Retirement in Lieu of Elimination

December 24, 2023

This article addresses a retirement in lieu of elimination in the Army.

Army Officer Eliminations are regulated by AR 600-8-24. The complete elimination process is explained in depth at this link. At any time during the elimination process, if an Officer has 19 years and 6 months of service, he/she can submit a retirement in lieu of elimination (AR 600-8-24, paragraph 4-20). It is important to note the language "at any time during the elimination process." What this means is that if the Officer in question hits 19 years and 6 months at any point prior to a final decision, he/she can submit a request for a retirement in lieu of elimination. Considering that Officer Eliminations can take 12-18 months after a Board of Inquiry convenes, Officers need to pay close attention to when they hit 19 years and 6 months and submit a request for a retirement in lieu of elimination immediately.

Any Officer who has derogatory information in his/her file, or is facing elimination and is retirement eligible, will face review from the Army Grade Determination Review Board. This Board, which the Officer does not have the right to appear before, will determine the last grade that the Officer in question served satisfactorily in. Before the Board makes a decision, the Officer can, and should, submit additional matters to the Board for consideration. What should be contained in these matters is addressed in more depth at this link. In the context of this article, when an Officer submits a request for a retirement in lieu of elimination, he/she SHOULD submit matters for the Army Grade Determination Review Board AT THE SAME TIME. If he/she does not submit his/her matters for the Army Grade Determination Review Board at this time, he/she may be reduced in retirement grade without an additional opportunity to submit matters. In practice, the Board typically gives the Officer in question an additional chance to submit matters; however, the provisions of AR 600-8-24 allow the grade reduction to occur without that additional chance. Again, what this means is that when an Officer submits a request for a retirement in lieu of elimination, he/she SHOULD submit matters for the Army Grade Determination Review Board AT THE SAME TIME.

As described above, Officers who have 19 years and 6 months are eligible to submit a request for a retirement in lieu of elimination; however, Officer retirements are not protected until he/she reaches 20 years of service. In accordance with 10 USC Section 1186, an Officer who has reached retirement eligibility cannot be eliminated through the Officer elimination process. Therefore, if an Officer faces elimination and is retirement eligible at any point during the elimination process (i.e. 20 years of service), he/she will be retired at whatever grade the Army Grade Determination Review Board decides (NOTE, Officers should still submit a request to retire in lieu of elimination in these situations).

If an Officer's request for a retirement in lieu of elimination is approved, the Officer in question will receive a DD214 with a narrative reason for separation that states "unacceptable conduct," if the elimination action in question is for misconduct. This is important for any Officer to understand, because, despite common misconception and despite being retired, his/her DD214 will still not be "normal" and the term "unacceptable conduct" could affect post Army employment.

Before submitting a retirement in lieu of elimination, an Army Officer should consult with an experienced Military Lawyer. To begin, it may be in the Officer's best interest to NOT submit such a request before a Board of Inquiry. For example, if an Officer has served for over 20 years, he/she has nothing to lose at a Board of Inquiry, because even if he/she loses the Board, a retirement in lieu of elimination can submitted afterwards. In this scenario, if an Officer wins the Board, he/she will continue to serve until a normal retirement is submitted and approved. Furthermore, while the Officer will still eventually likely face review under the Army Grade Determination Review Board, a win at the Board of Inquiry will likely weigh in that Officer's favor when deciding retirement pay grade. Furthermore, more years of service post board will weigh in the Officer's favor as well.

Additionally, before submitting a retirement in lieu of elimination, as discussed above, an Officer should include detailed matters for the Army Grade Determination Review Board. An experienced Military Lawyer should assist in drafting these matters.

While Trial Defense Services (TDS) is available, they are typically inexperienced and overworked. TDS is unlikely to have the experience to understand what is best for the Officer in question in these matters, and typically advise to just submit a request for retirement in lieu of elimination without fully understanding the Army Grade Determination Review Board and the post-Army effects on employment. Furthermore, TDS is unlikely to assist in drafting matters to the Army Grade Determination Review Board, which can result in hundreds of thousands of dollars of lost retirement pay.

Officers facing elimination can hire a Civilian Attorney. Hiring a Civilian Lawyer gives the Officer in question the option to choose his/her counsel and vet their background, experience, results, and client testimonials.

This Article was written by Attorney Matthew Barry.

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.