What constitutes "active participation"?

[JeffDG]

Jeff, you're wrong.

Read the regs, it's all there.

where?

[kwe1009]

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!

That doesn't sound right.  What you are saying is that a squadron commander can't seek advice or guidance from the group commander.  Adverse actions against members are often discussed up the chain of command before they are implemented.  This is to ensure the action is appropriate.  I know that is how it works in the Air Force and in all of the civilian jobs I have held.  Both in the USAF and in the civilian world I have had to discipline subordinates and if the form of discipline was of a severe nature I had present my case to upper management for their approval.

If one of the managers under me were to attempt to fire (or take a stripe on the military side) without consulting me there would a major issue between me and that manager. 

I've only been in CAP for a couple of years but is there a CAP reg or guideline that directs squadron commanders to not consult their bosses before initiating member removal actions?  If so, there is something really wrong with a system that prohibits a squadron commander from seeking wisdom and guidance from their boss. 

[lordmonar]

Not saying that they can't.   Just saying that by asking advice.....may....may.....poison the due process rights of the member being 2b'ed.

And yes....this does make it a very grey area.  How does one seek advice with out jeopardizing due process.


Be careful of the analogies.....your managers can't fire with out consultation....because they don't have the authority to do so.  Only you do (by your statement).    That is not true for CAP.

[kwe1009]

Not saying that they can't.   Just saying that by asking advice.....may....may.....poison the due process rights of the member being 2b'ed.

And yes....this does make it a very grey area.  How does one seek advice with out jeopardizing due process.


Be careful of the analogies.....your managers can't fire with out consultation....because they don't have the authority to do so.  Only you do (by your statement).    That is not true for CAP.

Again, what is the gray area?  Just because the appeal authority is the next higher headquarters why is it a gray area?  This is how business and the military work every day?  Why is CAP different?  What CAP reg or guideline supports this difference?

So a squadron commander can 2b someone without talking to their group commander.  The person appeals to the group commander and gets reinstated and the squadron commander has egg on their face.  I don't see the point.  The way something like this is handled nearly everywhere is the squadron commander would consult with the group commander to see if they agree and support the action.  If the group commander doesn't agree with the 2b action then what is the point for the squadron commander to even submit it since it will be reversed if the member appeals? 

The same logic goes with awards.  If the next higher level of management does not agree with giving an award to an individual then taking the time to write it up and submit it is pointless as you already know it will be denied.

I never said that the managers under me did not have that authority I said that I expected to be consulted first just like my boss expects to be consulted before I did something like that.  The last thing I want is HR or my boss coming down on me because one of my managers fired someone (or some other adverse action) that really wasn't warranted and that I didn't know about.

Where does it say that the appeal authority should have no knowledge of the circumstances before the appeal is filed?  What do you think happens during the appeal process?  The member and the commander (and any other parties as necessary) present their case to the appeal authority and a decision is made after hearing both sides.  Just because the appeal authority already may know one side of the story does not hinder any due process.

[vorteks]

^ That's the biggest dose of Common Sense this thread has seen yet.

[Майор Хаткевич]

^ That's the biggest dose of Common Sense this thread has seen yet.

The people arguing against it have it...they just don't think padding our numbers is a bad thing.

[lordmonar]

Again, what is the gray area?  Just because the appeal authority is the next higher headquarters why is it a gray area?  This is how business and the military work every day?  Why is CAP different?  What CAP reg or guideline supports this difference?

It is a gray area in the USAF too.   Lots of Art 15's overturned for undue command influence or bread down of due process.   Lots of courts martial too. 

So a squadron commander can 2b someone without talking to their group commander.  The person appeals to the group commander and gets reinstated and the squadron commander has egg on their face.  I don't see the point.  The way something like this is handled nearly everywhere is the squadron commander would consult with the group commander to see if they agree and support the action.  If the group commander doesn't agree with the 2b action then what is the point for the squadron commander to even submit it since it will be reversed if the member appeals? 

It is due process.   And again.....never said that the commander could not talk to the upper echelons...only that it could violate due process.   Let's say that commander wants to 2b member X for non participation.  but the conversation he has with wing is about how member X is horse's FPOC, and is always causing problems pointing out errors, abrasive to other members, etc, and so forth.  So they 2b Member X....Member X appeals explaining why he did not participate and that he had a valid excuse, but the wing commander has all this "extra" testimony not presented to appeals board and the member never got a change to rebut the evidence against him.   That is the violation of due process that we can accidentally slip into by talking with upper echelons.

The same logic goes with awards.  If the next higher level of management does not agree with giving an award to an individual then taking the time to write it up and submit it is pointless as you already know it will be denied.

