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ADMINISTRATIVE DUE PROCESS—WOUNDED WARRIORS AND DUE PROCESS: THE CUSHMAN V. SHINSEKI ANALOGY
Military service members and veterans receive various benefits arising from their military service. The Department of Veterans Affairs acts as the trustee for distribution of these benefits upon veterans’ transition to civilian society. Among these benefits is disability compensation for medical conditions incurred or aggravated by the veteran in the course of their military service. This compensation makes the veteran whole for each condition that can be traced back to the veteran’s service. In many cases, this compensation is the veteran’s sole source of subsistence when they return to civilian life. Until 2009, these benefits were not considered property interests under the Due Process Clause. But the Court of Appeals for the Federal Circuit changed that in Cushman v. Shinseki, which stands for a rather simple proposition: veterans’ benefits are constitutionally protected property interests.
The author takes the proposition presented in Cushman and seeks to expand it to another scheme that provides disability benefits to service members still in the military. The Department of Defense may separate with severance pay or medically retire a member who suffers from a medical condition which renders him or her unfit for further military duty. The military disability benefits available to members under this scheme lack any judicially recognized constitutional protection—despite many shared characteristics with disability compensation provided to veterans. The unspoken doctrine of judicial non-interference with national defense and military matters—the military deference doctrine— has stymied opinions like Cushman from appearing in the military disability benefits context. The author argues this doctrine does not apply where the military is acting as an administrator of benefits instead of providing for the national defense. Classifying military disability benefits as property interests does not imply national security issues. Rather, it recognizes that the government cannot arbitrarily deprive service members of disability benefits. The end sought by the Cushman analogy is as simple as the proposition the case stands for: disabled service members ought to be guaranteed a fundamentally fair adjudication—no matter the circumstances.
Dennis M. Carnelli, ADMINISTRATIVE DUE PROCESS—WOUNDED WARRIORS AND DUE PROCESS: THE CUSHMAN V. SHINSEKI ANALOGY, 35 W. New Eng. L. Rev. 161 (2013), https://digitalcommons.law.wne.edu/lawreview/vol35/iss1/6