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Family Advocacy Program and Due Process
Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.
We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.
Executive Summary
The article critiques the U.S. Army’s Family Advocacy Program Incident Determination Committee (IDC), arguing that the IDC’s quasi‑judicial procedures fail to provide the procedural due‑process protections the Fifth Amendment requires when the government threatens a Servicemember’s liberty or property interests. After (1) outlining Supreme Court doctrine on procedural due process and the demise of Chevron deference in Loper Bright v. Raimondo, (2) reconstructing the history and structure of the Army’s IDC and the Defense Task Force on Domestic Violence (DTFDV) findings (2001‑2003), and (3) contrasting the IDC with Title IX hearing models used before and after the DeVos‑era reforms, the author (4) proposes education, policy, and litigation strategies to bring the IDC into constitutional compliance.
I. Doctrinal Framework
A. Liberty and Property Interests
The Fifth and Fourteenth Amendments forbid the government from depriving a person of life, liberty, or property without due process. Supreme Court precedent defines:
- Property interests as “legitimate claims of entitlement” created by statute, contract, or established practice. Bd. of Regents v. Roth, 408 U.S. 564, 576 (1972).
- Liberty interests as freedom from (i) bodily restraint (Vitek v. Jones, 445 U.S. 480 (1980)), (ii) stigma that “seriously damages” one’s standing in the community (Roth, at 573), or (iii) the loss of employment opportunities coupled with reputational harm (Bishop v. Wood, 426 U.S. 341 (1976)).
B. Mathews Balancing
When a liberty or property interest is at stake, courts apply the three‑factor test of Mathews v. Eldridge, 424 U.S. 319 (1976):
- Private interest affected;
- Risk of erroneous deprivation under existing procedures and the value of additional safeguards;
- Government interest and administrative burden of added procedures.
C. Agency Deference After Loper Bright
For forty years Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984), required courts to defer to an agency’s reasonable interpretation of statutory gaps. In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the Court overruled Chevron, holding that ambiguity alone is not an implicit delegation to agencies. Military programs such as FAP—created only by Department of Defense (DoD) directives rather than by explicit congressional mandate—must now survive full judicial review without Chevron insulation.
II. The Family Advocacy Program IDC
A. Statutory and Regulatory Origins
Congress’s FY 2000 National Defense Authorization Act, Pub. L. 106‑65 §§ 591–94, directed DoD to issue “standard guidelines” for commanders responding to domestic‑violence allegations but did not create an adjudicative body. DoD instead promulgated DoDI 6400.01 and DoDM 6400.01‑V3, which require each Service to empanel a multidisciplinary Case Review Committee—renamed an IDC by Army Directive 2021‑26—to decide, by a bare‑majority vote and a preponderance‑of‑information standard, whether an allegation is “substantiated.”
B. DTFDV Findings (2001‑2003)
Congress’s DTFDV evaluated CRCs and concluded that they were clinical bodies “incapable of investigating criminality,” lacked evidentiary rigor, blurred therapeutic and adjudicative roles, and raised “substantial due‑process concerns.” The Task Force twice urged DoD to divest the CRC of fact‑finding and replace it with a Domestic Violence Assessment and Intervention Team focused on treatment. DoD took no action.
C. Seven Structural Flaws
The IDC still embodies the defects flagged twenty years ago:
| # | Defect | Constitutional Implication |
|---|---|---|
| 1 | Single case‑manager investigator presents evidence | Violates APA § 554(d) separation‑of‑functions; lacks neutral fact‑finder. |
| 2 | Preponderance‑of‑information standard | Facilitates erroneous deprivation despite high private stakes. |
| 3 | Accuser/accused excluded from hearing | Denies “opportunity to be heard” (Goldberg v. Kelly, 397 U.S. 254 (1970)). |
| 4 | Counsel barred | Forecloses meaningful advocacy, cross‑examination. |
| 5 | No cross‑examination | Increases risk of factual error (Mathews factor 2). |
| 6 | No transcript or full record | Precludes effective appeal or judicial review. |
| 7 | Decision by simple majority | Undermines reliability for quasi‑criminal findings. |
Because substantiated findings routinely trigger adverse discharge, loss of retirement pay, VA benefits, security‑clearance revocations, and family‑court consequences, they undoubtedly burden both liberty and property interests.
III. Comparative Lens: Title IX Hearings
| Feature | 2011 “Dear Colleague Letter” Model | DeVos (2020) Regulations | IDC |
|---|---|---|---|
| Investigation | Single investigator | Separate investigator & decision‑maker | Single investigator |
| Burden of Proof | Preponderance mandated | Preponderance or clear‑and‑convincing (uniformly) | Preponderance‑of‑information |
| Live Hearing | Optional/rare | Mandatory | None |
| Parties Present | Often excluded | Required (may appear virtually) | Prohibited |
| Counsel | Often limited | Allowed; may cross‑examine | Prohibited |
| Cross‑Examination | Discouraged | Required (via counsel) | None |
| Record | Often summary | Full audiovisual record | Minimal minutes |
The DeVos reforms cured most due‑process deficits identified in federal litigation (e.g., Khan v. Yale Univ., 27 F.4th 805 (2d Cir. 2022)). The IDC retains every infirmity the DeVos rules eliminated.
IV. Analysis under Mathews
| Factor | Evaluation |
|---|---|
| 1. Private interest | Career, livelihood, retirement pay, VA eligibility, and reputation—weighty interests. |
| 2. Risk of error & value of safeguards | High risk given ex parte process, absence of adversarial testing, and low evidentiary threshold. Live hearings, counsel, cross‑examination, recordkeeping, and unanimous voting would markedly reduce error. |
| 3. Government interest & burden | Army’s interest in family safety is compelling, but providing DeVos‑style safeguards imposes modest administrative cost relative to stakes; commanders already convene formal boards under AR 15‑6 and separation boards with greater procedural formality. |
Balancing strongly favors additional safeguards. Post‑Loper Bright, courts reviewing IDC‑based discharges will no longer defer to DoD’s interpretation of NDAA § 591; they will measure the procedure directly against constitutional minima.
V. Pathways to Reform
- Education. Publish scholarship (such as this article) and brief Veterans Service Organizations, congressional staff, and judge advocates to raise awareness of IDC deficiencies.
- Regulatory Change. Amend AR 608‑18 and DoDM 6400.01‑V3 to:
- Separate investigation and adjudication.
- Permit counsel, live hearings, cross‑examination.
- Adopt at least a clear‑and‑convincing burden.
- Require verbatim transcripts and unanimous decisions.
- Alternatively, abolish the IDC and rely on criminal justice mechanisms, as DTFDV recommended.
- Strategic Litigation. Identify test cases where an IDC finding was a but‑for cause of an other‑than‑honorable discharge; seek correction in the Boards for Correction of Military Records, the Court of Federal Claims (Weaver v. United States, 46 Fed. Cl. 69 (2000)), and ultimately the Article III courts, invoking:
- Procedural‑due‑process violations (Mathews).
- APA § 706(2)(D) (agency action without observance of procedure required by law).
- Post‑Loper Bright non‑deference to DoD’s regulatory gap‑filling.
VI. Conclusion
The IDC’s current structure cannot withstand constitutional scrutiny. It deprives Servicemembers of substantial liberty and property interests on the strength of untested evidence, behind closed doors, with no record suitable for appellate review. Courts applying Mathews—freed from Chevron deference—are likely to hold that the Army must, at minimum, adopt the procedural protections now standard in Title IX adjudications. Proactive regulatory reform would protect victims, respect the rights of the accused, and spare the Department of Defense from inevitable—and avoidable—judicial rebuke.