1. Officer misconduct is identified through an investigation

The Navy Board of Inquiry process starts informally when a commander suspects a naval officer has committed misconduct. MILPERSMAN 1611-010 outlines which incidents commanders are required to investigate and report whether its misconduct or substandard performance. The following are some examples of misconduct: sexual harassment, toxic leadership, dereliction of duty under article 92, Non-judicial punishment, civil or military arrest, conduct unbecoming an officer, positive urinalysis, drug or alcohol rehabilitation failure, or FAP substantiated child sexual assault incidents, or domestic violence to name a few. It’s critical that the accused speak with an attorney before making any statements to investigators. It’s at this point the accused should retain and attorney to help guide them through the investigation process.

The commander will send an email to PERS-834 and the officer will be flagged. This puts the officer in a position of limbo: no new orders, no promotion, and no voluntary resignation or retirement. The officer cannot take any action until the flag is removed. This may lead the command to begin the Navy Board of Inquiry Process.

2. Investigation Report

PERS-834 can remove the flag after the initial report of misconduct or substandard performance is complete.  The commanding officer submits a formal report that fall into the following categories:

• Report of No Misconduct
• Report of Non-Judicial Punishment
• Report of Misconduct – the commander determined the officer committed misconduct
• Report of Substandard Performance – the commander has reviewed the information determined that rehabilitation cannot fix the officer’s poor performance.
• Final Civil Action Report (FCAR)

You can find these reports in MILPERSMAN 1611-010.  The Navy must give the officer the opportunity to submit matters in response.  An experienced attorney can assist the officer in responding to an investigation.

3. Show Cause Determination

When the commander submits these reports, they will make a recommendation regarding whether the officer should be required to show cause for retention, which could lead to separation, whether the officer should be detached for cause, and whether any promotion should be delayed/withheld.  A commander’s decision to “Show cause” is the first decision in an officer separation case and determines whether an officer must present a case for retention in the Navy. A commander can direct that the officer should show cause and defend their service to stay in. Or a commander could decide show cause is unnecessary and retain the officer. The Navy will notify the officer via a letter if they will be required to Show Cause to be retained. This letter is part of the Navy Board of Inquiry Process.

The first flag officer in the officer’s chain of command is the show cause authority.  The reports mentioned above are routed through the first flag officer to PERS-834.  It is here that the first flag officer, by endorsement to PERS-834, will direct the officer to be required to show cause or recommend to PERS-834 that the officer not be required to show cause.  Although the show cause authority can direct show cause, PERS-834 must close out a report by not requiring show cause.  In other words, even if the flag officer recommends no show cause, PERS-834 has the final say. The underlying report will normally be placed in the officer’s Official Military Personnel File (OMPF).

4. PERS-834 Directs Show Cause

PERS 834 will formally notify the officer by letter directing show cause and give the officer his or her options. These options include resigning or retiring with an unfavorable characterization of service and/or at a reduced paygrade or contesting the show cause determination by requesting a BOI (board of inquiry procedure).

5. Board of Inquiry

Once show cause paperwork has been issued, the Navy will hold the Board of Inquiry within 90 days. Navy Region commander in the geographic area where the officer is stationed will hold the BOI.  The BOI is composed of three officers, all senior to the officer being required to show cause for retention. The BOI will determine the following three things: if the misconduct occurred, if the misconduct did occur whether the officer should be retained or separated/retired (for retirement eligible officers) and the characterization of the officer’s service (other than honorable, general, honorable). The board could also determine whether retirement eligible officers should be retired at a reduced paygrade.

A BOI is not a court martial, but an administrative hearing with relaxed rules of evidence: witnesses can be called in-person, remotely, or give testimony by statement, and hearsay evidence is admissible. The officer is entitled to an attorney, either at his own expense or provided by the Navy. A JAG Officer will represent the Navy who will present evidence and argue that the officer should be separated.

6. After the Board of Inquiry

The Board of Inquiry will forward the board results to PERS-834. If the officer is retained, no further action is necessary and the officer will resume duties as ordered by the Navy. Click here to see some of our success stories at Show Cause Boards.

If the Board recommends separation, a summary record of proceedings will be created by the regional staff and the Navy will separate.

7. Final Action

PERS-834 will send the officer a Status in the Navy (SIN) letter if the officer has been retained. Even with retention, a positive BOI finding will not undo any associated NJP or Report of Misconduct. This could cause continued damage to the officer’s career since they still have bad paper in their files. This is why an officer accused of misconduct should retain an attorney well before the situation leads to a BOI. They should retain an attorney as soon as they become aware that the Navy has begun an investigation into potential misconduct. It’s critical to mitigate any actions that could lead to NJP or Reports of Misconduct in the first place. The officer can seek to have paperwork removed from his record via the Navy Board of Corrections, but this process can take a year or more.

The command will forward the officer’s post-board submission if the board directs the officer to be separated/retired. ASN M&RA will use the post-board submission and the BOI’s report to make final determination on separation/retirement, characterization of service, and, for retirement eligible officers, retirement paygrade.

If you are under investigation for misconduct or facing adverse separation, call us today to speak with our experienced attorney. 757-504-2815 or contact us here.