10 U.S.C. § 1182 — Boards of inquiry

Page 1251 TITLE 10—ARMED FORCES § 1182 § 1181. Authority to establish procedures to con- sider the separation of officers for sub- standard performance of duty and for cer- tain other reasons (a) Subject to such limitations as the Sec- retary of Defense may prescribe, the Secretary of the military department concerned shall pre- scribe, by regulation, procedures for the review at any time of the record of any commissioned officer (other than a commissioned warrant offi- cer or a retired officer) of the Regular Army, Regular Navy, Regular Air Force, Regular Ma- rine Corps, or Regular Space Force to determine whether such officer shall be required, because his performance of duty has fallen below stand- ards prescribed by the Secretary of Defense, to show cause for his retention on active duty. (b) Subject to such limitations as the Sec- retary of Defense may prescribe, the Secretary of the military department concerned shall pre- scribe, by regulation, procedures for the review at any time of the record of any commissioned officer (other than a commissioned warrant offi- cer or a retired officer) of the Regular Army, Regular Navy, Regular Air Force, Regular Ma- rine Corps, or Regular Space Force to determine whether such officer should be required, because of misconduct, because of moral or professional dereliction, or because his retention is not clear- ly consistent with the interests of national secu- rity, to show cause for his retention on active duty. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2872; amended Pub. L. 98–525, title V, § 524(b)(1), Oct. 19, 1984, 98 Stat. 2524; Pub. L. 116–283, div. A, title IX, § 924(b)(4)(J), Jan. 1, 2021, 134 Stat. 3822.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283 substituted ‘‘Regular Marine Corps, or Regular Space Force’’ for ‘‘or Regular Marine Corps’’ in subsecs. (a) and (b). 1984—Pub. L. 98–525 substituted ‘‘Authority to estab- lish procedures to consider the separation of officers for substandard performance of duty and for certain other reasons’’ for ‘‘Authority to convene boards of of- ficers to consider separation of officers for substandard performance of duty or for certain other reasons’’ in section catchline. Subsecs. (a), (b). Pub. L. 98–525 amended subsecs. (a) and (b) generally, substituting ‘‘Subject to such limita- tions as the Secretary of Defense may prescribe, the Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record’’ for ‘‘Under regulations pre- scribed by the Secretary of Defense, the Secretary of the military department concerned may at any time convene a board of officers to review the record’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–525, title V, § 524(b)(3), Oct. 19, 1984, 98 Stat. 2524, provided that: ‘‘The amendments made by para- graphs (1) and (2) [amending this section and the anal- ysis to this chapter] shall take effect on the first day of the first month that begins more than 60 days after the date of the enactment of this Act [Oct. 19, 1984], but shall not apply to any case in which, before that date, a board of officers has been ordered to convene under the provisions of section 1181 of title 10, United States Code, as in effect before that date.’’ EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this chapter effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. TRANSITION PROVISIONS UNDER DEFENSE OFFICER PERSONNEL MANAGEMENT ACT For provisions to prevent extinction or premature termination of rights, duties, penalties, or proceedings that existed or were begun prior to the effective date of Pub. L. 96–513 and otherwise to allow for an orderly transition to the system of officer personnel manage- ment put in place under Pub. L. 96–513, see section 601 et seq. of Pub. L. 96–513, set out as a note under section 611 of this title. § 1182. Boards of inquiry (a) The Secretary of the military department concerned shall convene boards of inquiry at such times and places as the Secretary may pre- scribe to receive evidence and make findings and recommendations as to whether an officer who is required under section 1181 of this title to show cause for retention on active duty should be retained on active duty. Each board of in- quiry shall be composed of not less than three officers having the qualifications prescribed by section 1187 of this title. (b) A board of inquiry shall give a fair and im- partial hearing to each officer required under section 1181 of this title to show cause for reten- tion on active duty. (c)(1) If a board of inquiry determines that the officer has failed to establish that he should be retained on active duty, it shall recommend to the Secretary concerned that the officer not be retained on active duty. (2) Under regulations prescribed by the Sec- retary concerned, an officer as to whom a board of inquiry makes a recommendation under para- graph (1) that the officer not be retained on ac- tive duty may be required to take leave pending the completion of the officer’s case under this chapter. The officer may be required to begin such leave at any time following the officer’s re- ceipt of the report of the board of inquiry, in- cluding the board’s recommendation for removal from active duty, and the expiration of any pe- riod allowed for submission by the officer of a rebuttal to that report. The leave may be con- tinued until the date on which action by the Secretary concerned on the officer’s case is com- pleted or may be terminated at any earlier time. (d)(1)(A) If a board of inquiry determines that an officer should be retained, the officer’s case is closed unless the board substantiated a basis for separation and, upon recommendation from the service chief, the Secretary of the military de- partment determines that the board’s retention recommendation is clearly erroneous in light of the evidence considered by the board, a mis- carriage of justice, and