A little different....but yes....and of course you can always go over their head.

I never said that the managers under me did not have that authority I said that I expected to be consulted first just like my boss expects to be consulted before I did something like that.  The last thing I want is HR or my boss coming down on me because one of my managers fired someone (or some other adverse action) that really wasn't warranted and that I didn't know about.

If you expect to be consulted FIRST....then they don't in fact have the authority to fire.  They may have the responsibility to fire....but not the true authority.  I whole heatedly agree that you need to be NOTIFIED that someone got fired, and why.....but notification and consultation are two different things.

Where does it say that the appeal authority should have no knowledge of the circumstances before the appeal is filed?

Never said that.   Just that it does present a conflict of interest and that it could constitute a violation of due process.

What do you think happens during the appeal process?  The member and the commander (and any other parties as necessary) present their case to the appeal authority and a decision is made after hearing both sides.  Just because the appeal authority already may know one side of the story does not hinder any due process.

If the appeal authority already knows "more of one side" then the member knows he know.........that is the violation of due process.   When the commander prio to the 2b.....or heck even after the 2b before the hearing......lays down all the real reasons why he wanted member X gone.......but never gives member X the opportunity to rebut those accusations/resons.....that is the violation of due process.   

[Eclipse]

All this sounds very nice, other then it is neither practically correct, nor by regulation.

The process is clear, unambiguous and conflicts with the narrative above.

There is no inherent conflict of interest, the next echelon is required to be notified, and
the responsibility and duty of that echelon is to ask "why?".  You can't breach a process mandated
by the organization involved.

It's also fun to play pretend that all parties are devoid of knowledge regarding the situation
until it crosses their "desk" in regards to a complaint or termination submission.

We >all< know that isn't the case, especially in regards to disciplinary action.

So, from a practical perspective, it's not how CAP works, and from a regulatory
perspective it's not the process as defined.

[lordmonar]

And the only "why" discussed should be what is in the 2b. 

[Майор Хаткевич]

And the only why discussed should be what is in the 2b.

Yep. So when a SM tries to throw a punch, that goes on the 2B, and the Group CC gets a "I'm terminating Dumbledore for trying to deck my Deputy".

[JeffDG]

All this sounds very nice, other then it is neither practically correct, nor by regulation.

The process is clear, unambiguous and conflicts with the narrative above.

There is no inherent conflict of interest, the next echelon is required to be notified, and
the responsibility and duty of that echelon is to ask "why?".

It's also fun to play pretend that all parties are devoid of knowledge regarding the situation
until it crosses their "desk" in regards to a complaint or termination submission.

We >all< know that isn't the case, especially in regards to disciplinary action.

So, from a practical perspective, it's not how CAP works, and from a regulatory
perspective it's not the process as defined.

Just because you keep repeating that doesn't make it so.

Where do the regulations require that you pre-notify the next echelon?  I've asked you for a cite before which you ignored.

Yes, the regulation require notification of a 2B, once it occurs, not before.  Reasons for the action are laid out in the CAPF 2B document, not through some ex parte conversation between the Squadron and Group Commanders.  Once the 2B is filed, there is a clear process to handle the appeal of such a decision, none of which involves ex parte communication between the initiating commander and the approving authority.

How is a Group Commander who helped make a decision able to act as an impartial arbiter of that decision?    You cannot answer that.

If a squadron commander asks such advice from a Group Commander, the Group Commander has a few options:
1.  Provide such advice.  If the matter proceeds to an appeal, advise the Wing Commander of the fact that you as Group/CC was part of the decisionmaking process, and advise him to appoint another Group/CC to handle the appeal.

2.  If your advice would be to 2B the member, do it yourself, vesting the appeal rights with the next echelon, the Wing Commander.

3.  Demur to provide advice in your role as appeal authority, perhaps directing the squadron commander to seek advice from the Group Personnel Officer (who would then be precluded from serving on an Appeal Board), or alternatively to have the Squadron/CC seek advice instead from Wing (who are not part of the appeal process)

4.  Provide advice, then simply rule on the appeal and pretend you're not reviewing your own decision, and hope the member doesn't find out and appeal to the MARP.  This options shows a total lack of integrity.

[JeffDG]

And the only why discussed should be what is in the 2b.

Yep. So when a SM tries to throw a punch, that goes on the 2B, and the Group CC gets a "I'm terminating Dumbledore for trying to deck my Deputy".

That's perfectly fine.  The member receives the same information, and has the opportunity to challenge the factual basis for the 2B.

It's the pre-clearing of the 2B with the higher echelon that implicates due process rights of the member.

