Board of Inquiry (BOI)

What is a Board of Inquiry (BOI)?

A Board of Inquiry (BOI) is the vehicle by which the military involuntarily separates officers from their respective services.  It is how officers with at least six (6) years of time in the service as an officer are fired from their jobs in the military.  It is also used when the command is seeking to fire a probationary officer with “bad paper” or an Other Than Honorable (OTH) discharge.  The BOI is similar to the Administrative Separation Board for enlisted service members and is often referred to as a “Show Cause Board,” an “Elimination Board,” or a “Board of Officers.”  The BOI in the Army is referred to as a “Show Cause Board” because the officer separation regulations requires the officer to “show cause for retention on active duty.”  Furthermore, in the Army, the appointing authority for a BOI is the General Officer Show Cause Authority, or GOSCA – a general officer in the chain of command of the officer facing separation.

A Board of Inquiry is an administrative alternative to court-martial when considering officer misconduct.  The BOI does not have the severe consequences posed by a court-martial including confinement, dismissal, or sex offender registration.  However, the BOI is substantially more severe than other administrative actions such as a General Officer Letter of Reprimand (GOMOR), Nonjudicial Punishment (NJP), or a referred Officer Evaluation Report (OER).  Oftentimes, the imposition of a GOMOR or NJP, or a referred OER, will generate a Department of Army directed Board of Inquiry when those adverse actions are discovered in the officer’s Official Military Personnel File (OMPF), usually when considered for promotions, schools, or any other board-directed review of their OMPF.

 What is the Purpose of a Board of Inquiry (BOI)?

The Board of Inquiry’s purpose is to give the officer a fair and impartial hearing to determine if the officer will be retained in the military.  Through a formal administrative investigation conducted under the service regulations governing the Board of Inquiry (AR 15-6 in the Army) and the service regulations governing officer separations, the BOI establishes and records the facts of the respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  If the BOI finds that there is a basis for separation, and recommends separation, they also make a recommendation as to the appropriate characterization of service (Honorable, General, Other Than Honorable) for the officer.

If a service member has been notified that their command is seeking involuntary separation through a Board of Inquiry, it is a very serious matter and a relatively short and strict timeline for actions and response on the part of the Respondent officer applies.  Given the gravity of the matter and usually short suspense, the officer should immediately contact a military defense lawyer at the Law Office of Will M. Helixon to assist them in preparing for their Board of Inquiry, especially when that BOI is convened in Germany or Europe.

Who Can Convene a Board of Inquiry (BOI)?

A Board of Inquire is convened by a general officer in the chain of command of the officer subject to the involuntary separation.  In the Army, BOIs are appointed by the appropriate General Officer Show Cause Authority (GOSCA).  Concurrence must be obtained from the appropriate commander when an officer assigned to a different command is pending separation in a Board of Inquiry.

General Officer Show Cause Authorities (GOSCA) are Commanders exercising General Court-Martial (GCM) authority and all general or flag rank officers in command who have a judge advocate or legal advisor available.  Any GOSCA by assignment or attachment may initiate or process an elimination.  In cases of two or more GOSCAs, Human Resources Command (HRC) may designate a specific GOSCA to act on the officer’s case.  An officer may have more than one GOSCA.  For example, a USAREUR officer of a 5th Signal Command Unit temporarily attached to a TRADOC tenant on a U.S. Army Forces Command (FORSCOM) installation may have four GOSCAs as follows:  1) The officer’s USAREUR unit of assignment’s GOSCA (chain of command), 2) That unit’s area GCM authority under USAREUR area of jurisdiction (chain of command), 3) The TRADOC chain’s GOSCA (chain of command), and 4) The FORSCOM chain’s GOSCA (chain unit of attachments).

What is the Composition of a Board of Inquiry (BOI)?

