However unpleasant involuntary officer separations may be to contemplate, they are a vital tool for maintaining readiness, good order, and discipline. Imagine you are a commanding officer (CO) at sea. You learn a department head has stolen government property, or sexually harassed junior sailors, or drunkenly assaulted a foreign national—or simply failed to perform his job. Word has spread among junior sailors, and the chiefs’ mess is concerned the department head’s continued presence undermines good order and discipline within the department. The wardroom has lost respect for the officer. You believe that officer is unworthy of continuing to wear the uniform, but you lack the power simply to expel him from the Navy. You will need to know what do, because the law and naval regulations govern the officer separation process, which typically includes a board of inquiry (BOI).
The process is complicated and often stressful and lengthy. But well-managed officer separations strengthen the Navy for the same reasons that well-managed officer development programs do. First, they ensure only those officers best equipped to lead sailors can continue to serve. Second, an effective separation process improves morale by addressing performance and conduct issues, and it allows those who remain to focus on their missions and teams. Finally, it protects the Navy’s reputation and ability to recruit future leaders.
Within the past year, the Secretary of the Navy and the Chief of Naval Operations have made significant changes to the officer separation process. It is vital that those who may initiate boards of inquiry as well as those who may be the subject of them—in other words, all officers—understand the process and the changes in progress. There is the potential for significant improvement if these changes are implemented and supported at every level across the fleet.
Process and Challenges
Many officers will go their entire careers hearing about only the high-profile officer separations that capture public attention. But these cases are outliers; most separations for cause are the result of less spectacular failings: substandard performance, positive urinalysis, alcohol rehabilitation failure, assault, integrity violations, and other low-visibility (if not low-impact) misconduct. It is worth examining the mechanics of a more typical officer separation for cause and describing common secondary effects during the process.
“Show cause.” When there is evidence of misconduct or substandard performance, officers can be required to show cause for retention.1 If so, the officer has the right in most cases (see note 1 for exceptions) to a fair and impartial hearing from a three-member board of inquiry, assessing whether the alleged misconduct or substandard performance occurred; if so, whether the officer should nonetheless be retained; and, if not, how the officer’s service should be characterized. The board members must all be in the same branch of service as the officer and hold at least the rank of O-5, and one must hold at least the rank of O-6. But before a board can be convened, a lengthy process assesses the allegations against the officer to determine the appropriateness and timing of a BOI.
Length. Even in straightforward cases, the process can take months. During that time, the command must determine an appropriate worksite for the officer. But the continued presence in the command of an officer awaiting a show-cause hearing can negatively affect morale, if not risk further misconduct. The command can transfer the officer but then could be undermanned, forcing it to weigh any anticipated detriment to good order and discipline against the mission impact of a manning shortfall—sometimes for a year or more.
Personal and professional consequences. Wherever assigned, the officer is operating in a state of uncertainty and heightened stress. When combined with the other stressors to which service members are regularly subjected, these may contribute to destructive personal and professional behaviors.2 Further misconduct, marital and familial tension, and poor health can exacerbate professional problems, erode safety nets, and ultimately undermine the officer’s ability to transition to a new command or civilian life.
Ad hoc membership. Beyond statutory and administrative requirements for members of a board of inquiry, the key practical criterion is: They are available on the scheduled day. Many members have not previously sat on an administrative board. They are learning the process and authorities as they digest the facts of a case. Members rely on the recorder, who may have no legal experience and no law degree, and the counsel for respondent, a lawyer whose role is to zealously advocate for the officer, to fill knowledge gaps. Even those with previous relevant experience will not necessarily be well versed in the process. And if their previous experience was with enlisted separations, without guidance they might unintentionally apply an incorrect set of rules.
Command experience. Perhaps most important, the BOI may be the members’ first experience making a decision that could end a service member’s career. In the normal course of discipline, an executive officer, staff officer, or department head recommends outcomes, but only a CO makes the decision on whether and how to impose punishment or pursue separation. The governing instructions direct that the O-6 on the board should have command experience whenever possible. Unfortunately, at a shore command, it is possible that none of the three board members will have held command.
Good service members make mistakes, and not every misconduct allegation is accurate or merits separation. But, frankly, some service members cost the Navy more through misconduct or poor performance than they contribute. The Navy expects COs to determine which is which and maintain good order and discipline. Asking board members to learn to do this while also learning the process, authorities, and facts of the case is a heavy burden.
