Responding To Derogatory Findings

Facing the ordeal of a military command investigation can be difficult. In most cases, the findings do not resolve favorably to the person facing the inquiry. Most often, the investigating officer makes derogatory findings, which means that they believe a violation of military policy, regulation, or even military law under the Uniform Code of Military Justice (UCMJ) has occurred.

General Information

If you have made it this far into our content, it is because a command investigation for which you were the subject concluded derogatory findings against you or because you anticipate that they will be, and you want to understand what could be coming your way.

A derogatory finding means that the IO decided that there was a preponderance of evidence that you violated a UCMJ article, policy, regulation, or another standard. one of the issues being investigated

Field Grade Officers

In April 2016, the Army’s regulation governing command investigations was amended to confer on field grade officers the right to respond to derogatory findings before the command can take any separate adverse action on the basis of the investigation. This is a monumental change that benefits field grade officers.

We become extremely upset when we speak to perspective clients who did not avail themselves of the right to respond to derogatory findings. Often uniformed defense counsel are telling field grade officers to wait until there is a reprimand or some other negative action. This is incredulous. Does the command always listen to what the officer responds? No, not often and certainly not in every case. But the response becomes part of a larger strategy. Remember that we are playing the long game.

Officers Promotable to O-4

When there is a command initiated investigation against you, your world may feel like it is spinning. You are put into limbo while you await the findings. For quite some time, only field grade officers (O-4s and above) could see the investigation’s results and respond to derogatory. However, the way the changes have been interpreted means that also company grade officers, and specifically O-3s are now largely being given the same additional due process. This enables O-3s in most branches of service the right to write a rebuttal, to provide comment, and to hand over additional context or evidence in response to the findings before the command acts.

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 covers 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 United States Code § 615. The statute explains what materials can be given to selection boards for promotions. Promotion boards can now receive any kind of negative information from an investigation. There is no limit to timeline either. However, the amended statute also reflects that the statute applies “in the case of a regular officer, a grade above captain or, in the case of the Navy, lieutenant.” This is being interpreted to mean that the additional due process rights are afforded to O-3s because when they are considered eligible for promotion, they are being looked at to promote to O-4 (a field grade officer).

We received this feedback also from the Office of the Judge Advocate General (OTJAG) for the Army and for other services. In order for these processes to survive administrative scrutiny at selection boards, the command must provide O-3s the opportunity to have a copy of the investigation’s findings and recommendations in addition to any matters that the 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 the process of reviewing command investigations. It sets out a step-by-step way to read it that will help you get through it emotionally but also provide helpful information and analysis for your lawyer. Remember that you are a critical member of your defense team.

Responding To Derogatory Findings

It is crucial that the written response to derogatory findings in command 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.

Attacking Derogatory Findings

There are multiple methods of attacking derogatory findings levied against you. We have even laid out a systematic method for reading the investigation that will be productive to those efforts.

Often the findings contain errors in analyzing the appropriate legal standards. One of the most common errors we see of this nature is that the investigators misapply sexual harassment definitions and requirements. For instance, a one-time comment does not rise to the level of harassment, yet this is a very commonplace issue we attack.

Another issue we find in derogatory findings is that the investigator fails to apply a credibility determination when there is conflicting evidence. We even see investigators who ignore contradictory evidence and leave it out of their investigation. Part of how we find out these errors is by talking to witnesses whose statements are not included in the packet who we feel like it would have been logical to interview. Sometimes the witnesses were never interviewed, so we do it and include evidence of their statement as part of the response matters. Other times, the witnesses were interviewed, gave statements, and the investigator actually excluded the statement from the findings and did not even record any mention that the investigator spoke to these individuals.

Facing the ordeal of a military command investigation can be difficult. In most cases, the findings do not resolve favorably to the person facing the inquiry. Most often, the investigating officer makes derogatory findings, which means that they believe a violation of military policy, regulation, or even military law under the Uniform Code of Military Justice (UCMJ) has occurred.

