One of the hardest aspects of preparing a case for the client is to review the command investigation assembled against him. Sometimes I forget. As I coached a recent client on how to read an investigation in a way that provides utility for me and some protection for him emotionally, it occurred to me that many might benefit from the framework I describe.
First, read the findings. It seems simple enough. But what is important about reading and rereading the actual findings is to note that there will be several additional miscellaneous facts or assertions in the investigation that did not amount to a finding. A client must be ready to do their best to ignore the assertions (for now) that are not contained or relied on in a finding. This is very much legal triage.
Second, after reading the findings, note the exhibits that each finding states that it is relying on. Often the investigating officer cites an exhibit that does not actually state what the IO says it does. Once you make this list of the exhibits by finding (and number the findings in the same order that they were made), you are ready to move to the next step of reading the exhibits that are referenced as being relied on in each finding.
The third step, then is to read ONLY the exhibits that the IO states that he or she relied on in making the finding. Do not be tempted to simply read through the investigation from start to finish. Doing so will upset you even more than reading the findings because of the ancillary assertions.
Once you have read the exhibits relied on for each finding, make a list of where there are discrepancies between what the IO cited the exhibit as saying and what the exhibit actually says. There will be differences; there always are.
After annotating the differenced by finding and by exhibit, you now move onto read the exhibits that were NOT cited to in any of the findings. Chances are this is where there is evidence in the investigation that runs contrary to the findings. This is important because AR 15-6 requires the IO to account for contrary evidence to make a credibility determination, and most often, they fail to do so. In reading the exhibits that were not cited to at all, make a list of the information contained by exhibit that is contrary to each finding and make this list by finding.
This will complete your reading of the AR 15-6 investigation, but your job is not over.
The next step is to make an excel spreadsheet of the witnesses who were interviewed but who have more information to provide; in other words, what do you know that each witness knows that they did not offer on their own or were not asked directly, that could assist you.
Then, make a list in a separate tab of the same excel spreadsheet described above of those witnesses who were never interviewed. These can be critical in assisting the lawyer in helping to obtain additional evidence that should have been considered but never was. Recall that engaging in self-help (interviewing yourself or asking for interviews or memos) can call into question the validity of the evidence obtained. Make the list for your counsel to run down. Make sure that you include each witness’ name, rank, email address (military and civilian if you have it without asking anyone for it), and phone numbers (work and cell if you have them without asking anyone for it). Note that using resources to which you still have access like the global and AKO is fine.
If there are remaining allegations that you believe need to be addressed, then make a list of them and what evidence would tend to contradict them. But please remember that this list will only be helpful to responding to the investigation if the evidence that contradicts that individual who has made an allegation tends to undermine their general credibility.
Responding to an AR 15-6 investigation is strategic, and it is not the best tactics to respond to everything like a spray of a machine gun. Being methodical and pointing out the flaws in the investigation’s findings is of central importance. Not responding to every fact or assertion in the entire investigation does not mean it won’t later be addressed at the right time and in the right forum.
Remember to be kind to yourself in this process. Read the investigation in stages, and walk away from it when you feel yourself having an emotional reaction to it. It will take time to get through, but hopefully the above-described framework will assist you in staying as neutral as possible when you are dissecting it to help your counsel.
If you are a field-grade officer who has an opportunity to respond to the AR 15-6 investigation findings, we encourage you to find experienced counsel to assist you. There are important tactical decisions that need to be made as part of a broader plan. Hire experienced counsel.
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