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• 15-6 Investigation

15-6 Investigation Ultimate Guide

The purpose of an Army Regulation (AR) 15-6 investigation is to find facts, document and preserve evidence, and then report the facts and evidence to the approval authority. The U.S. Army must pursue an AR 15-6 investigation when certain kinds of incidents or allegations occur. The results can end the career for the Soldier facing investigation. This guide provides information regarding the process.

When you’re under investigation, there is no substitute for having the best team of military defense lawyers and investigators on your side to advise you, investigate your side of the story, and advocate on your behalf!

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The most important decision for a Soldier under investigation will be what information to provide to the investigating officer during the investigation. A Soldier that is not a field grade officer is not entitled to respond or provide a rebuttal to a negative finding after an investigation. The information you provide to the investigating officer can be pivotal to the ultimate findings and should be discussed with an experienced military defense lawyer.

What can trigger an investigation?

The appointing authority can choose to issue an investigation into any incident or allegation under AR 15-6 with the purpose of finding facts.

Examples of common issues in an AR 15-6 investigation:

• Sexual Harassment
• Toxic leadership
• Destruction or loss of property

Serious Incident Investigations must be ordered in the following circumstances:

• Property damaged is valued at $2 million or more
• The loss or destruction of an Army aircraft
• Injury or illness resulting in permanent total disability or the death of one or more persons
• Combat-related deaths involving non-DOD personnel or an insider
• Instances of friendly fire

How long will the investigation take?

The sample appointment memorandum in AR 15-6 states that the investigating officer (IO) must prioritize the investigation over all other military duties and provides the IO 30 days to conduct the investigation.

However, IOs are unlikely to have any investigative experience, and they often fail to prioritize the investigation over other duties. They may request extensions during the investigation, and this leads to delays that will differ from case to case.

At Military Law, we take proactive efforts for all our clients who are facing an investigation to encourage legal offices and commanders to limit delays, unless a delay is to the benefit of our clients.

What is the AR 15-6 investigation process?

The IO will be instructed to locate facts to support findings at the end of the investigation. They should acquire sworn statements from witnesses involved with the matter. They should review any relevant records. The evidence collected will guide the IO in coming to factual findings, which should be used to justify recommendations to the chain of command.

Best practices for an investigating officer:

• Prioritize in-person interviews, using telephone interviews only “if necessary”
• Prepare for interviews by reviewing the records, facts, and allegations
• Collect all relevant information from the most direct sources
• Interview relevant witnesses prior to interviewing the subject
• Interview all witnesses mentioned during the investigation
• Collect from all sources the Who, What, When, Where, and Why
• Substantiate factual findings with the unbiased facts
• Ask all witnesses to provide any additional information they believe should be considered

What are your rights during the investigation?

As in any investigation in which you are the subject of misconduct, you have the right to remain silent, and anything you state may be used against you. In an AR 15-6 investigation, it can be useful to be forthcoming with a candid statement and to present evidence in your defense, but you should not do so without consulting an experienced military lawyer first.

You have the right to a lawyer . The Army may provide you with a TDS attorney free of charge, but the missteps of a junior lawyer can cost you dearly. An AR 15-6 investigation can result in the loss of your position, your livelihood, and your military retirement. You also have the right to hire a much more experienced and effective lawyer to assist you.

At Military Law, we can provide you with an experienced team of military trial lawyers paired with an in-house investigator with actual federal government experience. We know how to get the right information, fight false narratives, and present your best defense.

What actions can you face after the AR 15-6 investigation ends?

When an IO substantiates findings at the end of the investigation, the results can vary from case to case and command to command. The IO will provide a written memorandum in support of the findings.

Possible actions from an adverse finding can be:

• General Officer Memorandum of Reprimand (GOMOR)
• Nonjudicial punishment
• Relief of command
• Change in duty position
• Referral NCOER or OER
• Administrative separation
• Qualitative Management Program (QMP)
• Board of Inquiry (BOI)
• Officer Grade Determination (OGD) upon retirement
• Criminal investigation by the Military Police or CID

Can you respond to an adverse finding from an AR 15-6 investigation?

Unfortunately, field grade officers are the only Soldiers guaranteed the opportunity to respond to an adverse finding and recommendation before the AR 15-6 investigation is finalized. All other Soldiers will be given an opportunity to respond to any adverse action they may receive following the close of the AR 15-6 investigation.

Can you request reconsideration?

As with any case, the best time to take defensive action is before a negative finding occurs. Requesting a second chance is an uphill battle and will take skilled investigative efforts, compelling new evidence, and persuasive legal arguments.

All Soldiers may be able to request reconsideration when an investigation results in an adverse finding. These requests must meet the following factors:

• New evidence that was not considered in the investigation
• New evidence must have been “ not reasonably available for consideration”
• Be submitted within one year of the adverse finding
• Provide substantial evidence to support reopening the investigation

The ability to request reconsideration of your investigation will depend on the “preponderance of the evidence” you can provide. If you are looking to find the best evidence, you will want an experienced military defense attorney and defense investigator on your side!

Military Investigation

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The Army, Air Force, Space Force, Navy, Marine Corps, and the Coast Guard have courtrooms all over the world. We can appear in every one of them. We have represented clients ranks from E-1 through O-8.

Assistance with Army Regulation (AR) 15-6 Investigations & Guidelines

Contact joseph l. jordan, attorney at law, for a consultation.

Are you a military service member who is under an Army Regulation (AR) 15-6 investigation? Whether it’s a formal or informal investigation, you need an experienced military attorney to ensure your rights are protected. If an AR 15-6 Investigating Officer is investigating you, it’s essential to have an attorney by your side before agreeing to a search or giving any statements. Joseph L. Jordan, Attorney at Law, travels the globe to represent service members from all branches who have been charged in various military criminal defense matters. As a former service member himself, Joseph L. Jordan understands the immediacy in protecting your rank and reputation after a criminal accusation and investigation have been launched. Contact our law firm today to schedule a consultation!

What Sort of Allegations Warrant an AR 15-6 Investigation?

When a military service member has been accused of a crime and is arrested for any reason, it’s up to an Investigating Officer to see if disciplinary action should be initiated under the Uniform Code of Military Justice (UCMJ). Most AR 15-6 investigations are informal in nature. It’s called an investigation because it’s a fact-gathering process. An informal investigation usually only requires one Investigating Officer, while a formal investigation may involve several parties and/or defense counsel at a hearing.

The duty of an Investigating Officer is to gather thorough evidence on all sides of an issue while remaining impartial. He or she then reports these findings to the appointing authority, so they can make an informed decision on what disciplinary action (if any) needs to be taken. Investigating Officers are usually commissioned officers, warrant officers, or DA civilian employees. Examples of allegations warranting an AR 15-6 investigation may include any of the following:

• Unit Property Loss
• Inappropriate Relationships (with a subordinate, superior, or the spouse of either)
• Sexual Harassment
• Hostile Work Environment
• Equal Opportunity Complaints
• Cruelty and Maltreatment of Subordinates
• Inappropriate Punishments

What Happens During an AR 15-6 Investigation?

During an AR 15-6 investigation, physical evidence may be collected, and witness interviews may be conducted to build witness testimony in the event of a future due process hearing. Documentary and physical evidence may include photographs, accident or police reports, and witness statements. This type of information is gathered during the initial stages of the investigation. While witness testimony is best-conducted face-to-face, interviews conducted via telephone or through correspondence are also admissible depending upon the circumstances. Although AR 15-6 guidelines do not require all statements to be sworn for informal investigations, an appointing authority may require them to be at their discretion. Even if the Investigating Officer recommends a finding of “no fault, no loss, or no wrongdoing,” they must also include sufficient documentation and evidence supporting this finding.

Why Legal Counsel Is Essential During an Investigation

Joseph L. Jordan, Attorney at Law, can advise you when making a statement and in speaking with the Investigating Officers during an AR 15-6 investigation. Enlisting counsel early on in a formal or informal investigation is critical. Not only do we advocate on your behalf, but we can conduct our own investigative work to assist in pointing the investigation in a direction that is in your best interest. We may also begin interviewing witnesses or collecting documentary materials beneficial to your case. While you may be appointed a military defense attorney by the government or your respective military branch, this counsel only offers basic advice and may not be permitted to form an attorney-client relationship with you. Don’t jeopardize your military career by not relying on our rights advisement.

What Are Typical Punishments?

Due to the severe consequences you may face if an AR 15-6 investigation goes to a hearing, you cannot afford to be without an experienced criminal military defense attorney in your corner. You could face an administrative discharge after an appearance before a separation board or a possible court-martial trial , which could impact your military career and future. The minute you find yourself under any type of military investigation, it’s in your best interest to contact experienced legal representation.

Facing an AR 15-6 Investigation? Contact Our Firm Today!

Joseph L. Jordan, Attorney at Law, can provide legal counsel if you are facing an AR 15-6 investigation. He is a former Army enlisted soldier, Army combat arms officer, and Army Judge Advocate General’s (JAG) Corps officer. He is an active member of the American Bar Association, the Criminal Law Section of the American Bar Association, the Arkansas Bar Association, and the Military Law Section of the Texas Bar Association. Please contact our firm today at 254-853-0064  or toll free at 833-884-2715 to request a consultation and begin discussing your case.

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15-6 Investigation

A 15-6 Investigation is the Army's primary tool for gathering information in a variety of situations.  This type of investigation is commonly referred to as a "15-6" by Soldiers.  The name comes from the regulation that governs how to conduct a 15-6 Investigation.  That regulation is Army Regulation 15-6, available at this link .

Generally speaking, Commanders initiate a 15-6 Investigation.  There are situations when a civilian or a non-Commander can appoint one as well.  For example, a COL in a principal staff position (S1, S2, S3, etc.) can also appoint a 15-6 Investigation. A 15-6 Investigation can be appointed to look into any situation; however, there are certain types of investigations that must be conducted by CID (i.e. sexual assaults) or the Military Police.

Initiating a 15-6 investigation is easy.  The initiating authority usually asks their legal officer to draft an appointment memorandum that explains what the investigation will be focused on (appointment memo examples can be found in AR 15-6).  Then, he/she picks someone to be the 15-6 Investigating Officer (IO).  The IO is usually a Commissioned Officer; however, Warrant Officers and civilians in the rank of GS-11 or above can also be appointed.  Furthermore, E7s or above can be appointed.  For this to happen, it must be determined that no other qualified IOs are reasonably available.  Finally, the IO must be senior in rank to any subject of the investigation.

Once the IO is appointed, he/she will review their appointment memo and should meet with their legal advisor. This is advisable because the legal advisor will help the IO determine a plan for the investigation and advise him/her on how to collect evidence.

After the IO has received their legal briefing, he/she will start the investigation.  The IO's goal is to collect evidence and make findings that will be presented to the Appointing Authority.  Most commonly, the IO will meet with individuals and collect statements.  Some IOs will only ask for written statements, while others prefer to talk first and draft a statement up later.  Either method is permissible.  Furthermore, IOs will collect hard evidence, if available.  This evidence could include text messages, videos, previously written statements, pictures, etc.

Anyone who finds themselves being interviewed during the course of a 15-6 should proceed with caution.  If anyone is asked by an IO to give a statement or be interviewed, that individual should request to see the IO's appointment memo. If the topic of the investigation is something that could get the individual being questioned in trouble, then he/she should immediately talk to a lawyer.  IOs are required to read individuals their rights if they suspect him/her of misconduct.  However, IOs are inexperienced and often forget to do this.  Believe it or not, statements given without a rights advisement can still be used against a Soldier for a variety of administrative actions ( GOMORs , Administrative Separations , Boards of Inquiry , Article 15s , etc).  Therefore, it is incumbent upon the individual being questioned to look out for their best interest and to talk to a lawyer before agreeing to be interviewed by an IO.

IOs can also request to view and copy evidence from individuals.  However, unless the IO has a search and seizure authorization signed by a Commander (which is rare), individuals do not have to provide the IO with the evidence, if it is potentially incriminating.  Before anyone shows an IO any evidence (i.e. text messages), he/she should consult with a lawyer.

The IO will gather evidence until he/she has enough information to make findings to the Appointing Authority. Once complete, the IO should write a detailed report that answers the questions that they were appointed to answer.  He/She should include a reasoning for their findings and cite to the specific evidence that supports them.  All evidence is attached to the findings memo as an enclosure.  A good 15-6 report explains why the IO believes some evidence over other evidence, instead of just choosing to believe one piece of evidence that contradicts another, without any explanation.

The IO then should have his/her legal advisor review his findings.  After the legal advisor approves, the IO signs his/her findings memorandum and presents the complete packet to the Appointing Authority.  The Appointing Authority ensures that a legal review is conducted by his/her legal officer.  Additionally, 2LTs and above will have the chance to respond (in the form of a rebuttal) to any adverse findings made against them. 15-6 Investigation Rebuttals are explained more at this link . Consultation with a lawyer is advisable before responding to any adverse findings.

At this point, the investigation is complete and the Command now decides what action, if any, they are going to take.  This could include anything from no action taken against anyone to a Court-Martial (i.e. Letter of Concern , GOMOR , Article 15 , Separation Board , Board of Inquiry ).  This decision is completely within the Command's discretion, with a couple of exceptions.

Additionally, any approved adverse findings for any 2LT and above will be entered into the Army Adverse Information Program (AAIP) database.  Entries in this database will be uploaded into the Officer's AMHRR during future promotion reviews. Said entry will be in the form of a Summary of Adverse Information .

There is a lot of confirmation bias with a 15-6 Investigation.  It is rare for an investigating officer to conduct an investigation and not substantiate the allegations they were appointed to investigate.  IOs are usually inexperienced, often never having conducted an investigation before.  Once an Officer/NCO/Soldier has a negative finding against them as part of a 15-6, they should expect some form of adverse action to be taken.

For all of these reasons, any Soldier that is questioned as part of a 15-6 should consult with a lawyer before answering any questions. Doing so could save the Soldier's career.

This Article was written by Attorney Matthew Barry

Contact The Law Office of Matthew Barry today for a free Consultation .

Army Regulation 15–6

Boards, Commissions, and Committees

Procedures for

Administrative Investigations and Boards of

Headquarters

Department of the Army

Washington, DC 1 April 2016

UNCLASSIFIED

SUMMARY of CHANGE

Procedures for Administrative Investigations and Boards of Officers This major revision, dated 1 April 2016--

o    Provides guidance on flagging of Soldiers under investigation in accordancewith AR 600-8-2 (paras 1-10 and 1-11).

o    Authorizes a civilian supervisor permanently assigned to a position graded asa General Schedule-14 or higher, or their equivalent, and who is assigned as the head of an agency, activity, division, or directorate, to appoint investigating officers and boards (para 2-1 a ).

o    Authorizes a general or flag officer in a command billet or a general courts-martial convening authority to appoint an investigation or board for incidents resulting in property damage of $2 million or more, the loss or destruction of an Army aircraft, an injury and/or illness resulting in, or likely to result in, permanent total disability or the death of one or more persons, where the cause is not due to friendly fire (para 2-1 c ).

o    Requires the next superior authority to appoint an investigation or board forClass A training accidents resulting in, or likely to result in, the permanent total disability or death of one or more persons, and for combat-related deaths involving non-Department of Defense personnel or an insider (green on blue) attack (para 2-1 c ).

o    Clarifies when the authority to appoint an investigation of a death may bedelegated (para 2-1 c ).

o    Provides additional guidance on friendly fire appointing authority (para 2-1c).

o    Prohibits an individual from appointing an inquiry, investigation, or boardif that individual is reasonably likely to become a witness; has an actual or perceived bias for or against a potential subject of the investigation; or has an actual or perceived conflict of interest in the outcome of the investigation (para 2-1 f ).

o    Authorizes the appointment of Department of the Army civilians in the grade ofGeneral Schedule-11, or higher, as investigating officers and members of boards (para 2-3 b ).

o    Authorizes the appointment of noncommissioned officers in the grade of E-7,or higher, as investigating officers under certain circumstances (para 2-3 b ).

o    Provides additional guidance on appointing assistant investigating officers(paras 2-3 c and 5-1).

o    Provides that each investigation or board directed under this regulation musthave a designated legal advisor (para 2-6 b ).

o    Details the legal support to be provided at all stages of the investigativeand board process (para 2-6).

o    Expands the scope of the legal review (para 2-7).

o    Defines personally identifiable information and provides guidance onsafeguarding personally identifiable information (para 3-8).

o    Provides guidance on compliance with applicable information security laws andregulations (paras 3-16 and 3-17).

o    Provides new filing requirements (para 3-19).o Establishes authority to conduct a preliminary inquiry (chap 4).

o    Establishes a right to respond to adverse information regarding field gradeofficers (para 5-4).

         Headquarters                                                                                                                           *Army Regulation 15–6

Washington, DC

          1 April 2016                                                                                                                                Effective 1 May 2016

Procedures for Administrative Investigations and Boards of Officers

r e g u l a t i o n m a y b e m o d i f i e d b y t h e S u p p l e m e n t a t i o n . S u p p l e m e n t a t i o n o f proponent. this regulation and establishment of agen-

                                                                                    Proponent and exception authority.           cy, command, and installation forms are

The proponent of this regulation is The p r o h i b i t e d w i t h o u t p r i o r a p p r o v a l f r o m Judge Advocate General. The proponent H Q D A ( D A J A – A L ) , W a s h i n g t o n , D C has the authority to approve exceptions or 20310–2200. waivers to this regulation that are consis-

S u g g e s t e d i m p r o v e m e n t s . tent with controlling law and regulations. T h e p r o The proponent may delegate this approval ponent agency of this regulation is the authority, in writing, to a division chief Office of The Judge Advocate General. within the proponent agency or its direct Users are invited to send comments and reporting unit or field operating agency in s u g g e s t e d i m p r o v e m e n t s o n D A F o r m the grade of colonel or the civilian equiv- 2028 (Recommended Changes to Publicaalent. Activities may request a waiver to tions and Blank Forms) directly to HQDA this regulation by providing justification ( D A J A – A L ) ,  W a s h i n g t o n ,  D C

                                                                                       that includes a full analysis of the ex-         20310–2200.

H i s t o r y . T h i s p u b l i c a t i o n i s a m a j o r pected benefits and must include formal

         revision.                                                              review by the activity’s senior legal offi-        Distribution. This regulation is available

S u m m a r y . T h i s r e g u l a t i o n e s t a b l i s h e s cer. All waiver requests will be endorsed    in electronic media only and is intended

           procedures for investigations and boards        by the commander or senior leader of the           for command level A for the Active Ar-

            not specifically authorized by any other        requesting activity and forwarded through         my, the Army National Guard/Army Na-

          regulation or directive.                                       higher headquarters to the policy propo-          tional Guard of the United States, and the

                                                                             n e n t . R e f e r t o A R 2 5 – 3 0 f o r s p e c i f i c U.S. Army Reserve.

          Applicability. This regulation applies to      guidance.

t h e R e g u l a r A r m y , t h e A r m y N a t i o n a l

          Guard/Army National Guard of the United      Army internal control process. This

          States, and the U.S. Army Reserve. It also r e g u l a t i o n c o n t a i n s m a n a g e m e n t c o n t r o l

           applies to Department of the Army civil-         provisions in accordance with AR 11–2

          ian employees. During mobilization, chap-        and identifies key internal controls that

   t e r s  a n d  p o l i c i e s  c o n t a i n e d  i n  t h i s must be evaluated (see appendix E).

Contents (Listed by paragraph and page number)

Chapter 1 Introduction, page 1

Purpose • 1–1, page 1

References • 1–2, page 1

Explanation of abbreviations and terms • 1–3, page 1

Responsibilities • 1–4, page 1

Other governing regulations • 1–5, page 1

Types of procedures • 1–6, page 1

Allegations against senior officials • 1–7, page 2

Function of preliminary inquiry, administrative investigation, and board of officers • 1–8, page 2

Interested persons • 1–9, page 2

Designation as a respondent in a board and requirement to initiate a suspension of favorable personnel actions

• 1–10, page 2

*This regulation supersedes AR 15–6, dated 2 October 2006.

                                                                                                 AR 15–6 • 1 April 2016                                                                                       i

Contents—Continued

Requirement to initiate a suspension of favorable personnel actions in preliminary inquiries and administrative investigations • 1–11, page 2

Use of results of preliminary inquiries, administrative investigations, and boards of officers in adverse administrative actions • 1–12, page 2

Responsibilities - Investigations and Boards, page 4

Appointing Authority, page 4

Appointment authority • 2–1, page 4

Method of appointment • 2–2, page 5

Who may be appointed • 2–3, page 13

Administrative support • 2–4, page 13

Actions of the appointing authority after appointing an investigating officer • 2–5, page 14

Legal Support, page 14

Legal support to investigations and boards • 2–6, page 14 Legal review • 2–7, page 14

Section III

Approval Authority, page 15

Action of the approval authority • 2–8, page 15 Request for reconsideration • 2–9, page 19

Chapter 3 General Guidance for Investigating Officers and Boards, page 20

Conduct of the Investigation, page 20

Preliminary responsibilities • 3–1, page 20

Oaths • 3–2, page 20

Challenges • 3–3, page 20

Representation • 3–4, page 20

Decisions • 3–5, page 20

Presence of the public and recording of proceedings • 3–6, page 20

Rules of evidence and proof of facts • 3–7, page 20

Witnesses • 3–8, page 22

Communications with the appointing authority • 3–9, page 24

Findings and Recommendations, page 24

Findings • 3–10, page 24

Recommendations • 3–11, page 24

Report of Proceedings, page 25 Format • 3–12, page 25

Enclosures • 3–13, page 28

Exhibits/evidence • 3–14, page 28

Authentication • 3–15, page 28

Compliance with applicable information security laws and regulations • 3–16, page 28

Safeguarding a written report • 3–17, page 29

Submission • 3–18, page 29

Filing and record keeping of the report • 3–19, page 29

Effect of errors • 3–20, page 29

Preliminary Inquiries, page 31 Purpose • 4–1, page 31

Composition • 4–2, page 31

Procedure • 4–3, page 31

Legal consultation • 4–4, page 31

Chapter 5 Administrative Investigations, page 33

Composition • 5–1, page 33

Procedure • 5–2, page 33

Interested persons • 5–3, page 33

Right to respond to adverse information • 5–4, page 33

Chapter 6 Collateral Investigations, page 34

General • 6–1, page 34 Types • 6–2, page 34

Chapter 7 Boards of Officers, page 35

General, page 35

Members • 7–1, page 35

Attendance of members • 7–2, page 35 Duties of recorder • 7–3, page 36

Respondents, page 36

Designation • 7–4, page 36

Notice • 7–5, page 37

Counsel • 7–6, page 37

Challenges for cause • 7–7, page 37

Presentation of evidence • 7–8, page 38

Argument • 7–9, page 38

Deliberation • 7–10, page 38 Voting • 7–11, page 39

After the hearing • 7–12, page 39

A.      References, page 40

B.      Guidance for Preparing Privacy Act Statements, page 44

C.      Investigating Officer’s Guide, page 45

D.      Suggested Procedure for Board with Respondents, page 51

E.      Internal Control Evaluation, page 56

Figure List

Figure 2–1: Sample memorandum to appoint a board of officers, page 6

Figure 2–2: Sample memorandum referring to a designated respondent, page 7 Figure 2–3: Sample memorandum appointing a single officer as a board, page 8

Figure 2–4: Sample memorandum appointing an investigating officer, page 9

Figure 2–5: Sample memorandum appointing a preliminary inquiry/administrative investigation, page 10

Figure 2–5: Sample memorandum appointing a preliminary inquiry/administrative investigation (continued), page 11

Figure 2–5: Sample memorandum appointing a preliminary inquiry/administrative investigation (continued), page 12 Figure 2–6: A sample memorandum to accompany a copy of an investigation with an adverse finding or recommendation, page 17

Figure 2–7: A sample memorandum to certify that an officer was given the opportunity to respond, page 18

Figure 3–1: Sample report of findings and recommendations, page 26

Figure 3–1: Sample report of findings and recommendations (continued), page 27

Figure 4–1: Sample report of findings for a preliminary inquiry, page 32

Introduction

1–1. Purpose

This regulation establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another regulation or directive, but in that case, its provisions are not mandatory.

1–2. References See appendix A.

1–3. Explanation of abbreviations and terms See the glossary.

1–4. Responsibilities See chapter 2.

1–5. Other governing regulations

This regulation, or any part of it, may be made applicable to investigations or boards that are authorized by another regulation or directive, but only by specific incorporation by that regulation or directive, or in the memorandum of appointment. In case of a conflict between the provisions of this regulation, when made applicable to an investigation or board that is authorized by another regulation or directive, and the provisions of the specific regulation or directive authorizing the investigation or board, the latter will govern. This regulation does not prescribe procedures for criminal investigations, which are governed by AR 195–2 (for serious offenses to be investigated by Criminal Investigation Command personnel) or AR 190–30 (for offenses to be investigated by military police). It also does not prescribe procedures for investigations conducted by Inspector General personnel under the provisions of AR 20–1. Appointing authorities will consult their servicing staff judge advocate (SJA) or legal advisor when determining the appropriate procedure to conduct fact-finding into a particular matter.

1–6. Types of procedures

a.                         General. There are three types of fact-finding or evidence-gathering procedures under this regulation: preliminary inquiries, administrative investigations, and boards of officers. Proceedings conducted pursuant to chapter 4 are preliminary inquiries. Proceedings involving a single investigating officer (IO), with or without assistance from assistant IOs, that use the informal procedures delineated in chapters 5 and 6, as applicable, are designated administrative investigations. Proceedings involving one or more IOs that use the formal procedures delineated in chapter 7 are designated a board of officers.

b.                         Preliminary inquiries. A preliminary inquiry is a procedure used to ascertain the magnitude of a problem, to identify and interview witnesses, to summarize or record witnesses’ statements, to determine whether an investigation or board may be necessary, or to assist in determining the scope of a subsequent investigation. An appointing authority may conduct a preliminary inquiry personally, or may appoint an inquiry officer orally or in writing. The inquiry will be accomplished in accordance with guidance provided in chapter 4 of this regulation.

c.                         Choosing between an administrative investigation and a board of officers.

(1) In determining whether to conduct an administrative investigation or a board of officers, the appointing authority will consider, among others, the following factors:

(a)               Purpose for initiating fact-finding.

(b)               Seriousness of the subject matter.

(c)               Complexity of issues involved.

(d)               Need for documentation.

(e)               Desirability of providing a comprehensive hearing for persons whose conduct or performance of duty is being, investigated (see paras 1–8, 5–3, and 7–4 a ).

