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
Commander’s Inquiry / Administrative Investigation
The first step for a military member to know there may be trouble ahead is finding out that there is either a commander’s inquiry (command investigation) or administrative investigation that has been initiated. This includes equal opportunity investigations and inspector general (IG) investigations, although there are some idiosyncrasies that are unique particularly to how IG conducts investigations.
Any person who is the target for investigation is known as the subject. The criminal equivalent is a suspect. If there are later any derogatory findings made against the subject, they become known as the respondent. Respondent means they are now receiving either an investigation or another administrative process for which they have an opportunity to “be heard.” This opportunity to be heard includes the right to respond in writing to submit outside evidence in support of that response.
The most important aspect of approaching any administrative (or even criminal) investigation is to not interact with the investigating officer (especially to) face questioning without the assistance of experienced counsel.
Right to Participate
An important right that is included in every form of formal AR 15-6 investigation is the right to participate in the investigation. The same is true for Air Force command investigations, though many do not realize this right or the ways to leverage it. DO NOT participate on your own.
This right to participate includes the right to provide a statement and other evidence. Often a subject’s right to participate is truncated or cheated because the investigator refused to provide a list of questions to the counsel of record.
Our standard practice once we represent a subject is to reach out to the command to identify ourselves if the investigating officer (IO) has not yet been appointed or if we don’t know yet if the IO has been appointed. If the client receives a call or an email from an identified IO, we reach out to the IO.
When we reach out to the command or to the IO, the message we provide includes that our being hired should not signal to the command or to the IO that the subject is not going to fully participate in the investigation. This is important because administrative processes are all about ensuring adherence with regulation. If we were to signal that you did not want to participate, we would be costing the client multiple opportunities for advocacy. Our central goal is to always stop the process before it starts.
In addition to messaging that the client intends to fully participate in the investigation, we also convey that our hiring should not be seen as an impediment to information (as some kind of invocation to silence on behalf of the client).
Insulating from IO Contact
Our philosophy and our “why” for reaching out proactively to the command and to the investigating officer is threefold; first, we want you to be in this process for as short a time as we can. We understand that timing for PCS moves, taking command, staying in command, promoting and others is key, and that the longer you are flagged, the longer your life is on hold. Second, and related, is our keen appreciation that it can be anxiety inducing and embarrassing to be waiting to be approached by an IO. We want to insulate you from as much of that as possible. Third, we would never want an IO to attribute a statement to you that you did not make or was not what you meant to say, later to have it used against you. IOs seldom record statements and we are forced to battle back reports that attribute remarks to clients that were never made or were taken completely out of context.
Uniformed Counsel Advice
The standard advice that we see by uniformed defense counsel during an administrative investigation is to tell the member to invoke their rights, not to talk to anyone else, and to come back if they get served with a copy of the investigation or another derogatory action. We disagree fundamentally this mentality. To explain, one should understand that the foundation of this advice is usually about what we call legal triage. Administrative investigations are called “Priority 3s,” and fall well behind courts-martial and administrative separation actions. Additionally, in most branches of service, uniformed defense counsels are prevented by regulation from becoming assigned to a case or taking other helpful functions before there is a command action that was served on the member.
Requesting a List of Questions
In addition to our standard practice of insulating you from contact with the IO, we also always ask for the IO to write out the questions they have for you and to submit those to us for review. This request is almost always honored in standard command investigations, but advance supplying of questions is not allowed in Inspector General investigations (more on that later). Sometimes we see legal advisors telling their IOs that they do not need to honor this request, but typically they do not mind, particularly when we remind them of the regulatory guarantee of a respondent’s right to participate in the investigation. We have seen in the case of some lazy investigations that they suggest we simply offer a general statement as a substitute. We remind the IO of the right to participate and ask how we can fully participate without knowing the nature of the investigation. In many instances, we can secure a copy of the IO’s appointment memo. Obtaining a copy of the IO’s appointment memo can be extremely helpful because it can outline the specific nature of the allegations; even when it does not outline the specifics, we can at least be oriented to the topics.
If we do not receive a full list of questions and are only given general topics from an appointment memo, we maintain the argument that you were denied an opportunity to fully participate in the investigation. Administrative processes must adhere to regulatory requirements, and we keep track of every misstep on the part of command. It is cumulative and it matters.
