Elimination Boards / Boards of Inquiry (BOIs) are being initiated against officers in growing numbers.
What is an Officer Elimination Board / Board of Inquiry?
An officer elimination board is the process required when the command requires an officer to “show cause” for why he or she should be retained in the service. This is a different standard for administrative boards for enlisted members because for officers, there is almost a presumption that there should be elimination, and the officer has to justify why they should be permitted to continue to serve. An officer who is probationary may not be entitled to a board unless the command wishes for them to receive an Other Than Honorable (OTH) characterization of service. Officers who have served for more than six years are entitled to a board regardless of what character of service the command is pursuing. The officer is referred to as the respondent.
What is a Probationary Officer?
A probationary officer under Army Regulation 600-8-24 is a commissioned officer who is in a transitional or evaluation period, typically early in their career, during which their performance and conduct are closely monitored to determine their suitability for continued service. This probationary period is intended to ensure that the officer meets the high standards of leadership, competence, and character expected by the Army. If an officer fails to meet these standards, they may face administrative action, including separation or additional training, to address performance or conduct deficiencies.
When Will the Officer Face Elimination?
Typically, the command pursues an officer elimination board when the officer already faced some nonjudicial or derogatory administrative action, such as an officially filed letter of reprimand, or a negative evaluation. Nonjudicial punishment does happen for officers, and it occurs usually at the flag level: nonjudicial punishment (like Article 15, NJP, or Captain’s Mast).
Even if the command opts not to take action to eliminate the officer, the personal branch of each service has certain provisions that makes the officer face a board of inquiry automatically if they have “bad paper” in their official record. We see these for referral evaluations, letters of reprimand, or nonjudicial punishment.
What Are an Officer’s Options?
Upon receiving notification of elimination action, an officer has several response options. They can:
– Submit a resignation in lieu of elimination.
-Submit a retirement in lieu of elimination (though they are seldom granted).
– Respond in writing to the underlying allegations, requesting rescission of the elimination action.
– Request a personal appearance with counsel’s representation at the BOI.
We always recommend responding in writing asking for cancellation AND if that is unsuccessful, then asserting the officer’s right to appear and contest the misconduct at the board.
Typically, an officer has only 30 calendar days to respond to the initial notification of elimination proceedings and to make their election of rights. After that, the board must occur within 90 days of notice.
Who Sits on an Officer Elimination Board?
The Board of Inquiry is comprised of three members who make findings whether the alleged misconduct or other deficiency happened. The members who decide the officer’s fate are three officers who must all be senior in rank or grade to the officer facing elimination, known as the respondent. The senior member of the board is the board president, and the other two officers are voting members. Despite seniority, the members are all supposed to have equal voice and vote for their decisions. If the officer facing elimination is a member of a minority, then that member can also request that a minority member sit on their board, but the minority need not be the same minority as the person facing separation.
If the officer is a member of a specialty branch, such as chaplain, medical, etc., then the officer can also assert their right to have at least one of the board members come from their specialty branch.
How Does the Officer Elimination Board Decide?
As with administrative separation boards for enlisted members, the officers who sit on the board of inquiry vote by secret written ballot and 2/3 members must agree on the findings, if elimination is warranted, and then on the characterization of service if they recommend the officer not be retained.
The standard for the members to reach their findings, as with all administrative actions, is whether the greater weight of evidence supports each finding or not. This is known in the law as the preponderance of evidence standard, which we also refer to as more likely than not, or 50.00001%. This standard determines if the servicemember should be eliminated or not from service, and if retention should be granted or not. As with enlisted separation boards, the findings cannot be pre-determined by even a prior finding of “guilty” at NJP. The board members must still independently decide whether the evidence meets the misconduct definitions and standards. This is also true for any prior rebutted letter of reprimand, and even when that letter became permanently filed.
If the board members also vote to eliminate the officer, the board must vote on the characterization of service, which can be Honorable, General (Under Honorable Conditions), or Other Than Honorable. In most cases of alleged misconduct, you will not typically see an Honorable discharge, but there is a process to have it approved by the next higher authority.
Why are there More Officer Elimination Boards?
In every time of a drawdown, we see an uptick of the command’s efforts to cull the field. This is true now, particularly when there are several provisions that automatically require officers to
“show cause” for their retention. When an officer has any history of derogatory findings, typically this triggers an automatic board. That can happen even years later. These boards happen based on any previously filed “bad paper,” and do not require the command to initiate them. We hear often from officers who are shocked they are facing elimination because their command told them they intended for the prior derogatory action to be the end of things.
Why Officer Elimination Boards are Critical?
The number one answer for why an officer board of inquiry is so critical is because of the potential to lose time, pension, and benefits. Officers work for years toward a vested retirement, and even spurious allegations can risk so much work and time. There are also life lasting implications for the characterization of service on a person’s civilian life, which includes employment opportunities and even whether the member would qualify for federally subsidized student loans, among others.
Can an Officer Later Upgrade Their Discharge?
We frequently field questions about upgrades to discharges. There seems to be a commonly held belief that upgrading a discharge later is almost automatic. Nothing could be more wrong. In fact, it is increasingly difficult to obtain relief later in the form of a discharge upgrade. This is because there is a “presumption of regularity,” which means that if the characterization was given, then it is presumed that it was the fair and just result. Upgrading a discharge for any reason is a difficult endeavor. Winning at the board is vital.
Resources to Prepare Officers Facing Elimination
We hear often people refer to these administrative hearings as “kangaroo court.” Notably, there are not many limitations on what kinds of evidence can be considered by the board members. Some complain about this, but we embrace it. We prefer to leverage the absence of many rules to be creative in what we present. For helpful tips about what kind of evidence to gather in support of your retention efforts at an officer board of inquiry, please take a look at this post.
Witnesses and Memoranda for an Officer Elimination Board
Along with documents, emails, and text messages, members facing elimination are also entitled to present fact witnesses, character witnesses, and affidavits or memos in support of the officer’s retention and / or retirement. Whom to call, what to ask them, and how to frame testimony is important. Details matter. For hints about vetting witnesses and making critical choices about presentation of witnesses versus memoranda, please read our detailed post.
Options in Addressing the Board Members
Similar to administrative separation boards, officer facing boards of inquiry have three discrete choices in addressing the board members. They can testify under oath; opt to invoke their right to remain silent; or they can present what is known as an unsworn statement. There are pros and cons to each choice. Navigating the options is best guided by those of us with decades of experience giving advice to offices facing elimination. All cases are unique and require learned counsel. To understand the nuances about the choices that officers, have, please review this post.
You are Not Alone
Timelines for responding to a notice of elimination are short. If you wait to hire counsel, your appointed military counsel or even your civilian choice will be playing catchup. Early intervention and preparation will put you in the best position to retain your career and livelihood. Please don’t wait to begin your preparations for the most effective strategy possible. Schedule a consultation with a team of advocates who are experienced and who care. Having dedicated civilian counsel ensures that your case is given the highest priority and that a strong defense strategy is in place.