(f)                Mandates of other applicable regulations or directives.

(2)                      Regardless of the purpose of the investigation or board, selection of one particular procedure is not mandatory,unless required by other applicable regulations or directives or directed by higher authority.

(3)                      In determining which procedure to use, the appointing authority will seek the advice of his or her servicing SJAor legal advisor. Although the appointing authority’s natural instinct will likely be to ascertain all pertinent facts as quickly as possible, initiating investigations without first consulting a legal advisor may be counterproductive and actually work against the interests of the appointing authority, the command, and the Army.

d. Concurrent investigations. An administrative fact-finding or evidence-gathering procedure, whether designated as an administrative investigation or a board of officers, may be conducted before, concurrently with, or after an administrative investigation or board of officers, into the same or related matters by another command or agency. This most commonly occurs when other regulations prescribe a collateral investigation using procedures for investigations contained in this regulation. Appointing authorities, IOs, and boards will ensure that procedures under this regulation do not hinder or interfere with:

(1)    A concurrent investigation or board directed by higher headquarters.

(2)    A counterintelligence investigation.

(3)    A safety investigation, or

(4)    An investigation being conducted by a criminal investigative organization. In cases of concurrent or subsequentinvestigations, coordination with the other command or agency will be made to avoid duplication of investigative effort, where possible (see chap 6).

1–7. Allegations against senior officials

Generally, only the Secretary of the Army, Under Secretary of the Army, Chief of Staff of the Army, Vice Chief of Staff of the Army, and The Inspector General of the Army may authorize or direct an investigation into allegations or incidents of improprieties or misconduct by general officers, promotable colonels, members of the civilian Senior Executive Service (SES), and other DA civilian employees of comparable grade or position. Investigations involving allegations against such senior officials must be processed in accordance with AR 20–1 . In the event an IO or board encounters allegations against a senior official, the IO or board president will coordinate with the assigned legal advisor as to the procedures for notifying the Investigations Branch, Department of the Army Inspector General.

1–8. Function of preliminary inquiry, administrative investigation, and board of officers

The primary function of any preliminary inquiry, administrative investigation, or board of officers is to ascertain facts, document and preserve evidence, and then report the facts and evidence to the approval authority. It is the duty of the IO or board to thoroughly and impartially ascertain and consider the evidence on all sides of each issue, to comply with the instructions of the appointing authority, to make findings that are warranted by the evidence, and, where appropriate, to make recommendations to the approval authority that are consistent with the findings. In addition to addressing the questions specified by the appointing authority in the appointment memorandum, the IO or board should address larger issues, such as policies, procedures, doctrine, training, resourcing, and leadership, whenever the IO or board determines that those issues are relevant to the matters or conduct under investigation (see para 3–9).

1–9. Interested persons

Appointing authorities may use investigations and boards to obtain information necessary or useful in carrying out their official responsibilities. The fact that an individual may have an interest in the matter under investigation, or that the information may reflect adversely on that individual, does not entitle an individual to a hearing or require designating the individual as a respondent.

1–10. Designation as a respondent in a board and requirement to initiate a suspension of favorable personnel actions

The appointing authority may designate one or more persons as respondents when using board procedures. Such a designation has significant procedural implications. (See chap 7, sec II, in general, and para 7–4, in particular.) Respondents will not be designated in preliminary inquiries or administrative investigations. A suspension of favorable personnel actions (flag) must be initiated against a Soldier who is designated as a respondent in a board in accordance with AR 600–8–2. In addition, the board president must inform the appointing authority and the Soldier’s commander whenever a Soldier, who is not a designated respondent, becomes a suspect during the course of board proceedings.

1–11. Requirement to initiate a suspension of favorable personnel actions in preliminary inquiries and administrative investigations

In accordance with AR 600–8–2, a suspension of favorable personnel actions (flag) must be initiated against a Soldier when military or civilian authorities initiate any investigation or inquiry that may result in disciplinary action or loss of the Soldier’s rank, pay, or other privileges. If the appointing authority possesses evidence, before directing the inquiry or investigation, indicating that a Soldier involved is a subject or suspect, or may receive disciplinary action, the appointing authority will ensure the Soldier’s commander flags him or her. Inquiry officers and IOs must notify the appointing authority and the Soldier’s commander, when a flag is required due to a Soldier becoming a suspect or subject during the course of an inquiry or investigation. A suspect or subject of an inquiry or investigation is not a designated respondent, and the procedural requirements set forth in chapter 7, section II, of this regulation do not apply.

1–12. Use of results of preliminary inquiries, administrative investigations, and boards of officers in adverse administrative actions

a.                         This regulation does not require that a preliminary inquiry, administrative investigation, or board of officers be conducted before taking adverse administrative action, such as relief for cause, against an individual. Subject to the provisions of subparagraphs b , c, and d , below, the evidence gathered during an inquiry, investigation, or board conducted under the provisions of this regulation may be used in any administrative action against an individual, regardless of the particular procedures used, and regardless of whether that individual was a subject or designated as a

respondent.

b.                         Various statutes and regulations govern adverse personnel actions against Department of the Army civilian employees. Supervisors should consult with the servicing civilian personnel office and servicing SJA or legal advisor if formal disciplinary action is contemplated against a civilian employee (see AR 690–700).

c.                         Except as provided in subparagraph e, below, when adverse administrative action is contemplated against a Soldier, including one designated as a respondent, based upon information obtained as a result of a preliminary inquiry, administrative investigation, or board of officers conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:

(1)                      Notify the Soldier, in writing, of the proposed adverse action and provide a copy, if not previously provided, ofthose parts of the findings and recommendations of the inquiry, investigation, or board and the supporting evidence gathered during the proceeding upon which the proposed adverse action is based. This release of information must comply with 5 U.S.C. 552, Freedom of Information Act (FOIA) and 5 U.S.C. 552a, Privacy Act (PA) requirements. (See AR 340–21 and AR 25–55 for additional guidance.)

(2)                      Give the Soldier a reasonable opportunity, no less than 10 days, to reply, in writing, and to submit rebuttalmatters.

(3)                      Review and evaluate any matters submitted by the Soldier.

d.                         Other than as directed in subparagraph c , above, or paragraph 2–8 c , there is no requirement to refer the inquiry, investigation, or board to the individual if the adverse action contemplated is prescribed in regulations or directives that provide procedural safeguards, such as notice to the individual and an opportunity to respond. For example, there is no requirement to refer an inquiry, investigation, or board conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the inquiry, investigation, or board, because the regulations governing evaluation reports provide the necessary procedural safeguards. AR 623–3, however, prescribes that the referral procedures specified in AR 15–6 will be followed before initiating or directing a relief for cause, if the relief is contemplated on the basis of an AR 15–6 investigation.

e.                         When the inquiry, investigation, or board is conducted pursuant to this regulation and the contemplated administrative action is prescribed by a different regulation or directive with more stringent procedural safeguards than those outlined in subparagraph c, above, the more stringent safeguards must be observed.

f. Access to completed reports of proceedings by other individuals, including by a Soldier who was a subject of the investigation, but against whom adverse action did not result, is governed by AR 25–55 and AR 340–21.

Responsibilities - Investigations and Boards

Section I Appointing Authority

2–1. Appointment authority

a. Authority to appoint a board (see also chap 7). Except as described in subparagraph c , below, the following

individuals may appoint boards of officers to inquire into matters within their areas of responsibility:

( 1 ) A n y g e n e r a l c o u r t - m a r t i a l c o n v e n i n g a u t h o r i t y ( G C M C A ) o r s p e c i a l c o u r t - m a r t i a l c o n v e n i n g a u t h o r i t y

(SPCMCA), including those who exercise that authority for administrative purposes only.

(2)           Any general/flag officer.

(3)           Any commander, deputy commander, or special, personal, or principal staff officer in the rank of colonel(lieutenant colonel may appoint if assigned to a slot authorized a colonel) or above at HQDA, the installation, activity, or unit level. As used in this paragraph, principal staff officers include individuals assigned to the following positions: Chief of Staff, Executive Officer, Deputy Commanding Officer, G–1/S–1, G–2/S–2, G–3/S–3, G–4/S–4, G–5/S–5, G–6/S–6, and G–7/S–7.

(4)           Any State adjutant general.

(5)           A civilian supervisor permanently assigned to a position graded as a General Schedule (GS)-14 (or equivalent) or above, who is assigned as the head of an agency, activity, division, or directorate.

(6)           Principal Deputies, Assistant Deputy Chiefs of Staff, and Assistant Secretaries of the Army are authorized toserve as appointing authorities at HQDA.

b. Authority to appoint a preliminary inquiry (chap 4) or administrative investigation (chap 5). Except as described in subparagraph c , below, the following individuals may appoint an administrative investigation to inquire into matters within their areas of responsibility:

(1)    Any officer or civilian employee authorized to appoint a board.

(2)    A commander at any level.

(3)    A special, personal, or principal staff officer or supervisor in the grade of major or above. (See subparagraph a (3), above, for the meaning of principal staff officer as used in this paragraph.)

c. Serious incident investigations. Only a GCMCA or a general/flag officer assigned to a command billet with a servicing SJA may normally appoint an administrative investigation or board of officers for Class A accidents (such as incidents resulting in property damage of $2 million or more, or the loss or destruction of an Army aircraft or an unmanned aircraft system with a replacement or repair cost of $2 million or more; an injury and/or illness resulting in, or likely to result in, the permanent total disability or death of one or more persons). Only the next superior authority to the GCMCA or general/flag officer authorized to appoint an administrative investigation or board of officers for Class A accidents may appoint an administrative investigation or board of officers for: Class A training accidents resulting in, or likely to result in, the permanent total disability or death of one or more persons; or combat-related deaths involving non-DOD personnel or an insider (green on blue) attack. In accordance with DODI 6055.07, the combatant commander has the responsibility to convene an investigation to inquire into a friendly fire incident. Appointing authorities should check the combatant commander’s guidance to determine if that authority has been delegated.

(1)           The “next superior authority” is normally the next superior in the chain-of-command or supervision. TheDirector, Army Staff (DAS) is designated as the next superior authority when there is no next superior authority reasonably available. The DAS may delegate the authority to appoint an administrative investigation or board of officers to the commander of an Army Command, Army Service Component Command, or Direct Reporting Unit. No further delegation is authorized.

(2)           For investigations of the death(s) of deployed U.S. forces from what is believed to be hostile fire, the GCMCAor general/flag officer commander may delegate appointing/approval authority, in writing, to a SPCMCA or a subordinate general/flag officer. This authority may not be further delegated.

(3)           If evidence is discovered during a hostile fire investigation that indicates that the death(s) may have resultedfrom friendly fire, the IO will immediately suspend the investigation and inform the appointing authority and legal advisor. The appointing authority, in turn, will immediately notify the combatant commander, or his or her delegee, as appropriate, who has the authority to appoint an investigation into the friendly fire incident. Any evidence from the hostile fire investigation may be provided to the IO or board conducting the friendly fire investigation or board. Friendly fire incidents are also governed by the provisions of DODI 6055.07, AR 600–8–1, and DA Pam 385–40.

d.       Delegation of authority. Appointing authorities who are general/flag officers may delegate to members of their

staff the authority to select board members.

e.       Multiple appointing authorities. When more than one appointing authority has an interest in a matter requiring investigation, a single investigation or board will be conducted whenever practicable. In case of doubt or disagreement as to who will appoint the investigation or board, the first common superior of all organizations concerned will resolve the issue.

f.        Conflict of interest; bias. An individual who is reasonably likely to become a witness to an inquiry, investigation, or board may not appoint an inquiry, investigation, or board. Similarly, an individual who has an actual or perceived bias for or against a potential subject of the investigation, or an actual or perceived conflict of interest in the outcome of the investigation, should not appoint an inquiry, investigation, or board. Instead, the potential appointing authority shall forward the matter to the next superior commander or appointing authority, who will determine whether to investigate the matter further and, if so, which proceeding (inquiry, investigation, or board) to use.

(1)                      A potential appointing authority may have an actual or perceived bias for or against a potential subject of aninvestigation if the potential subject of the investigation is on the potential appointing authority’s principal, special, or personal staff.

(2)                      A potential appointing authority may have an actual or perceived conflict of interest in the outcome of aninvestigation if the investigation will examine the potential appointing authority’s policies or decisions. Identifying an actual or perceived conflict of interest, however, does not necessarily mean that the potential appointing authority is a subject of the investigation.

2–2. Method of appointment

Administrative investigations and boards of officers will be appointed in writing. When necessary to ensure that facts are properly ascertained, documented, and preserved, investigations and boards may be appointed orally and later confirmed in writing. The written appointment will be in the form of a memorandum of appointment (see figures 2–1 through 2–5). The appointment will state the purpose and scope of the investigation or board, describe the nature of the findings and recommendations required, and include any special instructions (for example, time limits for the completion of the investigation or requirements for a verbatim record or designation of respondents). If the appointment is made under a specific regulation or directive, that regulation or directive will be cited. If only the procedures of this regulation are intended to apply, the appointment will cite this regulation and specify whether it is to be an administrative investigation or a board of officers (see chaps 5 and 7). The appointing authority may amend the memorandum of appointment to modify the scope of the proceedings or provide additional guidance to the IO or board.

Figure 2–1. Sample memorandum to appoint a board of officers

Figure 2–2. Sample memorandum referring to a designated respondent

Figure 2–3. sample memorandum appointing a single officer as a board, figure 2–4. sample memorandum appointing an investigating officer, figure 2–5. sample memorandum appointing a preliminary inquiry/administrative investigation, figure 2–5. sample memorandum appointing a preliminary inquiry/administrative investigation (continued).

2–3. Who may be appointed

a.                         IOs and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment and temperament. IOs and board members must be impartial, unbiased, objective, and have the ability to complete the investigation in a timely manner. If an appointing authority determines that a person with the required experience and expertise is not available within his or her organization, he or she may request assistance from a superior in his or her chain of command or supervision, or coordinate with a counterpart to obtain an IO or board member with the required education, training, experience, and expertise to conduct the investigation or board.

b.                         Except as provided in subparagraph e, below, only commissioned officers, warrant officers, and Department of the Army civilian employees permanently assigned to a position graded as GS–11 or above (or their equivalent, such as a civilian faculty member of a comparable grade appointed under the provisions of Title 10, United States Code) may be appointed as IOs. Non-commissioned officers in the grade of E–7 or above may be appointed as IOs when the appointing authority determines that military exigencies exist and no commissioned officers, warrant officers, or qualified Department of the Army civilian employees are readily available. Voting members of boards may be commissioned officers, warrant officers, non-commissioned officers in the rank of E–7 or above, or Department of the Army civilian employees permanently assigned to a position graded as GS–11 or above (or their equivalent).

c.                         Assistant IOs may be appointed, as needed, to provide special technical knowledge, or to assist the appointed IO

with conducting interviews and performing other investigative tasks.

d.                         Recorders and persons with special technical knowledge may be appointed to boards in a nonvoting capacity (see

para 7–1 c ). Legal advisors will be appointed to boards in a nonvoting capacity.

e.                         For the investigation of serious incidents, as defined in subparagraph 2–1 c , above, only field grade commissioned officers and above, or Department of the Army civilian employees in the grade of GS–12 and above will be appointed as an IO or board member.

f. In all cases, an IO or voting member of a board will be senior in rank to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines this to be impracticable because of military exigencies. Inconvenience in obtaining an IO or the unavailability of senior persons within the appointing authority’s organization are not military exigencies that would justify the above exception. Assistant IOs who are junior to the subject of the investigation in rank or grade (or their civilian equivalent) may be appointed to an investigation team. Assistant IOs, however, should not normally interview a more senior subject of the investigation without the senior IO being present during the interview.

(1)                      The IO or board president will, subject to the approval of the appointing authority, determine the relativeseniority of military and civilian personnel. Actual superior-and-subordinate relationships, relative duty requirements, time in grade, and other sources may be used as guidance. Except where a material adverse effect on an individual’s substantial rights results, the appointing authority’s determination of seniority shall be final.

(2)                      An IO or voting member of a board who, during the proceedings, discovers that the completion of theinvestigation or board requires examining the conduct or performance of duty of, or may result in findings or recommendations adverse to, a person senior to him or her, will report this fact as soon as possible to the board president or the appointing authority. The appointing authority will then appoint another person, senior to the person affected, who will either replace the IO or member, or conduct a separate inquiry into the matters pertaining to that person. When necessary, the new IO or board may be furnished any evidence properly considered by the previous IO or board. The appointing authority may direct the previous IO to assist the newly appointed IO for the duration of the investigation.

(3)                      If the appointing authority determines that military exigencies make these alternatives impracticable, the appointing authority may direct the IO or member to continue. This direction will be written and will be included as an enclosure to the report of proceedings. If the appointing authority determines that proceeding with the same IO or member will result in specific prejudice, the appointing authority will request assistance in obtaining a more senior IO from superiors in the chain-of-command or supervision. If the appointing authority does not become aware of the problem until the results of the investigation or board are presented for review and action, the case will be returned for new or supplemental investigation only where specific prejudice is found to exist.

g. The appointing authority must comply with other specific regulatory requirements that IOs or board members be

military officers, be professionally certified, or possess an appropriate security clearance.

2–4. Administrative support

The appointing authority will arrange necessary facilities, clerical assistance, and other administrative support for IOs and boards. If not required by another regulation or directive, only the GCMCA (including higher headquarters’ GCMCAs), in his or her sole discretion, may direct a verbatim transcript of the proceedings. The IO, however, may coordinate with his or her legal advisor and request additional legal assets to produce a verbatim transcript. In this case, the GCMCA’s SJA may voluntarily provide a verbatim transcript. Before directing a verbatim transcript, the GCMCA will consult his or her servicing SJA or legal advisor. A contract reporter may be employed for a board, only if the appointing authority approves, and only if a military or DA civilian court reporter is not reasonably available. The servicing SJA or legal advisor will determine the availability of a military or DA civilian employee reporter. In serious, complex, and/or high-profile cases, the appointing authority may appoint a military or DA civilian paralegal to the investigation team to assist with administrative tasks (for example, summarizing evidence) after consulting his or her servicing SJA or legal advisor.

2–5. Actions of the appointing authority after appointing an investigating officer

a.              Requests for extensions. The appointing authority should ensure timely completion of the investigation. Extensions, however, are often necessary due to the unavailability of evidence or witnesses. In certain case, it might be appropriate for an IO to make preliminary findings, subject to additional evidence. For example, investigations involving fatalities where all of the evidence points to a particular conclusion, but the official toxicology and autopsy reports are not complete.

b.              Resourcing. The appointing authority should provide adequate authority and resources to the IO or board to conduct the investigation. A memorandum from the appointing authority, expressing the IO’s or board president’s authority, is often helpful in this regard. If the IO or board needs resources that are outside the span of control of the appointing authority, the appointing authority should consider whether a higher commander should appoint the investigation.

Section II Legal Support

2–6. Legal support to investigations and boards

Appropriate support by the servicing SJA or legal advisor is instrumental to the investigation or board process. Involvement by legal advisors is relevant in three distinct phases, and will often involve more than one legal advisor. The three phases of legal involvement are pre-appointment of the investigation or board; conduct of the investigation or board; and legal review of the completed investigation or board.

a.              Pre-appointment. As discussed in chapter 2, section I, it is imperative that appointing authorities receive legal advice when deciding whether to conduct a preliminary inquiry or appoint an investigation or board to determine facts or gather evidence. The appointing authority’s legal advisor will provide advice regarding the correct procedure; the regulatory requirements and selection process for IO(s) or board members; the scope of the appointment memorandum; and any other preparatory guidance relevant to appointment, including the impact and coordination requirements pertaining to multiple investigations into the same matter.

b.              Conduct of the investigation or board. Each investigation or board must have a designated legal advisor. Such designation will be made in consultation with the servicing SJA or legal advisor. The legal advisor should be designated in the appointment memorandum. The legal advisor provides advice and addresses any questions or concerns the IO or board raises. In particular, the legal advisor helps the IO or board develop an investigative plan; identify necessary witnesses and develop appropriate questions; protect the rights of respondents and subjects; ensure the requirements established in the appointment memorandum are satisfied; ensure the evidence supports the findings; and ensure that the recommendations are logically related to the findings. Although not required for a preliminary inquiry, a legal advisor may be designated for such inquiries.

c.              Legal review. A military or DA civilian attorney will conduct a legal review of completed investigations and

boards, in accordance with paragraph 2–7, below, before the approval authority takes action.

2–7. Legal review

a.              The approval authority will obtain a legal review of all investigations and boards directed under this regulation

from his or her servicing SJA or legal advisor.

b.              The legal review should only be completed after a comprehensive review of the report of investigation by the investigating officer’s legal advisor, and it should ensure that the investigation does not raise questions that it leaves unanswered; anticipates future uses of the investigation; resolves internal inconsistencies; makes appropriate findings; and makes recommendations that are feasible, acceptable, and suitable. Specifically, the legal advisor performing the legal review will determine—

(1)           Whether the proceedings complied with legal requirements, including the requirements established in theappointing memorandum;

(2)           Whether there are errors and, if so, whether the errors are substantial or harmless; the effect, if any, that theerrors had on the proceedings; and, what action, if any, is recommended to remediate the errors (see para 3–20);

(3)           Whether the findings of the investigation or board, or those substituted or added by the approval authority, aresupported by a greater weight of the evidence than supports a contrary conclusion (see para 3–10 b ); and

(4)           Whether the recommendations are consistent with the findings.

c.                  The legal review should also advise the approval authority whether the evidence supports any additional relevant

findings, or suggests that additional investigation is appropriate to address additional concerns.

d.                  The legal review will be conducted in writing and included as part of the investigative or board report. The legal review should be appropriately marked as attorney work product and/or client advice, which is legally privileged and exempt from release under FOIA.

e.                  Whenever possible, the legal advisor designated to support the investigation or board will not conduct the legal

Section III Approval Authority

2–8. Action of the approval authority

a. Approval authority. The authority taking action on an administrative investigation or board is the approval authority. Generally, the appointing authority will also act as the approval authority; however, this is not always the case. For example, the appointing authority may not act as the approval authority if the appointing authority retires, changes duty station or assignment prior to the investigation being completed, or becomes a witness in the investigation; if a higher commander withholds approval authority from a subordinate appointing authority; or if the appointing authority did not have the requisite authority to appoint the investigation or board. The following individuals may act as the approval authority:

(1)                      The appointing authority’s successor if he or she meets the requirements of paragraph 2–1, above;

(2)                      The appointing authority’s next higher commander or supervisor if he or she meets the requirements ofparagraph 2–1, above; or

(3)                      The Director of the Army Staff for appointing authorities serving on the Army Staff or the Department of theArmy Secretariat.

b. Action by the approval authority.

(1)                      Upon receipt of a completed investigation or board containing the legal review discussed in paragraph 2–7, theapproval authority will conduct a final review of the IO’s or board’s findings and recommendations and the legal review. The approval authority will notify the IO or board president if further action, such as taking further evidence or making additional findings or recommendations, is required. Such additional proceedings will be conducted under the provisions of the original appointing memorandum, including any modifications, and will be separately authenticated per paragraph 3–15, below.

(2)                      If applicable, the approval authority will ensure that the provisions of paragraph 1–11, have been satisfied.

(3)                      Unless otherwise provided by another regulation or directive, the approval authority is neither bound nor limitedby the findings or recommendations of an IO or board.

(a)                      The approval authority may approve, disapprove, modify, or add to the findings and recommendations, consistent with the evidence included in the report of proceedings. The approval authority may also concur in or disagree with recommendations that cannot be implemented at his or her level. The approval authority may take action different than that recommended with regard to a respondent or other individual, unless the specific regulation or directive under which the investigation or board was appointed provides otherwise. The approval authority will complete the applicable portion of the DA Form 1574–1 (Report of Proceedings by Investigating Officer) or DA Form 1574–2 (Report of Proceedings by Board of Officers), annotating his or her approval, disapproval, or modification of the findings and recommendations, and making comments regarding follow-on action, if warranted.

(b)                      The approval authority may consider any relevant information in making a decision to take adverse action against an individual, even information that the IO or board did not consider. The approval authority will attach that information to the report of investigation, if available.

(c)                      The approval authority should follow through with the recommendations that he or she approves and maintain a record of the action taken. When the approval authority concurs with recommendations that cannot be implemented at his or her level, he or she should forward the findings and recommendations to the appropriate authority with his or her recommended action.

c. Referral of adverse information.

(1)                      When an investigation includes a finding containing adverse information (as defined in the glossary) regarding afield grade officer, the portion of the report of investigation and supporting evidence pertaining to the adverse information must be referred to that officer in accordance with paragraph 5–4.

(2)                      For those findings that are adverse to a field grade officer, which the approval authority intends to approve, theapproval authority will give the officer notice and an opportunity to respond before taking final action. The servicing SJA or legal advisor will ensure that the referral is properly made (see subpara (5), below).

(3)                      A redacted copy of the investigation will be referred to the officer by memorandum (see fig 2–6). The referralmust notify the officer of the general nature of the adverse information. In addition, the referral must notify the officer that:

(a)           The officer has the right to remain silent, and that anything the officer may say or submit in response to the adverse information may be used against him or her in ongoing or subsequent adverse administrative or UCMJ proceedings;

(b)           Adverse information from an officially documented investigation or inquiry must be furnished to a selection board for promotion to a grade above colonel in accordance with Section 615, Title 10, United States Code, and may be provided to other selection boards;

(c)           The approval authority will consider any response the officer provides and may use it to approve, modify, or disapprove any relevant finding(s) or recommendation(s), or as evidence in current or future actions resulting from the investigation.

Figure 2–6. A sample memorandum to accompany a copy of an investigation with an adverse finding or recommendation

(4)       The officer will be granted at least 10 business days to respond to the referral. Reasonable requests for anextension of this deadline should be granted for good cause to ensure that the officer has an adequate opportunity to gather evidence and prepare a response.

(5)       Action on receipt of rebuttal.

(a) Upon receipt of any material in response to the adverse information, the approval authority’s servicing SJA or legal advisor will package the materials as an exhibit to the report of proceedings and provide them to the approval authority for his or her consideration. If the subject officer elects not to respond, or fails to do so within the period authorized, the servicing SJA or legal advisor will attach a memorandum stating that the officer elected not to respond or did not respond within the period authorized, along with the referral documents, to the report of proceedings (see fig 2–7).