 Boards of Inquiry will consist of at least three voting members and a recorder (the Government “prosecutor”), legal advisor, and the officer’s (Respondent) counsel without vote.  The president of the Board of Inquiry will be the grade of colonel or above and senior in grade to the Respondent.  Other voting members will be Regular Army officers on active duty (unless the respondent is an RC officer) in the grade of lieutenant colonel or above and senior in grade and rank to the Respondent.  When the Respondent is a Reserve Component officer, one or more of the voting members will be a Reserve Component officer, preferably the same component.  Failure to appoint one or more Reserve Component officers to a BOI involving a Reserve Component officer Respondent automatically renders the findings and recommendations of the board invalid as a basis to eliminate the officer.

There are additional restrictions on who may serve as a voting member on a Board of Inquiry.  Specifically, no officer will be a voting member of a Board of Inquiry if that officer had done any of the following:

• Is serving (or has previously served) as a witness for the Respondent officer.
• Served as a member of the selection board in the particular case or served as a member on any previous Board of Inquiry, Review, or other board of officers with respect to the Respondent officer.
• Was a member (or was the reviewing authority) of a previous court-martial in which the Respondent was the Accused.
• Previously recommended (or participated in recommending) the Respondent for elimination from active duty.
• Rendered a derogatory evaluation report (OER) on the Respondent officer.
• Otherwise considered the Respondent officer’s case.

What is the Burden of Proof in a Board of Inquiry (BOI)?

The Burden of Proof in a Board of Inquiry is proof by the “preponderance of evidence.”  By the “preponderance of the evidence” is the standard of proof that is used in most civil lawsuits to determine which side wins.  It is also known as the “balance of probabilities” standard.  Often described as a “more likely than not,” it is a standard or proof over 50.1% that the misconduct happened.  In a civil case, the plaintiff has the burden of proving their case by a “preponderance of the evidence.”  This means that they must show that it is “more likely than not,” based on the evidence presented, that their claim is true.   The plaintiff doesn’t have to prove their case “beyond a reasonable doubt,” as they would in a criminal trial.  Instead, they must provide enough evidence to show that their version of events is more probable than the defendant’s.  The preponderance of the evidence standard is a lower burden of proof than “beyond a reasonable doubt,” which is used in criminal trials such as a court-martial.  This standard is used in civil cases because the consequences of losing are typically less severe than they are in criminal cases. Since the potential consequences of a BOI, although significant and career altering, are much less severe than the potential consequences of a court-martial, the Burden of Proof for a BOI is the lower by the “preponderance of evidence” standard.

What Regulations or Instructions Govern a Board of Inquiry (BOI)?

Each branch of service has their own regulation governing the involuntary separation of officers and Board of Inquiry procedures.  The National Guard and Reserve Component have their own regulations governing officer eliminations and involuntary separation.  The active-duty regulations include the following:

• Air Force – DAFI 36-3211 (Military Separations)
• Army – AR 600-8-24 (Officer Transfer and Discharges) and AR 15-6 (Procedures for Administrative Investigations and Boards of Officers)
• Coast Guard – COMDTINST M1000.4 (Military Separations)
• Marine Corps – MCO 1900.16 CH 2 (Separation and Retirement Manual) (SHORT TITLE: MARCORSEPMAN)
• Navy – SECNAVINST 1920.6D (Administrative Separation of Officers) and JAG Instruction 5830.1A

The military defense lawyers at the Law Office of Will M. Helixon have assisted service members throughout Europe and Germany contest unwarranted and unfair involuntary officer separations and Boards of Inquiry.  Any officer should call us today to assist in preparing for a pending Board if Inquiry.

What Officers are Entitled to a Board of Inquiry (BOI)?

Officers entitled to a BOI include any commissioned officer on active duty with more than 6 years active commissioned service or a commissioned reserve officer with more than 6 years commissioned service and warrant officers who have more than 3 years’ service since original appointment in their present component.  Additionally, any officer who is facing involuntary separation where the recommended characterization of service is Other Than Honorable (OTH) is entitled to a Board of Inquiry.

What are a Service Member Officer’s Rights in a Board of Inquiry (BOI)?

