What constitutes "active participation"?

[Майор Хаткевич]

Also, for the record, when >any< member is terminated at the unit level, the appeal is to either Group or Wing (the next echelon).
Since I wouldn't terminate a member without discussing the matter with the next echelon, that issue is closed, since any appeal
would be denied upon submittal.  Beyond that, it's a MARB case and not likely to be considered (since all the i's would be dotted, etc.)

Pre-coordination of an action with the echelon to whom the appeal is vested could easily be challenged as a fundamental breech of due process.  So, all your "i"s would actually be crossed, not dotted.

It's not pre-coordination. It's part of the process.


"Hey GroupCC, I've got an inactive cadet, haven't seen him in months, he's not answering calls or emails, we're going to 2B him for lack of attendance"
"Thanks for the heads up SquadronCC".


Now, if a cadet appeals it, what's the defense?

"I was there, but no one saw me because I'm part of CAPSOC"?

[Eclipse]

So, you consider it appropriate to have an action pre-approved by the person to whom an appeal would be decided by?

Hey, take it up with NHQ - it's their process.

And the MARP has authority to deal with decisions reached without due process.

Yes they do, and your example isn't that.

Seriously, this is the level of over-thinking that stifles action and has stagnated CAP.

An empty shirt no one has seen for 6-months to a year plus is not about to start filing appeals
if he is terminated, and if he does, fine - the termination isn't a subjective issue. 
It's not a disciplinary action, it's not punitive or discriminatory, and it doesn't bar readmission.

You. Never. Show. Up.

[lordmonar]

And the end benefit to CAP is?

[JeffDG]

So, you consider it appropriate to have an action pre-approved by the person to whom an appeal would be decided by?

Hey, take it up with NHQ - it's their process.

No, the process is:
Commander makes a decision
Commander informs member and higher echelon
Member has right of appeal to higher echelon

What you describe, pre-clearing with the higher echelon is simply a way to vitiate the member's right to a meaningful appeal of the action taken.

If a Squadron Commander pre-clears a 2b with the Group Commander, then that Group Commander should, to preserve the member's due process rights, recuse themselves and ask the Wing Commander to select another Group Commander to rule on the appeal.

[JeffDG]

since any appeal would be denied upon submittal.  Beyond that, it's a MARB case and not likely to be considered (since all the i's would be dotted, etc.)

Please cite the regulation that permits an adverse membership action to be "denied upon submittal".

The approving authority is required by regulation to convene an appeal board.

For someone who insists that commanders either do something discretionary or they are in breach of their duty of integrity, you seem to play pretty fast and loose with regulations governing the due process rights of members.  Regulations that impose substantive duties upon commanders and other officers, not discretionary ones.

[Eclipse]

So, you consider it appropriate to have an action pre-approved by the person to whom an appeal would be decided by?

Hey, take it up with NHQ - it's their process.

No, the process is:
Commander makes a decision
Commander informs member and higher echelon
Member has right of appeal to higher echelon

What you describe, pre-clearing with the higher echelon is simply a way to vitiate the member's right to a meaningful appeal of the action taken.

If a Squadron Commander pre-clears a 2b with the Group Commander, then that Group Commander should, to preserve the member's due process rights, recuse themselves and ask the Wing Commander to select another Group Commander to rule on the appeal.

This sounds very nice and logical, except it isn't the way the system is defined, nor the way the system works in practice.

If you feel that consulting your superiors before taking a membership action is verboten, so be it.  That's not the case,
but if it makes you feel good, carry on.

[Eclipse]

since any appeal would be denied upon submittal.  Beyond that, it's a MARB case and not likely to be considered (since all the i's would be dotted, etc.)

Please cite the regulation that permits an adverse membership action to be "denied upon submittal".

Forgive my shorthand in moving the conversation along. Cadets terminated for reasons other then misconduct
have no appeal, ergo, "denied upon submittal".

See 35-3 Page 5, Section 6 A&B
http://www.capmembers.com/media/cms/R035_003_B74F5A60C44CF.pdf

Also note that on CAPF 2b, "Failure to Progress" and "Lack of Interest" are not considered "misconduct".
http://www.capmembers.com/media/cms/F002B_E249721A9E98E.pdf

And as long as we're here, for those wondering where the definition of "Non-participation" is, NHQ specifically
defines it on this form as "failure to attend three meetings without acceptable excuse".

