LEGAL ADVISOR

At the discretion of the CA, a nonvoting legal advisor who is a judge advocate certified according to Article 27(b), UCMJ, may be appointed to the administrative board. If appointed, the legal advisor will rule finally on all matters of procedure, evidence, and challenges, except challenges to himself or herself. A legal advisor will not be junior to, and in the same chain of command as, any voting member of the board.

RECORDER

The CA will further detail an officer on active duty (if the respondent is on active duty) as recorder. The

recorder is not a member of the board, but the importance of the recorder cannot be overlooked. The following are the duties the recorder must perform before, during, and alter the board adjourns: 

Performing the clerical and preliminary work of the hearing

Conducting a preliminary review of available evidence and, before the hearing, interviewing prospective witnesses

Assembling pertinent directives, regulations, and records for use by the board

Informing the respondent, legal advisor, essential witnesses and counsel on the time, date, and place of the hearing

Presenting the case against the respondent

Preparing the record of proceedings

REPORTER

There is no requirement that a reporter be appointed. Where witnesses are expected to testify, however, the presence of a reporter is desirable to record the witness' statements verbatim.

WITNESS REQUESTS

The respondent may request the attendance of witnesses in his or her behalf at the hearing. The respondent's request will be in writing, dated, signed by the respondent or his or her counsel, and submitted to the CA, via the president of the board, for his or her decision.

If production of a witness will require expenditure of funds by the CA, the written request will also contain the following:

l A synopsis of the testimony the witness is expected to give

l An explanation of the relevance of such testimony to the issue of separation or characterization

l An explanation as to why written or recorded testimony would not be sufficient

The CA may authorize expenditure of funds for production of witnesses. If the CA determines that the personal testimony of a witness is required, the hearing will be postponed or continued, if necessary, to permit the attendance of the witness.

Military witnesses will be issued TAD orders and civilian witnesses will be issued invitational travel orders. Guidance for funding the travel of required witnesses is found in the Manual of the Judge Advocate General (JAGMAN).

HEARING PROCEDURE

While board proceedings are not a judicial trial, they are formalized to the extent of assuring full opportunity for presentation of the respondent's case.

If objections are made at any stage, the president of the board, or legal advisor, will make a formal ruling on the objection and make sure both the objection and basis of the objection are noted in the record.

Any member of the board or legal advisor may be challenged only on grounds that show that the member cannot render a fair and impartial decision.

The president of the board, upon calling the board to order, directs the recorder to make a record as to the time, date, and place of the hearing. The recorder also records the identity and presence of the appointed members, the recorder, the respondent and respondent's counsel, and the qualifications of the counsel.

Preliminaries

At the outset of the hearing, the president of the board inquires of the respondent about his or her knowledge of his or her rights, including the following rights:

l To appear in person, with or without counsel, or, in his or her absence, have counsel represent him or her at all open board proceedings

l To challenge any voting member of the board, for cause only

l To request the personal appearance of witnesses at the administrative board

l To submit, either before the board convenes or during the proceedings, sworn or unsworn statements, depositions, affidavits, certificates or stipulations, including depositions of witnesses not reasonably available or unwilling to appear voluntarily

l To testify, in his or her own behalf, under oath and submit to cross-examination or, in the alternative, to make or submit an unsworn statement and not be cross-examined

l To question any witnesses who appear before the board

l To examine all documents, reports, statements, and evidence available to the board

l To be informed of, and to interview, all witnesses to be called

l To have witnesses excluded except while testifying

l To make argument

NOTE: A failure on the part of the respondent to exercise any of these rights, after being advised of them, will not bar the board's proceedings.

The president explains the purpose of the board and that the proceedings are administrative in nature. The board is not a formal fact-finding tribunal nor a judicial trial; however, this does not prevent the board from being conducted in a formal atmosphere. When the president is finished with the preliminaries, he or she turns the proceedings over to the recorder.

Rules of Evidence

An administrative board functions as an administrative rather than a judicial body. Consequently, the strict rules of evidence applicable at courts-martial do not apply. Other than Article 31, UCMJ limitations, the board should consider any competent evidence that is relevant and material to the case. The respondent must be provided a Privacy Act statement whenever personal information is solicited. Make sure the respondent signs the Privacy Act statement (fig. 9-5) and that a copy is retained in the case file.

Presentation of Evidence

The recorder presents the case for the government, providing the board with complete and impartial information. Next, the respondent has the opportunity to present matters in his or her behalf. Following any matter presented by the respondent, the recorder may, when he or she deems it appropriate, present rebuttal _evidence. When the recorder introduces rebuttal evidence, the respondent is entitled to do likewise. Finally, before closing for deliberation, the board may call any witness or hear other evidence it deems _appropriate. Witnesses are not present during open sessions except when testifying. After all evidence is in and questioning and oral arguments are complete, the hearing closes with only the voting members present.

Burden of Proof

The burden of proof before administrative boards is on the govermment and the standard of proof to be employed is the "preponderance of evidence" test.

BOARD DECISIONS

The board deliberates and votes on its findings and recommendations in closed session. Only voting members of the board are present during deliberations and voting.

The board determines whether each allegation set forth in the notice of proposed separation is supported by a preponderance of the evidence. The board determines the specific reason(s) for separation and whether the findings warrant separation with respect to the reason(s) set forth in the notice. Also, if the respondent is being processed for more than one reason, there must be a separate determination for each reason. The board must make a recommendation as to retention or separation and suspension of the separation. The board states the following in open proceedings and on the record:

l The specific evidence it considered relating to each act, omission, or circumstance alleged in the notice

l Its determination for each alleged act, omission, or circumstance that the preponderance of evidence

Figure 9-5.-Privacy Act statement of respondent.

does or does not support that act, omission, or circumstance

l The specific reason(s) for separation set forth in the notice of proposed separation that each act, omission, or circumstance applies

The report of the administrative board should be completed immediately upon concluding the board in the format provided in the MILPERSMAN, Article 3640350(8).