In a military Board of Inquiry (BOI), a respondent has several rights, which are intended to ensure a fair and impartial proceeding. Some of these rights may vary depending on the service branch and the governing regulation, but generally include:

• Notification – The officer Respondent has the right to be informed of the reasons for the BOI, the alleged misconduct, and the potential consequences.
• Presence at the Hearing – The officer Respondent will be present at all open sessions of the board unless he or she fails to appear before the board after timely notice or expressly waives the right to attend.
• Request Alternate Discharge – The officer Respondent has the right to submit a resignation in lieu of elimination, a retirement in lieu of elimination, or a request for discharge in lieu of elimination.
• Right to Counsel – The officer Respondent will be provided with detailed military counsel who is an officer of the Judge Advocate General’s Corps. Additionally, the Respondent may obtain civilian counsel of own selection without expense to the Government, provided that procurement of civilian counsel does not result in an unreasonable delay.
• Reasonable Time to Prepare – The officer Respondent will be allowed reasonable time, as determined by the Board of Inquiry, to prepare the case. The Respondent may submit a written request (citing the specific reasons) for continuance to the Board of Inquiry.  In no instance will the officer have fewer than 30 calendar days from the date of notification of requirement to show cause for retention on active duty.  Most BOIs should conclude within 90 days from notification.
• Inspect Evidence Against the Officer – The officer Respondent will be allowed, at all stages of the proceedings, full access to the records of the hearings, including all documentary evidence referred to the board.
• Question and Challenge Board Members – The officer Respondent may challenge for cause any member of the board. The convening authority will appoint additional members if necessary to ensure that the board membership is not reduced to fewer than three officers.
• Present Documentary Evidence – The officer Respondent may submit documents to the Board of Inquiry from their record of service, letters, answers, depositions, sworn or unsworn statements, affidavits, certificates, or stipulations. This includes, but is not limited to, depositions of witnesses not deemed to be reasonably available or witnesses unwilling to appear voluntarily.
• Present a Complete Case – The officer Respondent will be allowed to present the case without undue interference by the board. Such presentations may include any evidence relevant disproving the case presented by the Government (recorder) or to a Respondent’s rehabilitation or reformation as well as any matters in extenuation or mitigation that the Respondent desires to present.
• Testimony at the Board – The officer Respondent may testify in person by sworn or unsworn statement or elect to remain silent. Should the respondent elect to present sworn testimony, they may be required to submit to examination by the board as to any matter concerning which he or she testified.
• Produce Relevant Witnesses – The officer Respondent may request that witnesses, whose testimony is relevant to the case, appear before the Board of Inquiry.
• Cross-Examine Government Witnesses – The officer Respondent may question and cross-examine any witness brought before the board.
• Request Additional Evidence – The officer Respondent will be asked before the hearing is terminated to state for the record whether they have presented all available evidence on their behalf. If not, the Respondent will be required to make a concise statement of the substance of the expected evidence.  The statement and any documentary evidence referred to the Board will be included in the record of hearing.  The Board will then determine whether the Respondent will be granted additional time to produce such evidence.
• Appeal Findings and Recommendations – The officer Respondent has the right to appeal the BOI’s findings and recommendations to a higher authority, in the Army to the GOSCA, if they disagree with the outcome. The Respondent will be furnished a copy of the proceedings if requested and have the right to submit to the GOSCA a statement or brief within 7 calendar days after receipt of the Board of Inquiry report of proceedings of the case.

What are the Most Common Reasons for Involuntary Separation of an Officer at a Board of Inquiry (BOI)?