Figure 2–7. A sample memorandum to certify that an officer was given the opportunity to respond

(b) When considering the officer’s response and whether to substantiate any finding as adverse, the approval authority should consider only evidence that is relevant to the matter under investigation. For instance, evidence of the officer’s character or past performance is relevant only to the extent that it reflects on the officer’s integrity if his or her statements are contrary to the statements of others.

(6) Adverse information may not result solely from a finding in a preliminary inquiry. If the preliminary inquiry relies on an independent report from an investigative body, then the requirement to refer the adverse information in accordance with paragraph 5–4 applies. If, however, the preliminary finding, as a result of the gathering of independent evidence, becomes the source of the adverse information, then the appropriate authority must appoint an administrative investigation (see paras 4–3 and 5–4.)

2–9. Request for reconsideration

a. Right to request reconsideration. A subject, suspect, or respondent (such as an officer against whom an adverse finding was made) may request reconsideration of the findings of an inquiry or investigation upon the discovery of new evidence, mistake of law, mistake of fact, or administrative error. New evidence is that information that was not considered during the course of the initial investigation and that was not reasonably available for consideration. New evidence neither includes character letters nor information that, while not considered at the time of the original investigation, the subject of the investigation could have provided during the course of the investigation. b. Limitations.

(1)                      A request for reconsideration is not permitted when the investigation resulted in administrative, nonjudicial, orjudicial action, or any action having its own due process procedural safeguards.

(2)                      Requests for reconsideration must be submitted to the approval authority within 1 year of the approvalauthority’s approval of the investigation. The approval authority may entertain a request outside of 1 year for good cause. While not exhaustive, good cause is the discovery of new relevant evidence beyond the 1-year time limitation, which the requester could not have discovered through reasonable diligence, or the requester was unable to submit, because duty unreasonably interfered with his or her opportunity to submit a request. The approval authority’s determination of good cause is final.

(3)                      Standing. A request for reconsideration will only be considered if the material presented impacts a findingconcerning the requester.

c. Procedure.

(1) All requests for reconsideration must be submitted through the Office of the Staff Judge Advocate/legal advisor responsible for advising the approval authority at the time he or she approved the original investigation. If the approval authority has changed assignments or duty location, the SJA or legal advisor receiving the request, will present it to the approval authority’s successor who, for purposes of the request for reconsideration, will be the approval authority. (2) Upon receipt of a request for reconsideration, the approval authority will determine whether the material presented would impact any finding concerning the requester and, if so, whether the impact is such that the finding is no longer supportable by a preponderance of the evidence.

(3)                      If, after considering a request for reconsideration, the approval authority determines that the finding is no longersupportable, the approval authority will modify the approved findings and update any database or record where the original findings were sent.

(4)                      Whether or not the approval authority takes favorable action, he or she will ensure the requester is informed ofthe action taken on the request. The failure to inform, however, does not create a substantive right that impacts the request or the original findings.

Chapter 3 General Guidance for Investigating Officers and Boards

Section I Conduct of the Investigation

3–1. Preliminary responsibilities

Before beginning an investigation, an IO or board president shall review all written materials provided by the appointing authority and consult with the designated legal advisor to obtain legal guidance.

a.              Requirement. Unless required by the specific regulation or directive under which appointed, IOs or board members need not be sworn. Reporters, interpreters, and witnesses appearing before a board will be sworn. The memorandum of appointment may require the swearing of witnesses or board members.

b.              Administering oaths. An IO (or assistant IO), recorder (or assistant recorder), or board member is authorized to administer oaths in the performance of such duties under Article 136, UCMJ (for military personnel administering oaths) and Section 303, Title 5, United States Code (5 USC 303) (for civilian personnel administering oaths). See appendix D for the format for oaths during a board procedure.

3–3. Challenges

An IO using investigation procedures is not subject to challenge. An IO or board member under board procedures, where a respondent is designated, is subject to challenge as provided in paragraph 7–7, below. Any person who is aware of facts indicating a lack of impartiality or other disqualification on the part of an IO or board member will present the facts to the appointing authority.

3–4. Representation

a.              Counsel. Only a respondent in a board is entitled to be represented by counsel (see para 7–6). A subject of an investigation is not automatically entitled to representation by counsel, but the right to counsel could arise if, during the course of the investigation, the subject is suspected of committing an offense. Other interested parties in a board may obtain counsel, at no expense to the Government, who may attend, but not participate in proceedings of the board that are open to the public. The proceedings will not be unduly interrupted to allow the person to consult with counsel.

b.              Collective bargaining unit. When a civilian employee is a member of a bargaining unit, the exclusive representative of the bargaining unit shall be given the opportunity to be present when an employee in the bargaining unit reasonably believes that the examination may result in disciplinary actions against the employee and the employee requests representation (see 5 USC 7114(a)(2)(B)).

3–5. Decisions

An IO or board arrives at findings and recommendations as provided in section II of this chapter. A board decides challenges by a respondent as provided in paragraph 7–7. The IO or board president decides administrative matters, such as time of sessions, uniform, and recess. In a board, the legal advisor decides evidentiary and procedural matters, such as motions and acceptance of evidence (see para 7–1 d ).

3–6. Presence of the public and recording of proceedings

a.              The public. Proceedings of an investigation are not generally open to the public. If a question arises about whether the proceedings should be open, the determination will be made based on the circumstances of the case. It may be appropriate to open proceedings to the public, even when there is no respondent, if the subject matter is of substantial public interest. It may be appropriate to exclude the public from at least some of the proceedings, even though there is a respondent, if the subject matter is classified. In any case, the appointing authority may specify whether the proceedings will be open or closed. If the appointing authority does not specify, the IO or board president decides. If there is a respondent, the legal advisor will be consulted before deciding to exclude the public from any portion of the proceedings. Any proceedings that are open to the public will also be open to representatives of the news media.

b.              Recording. Neither the public nor the news media will record, photograph, broadcast, or televise board proceed-

ings. A respondent may record proceedings only with the prior approval of the appointing authority.

3–7. Rules of evidence and proof of facts

a.    General. Proceedings under this regulation are administrative, not judicial. Therefore, IOs and boards are not bound by the rules of evidence for courts-martial or court proceedings generally. Subject only to the provisions of subparagraph d, below, anything that a reasonable person would consider relevant and material to an issue may be accepted as evidence. For example, medical records, counseling statements, police reports, and other records may be considered, regardless of whether the preparer of the record is available to give a statement or testify in person. All evidence will be given the weight warranted by the circumstances. (See para 3–5 regarding who decides whether to accept evidence.)

b.    Access to documents, records, evidence, and other data.

(1)                      No officer, Department of the Army employee, or Service member may deny IOs and boards access todocuments, records, or evidentiary materials needed to discharge their duties, to include data stored in official Department of the Army repositories, except as permitted by law and applicable regulations. In accordance with DOD 6025.18–R and AR 40–66, and except as noted below regarding Medical Quality Assurance Records, an IO or board is authorized access to medical records without the consent of the patient.

(2)                      Only the minimum necessary information will be released to the IO or board, and completion of request formsmay be required prior to release of records. Examples of regulations that may limit IO or board access to documents, records, and other data are AR 385–10, which states that only non-privileged information acquired during a safety investigation may be shared with a legal accident investigation; AR 20–1, which provides guidance on the release and use of Inspector General records; and AR 40–68, which provides that Medical Quality Assurance Records are privileged. Medical Quality Assurance Records will not be provided to an IO or board, unless authorized by AR 40–68, appendix B.

(3)                      An example of a regulation that provides guidance on the release of official records or data to IOs is AR 25–2,which provides that a system or network administrator may access DA e-mail data in response to a request from an AR 15–6 IO. IOs will consult with their legal advisor prior to requesting personal e-mails from Department of Army or other accounts.

c.        Official notice. Some facts are of such common knowledge that they need no specific evidence to prove them (for example, general facts and laws of nature, general facts of history, the location of major elements of the Army, and the organization of the Department of Defense and its components), including matters of which judicial notice may be taken. (See Military Rules of Evidence (MRE) 201, sec II, part III, Manual for Courts-Martial (MCM, United States,

d.       Limitations. Although administrative proceedings governed by this regulation generally are not subject to exclu-

sionary or other evidentiary rules precluding the use of evidence, the following limitations do apply:

(1)                      Relevance. Evidence must be relevant. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (See MRE 401, sec II, part III, MCM, United States, 2012.) “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (See MRE 403, sec II, part III, MCM, United States, 2012.) Witnesses will not be asked whether they believe a particular individual, because it is not relevant. Additionally, relevant evidence is subject to the other limitations, listed below.

(2)                      Privileged communications. MRE, section V, part III, MCM, protects privileged communications with lawyers (MRE 502), clergy (MRE 503), spouses (MRE 504), psychotherapists (MRE 513), and victim advocates (MRE 514). Present or former inspector general personnel will not be required to testify or provide evidence regarding information that they obtained while acting as inspectors general. They also will not be required to disclose the contents of inspector general reports of investigation, inspections, inspector general action requests, or other memoranda, except as approved by the appropriate (an official authorized to approve release of an inspector general investigation or inspection) or higher authority (see AR 20–1).

(3)                      Investigations related to sex offenses cases . With limited exceptions, evidence of an alleged victim’s sexual behavior or sexual predisposition is not relevant (see MRE 412, section IV, part III, MCM). Therefore, evidence of an alleged victim’s sexual behavior or sexual predisposition will not be considered, unless the legal advisor determines that one of the exceptions in MRE 412 applies. A party desiring to enter such evidence during board proceedings shall provide written notice to the legal advisor, the opposing party, and the alleged victim or the alleged victim’s guardian or counsel. Such notice shall describe the evidence and state the purpose for which it is offered. A person may not attempt to enter such evidence until the legal advisor has informed the board president and the parties of the determination regarding admissibility. The board president is encouraged to set deadlines for the receipt of such notice to avoid delays in the proceedings.

(4)                      Polygraph tests. No evidence of the results of, or the taking or refusal to take, a polygraph (lie detector) test will be considered without the consent of the person to whom the test was administered. In a board proceeding with a respondent, the agreement of the recorder and of any respondent affected is required before such evidence can be accepted.

(5)                      “Off the record” statements. Findings and recommendations of the IO or board must be supported by evidence contained in the report. Accordingly, witnesses will not make statements “off the record” to the IO or board members. Under the administrative investigation procedure, such statements will not be considered for their substance, but only as help in finding additional evidence.

(6)                      Statements regarding disease or injury. The IO will comply with the provisions of AR 600–8–4 regarding warning a member of the Armed Forces that he or she need not make any statement related to the origin, incurrence, or aggravation of his or her injury. (See 10 USC 1219.)

(7)                      Ordering witnesses to testify.

(a)           No military witnesses or military respondents will be compelled to incriminate themselves, to answer any question the answer to which could incriminate them, or to make a statement or produce evidence that is not material to the issues being investigated or that might tend to degrade them (see Article 31, UCMJ). An answer tends to incriminate a person if it would make it appear that the person is guilty of a crime.

(b)           No witnesses or respondents not subject to the UCMJ will be required to make a statement or produce evidence that would deprive them of their rights against self-incrimination under the Fifth Amendment of the U.S. Constitution.

(c)           A person who refuses to provide information under subparagraphs (a) or (b) , above, must specifically state that the refusal is based on the protection afforded by Article 31, UCMJ, or the Fifth Amendment. The legal advisor will decide whether the witness may be ordered to answer if the reason for refusal is not based on the protection afforded by Article 31, UCMJ, or the Fifth Amendment.

(d)           A Soldier who is suspected of an offense under the UCMJ will be advised of his or her rights under Article 31, UCMJ, before being asked any questions concerning the suspected offense. The Soldier, whether a witness or respondent, will be given a reasonable amount of time to consult an attorney, if requested, before answering any such questions. No adverse inference will be drawn against witnesses or respondents who invoke their rights under Article 31, UCMJ, or the Fifth Amendment. The IO or board should use DA Form 3881 (Rights Warning Procedure/Waiver Certificate) to explain the rights, and to memorialize the explanation and the suspect’s decision.

(e)           The right to invoke Article 31, UCMJ, or the Fifth Amendment, is personal. No one may assert the right for another person, and no one may assert it to protect anyone other than himself or herself.

(f)            In certain cases, the appropriate authority may provide a witness or respondent a grant of testimonial immunity and require testimony notwithstanding Article 31, UCMJ, or the Fifth Amendment. Grants of immunity must be made under the provisions of AR 27–10 and any local supplements to AR 27–10.

(8)           Involuntary admissions. A confession or admission obtained by unlawful coercion or inducement will not be accepted as evidence. IOs or boards should consult with their legal advisor, who will determine whether a confession or admission was obtained through unlawful coercion or inducement. The fact that a respondent was not advised of his or her rights under Article 31, UCMJ, or the Fifth Amendment, does not, by itself, prevent acceptance of a confession or admission as evidence.

(9)           Bad faith unlawful searches. If members of the Armed Forces acting in their official capacity (such as military police acting in furtherance of their official duties) violate an individual’s Fourth Amendment right against unreasonable searches and seizures, the IO or board may not accept or consider evidence obtained as a result of that violation. Such evidence is acceptable only if the legal advisor reasonably determines that the evidence would inevitably have been discovered. In all other cases, the IO or board may accept or consider relevant evidence obtained as a result of any search or inspection, even if it has been or would be ruled inadmissible in a judicial criminal proceeding.

(10)        Adverse finding against a field grade officer . If the IO or board president contemplates making an adverse finding against a field grade officer, the IO or board president must afford the officer an opportunity to be interviewed.

(11)        Recordings. IOs must consult with legal advisors when in receipt of recorded conversations, as use depends on the statutes and policies in effect at the locations where the recording occurred.

(12)        Electronic communications. IOs must consult with legal advisors to ensure evidence of electronic communications does not violate the Electronic Communications Privacy Act (18 USC 2510, et seq) or fraud and related activity in connection with computers (18 USC 1030).

3–8. Witnesses

a. General.

(1)           IOs and boards generally do not have authority to subpoena witnesses to appear and/or testify. A commander orsupervisor may, however, order military personnel and Federal civilian employees, over whom they exercise command or supervisory authority, to appear and testify. IOs and board presidents should consult their legal advisor regarding interviewing Federal civilian employees and Reserve and National Guard military personnel who are not in an Article 2, UCMJ, status. Other civilians, to include contractor employees, non-DOD affiliated civilians, retired military personnel, and dependents of active duty military, who agree to appear, may be issued invitational travel authorizations in certain cases (see Joint Travel Regulations (JTR), Appendix E.) The IO or board can invite civilians who are not Federal employees to testify, but the IO or board cannot compel them to testify. The IO or board president normally will inform witnesses of the nature of the investigation or board before taking their statements or testimony. The IO or board president, assisted by the recorder and the legal advisor, will protect every witness from improper questions, unnecessarily harsh or insulting treatment, and unnecessary inquiry into their private affairs (see para 3–2, regarding placing witnesses under oath).

(2)           During an investigation or board under this regulation, a civilian employee witness who is a bargaining unitmember may request the presence of the bargaining unit exclusive representative during the interview if the employee reasonably believes that the inquiry could lead to disciplinary action against him or her. Unless required by the collective bargaining agreement, there is no requirement for the IO or board to advise the employee of this right. If the employee makes such a request, the IO or board will allow a reasonable amount of time to enable the representative’s presence. The IO or board president will consult the servicing civilian personnel office and SJA or legal advisor before denying such a request.

b.                     Attendance as spectators. Witnesses, other than respondents, normally will not be present at the investigation or board proceedings, except when they are testifying. In some cases, however, it is necessary to allow expert witnesses to hear evidence presented by other witnesses, so that they may be sufficiently advised of the evidence to give informed testimony as to the technical aspects of the case. In such instances, the report of proceedings will indicate that the expert witnesses were present during the testimony of the other witnesses.

c.                      Taking testimony or statements.

(1)                      Witness statements normally will be elicited by questions and answers when using the board procedure, or if theappointing authority has directed a verbatim record (see para 2–2, above). Narrative testimony may be used when appropriate.

(2)                      When using the investigation procedure, the IO may obtain statements of witnesses at informal sessions in anymanner the IO deems most appropriate to elicit and memorialize evidence. The IO may use a tape recorder to facilitate later preparation of, but will inform the witness prior to using one. The IO will assist the witness in preparing a written statement to avoid the inclusion of irrelevant material or the omission of important facts and circumstances. Care must be taken, however, to ensure that the statement is phrased in the words of the witness. The IO must scrupulously avoid coaching the witness or suggesting the existence or nonexistence of material facts. The IO should ask the witness to read, correct, and sign the final statement whenever possible.

(3)                      Unless otherwise directed by the appointing authority, the IO or board president has discretion to determinewhether the witness swears to the statement. If the statement is to be sworn, the IO or board should use a DA Form 2823 (Sworn Statement), unless a summarized or verbatim record of the statement is prepared. If the witness is unavailable or refuses to sign, the person who took the statement will record, over his or her own signature, the reasons the witness did not sign, and will certify that the statement is an accurate summary of what the witness said.

(4)                      To save time and resources, witnesses may be asked to confirm written sworn or unsworn statements that havefirst been made exhibits during investigations and boards. The witnesses remain subject to questioning on the substance of such statements.

(5)                      Although the direct testimony of witnesses is preferable, the IO or board may use any previous statements of awitness as evidence on factual issues, whether or not the following conditions exist:

(a)    The proceedings are an investigation or board.

(b)    The witness is determined to be unavailable.

(c)     The witness testifies.

(d)    Prior statements were sworn or unsworn.

(e)     Prior statements were oral or written.

(f)      Prior statements were taken during the course of the investigation.

d. Discussion of evidence. An IO or board may direct witnesses who are subject to Army authority, and request other witnesses, not to discuss their statements or testimony with other witnesses, or with persons who have no official interest in the proceedings until the investigation is complete. This precaution is appropriate to eliminate possible influence on the testimony of witnesses still to be heard. Normally, witnesses may not be precluded from discussing any relevant matter with the recorder, a respondent, or counsel for a respondent. e. Privacy Act statements.

(1)                      When required. A DA Form 7694 (Privacy Statement) will be provided to a witness if the report of proceedings will be filed in a system of records from which it can be retrieved by reference to the name or other personal identifier of that witness. Unless otherwise informed by the appointing authority, an IO or board may presume that the report of proceedings will be retrievable by the name of each person designated as a respondent, but that the report will not be retrievable by the name of any other witness. The DA Form 2823 (Sworn Statement) contains a Privacy Act statement at the top of the form. An additional Privacy Act statement is generally not required if this form is used. If any question arises as to the need for a Privacy Act statement, the IO or board will consult the legal advisor. If the investigative plan contemplates the acquisition or review of medical records of any person, the IO or board president must consider the applicability of the Privacy Act and 42 USC 300gg et seq (The Health Insurance Portability and Accountability Act) (HIPAA), and consult his or her legal advisor.

(2)                      Method of providing statement. Appendix B provides guidance for preparing Privacy Act statements. The statement may be written or oral, but it must be provided before taking the witness’s testimony or statement. A written statement will be attached to the report of proceedings as an enclosure. An oral statement will be noted in the report as either a part of a verbatim transcript, or as an enclosure in the form of a certificate by the officer who provided the Privacy Act statement. Figure 2–6 provides a sample Privacy Act statement.

(3)                      Copy of the statement. Anyone to whom this requirement applies is entitled to a copy of the Privacy Act statement in a form suitable for retention. Providing a respondent a copy of the part of the report of proceedings (see para 7–12) that includes the statement satisfies this requirement. Any other witness who is provided a Privacy Act statement will, on request, be furnished a copy of the statement in a form suitable for retention.

(4)                      Personally identifiable information and the Privacy Act . The IO or board president must ensure that personally identifiable information is protected from inappropriate release. Only the minimum amount of personal information necessary to investigate the matter concerned should be included in the report of investigation. A Privacy Act statement must be used if an individual is asked to provide his or her Social Security number voluntarily for purposes of an investigation. Social Security numbers should not be obtained, except when it is essential to the conduct of the investigation. The IO or board president should consult his or her legal advisor to ensure that the minimum amount of personal information is included in a report of investigation. Title 32, CFR, Part 505, provides guidance regarding protected personal information and the Privacy Act.

3–9. Communications with the appointing authority

If, in the course of the investigation or board, something occurs that could cause the appointing authority to consider expanding, restricting, or terminating the proceedings, altering the composition of the fact-finding body, or otherwise modifying any instruction in the original appointment, the IO or board president will report this situation to the appointing authority with recommendations. Such requests should be made, in writing, and kept as part of the report of proceedings.

Section II Findings and Recommendations

3–10. Findings

a.              General. A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record. It is directly established by evidence in the record, or it is a conclusion of fact by the IO or board supportable by the evidence in the record. Negative findings (for example, that the evidence does not establish a fact) may be appropriate. The number and nature of the findings required depend on the purpose of the investigation or board, and on the instructions of the appointing authority. The IO or board normally will not exceed the scope of the investigation authorized by the appointing authority without approval (see para 3–9), but should address issues encountered during the investigation that are related to policies, procedures, resources, or leadership, if the IO or board determines that those issues are relevant to the matters under investigation (see para 1–7). It might be appropriate for the IO or board to recommend additional inquiry into issues that are outside the scope of the investigation.

b.              Standard of proof. Unless another regulation or directive, or an instruction of the appointing authority, establishes a different standard, the findings of investigations and boards governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion (such as, by a preponderance of the evidence). The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating factors such as the witness’s demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.

c.              Form. Findings will clearly state the relevant factual conclusions that the evidence establishes. When the evidence in the record may reasonably support alternative findings, the IO or board should state why the finding they made is more credible and probable than the other reasonable conclusion(s). If findings are required on only one subject, they normally will be stated in chronological order. If findings are required on several distinct subjects, they normally will be stated separately for each subject and chronologically within each one. The IO or board must cite the evidence (for example, witness statements) that supports each finding. If the investigation or board is authorized by a regulation or directive that establishes specific requirements for findings, those requirements must be satisfied.

3–11. Recommendations

a.              General. The nature and extent of the recommendations required depends on the purpose of the investigation or board, and on the appointing authority’s instructions. Each recommendation, including negative ones (for example, that no further action be taken) must be consistent with and logically based on the findings. IOs and boards will make their recommendations according to their understanding of the rules, regulations, policies, and customs of the service, guided by their concept of fairness to the Government and the individuals involved.

b.              Recommendation criteria. Recommendations must be clearly written and should be feasible, acceptable, and

(1)           Feasible. A recommendation is feasible if it is capable of being implemented.

(2)           Acceptable. The recommendation must be executable. That is, it must be legal and fall within acceptable levels of risk.

(3)           Suitable. A recommendation is suitable if it solves the identified problem or initiates a process to further assess and identify a solution.

c. Application of the criteria. A recommendation may not be feasible because the organization or unit lacks the resources to implement it. A feasible recommendation may be unacceptable because implementing it may divert personnel and degrade mission readiness. A feasible and acceptable recommendation may not be suitable because it fails to solve the identified issue. Recommendations that do not meet these criteria may result in a negative recommendation (for example, that no further action be taken), be discarded entirely, or be referred through appropriate channels to another organization.

Section III Report of Proceedings

3–12. Format

a.                         Investigations. A DA Form 1574–1 will be used, but the IO may make his or her findings and recommendations in an attached memorandum (see fig 3–1). The DA Form 1574–1 and any enclosures and exhibits, will constitute the report of the proceedings.

b.                         Boards. If a verbatim record is produced, the transcript, a completed DA Form 1574–2, and any enclosures and exhibits will constitute the report of the proceedings. If a verbatim record is not produced, a completed DA Form 1574–2 and any enclosures and exhibits will constitute the report of the proceedings.

Figure 3–1. Sample report of findings and recommendations

Figure 3–1. sample report of findings and recommendations (continued).

3–13. Enclosures

In reports of investigations and boards, all significant letters, memoranda, and other papers that relate to the administrative aspects of the investigation or board, but are not evidence, will be numbered consecutively and made enclosures, including the following items:

a.     The memorandum of appointment.

b.     Copies of the notice to any respondent (see para 7–5).

c.     Copies of other correspondence with any respondent or counsel.

d.     Written communications to or from the appointing authority (see para 3–9).

e.     Privacy Act statements (see para 3–8 e ).

f.      An explanation by the IO or board of any unusual delays, difficulties, irregularities, or other problems encoun-

g.     When a case is complex, serious, and/or high-profile, or when the report of investigation contains adverse

information regarding a field grade officer:

(1)     A 1–2 page executive summary.

(2)     An index of the exhibits, with all the exhibits labeled in successive order, and

(3)     A chronology of the investigation.

3–14. Exhibits/evidence

a. General. Every item of evidence offered to or received by the IO or board will be marked as a separate exhibit.

Unless a verbatim record is prepared, statements or transcripts of testimony by witnesses will also be exhibits. b. Marking exhibits.

(1)           Report of proceedings by investigating officer. Exhibits will be numbered consecutively as the IO receives theexhibit.

(2)           Report of Proceedings by Board of Officers. Exhibits will be numbered consecutively when the exhibit is offeredin evidence (even if not accepted), except that those submitted by each respondent will be lettered consecutively (and further identified by the name of the respondent, if more than one). Exhibits submitted, but not admitted in evidence, will be marked, “Not admitted.”

c.              Real evidence. Attaching real evidence (physical objects) to the report is usually impractical. Clear and accurate descriptions (such as written statements) or depictions (such as photographs), authenticated by the IO, recorder, or board president, may be substituted in the report. The real evidence itself will be preserved, including the chain of custody, where appropriate, for use if further proceedings are necessary. The exhibit in the report will note where the real evidence can be found. After final action has been taken in the case, the evidence will be disposed of in accordance with AR 195–5, where applicable.

d.              Documentary evidence. When the original of an official record or other document that must be returned is an exhibit, an accurate copy, authenticated by the IO, recorder, or board president, may be used in the report. The exhibit in the report will note where the original can be found.

e.              Official notice. Matters of which the IO or board took official notice (para 3–7 c ) normally do not need to be recorded in an exhibit. If, however, official notice of a matter is taken over the objection of a respondent or respondent’s counsel, that fact will be noted in the report of the proceedings, and the IO or board will include a statement regarding the matter of which official notice was taken as an exhibit.

f.               Objections. In a board, if the respondent or counsel makes an objection during the proceedings, the objection and

supporting reasons will be noted in the report of proceedings.

3–15. Authentication

Unless otherwise directed, a written report of proceedings will be authenticated by the signature of the IO(s), or of all the voting members of the board and the recorder. Board members submitting a minority report may authenticate that report instead. If any voting member of the board or the recorder refuses or is unable to authenticate the report (for example, because of death, disability, or absence), the reason will be written in the report where that individual’s authentication would otherwise appear.

