What constitutes "active participation"?

[a2capt]

..and it all comes down to debate over interpretation. This is a futile contradiction.

Argument Clinic - Monty Python's The Flying Circus

One says "the regulation does not say that" .. but the other says "and it doesn't say you can't do that" ..

CAPM 39-1 doesn't say tie shoes, but the staunch will proclaim if it's -NOT- in there, you can't do it.

[Майор Хаткевич]

Jeff, I'm typically down with what you put down, but somehow you've turned "notifying higher HQ of a termination" to "pre-notification" and "collusion".

How?

We started about talking 2b'ing cadets/SMs who aren't active in the program. Typically that's first year, non-invested (remember, they aren't even participating!) new members who probably don't care 1/100th about CAP compared to the " regulars" here.

We've established a few facts. We've established a complete disconnect in the conversation.

I don't think anyone will find a sustainable IG/MARB complaint in "Hey Group CC I talk to regularly and consider a buddy, I'm terminating a cadet for lack of safety currency/communication/attendance, will have the paperwork done later this week. We still on for that BBQ on Saturday?".

A higher HQ commander worth his CC Badge will tell the Unit CC to stop talking if he goes into details about C/Noshow being mouthy, so good riddance, IN CASE there IS an appeal. BTDT, told to not talk about a situation in case it escalated.

Supposedly we waste time on CAPTalk to participate in a level of CAP most members aren't interested in, and occasionally find out that we didn't sink any subs, a new reg update dropped three minutes ago, and the rumors someone heard from a friend close to NHQ. We're all (except for a few like Radioman was) on the same team.

[Eclipse]

I don't think anyone will find a sustainable IG/MARB complaint in "Hey Group CC I talk to regularly and consider a buddy, I'm terminating a cadet for lack of safety currency/communication/attendance, will have the paperwork done later this week. We still on for that BBQ on Saturday?".

Just so we're staying in the fact lane, this example doesn't have an avenue of appeal, so there's no issue regardless.

[Майор Хаткевич]

I don't think anyone will find a sustainable IG/MARB complaint in "Hey Group CC I talk to regularly and consider a buddy, I'm terminating a cadet for lack of safety currency/communication/attendance, will have the paperwork done later this week. We still on for that BBQ on Saturday?".

Just so we're staying in the fact lane, this example doesn't have an avenue of appeal, so there's no issue regardless.

True, and that's what got this conversation started.

[lordmonar]

I don't think anyone will find a sustainable IG/MARB complaint in "Hey Group CC I talk to regularly and consider a buddy, I'm terminating a cadet for lack of safety currency/communication/attendance, will have the paperwork done later this week. We still on for that BBQ on Saturday?".

Just so we're staying in the fact lane, this example doesn't have an avenue of appeal, so there's no issue regardless.

Actually no...that is not correct....not in the case of a senior member anyway.

Also while 35-3 6.b seems to show that non misconduct terminations for cadets are not appeal able....I don't think that it is the intention of NHQ that those 2bs are not appealable.

I will grant that is what the regs say....but when talking about fairness....and due process I don't think it is the right way to do.  Unit's make mistakes and there should always be a way for members....or ex-members to seek redress for that.

That asside.....definitely on the senior side though......what ever paragraph you wanted to 2b a guy for being and Empty shirt would definitely not fit one of the automatic terminations definitions.

[lordmonar]

Jeff, I'm typically down with what you put down, but somehow you've turned "notifying higher HQ of a termination" to "pre-notification" and "collusion".

How?

We started about talking 2b'ing cadets/SMs who aren't active in the program. Typically that's first year, non-invested (remember, they aren't even participating!) new members who probably don't care 1/100th about CAP compared to the " regulars" here.

We've established a few facts. We've established a complete disconnect in the conversation.

I don't think anyone will find a sustainable IG/MARB complaint in "Hey Group CC I talk to regularly and consider a buddy, I'm terminating a cadet for lack of safety currency/communication/attendance, will have the paperwork done later this week. We still on for that BBQ on Saturday?".

A higher HQ commander worth his CC Badge will tell the Unit CC to stop talking if he goes into details about C/Noshow being mouthy, so good riddance, IN CASE there IS an appeal. BTDT, told to not talk about a situation in case it escalated.

Supposedly we waste time on CAPTalk to participate in a level of CAP most members aren't interested in, and occasionally find out that we didn't sink any subs, a new reg update dropped three minutes ago, and the rumors someone heard from a friend close to NHQ. We're all (except for a few like Radioman was) on the same team.

