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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26556
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My wife reaches 18 years in the Army in oct. she is awaiting

Resolved Question:

My wife reaches 18 years in the Army in oct. she is awaiting an HRC BOR after her command initiated a show cause board that recommended elimination for misconduct. The HRC board will probobly go past the point where she has 18 years in service. Can she still be kicked out after 18 years and what will her rights be as to retirement?
Also, the general just approved the board of inquiry results this week. How long will it be before the HRC board is convened. Just trying to get a time frame for how long this process goes on.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

You are using a term BOR...do you mean BOI? Is this a board of inquiry for misconduct?
Customer: replied 1 year ago.
The Board of inquiry is the initial board for misconduct. My wife had a DUI and the General is basically kicking everyone out for any misconduct because of the drawdown. The Board of review is the next step at the Human Resources command where the BOI is being reviewed and the final decision is made. I am having a hard time getting any answers because most lawyers I ask are actually learning some of this from my own research. I'm surprised that with all the troops being discharged that more people aren't familiar with the process. Even the JAG lawyers on post don't seem to know the laws. I guess I will find out eventually, just trying to plan for the future. I have no idea what to expect and when to expect it to be over.
Expert:  P. Simmons replied 1 year ago.
Ahh....so the BOI is done? What did the BOI recommend?
Customer: replied 1 year ago.
The BOI recommended discharge. The General approved it this week. Now it goes to HRC. She will be past 18 years before that board meets most likely.
Expert:  P. Simmons replied 1 year ago.
thanks

Just a moment, I want to pull up the regulations so I can point you in the direction that may help you get the answers you are looking for
Customer: replied 1 year ago.
Ok
Expert:  P. Simmons replied 1 year ago.
Thank you for your patience.


Let me start by saying I am very sorry to have to bear bad news.

The 18 year mark, sometimes referred to as "sanctuary" is not significant for an officer facing a BOI/BOR. While it is true an officer who reaches 18 years of service can not be separated for failure to gain promotion, that 18 year mark has no impact on the ability of the Army to separate an officer for misconduct. So the fact she is near or at the 18 year mark is of no significance to the BOI/BOR.

Here is the regulation that applies

http://codes.lp.findlaw.com/uscode/10/A/II/36/III/632

There is a second form of "sanctuary" that applies to reserve component soldiers, that prevents separation after 18 years of duty, prior to 20 years. You can see that regulation here

http://codes.lp.findlaw.com/uscode/10/E/II/1221/12686

What you see is that separation is allowed only as provided for by the service secretary (in this case the Secretary of the Army)

And that happens with Army Regulation 600–8–24. This is the regulation that covers separation of officers for misconduct. If you take a look at para 4-17 it covers board of review. Basically, the BOR is a continuation of the BOI. They review the record of the BOI and make a final recommendation to the service secretary.

How long will this take? It depends...but typically not more than a few weeks to convene and decide.

It is not good...if the BOI recommended separation? It is likely that the BOR will make a similar decision. But her lawyer can submit matters to the BOR...so her lawyer can, and should submit matters, in writing for the BOR to consider in light of the evidence presented at the BOI.


Please let me know if you have more questions...happy to assist if I can


P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26556
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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