3–16. Compliance with applicable information security laws and regulations

IOs and boards will comply with applicable information security practices, laws, and regulations when placing classification markings on investigation and board reports. Reports that contain classified material must be marked and handled in accordance with applicable information security practices, laws, and regulations. The IO or board president should consult with the legal advisor and the command security manager to ensure compliance with applicable information security practices, laws, and regulations. Executive Order 13526, 29 December 2009, prescribes a uniform system for classifying, safeguarding, and declassifying national security information. AR 380–5 provides guidance on the Department of the Army Information Security Program. DODD 5230.11 provides guidance on the disclosure of classified military information to foreign governments and international organizations.

3–17. Safeguarding a written report

When the report of proceedings contains material that requires protection because it is determined that disclosure of the information would cause harm to an interest protected by one or more of FOIA exemptions 2 through 9, but does not have a security classification, the report should be marked in accordance with AR 380–5. No one will disclose, release, or cause to be published any part of the report, except as required in the normal course of forwarding and staffing the report, or as otherwise authorized by law or regulation, without the approval of the appointing authority or other appropriate FOIA release authority.

3–18. Submission

A digital copy of the report of proceedings will be submitted, along with a complete written copy, directly to the approval authority, or his or her designee, unless the appointing authority or another regulation or directive provides otherwise. If there are respondents, an additional written copy for each respondent will be submitted to the approval a u t h o r i t y . T h e c o p i e s p r o v i d e d f o r e a c h r e s p o n d e n t w i l l b e p r o p e r l y r e d a c t e d t o c o m p l y w i t h F O I A a n d P A requirements.

3–19. Filing and record keeping of the report

a. Approval authority filing requirements. Except in the case of an investigation or board that contains adverse information regarding a field-grade officer or a high-profile case, the approval authority will keep the original and a digital copy of the final report of proceedings on file for a period of not less than 5 years. b. Adverse information.

(1)                      In the case of an investigation or board that contains adverse information regarding a field-grade officer, theapproval authority will keep the original and a digital copy of the final report of proceedings, and the redacted version as provided to the officer. This is done in accordance with para 2–8 c , on file for a period of not less than 10 years, regardless of whether any adverse action was taken against the officer based on the findings and/or recommendations of the investigation or board. In addition, the approval authority will comply with specific filing requirements set forth in other regulations or directives, to include requirements to synopsize and upload portions of the investigations into a centralized database.

(2)                      The servicing SJA or legal advisor will provide a synopsis of the adverse finding, and the filing location of theinvestigation by emailing: “ USARMY Pentagon HQDA OTJAG Mailbox AL Adverse” found on the Global Address

c. Filing requirements for high-profile cases. Reports of proceedings in serious, complex, or high-profile cases that result in national media interest, Congressional investigation, and/or substantive changes in Army policies or procedures have value for historical and lessons-learned purposes.

(1)                      The approval authority will keep the original and a digital copy of these reports on file for a period of not lessthan 10 years.

(2)                      The approval authority will also submit a copy of these reports through the U.S. Army Records Management andDeclassification Agency (USARMDA) (AHRC–PDD–RR), 7701 Telegraph Road, Alexandria, VA 22315–3800, to the National Archives Records Administration (NARA). NARA determines, on a case-by-case basis, when these records may be destroyed. AR 25–400–2 provides additional guidance for filing reports of proceedings.

(3)                      The approval authority will submit a copy of the report through command channels to the Office of The JudgeAdvocate General, DAJA–AL, 2200 Army Pentagon, Washington, DC 20310–2200, at the same time the report is submitted to Human Resources Command, and before the next of kin is notified of the results of the investigation pursuant to AR 600–8–1, for Class A training accidents resulting in, or likely to result in, the permanent total disability or death of one or more persons, and for combat-related deaths involving friendly fire, non-DOD personnel, or an insider (green on blue) attack.

d. Passing investigation or board reports to succeeding commands; requirement to return and maintain investigations at home station. When an investigation or board is conducted in a deployed environment and pertains to deployed operations, the approval authority should provide a copy of the final report of proceedings to the replacing unit prior to redeploying. The approval authority will keep the original and a digital copy of the report of proceedings at home station in accordance with the requirements of this paragraph, and retains the authority to release the report.

3–20. Effect of errors

Generally, procedural errors or irregularities in an investigation or board, which do not have a material adverse effect on an individual’s substantial rights, do not invalidate the proceeding, or any action based on it.

a.       Harmless errors. Harmless errors are defects in the procedures or proceedings that do not have a material adverse effect on an individual’s substantial rights. A harmless error does not prevent the approval authority from taking final action on the investigation or board.

b.       Appointing errors. When an investigation or board is convened or directed by an official without authority (see para 2–1), the proceedings are a nullity, unless ratified by an official with the authority to appoint such an investigation or board.

c.       Substantial errors.

(1) Substantial errors are those that have a material adverse effect on an individual’s substantial rights. Examples involving a board include failing to meet board composition requirements or denying a respondent’s right to counsel. (2) When such errors can be corrected without substantial prejudice to the individual concerned, the approval authority may return the case to the same IO or board for corrective action. Respondents who are affected by such a return, will be notified of the error, of the proposed correction, and of their right to comment on both.

(3) If the error cannot be corrected, or cannot be corrected without substantial prejudice to the individual concerned:

(a)           The approval authority may not use the affected part of the investigation or board as the basis for adverse action against that person.

(b)           Evidence collected by the investigation or board may be used in connection with any action under the UCMJ, c i v i l i a n p e r s o n n e l r e g u l a t i o n s , A R 6 0 0 – 3 7 , o r a n o t h e r r e g u l a t i o n o r d i r e c t i v e t h a t c o n t a i n s i t s o w n p r o c e d u r a l safeguards.

(c)           The approval authority may set aside all findings and recommendations and refer the entire case to a new IO or board composed of entirely new voting members. Alternatively, the approval authority may take action on findings and recommendations not affected by the error, set aside the affected findings and recommendations, and refer the affected portion of the case to a new IO or board. In either case, the new IO or board may be furnished any evidence properly considered by the previous one. The new IO or board may also consider additional evidence. If the regulation or directive under which a board is appointed provides that the approval authority may not take less favorable action than the board recommends, the approval authority’s action is limited by the recommendations of the original board, even if the case is referred to a new board that recommends less favorable action.

d.              Failure to object to board proceedings. No error is substantial within the meaning of this paragraph if there is a failure to object or otherwise bring the error to the attention of the IO, legal advisor, or board president, prior to the board adjourning. Accordingly, errors in board proceedings described in subparagraph c , above, may be treated as harmless if the respondent or respondent’s counsel fails to object.

e.              Errors in reports of investigation. If there is an error in an investigation or board report, the error may be raised as part of any rebuttal matters (see para 2–8 c ) submitted following service of the report on the individual.

Chapter 4 Preliminary Inquiries

4–1. Purpose

A preliminary inquiry is an informal investigation. The purposes of a preliminary inquiry include, but are not limited to, ascertaining the magnitude of a problem; identifying and interviewing witnesses and summarizing and recording their statements; and determining whether a more extensive investigation is warranted, and, if warranted, assisting in determining the scope of such investigation. While a preliminary inquiry may result in the need to conduct an administrative investigation under the provisions of chapter 5, it need not follow the procedural requirements of an administrative investigation or a board. A preliminary inquiry under this regulation may satisfy the preliminary inquiry requirement, sometimes referred to as “commander’s inquiry,” in RCM 303, MCM. Commanders should consult their legal advisor for additional guidance on conducting preliminary inquiries into reported offenses under RCM 303, MCM. Except for those offenses specifically reserved to the Criminal Investigation Division, a preliminary inquiry into reported criminal offenses pursuant to RCM 303, MCM, is required only when a military member is accused or suspected of committing an offense that may be tried by court-martial.

4–2. Composition

Persons authorized to direct investigations in paragraph 2–1 are authorized to initiate preliminary inquiries into incidents occurring within or involving personnel assigned or attached to their organizations. An appointing authority may personally conduct the inquiry, or appoint an inquiry officer who meets the qualifications in paragraph 2–3, to obtain facts on the appointing authority’s behalf.

4–3. Procedure

The inquiry will be accomplished in accordance with guidance and direction provided by the appointing authority. The findings of the inquiry should be documented in writing (see fig 4–1 below), and it is advisable to preserve any evidence gathered.

a.                         Adverse action. If the appointing authority determines that further investigation is not required, but contemplates adverse administrative action against a person as a result of the findings of the inquiry, the appointing authority will require the findings to be in writing and reviewed in accordance with paragraph 2–6. Additionally, the appointing authority will comply with the notice and referral requirements in paragraphs 1–11 c .

b.                         Adverse finding. If the preliminary inquiry contains adverse information regarding a field grade officer, an administrative investigation must be conducted under the provisions of this regulation (see paras 2–8 and 5–4). The approval authority need not refer the preliminary inquiry to the field grade officer.

c.                         Need for further investigation. Should the approving authority determine that further investigation or a board is required as a result of a preliminary inquiry, the evidence and results of the preliminary inquiry will be provided to the IO or board.

d.                         Filing. If the preliminary inquiry results in an adverse finding and an additional investigation does not follow,

then the filing requirements of paragraph 3–19 b apply.

4–4. Legal consultation

Commanders and preliminary inquiry appointing authorities must consult with their legal advisor prior to conducting a preliminary inquiry and before taking adverse administrative action against any person based upon the findings of a preliminary inquiry. As a preliminary inquiry may lead to a criminal investigation, appointing authorities should refer to the guidance in paragraph 3–7 c , above, regarding self-incrimination and other evidentiary rules that preclude the use of evidence.

Figure 4–1. Sample report of findings for a preliminary inquiry

Chapter 5 Administrative Investigations

5–1. Composition

Investigation procedures are used by a single IO, or by an investigation team consisting of an IO and one or more assistant IOs designated by the appointing authority to assist the IO in questioning witnesses, taking sworn statements, and otherwise facilitating evidence gathering. In the event that assistant IOs are used, those designated as assistants must abide by the provisions of chapter 3. There is no recorder. The IO prescribes the duties of each assistant IO and determines the findings and recommendations.

5–2. Procedure

IOs may use whatever method they deem most efficient and effective for acquiring information. (See chap 3 for general guidance.) An IO may divide the witnesses, issues, or evidentiary aspects of the inquiry among assistant IOs for individual investigation and development, holding no collective meeting until the IO is ready to review all the information collected. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means.

5–3. Interested persons

Investigation procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation. No respondents will be designated and, except as described in paragraph 5–4, no one is entitled to the rights of a respondent. The IO may still make any relevant findings or recommendations, including those adverse to an individual or individuals. (See para 1–12 for rules regarding use of adverse information.)

5–4. Right to respond to adverse information

a.                         Although the investigation procedures are not intended to provide a hearing for interested persons, field grade officers have a right to respond to adverse information in a report of proceedings. This right exists regardless of whether adverse administrative action is recommended or contemplated against the field grade officer.

b.                         When a field grade officer has the right to respond pursuant to this paragraph, the portion of the report of investigation and supporting evidence pertaining to the adverse information will be referred to the officer after being properly redacted. The officer will have at least 10 business days to respond. The referral and processing of any response will be conducted in accordance with paragraph 2–8 c .

c.                         The right of a field grade officer to respond to adverse information should not influence the conduct of an investigation. The officer’s right to respond to adverse information will not serve as a substitute for attempting to interview the individual during the investigation.

d.                         The field grade officer’s response to the adverse information may include anything that the officer deems to be relevant to the finding, including, but not limited to, a rebuttal memorandum prepared by the officer or his representative, additional evidence in any format, and letters of support. All materials provided in response to adverse information will be included as an exhibit to the report of proceedings.

e.                         The right to respond to adverse information is extended by this regulation only to field grade officers, because such findings or recommendations may be considered in future promotion boards that will consider those officers for promotion. This does not require nor preclude approval authorities from extending this opportunity to any other individual who is the subject of adverse information in the report of proceedings.

Chapter 6 Collateral Investigations

6–1. General

Collateral investigations are investigations performed in conjunction with another type of investigation and serve a specific purpose. Other regulations generally specify when a collateral investigation must be conducted, the scope of the collateral investigation, and which investigation takes priority. Unless otherwise specified, collateral investigations use the procedures established for investigations in this regulation. Unless otherwise specified, the appointing authority may determine which investigation takes priority.

a.              Collateral investigations include, but are not limited to, those conducted in conjunction with the death of a Soldier, as specified in AR 600–34 and AR 600–8–1, and those conducted in conjunction with an accident investigation, as specified in AR 385–10.

b.              In each case, the scope and purpose of the investigation is unique. IOs should consult with any other organization that may be simultaneously investigating an incident and request any relevant information that the other organization has obtained. In many cases, the amount of information the collateral investigation officer may share is limited. IOs should be aware of the limits of evidence sharing and become familiar with the provisions of both this regulation and the regulation mandating the collateral investigation.

Chapter 7 Boards of Officers

Section I General

7–1. Members

a.       Voting members. All members of a board are voting members, except as provided elsewhere in this paragraph, in

other applicable regulations or directives, or in the memorandum of appointment.

b.       President. The senior voting member present acts as president. The senior voting member will be senior to any named respondent and at least a major, except where the appointing authority determines that such appointment is impracticable because of military exigencies. The president has the following responsibilities: The president will— (1) Preserve order.

(2)               Determine time and uniform for sessions of the board.

(3)               Recess or adjourn the board as necessary.

(4)               Decide routine administrative matters necessary for efficient conduct of the business of the board.

(5)               Ensure that all business of the board is properly conducted, and that the report of proceedings is submittedpromptly. If the board consists of only one member, that member has the responsibilities of both the president and the recorder.

c.                         Recorder. The memorandum of appointment may designate a commissioned or warrant officer as recorder. It may also designate assistant recorders, who may perform any duty the recorder may perform. If the memorandum of appointment designates a recorder or assistant recorder, the recorder or assistant recorder is a nonvoting member of the board. If the memorandum of appointment does not designate a recorder, the junior member of the board acts as recorder and is a voting member. The appointing authority should appoint a judge advocate as recorder, if reasonably available.

d.                         Legal advisor. A legal advisor will be appointed as a nonvoting member. He or she rules finally on challenges for cause made during the proceedings—except for a challenge against the legal advisor (see para 7–7 c ) and on all evidentiary and procedural matters (see para 3–5)—but may not dismiss any question or issue before the board. In appropriate cases, the legal advisor may advise the board on legal matters. If a respondent has been designated, the respondent and the respondent’s counsel will be afforded the opportunity to be present when legal advice is provided to the board. If legal advice is not provided in person (for example, by telephone or in writing), the right to be “present” is satisfied by providing the opportunity to listen to, or read, the advice. The right to be present does not extend to general procedural advice given before the board initially convenes, to legal advice provided before the respondent is designated, or to advice provided under paragraph 7–10.

e.                         Members with special technical knowledge. Persons with special technical knowledge, to include members of other services and allied or coalition partners, may be appointed as voting members or, unless there is a respondent, as advisory members without a vote. Such persons need not be commissioned or warrant officers. If appointed as advisory members, they need not participate in the board proceedings, except as directed by the president. (See para 7–10, with regard to participation in the board’s deliberations.) The report of proceedings will indicate the limited participation of an advisory member.

7–2. Attendance of members

a.                         General. Attendance at board proceedings is the primary duty of each voting member and takes precedence over all other duties. A voting member must attend scheduled sessions of the board, if physically able, unless excused in advance by the appointing authority. If the appointing authority is a GCMCA or a commanding general with a legal advisor on his or her staff, the authority to excuse individual members before the first session of the board may be delegated to the SJA or legal advisor. The board may proceed, even though a member is absent, provided the necessary quorum is present (see subpara b, below). If the recorder is absent, the assistant recorder, if any, or the junior member of the board will assume the duties of recorder. The board may then proceed at the discretion of the president.

b.                         Quorum. Unless another regulation or directive requires a greater number, a majority of the appointed voting members (other than nonparticipating alternate members) of a board constitutes a quorum and must be present at all sessions. If another regulation or directive prescribes specific qualifications for any voting member (for example, component, branch, or technical or professional qualifications), that member is essential to the quorum and must be present at all board sessions.

c.                         Alternate members. An unnecessarily large number of officers will not be appointed to a board with the intention of using only those available at the time of the board’s meeting. The memorandum of appointment may, however, designate alternate members to serve on the board, in the sequence listed, if necessary to constitute a quorum in the absence of a regular member. These alternate members may be added to the board at the direction of the president without further consultation with the appointing authority. A member added at the direction of the president becomes a regular member with the same obligation to be present at all further proceedings of the board (see subpara a, above).

d.                         Member not present at prior sessions. A member who was not present at a prior session of the board, such as an absent member, an alternate member newly authorized to serve as a member, or a newly appointed member, may participate fully in all subsequent proceedings. The member must, however, become thoroughly familiar with the prior proceedings and the evidence. The report of proceedings will reflect how the member became familiar with the proceedings. Except as directed by the appointing authority, a member who was not available (because of having been excused or otherwise) for a substantial portion of the proceedings, as determined by the president, will no longer be considered a member of the board in that particular case, even if that member later becomes available to serve.

7–3. Duties of recorder

a. Before a session. The recorder is responsible for administrative preparation and support for the board, and will

perform the following duties before a session:

(1)           Give timely notice of the time, place, and prescribed uniform for the session to all participants, including boardmembers, witnesses, the legal advisor, and, if any, the respondent, counsel, reporter, and interpreter. Only the notice to a respondent, required by paragraph 7–5, must be in writing. It is also usually appropriate to notify the commander or supervisor of each witness and respondent.

(2)           Arrange for the presence of witnesses who are to testify in person, including the attendance at Governmentexpense of military personnel and civilian government employees ordered to appear, and of other civilians voluntarily appearing pursuant to invitational travel authorizations (see para 3–8 a ).

(3)           Ensure that the site for the session is adequate and in good order.

(4)           Arrange for necessary personnel support (for example, a paralegal, reporter, or interpreter), recording equipment,stationery, and other supplies.

(5)           Arrange to have available all necessary Privacy Act statements and, with appropriate authentication, all requiredrecords, documents, and real evidence.

(6)           Ensure, subject to security requirements, that all appropriate records and documents referred with the case arefurnished to any respondent or counsel.

(7)           Take whatever other action is necessary to ensure a prompt, full, and orderly presentation of the case.

b. During the session. The recorder will perform the following duties during the session:

(1)    Read the memorandum of appointment at the initial session, or determine that the participants have read it.

(2)    Note for the record at the beginning of each session the presence or absence of the members of the board and therespondent and counsel, if any.

(3)    Administer oaths as necessary.

(4)    Execute all orders of the board.

(5)    Conduct the presentation of evidence and examination of witnesses to elicit the facts.

c. After the proceedings. The recorder is responsible for the prompt and accurate preparation of the report of proceedings, for the authentication of the completed report, and for the delivery of the report to the approval authority or his or her designee.

Section II Respondents

7–4. Designation

a. General. A respondent may be designated when the appointing authority desires to provide a hearing for a person with a direct interest in the proceedings. The mere fact that an adverse finding may be made or adverse action recommended against a person, does not mean that he or she will be designated a respondent. The appointing authority decides whether to designate a person as a respondent, except where procedural protections available only to a respondent under this regulation are mandated by other regulations or directives, or where designation of a respondent is—

(1)     Directed by authorities senior to the appointing authority.

(2)     Required by other regulations or directives.

b.     Before proceedings. When it is decided at the time a board is appointed that a person will be designated a

respondent, the designation will be made in the memorandum of appointment.

c.     During the proceedings.

(1)           If, during board proceedings, the legal advisor or the president decides that it would be advisable to designate arespondent, the proceedings will be abated until the legal advisor makes such a recommendation and provides supporting information to the appointing authority, who will decide whether to designate a respondent or to continue the proceedings without designating a respondent.

(2)           The appointing authority may designate a respondent at any point in the proceedings. A respondent so designated will be given a reasonable time to obtain counsel (see para 7–6) and prepare for subsequent sessions.

(3)           If a respondent is designated during the proceedings, the record of proceedings and all evidence received by theboard to that point will be made available to the newly designated respondent and counsel. The respondent may request that witnesses who have previously testified be recalled for cross-examination. If circumstances do not permit recalling a witness, a written statement may be obtained. In the absence of compelling justification, the proceedings will not be delayed to obtain such a statement. Subject to evidentiary limitations (see para 3–7), any testimony given by a person as a witness may be considered, even if that witness is subsequently designated a respondent.

7–5. Notice

The recorder will, at a reasonable time in advance of the first session of the board concerning a respondent (including a respondent designated during the proceedings), provide the respondent a copy of all unclassified documents in the case file and a letter of notification. In the absence of special circumstances or a different period established by the regulation or directive authorizing the board, a “reasonable time” is 10 business days. The letter of notification will include the following information:

a.     The date, hour, and place of the session and the appropriate military uniform, if applicable.

b.     The matter to be investigated, including specific allegations, in sufficient detail to enable the respondent to

c.     The respondent’s rights with regard to counsel (see para 7–6).

d.     The name and address of each witness expected to be called.

e.     The respondent’s rights to be present, present evidence, and call witnesses (see para 7–8 a ).

f.      The procedures for examining relevant classified materials, on request and with the assistance of the recorder, if

the board involves classified matters (see AR 380–67).

7–6. Counsel

a. Entitlement. A respondent is entitled to have counsel and, to the extent permitted by security classification, to be present with counsel at all open sessions of the board. Counsel may also be provided for the limited purpose of taking a witness’s statement or testimony if a respondent has not yet obtained counsel. An appointed counsel will be furnished only to civilian employees or members of the military in accordance with para 7–6 b . b. Who may act.

(1)                      Civilian counsel. Any respondent may be represented by civilian counsel not employed by, and at no expense to, the Government. A Government civilian employee may not act as civilian counsel for compensation, or if it would be inconsistent with the faithful performance of the employee’s regular duties (see 18 USC 205). In addition, a DA civilian employee may serve as a respondent’s counsel only while on leave or outside normal hours of employment, except when acting as the exclusive representative of the bargaining unit pursuant to 5 USC 7114(a)(2)(B). (See para

(2)                      Military counsel for military respondents. A military respondent is entitled to be represented by a designated military counsel. The retention of civilian counsel does not deprive the military respondent of the right to be represented by his or her designated military counsel. A military respondent who declines the services of a qualified designated military counsel is not entitled to have a different counsel designated.

(3)                      Military counsel for civilian employee respondents. Federal civilian employee respondents, including those of nonappropriated fund instrumentalities, will be provided a designated military counsel under the same conditions and procedures as if they were military respondents, unless it is determined that they will be represented by an exclusive representative of an appropriate bargaining unit.

c.                         Delay. Whenever practicable, the board proceedings will be held in abeyance pending a respondent’s reasonable and diligent efforts to obtain civilian counsel. The proceedings will not be delayed unduly to permit a respondent to obtain a particular counsel, or to accommodate the schedule of such counsel. The board president shall determine whether a delay is excessive.

d.                         Qualifications. Counsel will be sufficiently mature and experienced to be of genuine assistance to the respondent. Unless specified by the regulation or directive under which the board is appointed, counsel is not required to be a lawyer.

e.                         Independence. No counsel for a respondent will be censured, reprimanded, admonished, coerced, or rated less favorably as a result of the lawful and ethical performance of duties, or the zeal with which he or she represents the respondent. Any question concerning the propriety of a counsel’s conduct in the performance of his or her duty will be referred to the servicing SJA or legal advisor.

7–7. Challenges for cause

a.              Right of respondent. A respondent is entitled to have the matter at issue decided by a board composed of impartial members. A respondent may challenge for cause the legal advisor and any voting member of the board who the respondent believes does not meet that standard. Lack of impartiality is the only basis on which a challenge for cause may be made at the board proceedings. Any other matter affecting the qualification of a board member may be brought to the attention of the appointing authority (see para 3–3).

b.              Making a challenge. A challenge will be made as soon as the respondent or counsel is aware that grounds exist.

Failure to do so normally will constitute a waiver. If possible, all challenges and grounds will be communicated to the appointing authority before the board convenes. When the board convenes, the respondent or counsel may question members of the board to determine whether to make a challenge. Such questions must relate directly to the issue of impartiality. Discretion will be used, however, to avoid revealing prejudicial matters to other members of the board. If a challenge is made after the board convenes, only the name of the challenged member will be indicated in open session, not the reason for believing the member is not impartial.

c.              Deciding challenges. The appointing authority may decide any challenges made before the board convenes. Otherwise, a challenge is decided by the legal advisor or, if the legal advisor is challenged, by the president.

d.              Procedure. Challenges for lack of impartiality not decided by the appointing authority will be heard and decided at a session of the board attended by the legal advisor, the president, the member challenged, the respondent and his or her counsel, and the recorder. The respondent or counsel making the challenge may question the challenged member and present any other evidence to support the challenge. The recorder may also present evidence on the issue. The person who is to decide the challenge may question the challenged member and any other witness, and may direct the recorder to present additional evidence. If more than one member is challenged at a time, each challenge will be decided independently, in descending order of the challenged members’ ranks.

e.              Sustained challenge. If the person deciding a challenge sustains it, he or she will excuse the challenged member from the board at once, and that person will no longer be a member of the board. If this excusal prevents a quorum (see para 7–2 b ), the board will adjourn to allow the addition of another member; otherwise, proceedings will continue.

7–8. Presentation of evidence

a. Rights of respondent. Except for good cause shown in the report of proceedings, a respondent is entitled to be present, with counsel, at all open sessions of the board that deal with any matter concerning the respondent. The respondent may—

(1)    Examine and object to the introduction of real and documentary evidence, including written statements.

(2)    Object to the testimony of witnesses and cross-examine witnesses other than the respondent’s own.

(3)    Call witnesses and otherwise introduce evidence.

(4)    Testify as a witness; however, no adverse inference may be drawn from the exercise of the privilege against selfi n c r i m i n a t i o n ( s e e p a r a 3 – 7 d ( 6 ) ) . A d d i t i o n a l l y , t h e r e s p o n d e n t m a y p r o v i d e a n u n s w o r n s t a t e m e n t . ( S e e R C M

1001(c)(2)(A).)

b. Assistance.

(1)           Upon receipt of a timely written request, and except as provided in subparagraph (4), below, the recorder willassist the respondent in obtaining documentary and real evidence in the possession of the Government, and in arranging for the presence of witnesses for the respondent.