Do Not Be Misled by No Rights Warning
Typically, if you are a respondent to an investigation, you will be advised of your rights under Article 31(b) but not always. For many, not being advised of their rights can make people believe that they are not really in trouble. This is a common misconception and is grossly inaccurate.
While it should happen, failure to advise a military respondent of their rights during an administrative matter only has the impact of meaning statements made without rights warning cannot be used in a CRIMINAL matter. Failing to advise someone of their rights is not a reason to “throw out” (exclude) the statement. Military regulations will only keep out statements if they were made a result of actual physical coercion (think, the investigator physically beat it out of you…). Otherwise, statements made in violation of a statutory violation alone are perfectly useable in taking derogatory administrative action, including letters of reprimand, boards of inquiry / show cause boards and grade determinations / retirement in grade.
The lack of a rights warning by the IO does not mean you are in any less trouble from an administrative standpoint. As you continue in this administrative guide to military processes, you will come to appreciate how much trouble you could really be in and what you stand to lose. It is significant, so please make sure you find counsel and do not try to go it alone.
Do Not Try to Answer on Your Own
IOs (other than Inspector Generals) do not record your statements, and it can often be a bad game of “telephone.” So much can go wrong between how a person interprets a question, the word choices in responding, how those words are interpreted and then reported into a report of investigation.
The illustration we like to give dates back to when law enforcement did not audio and video record every subject interview. Their reports would indicate that the client had made terrible admissions the client denied ever making. Who do you think the command / jury trusted more? The member of law enforcement or the guy or gal who is “in trouble?”
Violations You Cannot Anticipate
In addition to the communication issues, a military client should not try to answer questions on their own because even though you were advised for one or more potential offenses, you cannot anticipate the other five or more that your answers could trigger. Seriously.
For example, you believe you are answering questions about whether you sexually harassed one person in your command. The answers you lodge, depending on how they are phrased, may deny sexual harassment but in giving even factual information about your accuser’s previous misconduct, maybe what you articulated inadvertently amounts to the very nebulous standard described as counter-productive leadership. Perhaps your answers give them fodder for “conduct unbecoming” if you are an officer or “dereliction of duty” by an NCO.
We are trained and experienced in knowing and anticipating violations you may not see coming. I wouldn’t trust myself to perform a dental procedure on myself, so why would you trust someone who has no legal training. There is too much at stake.
Providing Statements and Evidence During
There is strategy in deciding what questions to respond to at all. Simply because the question is asked does not mean it warrants an answer. Sometimes we recommend answering them all, it really depends.
Realize also that our answers help to shape the information provided. Often IOs don’t ask questions they should. We help to guide them in answering the way we do, and by also inserting offers to give certain pieces of evidence to them as part of their investigation. There is strategy in what to offer and what to keep in case the process progresses. Some cases warrant giving over all the evidence we have as part of the military investigation. All cases are unique.
The questions themselves can inform us a great deal about the nature of the evidence the IO / government has against you. Reading and deciphering the implications of what questions are asked which are not can be pivotal in preparing to meet allegations.
Sometimes we offer to hand over evidence, but the IO does not follow up on it or ask for it. This helps us to maybe later show that the investigation was biased at worst and incomplete at best.
Shaping the Information Provided
Even if the question that should have been asked was not, we often insert information the IO needs to know but may not realize. There is also a nuance to inserting the bias or motivations to fabricate into the information a subject provides.
We subscribe to the general philosophy that we should not be overt with potential motives or bias evidence. We also should guard heavily against “dropping dimes” on others. This often frustrates or confuses our clients. What we can say is that if any of you is a parent and you have multiple kids and you want to know if Johnny ate the last cookie, do you really want to hear about how Susie didn’t put away her bike like she was supposed to? Classic deflection, right? If you are Johnny, is it really helpful to your parent on the issue of whether you ate the last cookie if Susie did not put her bike in the shed? No. It is not, and it may even make your parent more upset with you than he would be had you not tried to “dime out” Susie.
