Navy and Marine Corps officers are too frequently fired, or relieved of his or her duties, for alleged misconduct, incompetence, or poor leadership, or simply because something unfortunate happened under his or her watch. In 2015, there were 20 commanding officers fired, 4 executive officers fired, and 8 senior enlisted leaders fired. There were also dozens of officers “detached for cause” from their positions as department or division heads or platoon commander. For a Navy or Marine Corps officer, such actions are normally career ending, although there are ways to mitigate the possible adverse consequences.
Who makes the decision to relieve an officer?
The commander of the officer, whether it be the commanding officer, commodore, battalion commander, regimental commander, or the next flag officer in command, will summarily relieve the officer of his or her leadership duties. There is no legal requirement to justify the basis for this action – it is enough that the commander has lost confidence in the officer’s ability to perform his or her duties.
For Navy officers, the commander will submit a request for Detachment for Cause (DFC) under MILPERSMAN 1611-020 to Navy Personnel Command. There are three general grounds for requesting a DFC: substandard performance over an extended period of time, a significant event, or loss in confidence in the ability to lead. The request will be routed through the officer being detached for comment and the first flag in the chain of command. The request must indicate whether the officer will be required to show cause for retention in teh service. The process is very similar, but more informal, for Marine Corps officers.
Many times, especially for officers in command, a public firing will occur before a DFC request is submitted. Typically, this is simply a reassignment pending an investigation or while the commander waits for the information necessary to draft the DFC request.
Does an officer have to go to NJP to be Detached for Cause?
No, but the common pattern is SIGNIFICANT INCIDENT – INVESTIGATION – NJP – DFC – SHOW CAUSE. Normally, the officer will be temporarily reassigned during the investigation and then detached for cause upon completion of the investigation and imposition of NJP. If the officer is in a leadership billet,t he common pattern is SIGNIFICANT INCIDENT – RELIEVED OF DUTIES-INVESTIGATION – NJP – DFC – SHOW CAUSE.
What happens after a DFC request is forwarded to Navy Personnel Command?
DFC requests are normally approved, though I have successfully rebutted some in my career. Normally, regardless of whether the DFC is approved and assuming there is no show cause ordered, the officer will receive PCS orders since the officer can’t stay at the command that doesn’t want him or her. If the officer will be required to “show cause” the DFC is normally not acted upon until the show cause proceedings (normally a Board of Inquiry (BOI) for non-probationary officers) are completed. If the officer is ultimately retained, the DFC will be acted upon. Normally, if a BOI is likely, the the officer remains assigned to a local command to fill an insignificant position pending the BOI results.
What happens if an officer was selected, but not promoted, and is Detached for Cause?
The officer’s promotion will generally be delayed or withheld until conclusion of the matter, at which time it will be determined, by the Secretary of the Navy, whether the officer’s promotion should be approved or the officer should be removed from the promotion list.
How long does resolving an officer case take?
In my experience, especially for officers in leadership positions, it will take at least a year to work through the process, maybe longer if a BOI is involved.
How does an officer fight an allegation of misconduct, substandard performance, or loss of confidence?
The officer has substantial rights to review and comment on all matters being forwarded to Navy Personnel Command or any report in the Marine Corps recommending the officer be required to show cause. The officer should provide written comments whenever afforded the opportunity to do so. However, the comments must be focused on the ultimate objective in the case. For example, an officer with 22 years of active duty service should be focused on retirement in the current paygrade while an officer with 6 years may be focused on retention and, in the laternative, a favorable characterization of service. Non-probationary officers also are entitled to a BOI, which is an extremely adversarial proceeding, if the service seeks to separate them or reduce a retirement paygrade.
Should the officer hire a civilian lawyer?
Yes. First, officer misconduct is not something that base military defense counsel deal with every day, so the experience level may not be there. Second, it requires more personal attention because of the stakes and substantial paperwork involved – often, military defense counsel are too busy to be able to meet the strict deadlines for responding or appealing actions. Third, like all officers, JAGs transfer. It is very possible for an officer to go through three or four military lawyers before reaching a BOI; there is lost knowledge and lack of continuity if an officer relies solely on military lawyers.
Attorney Patrick Korody represents military officers worldwide facing allegations of misconduct, substandard performance, or loss in confidence to lead. He is a former Navy JAG who was designated a Specialist in Military Justice Litigation by the Judge Advocate General of the Navy. He specializes in Department of the Navy military personnel matters (adverse actions, separations). His offices are located in Jacksonville, FL.