[Майор Хаткевич]

And the only why discussed should be what is in the 2b.

Yep. So when a SM tries to throw a punch, that goes on the 2B, and the Group CC gets a "I'm terminating Dumbledore for trying to deck my Deputy".

That's perfectly fine.  The member receives the same information, and has the opportunity to challenge the factual basis for the 2B.

It's the pre-clearing of the 2B with the higher echelon that implicates due process rights of the member.

What are you trying to say?

[Eclipse]

Just because you keep repeating that doesn't make it so.

Agreed, so you can stop now.

Where do the regulations require that you pre-notify the next echelon? 

Who said "pre-notify"? We said "discuss".  So now Commanders aren't allowed to discuss disciplinary
actions with their bosses?

How is a Group Commander who helped make a decision able to act as an impartial arbiter of that decision?

Irrelevant question, since NHQ has defined the process.  You're confusing the fact that you don't like it
with what the process >is<

[JeffDG]

Irrelevant question, since NHQ has defined the process.  You're confusing the fact that you don't like it
with what the process >is<

It's the very definition of due process, and intensely relevant.

Where has NHQ defined this mythical process?  Cite please.  I've provided regulatory and legal citations, you just keep trying proof-by-repeated-assertion that this is the "NHQ defined process".  If so, you should be able ti cite where they defined it as such.

Where has NHQ demanded ex parte communication with higher echelons before a squadron commander 2Bs someone?

Just because you ran things violating due process doesn't mean that's the process.

[JeffDG]

And the only why discussed should be what is in the 2b.

Yep. So when a SM tries to throw a punch, that goes on the 2B, and the Group CC gets a "I'm terminating Dumbledore for trying to deck my Deputy".

That's perfectly fine.  The member receives the same information, and has the opportunity to challenge the factual basis for the 2B.

It's the pre-clearing of the 2B with the higher echelon that implicates due process rights of the member.

What are you trying to say?

The process is simple:
Commander decides to 2B member
Fills out paperwork
Advises Group Commander and member of action
Member appeals
Group Commander appoints board
Board reviews evidence, makes recommendation
Group commander considers and endorses or overrules recommendation.

Nowhere there is there a process where the initiating commander discusses in advance with the Group Commander.  If he does so, he has seriously damaged the member's due process rights by having the approving authority, who hears the appeal, participate in making the initial decision.  You cannot act as an impartial arbiter of a decision, which is a fundamental aspect of due process, if you were involved in making that decision.

[Eclipse]

OK, you know what, even >I< don't have this much free time.

[JeffDG]

OK, you know what, even >I< don't have this much free time.

Ahhh...so you can't find an actual citation that what you claim is the NHQ process is indeed the process.

I've provided several.  You, not so much. 

[vorteks]

Nowhere does 35-3 discuss informing the next echelon of the intention to terminate membership, other than with the 2B form itself. But there's nothing prohibiting it, either. Don't you think there would be if such a (very likely) conversation is considered an inherent conflict to a member's due process rights?

Also, the appeal is decided by an appeals board, not an individual.

And nowhere in the regs is the term "due process" even defined other than in 35-8:

(1) notice of the adverse action, an explanation of the adverse evidence and an opportunity to present the member's position or (2) a legitimate CAP interest or regulatory provision that results in an unfair or arbitrary treatment of an individual.

You're blowing the whole due process concern way out of proportion. This isn't a court of law. It's a membership action in an organization where "Membership ... is a privilege and not a right."

[JeffDG]

Nowhere does 35-3 discuss informing the next echelon of the intention to terminate membership, other than with the 2B form itself. But there's nothing prohibiting it, either. Don't you think there would be if such a (very likely) conversation is considered an inherent conflict to a member's due process rights?

You cannot provide an impartial appeal for a decision you made.  That's a fundamental aspect of due process.

Also, the appeal is decided by an appeals board, not an individual.

You might want to re-read 35-3 again.  The approving authority makes the final decision, and can choose to ignore the appeals board, with the restriction that if the appeals board recommends against termination, the punishment may not include termination

And nowhere in the regs is the term "due process" even defined other than in 35-8:

(1) notice of the adverse action, an explanation of the adverse evidence and an opportunity to present the member's position or (2) a legitimate CAP interest or regulatory provision that results in an unfair or arbitrary treatment of an individual.

You're blowing the whole due process concern way out of proportion. This isn't a court of law. It's a membership action in an organization where "Membership ... is a privilege and not a right."

And that's why I provided a definition from common law of due process.  It includes the right to a hearing before an impartial arbiter.

CAP could ignore due process if it chose to, but has chosen to incorporate due process rights in its regulations, and as a result those rights attach.