We also do not want to be too overt about bias or motive to fabricate also because it seems defensive. It also is largely speculative and that can weaken how you appear to the command. An example would be if you are the platoon sergeant, and you receive a complaint of sexual harassment from one of your squad leaders. Maybe the timing of it screams that it is in retaliation for you writing that squad leader a mediocre NCOER or not sending that E-5 to a school the trooper wanted. Maybe it has everything to do with retaliation, but we have found command does not like being told what this is about. Because both could be true. In other words, you could have sexually harassed her, and you could also have denied her a school. The existence of one does not negate the possibility of the other.
We find that from an advocacy standpoint, it would be better for the IO to learn of that potential bias from a source other than the subject of the investigation. There are ways to massage investigations, and sometimes we sprinkle places for the IO to look to find that bias on their own. IOs will resist being fed what you want their findings to be. Promise. One of the worst actions you can take in response to an administrative investigation is to be telling the IO you are innocent because the accuser is a dirt bag. Just don’t.
Sometimes our initial help with questions is all that was needed. Sometimes and particularly if we provided additional evidence beyond the statement, the IO may circle back to ask a list of follow up questions. Fear not; this is in the realm of normal. We field those follow-up questions in the same way we do the initial: an opportunity for advocacy and the chance to gain more insight about what the investigator knows and which way he may be leaning.
Order of Events
In most administrative investigations, the person who is the subject is approached last. This has benefits and drawbacks. One benefit is that you are more likely to be approached with all of the assertions against you. Another benefit is that you can more easily estimate when the investigation will be closing out with some “final action” for anticipating next steps. One of the drawbacks is that you have been made to wait, and we understand too well that waiting often means suffering. That waiting can also mean the delay for promotion, perhaps being passed over for promotion because of the administrative flag, and other substantial barriers to important career milestones. In that time of delay, however, is also an opportunity to prepare for any potential next steps. It is never too early to brace for derogatory action.
How Inspector General Investigations Differ
Inspector General (IG) investigations differ substantially from any other form of command investigation. First, they will not submit advance questions, and they will only receive a statement in response to questions from the investigating officer. Second, although you have a right to counsel to assist you in answering, there are significant steps to the ways you can confer with counsel. Third, the interview will be recorded, although when you confer with counsel it will be private.
Prior to the IG interview, the investigator will read the allegation and answer any questions about the allegations that the subject may have. There is even an in-brief with the attorney where the IG investigator largely reads from a script. It is repetitious.
There is a process known as the “read in,” and the “read in” is entirely scripted and repetitive.
The pre-brief is not recorded and is not part of the testimony. Afterward, the investigator goes over any questions and then makes sure the subject fully understands all of his rights. The actual read in is recorded. Typically, they provide the formal Rights Warning in advance of the interview and expect that if rights will be waived to answer questions, that the form be submitted in advance of the interview. Often the IG investigators do not know the intricacies for how the rights advisement should be filled out. It is important not to waive the right to have counsel present during questioning, and the form does not make that simple.
After the read in, the IG investigator asks questions verbally and expects verbal responses, although counsel can signal to the client not to answer. No substantive questions can come from the assisting attorney.
After the questions have been asked and responses provided, the next phase is known as the “Read out,” which is also scripted.
IG Investigations are covered by a separate regulation than command inquiries and formal administrative investigations. The IG investigator will offer your counsel a copy of the governing regulation and also with a copy of the rights warning and waiver procedure. The latter is to officially document notification to you and advise you of your Article 31(b) rights.
During questioning, the IG interview allows you to tell your “side of the story” and also to provide any documents that you may wish to present to support your side. The counsel may not speak for the client, the answers from come from you. If at any time a break is needed either for comfort or to confer with counsel, we will take a break, turn off the recorder and allow the counsel and client to confer.
The recorder must also be stopped any time the counsel wishes to take a note about what is taking place. This is probably the most bizarre requirement during an IG investigation. The IG investigators explain that the attorney cannot generate “any work products during the interview” and that the only notes about what took place during the interview must remain with the IG. When pressed about this requirement and asked if the attorney can have a copy of the recording of the interview, the IG investigator will insist that only their records may become part of an IG record and it belongs to the IG. The IG investigator will explain that they will not provide the recording. This is where it is critical to know the processes involved with making Privacy Act requests.
