What constitutes "active participation"?

[FW]

For those reading CAPR 35-3, here's a question for you.

The National Commander decides to terminate the membership of the National Vice Commander for misconduct.  The National Vice Commander appeals the decision.  Who appoints the Appeal Board and acts as the Approving Authority deciding the appeal?  (Note, the regulation specifically waives conflict-of-interest provisions in this situation)

Although highly unlikely, the matter would be handled by the BoG.  How they would handle it is up to them. The BoG would also deal with the removal of the National Commander. 

[lordmonar]

Because he can change his mind if/when made aware of new facts. The regulation provides that a termination action can be withdrawn by the initiating unit commander or the approving authority at any time.

I'm sorry to sound a little harsh......but "how can he get a fair hearing" is the question.

Because the tainted officer can change his mind......does not make anything fair.

How does a member rebut accusations that he does not even know may be laid against him?

That is what this conversation is about right now.

If the appeal authority has been prejudiced by information/accusations that the defendant does not know about.....how is that fair?   

Now like I said before.....it is possible to ask for advice with out crossing that line.   But it is hard.   JeffDG comes at the problem from the "not only ethical but maintaining the appearance of ethical".   So unless you are prepared to record your conversation and be prepared to rebut an counter accusation of "but they colluded to get me kicked out!" the "easiest" thing to do is....not to discuss it with the appeal authority.  If you have to......discuss it with them because you simply just don't know what you are doing (very possible in CAP...and that is not a dig on anyone....until the first 2b comes alone....most of us did not know what the heck we were doing)......then the solution is after talking with the next higher commander.....then THEY initiate the 2b, which simply pushes everything up one level....but keeps the member's due process rights.

 

[FW]

Fills out paperwork
Advises Group Commander and member of action

By your logic, group CC shouldn't see anything of the CAPF2B unless there's an appeal...

No...he should see it when it is filed as per the regs.

Taints the whole impartial bit, doesn't it?

Nope.  Informing the "approving authority"; etc. is just good practice.  If the subject of a 2b appeals, a whole other process begins.  Boards are convened, hearings held, decisions are made based on all.  If an appeals board recommends reinstatement; it's a done deal. If not, the approving authority can reinstate or agree to terminate.  There is a MARP review if wanted.  It is pretty tough these days NOT to get a fair hearing.

[Eclipse]

It's called "integrity".

And acting as the appeal authority for a decision you helped make, shows a distinct lack thereof.

No it shows a distinct adherence to the regulations.

As FW says, the MARP is there to address accusations of collusion or lack or process.
You may want to read their notes.  Many reasons are given for the occasional reversal.
" Talked to my boss." Is not one of them.

BTW - "kicking it upstairs" might "sound right" but I can tell you from experience its frowned upon
at best, because it overcomplicates things and can make it more difficult then it needs to be for everyone
involved.

[JeffDG]

For those reading CAPR 35-3, here's a question for you.

The National Commander decides to terminate the membership of the National Vice Commander for misconduct.  The National Vice Commander appeals the decision.  Who appoints the Appeal Board and acts as the Approving Authority deciding the appeal?  (Note, the regulation specifically waives conflict-of-interest provisions in this situation)

Although highly unlikely, the matter would be handled by the BoG.  How they would handle it is up to them. The BoG would also deal with the removal of the National Commander.

In reality, probably what would happen.  Much like the BoG basically rewrote the process when they terminated Mr. Pineda.  The preexisting regulations were not adhered to, but then the BoG has the legal authority to, paraphrasing the words of Darth Vader, "Alter the agreement, pray they don't alter it further."

However, the regulations stipulate that the Approving Authority in the event of a termination initiated by the National Commander is the National Vice Commander.  And it specifically exempts it from conflict-of-interest rules.  So, the CAP/CV would appoint the board, and rule on their recommendation...ie. his own termination.

For students of odd rules like this, a similar bug exists in the US Constitution.  If the Vice President is impeached, he presides over his own trial before the Senate.  The exception where the Chief Justice presides is only for cases where the President is impeached.

[JeffDG]

It's called "integrity".

And acting as the appeal authority for a decision you helped make, shows a distinct lack thereof.

No it shows a distinct adherence to the regulations.

Which you are somehow unable to cite.

OK, where are these invisible regulations?  I believe this is request number 5 for you to cite them.

Or is it that you've presided over such sham appeals, and don't want to admit your lack of integrity?

[vorteks]

Because he can change his mind if/when made aware of new facts. The regulation provides that a termination action can be withdrawn by the initiating unit commander or the approving authority at any time.

