Analyzing the Tension between Military Force Reductions and the Constitution: Protecting an Officer's Property Interest in Continued Employment
Flynn-Brown, Joshua, Suffolk University Law Review
In 2011, the unemployment rate for military veterans discharged between the years 2001 and 2011 stood at 12.1%. (1) The jobless rate for all veterans stood at 8.3%. (2) Meanwhile, the overall unemployment rate hovered at 8.8%. (3) Between the U.S. government's current budgetary tailspin and the ongoing drawdown with respect to the wars in Iraq and Afghanistan, it is inevitable that service members will feel the impact of economic challenges. Nevertheless, this impact becomes even more dramatic when analyzing the Department of Defense's (DOD) force-shaping measures in 2011 because these force reductions are responsible for discharging tens of thousands of service members. (4)
Such deep military cuts present a unique opportunity to legally dissect the military's employment culture. Can the military fire service members at-will even when they are on the eve of retirement? Do constitutionally protected property rights attach, and if so, when? Can a legislative remedy protect officers? (5) These are some of the questions this Article addresses.
Generally speaking, there is an assumption that military personnel can be fired at-will simply because they are in the military. For decades, however, the DOD, in conjunction with the support of Congress, has recognized a career expectation in continued employment, specifically within the officer ranks. For instance, in support of the Defense Officer Personnel Management Act (DOPMA), (6) signed into law in 1980, the House of Representatives openly declared that an officer, "on attaining permanent O-4 grade, has a career expectation of 20 years of service. At the completion of 20 years of service he is eligible for immediate retirement." (7) Thus, Congress--the lone body that has plenary constitutional power to regulate the military--expressed a belief that officers have a career expectation in continued employment once a service member reaches the grade of O-4. (8) This is clear evidence that members of Congress intended to limit the application of the "up or out" system as applied to officers. (9)
The career expectation in continued employment is all the more clear when analyzing the rules that the DOD has promulgated under the authority of DOPMA to protect O-4s not promoted to O-5. For example, when an O-4 is not promoted to the next grade, the officer is subjected to a selective continuation board. (10) This board's purpose is to continue officers on active duty even when not promoted. Such boards illustrate that the military's promotion system is not an absolute "up or out." More importantly, the DOD rule that governs the continuation process, Instruction Number 1320.08 (the Instruction), states that "[a] commissioned officer on the Active Duty List in the grade of O-4 who is subject to discharge ... shall normally be selected for continuation if the officer will qualify for retirement ... within 6 years of the date of continuation." (11) The 2007 version of the Instruction, applied during the historic 2011 reduction-in-forces program, has the force of law. (12)
Irrespective of the 2007 version of the Instruction and Congress's intent, force reductions in 2011 undercut the career expectation in continued employment for the first time in thirty years. (13) These actions suggest an ugly prioritization of economic concerns over troop welfare. To use the Air Force as a specific example, in one month the Air Force decided to involuntarily "separate"--or in other words, fire--157 o-4s who were not promoted to O-5. (14) These 157 O-4s will never receive retirement after more than fourteen years in service--contrary to the 2007 version of the Instruction and the intent of Congress--because the DOD refused to comply with the mandate that officers within six years of retirement be continued. (15) In April 2012, a few months after these terminations, the DOD conveniently changed the Instruction to conform to the mass firings, and attempted to give cover to service branches that had terminated qualified officers. …