Nowak BOI
Here’s a link to the Navy Times‘ coverage of the BOI for Navy CAPT Lisa Nowak (better known as the diaper-wearing astronaut attempted kidnapper). As the Navy TImes reports, the BOI comprised of three Navy admirals recommended that she be separated with an OTH and reduced to commander for retirement pay purposes. What the Navy Times doesn’t report is that one of the recorders was our very own CDR Jason Grover, the Super Muppet of Advocacy.
Can you retire with an OTH, or was that a recommendation in the alternative?
Who was the defense lawyer?
I am perhaps hopelessly out of touch with the intricacies of officer separations. How can one who is over 20 years (thus certainly in sanctuary) be recommended for an other-than-honorable discharge and yet remain eligible for retirement, even if at a reduced rank? Does one take precedence over the other? Or was the BOI merely setting the limits of future discretionary action? Thus, if higher authority decides to go through with the discharge, it’s OTH, but if higher authority decides to permit retirement, it must be at rank of Commander.
Is there someone out there who understands this stuff?
Defense counsel was the CO of NLSO Southeast Captain Fischer Anderson.
I don’t know the statutes or the regs that are in play here, but from familiarity with another case, it is my understanding that an officer in this situation will receive retirement pay.
She’ll retire as a commander (because the default is to accept the “field” grade reduction recommendation), and her DD214 will show the OTH.
That is correct, a retirement elibile officer cannot be deprived of retirement income through an administrative discharge, but can be forced to retire in the last rank in which he or she is deemed to serve honorably. Although it seems to be rarely done in practice, it is also possible to characterize the discharge of a retirement eligible officer as under OTH conditions but that does not serve to terminate eligibility for retirement. The interesting issue is how that affects eligibility for recall since an officer at 20 years receives retainer pay for service in the Fleet Reserve until they actually “retire” at 30 years.
If I remember correctly from another case I had if an officer receives an oth and retires then they do not receive COLA increases over time. Weird quirk of the system.
That would make a big difference over time. At 3 percent inflation a year, the real purchasing power of the pension would fall by half in 25 years without the COLAs.
COLA’s aren’t guaranteed. We didn’t get one this year, and are not expected to get one next year.
And that would be because the cost of living hasn’t really changed over the past two years…
No, it is because Phil doesn’t deserve one.
Can someone please tell me where in 1900.6 it allows for a retirement elgible officer to receive any characterization other than an honorable one. I have heard of retirement elgible OTH characterizations in the Navy, but never in the USMC. Please educate…..
I recall it being statutory and not clearly defined in the implementing regs.
A couple of us have raised this — the source of the OTH appears to be from OJAG admin law. They have opined that a retirement eligible officer may receive an OTH if afforded a BOI. FYI, the Marine Corps has recently adopted this opinion letter and has started giving OTHs and GUHC characterizations to officers who retired following a BOI. It is bullshit, but that is the way it is right now. I have an officer whose BOI awarded him a GUHC, but BCNR set aside the BOI on the grounds that it was not legally composed. BOI set aside but they failed to correct the characterization of discharge to Honorable and now the USMC says they won’t fix it. Total BS — a retirement eligible officer cannot get an GUHC without a BOI (absent such a request) and with the BOI a legal nullity, JAM wants to keep the characterization. Once we exhaust on this issue, it will be a pleasure to accept my EAJA fees in US District Court.
Are diapers an authorized component of the Naval uniform?
Depends on the uniform. Air Force pilots sometimes wear “piddle packs” depending on the airframe and the duration of the mission. She was an astronaut, so maybe an “Oops, I Crapped My Pants” is authorized wear.
Once retirement eligible, ADSEP results in retirement. See 10 USC 1186 and Clary v US, 333 F.3d 1345. As for the OTH, see discussion below.
Oddly enough, there’s a discussion of diapers in “Packing for Mars,” by Mary Roach. It’s an entertaining read.