Coast Guard Boards of InquirySeptember 20, 2019
Coast Guard Boards of Inquiry
Coast Guard boards of inquiry are governed by COMDINST 1000.4. The following article is meant as a general overview of the process for regular officers. There are many complexities to Coast Guard boards of inquiry, including if you are a reservist and/or a warrant officer, that require a more thorough review of an officer’s specific case and consultation with a military lawyer familiar with the above listed references.
Coast Guard Boards of Inquiry: Initiation
The Commander, Personnel Service Center, Officer Personnel Management Division (CG PSC-OPM) is the initiation authority for all Officer separations. If the CG PSC-OPM believes that an officer should be eliminated, they gather all of the documentation and formally initiate the separation process. Just because elimination proceedings are started by the CG PSC-OPM does not mean that officer will be eliminated; only that the process has begun.
Coast Guard Boards of Inquiry: Eligibility
Coast Guard Officers recommended for elimination may or may not qualify for a board of inquiry. Whether an officer gets a board of inquiry depends on how many years of service they have. Regular officers with 5 or more years of service qualify for boards of inquiry.
COMDINST 1000.4 states that if the CG PSC-OPM determines that an Other than Honorable Discharge (OTH) is appropriate, he/she may refer the case to a board of inquiry. The way this is written, it appears to not be mandatory; however, it is normal across all services that before an OTH can be issued, a board of inquiry must be conducted.
Coast Guard Boards of Inquiry: Elimination without Boards of Inquiry
Officers who do not qualify for a board of inquiry (called probationary) only have the ability to fight for retention or a better characterization of discharge (Honorable or General Under Honorable) in writing. The Commandant of the Coast Guard is the approval authority.
A Coast Guard Officer in this situation has the option to write a response with evidence and letters of character. A panel of officers familiar with the Coast Guard Officer’s specialty reviews the evidence, the officer’s response, and the chain of command recommendations. This panel then makes a recommendation to the Commandant who makes the final decision.
Coast Guard Boards of Inquiry: Procedures
For a non-probationary officer, if the CG PSC-OPM determines that the officer should face elimination (because of misconduct, dereliction, substandard performance, etc.), they refer his/her case to a determination board. This determination board is made up of three officers, in the rank of Commander or above, and all senior to the officer in question. The board reviews the officers file and documentary evidence only; no witnesses are allowed to be called at this board and the officer in question is not present. After the review, if the board determines the officer should show cause for retention, the officer is notified.
After the determination board decides that the officer in question has to show cause for retention, the burden of proof shifts to the officer to prove that they did not do the things they are accused of (misconduct, dereliction, substandard performance of duty, i.e.). This shifting of the burden of proof is unique to the Coast Guard and doesn’t happen in any other service. While the other services call these proceedings “show-cause boards,” the Coast Guard is the only one that actually requires the officers in question to prove their innocence. This is alarming and makes Coast Guard Officers one of the most at-risk populations for elimination without proper due-process. It is therefore even more important for an experienced military lawyer to represent a Coast Guard Officer at their elimination proceeding.
Before a board of inquiry, officers have several options to choose from on how to respond. Officers should consult with a military lawyer before selecting any option. If eligible, requesting retirement is an option. This should also be discussed with a military attorney.
A board of inquiry is basically a less formal version of a trial. It consists of at least three officers in the rank of Commander or above. All officers have to be senior to the officer facing elimination and be fair and impartial.
The prosecution goes first and attempts to convince the board to separate the officer with a certain discharge. With a couple of technical exceptions, the rules of evidence do not apply. Live witnesses may or may not be called.
The defense goes second and advocates for the officer's desired outcome. While the officer does not have to present anything, character witnesses and/or evidence attacking the reasons for the board may be presented. The officer in question, called the respondent, may testify in one of several forms. This should be discussed with a military lawyer.
Closing arguments are presented and the board moves into deliberations. They vote and by a majority decide one question: should the officer be separated or not. Unlike all other services, the Board of Inquiry is not allowed to make any recommendations about the characterization of service or anything other than separation or retention.
Coast Guard Boards of Inquiry: Post Board Actions
If a board of inquiry recommends retention then the case is closed and the officer is retained in the Coast Guard. If the officer is recommended for separation, they will be given a chance to submit appellate matters. A variety of topics could be discussed in the matters and a military lawyer should assist.
A board of review, consisting of three officers senior to those who were on the board of inquiry, then reviews the record of the board and the officer’s written appeal. If the board of review recommends retention, the case is closed. If not, the case is forwarded to the Commandant for final action. The Commandant can retain or separate the officer at that point with whatever discharge he/she feels is appropriate.
Coast Guard 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 occurs, both the medical separation and elimination action proceed at the same time and the Commandant ultimately decides which way the officer will separate.
Coast Guard Boards of Inquiry: Retirement Eligible Officers
Eligible officers are afforded the opportunity to request retirement in lieu of elimination; however, this request does not have to be granted. The regulations listed above are unclear on if the Commandant can separate a retirement eligible officer that a Board of Inquiry recommends should be separated. Some military legal scholars believe that officer's retirement is statutorily protected; however, this is unverified.
This article was written by Attorney Matthew Barry