Perspective: military administrative due process of law as taught by the maxfieldlitigation

• Author: Lieutenant Colonel Dulaney L. O'Roark
• Pages: 05

1. INTRODUCTION

   It is frequently said that Military Administrative Law (Military Affairs to some) is simply a label to cover a variety of unrelated military legal subjects such a8 military and civilian personnellaw, installation law, environmental law, and the latest-government information practices (freedom of information and privacy). While this is the perception of many, in fact, there is a common legal methcd which justifies grouping these apparently diverse legal subjects as a single discipline. This methodology is epitomized in the concept of "Military Administrative Due Process of Law." In addressing thelegalissues posed in an Army administrative action concerning any ofthe subjects listed above, judgeadvocatesshould analyze the action in terms of compliance with the following due process standards: (a) Has there been compliance withapplicablefederalstatutea? (b) Have Army regularions been followed? If not, what was the effect an any individual concerned?

   (c) Do the procedures followed in reaching adverse personnel determinations contain protections proportionate to the in. dividual rights at stake and the government's interest?

   (d) Has there been an abuse ofdismetion by the decision maker? If so. what remedial action, if any. is required?

   While the significance of these due process inquiries varies with the case. a judge advocate must, whether reviewing a proposed

   'The

   present4 m this articlearerhoseof theauthor and do nut necemanl~re~resenf the views ofTheJudne Advocate General's School or

   of Law whde serving 88 a 81's School m 1973

   YI'l

   11. FAILURE TO FOLLOW STATUTES

   THE MAXFIELD ALLEGATIONS: 1. The Secretary of the Army's instructions to the March 1974 Majors Promotion Selection Board which provided that ". . . youth is, in itself, a major asset and a primary consideration for promotion from the secondary zone" violated 10 U.S.C. 5 3442(c) (1970) which requires that "Selection shall be based upon ability and efficiency with regard being given to seniority and age."' 2. The promotion selection board wasillegally constituted because no reserve officer served as a Member of the board as required by 10 U.S.C. 5 266(a) (1970).5THE RULE:

   Military officiafs haue no discretion to ignore federal statutes. Violation of statutes in making administrative determinatrons is ~1 denial ofadministrativedueprocess of h W .

   While this rule may not be surprising today, it should be noted that not too many years ago the view was held by many that military officials had virtually absolute discretion over how they managed the internal operations of the Amy. This view was buttressed by opinions from the Supreme Court which contained language to the effect that "To those in the military service. . ,

   military law is due process"5 and the so-called "Nonreviewability Doctrine" which held that the federal courts should not intervene in military matters byreviewingchallengestomilitary authority,'

   Whatever vitality that view had was severely altered by the Supreme Court in 1968 in Harmon u. BrackeF when thecourtheld

   4 Brief for Plaintiff sf 3, Maxfield V. Callaway, Civil So K 1%501 (D Md , Sept 24. 1975).'10U S C B2661al(1970)p,ovidepinperrvlenrpartthat."Eachbaardconvenedfol.the appointment, promotion. demotion. mvduntaw release from active duty, dm charge, 01 retirement of Reserves ahsll include an appropriate number of Reserve%

   that the Army had given a soldier a less than honorable discharge which, contrary to statute. was based an conduct prior to his military service. The Court specifically noted that when anofficial exceeds his statutory powers administrative discretion is no longer involved, but rather an illegal actfor which thereis judicialrelief?

   Not too surprisingly, there have been relatively few cases in. volving adirectviolationoffederalstatutesbymilitaryofficials. In Carter v. United States,'O the Air Force tripped over the cumber. some officer elimination statutory scheme byincorrectlymixingin the implementing regulations the reserve officer and regular officer statutory standards for elimination. By statute reserve oficers may be administratively eliminated under procedures which allow a less than honorable discharge, but the burden of proof is on the Government to establish the basis for elimination. Regular officers have the burden of prmf to "show cause'' why they should not be eliminated, but do not risk less than honorable discharge. The Air Force regulatiari gave the reserve officer the regular officer burden of proof to "show cause" for retention, but retained the reserve of. ficer risk of a less than honorable dischargethe worst of both worlds and a clear statutmy violation. Finding thepetitioner'sless than honorable discharge illegal, thecourtordered thecharacter of the discharge corrected and the case remanded for a determination of the damages due Carter.

   In Frarier u. Callo~ay'~the issue concerned whether section

   3258 of title IOL2 permitted Army reserve officers relieved from ac. tive duty with any prior Regular Army enlisted service to reenliet; or whether only thoseoficerswhoseRegular Armyenlistedaervice immediately preceded their commissioning had a statutoryrightto reenlist. The statute seemed clear enough, providing that "Any formerenlistedmemberoftheRegularArmywhahasservedonac-tive duty as a Reserve Officer. . .is entitled to be reenlisted.. . .?3,

   and for years the Army had allowed all relieved officers with any prior enlisted servicetoreenlistwithoutregardto whethertheyhad assumed commissioned status immediately upon giving up enlisted status. With a large officer reduction in force (RIF) in the offing, however, a personnel policy change was implemented allowing only those RIF'd officers whose enliatd service had im. mediately preceded commissioning to reenlist. The purpose of the change was to avoid filling the top enlisted grades with former of.

   ficers thus stifling promotions in the lower enlisted gradea. This change was considered legally permissible because the legisiative history of the statute supported the narrower interpretation of the reenlistment entitlement." Although the Army lost the Frailer case at the district court level, on appeal the limited interpretation of...