BOIs—2019 and Beyond
In July and August 2019, the Secretary of the Navy and the Chief of Naval Operations each announced several changes to the handling of misconduct, including to the bases for which officers can be separated, the delegation of authority to direct an officer to show cause for retention, and the board of inquiry process.
The Navy issued SecNavInst 1920.6D and NavAdmin 188/19.3 It has been suggested the timing of these changes indicates the Navy did not like the legal and administrative results of proceedings related to the 2017 USS Fitzgerald (DDG-62) and John S. McCain (DDG-56) collisions and so revamped the system to tilt the scale.4 However, most officer separations are not high-visibility events, and a close look at the actual content of these changes reveals them to be narrowly tailored to the technical and institutional challenges discussed.
SecNavInst 1920.6D updated the instruction governing officer separations. The update amended the bases for separation and, perhaps more significantly, added a BOI purpose statement to the member instructions.
The updated instruction clarifies two specific bases for separation and removes a criterion for misconduct-related ones.5 First, the 2019 version replaced “sexual perversion” with “sexual misconduct or perversion” as a basis, and it added failure to maintain a security clearance.6 In this sort of administrative system, such changes improve the regulations’ clear legal meaning, facilitating every stage of the process: Commands and staff judge advocates can review the instruction to determine clearly their duties and options; the officer, his or her counsel, and the recorder can better articulate the interests of the officer and of the Navy; and BOI members can grasp the authorities and facts before them with greater confidence.
Second, the instruction changed one basis for separation from “discreditable involvement with military or civilian authorities” (a subjective term without clear legal meaning) to a “pattern of serious or recurring misconduct punishable by military or civilian authorities.”7 By removing the ambiguity of “discreditable involvement” and replacing it with the easily defined category of “punishable” misconduct, the 2019 changes opened an important category of bases for separation: those cases where an officer has committed misconduct that could be punished, regardless of whether the relevant authorities have acted on or were even aware of the misconduct.8
Purpose statement. The new “Notification to Board Members” is of less immediate practical use than the changes to the bases for separation. However, it may prove more important in the long term. Board members are required to read the notification before deliberation; it tasks them with “protect[ing] the interests of the Navy and Marine Corps, and by extension, America’s interests, by promoting readiness through the maintenance of high standards of conduct and performance.”9 The statement emphasizes the Department of Defense policy to separate officers “who will not or cannot meet rigorous and necessary standards of duty, performance, and discipline; maintain those high standards of performance and conduct through appropriate actions that sustain the traditional concept of honorable military service; or exercise the required level of responsibility, fidelity, integrity, or competence.”
Some civilian counsel who specialize in serving as counsel for BOI respondents have argued that this language constitutes “unlawful command influence” that would void the results of any BOIs.10 However, that interpretation ignores the purpose statement’s final sentence, that BOI membership “requires impartial and thoughtful consideration.” Emphasizing the gravity of the proceedings both for the Navy and the officer avoids the specter (or reality) of a thumb too heavy on the scale.
The updated instruction maintains the preference for command experience and adds that the convening authority should “draw upon the experience of more senior officers, especially those with command experience, when appointing members.”11 It is, of course, still possible that a board may have no such members. For those who have not served in command, the purpose statement’s emphasis on the Navy-wide impact of the board’s decisions may help place them in the mind of a CO. However, absent a hard requirement for command experience, such notification language alone is unlikely to serve as a substitute.
Chief of Naval Operations changes. The Chief of Naval Operations’ team conducted a comprehensive review of misconduct handling within the Navy and announced the results in NavAdmin 188/19 on 9 August 2019. Officer separations were not the only area addressed, but of the NavAdmin’s ten paragraphs, six focus on separations, with three directing significant changes.12 Some of the changes were self-enacting, others were implemented in October 2019 by MilPersMan 1610-010, and some have yet to be enacted Navy-wide.
Show-cause authority. Of the major changes already in effect, the most significant is the delegation of show-cause authority (SCA)—i.e., the authority to direct that an officer show cause for retention. Previously, Navy Personnel Command (NavPers) held this authority, making it functionally the SCA for the entire Navy. Since the 2019 reforms, most flag officers will be able in many cases to serve as the SCA for their subordinate commands. Delegating this authority should dramatically reduce the time between a report of misconduct and the initiation of show-cause proceedings (steps three through six on the table).13
BOI membership and training. One of the most interesting and innovative outcomes of this comprehensive review is in its earliest stages. The NavAdmin announced a pilot training program for BOI members, who would serve as a standing board for three months following the training. This trial run is ongoing and has the potential to address many recurring challenges.
