Facing a board of inquiry may raise a lot of questions. Everything you need to know about what exactly a board of inquiry is, what happens during the process and what actions you might need to take if you are facing a board of inquiry yourself can be found in this article.
What is a Board of Inquiry?
A board of inquiry is a involuntary separation board for commissioned officers. Members are entitled to such a board if they are on notice of an “other than honorable discharge” or if they have served several years (non probationary status) since their commission. The board is also sometimes called a “show-cause board.” It is the duty of the board to assess events, allegations, and duty performance.
Boards of inquiry are not considered to be as severe as court-martials. Nonetheless, they do require a good military defense team if you are subject to one. This will improve your chances of protecting yourself and your military career.
How the Board of Inquiry Works
Nonjudicial punishments, letters of reprimand or similar adverse actions usually precede these boards.
The board is comprised of three officer members who hear evidence before deciding if misconduct has taken place. A preponderance of evidence of 51 percent or higher must be found to ascertain misconduct. If misconduct is adjudged to have occurred, the three members then decide whether the service member is allowed to remain in service.
If the administrative separation board recommends separation, they will also be required to suggest a characterization (Honorable, General Under Honorable Conditions or Other Than Honorable).
For an example of a full Board of Inquiry procedure visit: JAG Instruction 5830.1A
Why Would an Officer Face a Board of Inquiry?
The allegations of an officer’s misconduct may derive from a particular incident or event which negatively impacted the performance of a military mission or officer themselves. In any case, if the board of inquiry is convened and the officer is deemed unfit to continue, they will be relieved of their services through administrative separations, thereby ending their career.
Options When Facing a Notification of Elimination
Having received a show cause notification of elimination action against them, an officer has a few options regarding his or her next steps in dealing with the situation.
One option is for the officer to submit a resignation in advance of the board of inquiry. Another option available to the officer is to respond formally in writing, addressing the allegations to request that an elimination be retroactively modified. Finally, the officer can request to make a personal appearance along with their counsel’s representation at the board of inquiry if the original written request is not approved.
It is often the case that the officer in question will only have thirty days to respond to the initial notification of elimination letter. Once confirmed that a board of inquiry will take place, the board will typically occur within ninety days.
Who is Involved in a Board of Inquiry?
A board of inquiry is comprised of officers with a senior grade to the officer under investigation.
As with a court-martial trial, both sides are allowed to present evidence in favor of their side. The government is represented by an experienced military attorney known as a “Recorder”.
The subject of the board of inquiry is known as the “Respondent”. This officer has the right to a legal defense team. They may choose the composition of this team, including a military defense attorney and a civilian defense attorney. These attorneys will review the evidence presented against their client and build a defense. They may also present their own evidence to reinforce the officer’s value as a military member in the future.
Rights to Counsel
As with a court-martial proceeding, officers facing a board of inquiry have the right to counsel. This means their military counsel will come at no cost while the right to hire a civilian military defense attorney (civilian counsel) is also available (at a cost) with both being able to work on the case together.
One major difference between a board of inquiry and a court-martial is the fact that a Respondent will generally not receive two military attorneys unless a civilian counsel is personally hired.
Battling Elimination at a Board of Inquiry
There are several strategies for disputing elimination at a board of inquiry. These vary depending on the specific goals of the officer in question.
Sometimes it is the case that the officer has already acknowledged their professional wrongdoings, so the goal is to convince the three deciding members that a discharge is nonetheless unwarranted.
In situations where the officer has not accepted guilt or will not acknowledge misconduct (either because they are not guilty, do not want to admit it, or there is insufficient evidence) the goal would be to undermine the government Recorder’s evidence and appeal for no misconduct to the members.
Aims of the Board of Inquiry
The members of the board of inquiry can only find misconduct if the Recorder has proven his or her case by a “preponderance of evidence.”
Should the board conclude that the Respondent has indeed committed misconduct, their next step is to come to an agreement on whether or not the misconduct is severe enough to warrant a separation.
If they come to the decision that elimination is necessary, they will then determine the characterization of service.
What Effects Can the Characterization of Service Have?
The effects of the characterization of service are sometimes long-lasting and can affect life outside of the Armed Forces. In certain cases, it can affect your future job prospects and the ability to access certain areas of employment.
Another potentially negative effect of characterization of service is the denial of federal and state tuition assistance for college.
The often repeated insinuation that discharges can be easily upgraded is inaccurate as it is, in fact, extremely difficult to obtain upgrades, as the discharge review boards often assume the original characterization of service was just and fair.
What Happens After the Board of Inquiry?
The rules are slightly different for each of the branch services which govern involuntary separation boards. Generally, if the board finds that you are not guilty of committing the disqualifying act or do not meet disqualifying conditions, then the case will end there and be closed.
If the board finds that you should not be discharged, this usually results in the end of the issue. Sometimes the government can forward the matter to higher headquarters, specifically the related service Secretary, although this is uncommon.
However, if the board’s decision is that the officer should face a discharge, the officer can go to the General Court-Martial Convening Authority (GCMCA). The GCMCA have the authority to contradict findings against the officer, improve the conditions of the discharge, or even suspend the discharge based on continual good conduct.
At any stage in the procedure, the officer is able to make an official written communication regarding any government documents and findings. In some instances, the GCMCA have been willing to accept personal interviews, termed “open door” meetings, with the officer to aid them in their case.
The Bottom Line
If facing a board of inquiry, the first thing to do is always to seek legal guidance. From there, you will be advised on your next steps in the process and are more likely to reach a satisfactory outcome.
Want to Know More About What to Expect when Facing a Board of Inquiry?
The attorneys at Court & Carpenter are willing to discuss with you your board of inquiry case and your needs for representation. Please contact us for more information.