Navy Boards of InquirySeptember 20, 2019
Navy Boards of Inquiry are governed by MPM 1900, MPM 1920, SECNAVINST 1920.6C, MPM 1611-010, MPM 1611-020 and MPM 1301-227. The following article is meant as a general overview of the process for active duty officers. There are many complexities to the Navy Boards of Inquiry, including if you are a reservist, that require a more thorough review of an officer’s specific case and consultation with a military lawyer familiar with the above listed references.
Navy Boards of Inquiry: Initiation
The individual with the authority to begin a Naval officer elimination is called the Show Cause Authority (SCA). The SCA in the Navy is Chief of Naval Personnel. The Commander of Naval Personnel Command and a General Court-Martial Convening Authority (a General Officer with the ability to convene a General Court-Martial) can be granted the authority to also be an SCA.
Naval officers can be eliminated for almost anything; however, the following are listed as reasons in SECNAVINST 1920.6C: substandard performance of duty, misconduct, moral/professional dereliction, retention not in the interest of national security, failure of selection for promotion, and separation in lieu of trial by court-martial. The regulations define these categories very broadly.
It is interesting to note that in the Navy all officer misconduct that has the potential to result in punishment has to be reported to the Chief of Naval Personnel. After a report is made, the local Command has to follow up with a report describing the type of punishment taken, if any. The Chief of Naval Personnel then decides if the officer elimination process should begin. This reporting requirement is unique to the Navy and unlike the other services (Army, Air Force, i.e.). It should concern officers because their local commands, who likely know them best, lose almost all of their power over whether elimination is initiated for officers within their command. This requirement essentially allows Navy Headquarters to determine what happens with every officer ever suspected of misconduct. The upside to this for respondents is that the Navy has up to 5 years after the “misconduct” is reported to initiate separation or they are barred from doing so.
Navy 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, regular officers with 6 or more years of active commissioned service and warrant officers with 3 or more years of commissioned service qualify for boards of inquiry.
Navy Boards of Inquiry: Eliminations without Boards of Inquiry
Officers who do not qualify for a board of inquiry (called probationary) only have the ability to contest an elimination action in writing. The Secretary of the Navy is the approval authority for all officer eliminations.
After an officer is notified by the SCA, they have the option to gather whatever evidence/letters of character they want and submit a written response. 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.
Navy Boards of Inquiry: Board of Inquiry Procedures
Non-probationary officers (those who are entitled to a board of inquiry) will have several options to chose from after being notified for elimination. Officers should consult with a military lawyer before selecting any option.
Boards of inquiry are sometimes referred to as “show cause” boards. In fact, the Navy references listed above frequently refer to them as “show cause” boards. Calling boards of inquiry "show cause" boards is dangerous and misleading. The term implies that a Naval Officer has to prove why they should not be eliminated. This is incorrect - the Government always has the burden of proof to demonstrate that the Naval Officer in question should be separated. A Naval Officer's lawyer may have to explain this to the Board of Inquiry.
A board of inquiry consists of at least an O6 or above, and two O5s or above. All officers have to be senior to the officer facing elimination and be fair and impartial. Furthermore, the board should consist of one officer that is in the same competitive category as the respondent and an unrestricted line officer with Command experience. Some of these requirements can be waived if these types of officers are not reasonably available.
A board of inquiry is similar to a trial. The prosecution and defense both have chances to present evidence and challenge the other party's evidence. Almost any relevant evidence can be admitted because most of the rules of evidence do not apply. The Naval Officer in question will be given the opportunity to testify in one of several forms, if he/she so chooses.
The board members then close the room to deliberate. They vote and by a majority and decide three questions: did the officer commit the underlying accusations, do these accusations warrant separation, and if so, what characterization of service is warranted. If the officer is retirement eligible, the board also decides at what rank the officer last served satisfactorily and recommends what rank the officer should be retired at.
The Navy has one interesting addition at this point in the process. If a board member did not agree with any of the board’s decisions (making it a 2-1 vote), they are required to submit a minority report explaining their dissention. Unlike the Army and the Air Force, the Navy requires that this minority report be submitted with the board proceedings to the Secretary of the Navy. This can greatly assist an officer who has an unfavorable recommendation from the board as a whole and needs to appeal to the Secretary of the Navy.
Navy 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 Navy. If the officer is recommended for separation they will be given a chance to submit appellate matters. Legal assistance in a Naval Officer's appellate matters is recommended.
The Secretary of the Navy 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 honorable discharge, the Secretary of the Navy can retain the officer or give him/her an honorable discharge. The Secretary of the Navy cannot issue an GEN or OTH in this example.
Navy Boards of Inquiry: Concurrent Medical Evaluation Board Processing
Medical Separations do not take precedence over officer separations for misconduct, disciplinary proceedings or any separation that could result in an OTH. Medical separations do take precedence over all other types of separations and the medical process should be allowed to play out in this situation.
Navy Boards of Inquiry: Retirement Eligible Officers
The regulations listed above are unclear on if The Secretary of the Navy can separate a retirement eligible officer that a Board of Inquiry recommends should be separated (instead of allowing the officer to retire at whatever grade the Board of Inquiry determines). 10 USC 1186 certainly implies that a retirement eligible Officer cannot lose his/her retirement through the Board of Inquiry process. Any retirement eligible officer should be very concerned about at pending board of inquiry. It is imperative these officers have a competent lawyer representing them.
Navy Boards of Inquiry: Legal Representation
The Navy has some alarming provisions in the above regulations regarding a Naval officer's right to legal representation. Naval officers pending separation are entitled to a lawyer paid for by the Navy (public defenders). However, generally, if the respondent can’t access one of these lawyers within 5 days and the officer’s commander determines it is in the best interest of the Navy to proceed, a non-lawyer counsel can be appointed to represent the respondent. The Naval officer separation process is complex and a non-lawyer counsel will likely have absolutely no idea what they are doing. This puts the officer in question in a high-risk situation to lose their career. If you or someone you know is in this situation, it is even more critical to hire a Civilian Counsel.
This article was written by Attorney Matthew Barry