A standing board would expedite scheduling, reducing the negative effects on officers and commands of monthslong delays (during steps eight through ten). Providing meaningful training and having members preside over multiple BOIs would ensure members are fluent in their duties and authorities and able to focus on the facts of particular cases. Finally, for members who do not have command experience, sitting on multiple BOIs may accomplish what the SecNavInst notification language alone does not: overcoming the inherent and understandable discomfort many feel with making adverse personnel decisions.
If successful, these standing boards could avert concerns about pressure from the SCA or Navy to separate. Creating expertise among the BOI members empowers them to weigh the facts, enables them to spot weak arguments from the recorder, and educates them on the scope of their authorities.
The caveats remain, however—if the standing boards are implemented successfully; if convening authorities select highly qualified members; if the training develops the necessary expertise; and if the members are able to balance the demands of multiple boards with their primary duties for a three-month period.
The Navy must invest in the officer separation process through travel funds, senior officer working hours dedicated to serving on boards of inquiry, and Navy-wide recognition of board service as leadership enhancing. Without such investment, the Navy risks undermining the substantial improvements made in 2019, exacerbating uncertainty, and creating unnecessary obstacles for commands, officers, and the sailors they lead.
Clearing the Obstacles
To clear the logistical, resource, and manning hurdles ahead, commanders at all levels must commit to the officer separation process as a tool that can ensure the health of the Navy. The Secretary of the Navy’s intent could not be clearer: “The central purpose of a BOI is to protect the interests of the Navy and Marine Corps, and by extension, America’s interests, by promoting readiness through the maintenance of high standards of conduct and performance.”
For board members, this work is often time consuming, thankless, and taxing. Implementing the changes will be the quiet work of commands, staff judge advocates, and defense service officers. It will need to be done every day, for every officer. Quite properly, the spotlight is rarely on officer separations when the systems are operating as intended, but that must not dim the Navy’s institutional commitment to demanding—not merely developing—leadership.
1. 10 U.S.C. sections 1181, 1182, 14902, 14903. “Probationary” officers (those with less than six years of service) can submit a letter to the separation authority but are only entitled to a BOI if facing a characterization of service of “General (under honorable conditions)” or “Other than honorable.”
2. See, for example, Steven Pflanz and Scott Sonnek, “Work Stress in the Military: Prevalence, Causes, and Relationships to Emotional Health,” in Military Medicine 167, no. 11 (November 2002): 877–82.
3. MilPersMan 1610-010 incorporated some of these changes.
4. Korody Law Firm, “The Navy’s Push to Separate More Officers at Boards of Inquiry,” korodylaw.com/navys-push-separate-officers-boards-inquiry/.
5. A third change, providing greater clarity on health-related separations, is significant but outside the scope of this article.
6. The instruction also made sexual misconduct a mandatory processing offense. This does not mean separation is mandatory, merely that if the CO believes on a good-faith basis that the offense occurred, the CO must engage the administrative separation process.
7. SecNavInst 1920.6D, enclosure 6, paragraph 1.b.11.
8. For example, offenses under the UCMJ’s punitive articles, Title 18 for federal criminal code, and state criminal statutes punishable by six months or more of confinement and that require specific intent (as opposed to simple negligence) for conviction; See SECNAVINST 1920.6D, enclosure 6, paragraph 1.b.1.
9. SecNavInst 1920.6D, enclosure 11, paragraph 10.
10. Unlawful command influence is prohibited by 10 U.S.C. 837, incorporated as Article 37 of the UCMJ; Korody Law Firm, “The Navy’s Push to Separate More Officers at Boards of Inquiry.” As a technical matter, “unlawful command influence” applies only to courts-martial, military tribunals, and the performance evaluations of those involved, not nondisciplinary administrative proceedings such as BOIs, though the UCMJ prohibits wrongful interference with an adverse administrative proceeding (10 U.S.C. 931(g)).
11. SecNavInst 1920.6D, enclosure 11, paragraphs 3(d) and 10(a).
12. Other changes include: establishing multiple reporting processes, the introduction of an Administrative Letter of Reprimand modeled on the Army and Air Force tool, and reforming enlisted administrative separations.
13. The delegation also places more authority into the hands of the chain of command, which may draw criticisms that the process is more vulnerable to bias. However, SCA is held above the officer’s CO, and all reports must still go to NavPers, which ultimately notifies the member.