What are Officer Elimination Actions?
Officer Elimination Actions refer to the manner by which military Officers are involuntarily separated from service. Officers who have more than six (6) years of military service or for whom the Command recommends separation with a characterization of service of Other Than Honorable are entitled to an adversarial board hearing known as a Show Cause Board or Board of Inquiry.
In most cases, officer elimination actions are initiated because of substantiated misconduct by the Officer. The misconduct may be substantiated following an administrative investigation, a guilty finding at non-judicial punishment imposed under Article 15, Uniform Code of Military Justice, or a guilty finding following trial by court-martial. The substantiated misconduct may then form the basis for the involuntary elimination from military service.
Officers who receive notice of involuntary elimination have several choices. One choice involves submitting a request for resignation from military service in lieu of elimination. Officers electing this option will normally condition their resignation on a characterization of military service more favorable than Other Than Honorable. For instance, an Officer requesting resignation in lieu of elimination will normally condition the resignation request on receipt of a General Discharge from military service. Officers who submit resignation requests are not entitled to a Show Cause Board of Board in Inquiry. Rather than proceed to this adversarial event, the Officer submits a resignation request instead.
A second choice available to some Officers notified of involuntary elimination is to request or apply for retirement if otherwise eligible. Under normal conditions, a military service member’s retirement benefit becomes vested after twenty (20) years of active military service. However, the military occasionally offers early retirement programs of which certain Officers who otherwise qualify may avail themselves. Because early retirement programs and incentives change from time to time, this issue should be thoroughly researched by Officers presently faced with the prospect of involuntary elimination.
A third choice available to Officers pending elimination is to request a Show Cause Board or Board of Inquiry. This often selected option entitles the Officer to a full adversarial proceeding by which he can challenge the basis for elimination and/or seek retention. A board is presided over by a panel of three officers all senior in rank to the Officer pending elimination. The board then receives evidence from both the government and defense, and thereafter, renders findings and recommendations to the authority who appointed the board members to preside over the matter.
Officers are afforded a number of rights in connection with boards. They are entitled to the right to counsel. This means the Officer pending elimination may receive legal representation from a detailed military defense counsel or appointed counsel at government expense. The Officer may also retain private civilian defense counsel at his or her own expense. The Officer may also have both: appointed military counsel and privately retained civilian counsel.
The Officer is entitled to receive discovery of any and all information that forms the basis of the involuntary elimination action. He may also confront, question and cross-examine any witnesses called against him by the government. The Officer may also present evidence on his or her own behalf. Such evidence may challenge the allegations of misconduct, which serve as the reason for the elimination. In essence, despite substantiated misconduct, the government has the burden of proving by a preponderance of evidence the alleged reason for elimination. The defense, in addition to confronting the government’s witnesses and challenging its evidence, may present affirmative evidence in various forms to prove the Officer’s consent and/or to otherwise show that the Officer has potential for further service so as to warrant retention. Defense evidence may come in the form of witnesses, statements of support, letters, awards, service record, family information, medical information, etc.
Officers who proceed to a Show Cause Board must work with their legal representatives to develop a clear strategy at the board with a predetermined objective. Essentially, the Officer is either fighting for retention on active duty or concedes elimination, but seeks a characterization of service more favorable than Other Than Honorable such as General or Honorable. Those who are fighting for retention may contest the actual alleged misconduct which forms the basis for the board, or concede the misconduct followed by an apology and a compelling case of extenuating and mitigating evidence all marshaled towards a plea for retention. Riskier strategies involve alternative theories such as contesting the alleged misconduct and also seeking retention. The facts of each case are different and should be analyzed carefully through the eyes of an experienced military defense lawyer before committing to a board strategy. Electing and developing the right strategy is the first step toward maximizing the chance for success at a Show Cause Board or Board of Inquiry.
The order of march at a Show Cause Board or Board of Inquiry is as follows. First, the parties are afforded the chance to make an opening statement. Second, the government presents its case by calling witnesses and offering documents and/or other forms of evidence in support of the alleged misconduct by the Officer and his or her subsequent involuntary elimination or separation from military service. The defense is allowed to cross-examine government witnesses and challenge the offered evidence.
Third, the defense is afforded the chance to present its own witnesses or evidence, but is not required to do so. This evidence may contest or challenge that presented by the government; explain or justify the substantiated misconduct; set forth extenuating or mitigating information, and overall, is designed to support the Officer’s request for retention in the military. An Officer pending elimination may also testify during the defense case. If he opts to do so, he or she may make a sworn or unsworn statement. Alternatively, the Officer may exercise the right to remain silent by not saying anything and his silence may not be considered evidence against him. If the Officer elects to make a sworn statement, he will be subject to cross-examination by government counsel and open to questioning by the board members. If he elects to make an unsworn statement, he will not be required to answer questions posed to him by anyone.
Fourth, if the defense presents any evidence, the government may offer matters in rebuttal, but is not required to do so. Fifth and finally, the parties are afforded the chance to make closing statements or remarks. Closing remarks may include comments on the strength and/or weakness of the evidence presented in support or against substantiation of the alleged misconduct, applicability of legal defenses, matters in aggravation in support of elimination by the government or matters of extenuation and mitigation in support of elimination by the defense.
At the conclusion of the board, the members must make findings and recommendations regarding three potential questions. The board must first decide if there is preponderance of evidence to conclude that the Officer pending elimination committed misconduct. If they decide no, the board ends with the Officer being retained. If they decide that the misconduct has been proven, they must then decide whether to retain or eliminate the Officer. If they decide to retain the Officer, the board ends with the Officer being retained. If they decide or recommend elimination, the board members must then recommend how to characterize the Officer’s military service: Honorable, General or Other Than Honorable.
The board’s decision must be the result of 2/3 majority vote. The decision is then forwarded as a recommendation to the appointing authority that convened the board. The appointing authority must then approve or disapprove the board’s recommendation. However, the appointing authority may not approve or impose an outcome against an Officer any worse than that recommended by the board. For example, if the board votes for retention, the appointing authority must approve it. Similarly, if the board votes to eliminate with an Honorable Discharge, the appointing authority may either approve of this recommendation or alternatively, opt to retain the Officer. However, the appointing authority cannot impose a worse or less favorable characterization of service than that recommended by the board. Conversely, if the board votes to eliminate with an adverse characterization of service, the appointing authority may reject the recommendation in whole or in part by deciding to retain the Officer, or alternatively, upgrade his discharge above that recommended by the board.
If you are a military Officer who has received notice of involuntary elimination or to show cause for retention, call Civilian Military Defense Attorney John L. Calcagni, III for a free consultation today at (401) 351-5100.