MILITARY PERSONNEL LAW - BOARD OF INQUIRY
What Happens After a Board of Inquiry?
Updated: Includes recent changes under 10 U.S.C. § 1182 (FY 2025 NDAA)
BOI Basics: What Is a Board of Inquiry?
A Board of Inquiry (BOI) is a formal administrative hearing under 10 U.S.C. §§ 1181–1182 where a panel of officers determines whether an officer—often following misconduct allegations or substandard performance—should be separated or retained on active duty. :contentReference[oaicite:4]{index=4}
What the Law Used to Guarantee: Finality with a “Retain” Decision
Under the prior version of § 1182, if the BOI found the officer had “established that he should be retained on active duty,” the officer’s case was effectively closed. The retention decision was final, and the officer could continue service—albeit with any collateral consequences from misconduct or other findings. :contentReference[oaicite:5]{index=5}
Big Change in 2024: Secretarial Review Added (Public Law 118–159)
As of December 23, 2024, a new amendment to § 1182 allows the Secretary of the military department (upon recommendation of the service chief) to override a BOI “retain” decision under limited—but meaningful—circumstances. :contentReference[oaicite:6]{index=6}
When Can a “Retain” Be Overturned?
- If the BOI’s retention decision is deemed “clearly erroneous in light of the evidence” :contentReference[oaicite:7]{index=7}
- If there was a “miscarriage of justice” :contentReference[oaicite:8]{index=8}
- If retention is judged inconsistent with the “best interests of the service” :contentReference[oaicite:9]{index=9}
The statute requires the Secretary to provide a written justification, notify the officer, and give an opportunity to submit matters</strong for consideration. :contentReference[oaicite:10]{index=10}
The authority to do so may only be delegated to a Senate-confirmed civilian official; if separation results from such review, the discharge must be characterized no less favorably than a “General (Under Honorable Conditions).” :contentReference[oaicite:11]{index=11}
What This Means for Officers After a BOI
Retention Is Not Always Final Anymore
A BOI retain vote no longer guarantees long-term safety. After the 2024 amendment, a second-level review could reopen a closed case. Officers should now plan for the possibility of senior-level scrutiny even after a favorable BOI.
Record Preservation Is More Critical Than Ever
Because a BOI record could be reviewed again, it is essential to ensure:
- Findings are clearly articulated with supporting evidence
- Mistakes or procedural errors are documented and preserved
- Motions, submission of mitigating information, and references are organized and complete
- Any extenuating or mitigating circumstances are documented thoroughly
Post-BOI Strategy Must Evolve
Previously, once a BOI retained an officer, focus shifted to damage control (promotion issues, duty assignments, clearance, etc.). Now, officers and counsel must also consider whether to proactively craft a post-BOI submission — especially if there is serious misconduct or performance concerns — to protect against potential override.
Common Post-BOI Scenarios — Now With the 2025 § 1182 Change in Mind
Below are typical scenarios described under the prior regime — but with new caveats under § 1182:
- Misconduct via NJP or court-martial, BOI retains. → Retention still possible, but now the record could be reopened on review.
- BOI finds misconduct proven, retains. → Officer’s record likely includes the BOI finding; career impacts remain, and retention is now subject to senior review.
- BOI finds no misconduct, retains. → Best case in terms of misconduct record, but retention is still not guaranteed indefinitely under new law.
What Officers Should Do Now
- Assume the BOI record could be reviewed. Treat the BOI as the first step — not the end. Work with counsel to build a robust record.
- Preserve procedural objections, evidence, mitigation, and favorable documents. Everything helps if the case is reviewed.
- Draft a strong post-BOI submission, if appropriate. Use the opportunity to address concerns, demonstrate rehabilitation, or show why retention serves the service’s interests.
- Be proactive — don’t wait for senior leadership to act. A timely, well-crafted submission can often prevent adverse action.
How Korody Law Can Help
With the changes to § 1182, representation must adapt. Korody Law helps officers by:
- Ensuring comprehensive evidence gathering and proper documentation
- Building a defensible BOI record that anticipates possible senior-level review
- Assisting in drafting persuasive post-BOI submissions (mitigation, rehabilitation, fitness for continued service)
- Advising on collateral consequences, timing, strategy, and alternative options (e.g., corrections-board issues, administrative separations, character-of-service concerns)
Free BOI Case Consultation
If you are facing a show-cause action, a BOI, or have recently completed a BOI — now more than ever it is critical to secure experienced counsel. Contact Korody Law, P.A. for a confidential consultation.
Frequently Asked Questions: Board of Inquiry & 10 U.S.C. § 1182
Can a service secretary overturn a Board of Inquiry “retain” decision?
Yes. As of December 23, 2024, amendments to 10 U.S.C. § 1182 allow the Secretary of the military department, upon recommendation of the service chief, to override a Board of Inquiry decision to retain an officer under limited statutory circumstances.
Under what circumstances can a BOI retain decision be overturned?
A retain decision may be overturned if it is clearly erroneous in light of the evidence, results in a miscarriage of justice, or is inconsistent with the best interests of the service.
Does the officer get notice and a chance to respond before an override?
Yes. The statute requires written notice to the officer, a written justification for the proposed action, and an opportunity for the officer to submit matters for consideration before any override decision is made.
Who is allowed to override a Board of Inquiry retain decision?
Only the Service Secretary may exercise this authority. It generally cannot be delegated except to another Senate-confirmed civilian official.
If separated after an override, what discharge characterization applies?
If separation results from a post-BOI override under 10 U.S.C. § 1182, the discharge must be characterized no less favorably than General (Under Honorable Conditions).
Does the change apply to all Boards of Inquiry?
The amendment applies to Boards of Inquiry conducted under 10 U.S.C. §§ 1181–1182. Whether it applies retroactively to boards completed before December 23, 2024 may depend on service-specific implementation and future legal interpretation.
Is a retain vote still beneficial after the 2025 changes?
Yes. A retain decision remains the strongest possible BOI outcome. However, it is no longer guaranteed to be final, and officers should assume the record may be reviewed at a senior level.
What should officers do differently at a Board of Inquiry now?
Officers should build the BOI record as if it may be reviewed later, preserve procedural objections, document mitigation and rehabilitation, and prepare for a potential post-BOI submission.
Should an officer submit materials after winning a Board of Inquiry?
In some cases, yes. When allegations are serious or command opposition is strong, a proactive submission may reduce the risk of a senior-level override.
When should I contact an attorney about a Board of Inquiry?
Ideally before the Board of Inquiry convenes. However, experienced counsel can still be critical after a BOI—especially following a retain decision—under the revised 10 U.S.C. § 1182 framework.
Disclaimer: This post is for general informational purposes only and does not constitute legal advice. Every case is different. Consult an attorney regarding your specific facts.
Worldwide Military Defense
Mr. Korody has the experience, training, and skills to ensure that your rights as a member of the military and a citizen of the United States are protected. He spent close to a decade on active duty defending and prosecuting members of the military and advising commanders on how to dispose of misconduct. Mr. Korody is one of the elite few who has been certified by the Judge Advocate General as a Specialist in Military Justice Litigation. He has handled hundreds of General and Special Courts-Martial, Article 32 Preliminary Hearings, Non-Judicial Punishment (Article 15) hearings and appeals, and administrative separation hearings and appeals.
