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.
APRIL 2016 AMENDMENTS
In April 2016, the Army amended Army Regulation 15-6 to give additional due process rights to field grade officers. Based on that change before the command could take derogatory action against a CW3 and above or a MAJ and above, the command had to serve the AR 15-6 investigation on the respondent and allow for them to have the opportunity to write a written rebuttal, to provide comment, or to give additional context or evidence on the findings.
We have been disappointed that when given that chance, often uniformed defense counsels advise the respondent not to provide a rebuttal or even to comment. Our starting point is to take every opportunity, and unless there is a very good reason not to, to provide information in response to the investigation. Every opportunity for advocacy is an opportunity. [Our starting off point is also to participate in the investigation by providing a statement through counsel, but never to submit to in-person questioning by an investigating officer.
PURPOSE OF RESPONDING
The purpose of responding to derogatory findings is to ask that the findings be disapproved and to give concrete reasons why with evidence. 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.
READING AN INVESTIGATION
Even reading an investigation can be difficult for a respondent. We provide guidance on how to read the investigation in a way that will assist your attorney. 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.
COMPANY GRADE OFFICER RIGHTS INCREASED
Due to a recent change in policy, now company level officers in the Army can respond to derogatory findings also. For more information on those changes, please read this blogpost.
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.