When the command initiates an investigation against you, your world may be turned upside down. You are put into a limbo status while awaiting the investigation’s results. For a while, only field grade officers (O-4s and above) could see the investigation’s results and respond to any negative (derogatory) findings. However, company grade officers (O-3s) are now given the same additional due process right that allows them to write a rebuttal, provide comment, and provide further context or evidence on the investigation findings before the command takes action.
Although some department regulations have not been updated to reflect this change, Congress has established this right to company grade officers in the grade of O-3. For example, in the Army, the regulation that governs investigations, AR 15-6, states this right is afforded to “field grade officers” and makes no mentions of company grade officers. This is because the last time AR 15-6 was updated was in 2016.
In 2020, section 502 of the National Defense Authorization Act amended 10 USC § 615. This statute outlines what materials can be given to selection boards for promotions, this includes the kind of negative information from an investigation. However, it also states that the statute applies “in the case of a regular officer, a grade above captain or, in the case of the Navy, lieutenant.” This means that this statute applies to O-3s because when they go to the selection board, it will be for promotion to O-4 (a field grade officer).
This is not just a lofty interpretation by defense attorneys; it is also the interpretation of the Office of the Judge Advocate General (OTJAG) and other services. Therefore, if a selection board is considering someone for O-4 and they have been given negative information from an investigation, the officer involved must have had an opportunity to respond to that investigation. If the officer involved was not given that opportunity, then that negative information should not have been put in the selection board’s hands.
To properly conduct these selection boards, the command must now give O-3s the opportunity to see the investigation’s findings and recommendations along with the evidence and give that officer a chance to write a rebuttal, provide additional context and/or additional evidence. This step is required to be given to the officer before the command decides how they want to act on the negative findings.
If you receive derogatory findings, slogging through the AR 15-6 investigation can be emotionally taxing. We provide some guidance on how to best approach that process.
It is crucial that the written response to derogatory findings in an AR 15-6 investigation be a thorough, concise, and strong comment on the findings, the strength or lack thereof of the evidence to support those findings, and thoroughly explain any additional evidence you strategically decide to provide. There are often legal insufficiencies in the investigation and the evidence and deciding which ones and how to point them out is part of an overall long term strategy.
Sifting through the findings to respond to derogatory findings is no small task. In most instances, this is the first step of the command’s plan to initiate administrative separation or elimination against you.
It is vital that you seek legal counsel to help review the evidence and to help ghost-write your response. Even though you may not “win” at this stage, one day a promotion board may read it. And regrettably, a board to decide whether you should be retained in service likely will.
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