Specialized Defense in Command Investigations

Every day, military administrative investigations occur throughout the U.S. Armed Forces.  They happen for a variety of reasons, ranging from safety concerns following accidents to leadership concerns following command climate surveys.  These investigations can significantly impact careers and lives of those under this scrutiny.  To survive the process and protect your future, you need capable and experienced representation.  If you or your actions become the subject of a Command Investigation, you have little time to waste.  At Mangan Law, you can trust our experienced team to protect your rights and ensure the best possible outcome. 

What is a Command Investigation?

Most uniformed personnel are familiar with criminal investigations, which are conducted by trained investigators from military law enforcement agencies.  Few realize that these are just a small fraction of the investigations conducted in the military.  The vast majority of investigations of servicemember conduct, including suspected criminal misconduct, are conducted by untrained “Investigating Officers” who perform the function as a one-time additional duty.  These administrative investigations are generally referred to as “Command Investigations” because they operate under the authority of a commanding officer who directs the investigation be opened.  

Command Investigations address various issues to ensure mission effectiveness and to uphold good order and discipline within the command.  Commanders need solid facts and information to make informed decisions, so the findings produced by Command Investigations are critical.  They often become the basis for adverse administrative action and sometimes even criminal court-martial charges.  For this reason, Command Investigations are enormously influential on the careers, reputations, and lives of military personnel.  

Different Names, Same Purpose

Command Investigations are known by different names in different services.  The Air Force uses the term “CDI” because they are “command-directed” investigations.  The Coast Guard simply calls them “administrative investigations.”  Other services reference the regulation that governs them: in the Army, they are known as “15-6 Investigations” because Army Regulation 15-6 sets the rules for how they are conducted.  The Navy and Marine Corps reference the Department of the Navy JAG Manual and call them “JAGMAN Investigations.”  

What do Command Investigations Cover?

Command Investigations can be conducted for a variety of reasons, including regulatory infractions, ethical violations, and violations of military policies.  More importantly, command investigations are regularly used to follow up on suspicion of non-felony criminal misconduct.  In general, if it’s not a sexual assault, homicide, or offense involving a child, there’s a good chance that a Command Investigation will be the response ordered by a commanding officer. 

Matters commonly the subject of a Command Investigation include:

  • Fraud, Waste, and Abuse
  • Sexual Harassment
  • Ethical Violations
  • Violations of Equal Opportunity Policy
  • Fraternization and Extramarital Sexual Misconduct
  • Toxic Leadership
  • Hazing
  • Minor violations of the Uniform Code of Military Justice

Special Purpose Investigations

In addition to the Command Investigations conducted for the above-described issues, there are a variety of specialized investigations with their own additional rules and procedures.  Some of these include:

  • Safety Investigations (usually following an accident or safety incident)
  • Line of Duty Investigations (usually following a death or injury)
  • Financial Liability Investigation of Property Loss (FLIPL) 
  • RCM 109 Investigations (involving military judges or judge advocates)
  • DHA Quality Assurance Investigations (involving military medical providers)

How Command Investigations Happen

The Initial Inquiry

Commanding Officers hold inherent authority to inquire into affairs within their command.  In fact, all commanders have a duty under Rule for Court-Martial (RCM) 303 to immediately look into any suspected misconduct by those under their command.  These initial inquiries are informal, typically conducted by the commander alone or a member of the unit leadership.  These can be called “RCM 303 inquiries” or “informal command inquiries.”  Typically, an informal command inquiry is just a basic review to see if there is any evidence… establishing whether something is worth investigating.  If a commander determines that there is some actual evidence of misconduct, the next step is to open a more formal investigation, such as a 15-6, CDI, or JAGMAN investigation. 

Opening the Investigation

Once there is some reason to believe misconduct may have occurred, a commanding officer formally opens a Command Investigation.  They do so by written order in the form of a memorandum.  By doing so, the commander becomes the “appointing authority” for the investigation. The appointment memo identifies the objective of the investigation, sets its scope, names the Investigating Officer (IO), and establishes deadlines and other requirements.  

Investigating Officer

The appointed IO is typically a commissioned officer, senior in rank to the target or “subject” of the investigation.  Most IOs have zero training or experience in conducting investigations.  Their only help is an initial in-brief by a legal officer and the various guides or handbooks available in that service on the subject.  In addition to the appointment memo, legal in-brief, and manual/guides to help, the newly appointed IO also receives the initial materials gathered, either in the form of a complaint filed or the results of the informal inquiry conducted under RCM 303.  Unfortunately, this usually means that the first impressions in the IO’s mind are the version conveyed by the complainant.

