5-29. FORMAL BOARD
a. Formal hearing. A soldier is entitled to a formal hearing if requested after
informal consideration by a PEB. The soldier may waive this right by concurring in the
findings and recommendations of the informal board. If the soldier is incompetent, the right
to waive a formal hearing may be exercised by next-of-kin or legal counsel. After
demanding a formal hearing, a soldier may later withdraw the demand and accept the
informal board's decision, in which case, the counsel will inform the PEB. The soldier must
be counseled on the right to demand a formal board. If a soldier demands a formal
hearing, he or she is entitled to counsel. A formal board will be convened when:
(1) A soldier (next-of-kin or legal guardian) demands it after electing not to
accept the findings and recommendations of an informal board.
(2) The case file has been forwarded to PERSCOM for issuance of retirement
or separation instructions and the soldier demands a formal hearing before PERSCOM
action is final.
(3) After an informal board, the president of the PEB decides that a formal
hearing is in the best interest of the soldier or the Army.
b. The president of the physical evaluation board establishes the date, time, and
place of the formal hearing.
c. Waiver of Appearance by Member. A member may, in writing, waive
appearance at a formal hearing. In this case, the appointed military counsel or individually
selected counsel must be present and represent the member during all open sessions of
d. Representation by Counsel. Each member is represented by counsel at a
formal physical evaluation board hearing, unless representation by counsel is specifically
declined in writing for hearings at which the member will be present. The counsel
safeguards the legal rights of the member and remains in attendance at all open sessions
of the board unless excused in writing by the member.
e. Challenges. The statutory right to a full and fair hearing includes the right to
challenge for cause. Grounds for challenge may be made by a statement of any fact
indicating an officer should not sit as a member of the board in the interest of having the
hearing and later proceedings free from substantial doubt as to legality, fairness, and
impartiality. The board determines the relevancy and validity of any challenge. If a
challenge is sustained, the proceedings will be suspended until a replacement for the
challenged member is provided.
f. Administering Oaths. Voting members of the physical evaluation board, the
recorder, the counsel, and others who regularly participate in evaluations and have no