I pointed out before....that sometimes people look at things differently based on their point of view or from their staff position/job.

Jeff is an IG.   Who would get involved in a situation like this when the wing CC gets an appeal letter from some member.....and he's got to look at things, not on just what the regs say, but also on the due process side of things, the justice side of things, the what's right for the organization side of things.

Like I said before from a normal leadership point of view.....it is natural for a subordinate to take issues up his chain of command, for advice, sanity checks, just to let off steam as part of the normal mentoring process.   But from a semi-legal point of view....doing so, in the case of membership termination and the published regulations, may unintentionally violate the concept of due process, and a fair and unbiased hearing.

That the regulations don't address it.....is not surprising.....CAP regs are never wholly complete, not by a long shot.   That's why the spirit/intent of what the reg writers is sometimes more important then what they actually wrote down. (see my comments about non-misconduct terminations for cadets).

I don't think anyone really thinks that you are Eclipse is out rail roading members out of CAP and "fixing" the appeals process.....not intentionally.    But.....we all remember the bad old days.....where a lot of people did get rail roaded out.   And the system failed them because of less then ethical "leaders" in our organization.

One of Jeff's jobs as an IG is to find, stop and fix those sort of "leaders"....but also to make sure that we don't even have the apperance of anything like that going on.   So that is his point of view when he hears "I called the Group Commander and told him this and he said we should proceed with the 2b's".    Simply on the surface...that statement give the impression that some sort of "fix" is in........and it probably kick up his IG Spider Senses.

It is just like we do on the CP side of things.......We saw that video some was putting together.....I saw a 1/2 second of two cadets doing push ups in the cabin of an airplane.....my CPP Threat Warning kicked in.     May have been totally innocent, may have been nothing....but it pings my radar and I would advise those who were doing it....to be aware of HOW IT LOOKS.

Like I said before.   

It is natural in right to seek advice from your supervisor over leadership issues.   We all just need to be aware of the implications of those actions.  And while we all hope that as member move up in responsibility our supervisors are all knowing and all wise in all things CAP.......we also know that they are just like us for the most part.   They may never had to do a 2b as a squadron commander (if they ever were) and may be just in the dark as everyone else.

This is evident when you see Wing Kings instructing commanders to transfer or terminate empty shirts.....which is why I got involved in this conversation in the first place.

[JC004]

[vorteks]

That's called "appeal to authority" and is a logical fallacy.

...  My mistake, you're more of a Kangaroo Court Jester than Judge.

That's called ad hominem and is a logical fallacy. It's a sign someone feels they're losing an argument.

This is straight out of L2L chapter 5, which my cadet just studied. Too bad you had to resort to that. You were doing great up to that point.

[Storm Chaser]

JeffDG, I've yet to see a single citation from CAP regulations stating that notifying the commander at the next echelon prior to filing a termination action is prohibited, a conflict of interest or against due process. You keep stating over and over your opinion that it's against due process, but without a CAP citation to substantiate it, that is just your opinion (one of many). If you could provide such citation from a CAP regulation, in black and white (no interpretations), then this discussion would be over.

You've quoted some court cases to justify your position, but last I checked, CAP doesn't require its squadron commanders to be attorneys or have degrees in law. That makes your quotes irrelevant to the discussion, as most commanders would not be familiar with them (nor required to know them). CAP, however, have attorneys and if they deem something necessary for the organization in order to comply with the law or government regulations, it would ensure it was codified as such in CAP regulations.

Since we keep going in circles with this discussion, I recommend seeking guidance from NHQ. If it's determined that your position is the intent of the regulation, then the regulation should be changed to reflect that so there's no doubt. Otherwise, let's allow commanders to do their jobs and not hinder them with additional unwritten rules and requirements.

[FW]

CAPR35-3 has already been quoted.  It details the notification procedures for the process.  I am really confused about the "arguments" presented in this thread, however that isn't anything new...

[AirAux]

JeffDG, you are a good man and on the right track.  The whole thing will boil down to the Wing Legal officer before it is all done and then people will understand due process.  Until then, I believe the question should be, "What uniform should one wear when pondering, 2B or not 2B, that is the question?"  I go polo shirt up until the Hearing and then Dress uniform when representing the Corps.  And at the hearing, the Wing Commander showed up to testify what a great CAP Officer the defendant was, but she was dismissed after two questions.  Did you hear what the officer said?  Did you see the officer hit the other officer?  Dismissed.  We stipulated he was a great CAP officer, one of the best, but you can't hit a subordinate officer, no matter how good you are.. 