I'm sorry to sound a little harsh......but "how can he get a fair hearing" is the question.

Because the tainted officer can change his mind......does not make anything fair.

The question was "How can a commander who advised you to do something, or said "Sounds good, go ahead", then provide a credible assurance that he is not predisposed to follow his own advice?" and I answered it directly.

How does a member rebut accusations that he does not even know may be laid against him?

He only has to rebut accusations laid out against him in the 2B.

[vorteks]

OK, where are these invisible regulations?

I don't think the regulations are helping either of you. Evidently there's nothing saying a conversation with your commander is part of the process, nor is there anything saying that such a conversation would be prohibited or otherwise inappropriate.

[lordmonar]

Because he can change his mind if/when made aware of new facts. The regulation provides that a termination action can be withdrawn by the initiating unit commander or the approving authority at any time.

I'm sorry to sound a little harsh......but "how can he get a fair hearing" is the question.

Because the tainted officer can change his mind......does not make anything fair.

The question was "How can a commander who advised you to do something, or said "Sounds good, go ahead", then provide a credible assurance that he is not predisposed to follow his own advice?" and I answered it directly.

How does a member rebut accusations that he does not even know may be laid against him?

He only has to rebut accusations laid out against him in the 2B.

No.....and that's the point....the commander making the final decision may have other information that he is using to make his decision if....if....if the 2bing commander and he had a conversation about the member that was NOT included in the 2b.   Sometimes that information is personal contact....sometimes it is because the 2bing commander has been talking about ALL the things that are wrong with the member....not just that he violated regulation XY-Z Para 1.a.1).

That's JeffDG's and my point.

You got to be careful about what you talk about in relation to the member with initiator of the 2b and the appeal authority.    The member has the right to see ALL the evidence/accusations against him.

[JeffDG]

Because he can change his mind if/when made aware of new facts. The regulation provides that a termination action can be withdrawn by the initiating unit commander or the approving authority at any time.

I'm sorry to sound a little harsh......but "how can he get a fair hearing" is the question.

Because the tainted officer can change his mind......does not make anything fair.

The question was "How can a commander who advised you to do something, or said "Sounds good, go ahead", then provide a credible assurance that he is not predisposed to follow his own advice?" and I answered it directly.

How does a member rebut accusations that he does not even know may be laid against him?

He only has to rebut accusations laid out against him in the 2B.

The ability to "change your mind" does not rebut a predisposition against a member.

[JeffDG]

OK, where are these invisible regulations?

I don't think the regulations are helping either of you. Evidently there's nothing saying a conversation with your commander is part of the process, nor is there anything saying that such a conversation would be prohibited or otherwise inappropriate.

He talks about regulations, I cite them.

I've provided a definition of the right to an impartial decisionmaker.  The regulations, by providing due process, import common law concepts such as that.  The fact its not defined strengthens my point.

It is clearly inappropriate.  It creates a predisposition in the ultimate arbiter against the member.  A man may not impartially judge his own decisions.

[FW]

For those reading CAPR 35-3, here's a question for you.

The National Commander decides to terminate the membership of the National Vice Commander for misconduct.  The National Vice Commander appeals the decision.  Who appoints the Appeal Board and acts as the Approving Authority deciding the appeal?  (Note, the regulation specifically waives conflict-of-interest provisions in this situation)

Although highly unlikely, the matter would be handled by the BoG.  How they would handle it is up to them. The BoG would also deal with the removal of the National Commander.

In reality, probably what would happen.  Much like the BoG basically rewrote the process when they terminated Mr. Pineda.  The preexisting regulations were not adhered to, but then the BoG has the legal authority to, paraphrasing the words of Darth Vader, "Alter the agreement, pray they don't alter it further."

However, the regulations stipulate that the Approving Authority in the event of a termination initiated by the National Commander is the National Vice Commander.  And it specifically exempts it from conflict-of-interest rules.  So, the CAP/CV would appoint the board, and rule on their recommendation...ie. his own termination.

For students of odd rules like this, a similar bug exists in the US Constitution.  If the Vice President is impeached, he presides over his own trial before the Senate.  The exception where the Chief Justice presides is only for cases where the President is impeached.

Good reply, however this is how it would probably work:
The National Commander relieves the Vice Commander.
A majority of the BoG agrees. The CV is gone.
A new Vice Commander is appointed.
A CAPF2b is completed for the former CV by the CC.
The new CV presides as the approving authority.

Done deal...

[Eclipse]

It's called "integrity".

And acting as the appeal authority for a decision you helped make, shows a distinct lack thereof.

