MILITARY PERSONNEL LAW - BOARD OF INQUIRY
After a Board of Inquiry is held, the officer needs to pay attention to post-board processing.
A Board of Inquiry (BOI) is a formal administrative hearing where a panel of officers determines whether an officer should be separated or retained in the service. A BOI typically occurs following an adverse report of misconduct or substandard performance.
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What is the long term impact of a BOI?
Many people don’t know this, but a BOI is actually a statutory board. The authority for the Secretary of the military department (and those delegated the authority) to order and convene a BOI is codified at 10 U.S.C. Section 1182. That law is important for many reasons, but most importantly it requires a “fair and impartial hearing” and provides that if “the board of inquiry determines that the officer has established that he should be retained on active duty, the officer’s case is closed.” The latter mandate means that if the BOI finds that the officer should be retained, the retention determination is final.
So if any officer is retained at a BOI, what should the officer expect? There is not a “one size fits all” answer to this question. Let’s examine several scenarios.
The officer accepts NJP and is found guilty. At the BOI, the board finds the misconduct proven and retains the officer.
In this case, the officer is retained but there are several obstacles to the officer’s continued service in the military. First, the Article 15/NJP finding is part of the officer’s OMPF or officer selection records (OSR). Second, because the board found the misconduct was proven, that is a second substantiated finding that can also be entered into the officers OMPF. While the officer cannot be involuntarily separated for the misconduct, he or she will likely not promote, can be refused training and educational opportunities, and be forced to fill trivial roles. The officer will also likely to have to fight to retain his or her security clearance. The one benefit is that when the officer later separates the RE code and narrative reason will not reflect misconduct, like it would if the officer had been separated at the BOI for misconduct. Also, any officer that owes an obligation because of education or a bonus can complete that commitment and not face recoupment.
The officer accepts NJP and is found guilty. At the BOI, the board finds the misconduct is not proven and retains the officer.
In this case, the officer is retained but the Article 15/NJP still stands as it is viewed as a separate proceeding. The officer should be highly motivated to request a set aside or submit an application to the Board of the Corrections to have the NJP removed from the officer’s record. Otherwise, the officer will face the same hurdles discussed above.
The officer refuses NJP and the commander requests show cause based on the misconduct. At the BOI, the board finds the misconduct proven and retains the officer.
In this case, the officer is retained and there is no report of the Article 15/NJP in the officer’s OMPF. However, because the board found the misconduct was proven, the report of the BOI can and usually is placed in the officer’s OMPF and OSR. That means the officer will face the same issues promoting and advancing in his or her career discussed above.
The officer refuses NJP and the commander requests show cause based on misconduct. At the BOI, the board finds the misconduct is not proven and retains the officer.
This is the best case scenario for the officer. There should be no entry in the officer’s record about the misconduct or the BOI since there has been no substantiated finding. While the officer’s career may have been harmed by the collateral consequences that surround a BOI (delay in transferring, assignment of duties), the officer should remain competitive for assignments and promotion.
Why is this important for any officer who is under investigation?
Because a substantiated finding alone can impact an officer’s career, it is important to retain experienced legal counsel before any decisions are made. It some cases, it may be advisable to accept the finding of an investigation or accept the Article 15/NJP and focus on acceptance of responsibility, remorse, and rehabilitation for the BOI. In many cases it is advisable to fight the allegation at every stage and avoid a substantiated finding. This decision is highly specific depending on the officer and the allegations.
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