[vorteks]

... you can't hit a subordinate officer, no matter how good you are..

Cite, please.   

[AirAux]

I will look, I think it's under that one about conduct unbecoming an officer...

[JeffDG]

I will look, I think it's under that one about conduct unbecoming an officer...

With precedent cited as:
http://www.findingdulcinea.com/news/on-this-day/July-August-08/On-this-Day--General-Patton-Shocks-Public-by-Slapping-Crying-Soldier.html

"I am well aware of the necessity for hardness and toughness on the battle field. ... But this does not excuse brutality, abuse of the 'sick,' nor exhibition of uncontrollable temper in front of subordinates," Eisenhower wrote.

[JeffDG]

JeffDG, I've yet to see a single citation from CAP regulations stating that notifying the commander at the next echelon prior to filing a termination action is prohibited, a conflict of interest or against due process.

Let me draw a map.  Not everything is contained in the regulations

CAP guarantees due process.  As a result they import the definition of due process from common law applicable within the legal jurisdiction concerned.

The US Supreme Court (cited multiple times above) has defined a fundamental aspect of due process being a hearing and a decision by an arbiter that the individual reasonably expects will not be predisposed against him/her.  It's why, if you get into a scrape with the FAA, the appeal is heard by the NTSB, not the FAA.  An agency cannot judge it's own actions impartially.

If just one person can square the circle where a Group Commander who advised a Squadron Commander that he was good with a 2B is not "predisposed" towards finding that his advice was good, not guaranteed, simply predisposition is enough, then I'll eat my hat.

I provided 3 options for a Group Commander with integrity to follow in such a situation:
1.  Demure to provide advice to the Squadron Commander and consider the issue in due course if the matter is subject to an appeal on the record provided.  This refusal to provide pre-advice could be tempered by advice to seek counsel from Group Personnel Officer, or Wing.  The Group Personnel Officer or wing staff that provided advice on the substance of the termination would be precluded from serving on the Appeal Board.

2.  Listen the the Squadron Commander's case, and if it warrants termination, initiate the 2B him/herself, vesting the appeal with the Wing Commander

3.  Provide advice to the Squadron Commander, and if an appeal is lodged, advise the Wing Commander that you have a conflict-of-interest and ask him/her to appoint another Group Commander to consider the appeal instead of yourself.

All three of these preserve the member's due process rights and are fully in accordance with the regulations.

The situation I have a problem with is where a Group Commander provides advice to a Squadron Commander and advises that termination is in order, or worse yet, directs the Squadron Commander to terminate, then accepts jurisdiction over the appeal him/herself.

And for the record (from above), I am not, nor have I ever claimed to be, an IG.

[lordmonar]

And for the record (from above), I am not, nor have I ever claimed to be, an IG.

That is my bad....I got the impression from other threads that you were an IG or on the IG staff.

[Майор Хаткевич]

Sigh...

[JeffDG]

And for the record (from above), I am not, nor have I ever claimed to be, an IG.

That is my bad....I got the impression from other threads that you were an IG or on the IG staff.

Nah, I help coordinate inspections in my Group, not an IG.  I'm an Inspection Augmentee now!

[AirAux]

Thou shalt be not slapping an officer:  CAPR 35-5 is the authority for demotions.

CAPR 35-5, Section 1-9, Demotions:

1-9. Demotions. If an officer fails to perform the duties satisfactorily or
conducts himself or herself in a manner unbecoming his or her grade, the
unit commander will recommend demotion to an appropriate grade. The unit
commander will initiate this action on a CAPF 2, which will be routed through
channels to the promoting authority, who is also the demoting authority. The
demoting authority will indicate concurrence or non-concurrence and sign the
CAPF 2. If the demoting authority concurs, he or she will forward it to
National Headquarters for validation; if the demoting authority non-concurs,
he or she will return it through channels to the unit commander.

[FW]

The situation I have a problem with is where a Group Commander provides advice to a Squadron Commander and advises that termination is in order, or worse yet, directs the Squadron Commander to terminate, then accepts jurisdiction over the appeal him/herself.

That is a problem, and IMHO is a violation of due process.  If the group commander has a problem with a member, he should initiated the 2B. This isn't rocket science... though it may be a uniform issue...