Army Boards of InquirySeptember 20, 2019
Army boards of inquiry are governed by AR 600-8-24 and AR 15-6. The following article is meant as a general overview of the process for Active Duty Officers. There are many complexities to the board of inquiry process that require a more thorough review of an officer’s specific case and consultation with a military lawyer familiar with AR 600-8-24 and AR 15-6.
Army Boards of Inquiry: Initiation
Army officer elimination is initiated one of two ways. Each installation has designated General Officer Show Cause Authority (GOSCAs) that can initiate an Officer’s elimination (usually the Commanding General). Alternately, an Officer may have avoided initiation of elimination by a GOSCA only to have Human Resources Command (HRC) swoop in months or years later to initiate elimination. Both ways have their advantages and disadvantages that should be discussed with a military lawyer.
Army officers can be eliminated for almost anything; however, the following are listed as reasons in AR 600-8-24: substandard performance of duty (very vague to act as a catch all), misconduct, moral or professional dereliction, in the interests of national security, or having derogatory information in their official military personnel file (UCMJ, conviction, security clearance revocation, relief for cause officer evaluation report, letters of reprimand, failure at a service school, etc). 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 bad evaluation report or letter of reprimand in the their OMPF does not automatically result in a separation. It is just a reason to initiate elimination and start the process.
Army Boards of Inquiry: Eligibility
There are two different ways an officer can be eliminated. One is with a Board of Inquiry and one is without a Board of Inquiry. 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 GOSCA or HRC. Before an Other than Honorable Discharge can be given, a board of inquiry must be conducted. Regardless of the characterization of service sought, regular officers with more than 5 years of commissioned service and warrant officers with more than 3 years of commissioned service qualify for boards of inquiry.
Army Boards of Inquiry: Officer Eliminations without Boards
Officers who do not qualify for a board of inquiry (called probationary by AR 600-8-24) only have the ability to fight for retention or a better characterization of discharge (Honorable or General Under Honorable) in writing. Even if elimination is initiated by the GOSCA, The Secretary of the Army is the approval authority; however, if the GOSCA initiated elimination, he/she can retain the officer without sending the action to the Secretary of the Army.
Regardless, after an officer is notified by the GOSCA/HRC, they have the ability to gather evidence, letters of support, and put together a written response. That response is then routed up the chain of command with recommendations from everyone along the way.
Probationary officers also have the ability to resign or request discharge in lieu of elimination. These requests can be conditional on the officer getting a certain characterization of discharge. This option should be thoroughly discussed with a military lawyer before being requested.
Army 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, demand a board of inquiry, or write a written rebuttal. If the officer chooses to write a written rebuttal, it is forwarded to the initiating authority (HRC or the GOSCA). HRC or the GOSCA can either close the case without a board of inquiry or will refer the case to one. The written rebuttal is basically just a chance for an officer to have their case closed before going through their board of inquiry. This is rare.
Officers should consult with a military lawyer before selecting any option. Retirement eligible officers also have to consider selecting to retire in lieu of elimination. This should also be discussed with a military attorney.
Boards of inquiry are sometimes referred to as “show cause” boards. This is a misleading term because it implies that the officer facing elimination has to prove why they should not be separated. This is incorrect. The prosecution has to prove, by a preponderance of evidence standard, (more likely than not…51%) that “…the officer has failed to maintain the standards desired for their grade and branch…” and that the officer should be separated because of such. The point is that the burden of proof is on the prosecution, not the defense (as show cause board implies). Regardless, this is a common misconception and most board members need to be reminded of this by an experienced military lawyer either before or during the proceeding.
A board of inquiry is basically a mini trial. A board acts as the “jury.” It consists of a COL or above, and two LTCs or above. All officers have to be senior to the officer facing elimination and be fair and impartial. Officers belonging to special groups (i.e. minority group, reserve officer, those only being separated only for substandard performance of duty) have special rights and board composition should be discussed with a military lawyer.
A prosecutor handles the government’s case and basically attempts to convince the board to separate the officer with a certain characterization of discharge (depending on the chain of command’s goals). A defense lawyer and the officer facing elimination are present as well.
The prosecutor goes first. There is no requirement that any live witnesses be called. It is totally ok, and common, for the prosecutor to only present documentary evidence (i.e. a police report). The rules of evidence, except for relevance and some other legally technically rules, do not apply. What this means is that it is very easy for the prosecutor to conduct one of these hearings. With so much at stake for the officer, this is concerning.
The defense goes second and attempts to convince the board to retain the officer and/or give him/her a favorable discharge. The defense is allowed to call witnesses to discuss the underlying accusations or the officer’s career/character. There is a way to force in person testimony; however, generally witnesses will either be local (so they can come in person) or telephonic. An officer is allowed to present documentary evidence for the underlying accusations themselves, letters of support, or anything else that is deemed relevant (i.e. the officers entire career). Some officers chose to testify and there are different ways to do that. This should be discussed with a military lawyer.
After both sides present evidence, the prosecutor and defense attorney then make arguments to the board members. The board has the ability to summon their own evidence as well; however, this is rare. The board members then close the room and deliberate. They vote and by a majority decide three questions: did the officer commit the underlying accusations, do these accusations warrant separation, and if so, what characterization of service is warranted. The board then calls the officer, defense attorney, and prosecutor back in and reads their findings. The board is concluded after that.
Army Boards of Inquiry: Post Board Action
If a board of inquiry recommends retention, then the officer must be retained by HRC/GOSCA. If the officer is recommended for separation, they will be given a chance to submit appellate matters. Many things could be addressed in the appellate matters and a military lawyer should assist; however, they can include legal errors in the proceedings, general reasons why the officer should be retained, supporting evidence, etc. The appellate matters are then sent to HRC where a board of review is appointed to review the elimination action as a whole and make a recommendation to the Secretary of the Army on final action. If the board recommends retention, the officer is retained. If the board recommends separation, the case is forwarded to the Secretary of the Army.
The Secretary of the Army is allowed to take any action equal to or better for the officer than the board of inquiry recommendations. For example:
-if a board of inquiry recommends separation with a general discharge, the Secretary of the Army can retain the officer, give him/her an honorable discharge, or give him/her a general discharge. The Secretary of the Army cannot issue an Other Than Honorable Discharge in this example.
This post board process is very lenghty and can take close to a year to complete. Officers should plan accordingly.
Army 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 both processes continue separately. If the officer is found unfit, then the MEB/PEB findings are forwarded to the Secretary of the Army with the elimination action paperwork. AR 600-8-24 does not provide any guidance for the Secretary of the Army except that he should pick an “…appropriate disposition.” This basically means the Secretary of the Army can chose the separation action or MEB/PEB completely within his discretion. A military lawyer can assist a servicemember in advocating for the MEB/PEB.
Army Boards of Inquiry: Retirement Eligible Officers
Unfortunately, it is not uncommon for retirement eligible officers to face elimination. In accordance with 10 USC Section 1186, an Officer who has reached retirement eligibility cannot be eliminated through a Board of Inquiry. Said another way, an Officer who is retirement eligible will not lose his/her retirement benefits. Officers are afforded the opportunity to request retirement in lieu of elimination if eligible; however, this should be discussed with a Military Lawyer before such a request is submitted. Furthermore, an Officer may have their retirement rank and pay reduced through the Army Grade Determination Review Board. The bottom line is that officers who are retirement eligible and are facing elimination should be very concerned and proceed cautiously. It is even more important for these officers to be represented by an experienced military lawyer throughout the Board of Inquiry process.
This article was written by Attorney Matthew Barry