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Military Officer Cases

Military Officer Cases

Officer Separations Due to Misconduct

Commissioned officers may be administratively separated from the military for substandard performance, misconduct, moral or professional dereliction, or because the officer's retention is not consistent with the interests of national security. Congress has directed the Secretary of the military department concerned, within the limitations set by the Secretary of Defense, to prescribe regulations to permit review at any time of a commissioned officer's record to determine if the officer will need to show cause for retention in the service. As a result, the Secretary of Defense has issued regulations governing the separation procedures for regular and reserve commissioned officers.

A commissioned officer may be separated from the military for, among other reasons, an act or acts of misconduct including (1) serious or recurring wrongdoing, punishable by military or civilian authorities; (2) intentional or discreditable mismanagement of personal affairs (including financial affairs); (3) drug abuse; (4) intentional neglect of, or failure to perform, assigned duties; or (5) intentional misrepresentation of facts in obtaining an appointment or in official statements or records. When administrative separation is contemplated, the “show cause” authority reviews the officer's record to determine if the officer will be required to show cause for retention on active duty. Upon examining the officer's record, the “show cause” authority can either close the case or refer it to a “Board of Inquiry” , a hearing where the officer is required to show cause for his retention.

Boards of Inquiry

Boards of Inquiry (BOI) are convened by the Secretary of the officer's military branch and are similar to a trial where evidence is presented for and against the officer.

The “judge” and “jury” at the BOI will be at least three active duty officers of a grade above lieutenant colonel or commander, senior in rank to and of the same military branch as the officer required to show cause for retention. The officers need not be attorneys or have legal training. As in a trial, the BOI is required to give a fair and impartial hearing to the officer and to consider all relevant evidence prior to determining whether separation is warranted and, if so, the type of discharge the officer should receive. A non-voting attorney may be appointed to assist the BOI and acts as the “prosecutor.”

Unlike a trial where the prosecutor needs to prove the defendant's guilt beyond a reasonable doubt, the BOI need only find that a preponderance of the evidence supports cause for separation. A unanimous finding is not required. Rules of evidence applicable at criminal trials are not applicable at BOIs; any relevant evidence may be introduced for or against the officer.

The officer facing the BOI has rights similar to those of a defendant at a criminal trial. The officer has the right (1) to notice of the hearing and the reasons for it at least 30 days in advance, (2) to a reasonable time to prepare to show reasons for his retention, (3) to appear in person and to be represented by counsel, and (4) to have full access and copies of the records relevant to his or her case. Analogous to “double jeopardy” in a criminal context, if the BOI determines that the officer should be retained, he or she cannot be brought to another BOI for the same charges, unless the findings or recommendations of the BOI are determined to have been obtained by fraud or collusion.

If the BOI recommends that the officer be separated, the record is referred to the Secretary of the military department concerned so that he or she may direct separation or retention. The Secretary's decision is final. However, the decision to separate may be challenged by the officer in the Court of Federal Claims or the respective board of correction of military records.

10 U.S.C. § 1181.

10 U.S.C. § 1181.

Department of Defense Instruction (DoD Inst.) 1332.40. As with the regulations governing enlisted separations, these regulations have also been incorporated by each branch of the military through the issuance of its own regulations.

Officers may also be administratively separated for example if they lose their professional qualifications or for substandard performance. See 10 U.S.C. § 1181.

DoD Inst. 1332.40, E2.2.

The “show cause” authority is the commander initiating administrative separation proceedings. It can be the military branch's Secretary, commanders of reserve personnel centers, commanders of a brigade or unit, an air command or the commander in chief of a fleet, and all general or flag officers in command who have a military attorney or legal advisor available. DoD Inst. 1332.40, E1.1.2.1.

DoD Inst. 1332.40, E3.2.1.

DoD Inst. 1332.40, E3.2.2.

10 U.S.C. § 1182; DoD Inst. 1332.40, E3.3.

10 U.S.C. § 1182; DoD Inst. 1332.40, E3.3.

10 U.S.C. §§ 1182, 1187; DoD Inst. 1332.40, E4.2.

10 U.S.C. § 1182; DoD Inst. 1332.40, E3.3.3.

DoD Inst. 1332.40, E4.1.(b)-(c).

DoD Inst. 1332.40, E3.3.3.

10 U.S.C. § 1185; DoD Inst., 1332.40 E5.4.

10 U.S.C. § 1182.

10 U.S.C. § 1184; DoD Inst. 1332.40, E3.5.

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