10 U.S.C. § 1185 — Rights and procedures

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; Page 1253 TITLE 10—ARMED FORCES § 1187 (3) subject to subsection (c), shall be allowed to appear in person and to be represented by counsel at proceedings before the board of in- quiry; and (4) shall be allowed full access to, and shall be furnished copies of, records relevant to his case, except that the board of inquiry shall withhold any record that the Secretary con- cerned determines should be withheld in the interest of national security. (b) When a record is withheld under subsection (a)(4), the officer whose case is under consider- ation shall, to the extent that the interest of na- tional security permits, be furnished a summary of the record so withheld. (c) The Secretary concerned may determine that, in exceptional circumstances, the appear- ance of an officer before the proceedings of a board of inquiry may be via means other than in person. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2874; amended Pub. L. 118–159, div. A, title V, § 509(a), Dec. 23, 2024, 138 Stat. 1872.) Editorial Notes AMENDMENTS 2024—Subsec. (a)(3). Pub. L. 118–159, § 509(a)(1), sub- stituted ‘‘subject to subsection (c), shall be’’ for ‘‘shall be’’. Subsec. (c). Pub. L. 118–159, § 509(a)(2), added subsec. (c). 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. § 1186. Officer considered for removal: voluntary retirement or discharge (a) At any time during proceedings under this chapter with respect to the removal of an officer from active duty, the Secretary of the military department concerned may grant a request by the officer— (1) for voluntary retirement, if the officer is qualified for retirement; or (2) for discharge in accordance with sub- section (b)(2). (b) An officer removed from active duty under section 1184 of this title shall— (1) if eligible for voluntary retirement under any provision of law on the date of such re- moval, be retired in the grade and with the re- tired pay for which he would be eligible if re- tired under such provision; and (2) if ineligible for voluntary retirement under any provision of law on the date of such removal— (A) be honorably discharged in the grade then held, in the case of an officer whose case was brought under subsection (a) of sec- tion 1181 of this title; or (B) be discharged in the grade then held, in the case of an officer whose case was brought under subsection (b) of section 1181 of this title. (c) An officer who is discharged under sub- section (b)(2) is entitled, if eligible therefor, to separation pay under section 1174(a)(2) of this title. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2874; amended Pub. L. 101–510, div. A, title V, § 501(f)(1), Nov. 5, 1990, 104 Stat. 1550.) Editorial Notes AMENDMENTS 1990—Subsec. (c). Pub. L. 101–510 substituted ‘‘section 1174(a)(2)’’ for ‘‘section 1174(b)’’. 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. § 1187. Officers eligible to serve on boards (a) IN GENERAL.—Except as provided in sub- section (b), each board convened under this chapter shall consist of officers appointed as fol- lows: (1) Each member of the board shall be an of- ficer of the same armed force as the officer being required to show cause for retention on active duty. (2) Each member of the board shall be in a grade above major or lieutenant commander, except that at least one member of the board shall be in a grade above lieutenant colonel or commander. (3) Each member of the board shall be senior in grade to any officer to be considered by the board. (b) RETIRED OFFICERS.—If qualified officers are not available in sufficient numbers to comprise a board convened under this chapter, the Sec- retary of the military department concerned shall complete the membership of the board by appointing to the board retired officers of the same armed force. A retired officer may be ap- pointed to such a board only if the retired grade of that officer— (1) is above major or lieutenant commander or, in the case of an officer to be the senior of- ficer of the board, above lieutenant colonel or commander; and (2) is senior to the grade of any officer to be considered by the board. (c) INELIGIBILITY BY REASON OF PREVIOUS CON- SIDERATION OF SAME OFFICER.—No person may be a member of more than one board convened under this chapter to consider the same officer. (d) EXCLUSION FROM STRENGTH LIMITATION.—A retired general or flag officer who is on active duty for the purpose of serving on a board con- vened under this chapter shall not, while so serving, be counted against any limitation on the number of general and flag officers who may be on active duty. (Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2875; amended Pub. L. 106–65, div. A, title V, § 504(a), Oct. 5, 1999, 113 Stat. 590; Pub. L. 110–417, [div. A], title V, § 505, Oct. 14, 2008, 122 Stat. 4434.)