Board of Inquiry

How the Board of Inquiry Process Works

While the process varies somewhat from service to service, generally the BOI process is initiated by the command’s action but can also be initiated by the higher headquarters manpower section of the branch of service. Just as commonly a command may run an officer through the BOI process and recommend retention or “no show cause.” However, upstream at the respective service headquarters they may disagree with the lower level commander(s) recommendation and order the officer in question to “show cause.”

Once an officer receives notification of an elimination action or to “show cause,” they have several options of how to respond. The officer can submit a resignation in lieu of elimination; the officer can also respond in writing to the underlying allegations to request that the elimination action be rescinded; and if the written matters do not convince the initiating commander to rescind the action, the officer can request a personal appearance and counsel’s representation at the BOI. In most cases, the officer has only thirty (30) calendar days to respond to the initial notification of elimination proceedings. Typically, after notice that a board will be convened, the board must occur within ninety (90) days.

Board of Inquiry vs. Court-Martial

The rights to counsel before a board of inquiry closely mirror those for a court-martial: the right to detailed (assigned) military counsel at no cost, the right to hire civilian counsel at the Officer’s cost, and the right to both working on the case. Unlike courts-martial, an Officer will not typically receive two detailed military attorneys as he would at a court-martial if he does not hire civilian counsel.

A significant difference between a BOI and a court-martial is that there are not as many rules to dictate the presentation of evidence. This allows a wider latitude to the attorneys’ presentation and the burden they must meet to persuade the board to take a particular action.

There are many strategies to combating elimination at a BOI which vary according to the overall goal of the officer. In cases where the officer has already admitted the alleged underlying misconduct, the purpose of the board is something more akin to a case in mitigation where the attorney is seeking to get the board to soften their recommendation as to the officer’s fate in the military. Alternatively, where the officer has not admitted any culpability to the alleged misconduct the goal is to undermine the government’s evidence and appeal to the members for a finding of “no misconduct.”

Fighting Elimination at a BOI

The required finding of the members at a board of inquiry is first to determine if by a preponderance (more likely than not) of the evidence the misconduct was committed by the “respondent.” The “respondent” is the term for the person facing elimination or separation. If the board concludes the respondent committed the misconduct, next the board must make a finding as to whether the misconduct warrants separation. If the board finds that elimination is warranted, then the board votes to determine the characterization of service.

The methods of fighting elimination are many and varied, and a defense is only as limited as the imagination and devotion of the counsel representing the respondent. There are no rules of evidence at a board of inquiry and it is incumbent on the attorney to leverage as much evidence against the government’s counsel (called the recorder) as possible.

Despite the truncated rights a member has at a BOI when compared to those involved at courts-martial, Congress has required the military to establish due process rights in all administrative procedures.