Withdrawal of Federal Recognition Process

This Article is meant to address the withdrawal of federal recognition process in the Army.

The Army's withdrawal of federal recognition process is detailed in NGR 635-100, NGR 635-101, and NGR 635-102.

Federal recognition for Army Officers can be withdrawn for numerous reasons; however, this article is meant to address the most common reason, which is withdrawal based on the findings and recommendations of an efficiency and physical fitness board.

The withdrawal of federal recognition process can be initiated by any Commander under his/her Command, the State Adjutant General, the Chief of the National Guard Bureau, or the Chief of Staff of the Army.  Recommendations to initiate the withdrawal of federal recognition process will be forwarded through the chain of command to the Officer's Area Commander. The Area Commander can disapprove the recommendation or appoint an AR 15-6 investigation to uncover more facts.  If the Area Commander agrees with the lower level Commanders recommendations to withdraw federal recognition, he/she will notify the Officer in writing, often through the mail, of the reasons for the initiation.  The Officer in question has 15 days to request appearance before a board of officers, to submit a resignation in lieu of withdrawal of federal recognition, or elect to retire if otherwise eligible.

The withdrawal of federal recognition process can be based on the following reasons:

• substandard performance of duty, which is defined as "downward trend in overall performance resulting in an unacceptable record of efficiency or a consistent record of mediocre service, failure to exercise necessary leadership or command required of an officer of his/her grade, failure to perform with technical proficiency required of his grade, failure to meet standards for students in a course of instruction at a service school due to disciplinary reasons or academic or leadership deficiencies, failure to discharge assignments in a manner to be expected of an officer of his grade and experience, or apathy, defective attitudes, or other character disorders to include inability or unwillingness to expend effort;"
• moral or professional dereliction, which is defined as unjustified failure to meet personal financial obligations, mismanagement of personal affairs to the discredit of the Army National Guard, intentional omission or misstatement of facts in official statements or records for the purpose of misrepresentation, acts of intemperance or personal misconduct, conduct unbecoming an officer, entry into a military service of a foreign government, failure to perform assigned duties, failure to participate satisfactorily in the ready reserve, failure to comply with directives, or conviction by a foreign court resulting in confinement which diminishes usefulness to service;
• In the interests of national security; or
• Medical, physical, or mental conditions that prevents him/her from performing assigned duties

Any Officer in the withdrawal of federal recognition process has the right to appear before a board, present a full Defense, and be represented by a lawyer.  The provisions of AR 15-6 for formal boards apply, meaning the Officer in question can challenge all Government evidence, cross examine witnesses, present documentary evidence, present favorable witnesses, can testify in his/her defense, and have a lawyer make an opening statement and closing argument.

A withdrawal of federal recognition board is made up of 4 members with an equal number of members from the Regular Army and the Army National Guard. There are some special provisions that may apply, such as a requirement to have a female Officer on the Board if the respondent is female. The Board will make a separate finding with respect to each allegation and each finding must be clear and concise and supported by substantial evidence.

Interestingly, the burden of rests with the Officer in question to produce convincing evidence that his/her federal recognition should not be withdrawn. In the absence of such a showing by the Officer in question, the board must recommend withdrawal of federal recognition.

If the Board recommends retention of federal recognition, the Officer in question maintains his/her federal recognition. If the Board recommends withdrawal of federal recognition, the Chief of the National Guard Bureau can either agree and order the withdrawal of federal recognition, or, in the alternative, can retain the Officer's federal recognition.

The withdrawal of federal recognition process in the Army is complicated and complex; it also has serious consequences. Any Officer facing such a process should be represented by a lawyer. While Trial Defense Services (TDS) are available, they are often over-worked and inexperienced. Furthermore, the lawyer in question may be pre-occupied with their normal job and might not have the time and attention to apply to their National Guard TDS role.  Officers can retain a Civilian Lawyer of his/her choosing. This gives the Officer in question the ability to review their lawyer's past case results and former client reviews.

This article was written by Attorney Matthew Barry

Contact him today for a free consultation.