Even when military law enforcement is not involved, a service member may find himself under investigation by his command. If the investigation starts out as a commander’s inquiry or as an Army Regulation (AR) 15-6 investigation or other service equivalent, the findings and recommendations can have administrative, punitive, and even criminal implications.
Often a matter starts out as a command investigation but can later be turned over to military law enforcement investigators, depending on the findings and depending on additional information that the command investigation discovers. Also despite the “bright line” rules about military law enforcement being the proper agency to investigation alleged sexual misconduct, the command may initiate the investigation and later be required to turn it over to Army CID, NCIS, Air Force OSI, Marine Corps CID, or CGIS.
The suggestions that I make about how to handle an investigation by military law enforcement are the default in command investigations as well. For instance, never make a statement to a command’s investigating officer without an attorney present. In command investigations, there may be legitimate reasons to provide information to the investigation, but that information needs to be filtered through an experienced attorney to ensure that the client does not inadvertently cause injury to his own career. Remember that even oral statements made to an investigating officer are “official statements” for purposes of Article 107, UCMJ: False Official Statements.
Command investigations vary as to subject matter, but most often include allegations of Adultery, Inappropriate Relationship (with a subordinate, superior, or spouse of either), and Cruelty and Maltreatment of a Subordinate (which can include sexual harassment, hazing, or other forms of inappropriate punishment).
Obtaining counsel during the command investigation can assist the person that is being investigated by having an early advocate to provide information to the investigation, to conduct parallel investigative work and point the investigation toward evidence that assists the client, and to assist in making a statement if in the client’s best interest. An attorney can also speak with the command to advocate, as appropriate, for the lowest level disposition possible.
In most branches of service, the military defense attorneys are not permitted to get involved with command investigations; typically, service regulations preclude the attorney from forming an attorney-client relationship. If a service member is under investigation, they are entitled to speak with a military counsel free of charge, but that counsel will provide only basic advice about not making any statements and staying out of trouble. The uniformed counsel will then direct the person under investigation to return once the command has taken action, whether in the form of NJP, Article 15, Captain’s Mast, initiation of administrative separation, or even the preferral of court-martial charges. As with investigations that may lead to court-martial, crucial time to obtain favorable defense evidence can be lost. A civilian attorney can start interviewing witnesses and running a parallel investigation that does not focus solely on evidence that is favorable to the government.