10 U.S.C. § 1182 — Boards of inquiry

(a) The Secretary of the concerned military department must convene boards of inquiry at the times and places the Secretary sets. The boards receive evidence and make findings and recommendations about whether an officer required under section 1181 to show cause for staying on active duty should stay. Each board must have at least three officers qualified under section 1187. (b) A board must give each officer required to show cause under section 1181 a fair and impartial hearing. (c) (1) If the board decides that the officer failed to establish that the officer should stay on active duty, it must recommend to the concerned Secretary that the officer not be retained. (2) Under regulations of the concerned Secretary, an officer who receives that recommendation may be required to take leave while the case under this chapter is completed. The officer may have to begin leave after receiving the board’s report, including its recommendation for removal, and after any period allowed for rebuttal expires. Leave may continue until the concerned Secretary completes action on the case, or may end earlier. (d) (1) (A) If the board decides the officer should be retained, the case is closed unless the board substantiated a basis for separation and, after the service chief recommends it, the military-department Secretary decides that the retention recommendation is clearly erroneous in light of the evidence, is a miscarriage of justice, and is inconsistent with the service’s best interests. In that situation, the Secretary may separate the officer after giving written reasons. (B) The officer must be notified and given a chance to submit matters for the Secretary to consider. The Secretary must review whether the recommendation is clearly contrary to the record’s substantial weight of evidence and whether the officer’s conduct discredits the Service, harms good order and discipline, and harms duty performance. (C) The power to separate under this section is reserved for unusual cases in which separation is essential to justice, discipline, and proper service administration. (2) The power to order administrative separation after a board recommends retaining an officer may be delegated only to a civilian military-department official appointed by the President with the Senate’s advice and consent. The least favorable characterization in such a case is general, under honorable conditions. (3) An officer required to show cause under section 1181(a), and found under paragraph (1) to have established that the officer should be retained, may not again be required to show cause under that subsection during the 1-year period beginning on the determination date. (4) (A) Subject to subparagraph (B), an officer required to show cause under section 1181(b), and found under paragraph (1) to have established that the officer should be retained, may again be required to show cause at any time. (B) If that officer was later retained, the officer may not again be required to show cause under section 1181(b) solely because of conduct involved in the earlier proceeding, unless the board’s findings or recommendations were found to have been obtained by fraud or collusion.