Whether you are an Officer undergoing a Board of Inquiry or enlisted undergoing an Administrative Separation Board, one of the most significant decisions you will make is whether you will provide information yourself to the board, and if so, how you will do so. This article explores the options available to you.
At the board, all witnesses must testify under oath. This meaning that the witnesses all raise their right hand, swear to tell the truth, and then sit down to answer questions. First, they answer questions from the lawyer that called them as a witness. Then the other lawyer can cross-examine them, and the board can also ask them questions.
At your board, you are not called “the defendant;” you are “the respondent.” As the respondent, you have due process rights that give you additional options than the other witnesses. When it comes to testifying at your board, you have three options: to remain silent (not give a statement at all), to give sworn testimony, or to make an unsworn statement.
To remain silent. You have a constitutional right against self-incrimination; therefore, you cannot be forced to testify at your board. This is true even though a board is an administrative proceeding and even though when at a board you are not exposed to a conviction. Remember that the board is not the end of things, and even after your board, the government could, if they chose to, pursue a criminal action like a court-martial. This privilege against self-incrimination remains true in administrative proceedings.
There are many reasons a person might not want to testify; it could be something as simple as that they are incredibly nervous, have a stutter, or fear cross-examination.
Sometimes there are more complicated reasons, like when the military conducts the board for alleged misconduct that is still pending a trial in the civilian world. Depending on the seriousness of the civilian charges, it may not be in your best interest to make a statement at the board because the government can turn around and use it against you in your civilian case. If you elect not to testify, the board can be instructed that they may not draw any adverse inference from the fact that you did not testify.
Sworn. You also have the right to provide sworn testimony at your board. That means, just like all the other witnesses, you will raise your right hand, swear to tell the truth, and then answer the questions of your attorney. After your attorney’s questions, the government attorney will cross-examine you, and then the board can (and usually does) ask you questions. Providing sworn testimony has risks, but it can also reap serious rewards. The government attorney will try to make you look bad, perhaps ask you questions that upset you or are designed to try to make you look like a liar.
Additionally, after the government attorney is done, the board members will want to ask you questions. Sometimes this can also feel like another cross-examination. Often board members have questions that would not seem obvious and can be particularly nerve racking.
What is most important is that you are prepared to answer any questions calmly, politely, and clearly. Your experienced attorney should have practiced with you before this occurs. Never give sworn testimony on the fly.
Unsworn. As the respondent, you are given an additional option that the other witnesses did not have; you can provide an unsworn statement. You can provide an unsworn statement as question and answer format with your attorney, you may read something out that you typed ahead of time, through your attorney, or some combination that makes the most sense for your case. Again, the law allows for the unsworn statement to be given orally or in writing, and it can be made by you, by your attorney, or both. The language “or both” means your attorney can still ask you questions, and you provide answers just as you would if you were testifying under oath. Your attorney can also read your prepared statement if you are too nervous to do so or if there is something about your delivery that is unsettling.
With an unsworn statement, you can even in some instances sit on the stand as though you are testifying, but you do not take an oath. This option is less risky than giving a sworn statement because after you are done with your statement, you cannot be cross-examined, and the board members cannot ask you any questions. However, board members often have questions that may be left unanswered if you provide an unsworn statement.
In fact, sometimes the board is chomping at the bit to ask you questions, and the fact that they are not allowed to can upset or disappoint them.
You should have a skilled and experienced attorney who can inform the board that an unsworn statement is your right under the law, and they should make no adverse inference from the fact that it is unsworn.
Like with sworn testimony, it is crucial that you are prepared for your unsworn statement. You and your attorney should have gone over it together.
Although every case is different, typically, the unsworn statement is the most often used method of providing a statement at a board.
Remember that it is important that you have an attorney skilled in making sure the board understands your rights and prepares you to answer tough questions in your unsworn.
Although the choice to testify is yours alone to make, you should listen to the advice and opinion of an experienced attorney who knows all the facts of the case
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