No it shows a distinct adherence to the regulations.

Which you are somehow unable to cite.

OK, where are these invisible regulations?  I believe this is request number 5 for you to cite them.

Or is it that you've presided over such sham appeals, and don't want to admit your lack of integrity?

There's no point in requoting that which has been quoted a number of times.
You have chosen to color between the lines and make assertions and assumptions where
none are warranted, and regarding what is a very straightforward process.

You are essentially asking for "proof of the negative" to buoy your own whole-cloth creations.

Absent the acceptance of these creations, you then resort to a personal attack, because that's
usually a good way to "win the internet".

Your problem here is that you are confusing the philosophical / theoretical argument about
whether the process, as defined, is "fair", or might have the potential for abuse with the reality that
those arguments are irelevent to the process as defined.

You have also failed to cite anything which prohibits the Group or Wing CC from doing their actual
duty in discussing the termination, nor anything in the regulations which provide that those discussions
become some breach of process or collusion, or which would limit those discussions in that regard.

Your quotation(s) of precedent regarding bias and neutrality are also irrelevant since there
is no legal guarantee in that regard to the membership - internal policies
and regulations do not have any legal standing.  In the end, if CAP wants you out, you're out.

The next echelon is the appeal authority.  Period.  That's defined by NHQ with no limit or
definition of discussions in that regard between a commander and his subordinate.  The only
comment to that effect is direct conflict of interest (which is not defined anywhere as
previous discussions or knowledge of the situation).

The cite is in your court.

[Luis R. Ramos]

And the middle-of-the-afternoon soapbox...

Semper!

:angel:

[JeffDG]

There's no point in requoting that which has been quoted a number of times.
You have chosen to color between the lines and make assertions and assumptions where
none are warranted, and regarding what is a very straightforward process.

Waiting for you to cite, just once.  You haven't because you can't.  You keep saying "This is the NHQ process", yet I've quoted the NHQ process, none of which refers to pre-coordination with higher HQ...you keep saying that it is part of the process, but have yet to provide one single cite, other than your repeated assertions, as evidence of this mythical NHQ process.

I get it, you're defensive.  You presided over sham appeals, but you honestly didn't know any better, no malice intended.  Now you can't wrap your head around the simple fact that you were judge in a Kangaroo Court.  I get it, you'll not admit it due to cognitive dissonance.

[JeffDG]

The next echelon is the appeal authority.  Period.  That's defined by NHQ with no limit or
definition of discussions in that regard between a commander and his subordinate.  The only
comment to that effect is direct conflict of interest (which is not defined anywhere as
previous discussions or knowledge of the situation).

The cite is in your court.

I've provided case law regarding the need for a neutral impartial arbiter as the sine qua non of due process.  You just don't like the fact that it puts you in the role of Kangaroo Court judge.

[JeffDG]

Your quotation(s) of precedent regarding bias and neutrality are also irrelevant since there
is no legal guarantee in that regard to the membership - internal policies
and regulations do not have any legal standing.  In the end, if CAP wants you out, you're out.

CAP has chosen in the regulations to implement a due process standard, and as a result, they import the entire concept of due process from the common law, so my citation of legal precedent is entirely apt and appropriate.

What's your definition of due process that does not include a neutral arbiter?  If its not in the regs, then legal precedent controls, but you can't find anything.  My mistake, you're more of a Kangaroo Court Jester than Judge.

[Eclipse]

CAP has chosen in the regulations to implement a due process standard, and as a result, they import the entire concept of due process from the common law,

Wow - I hope you didn't hurt yourself making that leap.

[MacGruff]

JeffDG and Eclipse - Please do not degenerate this interesting discussion by turning it personal. Calling people unethical and participants in "kangaroo courts" is a bit beyond the line, no?


Just to throw something else in here that has no bearing on CAP, but that does show how far things have changed in the world over the past 70 years, I just read a historical article that discussed the War Crimes trials of Japanese after World War II by the Dutch in Indonesia. As it turned out, the Dutch had temporary courts-martial review the cases of ~1000 Japanese war criminals. The thing that relates it to this discussion is that all the Dutch judges were people who were POWs during World War II, and POWs who suffered in the Japanese camps. So, they had people who were judges who witnessed first hand the war crimes that they were then the judges of! Quite a ways away from the Due Process discussion of this thread, eh?

[Eclipse]

JeffDG and Eclipse - Please do not degenerate this interesting discussion by turning it personal. Calling people unethical and participants in "kangaroo courts" is a bit beyond the line, no?

I agree - and please make sure to direct that at the people making those statements.