Saturday, July 24, 2021

Due Process at the USMA

For us in the U.S., adverse administrative actions can be intertwined, collateral to, or an alternative to a UCMJ court-martial action. Separation from service, under Honorable, General Under Honorable, or Under Other Than Honorable circumstances also can flow from misconduct allegations. Each Service has its own regulation on how to do this and what process is due. The process due depends on many factors including time-in-service, what characterization of service may be warranted, status, and whether the person wants to contest the separation. A long introduction to Doolen v. Secretary of the Army.

Doolen claimed he was wrongfully separated from the U. S. Military Academy (West Point). Each Service Academy has a discipline code and process of enforcement. Doolen had multiple "infractions" over time which resulted in multiple disciplinary actions where he was found at fault. The decision was then made to separate him for his multiple failures. Doolen claimed his separation from the USMA was wrongful because, 

[T]he cadet separation procedures of the United States Military Academy at West Point fail to provide due process and that [his] separation proceedings violated West Point’s own regulations in a manner that substantially prejudiced him."

The Court of Appeals for the Second Circuit affirmed the District Court's dismissal of Dollen's lawsuit on summary judgment because the appellate court, 

"[C]conclude[d] that West Point’s cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders Doolen’s regulatory claims nonjusticiable."

The Federal courts have long recognized that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian.” Chappell v. Wallace, 462 U.S. 296, 301 (1983) (quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)). Courts grant “greater deference” in the context of national defense and military affairs than perhaps any other area. Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).

The doctrine is not an absolute bar to claims where the military regulations at issue may be unconstitutional or where the military fails to follow its own regulations.

After the circuit court dispensed with the constitutional claims, the court discussed a failure in the processing of the case under the must-follow-the-rules argument. The staff judge advocate review of Doolen's case was not served on him and deprived him of the opportunity to comment. The review had errors. But, in denying the didn't-follow argument, the court found that Doolen had not satisfied the legal standard of an error causing "substantial prejudice."

Whether a petition for a writ of certiorari to the U.S. Supreme Court is in the works is unknown. Gene might have a better idea of the certworthiness of the issues.

(Note, when an academy member is separated for reasons of misconduct or other conduct of their own, the government will recoup the value of their education. The approximate value of Doolen's education to be recouped is $226,662.00 (about £164,863.08).)

Perhaps of additonal interest:

Jennifer Beckett, Intramilitary Tort Immunity: A Comparison of the United States and Great Britain, 14 Hastings Int'l & Comp. L. Rev. 189 (1990).

Michigan Law Review, Intramilitary Immunity, and Constitutional Torts, 80 MICH. L. REV. 312 (1981). 

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