In summary, a cadet terminated for nonparticipation or lack of progression has no avenue of appeal
and the termination is considered "final" upon submission. 

[JeffDG]

since any appeal would be denied upon submittal.  Beyond that, it's a MARB case and not likely to be considered (since all the i's would be dotted, etc.)

Please cite the regulation that permits an adverse membership action to be "denied upon submittal".

Forgive my shorthand in moving the conversation along. Cadets terminated for reasons other then misconduct
have no appeal, ergo, "denied upon submittal".

See 35-3 Page 5, Section 6 A&B
http://www.capmembers.com/media/cms/R035_003_B74F5A60C44CF.pdf

Also note that on CAPF 2b, "Failure to Progress" and "Lack of Interest" are not considered "misconduct".
http://www.capmembers.com/media/cms/F002B_E249721A9E98E.pdf

And as long as we're here, for those wondering where the definition of "Non-participation" is, NHQ specifically
defines it on this form as "failure to attend three meetings without acceptable excuse".

In summary, a cadet terminated for nonparticipation or lack of progression has no avenue of appeal
and the termination is considered "final" upon submission. 

Classy...

Still trying to get where a commander who doesn't exercise his/her discretion is violating his duty of integrity.

[Eclipse]

Still trying to get where a commander who doesn't exercise his/her discretion is violating his duty of integrity.

Why? I certainly didn't say that.  What I said was:

This is the reason you run a unit by the book and aboveboard, then you're not concerned about "attention".  Shying away from
appropriate personnel actions because you don't want "attention" is dereliction of duty.

This also calls back to integrity.

A commander who decides not to act in good conscience is exercising his discretion.  One who decides not to
act because it might draw attention, questions would be raised, etc., etc., is derelict in his duty, because one
of the fundamental duties of a commander is making difficult, sometimes unpopular decisions,
and the fortitude to act in difficult circumstances.

And with that said, IMHO, this is a "decision" which for the most part should be out of a CC's hands,
and thus removing a pinch point to action.  Attendance records and realistic expectations of participation
would automate the process - members who "pop" an expectation would be assumed terminated unless
acted upon by the commander (just like promotions should be handled).

[Storm Chaser]

If a Squadron Commander pre-clears a 2b with the Group Commander, then that Group Commander should, to preserve the member's due process rights, recuse themselves and ask the Wing Commander to select another Group Commander to rule on the appeal.

That makes no sense. Why would a group commander from a different group and not in the chain of command of the member appealing or the commander who initiated the action hear the appeal? You need to go back and read the regs.

[Storm Chaser]

Pre-coordination of an action with the echelon to whom the appeal is vested could easily be challenged as a fundamental breech of due process.  So, all your "i"s would actually be crossed, not dotted.

Consulting your superiors is not a "breach of process", if anything it >is< the process.

There isn't a wing CC in this organization who would tell you not to consult with them or the JA if you're concerned
in regards to a termination action, nor a JA or IG who would respond "I can't discuss this issue as it might be appealed."

There have been any number of times where I have been sent VFR-Direct to NHQ Legal for one thing or another,
including disciplinary issues.  Who does the "breach of process" appeal go to then? The Supreme Court of Civil Air Patrol?

So, you consider it appropriate to have an action pre-approved by the person to whom an appeal would be decided by?

Since when is notification the same as pre-approval?

Were I a Group Commander and a squadron commander did this, I would advise the Wing Commander to appoint another Group Commander to hear the appeal.

Not part of the process. Already discussed on previous post.

That effectively makes the appeal pre-decided, and that is a fundamental denial of due process.

How? CAPR 35-5 specifically states that termination due to misconduct or cause must be notified to the commander in the next echelon. This doesn't constitute approval. CAPR 35-5 also states that the termination action can be withdrawn at any time by the initiating unit commander or the approving authority [commander at next echelon]. How can that commander withdraw a termination action unless he or she is aware of it?

And the MARP has authority to deal with decisions reached without due process.

Again, you've failed to show how notifying the next commander in the chain is a breach of due process or where in the regulations is stated that that's not allowed.

[JeffDG]

If a Squadron Commander pre-clears a 2b with the Group Commander, then that Group Commander should, to preserve the member's due process rights, recuse themselves and ask the Wing Commander to select another Group Commander to rule on the appeal.