A Board of Inquiry (BOI) is an official military hearing that is conducted to investigate an officer’s conduct or actions and make recommendations on their retention or separation from the military.  The most common reasons an officer may face discharge at a Board of Inquiry may include:

• Officer Misconduct: Officers can be discharged at a BOI for various types of misconduct, such as criminal activity, adultery, fraternization, sexual assault, domestic violence, child abuse or other ethical breaches. This includes conviction at a court-martial for sexually violent offense that did not result in a punitive discharge.
• Moral or Professional Dereliction: Moral dereliction includes failure to meet personal financial obligations, mismanagement of personal affairs, failure to self-report criminal convictions, and conduct unbecoming an officer. Profession derelictions includes conduct or actions that result in the loss of professional status, such as withdrawal, suspension, or abandonment of professional license, endorsement, or certification that is directly or indirectly connected with or is necessary for the performance of one’s military duties.
• Substandard Performance Duty: Officers whose performance fails to meet minimum standards for their rank, job, or position may be separated at a BOI. This substandard performance includes mediocre service, not keeping pace with contemporaries, failure to exercise leadership, apathy, poor attitude, and failure of a course at a service school for academic reasons.
• Medical Reasons: Officers who are medically unable or unfit to perform their duties may face separation at a BOI.
• Security Issues: Officers who pose a security risk or have any involvement in espionage, sabotage, or terrorism-related activities may face discharge at a BOI.
• Drug or Alcohol-Related Issues: Officers who test positive for illegal drugs or refuse to take a drug test, those who abuse drugs or alcohol, or those who show evidence of drug or alcohol dependency may be recommended for discharge at a BOI.
• Failure to Maintain Height/Weight Standards: Officers who fail to achieve satisfactory progress after enrollment in the Army weight control program, or failure to maintain the weight/body fat standards established under the provisions of AR 600–9 (The Army Body Composition Program) after removal from an established weight control program, will result in the initiation of elimination action.
• Failure to Maintain Physical Fitness Standards: When no medical problems exist, and an officer has two consecutive failures of the APFT, elimination action will be initiated.
• Revocation of Security Clearance: The final denial or revocation of an officer’s Secret security clearance by appropriate authorities acting pursuant to DODI 5200.02 (DoD Personnel Security Program (PSP)) and AR 380–67 (Personnel Security Program).
• Derogatory Information in OMPF: The following reasons require an officer’s record to be reviewed for consideration of terminating appointment: 1) nonjudicial punishment under UCMJ, Art. 15, 2) conviction by court-martial, a relief for cause OER issued in accordance with AR 623–3 (Evaluation Reporting System), 3) adverse information filed in the AMHRR in accordance with AR 600–37 (Unfavorable Information) such as a General Officer Memorandum of Reprimand (GOMOR), and 4) any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry.

It is important to note that these are just examples, and the specific reasons an officer faces discharge at a BOI may vary depending on individual circumstances. Each case is unique and often evaluated on a case-by-case basis.  If you suspect that you may be facing a Board of Inquiry based on these or any other reasons, contact a military lawyer at the Law Office of Will M. Helixon for an immediate consultation.

What are the General Procedures at a Board of Inquiry (BOI)?

The general procedures at a Board of Inquiry (BOI) — commonly referred to as administrative hearings or “show cause” boards — may vary depending on the military branch or service involved.  But here is a general overview of the procedures used in a BOI process:

