Board of Inquiry, elimination board, board for elimination, show cause board, administrative separation board… whatever you call it, they are the process through which the military is trying to fire one of its officers.
The colloquial term “show cause board” comes from the verbiage that the officer is being made to “show cause” why he or she should be retained.
It is like showing up to the principal’s office for a day of reckoning when that person is looking you in the eye to say, give me one good reason not to send you packing.
Only instead of it being one principal (or vice principal), that officer is appearing in front of a board of three officers all of whom are senior in grade or rank than the person being made to stand on the carpet.
That “show cause board” must make a preliminary finding that there was either misconduct or substandard performance. Many members who sit on boards of inquiry think that if there was a prior NJP / Captains Mast / nonjudicial punishment/ Article 15, that they do not have to make this findings. In fact, they do. The idea of “re-litigation” of that prior NJP freaks out most board members, as though they would be going against their higher command.
I was working for a Marine Chief Warrant Officer at his show cause board not too long ago. When I started talking through this issue with the members during voir dire (where I am questioning members about various topics to test their ability to be fair and impartial), the senior member began dressing me down in a pretty hostile tone. I pushed back and cited to regulatory requirements for that exact requirement.
The notion of independence scares some members, and it is the advocate’s responsibility to make sure that the members understand their role.
We frequently obtain decisions at boards that directly contradict the finding at NJP of a senior leader. That is the board members’ job.
Sometimes the battle is not whether there was any misconduct, or what is known as the “basis” for elimination. Often, the battle is raged on the second question of whether any misconduct warrants elimination. Was the misconduct so egregious that this officer must lose their career and retirement? Did the officer manage to rehabilitate from whatever happened, and is it in the best interest of the service to keep him in uniform?
This is the battle to be retained, also referred to as retention. It means everything for trying to make it to retirement, and especially to achieve retirement at the officer’s current and highest rank.
When retention is not possible, then the third area for the advocate is the characterization of service. General under honorable conditions will typically at least preserve some medical and VA benefits. The difference between an Other than Honorable and General under Honorable cannot be underestimated or undervalued.
In a show cause board for a retirement eligible officer in the Department of the Navy, there is a fourth battleground for a recommendation for the retirement grade or a grade determination. Many do not know that if the board reaches a determination that elimination is warranted, then the board must also make a recommendation if that officer should be given retirement at their current grade or at a lower grade for which they honorably served. This can mean the difference in more than a million dollars over the life of a retirement.
The ”Show Cause” board, board of inquiry, elimination board is where retirements are kept or lost. Even after a board’s finding, there is room to advocate. We handle memoranda of deficiencies where we capture all the errors that occurred in a board of inquiry. More on memos of deficiencies for another day. For now, simply know that a board result is not the end of things. The commander who directed the “Show Cause” still has to approve those findings, and there are several layers of review where those findings can be attacked.
Ensure you choose an advocate who knows the best strategies and knows the rulebook by heart. It matters.
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