When facing an administrative separation board or an officer board of inquiry, you have several options to share your voice and to be heard by the board members who will decide your fate.
The military regulations provide you three different rights to give you a chance to tell your side of what happened or did not happen. Those three choices are that you can remain silent, testify under oath, or provide what’s called an unsworn statement. Understanding these options is crucial to ensure that you are best represented during these administrative hearings.
The Right to Remain Silent
In any military board proceeding, you have the right to remain silent. This means you don’t have to answer questions or say anything about the case. If you choose this option, the board members would be instructed that they cannot use your silence against you. They aren’t supposed to assume you’re guilty just because you don’t speak up. This right protects you from self-incrimination.
Remaining silent might be a good choice if you think anything you say could be used against you. It’s also a safe bet if you’re unsure how to defend yourself effectively. But if you believe you have a strong case or evidence to support your side, you might want to consider either testifying or providing a scripted or unscripted unsworn statement.
Testifying Under Oath
If you decide to testify under oath, you promise to tell the truth. This can be a powerful way to tell your story and present your side of the events. However, remember that testifying under oath means you can be cross-examined. The board’s lawyer, known as the recorder, can ask you questions to test the accuracy of your statements and to try to confront you with any inconsistencies or implausibility of your version of events. Realize that the board members are also able to question you during your testimony, which can also inspire the board’s recorder to follow up on any questions that came up during direct, cross-examination, or even redirect examination. If you choose this route, be prepared to answer tough questions, and to defend your words.
Testifying under oath can be helpful if you have clear evidence or a strong argument to present. It shows that you’re willing to be honest and open about what happened. Just be sure you’re ready for cross-examination, which can be stressful and demanding. The legal team you’ve hired to defend you has a regimen of appointments to assist you in getting prepared.
Providing an Unsworn Statement
An unsworn statement is a way to share your side of the story without the risk of cross-examination. Even though this process technically is not under oath, you are not able to be questioned by the board’s prosecutor (the recorder) or by the board members. You will be able to organize your thoughts so that you can say what you feel is important without the pressure of being questioned by opposing counsel or the board members. This option also gives you the flexibility to script your thoughts and experiences.
However, even though you can’t be cross-examined on an unsworn statement, the board’s lawyers are able to disprove or question the facts you present in rebuttal. They could bring up other evidence to counter your claims. So, while it’s a less intense way to share your voice, it’s not entirely without scrutiny. And it certainly does not give you license to lie.
Unsworn statements can be a good option if you want to share personal experiences or explain your actions in a more personal way. You can present it in writing or speak directly to the board. It can also come from question and answer format, and it can even come from your lawyer.
Conclusion
In summary, when you’re facing an administrative separation board or an officer board of inquiry, you have the right to remain silent, testify under oath, or provide an unsworn statement. Each option has its pros and cons, so consider your choice carefully. Weigh the benefits of each option with your lawyer. All cases are unique and there is no cookie cutter approach for all.
