The convening of a Flight Evaluation Board requires that a threshold showing be made to the authority with power to initiate the proceeding. The evidence package presented to support convening must demonstrate that there is a basis for examining the pilot’s continued qualification, and the nature of that evidence determines what the board will focus on. Understanding what the government has put together before the board sits is essential for preparing a defense that addresses the actual concerns rather than a generalized challenge to the proceeding.
The opportunity to challenge the convening decision before the board meets is procedurally limited but not nonexistent. Defense counsel who identify defects in the evidence package, procedural irregularities in how the convening authority was approached, or grounds for arguing that the threshold showing was not met can raise those issues through available channels before the formal proceedings begin. Acting at this pre-board stage can sometimes halt the proceeding or force the convening authority to correct deficiencies before the board convenes.
The Threshold for Convening an FEB Under Military Regulations
Each branch’s aviation regulations establish the specific circumstances that provide grounds for convening a Flight Evaluation Board. Common triggering events include documented substandard performance, conduct that raises questions about judgment or airmanship, a failed check ride that the unit determines warrants board-level review rather than remedial training, or off-duty conduct that calls the aviator’s fitness into question. The threshold for convening a board is lower than the standard required to remove qualifications, because the board itself serves as the fact-finding mechanism that determines whether removal is warranted.
The evidence package assembled to support convening typically includes performance records, incident reports, check ride results, and any documentation of the conduct or event that prompted the review. The defense’s ability to examine and challenge this package before the board convenes is limited but meaningful. Arguments that the threshold showing was not made, that the documentation misrepresents the facts, or that the convening authority considered impermissible factors in initiating the process can be raised through the available pre-board procedures. Acting before the board convenes, rather than waiting for the hearing itself, preserves options that may not be available once proceedings are formally underway.
Pre-Board Challenges and Their Procedural Requirements
A pilot facing an FEB may have grounds to challenge the decision to convene the board before it sits, particularly if the convening authority lacked the legal basis required or if the mandatory preliminary review was not properly conducted. The challenge must be filed through the appropriate administrative channel and must identify the specific procedural or factual deficiency that makes the convening decision improper.
Pre-board challenges are most likely to succeed when the evidence package contained material inaccuracies, when the convening authority failed to conduct the required preliminary investigation, or when the regulatory threshold for convening an FEB was not met. Counsel who identify these issues must act promptly, because the window for effective pre-board challenge closes once the board is convened and begins proceedings.
How the Convening Authority Evaluates the Initial Evidence Package
Before an FEB is convened, the convening authority reviews an evidence package that describes the grounds for the proposed board and provides the factual basis for convening. A pilot or their counsel who can submit matters to the convening authority before the board is convened, demonstrating that the evidence package is incomplete, inaccurate, or insufficient to support the convening decision, may prevent the board from being initiated.
Submissions at this stage should be factual, specific, and focused on the threshold question of whether the evidence supports convening rather than on the broader merits of the pilot’s record. The convening authority who receives compelling information that the threshold is not met has a regulatory basis for declining to convene the board.
Getting an Independent Aviation Expert Before the Board
An independent aviation expert who can review the evidence package, the incident that prompted the FEB, and the pilot’s performance record provides the FEB with an expert perspective unavailable from any other source. The expert can evaluate whether the conduct or incident represents a deviation from professional standards that warrants disqualification, or whether it reflects judgment consistent with competent military aviation practice.
The most effective experts are those with specific experience in the type of aviation at issue, knowledge of the applicable standards, and the ability to communicate technical assessments to a panel that may include members without the same specific aviation background. An expert who has previously testified at FEBs understands the specific questions these boards evaluate and is more effective than one who is technically qualified but unfamiliar with the administrative proceeding context.
The Strategic Importance of the Pre-Board Phase
The pre-board phase is often where the most consequential strategic decisions are made. Evidence that is preserved or assembled before the board convenes is more complete and reliable than evidence gathered after the proceedings have begun. Witnesses who are contacted early are more likely to be available and to have clear recollections. Expert witnesses who are retained early have time to conduct a thorough review and develop their opinions fully.
A pilot who does not engage counsel until after the board has been convened has already lost the benefit of pre-board challenge opportunities and may have reduced access to evidence that was available earlier. The earlier that experienced counsel is retained, the more complete the defense that can be constructed for the board proceedings and the better the pilot’s realistic prospects for a favorable outcome.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.