That makes no sense. Why would a group commander from a different group and not in the chain of command of the member appealing or the commander who initiated the action hear the appeal? You need to go back and read the regs.

Because if there is a conflict of interst, thats who hears the appeal.  You might want to follow your advice.

FYI, from the regulations:

In the event the approving
authority is determined by the next higher level commander to be disqualified from making the
final decision due to an impermissible conflict of interest, the next higher level commander shall
appoint another commander at the same level to act as the approving authority and appoint the
appeal board

[JeffDG]

Again, you've failed to show how notifying the next commander in the chain is a breach of due process or where in the regulations is stated that that's not allowed.

Acting as the appeal authority for a decision you helped make is a fundamental breach of due process.

[Eclipse]

Your quotes and assertions are not relevent as NHQ as specifically defined this as the process,
meaning it's >not<, by design, a "conflict of interest".

[JeffDG]

Your quotes and assertions are not relevent as NHQ as specifically defined this as the process,
meaning it's >not<, by design, a "conflict of interest".

Where has NHQ "defined this as the process"?  Citation please.  You seem to confuse how you do things with what the regulations actually say.

The process as designed (as evidenced by the actual regulations) has the squadron commander making a decision, and sending it up the chain.  Not playing "Mother may I".  An individual cannot sit in judgement of a decision they participated in making and have any resemblance to "due process".  Just doesn't work.

How can it not be a conflict of interest for someone to act as the appeal authority for a decision they made?

[JeffDG]

Your quotes and assertions are not relevent as NHQ as specifically defined this as the process,
meaning it's >not<, by design, a "conflict of interest".

In defining the basic elements of due process, which CAP has adopted by using the term without offering a competing definition, the law is pretty clear that a hearing before an impartial tribunal is critical.

The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.

(Ray MARSHALL, Secretary of Labor, et al., Appellants, v. JERRICO, INC.
446 U.S. 238 (100 S.Ct. 1610, 64 L.Ed.2d 182), internal citations omitted)

How can a member have the "assurance that the arbiter is not predisposed to find against him" if that arbiter was involved in making the decision that is under appeal in the first place?

[kwe1009]

I am fairly new to CAP but I would assume that some basic things would work like they do in the Air Force.  One of those things is notifying your chain of command of actions that you do that may come up to them.  It is called keeping command informed so they are not blindsided.  It is not seeking permission but it may be seeking advice and guidance. 

[Eclipse]

Jeff, you're wrong.

Read the regs, it's all there.

[Storm Chaser]

If a Squadron Commander pre-clears a 2b with the Group Commander, then that Group Commander should, to preserve the member's due process rights, recuse themselves and ask the Wing Commander to select another Group Commander to rule on the appeal.

That makes no sense. Why would a group commander from a different group and not in the chain of command of the member appealing or the commander who initiated the action hear the appeal? You need to go back and read the regs.

Because if there is a conflict of interst, thats who hears the appeal.  You might want to follow your advice.

FYI, from the regulations:

In the event the approving
authority is determined by the next higher level commander to be disqualified from making the
final decision due to an impermissible conflict of interest, the next higher level commander shall
appoint another commander at the same level to act as the approving authority and appoint the
appeal board

Nice try. Informing the commander at the next level of a termination action does not constitute conflict of interest. The regulation quoted does not apply.

[lordmonar]

Part of what the problem is right now is a matter of spectrum.


It is one thing to call up the a appealing authority to say "Hey, just to let you know I'm going to 2'b this guy."  It is another to call up your appealing authority and lay out everything, sell your 2b and then ask him "so what do you think? and he say "I think you should 2b him".

From an IG perspective......the first is completely acceptable...the other is a little not.   

It could generate a situation where the appealing authority is directing the 2b action at the lower level.....which is JeffDG's problem about due process.

If the 2b was "directed" by the appealing authority.....then the member has lost his normal appeal rights....The appealing authority should never direct a lower level commander to 2b someone.    If they think that the member should be 2b'ed....the the member should be 2b'ed at that level.....so that he can appeal to the next higher level for a fair hearing.

So.....yes it is a major gray area.  How does a squadron commander ask advice and help with a situation but at the same time protect the rights of members of due process and a fair appellate process? 

And to let you know.....they have this same problem all the time in the military all the time.   It is a mine field....good luck!