The Navy is sending more officers to Boards of Inquiry.

The average officer misconduct case takes 12-18 months to get to a Board of Inquiry.

Board members are separating more officers.

In recent years, there has been an increased number of Boards of Inquiry (BOIs) – also called “Show Cause Proceedings” – convened for Naval officers to review allegations of misconduct and substandard performance “as evidenced by [a] failure to conform to prescribed standards of military deportment.”  I have seen BOIs convened for a first-time DUI for a young officer and for an O-6 Captain.  I have seen BOIs convened for sexual assault accusations and sexual harassment where the Navy Region Legal Service Office (RLSO) issued a memorandum recommending against referral to court-martial but urging the commander “to consider available administrative options.”  I have seen a BOI convened for a senior officer who, under the influence of alcohol, called a subordinate a “slut.”  And, of course, any officer who tests positive on a military urinalysis (or drug test administered by a hospital for medical purposes) will be heading to a BOI.

The danger of sending more cases to Boards of Inquiry is that the outcome of the board is inherently uncertain – there is no guarantee that the officer will be retained, even for the most minor offenses.

Recently, I observed the aftermath of a Navy SEAL O-6 Captain, Special Operations Command, BOI.  The Captain had a minor fender bender, no injuries, but had been drinking.  He blew above the .08 limit.  His case in state court was reduced to a reckless driving, and adjudication was withheld (there was no conviction).  His chain of command recommended the matter be closed in the Report of Civilian Conviction to Commander, Navy Personnel Command (CNPC, or “PERS-834” – PERS 834 handles officer misconduct cases).  CNPC sent this matter to a BOI, and the military defense counsel (and the Captain) thought it was a mere formality.  The board, composed of a flag officer and senior Captains, sent one of their own home, after deliberating for a matter of minutes.  In my experience CNPC and SECNAV follow the recommendations of a BOI in 99% of the cases, meaning the results of the BOI are often the most important component of saving an officer’s Naval career.

I cannot stress the importance of thoroughly preparing for a BOI.  No outcome is guaranteed.  Everything is in jeopardy.  I recently had a BOI for a sexual assault Article 120, UCMJ case.  The case was a “dog” and the victim had long since signed a “Victim Declination Acknowledgment,” indicating she no longer wanted to cooperate or participate with the RLSO’s effort to prosecute.  Despite all of these indications that the BOI was going to be an easy day, it was anything but – the recorder (the prosecutor at the BOI) called 5 witnesses, including two experts.  The testimony took more than 8 hours – about what the case would have taken at a court-martial.  Thankfully, I had spent hours upon hours going through the investigation and interviewing witnesses.  After only 30 minutes of deliberation, the members found “No Misconduct” and “No Substandard Performance.”  But the moral of the story is clear – don’t ever think a BOI is a mere formality.  And don’t forget the CNO’s push to separate more officers, mentioned here.

I am often asked, “when should an officer seek an attorney for a BOI?”  The problem with officer misconduct cases is that the BOI normally is 12 to 18 months after the Report of Misconduct or Report of Civilian Conviction is forwarded to CNPC.   Usually, the investigation before the report takes 3 to 6 months (more if NCIS involved) and the whole process takes about two years – the tour of most military defense counsel.  If an officer waits until the BOI is directed, he or she will have the assistance of counsel for only a very small portion of the entire processing of the BOI.

Here is a breakdown for the approximate timeline for a BOI in the Navy:

1. Incident/Misconduct (triggering incident)
2. Investigation (5-365 days)
3. Disposition decision by commander with RLSO advice (5-180 days)
4. Report of Misconduct / Report of Civilian Conviction (follows NJP/refusal of NJP/state conviction) (10-30 days)
5. PERS-834 Show Cause Determination / Issuance of Notification of Administrative Show Cause Proceedings (BOI) (90-270 days)
6. BOI scheduled following detail of military counsel (30-60 days)
7. Post-BOI record to PERS-834 (15 days if NO findings of misconduct or substandard performance, 60 days if finding of misconduct/substandard performance)
8. PERS-834 Matter Closed/No Entry in OMPF (for cases won at the BOI) (15 days)
9. SECNAV Final Action (for cases lost at the BOI) (180 days)

I’ve written before about at least consulting a civilian attorney for a BOI.  Because of the long processing time-frame, evidence can be lost, witnesses’ memories can fade, and military counsel – and military personnel involved – PCS.  A civilian counsel can: 1) form an attorney-client relationship immediately (military counsel cannot do this until the BOI notification is issued) and 2) begin an investigation to preserve any favorable evidence.  Therefore, it often makes sense, because of the long timeline in officer misconduct cases, to hire a civilian counsel at the first sign of trouble.

Patrick Korody is a former Navy JAG who was certified by the Judge Advocate General of the Navy as a Military Justice Specialist. He has litigated BOIs for more than decade, representing officers in ALL ranks.  He offers a free case evaluation.