UNDERSTANDING COMMAND INVESTIGATIONS AND HOW A MILITARY LAWYER CAN HELP
A command investigation is a process used by the military to examine incidents that may violate regulations or pose a risk to operational effectiveness. These investigations can cover a broad range of issues, including accidents, misconduct, equipment damage, or other events that require a deeper understanding of what happened. The findings often determine whether further action, such as disciplinary measures, is needed.
If you are involved in a command investigation, it’s crucial to understand your rights and obligations. A military lawyer can provide essential support and legal counsel throughout the investigation. They help ensure:
Defending Against Unfounded Claims: If the investigation results in adverse findings, a military lawyer can help you prepare a defense, appeal decisions, or negotiate outcomes.
Legal Rights Are Protected: A military lawyer can advise you on your rights during the investigation, including how to respond to questioning.
Navigating the Process: The procedures involved in a command investigation can be complex. A military lawyer can guide you through each step, ensuring that all actions are fair and just.
WHAT TO DO WHEN FACING A COMMAND INVESTIGATION?
The Armed Forces Adverse Information Pilot Program (AIPP) is brutal but, military lawyers agree it can be proactively overcome. It is based upon 10 U.S.C. § 615(a)(3), which applies to all commissioned officers (and branches) seeking a promotion to a grade of O-4 (MAJ) or higher. It warns “any credible information of an adverse nature, including any “substantiated” adverse finding or conclusion from an officially documented investigation or inquiry, shall be furnished to the selection board….”
Seems clear, right? Wrong. Remarkably, 10 U.S.C. § 615(a)(3) does not define “substantiated.” In a nutshell, it’s a word without a burden of proof. Therefore, at first blush, so long as there is a “official record” that refers to misconduct, such facts will be summarized and provided to the promotion board. Notably, this adverse information door is vehemently caste open even if the underlying derogatory information was previously filed in the restricted portion of the AMHRR.
There is a secret, however, as fortunately, U.S. Army Regulations (AR), and a Department of Defense Instruction (DODI) both significantly define “substantiated” evidence to mean an allegation which is “supported by a preponderance of the evidence.” DoDI 1320.04 (Incorporating Change 1 Effective June 30, 2020) 7. Additionally, AR 600-8-24, para. 4-2 states that a Board of Inquiry’s (BOI) “substantiated” adverse finding must be supported by a “preponderance of the evidence.” see also, AR 135-175, para. 4-1 (“function of the board will be to determine, by a preponderance of the evidence standard, whether or not the ground(s) for discharge listed in the notice to the officer (respondent) exists.”)
Thus, although the more likely than not “preponderance of evidence” standard seems well settled it has not dissuaded certain uninformed agents (CID, NCIS, OSI) from erroneously reporting “unsubstantiated” matters to boards. The seminal problem is that agents continually hound Judge Advocates to issue so-called “probable cause” opinions about a particular criminal allegation, but this weak “probable cause” standard is insufficient to trigger the adverse disclosure requirements mandated by 10 U.S.C. § 615(a)(3). See e.g., United States v. Bethea, 61 M.J. 184 (C.A.A.F. 2005) (“Probable cause is met by less than a fifty percent probability….”)
To be clear, while a misconduct allegation satisfies the “probable cause” standard, it completely fails to satisfy the imminently more demanding “preponderance of the evidence” standard. In short “probable” does not mean “likely.” Hence field grade officers in 2022, should remain especially vigilant, as the secret is out.
WHAT TO EXPECT DURING A COMMAND INVESTIGATION
When a command investigation begins, the responsible officer or appointed investigator will collect and review relevant information. This may include interviewing witnesses, gathering documents, and examining any physical evidence. The goal is to understand the facts of the situation and provide a clear report to the chain of command.
The process may include:
- Fact-Finding: Gathering evidence from various sources, including written statements, emails, and interviews.
- Report Preparation: Compiling the evidence into a comprehensive report that outlines findings and recommendations.
- Command Action: Based on the report, command leaders will decide on the appropriate course of action, which could range from no further action to disciplinary proceedings.
WHY YOU MIGHT NEED A MILITARY LAWYER DURING A COMMAND INVESTIGATION
Even though command investigations are generally not criminal, they can still have serious implications for your career. Findings might lead to actions such as:
- Administrative Separation
- Loss of Security Clearance
- Demotions or Reprimands
ARE YOU FACING A COMMAND INVESTIGATION AND NEED A MILITARY LAWYER?
Contact Court & Carpenter, the Military Lawyers with the experience you need on your side.