Officer Elimination &
Officer Board of Inquiry
What is Officer Elimination?
“Officer elimination” is the same thing as “show-cause” and “involuntary separation.” For non-probationary officers, officer elimination culminates in the opportunity to fight to stay in the military at a “board of inquiry,” also called “show cause proceedings.” Probationary officers, normally defined as officers with less than 6 years commissioned service (less than 5 years for most reservists), do not usually have the right to a Board of Inquiry (BOI) unless the military is seeking to discharged the officer with an Other Than Honorable (OTH) discharge.
Boards of Inquiry stem from 10 U.S. Chapter 60 – Separation of Regular Officers for Substandard Performance of Duty or for Certain Other Reasons. The Department of Defense has implemented the statute through DoD Instruction 1332.30, Commissioned Officer Administrative Separations. Each military service has also prescribed regulations regarding officer elimination processes and Boards of Inquiry.
Board of Inquiry Lawyer.
Korody Law has over 75 years total military law experience and has handled hundreds of officer cases.
Why would a military officer be separated?
Officers are involuntarily separated for many reasons including failure to promote, misconduct, drug abuse, and substandard performance. Only “for cause” cases that trigger “show cause” give the officer an opportunity to fight.
The officer elimination process normally starts with an investigation. This may be a formal AR 15-6 or other command investigation or it may be a criminal investigation by Army CID, Air Force OSI, Coast Guard CGIS, or Navy/Marine Corps NCIS. There may also be documented history of substandard performance that triggers a show cause notification such as Letters of Instruction (LOI), Letter of Reprimand (LOR), or General Officer Memorandum of Reprimand (GOMOR), adverse evaluations, or formal written counselings.
What happens at a Board of Inquiry (BOI)?
A Board of Inquiry is akin to a mini-trial. It is a formal proceeding that involves lawyers on both sides. The officer is called the Respondent (because he or she is responding to the preliminary decision that he or she be involuntarily separated from the service). The prosecutor is called the Recorder and is responsible for presenting the service’s case for separation.
- Your attorney is able to voir dire (ask questions of) the BOI members to ensure they are fair and impartial.
- Your attorney gives an opening statement about the case.
- Your attorney can object to the Recorder's evidence and witness testimony.
- Your attorney can cross-examine the Recorder's witnesses and present your evidence and witnesses to the BOI members.
- Your attorney will assist you in giving a statement to the BOI members in one of the following formats: sworn subject to cross-examination or unsworn not subject to cross-examination. You also have the right to remain silent at the BOI (normally unadvisable).
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BOARD OF INQUIRY DEFENSE LAWYER
When should I hire an attorney?
NOW! Any officer facing an investigation or an adverse action (Article 15/NJP, detachment for cause, relief for cause, letter of reprimand) should hire an attorney.
- Every statement, submission, and response to the officer can and will be used at the Board of Inquiry. An attorney can assist in crafting a case strategy from the moment an issue arises. In many cases, responses to allegations of misconduct or substandard performance can preempt elimination proceedings / show cause proceedings.
- An attorney can preserve valuable evidence by taking witness statements, safeguarding evidence, and requesting copies of evidence from the command.
- An attorney may be able to negotiate a resolution that avoids a Board of Inquiry. For example the attorney could negotiate acceptance of non-judicial punishment (NJP) so long as the commander agrees not to recommend show cause / elimination proceedings..
- An attorney is one of the few persons that an officer can talk to under true confidentiality.
- A civilian military attorney will form an attorney-client relationship with the officer early on in the process While most JAG defense counsel will not represent the officer until the elimination process has formally commenced.
How do I fight officer elimination and show cause proceedings?
With very few exceptions, any officer facing elimination / involuntary separation should request a Board of Inquiry (BOI) if entitled to a board. Here’s why:
- Officers have a right to counsel at the Board of Inquiry.
- Officers have the right to full access of all documents and materials relevant to the reasons for separation processing.
- Officers have the right to call witnesses and present their own evidence to the Board of Inquiry.
- Officers have the to a full and fair hearing before fair and impartial members.
- If the members of the Board of Inquiry vote to retain the officer, the matter is closed and the officer is retained in the military.
- If the officer is retirement eligible and the Board of Inquiry votes to separate the officer, the Board's recommendation as to characterization of service and retirement grade are given great weight by the Secretary.
