rnakmg the grounds fax elmmstion more spec~fie.the Dmc

tire also broadened the nghts to a board heanng end to legell) traned cound I"

connection with the heanng The Directire also addedfherequlremenfsforcaunael-

disabilities. Should such a comparison find that the rules governing administrative discharge proeeedings afford respondents inadequate protection in view of the potential ham, the particular needs of the military must be analyzed to determine whether they justify such differences. Only by creating such aframeworkforthe analysis and then evaluating the procedures of the Amy's administrative elimination system can one adequately assess the legality and fairness of such a system.

11. THE ADMISSIBILITY OF EVIDENCE AT AN ADMINISTRATIVE DISCHARGE PROCEEDING

Generally speaking, judicial rules of evidence do not apply to ad. ministrative proceedings. This is also true in the case of the ad. ministrative elimination actions for "unfitness" and "unsuitahili. ty" whose body of law is contained in Amy regulations.'

These regulations provide rather broad guidelines for the in. troduction of evidence at the administrative discharge hearing. The board of officers may consider "any oral or written matter, in. cluding hearsay, which in the minds of reasonable men is relevant

MILITARY LAW REVIEW [Vdil

and material":8 but whenever possible, the "highest quality of evidence obtainable and available will be considered."a In most cases, the admissibility of evidence will be determined by these two standards

However, the regulations impose other "general constraints" on the use of the administrative discharge action. which mag also have the effect of limiting the use of certain types of evidence in special situations, such as thoseinvalvingpre- and prior servlice activities and situations raising questions of double jeopardy

In general, the character of a serviceman's discharge shall be based solely on the member's military record dunng his current enlistment So although any convictions or other evidence showing preserwce or prior service activities can be considered by the board for the limited purpose of detenningwhether to discharge the soldier or retain himinservice. suchevidencecannotbeusedto arrive at an appropriate characterization of the discharge unless the individual consents. No member will be considered far administrative discharge because of conduct which has been the sub. ject ofludicid proceedings resulting In an acquittal or action having the effect thereof:' No member will be considered for ad'AR lb6. supra note 7. at para 10. This p~aimon

1s based upon para IXiBm of 33211 IAug 19691 which stares 'The board luncrian~ 88 an ad rather than aivdicial bod? Stncf rules oleindence need not boobreri the chairman mas Lmpose reasonable rertncfianr as IO releiancy, and matenshty of matters considered156, supra note 7 at para 963h200 supra note 7. 81 paras 1-7 & i 9 The ~afionsle behmd these onsaftheregvlstionrsbaaedonthedecisionmHarmanu Brucker 355U S 5s) where the U S Supreme Coun held that despite a statutory pattern ch confers dxcreaonari aufhonti upon the Secretari of tne Aimstoprescribe niflcate to be awn "pan discharge. B dischargecertificate based upon

is rewirement does not apply to the decision of

If the hernce member has been rned and found not gu~lt?,fhu determw,armn IS

easr Horeier determination 01 whether an achan has the effect of an acqylrfsl

more diffleulr. and xi11 be made ~olelvby Headquarters Depanment of the Arm>

AR635-200 suomnate-. atpara 113a Thegeneralrulehas beenthafleapardyst-taches only airerrheev~dencehaabeenInt~oducedanthemenfroithecase Thue ~t has been held that no ieapsrdg attached uhere charges * e x dlamiseed on the

whetherthe ex~bitsinquestionwereinfactpresented to the board. In an opinion by The Judge Advocate General of the Amy, the point of relevancy was clearly set out:

Haxever the introduction of theexhibits In\alvinghousebreaking charges uauld havepreiudicedrhenghtroftherespondent.lfthe) %ere miact ~ n . rradvcedas e~idenceandconsideredbyrheboard Although the filecon tamed sufficient eiidence to support the findinge and recommendations of the baardaithoutrh~exhibitsmquestionli s the hovrebreakingchargesi,if the board did consider these exhibits the) mai have influenced the chsracrenzarion of discharge recommended The d e s of eildence ~n ad minisr~afive proceedings are not nmd but any erldence rubmmed must be relevant and mstenal Allegations of larceny and houiebreakmg uere neither rnatenal nor relevant to the question of unsuitability bared onalcoholism Accordingly. if the exhibits U,~TI considered the recornmen dauonr of the board must be dmapproved to fheextenffhatrhey proiidefar less than an honorable discharge I'

It would be logical to assume that the requirement of relevancy would limit the introduction of evidence to that relating to the specific grounds for discharge, but as the above opinion indicates, themilitary positionis evenmoreliberal.Iftheevldencesubmittedis relevant to themuesubmitted, thenitis relevant andadmissible evidence.16 Under this definition, two or more grounds for dis-charge need not be specified to allow theintroduction of evidence showing several unrelated acts. So in the case of the alcoholic, the evidence of housebreaking is relevant to the issue of "unfitness,"'-and as such, could not be used in an "unsuitability" action. But nothing would prevent an administrative board, in an "unfitness" action for "drug abuse," for example, from considering other infractions-because bath types of evidence would be relevant to the general issue of unfitness.'O

So in practice, relevancy is not a limiting...