(2)           Except as provided in subparagraph (4), below, the respondent is entitled to attendance, at Government expense,of witnesses who are Soldiers or Federal civilian employees, to reimbursement of authorized expenses of other civilian witnesses who voluntarily appear in response to invitational travel authorizations, and to official cooperation in obtaining access to evidence in the Government’s possession, to the same extent as the recorder on behalf of the Government. If the recorder believes any witness’s testimony or other evidence requested by the respondent is irrelevant or unnecessarily cumulative, or that its significance is disproportionate to the delay, expense, or difficulty in obtaining it, the recorder will submit the respondent’s request to the legal advisor or president (see para 3–5), who will decide whether the recorder will comply with the request. Denial of the request does not preclude the respondent from obtaining the evidence or witness without the recorder’s assistance, and at no expense to the Government.

(3)           Nothing in this paragraph relieves a respondent or counsel from the obligation to exercise due diligence inpreparing for and presenting his or her own case. Normally, the fact that any evidence or witness desired by the respondent is not reasonably available is not a basis for terminating or invalidating the proceedings.

(4)           Evidence that is privileged within the meaning of paragraph 3–7 d (2), will not be provided to a respondent or counsel, unless the recorder intends to introduce such evidence to the board and has obtained approval to do so.

7–9. Argument

After all evidence has been received, the recorder and the respondent or the respondent’s counsel may make a final statement or argument. The recorder may make the opening argument and, if argument is made on behalf of a respondent, the closing argument in rebuttal.

7–10. Deliberation

After all the evidence has been received (and any arguments heard), the board members will consider the evidence carefully in light of any instructions from the appointing authority. These deliberations will (and, if there is a respondent, must) be in closed session (in other words, with only voting members present). Nonvoting members of the board do not participate in the board’s deliberations, but may be consulted. The respondent and the respondent’s counsel, if any, will be afforded the opportunity to be present at such consultations. The board may request the legal advisor to assist in putting findings and recommendations in the proper form after their substance has been adopted by the board. The respondent and counsel are not entitled to be present during such assistance.

7–11. Voting

A board arrives at its findings and recommendations by voting. All voting members present must vote. After thoroughly considering and discussing all the evidence, the board will propose and vote on findings of fact. The board will next propose and vote on recommendations. If additional findings are necessary to support a proposed recommendation, the board will vote on such findings before voting on the related recommendation. Unless another regulation or directive or an instruction by the appointing authority establishes a different requirement, a majority vote of the voting members present determines questions before the board. In case of a tie vote, the president’s vote is the determination of the board.

7–12. After the hearing

Upon approval or other action on the report of proceedings by the approval authority, and completion of the actions in paragraph 2–8, the respondent or respondent’s counsel will be provided a copy of the report, including all exhibits and enclosures that pertain to the respondent. Portions of the report, exhibits, and enclosures may be withheld from a respondent only as required by security classification or for other good cause determined by the appointing authority and explained to the respondent in writing.

Appendix A References

Section I Required Publications

Inspector General Activities and Procedures (Cited in para 1–5.)

The Department of the Army Freedom of Information Act Program (Cited in para 1–12.)

AR 25–400–2

Army Records Information Management System (ARIMS) (Cited in para 3–19.)

Military Justice (Cited in para 3-7.)

Medical Record Administration and Healthcare Documentation (Cited in para 3-7 b (1).)

Military Police Investigations (Cited in para 1-5.)

Criminal Investigation Activities (Cited in para 1-5.)

Evidence Procedures (Cited in para 3-14.)

The Army Privacy Program (Cited in para 1-12.)

Department of the Army Information Security Program (Cited in para 3-16.)

The Department of the Army Personnel Security Program (Cited in para 7-5.)

Suspension of Favorable Personnel Actions (Flags) (Cited in para 1-9.)

Personnel Relations and Services (Cited in para 1-12.)

Evaluation Reporting System (Cited in para 1–12.)

DODD 5230.11

Disclosure of Classified Military Information to Foreign Governments and International Organizations (Cited in para 3–16.)

DODI 6055.07

Mishap Notification, Investigation, Reporting, and Record Keeping (Cited in para 2-1.)

JTR, vol. 2

Joint Travel Regulation (Cited in para 3-8.) (Available at http://www.defensetravel.dod.mil/)

See Military Rules of Evidence contained therein (Cited in para 3-7.)

Judicial notice of adjudicative facts (Cited in para 3-7 c. )

Definition of "relevant evidence" (Cited in para 3-7 d (1).)

Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time (Cited in para 3-7 d (1).)

Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition (Cited in para 3-7 d (3).)

Lawyer-client privilege (Cited in para 3-7 d (2).)

Communications to clergy (Cited in para 3-7 d (2).)

Husband-wife privilege (Cited in para 3-7 d (2))

Psychotherapist-patient privilege (Cited in para 3-7 d (2))

Victim Advocate-Victim Privilege (Cited in para 3-7 d (2))

UCMJ, Art. 31

Compulsory self-incrimination prohibited (Cited in para 3-7 d (7)(a))

UCMJ, Art. 136

Authority to administer oaths and act as notary (Cited in para 1-3.) (Available from www.army.mil/references/UCMJ.)

UCMJ, Art. 138

Complaints of wrongs (Cited in para B-2 b (2))

Preliminary inquiry into reported offenses (Cited in para 4-1.)

42 USC 300gg et seq

Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Cited in para 3-8 e (1).)

Oath to Witnesses (Cited in para 3–2.)

Privacy Act (Cited in para 1-11 c (1).)

Freedom of Information Act (Cited in para 1-11 c (1).)

Representation rights and duties (Cited in para 3–4.)

Information furnished to selection boards (Cited in para 2–8 c (3)(c).)

Section II Related Publications

A related publication is a source of additional information. The user does not have to read it to understand this regulation. United States Code is found at www.gpoaccess.gov/uscode.

DA Pam 385–40

Army Accident Investigations and Reporting

Managers’ Internal Control Program

AR 27–20 Claims

Clinical Quality Management

Commercial Solicitation on Army Installations

Department of the Army Information Security Program

The Army Safety Program

Army Casualty Program

Line of Duty Policy, Procedures, and Investigations

AR 600–8–24

Officer Transfers and Discharges

Fatal Training/Operational Accident Presentations to the Next of Kin

Unfavorable Information

Conscientious Objection

Aviation Service of Rated Army Officers

Evaluation Reporting System

Policies and Procedures for Property Accountability

DOD 6025.18–R

Department of Defense Health Information Privacy Regulation

DODI 1320.04

Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation.

Army Privacy Act Program.

Conduct unbecoming an officer and a gentleman.

10 USC 1219

Statement of origin of disease or injury: limitations

10 USC 3012

Department of the Army: seal

Activities of offices and employees in claims against and other matters affecting the Government

U.S. Constitution, amend. 5

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . . ”

Section III Prescribed Forms

Unless otherwise stated, DA forms are available on the APD Web site (www.apd.army.mil).

DA Form 1574–1

Report of Proceedings by Investigating Officer (Prescribed in para 2–8.)

DA Form 1574–2

Report of Proceedings by Board of Officers (Prescribed in para 2–8.)

DA Form 7694

Privacy Act Statement (Prescribed in para 3–8e(1).)

Section IV Referenced Forms

DA Form 2028

Recommended Changes to Publications and Blank Forms

DA Form 2823

Sworn Statement

DA Form 3881

Rights Warning Procedure/Waiver Certificate

Appendix B Guidance for Preparing Privacy Act Statements

B–1. General

a. The Privacy Act requires that, whenever personal information is solicited from an individual, and the information will be filed so as to be retrievable by reference to the name or other personal identifier of the individual, he or she must be advised of the following information:

(1)     The authority for soliciting the information.

(2)     The principal purposes for which the information is intended to be used.

(3)     The routine uses that may be made of the information.

(4)     Whether disclosure is mandatory or voluntary.

(5)     The effect on the individual of not providing all or part of the information.

b.              Each Privacy Act statement must be tailored to the matter being investigated, and to the person being asked to provide information. The legal advisor will be consulted for assistance in preparing Privacy Act statements, as necessary.

c.              The DA Form 2823 (Sworn Statement) contains a Privacy Act statement at the top of the form. If a DA Form 2823 is used to document a witness’s statement, an additional Privacy Act statement is generally not required.

B–2. Content

a.          Authority. If a specific statute or executive order authorizes collection of the information, or authorizes performance of a function that necessitates collection of the information, the Privacy Act statement will cite it as the authority for solicitation. For example, if a commander appoints an IO to inquire into a complaint under Article 138, UCMJ, the rules for which are found in AR 27–10, the statutory authority for solicitation of the information would be 10 USC 938. Regulations will not be cited as the authority. If no specific statute or executive order can be found, the authority to cite is 10 USC 3013.

b.          Principal purposes. The statement of principal purposes will consist of a short statement of the reason the

investigation is being conducted. The following examples apply to particular types of investigations:

(1)           Administrative elimination proceeding under AR 635–200: “The purpose for soliciting this information is toprovide the commander a basis for a determination regarding your retention on active duty and, if a determination is made not to retain you on active duty, the type of discharge to award.”

(2)           Investigation of a complaint under Article 138, UCMJ: “The purpose for soliciting this information is to obtainfacts and make recommendations to assist the commander in determining what action to take with regard to (your) (complainant’s) Article 138, UCMJ, complaint.”

(3)           Investigation of a security violation: “The purpose for soliciting this information is to determine whether thesecurity violation under investigation resulted in a compromise of national defense information, to affix responsibility for the violation, and to determine whether to change existing security procedures.”

(4)           Flying evaluation board pursuant to AR 600–105: “The purpose for soliciting this information is to provide thecommander a basis for a determination regarding your flying status.”

c.              Routine uses. In order to advise an individual of what routine uses may be made of solicited information, it is necessary to identify the system of records in which the report of proceedings will be filed. The routine uses will be summarized from the system notice and from the routine uses of general applicability in AR 340–21. The routine use statement may be introduced as follows: “Any information you provide is disclosable to members of the Department of Defense who have a need for the information in the performance of their duties. In addition, the information may be disclosed to Government agencies outside of the Department of Defense as follows: (list of routine uses external to the

Department of Defense).”

d.              Routine uses. Disclosure mandatory or voluntary; the effect of not providing information. Providing information is voluntary, unless the individual may be ordered to testify. The following statement can be used in most situations: (1) Respondent or other individual warned of his or her rights under Article 31, UCMJ, or the Fifth Amendment: “Providing the information is voluntary. There will be no adverse effect on you for not furnishing the information, other than that certain information might not otherwise be available to the commander for his or her decision in this matter.”

(2) Individual who may be ordered to testify: “Providing the information is mandatory. Failure to provide information could result in disciplinary or other adverse action against you under (the UCMJ or Army regulations) (civilian personnel regulations).”

e. Article 31, Uniform Code of Military Justice, rights advisement. If during the proceeding it is determined to advise an individual of his or her rights under Article 31, UCMJ, or the Fifth Amendment, after he or she has been told it is mandatory to provide information, the advising official must be certain that the individual understands that such rights warning supersedes this portion of the Privacy Act statement.

Appendix C Investigating Officer’s Guide

C–1. Introduction

a.                     Purpose. This is a guide only; its provisions are not mandatory. Appointing authorities may provide additional instructions that are consistent with this regulation. This guide is intended to assist IOs who have been appointed under this regulation with conducting timely, thorough, and legally sufficient investigations. This guide does not apply to boards. Legal advisors responsible for advising IOs may also use it. A checklist is included at paragraph C–5. The checklist is designed as a quick reference to be consulted during each stage of the investigation. The questions in the checklist will ensure that the IO has covered all the basic elements necessary for a sound investigation.

b.                     Duties of an investigating officer. The primary duties of an IO are to:

(1)    Ascertain and consider the evidence and facts regarding relevant issue(s).

(2)    Be thorough and impartial.

(3)    Make findings and recommendations warranted by the evidence.

(4)    Comply with the instructions of the appointing authority.

(5)    Report the findings and recommendations to the approval authority. c. General.

(1)                      Investigations usually have a single IO who conducts interviews and collects evidence. The appointing authoritymay appoint assistant IOs to help question witnesses, take sworn statements, and otherwise work to gather evidence. In contrast, boards normally involve due process hearings for a designated respondent. Board procedures are required whenever a respondent is designated. A sample board hearing script when a respondent is designated is provided at appendix D.

(2)                      Investigation procedures are not intended to provide a hearing for persons who may have an interest in thesubject of the investigation. Since no respondents are designated in investigations, no one is entitled to the rights of a respondent, such as notice of the proceedings, an opportunity to participate, representation by counsel, or the right to call and cross-examine witnesses. The IO may, however, make any relevant findings or recommendations concerning individuals, even where those findings or recommendations are adverse to the individual or individuals concerned. If the appropriate authority decides to take action against an individual based upon an AR 15–6 investigation, that individual will be afforded certain due process rights before adverse action is taken.

(3)                      AR 15–6 procedures are used for many different types of investigations requiring the detailed gathering andanalysis of evidence and the making of recommendations based on the findings. AR 15–6 procedures may be used on their own, such as in an investigation to determine facts and circumstances, or the procedures may be incorporated by reference into regulations or directives governing specific types of investigations, such as financial liability and line of duty investigations. If such regulations or directives contain guidance that is more specific than that set forth in AR 15–6, the more specific guidance will control. For example, if another regulation or directive that incorporates AR 15–6 contains time limits, that requirement will apply.

C–2. Preliminary matters

a.                         Consulting with legal advisor. A legal advisor must be appointed to advise an IO conducting an investigation under this regulation. IOs should seek legal advice as soon as possible after they are informed of this duty, and as often as needed while conducting the investigation. Even if all matters appear clear-cut and the IO has read this guide and the relevant provisions of AR 15–6, the legal advisor can provide refined expert guidance to prevent difficulties during and after the investigation. Early coordination with the legal advisor will allow problems to be resolved before they are identified in the mandatory legal review. The legal advisor can assist an IO in framing the issues, identifying the information required, planning the investigation, and interpreting and analyzing the information obtained. The legal advisor’s role, however, is to provide legal advice and assistance, not to conduct the investigation.

b.                         Administrative matters. As soon as the IO receives appointing orders, he or she should begin a chronology showing the date, time, and a short description of everything done in connection with the investigation. The chronology should begin with the date orders are received, whether verbal or written. The annotation of delays in the investigation, if any, is particularly important. IOs should record the reason for any unusual delays in conducting the investigation, such as the absence of witnesses due to a field training exercise. The chronology should be part of the final report.

c.                         Concurrent investigations. An investigation may be conducted before, concurrently with, or after an investigation into the same or related matters by another command or agency. Appointing authorities and IOs must ensure that investigations do not hinder or interfere with criminal investigations or investigations directed by higher headquarters. In cases of concurrent investigations, IOs should coordinate with the other command or agency to avoid duplication of effort wherever possible. IOs should request any relevant information that the other organization has obtained. The IO may incorporate and consider the results of other available investigations into the AR 15–6 investigation. In many cases, the amount of information shared between the collateral investigation officer and the other investigators will be limited. IOs should be aware of the limits of evidence sharing and become familiar with the provisions of both this regulation and the associated regulation mandating the collateral investigation. Additionally, an IO should immediately coordinate with the legal advisor and inform the appointing authority if he or she discovers evidence of serious criminal misconduct. Criminal investigations and administrative investigations conducted using AR 15–6 can occur simultaneously and share information, provided that the administrative investigation does not conflict with the criminal investigation.

C–3. Conducting the investigation

a. Developing an investigative plan.

(1) The IO’s primary duty is to gather evidence and make findings of fact and appropriate recommendations to the appointing authority. Before obtaining information, however, the IO should develop an investigative plan that consists of:

(a)       an understanding of the evidence required to make a finding; and,

(b)       a strategy for obtaining evidence. The plan should include a list of potential witnesses and a plan for when each witness will be interviewed. The order in which witnesses are interviewed may be important. An effective, efficient method is to interview principal witnesses last. This practice best prepares the IO to ask all relevant questions and minimizes the need to re-interview witnesses. As the investigation proceeds, it may be necessary to review and modify the investigative plan.

(2)           The IO should begin the investigation by identifying the information already available, and determining whatadditional information will be required before findings and recommendations may be made to the appointing authority. The IO should determine whether the same matter was previously investigated by another investigation (for example, an AR 15–6 or Manual of the Judge Advocate General (JAGMAN) investigation) and should review that investigation. An important part of the investigative plan is establishing the appropriate standards, rules, or procedures that govern the circumstances under investigation. The legal advisor or other functional expert can assist the IO in determining the information that will be required, and what information is important to develop during the interviews.

(3)           The IO should develop a chronology as soon as he or she receives the case, which lists dates of events andrecords telephone calls and contacts with witnesses. The chronology is important to show the progress of the investigation, and to indicate when certain events occurred.

b. Obtaining documentary and physical evidence.

(1)           Generally, the IO should begin the investigation by collecting documentary and physical evidence, such asapplicable regulations, existing witness statements, accident or police reports, video/audio evidence (for example, UAS/ Apache camera), and photographs. Reviewing this evidence often helps frame the issues and helps develop lines of questioning for witnesses, saving valuable time and effort. In some cases, the information will not be readily available, so a request for the evidence should be made early to enable work on other aspects of the investigation to continue while the request is being processed. The IO should, if possible and appropriate, personally inspect the location of the events being investigated and take photographs or prepare measured diagrams if they will help the IO make findings and recommendations, or contribute to the appointing authority’s or other future readers’ understanding. The IO should also determine what other organizations might be helpful during the course of the investigation (for example, CID for polygraph or forensic assistance).

(2)           A recurring problem that must be avoided is lack of documentation in investigations with findings of no fault, noloss, or no wrongdoing. It is just as important to substantiate these findings with documentary evidence as it is to document adverse findings. The report of investigation must include sufficient documentation to convince the approval authority and others who may review the investigation that the evidence supports the finding of no fault, no loss, or no wrongdoing.

(3)           If the investigative plan contemplates the acquisition or review of medical records of any person, the IO mustconsider the applicability of the Privacy Act and the HIPAA and consult his or her legal advisor.

(4)           An IO does not have any special authority to authorize disposal or destruction of property. This authority isdetermined in accordance with applicable DOD and Department of the Army regulatory guidance, depending upon the type of property or situation. IOs should never agree to the otherwise authorized destruction or removal of physical evidence until the evidence has been properly documented (for example, photographed, reduced to a drawing, measured, and so forth).

c. Obtaining witness testimony.

(1)                      In most cases, witness testimony is required. Face-to-face interviews are preferred, but interviews may beconducted by telephone, if necessary. E-mail and mail interviews should be used only in unusual circumstances. Information obtained telephonically should be documented in a memorandum for record. The witness should be asked to read, correct, and sign the final statement, whenever possible. Privacy Act statements are required for some interviews, and IOs must ensure proper completion of Privacy Act statements when required.

(2)                      Legible, handwritten statements from witnesses and/or questions and answers are ordinarily sufficient, althoughtypewritten statements are preferred. If the witness testimony involves technical terms that are not generally known outside the witness’s field of expertise, the witness should be asked to define the terms the first time they are used. Home addresses and telephone numbers should not be recorded on the DA Form 2823 unless absolutely necessary.

Social Security numbers (SSNs) should not be annotated unless material to the investigation. If the SSN is material and necessary, the information must be properly safeguarded, along with all other personally identifiable information (PII) regarding the witness. This would also be one of the situations where a Privacy Act statement would be required. If using DA Form 2823, it includes a Privacy Act statement that satisfies the requirement.

(3)                      Although AR 15–6 does not require that statements be sworn for investigations, the appointing authority, oranother applicable regulation or directive, may require sworn statements, or the IO may ask for sworn statements, at his or her own discretion, even when not specifically required. Under Article 136, UCMJ, military officers are authorized to administer the oath for sworn statements; 5 USC 303 provides this authority for civilian employees. Statements taken out of the presence of the IO may be sworn before an official authorized to administer oaths at the witness’s location. The oath should actually be read aloud to the witness. The IO must ensure that all appropriate blocks on the DA Form 2823 are fully completed except where it asks for SSNs, as described in subparagraph (2), above.

(4)                      IOs do not have the authority to subpoena witnesses, and their authority to interview civilian employees may besubject to certain limitations. Prior to interviewing civilian employees, the IO should seek guidance from the legal advisor or a local labor counselor. Commanders and appropriate supervisors generally have the authority to order military personnel and to direct Federal employees to appear and testify. Civilian witnesses who are not Federal employees may agree to appear, and, may be issued invitational travel authorizations, if necessary. This authority should be used only if the information cannot otherwise be obtained, and only after coordinating with the legal advisor and appointing authority. Witnesses cannot be compelled by commanders, supervisors, or IOs to incriminate themselves; to make a statement or produce evidence that is not material; or to make a statement or produce evidence that might tend to degrade them.

(5)                      Before concluding a witness interview, ensure that the witness provides reliable contact information to facilitatefuture contact, should this be necessary. Contact information should be recorded on the DA Form 2823, if this form is used, and must be properly safeguarded if it includes PII.

d. Rights advisement.

(1)                      All Soldiers and civilian personnel suspected of criminal misconduct must be advised of their rights before beingquestioned. A DA Form 3881 should be used to record whether the witness understands his or her rights, and whether the witness elects to waive those rights and make a statement. In some cases, it may be necessary to provide the rights warning at the outset of the interview. In other cases, however, an IO will become aware of the witness’s involvement in criminal activity only after the interview has started and incriminating evidence is uncovered. In such case, rights warnings must be provided as soon as the IO suspects that a witness may have been involved in criminal activity. If a witness elects to assert his or her rights and requests an attorney, all questioning must cease immediately. No negative inference may be made against an individual who elects to assert his or her Article 31, UCMJ, or Fifth Amendment rights. In certain cases, the appropriate authority may provide a witness or respondent a grant of testimonial immunity under the provisions of AR 27–10. A grant of testimonial immunity has the practical effect of nullifying a prior invocation of the right to remain silent, if any, and requires the grantee to testify. If the IO believes a grant of testimonial immunity may be warranted, the IO should consult with the legal advisor and the appointing authority.

(2)                      Note that these rights apply only to information that might be used to incriminate the witness. They cannot beinvoked to avoid questioning on matters that do not involve violations of criminal law or where a privilege does not apply. Finally, only the individual who would be accused of the crime may assert these rights. The rights cannot be asserted to avoid incriminating other individuals.

(3)                      Every effort must be made to record the rights advisement. In the event a DA Form 3881 cannot be used, the IOshould make every reasonable effort to have the witness acknowledge, in writing, that he or she was advised of his rights, and that he or she either waived or invoked those rights.

(4)                      If the IO is unsure whether to advise a witness of his or her rights, or encounters a situation where there is aquestion concerning rights advisement (for example, the witness invokes his or her rights, but later approaches the IO to provide a statement), the IO should seek advice from the legal advisor.

e. Scheduling witness interviews. The IO will need to determine which witnesses should be interviewed, and in what order. Often, information provided by one witness can raise issues that should be discussed with another. Logically organizing the witness interviews will save time and effort that would otherwise be spent “backtracking” to reinterview prior witnesses concerning information provided by subsequent witnesses. While re-interviewing witnesses may be unavoidable in some circumstances, it should be kept to a minimum. The following suggests an approach to organizing witness interviews, but it is not mandatory.

(1)           When planning who to interview, work from the center of the issue outward. Identify the people who are likelyto provide the most relevant information. When conducting the interviews, start with witnesses who will provide relevant background information and frame the issues. This will allow the interviews of key witnesses to be as complete as possible, avoiding the "backtracking" described above.

(2)           Concentrate on those witnesses (other than the subject) who would have the most direct knowledge about theevents in question. Without unnecessarily disclosing the evidence obtained, attempt to seek information that would support or refute information already obtained from others. In closing an interview, it is appropriate to ask if the witness has any other information the witness believes may be relevant to the inquiry or knows of any other persons who might have useful information.

(3)           Any information that is relevant should be collected, regardless of the source; however, IOs should collect thebest information available from the most direct source.

(4)           It may be necessary or advisable to interview experts having specialized understanding of the subject matter ofthe investigation, if the information may be helpful to the appointing authority in making a final determination.

(5)           At some point, there will be no more witnesses available with relevant and useful information. It is not necessaryto interview every member of a unit if, for example, only a few people have information relevant to the inquiry. Similarly, it may not be necessary to interview all relevant witnesses if the facts are clearly established and not in dispute. The IO, however, must be careful not to prematurely terminate an investigation because a few witnesses give consistent testimony.

(6)           IOs may find it useful to prepare questionnaires if they are interviewing a large number of people. Afterreviewing the completed questionnaires, the IO must conduct one-on-one interviews with individuals who may have additional relevant information.

f. Conducting witness interviews. Before conducting witness interviews, IOs may consult inspector general officials or law enforcement personnel, such as military police officers or Criminal Investigation Division agents, for guidance on interview techniques. The following suggestions may be helpful in conducting witness interviews:

(1) Prepare for the interview. While there is no need to develop scripts for the witness interviews, IOs may wish to review the information required and prepare a list of questions or key issues to be covered with each witness. While some questions may be the same for all witnesses, the IO should avoid a cookie-cutter approach to the witnesses. This will prevent the IO from missing important issues, and will maximize the use of the IO’s and the witness’s time. Generally, it is helpful to begin with open-ended questions, such as, “Can you tell me what happened on the morning of 16 April 2015?” After a general outline of events is developed, the IO should follow up with narrow, probing questions, such as, “Did you see SGT X leave the bar before or after SGT Y?” Weaknesses or inconsistent testimony can generally be better explored once the general sequence of events has been provided. Careful mission-analysis will best equip the IO to ask the important probing questions during the interview to avoid the need to re-interview. (2) Ensure the witness’s privacy. IOs should conduct the interview in a place that will be free from interruptions, and will permit the witness to speak candidly without fear of being overheard. Witnesses should not be subjected to improper questions, unnecessarily harsh and insulting treatment, or unnecessary inquiry into private affairs. IOs must not discuss detailed facts and circumstances surrounding the investigation they are conducting, except with the appointing authority, the legal advisor, and other personnel detailed by the appointing authority to assist with the investigation.

