A lot, that’s what.
Before the board’s recommendation can be approved by the appointing authority, at least one commander must approve that recommendation to make it (semi) final. After the board’s recommendation is announced at the board, there are still a number of days and even weeks (or possibly months) before the appointing authority will receive the board’s findings and recommendations for action. During this period of time, the government is responsible to create a summarized transcript of the proceedings. Hint: they always get it wrong, leave out details that are important to a later review, and take a long time. Hint: your counsel should be ensuring that the transcript accurately reflects what occurred AND that the government preserves the audio recordings of what exactly happened.
It may be in your best interest (depending on what is at stake and the potential errors that occurred during the board) to pay an outside, independent court reporter to create a verbatim (word for word) record of what happened at your board.
During the board, there may have been evidentiary objections lodged by your counsel or even by the government. Typically, the board legal advisor does not take to heart the respondent’s objections, overrules them, and the evidence having been objected to comes into evidence anyway.
Now that Army Regulation 15-6 incorporates a balancing test similar to Military Rule of Evidence 403, objections really matter. This rule may keep out evidence that otherwise would come in because the “relevance” standard is exceptionally low.
Another evidentiary issue we often see at administrative separation boards is whether there is misconduct that is not on the notice but that the board recorder (government representative akin to the prosecutor of a board) wants to come into the board’s consideration. The only purpose for which misconduct that is not a stated “basis for separation” can be considered is IF AND ONLY IF the board finds a separate basis and then separately finds that the basis should mean separation. THEN, the board can consider additional misconduct for the limited purpose of deciding an appropriate characterization of service.
Asking members to ignore additional separate misconduct without it coming into their consideration for making them believe that it is more likely that the member committed the noticed misconduct is a lot to ask. Even more so, not having them weigh knowledge of this separate misconduct as leaning them to separate is all but too much to ask.
What we have taken to doing, when strategically sound for the client, in more and more cases is explaining that we object to a certain exhibit coming in because it relates to a separate non-noticed piece of misconduct and proposing that we keep it in a separate envelope. If the board reaches a separate basis and if the board determines during their separate vote about separation, then they can open the secret envelope and consider it for characterization. More and more, board presidents (also known as senior member) are siding with us and electing to go this route. The potential downfall is you won’t have a chance to help explain or deflate this additional misconduct. This is a tactical decision made with much consideration about all permutations. But it gives you a way to ensure that the decision makers are not being improperly influenced by evidence that should only have one use.
When the government objects to respondent evidence during a board, this is also an issue ripe for complaint in a memo of deficiencies.
I cannot emphasize enough that board legal advisors (particularly in Army boards) are extremely junior judge advocates with very little if any military justice experience or administrative law experience. They tend to support the position of the government counsel. A respondent who gets shut down in trying to introduce evidence should be a red flag for reviewing authorities. And the memorandum of deficiencies must emphasize this issue.
A memorandum of deficiencies is also critical if the member is or would be soon retirement eligible. The reviewing body above the general show cause authority at the base will care, even if no one else does.
The result? A new board. That’s right. A memorandum of deficiencies that raises significant error in procedure and evidence can result in the member receiving a new board altogether. This is a powerful motivator to ensure that the board is reviewed with a discerning eye and maybe from someone who did not handle the board at all.
Even if you “lose” at the board level, remember there are significant rights to have it screened, reviewed, and scrutinized. It could mean all the difference. Make an appointment to evaluate your opportunity for a memorandum of deficiencies.
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