Flying Evaluation Boards

As one might expect, the military has established stringent requirements that must be met and maintained to perform rated flying duties. Each rated member has an obligation to maintain certain professional standards. If one’s performance of a rated duty comes into question, a Flying Evaluation Board (FEB) may be convened. FEBs are administrative, fact-finding proceedings conducted to ensure information relevant to a member’s rated qualification is reviewed and discussed in a fair and impartial manner. The proceedings are not supposed to be adversarial and are closed to the public.

HOW CAN JAG Defense ASSIST AT A FEB?

As you will read below, Respondents at a FEB are entitled to legal representation. At JAG Defense, our attorneys are uniquely experienced in presenting evidence in defense, extenuation and/or mitigation at FEBs. If you have been notified of a FEB, we encourage you to contact JAG Defense for a free consultation.

WHY CONVENE A FEB?

The primary reasons why a flying unit commander might convene a FEB are:

• Suspension or disqualification from aviation service for more than 5 years;
• Lack of proficiency (unless enrolled in a formal flying training program);
• Failure to meet standards while enrolled in a formal flying training course;
• Lack of judgment in performing rated duties;
• Failure to meet ground/flying training or annual physical exam requirements;
• Intentional violation of flying regulations; or
• Member exhibits habits, traits of character, or personality characteristics that make it undesirable to continue the officer in flying duties.

WHO SERVES ON A FEB?

A FEB is made up of three (3) rated voting members who are qualified for aviation service and senior in rank to the Respondent. The flying unit commander will also appoint one (1) additional rated officer is to act as a nonvoting Recorder. The Recorder is responsible for presenting all relevant evidence to the voting members. A judge advocate may be appointed as a nonvoting legal advisor to advise on procedural matters and to ensure a fair hearing. A judge advocate shall not be appointed as an assistant recorder. In some cases, a flight surgeon may be appointed as a nonvoting member when a medical problem may be a relevant factor.

WHAT ARE THE PROCEDURES BEFORE AND DURING A FEB?

First, the Respondent is notified in writing of the reasons for the FEB, when and where the board will meet, witnesses that will be called, and what rights the Respondent has. At this point in the process, the Respondent may submit a request for voluntary disqualification from aviation service in lieu of FEB (VILO). FEB action is suspended until the command acts on the VILO request. During the FEB process, the Respondent has the following rights:

• To be assigned military counsel of his or her own choosing (if available) or civilian counsel (at Respondent’s expense);
• To be informed in writing of the specific reasons for convening the board;
• To review all evidence and documents to be submitted to the board by the recorder (before convening the board);
• To challenge any voting members for cause;
• To cross-examine witnesses called by the board, call witnesses, and present evidence; and
• To testify personally and/or submit a written brief.

If a FEB is actually convened, the board itself is not bound by formal rules of evidence that one might expect at a court-martial. With that said, the process is intended to be a full, fair and impartial inquiry into the circumstances giving rise to the FEB. After reviewing all available evidence, the voting members retire to make their Findings and Recommendations. These Findings and Recommendations are made in closed session (voting members only), each finding must be supported by specific evidenceand must include comment on each allegation or point in question. The voting members’ recommendations must be consistent with the findings and generally only address qualification for continued aviation service, i.e., should the Respondent remain qualified or be disqualified. If the Respondent holds more than one aviation qualification, the FEB must make a recommendation as to both qualifications. If the FEB recommends disqualification, it may also recommend whether the officer should be prohibited from wearing the associated aviation badge.

WHAT OCCURS AFTER A FEB?

Air Force E-3 was charged with raping and engaging in indecent acts with a 15-year old girl. At his General Court-Martial, our aggressive cross-examination of the alleged victim established countless inconsistencies in her version of what occurred. Further, we presented evidence of our client’s innocent state of mind following the night that the misconduct allegedly occurred. Result: Without even having to testify, our client was ACQUITTED of all charges against him.