• Pre-Hearing Procedures: Before a BOI is convened, the officer in question is usually provided with a formal notice, which outlines the allegations being investigated, the specific misconduct, and the subject matter of the hearing.
• Defense Request for Evidence and Witnesses: The military defense lawyer presents a list of evidence and witnesses they want produced at the BOI for presentation during the defense case.
• Questioning and Challenge of Board Members: The BOI members state whether they are aware of any grounds for challenge for cause for them serving on the Board. If none exists, the military defense lawyer is given the opportunity to question the Board members individually to determine whether a ground for challenge exists.  If a ground for challenge is discovered, the military defense lawyer will challenge the Board member for bias or not being fair and impartial.
• The BOI Process Begins: The BOI process usually begins with an opening statement from the presiding officer to introduce the proceedings, advising the officer Respondent of their rights, and explaining the rules that apply to BOI proceedings.
• Presentation of Evidence: At the BOI, the Government (recorder) and the military defense lawyer will present opening statements and provide evidence to support their cases. The evidence used in BOIs can include written statements, documents, testimony from witnesses, and other evidence.
• Cross-examination: After any witness has given their evidence at the BOI, the remaining participant has the chance to question the witness before they leave the BOI proceedings.
• Closing Arguments: After all evidence is presented, and the facts analyzed, both the Government recorder and the military defense lawyer will make their closing arguments.
• Deliberations and Findings: In a closed session, the BOI will deliberate on the findings and recommendations based on the evidence presented at the Board. After deliberating, and making findings, the results of the BOI are announced to the officer Respondent in an open session of the Board.
• BOI Recommendation or Report: The BOI will make recommendations or report with respect to the officer’s retention or separation from the military based on the information and evidence presented before them in their findings of fact. Their decision is the product of a thorough review of all available evidence and submission by all participants. If the Board recommends separation, they will also make a recommendation as to the appropriate characterization of service.  The findings and recommendations will be memorialized in a report to the separation authority.  The Board may recommend that the separation be suspended as part of their recommendations.
• Defense Presentation of Post-Board Matters: The military defense lawyer will draft a brief to the separation authority outlining the reasons the officer Respondent should not be separated, or the characterization of service should be upgraded, based on additional matters not considered by the Board, matters considered by the Board but not acted upon, and substantive and procedural errors at the BOI.
• Review Procedure: Following a BOI’s recommendation or report, it will be reviewed, and the presiding officer will forward it to the relevant approval authority for final review, and the separation authority may order approval, a modification, or appeal.

These are the general procedures you can expect to unfold during a Board of Inquiry in the Military.  However, the specific process may depend on the characteristics of the hearing and might differ from case to case.

What are the Potential Characterizations of Service at Board of Inquiry (BOI)?

The characterization of service in a Board of Inquiry can be one of three characterizations:  1) Honorable, 2) General Under Honorable Conditions, and 3) Other Than Honorable Conditions.

Honorable Discharge.

 An Honorable Discharge is a form of military discharge given to a service member who has completed their service with distinction, has met or exceeded the standards for military conduct and performance, and has upheld the values and ideals of their branch of service.  This type of discharge is considered the highest form of discharge and can be granted for various reasons, such as completion of a term of service, medical reasons, or other circumstances that do not involve misconduct or poor performance.

General Under Honorable Conditions Discharge.

A General Discharge is a type of military discharge given to a service member whose performance and conduct were considered satisfactory but less than honorable.  It is typically granted to service members who have not met some of the standards of military discipline or whose conduct or performance was not quite up to the highest levels required for an honorable discharge.  Some reasons for a general discharge may include minor disciplinary infractions, sub-par performance, or a failure to meet expectations.  A General Discharge can have negative consequences, such as making it more difficult to obtain civilian employment or military benefits and is considered a lower form of discharge than an honorable discharge.

A service member with a General Discharge may lose certain benefits that are typically associated with an honorable discharge, such as eligibility for GI Bill education benefits, VA home loans, and VA medical benefits.  They may also be limited in their ability to access certain military and veteran benefits, including military retirement pay, and may face more restricted employment opportunities in civilian life.  In general, a General Discharge is considered to carry negative connotations and may be viewed as a potential red flag to some employers, educational institutions, and other organizations that may be hesitant to work with individuals who did not receive an honorable discharge.

Other Than Honorable (OTH) Discharge.

When an officer Respondent or service member is administratively separated with Other Than Honorable Conditions, they will face significant negative consequences.  In addition to losing their job and income, the service member can expect a litany of hardships associated with an Other Than Honorable Discharge.

One of the most significant consequences of an Other Than Honorable Discharge is the loss of benefits that are typically afforded to those who receive honorable discharges. For example, service members with OTHs are not eligible for Montgomery GI Bill or Post-911 GI Bill benefits, which provide financial assistance for education, training, and housing.  Additionally, they may be disqualified from receiving other forms of veterans’ benefits, such as VA healthcare, disability compensation, and life insurance.