Military Counsel Advising Against Responding

Despite the changes to permit O-3s and Field Grade Officers to respond to derogatory findings and provide rebuttal materials, we have been enormously disappointed that when given that chance, often uniformed defense counsels advise you not to provide a rebuttal or even to comment. Our firm’s starting off point is to take every opportunity to advocate on behalf of a client. We also recognize that all cases are unique. Unless there is a very good reason not to do so, and we advise to provide rebuttal materials to the investigation or at least a legal analysis attacking the findings for sufficiency of proof. Every opportunity for advocacy is an opportunity to stop a case from progressing and risking service.

Purpose of Responding

The purpose of responding to derogatory findings is to ask that the findings be disapproved and to give concrete reasons why they should be disapproved. You should also include supporting evidence. We make calculated decisions about how much of the evidence we obtain to submit at this point; sometimes, we submit all we have, and sometimes we hold some back. The calculus depends on whether we reasonably anticipate that we have a chance to stop the process from moving to the next stage of a derogatory command action like a letter of reprimand.

In some instances, we also respond that the investigation is deficient and needs to interview additional witnesses. Please note that we do not encourage those interviews unless we have already spoken to those witnesses and know they will corroborate the respondent. In most cases, we have already spoken to the witnesses and obtained their expected testimony.

Reading the Findings

The first step is to read the findings themselves. That seems simple enough, but we do discourage you from reading the investigation from cover to cover. Clients report to us that they feel overwhelmed and discouraged when they do. It feels very personal because it is. The overarching theme in our advice is to ensure you are responding only to the actual derogatory findings, not every attack or statement provided in the investigation. That bears repeating – we see often where a client wants to respond to every incremental and discrete statement that someone makes. You have to resist it for many reasons. First, it will be bad for your mental health; it will send you reeling if you try to respond to every minutiae. Second, it will not be helpful to your attorney. Third, it will waste time when you can be more productive for yourself and the process of defending you.

Instead, start with the findings (these are the big answers to the questions such as did Major X engage in counter-productive leadership?), but know that it will not be an easy read. Much of it will be negative and jarring, and it can also seem overwhelming because they are often characterized by double-speak and repetition.

Rather than being tempted to plow through the rest of the investigation, you should make a chart. On the chart, place each finding on a column over the top of the page like this:

FINDING 1:                  FINDING 2:                                                        FINDING 3:

Bullying                       Counter-Productive Leadership                     Did Not Support SHARP

Then, beneath each finding, cite to the exhibit that the IO claims provides support for each finding. It might look something like this:

FINDING 1:                     FINDING 2:                                               FINDING 3:

Bullying                    Counter-Productive Leadership             Did Not Support SHARP

Ex 2 : MAJ Jones              Ex 2: MAJ Jones                                      Ex 2: MAJ Jones

Ex 3 : CPT Smith             Ex 4 : CPT Tedson                                   Ex 4 : CPT Tedson

                                           Ex 6 : SSG Anspach                                Ex 7 : SFC Wood

                                           Ex 11 : SFC Peterson                              Ex 13 : SSG Aubrey

Next, you will want to read only the exhibits that the IO cites to and examine whether the exhibit actually provides support for what the IO claims it does. Often, they do not. Pay special care for findings that seem to imply or overtly allege that a violation of a standard or regulation occurred with regularity or more than once (by the use of plural words) but the exhibit actually only makes reference to something happening only once. This matters, especially with regard to sexual harassment violations.

Afterward, you’ll want to go and read all of the exhibits that the IO did not cite to. We are seeing a disappointing trend that IOs will ignore evidence that does not support the agenda they lay out in their findings. Pay special attention to the exhibits they do not use at all.

Also make note of witnesses whose statements are not included in the investigation at all whose inclusion would seem natural or obvious. An example would be one or more of the platoon sergeants in an investigation about company command climate. We will want to find out if they were not interviewed at all or if they were interviewed why their statements were not included as part of the investigation.

Independent Investigation

Perhaps even more disappointing than failing to interview is a pattern we are seeing where IOs are interviewing witnesses whose evidence contradicts their desired findings, even going to so far as to collect statements from them, and then failing to include the statements at all in their investigation.

The only way to decipher if these kinds of omissions are occurring is to conduct independent investigation. Do not be confused to think we mean that you should be doing that independent investigating. No way. We are strong advocates that military members (or anyone under investigation or suspicion) not engage in what we call self-help.

