If you are a military officer who has been served with a Notice to Show Cause for a Board of Inquiry or Involuntary Elimination from the military, your career, reputation and possible retirement from the military is on the line. Military Law Center defends officers facing Boards of Inquiry and Involuntary Eliminations proceedings in all branches of the military.

If you have been ordered to Show Cause for retention at a Board of Inquiry or Involuntary Elimination proceeding, do not treat it like routine administrative paperwork. Show Cause proceedings are formal administrative hearings where the government seeks to determine whether you should remain in the service. It can affect whether you stay in uniform, whether you are separated, what characterization of service you receive, and, for some officers, the grade at which you retire. Under current federal law, even a Board’s recommendation to retain an officer may not always close the case.

Military Law Center represents officers facing Show Cause proceedings If your case involves alleged misconduct, substandard performance, a security-clearance issue, adverse evaluations, a PAC complaint, or another basis for officer separation, you should seek advice from experienced counsel before you make any statements, submit a resignation, or assume a retain vote ends the matter.

Call (760) 536-9038 or use the contact form to request a confidential consultation.

Military Law Center: led by Gary Barthel, Retired Marine LtCol and former JAG

Gary Barthel served as military prosecutor, Senior Defense Counsel, and Staff Judge Advocate, during his career in the U.S. Marine Corps. For the past 40 years he has represented officers in every branch of the military who have been required to Show Cause for retention in the military. His vast knowledge and experience as a military prosecutor, defense counsel, and Staff Judge Advocate and his experience in representing clients in all branches of the military provides him with the unique ability to effectively represent his clients before such boards.

Previously, if a finding was made that the officer established he or she should be retained on active duty the officer’s case was closed. Unfortunately, that is no longer the case.

Under the current text of 10 U.S.C. § 1182, if a Board of Inquiry recommends retention, the case is normally closed unless the board substantiated a basis for separation and, after recommendation from the service chief, the Secretary of the military department determines the board’s retention recommendation was clearly erroneous, a miscarriage of justice, and inconsistent with the best interest of the service. In those unusual cases, the Secretary may still direct separation after written justification and an opportunity for the officer to submit matters for consideration.

That changes how Show Cause hearings should be defended. The goal is no longer just winning a vote for retention on active duty, the goal is building a record strong enough to survive higher-level review.

A Board of Inquiry is an administrative hearing convened for an officer who is required to show cause for retention on active duty. Federal law requires the board to be composed of not less than three officers, and the board must provide a fair and impartial hearing. DoD guidance further states that the board makes findings on each reason for separation, recommends whether the officer should be retained, and, if discharge is recommended, recommends the characterization of service. The board’s findings must be supported by a preponderance of the evidence.

Unlike a court martial where the rules of evidence apply and the burden of proof is higher, that means the likelihood of an adverse finding is easier for the government to achieve. Therefore, a Board of Inquiry is one of the most serious administrative proceedings an officer can face.

In many cases, the process starts with a requirement to show cause for retention. The Show Cause Authority reviews the case and decides whether the officer must answer for alleged substandard performance, misconduct, moral or professional dereliction, or retention concerns tied to national security. Federal law requires that an officer going before a BOI receive written notice at least 30 days before the hearing.

That notice is not the time to hope the matter goes away on its own. At a minimum, it is the point when strategy needs to start. Even better, an officer pending any investigation or potential misconduct should reach out to experienced counsel well in advance of receiving written notice of the hearing. With early preparation and planning, an officer may be able to avoid being required to show cause for retention.

Officer show cause hearings often stem from one or more of the following:

Even if an officer is found not-guilty an NJP, or a civilian disposition does not always end the administrative risk. BOI cases often grow out of the wider record, not just the single allegation that may have been criminally charged.

A BOI is not supposed to be a black box. Federal law and DoD guidance provide real procedural rights. Officers facing a BOI are entitled to written notice, time to prepare, the ability to appear and be represented by counsel, and access to relevant records subject to limited national-security withholding rules. DoD guidance also permits civilian counsel without expense to the government.

Depending on the case and service rules, those rights may also include:

• challenging board members for cause
• requesting relevant witnesses
• submitting service records, letters, and other documentary materials
• testifying or remaining silent
• questioning witnesses who appear
• presenting argument and mitigation evidence

Those rights matter only if they are used well. A rushed, passive, or badly organized defense is an ineffective use of those rights. 

A BOI does more than answer whether you stay.

The board makes findings on each stated reason for separation, recommends retention or separation, and, if discharge is recommended, recommends the characterization of service. Under DoD guidance, when substandard performance is the sole basis, the characterization is honorable or general. For misconduct, moral or professional dereliction, or national-security-based separation, the characterization may be honorable, general, or under other than honorable conditions.

So the members on board are not just deciding whether your career continues. They are also deciding how your military service will be characterized if you are not retained.

Not every officer gets the same process.

DoD guidance defines a probationary commissioned officer as an officer on the active-duty list with fewer than 6 years of active commissioned service, or a Reserve officer with fewer than 6 years of commissioned service. In some probationary cases, if the Show Cause Authority recommends an honorable or general discharge, the matter may proceed as a written separation action rather than a live BOI. If an other than honorable characterization may be appropriate, the case may be referred to a Board of Inquiry.

That distinction matters. Some officers need to prepare for a full hearing. Others need to fight hard on the written record. Either way, it is imperative to get an experienced military attorney who knows what is important so you can make the best case for retention.

For retirement-eligible officers, a BOI can be a pension fight as much as a career fight.

Under 10 U.S.C. § 1370, an officer generally retires in the highest permanent grade in which the officer served satisfactorily. The statute also allows misconduct in a lower grade to affect satisfactory-service determinations for higher grades, and an officer who does not satisfy the service-in-grade requirement may retire in the next lower satisfactory grade.

That is why BOI defense should also account for Officer Grade Determination exposure. A bad record in a Show Cause hearing can lead to an unjustified lower retirement grade and lifetime of lost retired pay.

Sometimes. But it is not automatic, and it is not always smart.

DoD guidance says that, in certain cases, the Secretary may accept a resignation, deny it and discharge the officer, deny it and refer the case to a BOI if an other than honorable characterization is considered appropriate, or retain the officer. The same guidance also allows requests for voluntary retirement, transfer to the Retired Reserve for reservists, or discharge before final action in some cases.

Sometimes a resignation in lieu of a Board of Inquiry or Involuntary Elimination is a strategic move. Sometimes it is just surrendering leverage too early. The right answer depends on the record, the likely characterization, and the retirement-grade risk.