What to do when under command investigation
Soldiers may be surprised and rightly stressed when they hear they are being investigated and ask themselves “what to do if you are the subject of a Command Investigation?” It’s important to understand the process to better understand what to do next.
Commanders direct an investigation when they receive information or an allegation that a member of their command has committed an offense triable by court-martial. Commanders are required by Rule for Court-Martial, Rule 303, which states that “commander shall make or cause to be made a preliminary inquiry into the charges or suspected Offenses” when he receives information that a member of their command is “accused or suspected of committing an offense or offenses triable by court-martial.” This requirement makes clear that the commander is conducting serious business. Therefore it’s in a service members best interest to know what to do if you are the subject of a Command Investigation.
Types of investigative procedures
There is more than one type of investigative procedure. Let’s start by looking at the U.S. Army. There are three types of fact-finding or evidence-gathering procedures under the Army Regulation 15-6: 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 AR 15-6 Chapter 7 are designated a board of officers.
A procedure used to determine the magnitude of a problem is called a preliminary inquiry. Investigators will use it to identify and then interview witnesses, record witness statements, determine whether an investigation or board may be necessary, or identify the scope of a subsequent investigation. The appointing authority will either conduct a preliminary inquiry personally or appoints an inquiry officer. This can be done through a verbal order or in writing.
If commanders receive sufficient information accusing a military member of an offense under the UCMJ, then they will direct an administrative investigation in accordance with service regulations. Each of the military services follows similar procedures. For example, Army commanders will appoint an investigation in accordance with Army Regulation (AR) 15-6. Navy and Marine Corps commanders will appoint an investigation in accordance with the Navy JAGMAN Investigations Handbook and the Air Force under AIR FORCE INSTRUCTION 71-101. Command Investigations can be used to investigate accidents or deaths of service members.
If there is evidence of a serious offense, such as sexual assault, then commanders are required to refer the matter to criminal investigators such as CID (Army), NCIS (Navy and Marines, or OSI (Air Force).
Consequences of an investigation
The Army uses adverse findings earlier and more often. The Army announced in June 2021 that promotion boards will be able to see adverse information when reviewing a promotion candidate’s file. Before this change, adverse information was only used as part of an administrative qualification review after the promotion board process was complete. Officers O4 and above can expect any substantiated misconduct allegations to be in their promotion file for the board to see. There are similar repercussions in each of the military branches. This means that if an allegation is substantiated by an investigation, then a service member’s career may be cut short – leading to a loss of income, benefits, and retirement.
If a commander begins an investigation by appointing an Investigation Officer (IO), this individual likely not a lawyer or professional investigator. This means that the investigation is relying upon the experience of an untrained individual with enormous power to affect a person’s career. The investigating officer may substantiate the misconduct regardless of the quality of the investigation. Service members may ask, “what to do if you are the subject of a Command Investigation?” Here are six things to know when you are under command investigation.
What to do if you are the subject of a Command Investigation?
1. Identify your rights
The command cannot compel you to make a statement. Don’t make any statements unless recommended by your attorney hired to defend you against misconduct allegations. You don’t have a right to an appointed attorney to conduct a parallel investigation that counters the command investigation. The Trial Defense Service can appoint an attorney to advise you of your rights, but that’s it. This is where hiring a civilian attorney early in the process can give you a head start in defending yourself against a command investigation. You do have a 4th Amendment right against unlawful search and seizure.
2. Don’t make any statements
Service members can feel under enormous pressure to speak with their supervisors and commander about their alleged role in the misconduct allegations. They should not subordinate their right to remain silent with their responsibility to follow their superior’s commands. Supervisors and commander’s do not have the authority to compel statements from their subordinates. This is critical early in the investigation process. Once statements are made, they can be used to substantiate misconduct allegations or the service member can be accused of lying, making the situation even worse.
3. Don’t consent to search when you are under command investigation
Don’t unlock your phone, give access to your personal emails or your workspace to investigators. Your fourth amendment rights against unlawful search and seizure extend to your electronics and personal space. They can take your stuff, but if you give it over willingly then your defense attorney can’t bring it up later as a violation of your 4th amendment rights.
4. Get professional legal advice early in the command investigation process
Find an experienced military lawyer as soon as you discover you’re being investigated and don’t investigate on your own. Start identifying contacts and evidence that can speak to your excellent service and counter information favorable to the government’s case, but do not chase down leads or interview witnesses. Just provide this information to your retained defense attorney. Now more than ever it’s critical to get an expert lawyer experienced in investigations to help you navigate the command investigation process. The Army announced in June 2021 that promotion boards will be able to see adverse information when reviewing a promotion candidate’s file. Before this change, adverse information was only used as part of an administrative qualification review after the promotion board process was complete. Officers O4 and above can expect any substantiated misconduct allegations, regardless of the quality of the investigator or investigation, to be in their promotion file for the board to see. Hiring a military criminal defense attorney early in the investigation process can blunt the effect misconduct allegations have on an officer’s career and promotion prospects. When an officer looks for civilian lawyers specializing in military law, they should look for experience in the investigative process.
5. Follow your command’s orders
You need to stay out of trouble. All eyes will be on you and you don’t want to give the command any reason to substantiate what they assume is bad behavior. Some misconduct is exceedingly hard to prove, like fraternization or adultery. If you are given a no-contact order and violate it, the command no longer needs the investigation to ruin your career. You handed them an easily-provable reason to punish and separate you by failing to obey a direct order.
6. Be Patient when you are the subject of a Command Investigation
Being a subject under investigation is difficult to experience. Your career is at risk, your honor is being questioned, and you may feel enormous stress. Take care of yourself and your family. Find support in the confidential mental health resources the Army provides and in your attorney to guide you through this difficult time.
What to do if you are the subject of a Command Investigation – Don’t Wait To Protect Your Rights
If you are under investigation, take action to defend yourself. You need advice from an attorney who has experience with the investigation process and the military. An experienced military law attorney can help you preserve favorable evidence, negotiate with your chain of command, and help you understand your rights in dealing with either an investigating officer or military law enforcement. The sooner you get an experienced military law expert working for you when you are under investigation, the more likely you are to get a better outcome. Peter Kageleiry, Jr. is a retired Lieutenant Colonel and Judge Advocate. Since 1998, he has worked almost exclusively as either a military defense attorney or a military prosecutor. He has advised commanders, law enforcement and hundreds of accused military members on all types of investigations. See Mr. Kageleiry’s profile, case results and endorsements.