inconsistent with the best interest of the service. In such cases, the Secretary of the military department may sepa- rate the officer after providing a written jus- tification of the decision to separate. (B) An officer considered for separation under this section must be notified and afforded the opportunity to present matters for the Sec- retary of the military department to consider Page 1252 TITLE 10—ARMED FORCES [§ 1183 when making the separation determination. The Secretary of the military department shall re- view the case to determine whether the reten- tion recommendation of the board is clearly contrary to the substantial weight of the evi- dence in the record and whether the officer’s conduct discredits the Service, adversely affects good order and discipline, and adversely affects the officer’s performance of duty. (C) Exercise of authority to separate an officer under this section shall be reserved for unusual cases where such action is essential to the inter- ests of justice, discipline, and proper adminis- tration of the service. (2) Authority to direct administrative separa- tion after a board of inquiry’s recommendation to retain an officer may only be delegated to a civilian official within a military department appointed by the President, by and with the ad- vice and consent of the Senate. The least favor- able characterization in such cases will be gen- eral (under honorable conditions). (3) An officer who is required to show cause for retention on active duty under subsection (a) of section 1181 of this title and who is determined under paragraph (1) to have established that he should be retained on active duty may not again be required to show cause for retention on ac- tive duty under such subsection within the one- year period beginning on the date of that deter- mination. (4)(A) Subject to subparagraph (B), an officer who is required to show cause for retention on active duty under subsection (b) of section 1181 of this title and who is determined under para- graph (1) to have established that he should be retained on active duty may again be required to show cause for retention at any time. (B) An officer who has been required to show cause for retention on active duty under sub- section (b) of section 1181 of this title and who is thereafter retained on active duty may not again be required to show cause for retention on active duty under such subsection solely be- cause of conduct which was the subject of the previous proceedings, unless the findings or rec- ommendations of the board of inquiry that con- sidered his case are determined to have been ob- tained by fraud or collusion. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2872; amended Pub. L. 105–261, div. A, title V, § 503(b)(1), Oct. 17, 1998, 112 Stat. 2003; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(d)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–292; Pub. L. 107–314, div. A, title V, § 506(a), Dec. 2, 2002, 116 Stat. 2534; Pub. L. 118–159, div. A, title V, § 508, Dec. 23, 2024, 138 Stat. 1871.) Editorial Notes AMENDMENTS 2024—Subsec. (d)(1). Pub. L. 118–159, § 508(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘If a board of inquiry determines that the offi- cer has established that he should be retained on active duty, the officer’s case is closed.’’ Subsec. (d)(2) to (4). Pub. L. 118–159, § 508(2), (3), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. 2002—Subsec. (c). Pub. L. 107–314 designated existing provisions as par. (1) and added par. (2). 2000—Subsec. (c). Pub. L. 106–398 made technical cor- rection to directory language of Pub. L. 105–261, § 503(b)(1). See 1998 Amendment note below. 1998—Subsec. (c). Pub. L. 105–261, § 503(b)(1), as amend- ed by Pub. L. 106–398, substituted ‘‘recommend to the Secretary concerned that the officer not be retained on active duty’’ for ‘‘send the record of its proceedings to a board of review convened under section 1183 of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–398, § 1 [[div. A], title X, § 1087(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–292, provided that the amend- ment made by section 1 [[div. A], title X, § 1087(d)(2)] is effective Oct. 17, 1998, and as if included in the Strom Thurmond National Defense Authorization Act for Fis- cal Year 1999, Pub. L. 105–261, as enacted. EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. [§ 1183. Repealed. Pub. L. 105–261, div. A, title V, § 503(a), Oct. 17, 1998, 112 Stat. 2003] Section, added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2873, related to convening and determina- tions of boards of review. § 1184. Removal of officer: action by Secretary upon recommendation of board of inquiry The Secretary of the military department con- cerned may remove an officer from active duty if the removal of such officer from active duty is recommended by a board of inquiry convened under section 1182 of this title. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2874; amended Pub. L. 105–261, div. A, title V, § 503(b)(2), (c)(1), Oct. 17, 1998, 112 Stat. 2003.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–261 substituted ‘‘inquiry’’ for ‘‘re- view’’ in section catchline and ‘‘board of inquiry con- vened under section 1182 of this title’’ for ‘‘board of re- view convened under section 1183 of this title’’ in text. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. § 1185. Rights and procedures (a) Under regulations prescribed by the Sec- retary of Defense, each officer required under section 1181 of this title to show cause for reten- tion on active duty— (1) shall be notified in writing, at least 30 days before the hearing of his case by a board of inquiry, of the reasons for which he is being required to show cause for retention on active duty; (2) shall be allowed a reasonable time, as de- termined by the board of inquiry, to prepare his showing of cause for his retention on ac- tive duty;