The IG investigator will not offer it as a method, but an experienced counsel in IG investigations can prime the investigator that if the investigator is not asking all pertinent questions, the attorney should be able to prompt the asking of a question. Recall that this is different from the prohibition to the attorney answering the questions. Also experienced attorneys know that during the interview if there is a question for which the attorney needs clarification the counsel can ask the IG investigator to clarify a question. The attorney must understand the question before advising the client to answer or not answer the question.
We find it best to facilitate IG interviews from a distance with the counsel and client in one geographical location and the IG investigator somewhere else over the phone. This way, the attorney can pre-prepare canned indicators such as: I would like to take a restroom break or I would like to break to get a glass of water. The attorney can prompt the client by silently pointing to the prepared sign. This way the recording is not fraught with intervening by the attorney, and the investigator is not concerned with attorney participation.
Multiple Subjects and Adding Allegations
Many command investigations take aim at more than one subject. Command investigations can start out with one person as their subject but during the course of the investigation expand to include more than one investigation. When command investigations take aim at more than one person, this can also mean that there are additional allegations that the appointing authority decides to investigate.
If either additional subjects or additional allegations are added, this will likely impact the timing of when you are interviewed and can also increase the likelihood for follow-up questions.
We do not represent multiple people in the same investigation because it presents potentially messy conflicts of interest. We do, however, when appropriate and under ethical guidelines, confer with the other subjects’ counsel if it is in the best interest of our firm’s client. Whether or how to coordinate among the attorneys representing all subjects requires nuance and strategy. All cases are unique.
Change in Investigator
There is a requirement that in command investigations that the person who is appointed to conduct the investigation be senior to all persons identified as subjects in the investigation. When additional people are added to be subjects of the command investigation, there may be a need to appoint a substitute IO. If the person becomes more senior than he was previously, this signals to us that someone more senior is now being looked at for their own potential misconduct.
Complex Investigations with Multiple Investigating Officers
Large investigations that have a broad scope can include multiple IOs working in concert. Typically, in more complex investigations the IOs will be designated to cover one allegation or one separate aspect of the investigation. For example, the circumstances surrounding the disappearance and death of Specialist Vanessa Guillen was investigated by more than a dozen IOs. The report was candidly a mess where findings by one IO contradicted the findings of a separate IO.
If you are involved in a case with multiple IOs understand the greater the complexity the stronger likelihood for mistakes in the findings.
Timeline of Command Investigations
The timeline of command investigations varies substantially, and there is no right to a speedy investigation. Even when appointing authorities set certain milestones for completion, they allow for IOs to ask for more time when needed. It seems as though additional time is always needed. This serves as little comfort to someone experiencing command investigation, but we try to frame expectations to settle into the realization that what is happening is indeed a marathon and not a sprint.
We strongly recommend that you download the eBook available that is our Survival Guide. Although geared more toward criminal investigations with an eye toward court-martial, many of the same wellness principles overlap with anyone being made to endure a process where they have little control.
Right to Information
In the same way there is no inherent right to a speedy investigation, you have no right to information about milestones, projected timeline, who has or has not been interviewed, etc. This can feel enormously frustrating, but we try to reframe this in another way.
If you are never served with a copy of the investigation, it means that the investigation did not conclude any derogatory findings against you. That is success, although we again understand the impacts of being made to face investigation and administrative flags.
Understand that even if you are not served with derogatory findings, you may be curious to know what was said during the investigation and what were the findings. You can make requests under both the Privacy Act and the Freedom of Information Act (FOIA).
The Privacy Act confers on individuals the right to information when it is stored in a way that is specific to their personally identifiable information (PII), such as when they are the subject of an investigation. The Privacy Act is not without limit, and there will be redactions.
FOIA confers rights to the public at large stemming from a policy of transparency for anyone with a curiosity about a certain event or report. FOIA responses will also have redactions; some will be identical to those in a Privacy Act response, and some will be different. For these reasons, we encourage our clients to ask under both provisions to maximize the information they receive from their efforts.
Where Is this Heading?
Most command investigations determine that some level of misconduct occurred. There are multiple avenues to address founded allegations. Do not try to go it alone. Realize that there are near term goals and long term goals, and ensure that you have experienced counsel who has an appreciation to how to manage all of the various strategies and avenues available to you.