No Self-Help

Especially for people who are accustomed to taking charge and acting to move things forward, being told to sit and wait can feel less than empowering. We urge you not to practice what we call “Self Help.” Even though you are likely someone that prides yourself in always leaning forward, by preparing, and by not waiting for things to happen to you. Being under military investigation may be one of the hardest times in your life, not only because you are being accused of wrongdoing, but also because you are being made to feel like you should “do nothing.” To you it just feels wrong.

The worst thing you can do for your case is to run around on your own trying to talk to potential witnesses or to try to understand why witnesses spoke against you, etc. I call this “self-help.” Practicing “self-help” can make your situation worse. You could even find yourself being put into pretrial confinement (jail pending prosecution) or being charged with obstructing justice. Avoid “self-help.” If you want to lean forward and prepare for what may be coming, seriously consider hiring a civilian defense counsel who will use your retainer to conduct a parallel investigation and to advocate on your behalf.

Collecting Affidavits

When we are armed with a list of witnesses whose testimony was not included in an investigation or if they were never interviewed, we reach out to those individuals to collect our own evidence from them. We collect them in the form of a self-attesting affidavit.

An Affidavit is a written statement confirmed by oath or affirmation, for use as evidence in court or in other legal proceedings. Self-attesting means that it is sworn and official on its own, without needing a separate notarization. Our philosophy is that if we are asking a witness to help us on your behalf, we want to make the process as simple as possible. We do not want to create barriers (like printers, ink cartridges, or notary public logistics or costs) to witnesses helping us to help you. The affidavit contains the factual information that helps to undermine the findings and to support your version of what occurred. They can assist in undermining derogatory findings, and they can be later used if the process continues to either or both a reprimand and administrative separation.

Providing an Affidavit from Client

While all cases are unique, we often employ use of an affidavit from the person against whom the findings were made. If we were not involved in representing the client during the investigation and did not craft a statement on your behalf, we will typically insert the statement as part of the rebuttal matters to the derogatory information. We do not do this in every case because all cases are unique and we operate under the philosophy of doing no harm, first and foremost.

Legal Analysis

There are significant requirements in the regulatory provisions on command investigations. You may be surprised at how many of those requirements are not followed. A significant part of administrative work is pointing out the flaws in process. It matters, not only to the level where your case is currently, but also to the next several processes that may be coming, and even more so if you end up needing to articulate how your rights have been violated post service in appealing these matters. Administrative process matters, but so does objecting and highlighting the flaws at every stage. It has a cumulative effect, and you could potentially waive issues if they are not brought up when deficiencies happen.

Legal analysis in the rebuttal matters also includes when the legal standards have not been met. In some cases, we submit a separate legal analysis memo but ordinarily it is folded into your response memorandum. It really does depend on the issues we see and the other evidence available.

Success in Rebutting Derogatory Findings

As honest brokers, we must be transparent that your chances for success in defeating derogatory findings is low, even with attorney assistance. That does not mean you should not put forth every possible resource in responding. In a high profile case, we were able to defeat all derogatory findings from a several thousand page investigation. It took time and a great deal of resources, but we were successful. Even if you are not successful at this stage, the response to the derogatory findings, it will become an important exhibit in later processes. While we always focus on the audience for the findings, we are also cognizant of the later audience who you may face if things continue on this trajectory. As you will learn in reviewing the resources on this website, the administrative processes that stem from initial derogatory findings are many and can be combined to jeopardize your career and future in the military.

Command Decisions

The most common command decision after derogatory findings is made against a military service member are reprimands. Known sometimes as Letters of Reprimand (LOR) or General Officer Memoranda of Reprimand (GOMOR), these simple documents have the power to derail a career, to rescind or make it nearly impossible to achieve the next rank, and even to trigger a hearing that could fire you from the military. Ensure that you have experienced counsel to help you respond to derogatory findings before the action turs into a command decision that can jeopardize all you have worked for.

The soonest a military member can influence the process the better. If you wait and see, the command will take derogatory action. If you respond to the derogatory findings, at least there is a chance the command will consider what you provide. Even if the command does not, there are a host of military administrative actions they can take against you, and each of your responses and evidence will be included for the ultimate decision makers – the members of an administrative separation board / board of inquiry. We call this playing the long game.

For questions about strategies and your rights to respond to derogatory action, please schedule a consultationwith a member of our team.

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