Other negative consequences from an Other Than Honorable Discharge include loss of career opportunities, social and emotional consequences, negative mental health outcomes, financial difficulty and homelessness, and loss of community and sense of belonging.

How Should an Officer Prepare for a Board of Inquiry (BOI)?

The officer Respondent should begin preparing for the Board before they are officially notified of the BOI.  This should include preparing for the case against the offenses alleged, and the case for mitigation and extenuation.

For the case on the merits (refuting the allegations of misconduct or other basis for separation), the officer Respondent should identify all the evidence that supports their version of the facts.  This would include all documents and evidence that directly refutes the evidence that is presented by the Government recorder.  The officer Respondent should also identify all potential favorable witnesses on the merits who will support the defense version of the facts.  Once the list of merits witnesses is created, they should be sent to the Recorder and Board for production at the BOI.  The officer Respondent should also seriously consider whether they should testify on the merits at the BOI.  It is strongly recommended that the officer Respondent should take the BOI as seriously as defending themselves at a court-martial, and prepare their case likewise.

For the mitigation and extenuation case, the officer Respondent should identify all character witness that will provide evidence that the Respondent is a great service member, is competent and efficient in accomplishing their job duties, and that the Respondent should be retained in the service.  All evidence that explains the circumstances of the conduct serving as the basis for the separation action, and evidence justifying leniency should be identified.  This should also include documentary evidence.  This mitigation and extenuation evidence should also include a “good soldier” book documenting the military contributions of the officer Respondent.

It is critical that the officer Respondent work closely with their military defense attorney to build its case to be presented at the BOI.  The military lawyers at the Law Office of Will M. Helixon have vast experience, both defending and prosecuting officers at BOIs.  Call us today to tap into our decades of military law experience to effectively build your case and prepare for the Board of Inquiry.

What is an Ad Hoc Review Board?

In the Army, an officer Respondent recommended for elimination by a Board of Inquiry will have their case reviewed by the Ad Hoc Review Board.  The Ad Hoc Review Board is appointed by the Secretary of the Army or designee and has the same board composition as the Board of Inquiry.  The Ad Hoc Review Board, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or their designee as to whether the officer Respondent should be retained in the Army. Appearance by the officer Respondent (or the counsel) is not authorized.  When the Ad Hoc Review Board recommends retention in the Army (with or without reassignment) and the Secretary of the Army or designee approves the recommendation, the proceedings will be forwarded to the Human Resources Command and the case will be closed.  When the Ad Hoc Review Board recommends elimination from the Army (to include type of discharge and characterization, if applicable), the recommendation will be transmitted to the Secretary of the Army or designee, who makes the final decision.

When an officer Respondent is discharged solely for substandard performance of duty they will receive an honorable or general under honorable conditions discharge. The Ad Hoc Review Board may recommend the characterization of discharge to be more favorable than recommended by the Board of Inquiry (BOI) but not less favorable. The Ad Hoc Review Board’s recommendation is not binding on the Secretary of the Army or designee.

When the Ad Hoc Review Board recommends elimination, it may also recommend clemency in the form of suspension of the separation stating the reasons.  However, only the Secretary of the Army or designee may grant clemency.

Can an Officer Appeal the Results of a Board of Inquiry (BOI)?

Yes, the officer Respondent can appeal the decision to involuntarily separate the service member and the characterization of service to their appropriate service component Board of Correction for Military Records or Discharge Review Board.  The BCMR has broad powers to reverse the findings of the BOI and reinstate the officer into the service.  The BCMR also has the power to upgrade the character of service of the officer based on the evidence presented to the BCMR.

More about the Law Office of Will M. Helixon

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB process, adverse administrative matters, military justice matters, and legal assistance matters, including the correction of military records.  No longer in Kansas City, the firm now has a European office physically located in Vilseck, Germany.  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.