Board of Inquiry
The information contained here is meant to educate and inform the reader on the BOI process. It is not meant to be a substitute for seeking the advice of an experienced criminal defense attorney who can apply the unique facts of your case to the law.
The military branches go through periods of growth and downsizing. And one way that the services downsize is through the officer and enlisted separation process. Currently we are seeing period of downsizing in the form of an increase in the number officer Administrative Separation, or boards of inquiry (BOI).
The BOI is a panel of 3 officers of senior rank to the accused who hold a hearing, during which they take evidence and hear arguments. The board must first decide if the evidence presented supports the existence of the alleged misconduct and whether the officer should be retained in the service. If misconduct is found, what characterization should the officer receive and lastly, if retirement eligible a recommendation as to the officer’s retirement pay grade. The recommendations are sent back to the commander who convened the board who will provide his or her recommendation as well and then pass the packet up the chain to the ultimate separation authority for final determination.
The Wilkie Law Firm is located in Jacksonville, but serves the entire state of North Carolina as well as its surrounding states. The Devil Dog Defender is also able to service any military installation located in the United States, but travel fees will apply.
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the officer can also respond in writing to the underlying allegations to request that the elimination action be rescinded; and if the written matters do not convince the initiating commander to rescind the action, the officer can request a personal appearance and counsel’s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.
Hire the Best
Aden Wilkie is located in Jacksonville, NC and services armed forces at Camp Lejeune and Fort Bragg as well as other bases, camps, stations, and posts spanning the USA. For your best bet at fighting elimination at a Board of Inquiry, call the Devil Dog Defender today at 910-333-9626 or click the link below to schedule your initial consultation.