Fact Gathering

The Investigating Officer (IO)’s primary job is to gather and document facts.  The IO may conduct interviews, request documents, take pictures, and inspect locations and equipment.  The IO has the authority to order military personnel to give statements if they are witnesses, but if any servicemember believes that they are suspected of misconduct or may incriminate themselves, they may invoke their rights and not make a statement.  The target of the investigation will be read their rights and have the option of remaining silent or obtaining the assistance of counsel when interviewed.

Findings, Rebuttal, and Final Outcome

Once finished fact-gathering, IO will write up a report.  This report should document all the investigation’s efforts and activity and should include all exhibits obtained by the IO and statements or summaries of all interviews conducted.  The report’s critical component are the findings and conclusions made by the Investigating Officer.  Findings are facts that the IO believes have been established by the evidence, such as “Captain X was present at Y location on Z date.”  Conclusions are the IO’s final thoughts, usually an answer to the Appointing Authority’s questions, such as “By being present, Captain X engaged in fraternization in violation of UCMJ Article 134.”  

Depending on your rank your military service, you might be given the opportunity to see the IO’s report before it is final, but this isn’t always the case.  It is common for junior-ranking servicemembers to never see the IO’s report or any evidence until long after the investigation is over.  

The IO does not have the final say: a commander, sometimes a different one than the Appointing Authority, will serve as the “Approval Authority.”  This is the officer who signs off on the findings and makes them official.  It is important to understand that Approval Authorities have the most power in the Command Investigation process.  An Approval Authority can, without permission or justification, modify or even reject the IO’s findings and conclusions and substitute their own as they see fit.  The decision by an Approval Authority is generally considered final and not subject to appeal.

Understand the Stakes… and Know Your Rights!

Command Investigations can be used as the basis for a broad range of command action.  The result might be nothing more than developmental counseling or changes to unit procedures, but Command Investigations can also form the basis for Formal Reprimands, Nonjudicial Punishment, Negative Performance Evaluations, Bars to Continued Service, and even Court-Martial Charges.  Even in cases where no adverse administrative action or criminal charges result, a negative finding from a Command Investigation can be formally filed in your official personnel file and can even cause you to lose rank at the time of your retirement.  More importantly, adverse findings can also damage your reputation, hindering your career advancement or continued military service.

If you are the subject of a Command Investigation, you have the right to refuse to make statements to the IO without an attorney present.  Be sure to exercise this right and seek legal advice to safeguard your career.  Your exercise of rights cannot be used by the IO as evidence of wrongdoing or guilt.  Remember, any statement to an IO, even verbal, hold the status of ‘official statements’ under Article 107, UCMJ, the federal criminal statute prohibiting False Official Statements.  Do not answer questions without consulting a military defense lawyer.

Why choose Mangan Law?

Don’t let this powerful administrative processes damage your career or reputation – consult with an attorney experienced in Command Investigations.  The average lawyer, even one experienced in criminal law, is unfamiliar with the unique rules and procedures involved and may not be able to effectively assist you.  At Mangan Law, we know command investigations and how to help you come out on top when the scrutiny of an IO is bearing down on you.  

Our lead counsel, retired Army Lieutenant Colonel Sean Mangan, has dealt with hundreds of Command Investigations over his 30 years of experience in the system.  LTC(Ret) Mangan has handled Command Investigations from every angle: he has conducted investigations as an Investigating Officer (IO), guided them as a Legal Advisor, used them as a Prosecutor, challenged them as Defense Counsel, reviewed them as a Military Magistrate.  In fact, Mr. Mangan revised and updated the Army’s Military Justice Regulation (AR 27-10) section on command investigations when he worked at the Pentagon just before he retired.  He understands the unique challenges you face better than anyone.  

At Mangan Law, we will tirelessly fight to protect your rights and career. Be sure to get the legal representation you deserve, and contact us today for a free consultation.

FAQs:

What should I do if I am contacted by an investigating officer?

Get help!  Do not speak to an investigating officer without first consulting with an attorney.  Be sure to tell the IO that you want the option of making a statement, otherwise the IO may simply move on and close the investigation, noting that you did not want to make a statement.

Can I see the evidence the IO has against me when I am questioned?

The IO is not required to show you what evidence he or she has gathered before or during your interview, but they may choose to show you that evidence at their discretion.  

When do I get to see the results of the investigation?

Senior personnel under investigation will be given the opportunity to review the draft findings and all evidence as part of the rebuttal process; junior personnel will not.  If the investigation is used as the grounds for adverse administrative action or court-martial charges, the investigation and evidence will be disclosed later to the servicemember at the time of that action.

What are the potential consequences of a military administrative investigation?

Military administrative investigations do not automatically cause any adverse action but can cause issues for officers once placed in their official personnel file.  An investigation that returns an unfavorable finding or conclusion can lead to consequences ranging from minor corrective action to serious adverse action or even criminal charges.

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