West Point Formal Misconduct Hearing

What is a West Point formal misconduct hearing?

A West Point formal misconduct hearing is governed by USMA Regulation 1-10, which is not available to the public.  This regulation was recently updated in December of 2023.  A formal misconduct hearing is convened before a Cadet can receive certain punishment for the following suspected violations (including attempted violations):

• Any of the Articles of the UCMJ contemplated by NDAA FY22 Sec 531 and NDAA FY23 Sec. 541
• With approval of the Staff Judge Advocate (SJA), violations of AR 150-1, paragraph 6-8 (drugs and narcotics), paragraph 6-9 (alcoholic beverages), 6-10 (sexual misconduct), 6-11 (conduct unbecoming a cadet of the Regular Army, 6-12 (conspiracy among cadets), 6-13 (indebtedness), 6-14 (criminal conviction), 6-15 (hazing), 6-16 (other misconduct offenses), or 7-7 (lack of qualification for service)

A formal misconduct hearing consists of three commissioned officers (collectively known as a "board").  The Board President is required to be the highest ranking member. With very few exceptions, a West Point formal misconduct hearing is conducted in a very similar manner to a Board of Inquiry.

Any Cadet facing a formal misconduct hearing is entitled to legal representation. The following sequence of events can be expected:

• Notification of allegations, Government evidence, and Government witnesses (pre-board)
• Defense Investigation, Motions, and Preparation (pre-board)
• Questioning of the Board Members to ensure impartiality
• Opening Statements
• Presentation of Government Witnesses and Evidence
• Presentation of Defense Witnesses and Evidence
• Closing Statements
• Board Deliberations
• Board Announcement of Findings and Recommendations

The Board determines whether each allegation is substantiated by a preponderance of the evidence (more likely than not).  Furthermore, the Board can make additional and special findings.  If there are any adverse findings, the Board will make a recommendation as to punishment. The following recommendations are authorized:

1. Admonition
2. Reprimand
3. Restriction to limits
4. Deprivation of privileges
5. Reduction in or withdrawal of cadet officer or non commissioned officer rank
6. Demerits
7. Punishment tours
8. Fatigue tours
9. Loss of leave
10. Forfeiture of pay
11. Delayed graduation (by less than a full year)
12. Turn-back to the next lower class
13. Suspension from the Military Academy
14. Separation from USMA
15. Invite select cadets pending separation to participate in the Academy Mentorship Program (AMP)

The Board's findings and recommendations are reviewed by a legal advisor before being served on the Cadet for a rebuttal.  The entire packet is then routed through the Cadet's chain of command, and then to the Commandant.  After the Commandant makes a recommendation, the packet is routed to the Superintendent who then makes a final recommendation and either closes the case, or forwards to the Secretary of the Army (for separation decisions).  Of note, if there are adverse findings, the Superintendent is not bound by the misconduct board's recommendations.

A West Point formal misconduct hearing is basically a one-day, mini-trial.  These Boards are only convened for very serious suspected violations of Army regulations and policies.  The consequences of an adverse finding are potentially severe, including separation and paying a large sum of money to the Federal Government (recoupment). Cadets have the option to hire a Civilian Defense Counsel, to work together with assigned Trial Defense Counsel.

This Article was written by Attorney Matthew Barry, a 2008 West Point Graduate. He frequently represents Cadets accused of misconduct at West Point.

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