Administrative Separation Boards & Boards of Inquiry | Military Defense Guide

My name is Michael Waddington, and I’m a military defense lawyer who represents military members that are being administratively separated and facing Boards of Inquiry. What to expect during an administrative separation board? An administrative separation board, or a BOI, depending on whether you’re an officer and depending on your branch, but they’re basically the same. You’re going to have three officers, or two officers and one enlisted, who are sitting there reviewing the case.

Now, you’re going to go in there. They’re going to be sitting there at a table, or it can be done in the courtroom. You’re going to be with your lawyers at one table. The recorder, basically the prosecutor at the board, they call them the recorder, they’ll be sitting at another table, and then you may have a legal adviser and a court reporter. But you’re going to have three members sitting there. Basically, that’s your jury, and that’s who you’re trying to convince.

Now, these folks on the board, the jury of the board, or the board members, those are the ones that are going to be listening to the evidence. They’re going to be interacting with your attorney, with the opposing attorney. They’re going to be calling witnesses of their own if they like, questioning witnesses, and they’re going to be evaluating the evidence. And what they’re trying to decide, the bottom line is: did you do it? Did you commit the crime? Is there enough evidence to prove you committed the crime? And if so, should you get the boot? If they decide to give you the boot, then they’re deciding what type of discharge to give you.

Now, the service member has the right to present a defense, but it’s not like a court-martial. You cannot subpoena witnesses. You could generally not subpoena evidence. You can’t force the government to bring people in. You can’t bring expert witnesses. But what you can do is still put up a pretty robust defense, and you can call your own witnesses. You can have them on the phone via Skype, Zoom, Teams. You can have letters. You can have them come there live if they’re willing to travel, and you can present your case that way.

You can also present quite a bit of evidence, documentary evidence, to the board. The Rules of Evidence don’t apply at a board, except for relevancy, meaning that you can put in evidence that is hearsay. You could present evidence that would not be admissible, including impeachment evidence that can help you at a board that wouldn’t be allowed in a court-martial. That’s one of the things I like to do at these boards, is we can look at the Rules of Evidence at a court-martial, and we’re kind of boxed in, but at a board, it’s kind of like a bar fight. Pretty much any, anything goes, as long as it’s reasonable and it’s relevant. You can bring that evidence in.

And you can also ambush the government quite a bit at boards, because they don’t have the same discovery rules at a board that they have at a court-martial, meaning that you can sometimes wait until the last minute to hand over evidence, to call witnesses, and it prevents the government from, you know, digging up more dirt and counterattacking you during your case at the board. If they decide you should be kicked out, they’re also weighing and balancing throughout this: hey, what type of discharge should we give this person? Did they serve honorably? Do they get a general, or should they get an other than honorable?

If you’re facing an administrative separation board, then call today to speak with one of our lawyers to discuss your case, your rights, and the best way forward to fight for your future and your career.