(3)           Focus on relevant information . The IO should not permit the witness to get sidetracked by irrelevant issues, no matter how important they may be to the witness. The information solicited should be material and relevant to the matter being investigated. Relevancy depends on the circumstances in each case. Compare the following examples: Example 1: In an investigation into a larceny of government property, the witness’s opinions concerning the company commander’s leadership style normally would not be relevant . Example 2: In an investigation of alleged sexual harassment in the unit, information on the commander’s leadership style might be relevant . Example 3: In an investigation of allegations that a commander has abused his or her command authority, the witness’s observation of the commander’s leadership style could be highly relevant .

(4)           Let the witness testify in his or her own words . IOs must avoid coaching the witness, or suggesting the existence or non-existence of material facts. After the testimony is completed, the IO should assist the witness in preparing a written statement that includes all relevant information, and presents the testimony in a clear and logical fashion. Written testimony should reflect the witness’s own words and be natural. Stilted "police blotter" language is not helpful and detracts from the substance of the testimony. A tape recorder may be used, but the witness must be advised of its use, and the tape must be safeguarded, even after the investigation is completed. IOs must ensure that all necessary information is filled-in and all appropriate boxes completed on the DA Form 2883. If a witness makes any edits to his or her statement, the witness must initial the change to document to show that it was an authorized edit.

(5)           Protect the interview process . In appropriate cases, an IO should direct witnesses not to discuss their statement or testimony with other witnesses or with persons who have no official interest in the proceedings until the investigation is complete. This precaution is recommended to eliminate possible influence on testimony of witnesses still to be heard. Witnesses, however, are not precluded from discussing matters with counsel.

g. Rules of Evidence. As an investigation is an administrative proceeding, the rules of evidence normally used in court proceedings do not apply. The evidence that may be used is limited by only a few rules. The IO should consult the legal advisor if he or she has any questions concerning the applicability of any of these rules.

(1)    The information must be relevant and material to the matter or matters under investigation. Information notmeeting this standard must not be included in the investigation.

(2)    The result of polygraph examinations may be used only with the subject’s permission.

(3)    Privileged communications between husband and wife, priest and penitent, attorney and client, psychotherapistand patient, and victim-advocate and victim may not be considered, and present or former inspector general personnel will not be required to disclose the contents of inspector general reports, investigations, inspections, action requests, or other memoranda without appropriate approval.

(4)    "Off-the-record" statements will not be considered for their substance, but may be used to find additionalevidence.

(5)    An involuntary statement by a member of the Armed Forces regarding the origin, incurrence, or aggravation of adisease or injury will not be considered.

h. Standard of Proof. Unless another specific regulation or directive states otherwise, AR 15–6 provides that findings must be supported by "a greater weight of evidence than supports a contrary conclusion." That is, findings should be based on evidence, which, after considering all of the evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion. This is known as the “preponderance of the evidence” standard.

C–4. Concluding the investigation

a. Preparing findings and recommendations. After all the evidence is collected, the IO must review it and make findings. The IO should consider the evidence thoroughly and impartially, make findings of fact supported by the evidence, make recommendations consistent with the findings, and comply with the instructions of the appointing authority. The IO must consider evidence on all sides of the issue.

(1)                      Facts . To the extent possible, the IO should fix dates, places, persons, and events definitely and accurately. The IO should be able to answer questions such as: “What occurred?” “When did it occur?” “How did it occur?” “Who was involved, and to what extent?” Exact descriptions and values of any property at issue in the investigation should also be provided.

(2)                      Findings . A finding is a clear and concise statement that can be readily deduced from the evidence in the record. Findings (including findings of no fault, no loss, or no wrongdoing) must be supported by the documented evidence that will become part of the report. In developing findings, IOs are permitted to rely on the facts and any reasonable inferences that may be drawn from the facts and evidence. In stating findings, IOs must refer to the exhibit or exhibits relied upon in making each finding. Exhibits should be numbered in the order they are discussed in the findings. (3) Recommendations . Recommendations should take the form of proposed courses of action that are consistent with the findings, such as disciplinary action, the imposition of financial liability, or corrective action. Recommendations must follow logically from the findings. Each recommendation should cite the specific findings that support the recommendation. Recommendations regarding disciplinary actions should not include a recommendation for a specific level or type of punishment, unless directed by the appointing authority. For example, if the IO believes that an Article 15 is appropriate, he or she should recommend, “Appropriate action under the Uniform Code of Military Justice should be considered.” The IO should not recommend that the “Individual receive punishment under the Uniform Code of Military Justice.” Findings and recommendations must be provided on DA Form 1574–1. It is permissible, however, to refer to an attached memorandum.

(4) Draft structure. The IO should use short, declarative sentences and simple words when drafting the findings and recommendations. All medical, legal, or technical terms should be defined, and the use of abbreviations should be minimized. When using an abbreviation, the IO should write out the term the first time it is used, followed by its abbreviation. The IO must remember that the report of investigation may later be reviewed by higher commands, family members, and the media, who may not be familiar with certain technical terminology and abbreviations.

b. Preparing the submission to the appointing authority. After developing the findings and recommendations, the IO

should complete the DA Form 1574–1 and assemble the packet:

(1)                      All administrative documents, such as the memorandum of appointment, rights warning statements, Privacy Actstatements, and the chronology, will be marked as enclosures.

(2)                      Every item of evidence offered or received by the IO will be marked as an exhibit, and each item of evidencewill be marked separately. The packet should include an index for the enclosures and exhibits. Each enclosure or exhibit should be clear, complete, legible, and labeled on the first page with the word “Enclosure” or “Exhibit,” as appropriate, followed by the number (for example, Enclosure 1 or Exhibit 1).

(3)                      If photographs and/or videos are included as part of an investigation, the IO must indicate the date/time groupwhen the photographs/videos were taken, and identify the photographer or the videographer.

(4)                      Care should be taken to organize the report of investigation in a logical, coherent, and useful manner for theapproval authority.

(5)                      As reports of investigation may be provided to family members or reviewed by multiples entities, classifiedinformation should be omitted, unless inclusion of the classified material is absolutely essential. In the latter case, the IO will produce a classified and unclassified written report.

(6)                      Unless directed otherwise, the report should be packaged in a manner conducive to electronic scanning and/orcopying. The use of document protectors, tabs, and fasteners should be kept to a minimum. The IO should be prepared to provide a complete copy of the report of investigation in electronic format to ease review, distribution, and storage.

(7)                      As a general rule, a report of investigation may not be released until the approval authority has approved it andthe report is final. The approval authority should designate who has the authority to release the investigation. c. Legal review.

(1) AR 15–6 requires that all investigations be reviewed by an attorney for legal sufficiency. Other specific regulations or directives may also require a legal review. Generally, the legal review will determine:

(a) Whether the investigation complies with requirements in the appointing order and other legal requirements. (b) The effects of any errors in the investigation.

(c) Whether sufficient evidence supports the findings (including findings of no fault, no loss, or no wrongdoing) and (d) Whether the recommendations are consistent with the findings.

(2)           The legal review will identify substantive errors with the report of investigation and suggest recommendations tothe approval authority that would remedy the errors or improve the investigation.

(3)           The legal review may also advise the approval authority whether additional investigation is necessary oradvisable.

(4)           A legal review is required before the approval authority approves the findings and recommendations. Afterreceiving a completed investigation, the approval authority may approve, disapprove, or modify the findings and recommendations, or may direct further action, such as the taking of additional evidence, or making additional findings.

d. Final use of report of investigation. Once approved by the approval authority, the report of investigation may be used in a variety of ways, to include forming the basis for command decisions, adverse personnel actions, family notifications, and reports to higher headquarters. It will be stored appropriately and may be released to the general public via a FOIA request. It is important, therefore, that the IO conducts the investigation in accordance with the applicable regulations and directives, and produces a report that is thorough, professional, and well-written.

C–5. Checklist for investigating officers

a. Preliminary matters.

(1)       Has the appointing authority appointed an appropriate IO based on seniority, availability, experience, andexpertise? Do the individual’s professional or personal obligations interfere with performance of this duty? Is the IO senior by date of rank or civilian equivalent grade to anyone being investigated?

(2)       Does the appointment memorandum clearly state the purpose and scope of the investigation, the points ofcontact for assistance (if appropriate), and the nature of the findings and recommendations required?

(3)       Has the initial legal briefing been accomplished?

(4)       Have background materials been identified and/or provided to the IO? b. Investigative plan.

(1)              Does the investigative plan outline the background information that must be gathered, identify the witnesses whomust be interviewed, and order the interviews in the most efficient and effective manner?

(2)              Does the plan identify witnesses not locally available and address alternative ways of interviewing them?(3) Does the plan identify information not immediately available and outline steps to obtain the information? c. Conducting the investigation.

(1)    Is the chronology being maintained in sufficient detail to identify causes for unusual delays?

(2)    Is the information collected (witness statements, memoranda for record of phone conversations, photographs, andso forth) being retained and organized?

(3)    Is routine coordination with the legal advisor being accomplished?

(4)    Is all evidence relevant and material to an issue being investigated?

(5)    Are all military personnel who are subjects of the investigation or suspects properly flagged?

d. Preparing findings and recommendations.

(1)           Is the evidence assembled in a logical and coherent fashion?

(2)           Does the evidence support the findings (including findings of no fault, no loss, or no wrongdoing)? Does eachfinding cite the exhibit(s) that support it? Does each finding address inconsistent evidence?

(3)           Are the recommendations supported by the findings? Does each recommendation cite the finding(s) that supportit?

(4)           Are the findings and recommendations responsive to the tasking in the appointment memorandum?

(5)           Did the investigation address all the issues (including whether identified issues resulted from policies, procedures, resources, doctrine, training, or leadership—or a lack thereof)?

e. Final action. Any report of investigation may be returned by reviewing officials. Therefore, it is in the IO’s interest to be aware of the status of the investigation, even after it is submitted, and to be available to answer any follow-up questions in an efficient manner, so as to preclude an otherwise unnecessary return of the investigation. An IO should be aware of and track the following events:

(1)    Was the report of investigation submitted to the servicing SJA or legal advisor for a legal review?

(2)    Was the investigation turned in on time?

(3)    Did the approval authority approve the findings and recommendations? If not, have appropriate amendmentsbeen made and approved?

Appendix D Suggested Procedure for Board with Respondents

D–1. About this appendix

The dialogue in paragraph D-3 provides a sample script that may be used for boards of officers conducted in accordance with chapter 7 of this regulation.

D–2. Appendix terms defined

PRES: The president of the board of officers is a role filled by the senior voting member present.

LA: legal advisor.

LA (PRES): legal advisor, if one has been appointed; otherwise the board president.

RCDR: recorder (junior member of the board if no recorder has been appointed). If the board consists of only one member, that member has the responsibilities of both PRES and RCDR.

RESP: respondent.

RESP (COUNSEL): respondent or respondent’s counsel, if any.

D–3. Preliminary matters

PRES: This hearing will come to order. This board of officers has been called to determine___________.

When RESP is without counsel:____________

PRES: _____, you may, if you desire, obtain civilian counsel at no expense to the Government for this hearing. If you do not obtain civilian counsel, you are entitled to be represented by a military counsel designated by the appointing authority. Do you have counsel?

RESP: No (Yes).

If RESP has counsel the RCDR should identify that counsel at this point for the record. If RESP does not have counsel, the PRES should ask this question:

PRES: Do you desire to have military counsel?

RESP: Yes (No).

If RESP answers “yes,” the PRES should adjourn the hearing and ask the appointing authority to appoint counsel for RESP (see para 7-6b). If counsel is supplied, the RCDR should identify that counsel for the record when the board reconvenes.

A reporter and an interpreter, if used, should be sworn.

RCDR: The reporter will be sworn.

RCDR: Do you swear (or affirm) that you will faithfully perform the duties of reporter to this board, (so help you God)?

REPORTER: I do.

RCDR: The interpreter will be sworn.

RCDR: Do you swear (or affirm) that you will faithfully perform the duties of interpreter in the case now in hearing, (so help you God)?

INTERPRETER: I do.

RCDR: The board is appointed by Memorandum of Appointment, Headquarters_________ , dated ______. Have all members of the board read the memorandum of appointment? (If not, the memorandum of appointment is read aloud by RCDR or silently by any member who has not read it.)

When RESP has been designated by a separate memorandum of appointment, the same procedure applies to that memorandum of appointment.

RCDR: May the memorandum of appointment be attached to these proceedings as Enclosure I?

PRES: The memorandum of appointment will be attached as requested.

RCDR: The following members of the board are present:_______________________.

The following members are absent:_________________________.

RCDR should account for all personnel of the board, including RESP and COUNSEL, if any, as present or absent at each session. RCDR should state the reason for any absence, if known, and whether the absence was authorized by the appointing authority.

PRES: _____________, you may challenge any member of the board (or the legal advisor) for lack of impartiality. Do you desire to make a challenge?

RESP (COUNSEL): No. (The respondent challenges_________________)

If RESP challenges for lack of impartiality, the legal advisor determines the challenge. See paragraph 7-7. If sustaining a challenge results in less than a quorum, the board should recess until additional members are added. See paragraph 7-2b. If RESP challenges the legal advisor, the PRES shall decide the challenge.

RCDR swears board members, if required. PRES then swears RCDR (if required).

RCDR: The board will be sworn.

All persons in the room stand while RCDR administers the oath. Each voting member raises his or her right hand as RCDR calls his or her name in administering the following oath:

RCDR: Do you, Colonel________ , Lieutenant Colonel______ , Major_____swear (affirm) that you will faithfully perform your duties as a member of this board; that you will impartially examine and inquire into the matter now before you according to the evidence, your conscience, and the laws and regulations provided; that you will make such findings of fact as are supported by the evidence of record; that, in determining those facts, you will use your professional knowledge, best judgment, and common sense; and that you will make such recommendations as are appropriate and warranted by your findings, according to the best of your understanding of the rules, regulations, policies, and customs of the service, guided by your concept of justice, both to the Government and to individuals concerned (so help you God)?

MEMBERS: I do.

The board members lower their hands but remain standing while the oath is administered to LA and to RCDR, if required.

PRES: Do you,__________, swear (or affirm) that you will faithfully perform the duties of (legal advisor) (recorder) of this board (so help you God)?

LA/CDR: I do.

All personnel now resume their seats.

PRES may now give general advice concerning applicable rules for the hearing.

RCDR: The respondent was notified of this hearing on______________20____.

RCDR presents a copy of the memorandum of notification with a certification that the original was delivered (or dispatched) to RESP (para 7-5) and requests that it be attached to the proceedings as Enclosure___.

PRES: The copy of the memorandum of notification will be attached as requested.

Presentation of evidence by the recorder

RCDR may make an opening statement at this point to clarify the expected presentation of evidence.

RCDR then calls witnesses and presents other evidence relevant to the subject of the proceedings. RCDR should logically present the facts to help the board understand what happened. Except as otherwise directed by PRES, RCDR may determine the order of presentation of facts. The following examples are intended to serve as a guide to the manner of presentation, but not to the sequence.

RCDR: I request that this statement of (witness) be marked Exhibit____ and received in evidence. This witness will not appear in person because ___________.

LA (PRES): The statement will (not) be accepted.

RCDR may read the statement to the board if it is accepted.

RCDR: I request that this (documentary or real evidence) be marked as Exhibit___ and received in evidence.

A foundation for the introduction of such evidence normally is established by a certificate or by testimony of a witness indicating its authenticity. LA (PRES) determines the adequacy of this foundation. If LA (PRES) has a reasonable basis to believe the evidence is what it purports to be, he or she may waive formal proof of authenticity.

RCDR: The recorder and respondent have agreed to stipulate________________.

Before LA (PRES) accepts the stipulation, he or she should verify that RESP joins in the stipulation.

LA (PRES): The stipulation is accepted.

If the stipulation is in writing, it will be marked as an exhibit.

RCDR conducts direct examination of each witness called by RCDR or at the request of PRES or members. RESP or COUNSEL may then cross-examine the witness. PRES and members of the board may then question the witness, but PRES may control or limit questions by board members.

RCDR: The board calls _______________as a witness.

A military witness approaches and salutes PRES, then raises his or her right hand while RCDR administers the oath. A civilian witness does the same but without saluting. See MCM, Rules for Court-Martial 807, for further guidance with regard to oaths.

RCDR: Do you swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth (so help you God)?

If the witness desires to affirm rather than swear, the words “so help you God” will be omitted.

WITNESS: I do.

The witness then takes the witness chair. RCDR asks every witness the following question no matter who called the witness.

RCDR: What is your full name (grade, branch of service, organization, and station) and address?

Whenever it appears appropriate and advisable to do so, the board should explain the rights of a witness under Article 31 of the UCMJ or the Fifth Amendment to the Constitution. See paragraph 3-7d(5).

If the report of proceedings will be filed in a system of records under the witness’ name, the board must advise that witness in accordance with the Privacy Act. See paragraph 3-8e. Normally, this requirement applies only to RESP.

RCDR then asks questions to develop the matter under consideration.

RCDR: The recorder has no further questions.

RESP (COUNSEL) may cross-examine the witness. RCDR may then conduct a redirect examination, and re-cross may follow.

RCDR: Does the board have any questions?

Any board member wishing to question the witness should first secure the permission of the PRES.

If RCDR and RESP (COUNSEL) wish to ask further questions after the board has examined the witness, they should seek permission from the PRES. PRES should normally grant such requests unless the questions are repetitive or go beyond the scope of questions asked by the board.

When all questioning has ended, PRES announces:

PRES: The witness is excused.

PRES may advise the witness as follows:

PRES: Do not discuss your testimony in this case with anyone other than the recorder, the respondent, or his or her counsel. If anyone else attempts to talk with you about your testimony, you should tell the person who originally called you as a witness.

Verbatim proceedings should indicate that the witness (except RESP) withdrew from the room.

Unless expressly excused from further attendance during the hearing, all witnesses remain subject to recall until the proceedings have ended. When a witness is recalled, the RCDR reminds such witness, after he or she has taken the witness stand:

RCDR: You are still under oath.

The procedure in the case of a witness called by the board is the same as outlined above for a witness called by RCDR.

RCDR: I have nothing further to offer relating to the matter under consideration.

Presentation of respondent’s evidence

RESP (COUNSEL): The respondent has (an) (no) opening statement.

RESP presents his or her stipulations, witnesses, and other evidence in the same manner as did RCDR. RCDR administers oath to all witnesses and asks the first question to identify the witness.

Should the RESP be called to the stand as a witness, the RCDR will administer the oath and ask the following preliminary questions, after which the procedure is the same as for other witnesses:

RCDR: What is your name, (grade, branch of service, organization, and station) (address, position, and place of employment)?

RESP: ________________________.

RCDR: Are you the respondent in this case?

The board may advise RESP of his or her rights under Article 31 of the UCMJ, or the Fifth Amendment of the Constitution. See paragraph 3-7c(5).

If the report of proceedings will be filed in a system of records under RESP’s name, the board must advise RESP in accordance with the Privacy Act. See paragraph 3-8e.

When RESP has concluded his or her case, RESP announces:

RESP (COUNSEL): The respondent rests.

RCDR: The recorder has no further evidence to offer in this hearing. Does the board wish to have any witnesses called or recalled?

PRES: It does (not).

Closing arguments and deliberations

PRES: You may proceed with closing arguments.

RCDR: The recorder (has no) (will make a) closing argument.

RCDR may make the closing argument and, if any argument is made on behalf of RESP, the rebuttal argument. Arguments are not required (see para 7-9). If no argument is made, RESP or RCDR may say:

RESP (COUNSEL)/RCDR: The (respondent) (recorder) submits the case without argument.

PRES: Is there any other matter the respondent would like to submit to the board prior to the board adjourning? PRES: The hearing is adjourned.

Adjourning the hearing does not end the duties of the board. It must arrive at findings based on the evidence and make recommendations supported by those findings. See chapter 3, section II. Findings and recommendations need not be announced to RESP, but in certain proceedings, such as elimination actions, they customarily are. RCDR is responsible for compiling the report of proceedings and submitting properly authenticated copies thereof to the appointing authority. See chapter 3, section III.

Appendix E Internal Control Evaluation

E–1. Function

The function covered by this evaluation is the Army investigative process.

E–2. Purpose

The purpose of this evaluation is to assist in evaluating key internal controls listed below. It is not intended to address all controls.

E–3. Instructions

Answers must be based on the actual testing of key internal controls (such as document analysis, direct observation, interviewing, sampling, or simulation). Answers that indicate deficiencies must be explained and corrective action indicated in supporting documentation. These key internal controls must be formally evaluated at least once every 2 years. Certification that this evaluation has been conducted must be accomplished on DA Form 11–2 (Internal Control Evaluation Certification).

E–4. Test questions

a.     In choosing between an administrative investigation or a board of officers, does the appointing authority give due

consideration to the factors listed in this regulation?

b.     Was the advice of a serving SJA or legal advisor sought prior to determining the appropriate type of inquiry or

investigation?

c.     Are matters appropriately referred to the Inspector General or Criminal Investigations Command under the

provisions of AR 20–1 and AR 195–2?

d.     Are preliminary inquiries, administrative investigations, or boards of officers found to be legally sufficient and

not requiring reinvestigation?

e.     When circumstances dictate, are reports marked in accordance with AR 380–5 and properly released in accord-

ance with FOIA and PA requirements?

E–5. Comments

Help make this a better tool for evaluating Army administrative investigations. Comments regarding this evaluation should be addressed to the Administrative Law Division, Office of The Judge Advocate General, (DAJA–AL), 2200 Army Pentagon, Washington, DC 20310–2200.

Section I Abbreviations

Army Regulation

Department of Defense

Department of Defense Instruction

Freedom of Information Act

General Court-Martial Convening Authority

General Schedule

Health Insurance Portability and Accountability Act

investigating officer

judge advocate

Manual for Courts-Martial, United States, 2012

Military Rules of Evidence

Privacy Act

Rules for Courts-Martial

staff judge advocate

special court-martial convening authority

The Judge Advocate General

Uniform Code of Military Justice

United States Code

Section II Terms

Adverse administrative action

Adverse action taken by appropriate military authority against an individual other than actions taken pursuant to the

UCMJ or MCM.

Adverse information

Adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual. The following types of information, even though credible, are not considered adverse: (1) motor vehicle violations that did not require a court appearance; (2) minor infractions without negative effect on an individual or the good order or discipline of the organization that: (a) were not identified because of substantiated findings or conclusions from an officially documented investigation; and (b) did not result in more than a nonpunitive rehabilitative counseling administered by a superior to a subordinate.

Collateral investigation

An investigation performed under investigatory procedures specified in other Army regulations. While collateral investigations may address some of the same issues as AR 15–6 investigations, they are used for other purposes.

Combatant commander

A commander of one of the unified or specified combatant commands established by the President.

Complex, serious, and/or high-profile case

An incident being investigated that involves a death or serious bodily injury; may result in adverse administrative or disciplinary action; may result in substantive changes in Army policies or procedures; may be of significant public, media, or Congressional interest; or may be of interest to senior DA or DOD officials. Examples of high-profile cases include, but are not limited to, suicides, friendly-fire incidents, incidents of abuse of a special trust relationship (for example, chaplains, doctors, cadre, and guards), incidents involving extremist motives, and incidents involving highranking officers, noncommissioned officers and civilians.

Criminal investigation

An investigation of a criminal incident or allegation conducted by the USACIDC, MPI, DA detectives, or civilian law enforcement personnel.

Friendly fire

A circumstance in which authorized members of U.S. or friendly military forces, U.S. or friendly official government employees, U.S. DOD or friendly nation contractor personnel, and nongovernmental organizations or private volunteer organizations, who, while accompanying or operating with the U.S. Armed Forces, are mistakenly or accidentally killed or wounded in action by U.S. or friendly forces actively engaged with an enemy or who are directing fire at a hostile force or what is thought to be a hostile force.

High profile

A high profile investigation is any investigation that is likely to garner media attention because of the individuals involved in the investigation/board or the subject matter of the investigation/board.

Legal advisor

A judge advocate or Department of the Army civilian attorney who, based on assignment or appointment, provides legal and practical advice to appointing authorities, approval authorities, investigating officers, and boards of officers, regarding the appointment of preliminary inquiries, administrative investigations, and boards of officers, the conduct of such proceedings, and the actions taken pursuant to such proceedings.

Military exigency

An emergency situation requiring prompt or immediate action to obtain and record facts.

Personally identifiable information

Information used to distinguish or trace an individual’s identity, such as name, Social Security number, date and place of birth, mother’s maiden name, biometric records, home phone numbers, other demographic, personnel, medical, and financial information. PII includes any information that is linked or linkable to a specified individual, alone, or when combined with other personal or identifying information.

Preponderance of the evidence

Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Preponderance of the evidence may not be determined by the number of witnesses, but by the greater weight of all evidence.

A designated person involved in an incident or event under investigation by a board in such a way that disciplinary action may follow, the person’s rights or privileges may be adversely affected, or the person’s reputation or professional standing may be jeopardized. A designated respondent must be flagged in accordance with AR 600–8–2.

A person involved in an incident or event under investigation in such a way that disciplinary action may follow, the person’s rights or privileges may be adversely affected, or the person’s reputation or professional standing may be jeopardized. Although subject and suspect are often used interchangeably, the subject of an investigation may not be suspected of violating a criminal law, but rather failure to comply with a duty, obligation, regulation, or other requirement that could result in adverse action. A subject must be flagged, in accordance with AR 600–8–2.

A person about whom some credible information exists to believe that the person committed a particular criminal offense. A suspect must be flagged, in accordance with AR 600–8–2.

System of records

A group of records under the control of an agency from which information is retrieved by the name of the individual, or by some identifying number, symbol, or other identifying particular assigned to the individual.

Section III Special Abbreviations and Terms

This section contains no entries.

                                                                           UNCLASSIFIED                  PIN 999999–999

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When facing an AR 15-6 Investigation or command directed investigation where you are the subject, accused of misconduct or poor leadership, there is only one military law firm to call in Germany: The Law Office of Will M. Helixon. Call today for a free initial consultation.

Ar 15-6 investigations – command directed investigations.

AR 15-6 Investigations are command-directed investigations initiated in response to allegations of Soldier misconduct, poor leadership, command climate issues, or when the commander seeks resolution to an unresolved question or issue that may require command actions. These administrative investigations are conducted in accordance with Army Regulation AR 15-6 and are typically carried out by a single Investigating Officer (IO) who holds a higher rank than the subject under investigation. This webpage serves as a comprehensive guide to understanding the process of an AR 15-6 Investigation. It outlines the procedural requirements and rights afforded to the subject throughout the investigation. Additionally, it offers valuable recommendations on how to effectively respond to such an investigation. If you find yourself as the subject of an AR 15-6 Investigation , we strongly advise you to contact one of the military lawyers at the Law Office of Will M. Helixon . They will provide you with an immediate and complimentary consultation, ensuring that you fully comprehend your rights and responsibilities concerning the investigation.

