Air Force Boards of InquirySeptember 20, 2019
Air Force Boards of Inquiry are governed by AFI 36-3211, recently updated in June of 2022. The following article is meant as a general overview of the process for Active Duty Officers. There are many complexities to Air Force Boards of Inquiry that require a more thorough review of an officer’s specific case and consultation with a military lawyer familiar with the reference listed above.
Air Force Boards of Inquiry: Initiation
Air Force officer elimination is initiated by a Show Cause Authority (SCA). SCAs are usually General Court-Martial Convening Authorities (GCMs) or Wing Commanders.
Air Force officers can be eliminated for any of the following reasons, listed in AFI 36-3206: substandard performance, failure to meet financial obligations, intentional or discreditable management of personal affairs, drug abuse, serious or recurring misconduct, intentional neglect or intentional failure to either perform assigned duties or complete required training, misconduct resulting in loss of professional status necessary to perform military duties, intentional misrepresentation of facts in official statements, records or commission documents, sexual assault, sexual perversion, sexual deviation, professed fear of flying, retention not in the interests of national security, doesn’t following preventive medical procedures to prevent HIV transmission, officers sentenced to confinement for more than 6 months and no dismissal, and an unprofessional relationship by a person serving in special position of trust as recruiter, faculty or staff. Having elimination initiated for one of these reasons does not mean that the officer will automatically be eliminated. For example, just because an officer has a professed fear of flying does not mean that they are automatically separated; it is just a reason to initiate elimination and start the process.
Air Force Boards of Inquiry: Board Eligibility
Whether an officer gets a board of inquiry depends on how many years of service they have and the characterization of discharge requested by the SCA. Before an Other than Honorable Discharge (OTH) can be given, a board of inquiry must be conducted. Regardless of the characterization of service sought, officers with 5 or more years of active commissioned service are entitled to have their case heard by a board of inquiry.
Air Force Boards of Inquiry: Officer Eliminations without Boards
Air Force Officers can only contest these types of eliminations with a written appeal. This appeal can include letters of character and other relevant evidence. Even if elimination is initiated by the SCA, The Secretary of the Air Force is the approval authority; however, the SCA can retain the officer without sending the action to the Secretary of the Air Force.
Air Force Boards of Inquiry: Board Procedures
Officers who are eligible for a board of inquiry are notified of the initiation of elimination in writing. Officers then have the ability to request resignation, retirement, or discharge in lieu of elimination, or demand a board of inquiry. Officers should consult with a military lawyer before selecting an option.
A board of inquiry consists consists of at least three board members. All must be in the rank of LTC or higher. All officers have to be senior to the officer facing elimination and be fair and impartial.
A prosecutor is appointed to represent the Government at a board of inquiry. The rules of evidence generally do not apply; however, evidence must always be relevant, material, and competent. Furthermore, Air Force Boards do have some hearsay protections. Hearsay is, generally, any statement admitted through a witness/as part of a document that was said outside of the board’s presence. A military lawyer’s analysis is critical if an officer is facing damaging hearsay evidence.
Furthermore, there are provisions within AFI 36-3206 that allow the prosecution and SCA to withhold certain OSI reports from an Officer facing elimination. This is an alarming provision of the AFI and any Officer that this applies to should immediately consult with legal counsel to ensure all evidence against them is turned over. Prosecutors are also required to bring favorable information for the respondent to the Board’s attention. This is an important obligation and responsibility of the prosecutor that should be honored.
The Air Force Officer in question is present and represented by counsel. The defense is allowed to challenge the Government's evidence, present their own evidence (letters of character, evidence that undercuts the reasons for the board, etc.) and make argument to the board.
The board members will then make a decision on whether the officer committed the underlying accusations that lead to the board, if that finding warrants separation, and what characterization of service is warranted.
Board members who disagree with the majority vote are allowed to file a minority report explaining their position. Board members are not required to file this minority report, unlike the Navy and the Marines.
Air Force Boards of Inquiry: Post Board Actions
If a board of inquiry recommends retention, then the officer must be retained. If the officer is recommended for separation, they will be given a chance to submit appellate matters. The appellate matters are then sent to the Air Force Personnel Board (AFPB) where another board reviews the elimination action as a whole and makes a recommendation to the Secretary of the Air Force for final action. There is no right to appear in front of this board; however, the AFPB may allow it if requested. If the board recommends retention, the officer is retained. If the board recommends separation, the case is forwarded to the Secretary of the Air Force.
The Secretary of the Air Force is allowed to take any action equal to or better for the officer than the board of inquiry recommendations.
Air Force Boards of Inquiry: Concurrent Medical Evaluation Board Processing
Often times an officer will be going through the medical separation process at the same time as an elimination action. When this happens, the separation action continues until the point it is supposed to be forwarded to the AFPB. The separation action is not forwarded to the AFPB by the SCA until advised by HQ AFPC/DPPRS that he/she can do so. If the separation action is forwarded to the AFPB, the Office of the Secretary of the Air Force is the allowed to pick between the medical separation and other separation. Little guidance drives his/her decision and it is therefore important for Air Force Officers in this situation to obtain legal counsel to advocate for the medical separation/retirement.
Air Force Boards of Inquiry: Retirement Eligible Officers
Unfortunately, it is not uncommon for retirement eligible officers to face elimination; however, Air Force Officers are afforded a lot more retirement protection that other services (Army, i.e.). Officers are afforded the opportunity to request retirement in lieu of elimination if eligible. Furthermore, if Officers don’t request retirement before a Board of Inquiry and are recommended to be separated by the Board, they will be retired. Importantly, this only applies to active duty Air Force Officers. Reserve Air Force Officers must apply for retirement before a Board of Inquiry if they want to be protected. Any retirement eligible Officer facing a Board of Inquiry should retain an experienced Military Lawyer, as he/she has a lot to lose and still may be retired in a lower rank/pay grade.
Air Force Boards of Inquiry: Education Recoupment
Any educational assistance, bonus, or special pay that was received by an Officer recommended for separation is subject to being recouped by the Air Force. An Officer will be liable for any portion of said assistance/bonus/special pay that was not served back in accordance with the applicable agreement. If there is any dispute as to the amount owed an impartial officer (with no board of inquiry) or the board of inquiry will determine how much money is owed. This alone can be a large amount of money for an Officer and a military attorney should be consulted if applicable.
This article was written by Attorney Matthew Barry