In the United States military, offenses which would constitute crimes in the civilian community are typically investigated by full-time, trained law enforcement professionals. However, commanders are empowered to investigate other matters, as well. Non-criminal and relatively minor criminal offenses (often only criminalized by the Uniform Code of Military Justice (UCMJ) and not civilian statutes) are frequently investigated by commanders or their appointed delegate. Such investigations go by different names in different services, such as a 15-6 Investigation (in the Army, named after the regulation which governs them), a Commander-Directed Investigation (in the Air Force, governed by DAFMAN 1-101), a JAGMAN Investigation (in the Navy and Marine Corps, governed by the JAG Manual Investigations Handbook), or a Commander’s Inquiry (all services, less formal, and not strictly governed by regulation). For simplicity, we will refer to all such investigations here as “Administrative Investigations.”
What is an Administrative Investigation?
Although commanders wield a lot of authority in the military, they mostly cannot dictate whether and how law enforcement personnel investigate (or not) a particular matter. However, commanders have the inherent authority to investigate matters relevant to their command. An administrative investigation is the tool commanders typically use to exercise that authority.
While commanders can personally conduct an administrative investigation, it is much more common for them to delegate their authority by appointing an investigating officer (IO) to investigate allegations described (sometimes called “framed”) by the commander. The IO may collect documentary and other evidence, conduct sworn witness interviews, and usually prepares a written report for the commander of his or her findings. If the IO believes a preponderance of the evidence supports (in other words, that it’s more likely than not) an allegation occurred as alleged, the IO “substantiates” the allegation. The commander who appointed the IO then either approves or disapproves the IO’s findings.
What are the Consequences of a Substantiated Allegation?
For commissioned officers in the grade of O-3 and above, a substantiated allegation, in and of itself, can have lasting and serious consequences. 10 U.S. Code § 615(a)(3) requires “any substantiated adverse finding or conclusion from an officially documented investigation or inquiry” to be provided to promotion selection boards. But regardless of a service member’s grade, a substantiated allegation is likely to be the foundation for administrative or punitive adverse action of some kind. Potential consequences may include, but are not limited to, informal counseling, formal reprimand, nonjudicial punishment, involuntary administrative separation, and even court-martial charges. In most cases, in one way or another, a substantiated allegation is eventually a career killer.
Can I Appeal the Results of an Administrative Investigation?
In a way, yes, but not exactly. Under some circumstances, the subject of an administrative investigation may get an opportunity to review and comment on a redacted draft version of the IO’s report before the commander approves or disapproves the findings. This is similar to an appeal of the IO’s analysis, but is not an opportunity afforded to all subjects of administrative investigations. Some services allow for reconsideration, under some circumstances, even after the commanders has approved the findings. Finally, if the results of the administrative investigation are placed in the subject’s official military record (as they often are, and must be by law in some cases), the subject could apply to service’s Board of Corrections for Military Records to have the results removed. However, the Board is unlikely to substitute its own judgement for that of the IO and commander, so this aplication is generally limited to whether the process was followed correctly, not the conclusion drawn from the underlying evidence. In all cases, the surest path to a favorable outcome for the subject of an investigation is for the allegation(s) not to be substantiated. But, if you have been the subject of one or more substantiated allegations, an attorney may be able to assist you in appealing that result.
What Should I Do If an Investigating Office Wants to Talk to Me?
First, you should figure out whether you are the subject of the IO’s investigation or merely a witness. A subject is someone who has allegedly done something wrong, while a witness is just that: someone who may have information about another person who has allegedly done something wrong. In general, it is a lawful order for military authorities to require witnesses to give truthful statements about somebody else who is a subject of the an investigation. If an IO wants to talk to you, ask to see the IO’s appointment memorandum and the framed allegations they are investigating. If you are still unsure whether you are a subject or a witness, you should contact an attorney.
If you are the subject of an administrative investigation, you have the right under Article 31 of the UCMJ not to make a statement, and you should invoke that right until you have had an opportunity to contact and receive advice from an attorney. You should NOT assume the matter is “no big deal” or “just a formality” (things you might hear from command or the IO) or that you can “talk your way out of it” (something you might hear from peers or tell yourself). Contact an attorney who will have only your best interests at heart.
Trusted Help from a Civilian Attorney
At The Law Office of Patrick J. McLain, PLLC, we are led by Attorney Patrick McLain, who is a retired Marine Corps military judge and former federal prosecutor. He has practiced in the areas of military criminal law and disciplinary processes for decades. Together with attorney Brad Sauer, they have over a half-century of experience, and have advised clients (as well as commanders and investigating officers) on hundreds of administrative investigations. If you are facing one and don’t know what to do about it, you can start by trusting our insight and tenacity. We will help you navigate this unfamiliar process.
Get more information by talking to our team today. Call (888) 606-3385 or submit an online contact form at any time.