Table of Contents - Page Contents

What are Army Regulation (AR 15-6 Investigations) or Command Directed Investigations?

An AR 15-6 Investigation is a fact-finding inquiry into questions posed by an appointing authority.  These questions usually involve issues of alleged Soldier misconduct, leadership style, toxic leadership, and command climate.  The typical areas of misconduct involve adultery, inappropriate relationships, fraternization, cruelty and maltreatment of subordinates, sexual harassment, violation of orders and regulations, misuse of government resources, hazing, and other military related misconduct.  Criminal offenses are typically not the question for AR 15-6 Investigations , such as sexual misconduct offenses , assault type offense, larceny and fraud offenses , and other crimes against persons and property.  They are typically investigated by law enforcement such as MPs, MPI, CID, or other MCIOs (Military Criminal Investigation Organizations) .  There are certain regulatory AR 15-6 Investigations such as loss of aircraft, loss of property over $2,000,000, illness likely to result in death or disability, combat causalities, and friendly fire incidents, that must be appointed by the GCMCA.

What is the Standard or Burden of Proof in an AR 15-6 Investigation of Command Directed Investigation?

The standard of proof, or burden of proof, in an AR 15-6 Investigation is based on the principle of proving allegations “by the preponderance of the evidence.” This standard is commonly employed in civil lawsuits to determine the prevailing side and is also referred to as the “balance of probabilities” standard. It can be understood as a “more likely than not” standard or proof beyond a 50.1% threshold.

In the context of an AR 15-6 Investigation , the government, represented by the Investigating Officer and Approving Authority, carries the burden of proving adverse findings or misconduct through a preponderance of the evidence. This means they must present sufficient evidence to establish that, based on the information available, the investigated allegations are more likely to be true than not. The government’s objective is to demonstrate that their account of events is more probable than the subject Soldier’s version. It’s important to note that the preponderance of the evidence standard is less stringent than the “beyond a reasonable doubt” standard used in criminal trials and courts-martial. This distinction arises from the fact that the consequences of losing a civil case are typically less severe compared to criminal cases or courts-martial.

What is the Purpose of AR 15-6 Investigations and Command Directed Investigation?

An AR 15-6 Investigation serves as a crucial process for gathering evidence, determining facts, and providing recommendations to the approval authority. Whether it’s a preliminary inquiry, collateral investigation, administrative investigation, or board of officers, the primary objective remains the same. The Investigating Officer’s responsibility is to thoroughly and impartially examine all relevant evidence, adhere to the appointing authority’s instructions, and issue findings and recommendations that are supported by the evidence.

In addition to addressing specific questions outlined in the appointment memorandum, the Investigating Officer should also consider broader issues such as policies, procedures, doctrine, training, resourcing, and leadership. These aspects are deemed relevant whenever the Investigating Officer determines their impact on the matters or conduct under investigation (refer to paragraph 3–9, AR 15-6).

During an AR 15-6 Investigation , the Investigating Officer plays a vital role in gathering facts, preserving evidence, making well-founded findings, and delivering impartial recommendations to the approval authority. The investigation encompasses various types, including preliminary inquiries, collateral investigations, administrative investigations, and boards of officers. Adhering to the instructions provided by the appointing authority, the Investigating Officer’s duty is to thoroughly analyze evidence from all perspectives. Findings and recommendations should align with the evidence and address not only specific inquiries but also broader issues such as policies, procedures, doctrine, training, resourcing, and leadership, whenever they bear relevance to the investigation. More details on the procedures can be found in paragraph 3–9 of AR 15-6.

Who can Appoint AR 15-6 Investigations to Conduct an Administrative Investigation or Board of Officers?

Authority to appoint a board of officers..

In the context of an AR 15-6 Investigation , several individuals possess the authority to appoint boards of officers to investigate matters falling within their respective areas of responsibility. These individuals include:

• General Court-Martial Convening Authority (GCMCA) or Special Court-Martial Convening Authority (SPCMCA): This encompasses those who exercise such authority for administrative purposes only.
• General or Flag Officers: Individuals holding the rank of general or flag officer.
• Commanders, Deputy Commanders, Special/Personal/Principal Staff Officers: Officers of the rank of colonel or above (with exceptions for lieutenant colonels assigned to authorized colonel slots) at HQDA, installation, activity, or unit levels.
• State Adjutant General: The adjutant general of a state.
• Civilian Supervisors: Civilian supervisors permanently assigned to positions graded as General Schedule (GS)-14 or above, serving as heads of agencies, activities, divisions, or directorates.
• Principal Deputies, Assistant Deputy Chiefs of Staff, Assistant Secretaries of the Army: These individuals are authorized to act as appointing authorities at the HQDA level.

These appointing authorities hold the responsibility to assign boards of officers for conducting investigations as part of the AR 15-6 Investigation process.

Authority to Appoint an Administrative Investigation with an Investigating Officer (IO).

The following individuals may appoint an administrative investigation to inquire into matters within their areas of responsibility: 1) any officer or civilian employee authorized to appoint a board; 2) a commander at any level; and 3) a special, personal, or principal staff officer or supervisor in the grade of major or above.

Authority to Appoint Serious Incident Investigation.

When it comes to AR 15-6 Investigations , specific criteria determine the authorities responsible for appointing administrative investigations or boards of officers, particularly for Class A accidents. In cases where an incident results in property damage of $2 million or more, or the loss/destruction of an Army or unmanned aircraft system with a replacement/repair cost exceeding $2 million, only a General Court-Martial Convening Authority (GCMCA) or a general/flag officer assigned to a command billet with a servicing SJA typically holds the authority to make such appointments.

For Class A training accidents that lead to the permanent total disability or death of one or more individuals, or combat-related deaths involving non-DOD personnel or an insider (green on blue) attack, the administrative investigation or board of officers must be appointed by the next superior authority to the GCMCA or authorized general/flag officer.

Regarding friendly fire incidents, as per DODI 6055.07 , the combatant commander bears the responsibility of convening an investigation to inquire into such occurrences. Additionally, in situations involving the death(s) of deployed U.S. forces due to suspected hostile fire, the GCMCA or general/flag officer commander can delegate their appointing/approval authority in writing to a Special Court-Martial Convening Authority (SPCMCA) or a subordinate general/flag officer.

What if there is a Conflict of Interest with an Appointing Authority Appointing an IO for an AR 15-6 Investigation? 

When it comes to AR 15-6 Investigations , the appointing authority must adhere to certain guidelines to ensure objectivity and fairness. An individual who is reasonably likely to become a witness to an inquiry, investigation, or board should not be the appointing authority. Likewise, if an individual possesses an actual or perceived bias towards or against the potential subject of the investigation, or if there is an actual or perceived conflict of interest regarding the investigation’s outcome, they should refrain from appointing an inquiry, investigation, or board.

In such cases, it is the responsibility of the potential appointing authority to forward the matter to the next superior commander or appointing authority. It is the latter’s duty to determine whether further investigation is warranted and, if so, which proceeding—whether an inquiry, administrative investigation, or board—should be employed.

An actual or perceived bias can arise if the subject is part of the potential appointing authority’s principal, special, or personal staff. Similarly, an actual or perceived conflict of interest can arise if the investigation scrutinizes the potential appointing authority’s policies or decisions. By following these procedures, the integrity and impartiality of the AR 15-6 Investigation process can be upheld.

What type of AR 15-6 Investigations can be Appointed?

There are (4) different types of AR 15-6 Investigations the Army: 1) a preliminary inquiry; 2) an administrative investigation; 3) a collateral investigation; or 4) a board of officers.  Each will be described below:

What is a Preliminary Inquiry?

A preliminary inquiry is an informal investigation designed to achieve specific objectives. These include assessing the scale of a problem, interviewing and documenting witness testimonies, and determining the need for a more comprehensive investigation. While a preliminary inquiry may lead to the appointment of an administrative AR 15-6 investigation , it does not require adherence to the procedural requirements of an administrative investigation or board. In some cases, a preliminary inquiry can satisfy the preliminary inquiry requirement, also known as the “commander’s inquiry,” as outlined in RCM 303, MCM. If adverse information emerges during the preliminary inquiry involving officers of the rank O1 and above, a preliminary investigation or board must be appointed.

What is an Administrative Investigation?

An administrative investigation is a more formal process than a preliminary inquiry but less formal than a board of officers. Its purpose is to examine allegations made against subject Soldiers, encompassing aspects such as leadership style, command climate, or alleged misconduct. These investigations are typically conducted by a single Investigating Officer (IO) or an investigation team comprising an IO and one or more assistant Investigating Officers assigned by the appointing authority. The IO retains the authority to make relevant findings or recommendations, including those adverse to individuals, except for officers below the rank of O1 who are not entitled to the rights of a respondent upon adverse information.

What is a Collateral Investigation?

Collateral investigations are performed concurrently with other types of investigations, such as death or safety investigations, and serve specific purposes. Regulations generally outline when a collateral investigation must be conducted, its scope, and which investigation takes priority. Unless specified otherwise in the regulations, collateral investigations adhere to the procedures established for administrative investigations as specified in AR 15-6. The appointing authority has the discretion to determine the priority of investigations unless otherwise provided by regulation.

What is a Board of Officers Investigation? 

Who can be appointed an investigating officer or board member in an ar 15-6 investigation, investigating officers and board members must be best qualified..

In the realm of AR 15-6 Investigations , it is crucial to ensure that Investigating Officers and board members possess the necessary qualifications to carry out their duties effectively. The appointing authority selects these individuals based on their education, training, experience, length of service, and demonstrated sound judgment and temperament. The key qualities expected of Investigating Officers and board members include impartiality, lack of bias, objectivity, and the ability to complete the investigation within a reasonable timeframe.

In situations where the appointing authority determines that suitable individuals with the required experience and expertise are not available within their organization, they have the option to seek assistance from a superior in their chain of command or supervision. They may also coordinate with a counterpart to secure the services of an Investigating Officer or board member who possesses the necessary education, training, experience, and expertise to conduct the investigation or board effectively. This approach ensures that the investigation or board is carried out by competent individuals who can maintain the highest standards of professionalism and fairness throughout the process.

Investigating Officers Usually Must be Commissioned or Warrant Officers, or DA Civilians in the Grade of GS 11 or Above.

In the context of AR 15-6 Investigations , the appointment of Investigating Officers and board members is subject to specific eligibility criteria. Typically, commissioned officers, warrant officers, and Department of the Army civilian employees holding positions graded as GS-11 or above are eligible to serve as Investigating Officers. These individuals possess the necessary qualifications and expertise to carry out the responsibilities effectively.

In exceptional circumstances where military exigencies arise and no commissioned officers, warrant officers, or qualified Department of the Army civilian employees are readily available, non-commissioned officers in the grade of E-7 or above may be appointed as Investigating Officers. This allows for flexibility in the selection process while ensuring that competent personnel are chosen to conduct the investigations.

When it comes to the composition of boards, the voting members may include commissioned officers, warrant officers, non-commissioned officers in the rank of E-7 or above, or Department of the Army civilian employees permanently assigned to a position graded as GS-11 or above (or equivalent). This diverse representation ensures a comprehensive and well-rounded assessment of the matters under investigation, drawing from the expertise and perspectives of different roles within the military structure.

By adhering to these guidelines, AR 15-6 Investigations can be conducted by qualified individuals who possess the necessary skills and knowledge to carry out their responsibilities effectively and maintain the integrity of the investigative process.

Investigating Officers and Board Member Must be Senior in Rank to the Soldier Investigated.

When it comes to AR 15-6 Investigations , it is essential to ensure the appropriate hierarchy and qualifications of the Investigating Officer or voting member of a board. Generally, these individuals should hold a higher rank than the person whose conduct or performance of duty is being investigated, or against whom adverse findings or recommendations may be made. This hierarchical structure helps maintain impartiality and prevent any potential conflicts of interest. However, in rare instances, exceptions to this rule may apply, but they are uncommon.

During the course of an investigation, if it becomes evident that an adverse finding may be made against a person who holds a higher rank than the Investigating Officer, immediate reporting of this discovery to the appointing authority is necessary. The appointing authority can then take appropriate action to address the situation. This reporting requirement ensures transparency and allows for the necessary steps to maintain the integrity of the investigative process.

Additionally, the appointing authority must adhere to specific regulatory requirements concerning the qualifications of Investigating Officers or board members. These requirements may include being military officers, possessing professional certification, or holding an appropriate security clearance. By complying with these regulations, the appointing authority ensures that the individuals entrusted with conducting the investigation or serving on the board possess the necessary qualifications and credentials to carry out their responsibilities effectively.

By upholding these principles, AR 15-6 Investigations can be conducted with integrity, professionalism, and adherence to the regulatory standards that govern them.

What are the Duties of the IO in an AR 15-6 Investigation or Command Directed Investigation?

Conduct a thorough and impartial investigation..

The Investigating Officer plays a crucial role in an AR 15-6 Investigation , carrying out their duties with thoroughness and impartiality. These responsibilities include conducting a comprehensive and unbiased investigation into the matters outlined in the appointing memorandum. The Investigating Officer is tasked with gathering relevant evidence, conducting interviews with involved parties, and drawing well-founded conclusions based on the evidence presented.

In fulfilling their duties, the Investigating Officer must address the specific matters outlined in the appointment memorandum, ensuring that all relevant questions are answered. They are also responsible for making recommendations based on the evidence and findings derived from the investigation. These findings and recommendations are then documented in a comprehensive Report of Investigation, which serves as an official record of the investigation’s outcomes.

It is essential that all documentary evidence gathered during the investigation is attached to the Report of Investigation as exhibits. This ensures transparency and provides a comprehensive reference for the appointing authority when reviewing the report. The Report of Investigation serves as a crucial document that informs the appointing authority’s review and subsequent actions. In cases where adverse information, such as instances of misconduct by the subject Soldier, is discovered, the Report of Investigation may serve as the basis for follow-on adverse administrative actions .

By diligently fulfilling their duties and documenting the investigation’s findings and recommendations in a thorough Report of Investigation, the Investigating Officer contributes to a fair and well-documented AR 15-6 Investigation process.

The Investigating Officer has Flexibility in Conducting the Administrative Investigation .

In order to fulfill their duties, an Investigating Officer in AR 15-6 Investigations has the flexibility to choose the most efficient and effective methods for gathering information. This allows them to tailor their approach to suit the unique circumstances of each investigation. For instance, an Investigating Officer may opt to divide the witnesses, issues, or evidentiary aspects of the investigation among assistant Investigating Officers, if they have been appointed. Each assistant Investigating Officer can then conduct individual investigations and gather relevant information pertaining to their assigned areas.

It is important to note that no collective meeting should take place until the Investigating Officer has reviewed all the information collected by the assistants. This ensures that the Investigating Officer has a comprehensive understanding of the investigation’s findings before conducting any collective discussions.

Regardless of the chosen method, the Investigating Officer must diligently develop the evidence in a manner that accurately reflects the facts and circumstances surrounding the questions and issues presented in the appointment memorandum. This comprehensive development of evidence is crucial for providing a clear and detailed account of the investigation’s findings.

By allowing flexibility in information gathering methods and emphasizing the importance of evidence development, AR 15-6 Investigations can be conducted with efficiency, effectiveness, and a commitment to uncovering the truth in a thorough and impartial manner.

Multiple Methods to Obtain Witness Statements.

In the process of conducting an AR 15-6 Investigation , the Investigating Officer has the authority to obtain witness statements through various methods, ensuring the most appropriate approach is employed to elicit and document evidence. The Investigating Officer may choose to conduct informal sessions with witnesses, using techniques that are deemed suitable for the situation. In some cases, a tape recorder may be utilized to aid in the accurate preparation of statements, but it is essential to inform the witness before recording begins.

The gathering of information for witness statements can be accomplished through personal interviews, correspondence, telephone inquiries, e-mail exchanges, video conferences using platforms like Zoom or MS Teams, or any other informal means that are appropriate and convenient. Once the necessary information has been gathered and needs to be formalized into a statement, the Investigating Officer can assist the witness in preparing a written statement to ensure its relevance and accuracy. However, it is crucial to ensure that the statement reflects the witness’s own words and perspective.

During this process, it is of utmost importance for the Investigating Officer to avoid coaching the witness or suggesting the presence or absence of specific facts. The Investigating Officer should remain impartial and refrain from influencing the witness’s account. Whenever possible, it is recommended that the witness reads, reviews, makes necessary corrections, and signs the final statement, further enhancing its accuracy and credibility.

By utilizing these procedures, the Investigating Officer can effectively collect witness statements, maintaining the integrity of the investigation while respecting the autonomy and authenticity of each witness’s testimony in AR 15-6 Investigations.

How Should an IO Conduct an AR 15-6 Investigation or Command Directed Investigation?

In the context of AR 15-6 Investigations , it is essential for the Investigating Officer to follow a systematic approach. Upon receiving the appointment memorandum, the Investigating Officer should thoroughly review its contents, including the attached evidence and exhibits. By gaining a comprehensive understanding of the appointment memorandum, the Investigating Officer should then seek a briefing from the legal advisor to discuss the raised issues and formulate an appropriate investigation strategy.

Subsequently, the Investigating Officer should develop an investigative plan, identifying the specific evidence to be collected. This may include relevant regulations, guidelines, policies, command policy letters, DOD Instructions, and other applicable laws pertaining to the matters addressed in the administrative investigation. Moreover, the Investigating Officer must identify potential witnesses, schedule interviews, and devise an interview plan encompassing relevant questions or areas of inquiry.

During the interview process, witnesses with direct knowledge of pertinent facts should be prioritized, and their testimony should be used to corroborate or refute information provided by previously interviewed witnesses (without disclosing specific details). The Investigating Officer should inquire whether the witnesses possess any documentary evidence that supports their testimonies and if there are additional witnesses with potentially relevant information who should be interviewed. To maintain the integrity of the investigation, witnesses should be instructed not to discuss their testimonies with one another.

Once all relevant witnesses have been interviewed, their testimonies should be documented in writing alongside the gathered documentary evidence. The Investigating Officer should then draft the Report of Investigation, which involves formulating findings based on the collected evidence and subsequently providing recommendations based on those findings. Before submitting the final Report of Investigation to the appointing authority for approval and final action, it is advisable to seek a final review from the legal advisor to ensure its completeness and accuracy.

By adhering to this structured approach, the Investigating Officer can effectively conduct AR 15-6 Investigations , ensuring thoroughness, fairness, and compliance with regulatory requirements.

What should the IO Consider when Drafting Findings Based on the Administrative Investigation or Command Directed Investigation?

When conducting AR 15-6 Investigations , it is crucial for the Investigating Officer to provide clear and concise findings based on the evidence in the record. Findings should either be directly established by the evidence or be a well-supported conclusion drawn from the evidence. It is important to note that negative findings, which indicate the absence of a particular fact, can also be appropriate if supported by the evidence.

The number and nature of findings required will vary depending on the purpose of the investigation and the instructions given by the appointing authority. The Investigating Officer should adhere to the scope of the investigation authorized by the appointing authority unless granted approval to exceed it. However, the Investigating Officer should address any issues encountered during the investigation that are related to policies, procedures, resources, or leadership if they are deemed relevant to the matters under investigation.

In certain cases, the Investigating Officer may find it appropriate to recommend additional inquiries into issues that fall outside the defined scope of the investigation. This may be necessary to ensure a comprehensive examination of all pertinent aspects related to the matters under investigation.

By carefully considering the evidence, adhering to the authorized scope, and providing well-supported findings, the Investigating Officer can effectively fulfill their role in AR 15-6 Investigations , contributing to a thorough and accurate assessment of the issues at hand.

What Should the IO Consider when Drafting Proposed Recommendations Based on the Findings in the ROI?

When conducting AR 15-6 Investigations , the recommendations provided by the Investigating Officer play a crucial role and should be carefully considered. The nature and extent of these recommendations will vary depending on the purpose of the investigation and the specific instructions given by the appointing authority.

It is important that each recommendation, including negative ones suggesting no further action, aligns logically with and is based on the findings established. Investigating Officers should make their recommendations in accordance with the rules, regulations, policies, and customs of the service while maintaining fairness to both the Government and the individuals involved.

Furthermore, recommendations should be clearly written and meet certain criteria to be effective. Feasibility is an essential factor, meaning that the recommendation should be capable of being implemented. Additionally, the recommendation must be executable, adhering to legal requirements and acceptable levels of risk. Suitability is another key aspect, ensuring that the recommendation addresses the identified problem or initiates a process to further assess and identify a solution.

Recommendations that do not meet these criteria may result in negative recommendations or be disregarded entirely. In some cases, they may be referred through appropriate channels to another organization for further consideration.

By carefully formulating recommendations that are consistent, feasible, executable, and suitable, the Investigating Officer can contribute to the effectiveness and integrity of the AR 15-6 Investigation process.

What is the Role of the Legal Advisors in an AR 15-6 Investigation or Command Directed Investigation?

During the conducting of the investigation..

In every AR 15-6 Investigation , it is essential to appoint a designated legal advisor who plays a vital role in ensuring the integrity and adherence to legal requirements. The appointment of a legal advisor should be done in consultation with the servicing SJA or legal advisor, and it is advisable to include this designation in the appointment memorandum.

The presence of a legal advisor serves several important purposes throughout the investigation process. Firstly, the legal advisor provides valuable advice and guidance to the Investigating Officer, addressing any questions or concerns that may arise. They collaborate with the Investigating Officer in developing an effective investigative plan, which includes identifying necessary witnesses and formulating appropriate questions.

Moreover, the legal advisor has a crucial responsibility in safeguarding the rights of the subjects involved in the investigation. They ensure that all the requirements outlined in the appointment memorandum are fulfilled and that the evidence collected supports the findings made during the investigation. Additionally, the legal advisor plays a key role in ensuring that the recommendations provided by the Investigating Officer are logically connected to the established findings.

By working closely with the Investigating Officer, the legal advisor helps to maintain compliance with legal standards, fairness, and the overall integrity of the AR 15-6 Investigation process. Their expertise and guidance contribute to a thorough, unbiased, and legally sound investigation.

Legal Review Upon the Conclusion of the Investigation.

In AR 15-6 Investigations, it is crucial for the approval authority to seek a comprehensive legal review from their servicing SJA or legal advisor. The legal review should only take place after the investigating officer’s legal advisor has thoroughly reviewed the Report of Investigation. Its purpose is to ensure that the investigation addresses all relevant questions, considers future applications of the findings, resolves any internal inconsistencies, and provides appropriate and feasible recommendations.

During the legal review, the designated legal advisor will assess several key aspects. Firstly, they will determine whether the investigation complied with all legal requirements, including those specified in the appointing memorandum. They will also identify any errors that may have occurred and evaluate their significance, assessing their impact on the proceedings. If necessary, the legal advisor will recommend actions to rectify these errors.

Moreover, the legal advisor will scrutinize the findings of the investigation, or any substituted or added findings by the approval authority, ensuring they are supported by a preponderance of evidence and not contrary to the available facts. Additionally, the legal review will assess the consistency of the recommendations with the established findings.

Furthermore, the legal review may identify the need for additional relevant findings based on the evidence or recommend further investigation to address additional concerns that may arise. This review will be conducted in writing and included as part of the investigative report, clearly marked as attorney work product and/or client advice, benefiting from legal privilege and exempt from release under FOIA.

Whenever possible, it is preferable to assign a legal advisor separate from the one supporting the investigation to conduct the legal review, ensuring an objective and unbiased evaluation. This process contributes to the overall integrity and legal compliance of the AR 15-6 Investigation.

What are the Rights of a Soldier who is the Subject of an AR 15-6 Investigation or Command Directed Investigation During the Investigation?

In AR 15-6 Investigations , it is important to understand the rights and limitations of Soldiers who are the subjects of an administrative investigation. While they are not entitled to military-appointed counsel, they do have the right to retain a civilian lawyer at their own expense. If the Soldier is suspected of violating the UCMJ, they have the right to refuse to answer questions and the right to have an attorney present during questioning.

It is essential to note that military attorneys do not establish an attorney-client relationship with the Soldier for the investigation. Instead, they advise the Soldier of their rights as a suspect. Military attorneys do not collaborate with the Investigating Officer or assist the soldier in formulating answers to written questions. They also do not attend in-person interviews with the Investigating Officer.

During the investigation, the Soldier under investigation is not entitled to know the identities of other witnesses being interviewed or the evidence that has been collected. Their rights are primarily focused on providing a statement and submitting evidence to the Investigating Officer.

It is crucial to ensure that Soldiers are aware of their limited rights and the specific parameters of their involvement in an AR 15-6 administrative investigation.

Why Should I Hire the Law Office of Will M. Helixon for Assistance DURING the AR 15-6 Investigation?

Extensive background advising commanders, investigating officers, and reviewing reports of investigations..

At the Law Office of Will M. Helixon , our team of military lawyers brings over 45 years of combined military experience, providing expert guidance to both appointing authorities and Investigating Officers conducting AR 15-6 Investigations . With extensive knowledge gained from reviewing numerous Report of Investigations for legal sufficiency during their tenure in the U.S. Army, our military lawyers possess a deep understanding of the intricacies involved.

Will M. Helixon , in particular, has firsthand experience serving as an Investigating Officer in multiple cases involving alleged Soldier misconduct, making him intimately familiar with the investigation process from both a legal advisor and investigator perspective. Throughout their careers, the military lawyers at the Law Office of Will M. Helixon have provided valuable counsel to commanders on potential administrative, nonjudicial, and judicial actions resulting from adverse findings in AR 15-6 Investigations .

Furthermore, both John Caulwell and Will M. Helixon have actively assisted clients during ongoing AR 15-6 Investigations, offering guidance on whether to provide a statement and the preferred format (written, audiotape, or videotape). They have acted as liaisons between their clients and the Investigating Officer, reviewed documentary and physical evidence to be submitted, and facilitated constructive and open discussions with the Investigating Officer to ensure a positive and effective investigation process.

By choosing the Law Office of Will M. Helixon , you benefit from the expertise of military lawyers with extensive experience in AR 15-6 Investigations . Our team is dedicated to guiding you through every step of the process, providing comprehensive support and strategic advice to achieve the best possible outcome.

Cooperation and Collaboration on Providing a Subject Statement with the Investigating Officer is Usually the Best Course of Action.

