Commissioned and warrant officers serving the Army National Guard can be subject to withdrawal of Federal recognition (WOFR) proceedings when there is “sufficient evidence” of misconduct, substandard duty performance, or other concerns or conditions that warrant separation processing. Eligible officers are entitled to a “Board of Officers” who will recommend their retention in or separation from the National Guard.
Military Justice Attorneys (MJA) has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.
Legal Authority
Title 32, United States Code Section 323 provides that the “capacity and general fitness of an officer of the National Guard for continued Federal recognition may be investigated at any time by an efficiency board composed of commissioned officers.”
National Guard Regulation (NGR) 635-100, Termination of Appointment and Withdrawal of Federal Recognition, and NGR 635-101, Efficiency and Physical Fitness Boards, implement 32 USC § 323 and sets forth the criteria and procedures governing WOFR proceedings.
Reason to Withdraw Federal Recognition
WOFR proceedings may be initiated against any officer who demonstrates substandard performance of duty or conduct, character deficiencies, fails to meet medical standards, or is otherwise unsuited for military service. Possible bases for separation include:
Substandard Performance of Duty. An officer’s duty performance is substandard and requires the withdrawal of Federal recognition when there is: (a) a downward trend in overall performance resulting in unacceptable inefficiency or mediocre service; (b) a failure to exercise necessary leadership or command; (c) lack of technical proficiency; (d) failure to meet standards for student officers; (e) failure to discharge assignments; or (f) apathy, defective attitude, or another character disorder the renders the officer unfit.
Moral or Professional Dereliction. An officer may be separated for moral or professional dereliction as a result of personal failures. Examples include unjustified failure to meet personal financial obligations, mismanagement of personal affairs that discredit the Army National Guard, intentional omissions or misstatement of facts in official records, acts of personal misconduct, conduct unbecoming an officer, and criminal convictions, among other conduct.
National Security Concerns. An officer may also require the withdrawal of Federal recognition when his/her conduct is “not clearly consistent with the interests of national security.”
Medical, physical or mental condition. Officers with medical, physical or mental conditions which prevent them from performing their military duties must have their Federal recognition withdrawn. A determination of an officer’s fitness is case specific analysis. The regulation explains that an official may be unfit for service from the overall effect of two or more impairments even though the impairments individually would not cause unfitness.
Initiation and Processing of WOFR Proceedings
A WOFR proceeding can be initiated by any commander in the officer’s chain of command, the State Adjutant General, the Chief, National Guard Bureau, or the Chief of Staff, U.S. Army. Recommendations from the chain-of-command and other endorsing authorities are forwarded to the Army area commander for review and action.
The area commander has a few options after receiving the recommendations. The commander can disapprove the recommendation and close the case, return the case and for additional evidence, or direct an AR 15-6 investigation into the allegations. If the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition, the commander will notify the officer that he or she is required to show cause for retention.
An officer who receives such a notification also has a few options. The officer may submit a resignation in lieu of withdrawal of Federal recognition, may elect appearance before a board of officers—this is an in-person board hearing (discussed more below), or may elect transfer to the Retired Reserve if eligible.
Officers must be given at least 10 days after being notified of elimination to submit a resignation in lieu of further processing. Resignation must be submitted through command channels to the appropriate State Adjutant General. Officers have the right to submit a resignation at any time before final action on a board proceeding. An officer can withdraw his or her resignation at any time prior to final acceptance.
The commander must meet certain requirements before initiating a demotion action for inefficiency. Specifically, the commander must have evidence that Soldier was counseled, and that rehabilitation was attempted and there must be a formal record of substandard performance during the period concerned. The evidence must establish a pattern of inefficiency rather than a single-time failure by the Soldier.
Boards of Officers Hearing
A “Boards of Officers” hearing provides respondents with the greatest due process rights, entitling them to an attorney and a fair and impartial hearing to contest the allegations against them. This includes the right to:
- Appear in person before the board;
- Receive copies of the records that will be submitted to the board;
- Submit statements on his/her on behalf;
- Be represented by military or civilian counsel;
- Be allowed a reasonable time to prepare his/her own case.
The most important of these rights is, of course, the right to counsel. An experienced, dedicated, and talented attorney is often the difference between an officer being retained or separated.
The importance of having a great attorney is magnified by the fact that the burden of proof lies with the officer. To be retained in the military, the officer must “produce convincing evidence that his Federal recognition should not be withdrawn. In the absence of such a showing by the officer, the board must recommend withdrawal of Federal recognition.”
A Boards of Officers will be composed of at least four commissioned officers, with an equal number from the Regular Army and the Army National Guard. All voting members are typically senior to the respondent. At least one board member must be female if the officer facing elimination is female. Similarly, a medical officer is required when an officer’s physical fitness is a basis for the WOFR proceeding.
The job of the board members is to hear all the evidence and reach findings and recommendations. Board findings must be supported by substantial evidence. The board’s recommendation will be limited to retention or withdrawal of Federal recognition.
In accordance with NGR 635-101, officers may only be separated upon the approved recommendations of a board of officers unless he or she submit a resignation in lieu of proceeding, has less than 3 years commissioned service and fails to meet standards of service school, or is an officer with 20 or more years of qualifying Federal service and is being considered for separation because of substandard performance of duty.
MJA has a Proven Track Record of Success
MJA has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. Here are a few examples:
- A Captain (O-3) in the Army National Guard was directed to show cause for retention at a Withdrawal of Federal Recognition proceeding stemming from serious and publicly broadcast allegations. MJA successfully litigated allegations of assault/battery by conducting its own in-depth investigation and by preparing a sound legal defense that included a presentation of key witness testimony as well as irrefutable video and documentary evidence. The Board unanimously voted to retain the officer to continue his military career.
- A Captain (0-6) in the United States Navy was ordered to show cause at a Board of Inquiry (BOI) following his detachment for cause (DFC). MJA worked closely with detailed military counsel to provide the members of the BOI with a full and more fair accounting of the events leading up to the DFC. The board voted unanimously to find no basis for any of the three allegations of substandard performance of duty. The 0-6 was retained on active duty and is excited for the opportunity to continue to serve.
- An Army Chief Warrant Officer (CWO) sought help from MJA to fight a GOMOR and threats of elimination from the Army. MJA guided the CWO in gathering statements and other evidence to support the formal response submitted on his behalf. MJA then engaged with the command leadership and the CWO to ensure he had the full support of his chain of command and other mentors within his professional community. With MJA’s help, the CWO received formal notification of retention in the Army and was later selected for promotion to the next rank.
- A Lieutenant Commander (O-4) in the United States Navy accused of sexual harassment and several other serious violations of the UCMJ hired MJA after being detached for cause and offered NJP. MJA advised the LCDR to refuse the NJP and demand a court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead of court. MJA successfully defended the LCDR against all allegations brought forward as the basis for the DFC and offer of NJP. The BOI found NO BASIS for any of the alleged misconduct and retained the LCDR in the Navy.
Contact MJA Today
If you are an Army National Guard Officer facing withdrawal of Federal recognition, you are not alone! MJA has a long track record of helping officers just like you fight and win unjust separation actions. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.