In the realm of AR 15-6 Investigations , our collective experience has consistently shown that a meticulously crafted written statement or an interview accompanied by counsel can significantly benefit clients seeking to avoid adverse findings. This approach empowers the subject Soldier to directly challenge the allegations and present a compelling counter-narrative. Moreover, we have witnessed the most favorable outcomes when clients wholeheartedly cooperate with the AR 15-6 Investigation and foster an open and constructive dialogue with the Investigating Officer.

Nonetheless, it is crucial for subject Soldiers under investigation to proactively engage the services of seasoned and dedicated military lawyers who can offer candid and context-specific guidance. Seeking such expertise is imperative before consenting to an interview with an Investigating Officer. Our team of experienced military lawyers possesses the necessary knowledge and insight to provide precise, fact-based advice tailored to the unique circumstances of each case. By partnering with us, you can navigate the intricate landscape of AR 15-6 Investigations with confidence, knowing that you have a trusted ally dedicated to safeguarding your interests.

Avoid Unintentional Exposure to Additional Adverse Findings and Unintended Admissions.

When it comes to AR 15-6 Investigations , it is crucial for subjects to recognize the potential risks they face without legal counsel. Providing what may seem like an innocuous statement to the Investigating Officer could inadvertently expose them to additional criminal liability and trigger further investigation. It is important to note that military-appointed counsel, such as TDS, do not establish an attorney-client relationship with Soldiers prior to facing adverse actions. Furthermore, they seldom assist soldiers during the pendency of an AR 15-6 Investigation .

For Soldiers who find themselves under investigation, it is highly advisable not to provide a statement to an Investigating Officer without first seeking the guidance of a military lawyer and obtaining representation. This ensures that soldiers are shielded from the inherent risks associated with providing statements to an Investigating Officer. It is essential to understand that even if an Investigating Officer claims that there is no suspicion of UCMJ violations, unadvised incriminating statements can still be used as the basis for non-judicial actions such as GOMORs , NJP , security clearance revocations, administrative separations , and adverse findings within the AR 15-6 Investigation itself.

Soldiers suspected of committing offenses under the UCMJ have the right to have their rights explained to them under Article 31a UCMJ. Before their statement can be used against them at a court-martial, they must execute a Rights Warning Waiver. However, it is crucial not to be deceived into providing a statement by an Investigating Officer claiming the absence of UCMJ suspicions. It is important to remember that unadvised statements can still be utilized for non-judicial actions and adverse findings within the AR 15-6 Investigation process.

To protect their rights and interests throughout the investigation, Soldiers should seek the counsel of a qualified military lawyer who can provide them with comprehensive advice and representation. By doing so, they can navigate the complexities of AR 15-6 Investigations with confidence and minimize the potential negative consequences that may arise.

Speak with a Military Lawyer from the Law Office of Will M. Helixon BEFORE Giving a Statement to the IO.

For comprehensive guidance and expert representation in AR 15-6 Investigations , look no further than the military lawyers at the Law Office of Will M. Helixon . We possess extensive knowledge and years of experience in assisting clients throughout the investigation process. Before making any decisions regarding providing a statement or submitting documentary evidence to an Investigating Officer, it is crucial to consult with us.

At our law office, we understand the importance of safeguarding your rights and interests. We have successfully worked alongside Investigating Officers to secure advance question lists for our clients and have been present during interviews to ensure their rights are protected. Our goal is to equip you with the necessary information to effectively refute misconduct allegations while minimizing the potential negative consequences that may arise from cooperating with the AR 15-6 Investigation.

By choosing the Law Office of Will M. Helixon , you can count on our dedicated team to provide you with personalized and reliable legal support. We are committed to guiding you through the intricacies of the investigation, advocating for your rights, and achieving the best possible outcome. Contact us today to benefit from our depth of knowledge and vast experience in AR 15-6 Investigations.

What Are the Possible Findings in an AR 15-6 Investigation or Command Directed Investigation?

In AR 15-6 Investigations , it is essential to recognize that each case is distinct, and the findings can vary significantly based on the investigation’s scope. The outcomes generally fall into three categories: substantiating the alleged misconduct by a preponderance of the evidence, concluding that the alleged misconduct did not occur, or recommending an expansion of the investigation to explore additional misconduct.

The findings of an AR 15-6 Investigation are dependent on the specific circumstances and evidence presented. By carefully assessing the available information, the Investigating Officer aims to establish a clear understanding of the situation at hand. This comprehensive approach allows for a thorough evaluation of the allegations and ensures that the investigation remains focused on the truth.

What Rights Does a Soldier Have to Respond or Rebut an AR 15-6 Investigation or Command Directed Investigation?

In AR 15-6 Investigations , it is crucial to understand the rights of subject Soldiers when adverse findings are made. Adverse findings trigger the inclusion of the investigation in the Army Adverse Information Database (AAIP) . Subject Soldiers who hold the rank of O1 or above have the right to respond or rebut adverse findings during the investigation process.

The right to respond or rebut exists before the Report of Investigation is forwarded to the approval authority for review, modification, or disapproval. To facilitate their response, the subject of the AR 15-6 Investigation will receive a copy of the investigation report and supporting documents. Furthermore, if the Investigating Officer intends to issue findings of adverse information, the subject must be given the opportunity to provide a statement to address and challenge those findings.

Ensuring a fair and transparent process, these rights enable subject Soldiers to effectively address adverse findings and present their perspective before the final decision is made. By availing themselves of these rights, subject Soldiers can contribute to a comprehensive and balanced assessment of the investigation’s outcomes.

What Information Should be Included in a Response or Rebuttal to Findings of Adverse Information in an AR 15-6 Investigation or Command Directed Investigation?

Analyze the ar 15-6 investigation and its findings..

In responding to and rebutting findings of adverse information in an AR 15-6 Investigation , it is essential for the subject Soldier to approach the process systematically and meticulously. The first step is to thoroughly analyze the investigation itself. This entails identifying the specific questions and issues that the investigation is designed to address, as outlined in the memorandum appointing the Investigating Officer.

Once the scope of the investigation is established, the subject Soldier should carefully review the actual findings and examine the supporting evidence for each finding. It is advisable to compile a comprehensive list of all the evidence that bolsters each finding. In particular, if the evidence consists of witness statements, a critical assessment should be made regarding their completeness, any contradictory statements, contextual factors, and internal inconsistencies.

Furthermore, it is crucial to generate a list of additional questions that may need to be posed to the witnesses. This step should be performed for each statement that supports the adverse findings. By following this methodical approach, the subject Soldier can effectively identify strengths, weaknesses, and potential areas of challenge within the investigation’s findings, enabling them to prepare a robust response and rebuttal.

Engaging in this detailed analysis and preparation process empowers the subject Soldier to present a thorough and well-supported argument countering the adverse findings in the AR 15-6 Investigation .

List Additional Evidence and Witnesses that Should have been Examined.

Following a comprehensive analysis of the evidence supporting the adverse findings in the AR 15-6 Investigation, it is essential for the subject Soldier to compile a well-structured list of witnesses and evidence that would counteract these findings. This process requires the subject Soldier to approach the task with objectivity, carefully considering the additional evidence that should be examined to challenge the adverse findings effectively.

To ensure a robust response and rebuttal, it is highly recommended that the subject Soldier shares both the analysis of evidence supporting the adverse findings and the list of additional evidence with a knowledgeable military lawyer. By collaborating with a military lawyer, the subject Soldier can benefit from their expertise in recreating the investigation, identifying the strengths and weaknesses within the case, and conducting a thorough legal review. The military lawyer will assess whether there are legal arguments that can be presented in the response and rebuttal, further enhancing the subject Soldier’s position.

In addition to addressing the primary findings of adverse information, there are several other crucial matters that a competent military lawyer should consider including in the response and rebuttal to the adverse findings of the AR 15-6 Investigation. These may encompass, but are not limited to:

Direct Responses to the Finding of Adverse Information.

To effectively respond to adverse findings in an AR 15-6 Investigation , it is crucial to provide a clear and concise label for each specific piece of adverse information that forms the basis of the finding. This ensures that there is a comprehensive understanding of the allegations or unfavorable evidence against the subject Soldier.

To construct a robust response, it is imperative to meticulously counter the specific allegations outlined in the findings and present compelling contrary evidence. Each adverse finding should be addressed individually, allowing for a focused and thorough examination of the evidence and arguments associated with each one.

By addressing each adverse finding individually and offering a comprehensive rebuttal, the subject Soldier can present a well-structured and persuasive response that effectively challenges the basis of the adverse information. This approach strengthens the overall response and helps to mitigate the impact of the adverse findings in the AR 15-6 Investigation .

Evaluate the Accuracy and Context of the Adverse Findings.

To effectively respond to adverse information in an AR 15-6 Investigation , it is crucial to thoroughly assess the veracity and circumstances surrounding the adverse findings. Carefully examine the reasoning behind the conclusions and identify any flaws, misunderstandings, illogical analysis, internal conflicts, or irregularities that may be present.

To successfully rebut the adverse findings, provide detailed evidence that refutes and challenges the flawed aspects of the investigation. Present a well-supported and reasonable point of view that offers a broader context for understanding the adverse conclusions. It is important to demonstrate the improbability of the adverse findings by considering the entirety of the evidence presented in the AR 15-6 Investigation.

By critically analyzing the adverse information and offering compelling evidence to counter it, you can strengthen your response and demonstrate the flaws in the adverse findings. This approach allows you to present a comprehensive and persuasive argument that challenges the validity of the adverse information in the context of the overall investigation.

Create Rebuttal Arguments to the AR 15-6 Investigation.

To develop a strong rebuttal in response to adverse findings, it is essential to approach the task with rationality and coherence. Construct a well-structured argument that addresses each individual allegation or finding. Support your rebuttal with concrete facts, evidence, and objective data that undermine the adverse information.

Include any relevant documentation that can disprove the adverse findings, such as performance evaluations, commendations, testimonials, and witness statements. These supporting materials serve to contradict the adverse information and strengthen your rebuttal.

If the Investigating Officer based their findings on an incomplete investigation, it is important to request an enlargement of the investigation to include the evidence that was not considered in the adverse findings. By highlighting the missing evidence, you can shed new light on the situation and challenge the validity of the adverse findings.

In cases where the subject Soldier has not yet addressed the primary misconduct or allegations that form the basis of the adverse findings, consider providing a statement specifically addressing those allegations. This statement should directly rebut the Investigating Officer’s findings by presenting examples that contradict the findings, providing a clear refutation, and presenting additional evidence that reframes the conclusions.

By following these guidelines, you can craft a compelling and well-supported rebuttal that effectively challenges the adverse findings in the AR 15-6 Investigation .

Offer Explanations and Mitigating Factors.

When addressing adverse facts found in the findings of adverse information during an AR 15-6 Investigation , it is crucial to offer reasonable justifications for their existence. If there are alternative perspectives or interpretations that could shed a different light on the evidence presented, make sure to present those differing viewpoints.

Additionally, if there were extenuating circumstances or mitigating factors that played a role in the underlying facts supporting the adverse findings, provide a detailed description of these factors. Emphasize any aspects that significantly impact the fundamental assumptions supporting the adverse findings, as this can help reshape the understanding of the situation.

By providing reasonable justifications, alternative interpretations, and highlighting extenuating circumstances or mitigating factors, you can present a comprehensive and nuanced response that challenges the adverse findings in the AR 15-6 Investigation .

Describe and Document any Extraordinary Circumstances.

When addressing the adverse findings in an AR 15-6 Investigation , it is essential to highlight any exceptional circumstances that may have influenced the conclusions. These circumstances can include personal hardships, health issues, family emergencies, or any other factors that had an impact on the circumstances surrounding the findings.

To strengthen your case, provide relevant supporting documentation, such as medical records or official statements, that verify and substantiate your claims. These documents serve as tangible evidence to support the exceptional circumstances you are presenting.

By effectively presenting the exceptional circumstances and providing supporting documentation, you can demonstrate how these factors influenced the adverse findings, offering a more comprehensive and compelling response in the AR 15-6 Investigation .

Provide Letters of Support and Recommendations.

In an AR 15-6 Investigation , it is crucial to include recommendations and support from individuals who can provide evidence of your character, capabilities, and actions that contradict the adverse findings. Seek endorsements from bosses, peers, subordinates, or other relevant individuals who can speak to your character and behavior.

When gathering recommendations and support, ensure that they specifically address the issues outlined in the adverse findings. Emphasize how your overall character, behaviors, and actions are inconsistent with the conclusions noted in the adverse findings. Highlight instances where your actions align with the highest standards and showcase your positive attributes that directly challenge the adverse findings.

By including well-documented and relevant testimonials, you can effectively demonstrate the implausibility of the adverse findings and present a compelling case that counters the conclusions drawn. These endorsements provide additional perspectives and evidence to challenge the adverse information, bolstering your position in the AR 15-6 Investigation .

What are the Reporting Requirements for Substantiated Findings of Adverse Information in an AR 15-6 Investigation?

All findings of adverse information resulting from an approved AR 15-6 Investigation hold significant implications for an individual’s future career prospects. Once approved by the authority, these adverse findings are promptly entered into the Army Adverse Information Program (AIPP) database, which serves as a vital resource for promotion and selection boards,

To ensure the integrity and longevity of this information, the AIPP database meticulously maintains adverse findings for a minimum of 10 years for all officers holding the rank of O1 and above. It is the responsibility of the local legal office to diligently catalog substantiated adverse findings into the AAIP database, guaranteeing accurate and accessible records.

Moreover, appointing authorities bear the obligation of retaining copies of the AR 15-6 Investigation for a period of 10 years. This archival practice ensures the availability of crucial documentation pertaining to the investigation and its outcomes.

Understanding the enduring impact of these adverse findings and the meticulous procedures surrounding their documentation underscores the significance of obtaining sound legal guidance and representation throughout the AR 15-6 Investigation process.

Can a Soldier Request Reconsideration of the Findings of Adverse Information in an AR 15-6 Investigation?

Officers possess the important right to seek reconsideration of adverse information findings documented in approved AR 15-6 Investigations . In the event that a subject, suspect, or respondent (including an officer subject to an adverse finding) discovers new evidence, identifies a mistake of law or fact, or identifies an administrative error within one (1) year of the inquiry or investigation’s findings, they may request reconsideration.

It’s important to note that new evidence refers to information that was not previously considered during the initial investigation and was not reasonably available for consideration at that time. However, it’s crucial to understand that character letters or information that the subject Soldier could have provided during the original investigation, but did not, do not qualify as new evidence.

It is essential to recognize that the showing of “new evidence” is subject to a rigorous standard and is unlikely to be granted by the approval authority unless extraordinary circumstances exist. However, with proper legal counsel and a compelling case, officers can navigate the process effectively and potentially secure the reconsideration they seek.

Can a Soldier Appeal the Ultimate Substantiated Findings of Adverse Information in an AR 15-6 Investigation to the Service Component Board of Correction for Military Records (BCMR)?

Indeed, the subject Soldier retains the right to appeal the determinations made by the Investigating Officer and the Approval Authority regarding the findings of the AR 15-6 Investigation. This appeal can be directed to the appropriate service component Board of Correction for Military Records (BCMR) . The BCMR holds significant authority to review various aspects, including the filing of adverse information findings in the Army Adverse Information Program (AAIP) , the denial of reconsideration for adverse findings in a command-directed investigation (AR 15-6 Investigation) , and the questioning of adverse findings derived from the investigation.

Under the provisions of 10 USC 1552 , the jurisdiction of the Army BCMR extends to the examination of any military record within the Department of the Army. This broad jurisdiction empowers the BCMR to thoroughly evaluate the subject Soldier’s case, providing an avenue for potential redress and reevaluation of the adverse findings.

What can the  Law Office of Will M. Helixon  do to Assist a Subject Soldier Facing Findings of Adverse Information in an AR 15-6 Investigation and Resulting Consequences?

Leveraging our extensive experience in supporting officers in addressing adverse information, the military lawyers at the Law Office of Will M. Helixon are well-equipped to guide subject Soldiers facing findings of adverse information in an AR 15-6 Investigation . Our tailored approach aims to maximize the potential for reversing the adverse findings and preventing their filing in the Army Adverse Information Program (AAIP) .

Through a specific strategy, we assist our clients in effectively addressing the adverse information before it reaches the appointing and approving authority for action. This strategy encompasses developing a comprehensive response that highlights the flaws in the original adverse findings and advocating for the inclusion of additional favorable information through an expanded investigation.

At the Law Office of Will M. Helixon , we take pride in reconstructing the investigation and building a strong response to the adverse findings of the AR 15-6 Investigation . Given the time-sensitive nature of responding to adverse information in a command-directed investigation, it is crucial to act swiftly and efficiently. Contacting our military lawyers will enable us to discuss the best course of action for addressing the adverse findings and initiating the development of a high-quality response.

Take the first step today by reaching out to us, and let us work together on crafting a compelling response to the adverse information discovered in the command-directed AR 15-6 Investigation .

More about the  Law Office of  Will  M. Helixon.

Will M. Helixon  established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in  courts-martial ,  adverse administrative proceed ings  and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the  MEB/PEB process ,  adverse administrative matters , military justice matters including  Nonjudicial Punishment ,  Administrative Separation Boards , and  Boards of Inquiry , and legal assistance matters, including  rebutting GOMORs  and the  correction of military records .   The firm also assists officers navigate the minefield of findings of adverse information (AAIP) in AR 15-6 Investigations (command directed investigations), Selection Boards (Promotion Boards), Special Selection Boards, and  Special Selection Review Boards (SSRB) .  No longer in Kansas City, the firm now has a European office physically located in  Vilseck, Germany  and in  Wiesbaden, Germany .  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the  Law Office of Will M. Helixon  maintain licenses to practice before all military trial courts.

Vilseck:  Law Office of Will M. Helixon – Vilseck – Germany, Hans-Ohorn-Platz 7, First Floor, 92249, Vilseck, Germany.

Wiesbaden:  law office of will m. helixon – wiesbaden – germany, langgasse 21, 65183, wiesbaden, germany., germany +49 (0) 9662-293-8047, united states (913) 353-6466.

Field Grade Officers Right to Respond to AR 15-6 Investigation

Field Grade Officers under AR 15-6 investigation have a right to respond to the findings of an AR 15-6 investigation when the investigation is complete. Responding to findings is important because the summary of the investigation report is likely to be included in an officer’s file at promotion boards.

Promotion boards have access to adverse investigation findings

Fiscal year 2020 NDAA directed the services to make changes to their officer promotion boards. Promotion boards for some officers. Field grade promotion board members have access to reports of substantiated allegations of misconduct when deciding whether to recommend someone for promotion. Read more about this risk  here .

The excerpt from AR 15-6 is as follows and can be found on para. 5-4:

• The right to respond to adverse information is extended by this regulation only to field grade officers, because such findings or recommendations may be considered in future promotion boards that will consider those officers for promotion. This does not require nor preclude approval authorities from extending this opportunity to any other individual who is the subject of adverse information in the report of proceedings.

It’s important to note that approval authorities can extend the opportunity for any other individual who has been under investigation the same opportunity to respond. As two examples: a Chief Warrant Officer or a prior-enlisted Captain with many years of experience, both of whom are tremendous assets to the Army, should be afforded the opportunity to respond.

Responding to an AR 15-6 Report

It’s best to retain the services of an experienced attorney when responding to an investigation report. An experienced attorney can identify problems with the investigation and help prepare a response that rebuts the investigation findings and identifies mitigating factors regarding the findings.

An AR 15-6 investigation is a command investigation initiated for misconduct that would normally not be handled by military law enforcement, but instead by an appointed 15-6 Investigating Officer. When under a command-directed AR 15-6 investigation, the earlier you get representation, the better chances you have of protecting your career, your benefits, and your freedom.

Regardless of the type of investigation, invoke your right  to an e xperienced military law attorney when you are under investigation . Do not give a statement to the investigating officer without speaking with an attorney. Invoke your right to remain silent and request to speak with an attorney. In most cases, it is not in your long-term interest to give a statement no matter how much the investigator implies that you need to give a statement. Many experienced field grade officers think they can maneuver their way through questioning because they assume their innocence will bear out. However, you are more likely to confirm the time, dates and other facts related to the investigation and set yourself up to a charge of giving a false statement.

If you are under AR 15-6 investigation, no matter where you are stationed in the world, contact our office at ‪(757) 504-2815 or through our convenient  online form  to schedule a consultation. Attorney Peter Kageleiry, Jr., focuses his legal practice exclusively on military court-martial law and related  adverse administrative actions .

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Article 15 of Indian Constitution, Provisions, Explanation

Article 15 of Indian Constitution protects its citizens from discrimination of any kind. know more about its Provisions, Exceptions & Amendments in this article for the UPSC exam.

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Article 15 of Indian Constitution

Article 15 of the Indian Constitution prohibits discrimination on grounds only of religion, race, caste, sex, or place of birth. India recognises a total of 22 languages, as stated in the 8th Schedule of the Constitution. Despite Hindi and English being the country’s official languages, more than 1,500 other languages are spoken there. About 44.63 per cent of Indians speak Hindi as their first language. Diverse viewpoints frequently lead to conflicts, and such conflicts may lead to prejudice.

One of the main reasons for discrimination in India is caste prejudice, which is still prevalent in some areas. Caste systems, both lower and higher, used to be the predominant method of dividing society. There had been untouchability for the lower classes. India recently made this law illegal due to how terrible it is.

Read More: Article 14 of Indian Constitution

Article 15 of Indian Constitution Provisions

Article 15 has been desperately needed since the Constitution’s adoption and is still in place. Six clauses in Article 15 of Indian Constitution list the many forms of discrimination that are categorically prohibited.

Read More:  Articles 12 and 13

Article 15 of Indian Constitution Exceptions

Article 15 (3): The state may provide any particular provisions for women and children. For instance, giving children free education or reserving seats for women in local councils. The Supreme Court  held in Revathi v. Union of India, AIR 1998, that the word “for” used in this clause indicated that states can provide women and children special preference while not discriminating against them.

Click here to Know about 6 Fundamental Rights of Indian Constitution

Article 15 (4): The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. For instance, public educational institutions may offer fee discounts or seat reservations. This provision was added by the first Amendment Act, of 1951.

Article 15 (5): The state has the authority to make any special arrangements for the advancement of any socially and educationally disadvantaged classes of citizens, as well as for the scheduled castes and scheduled tribes, regarding their admission to educational institutions, including private educational institutions, whether state aid it or not, minority educational institutions are an exception of it.

The 93 rd Constitutional Amendment Act of 2005 added it. The 93 rd Constitutional Amendment Act of 2005 was upheld as legitimate by the Supreme Court in the case of Ashok Kumar Thakur v. Union of India, 2008.

Article 15 (6): The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Additionally, the state is permitted to make a provision for the reservation of up to 10% of seats for these sections when it comes to admission to educational institutions, including private educational institutions, whether aided or unaided by the state, with the exception of minority educational institutions.

In addition to the current reservations, this reservation of up to 10% would be made. According to family income and other indices of economic disadvantage, the state would periodically notify the economically weaker sectors for this reason. The 103rd Amendment Act of 2019 adds it.

Read More: Right to Equality

Article 15 of Indian Constitution Reservation for OBC

In order to give effect to Article. 15 (5), The Centre passed the Central Educational Institutions (Reservation in Admission) Act, 2006, which established a 27% quota for applicants from Other Backward Classes (OBCs) in all central higher educational institutions, including the IITs and IIMs.

Here it should be noted that the children of the following different categories of people belong to the ‘creamy layer’ among OBCs and thus will not get the quota benefit:

• Constitutional Posts: Persons holding constitutional posts like President, Vice-president, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
• Officers: Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks etc., and also in private employment.
• Top-ranked army officers: Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force, and the Paramilitary Forces.
• Other Professions: Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on. Persons engaged in trade, business and industry.
• Agricultural land: People holding agricultural land above a certain limit and vacant land or buildings in urban areas.
• Annual Income: Persons having a gross annual income of more than ₹8 lahks or possessing wealth above the exemption limit. It was Rs. 1 lakh when the “creamy layer” ceiling was first introduced in 1993. Later, it was changed to Rs. 2.5 lakh in 2004, Rs. 4.5 lakh in 2008, Rs. 6 lahks in 2013, and Rs. 8 lahks in 2017.

Read about:  Important Articles of Indian Constitution

Article 15 of Indian Constitution Reservation for EWS

In order to give effect to Article 15 (6), the central government issued an order in 2019, to provide 10% reservation to the Economically Weaker Sections (EWSs) in admission to educational institutions. The benefit of this reservation is available to EWS members who are not covered by any of the SC, ST, or OBC reservation programmes currently in place. The following are the requirements for eligibility set forth in this regard:

• Annual Income: Persons whose family has a gross annual income below ₹8 lahks are to be identified as EWSs for the benefit of reservation. The income would be for the financial year prior to the year of application and would comprise income from all sources, such as salaries, businesses, professions, and agriculture.
• Possession of Asset: Persons whose family owns or possesses any one of the following assets are to be excluded from being identified as EWSs, irrespective of the family income; first, Agricultural land of 5 acres and above; second, residential flat of 1000 sq. ft. and above; third, Residential plots of 100 sq. yards and above in notified municipalities.
• Determination of Property: The property held by a family in different locations or different places/cities would be clubbed while applying the land or property holding test to determine EWS status.
• Definition of Family: For this purpose, the individual requesting the benefit of the reservation, his or her parents, siblings, and children under the age of 18 are all considered members of the individual’s immediate family.

Read More:   Salient Features of Constitution of India

Article 15 of Indian Constitution UPSC

Article 15 has helped Indian society to stand tall and proud despite such great diversity and all forms of sexism, racism, and rigid caste system, and it will continue to do so forever. It is truly the protector of the oppressed and a shield against prejudice.

It is significant to note that Article 15 prohibits discrimination on the grounds of religion, race, caste, gender, or place of birth in all circumstances. People have been discriminated against in several ways throughout history, and the term discrimination covers a broad variety of topics.

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Is Article 15 part if Fundamental Rights?

Yes, Part III of the constitution which is Fundamental rights have article from 12 to 35.

What is Article 15 (1)?

It provides that the State shall not discriminate any citizen on grounds only of religion, race, caste, sex or place of birth.

What is Article 15 (3)?

The state may provide any particular provisions for women and children.

The 93rd Constitutional Amendment Act of 2005 added which provision?

It added Article 15(5) according to which the state has the authority to make any special arrangements for the advancement of any socially and educationally disadvantaged classes

The 103rd Constitutional Amendment Act of 2019 added which provision?

It added Article 15(6) according to which the state is empowered to make any special provision for the advancement of any economically weaker sections of citizens.

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