OFFICE OF THE STAFF JUDGE ADVOCATE

AR 15-6 INVESTIGATIONS

Captain W. Lance BlancoTelephone: 916-854-3505

OFFICE OF THE STAFF JUDGE ADVOCATE

Purpose of AR 15-6 Investigations

• To conduct timely, thorough, and legally sufficient investigations.

• Most investigations conducted IAW AR 15-6 are INFORMAL investigations.

• A 15-6 investigation may be performed by itself, or it may be performed in conjunction with another investigation (Reports of Survey, Line of Duty Investigations).

OFFICE OF THE STAFF JUDGE ADVOCATE

INVESTIGATING OFFICER

OFFICE OF THE STAFF JUDGE ADVOCATE

DUTIES OF INVESTIGATING OFFICER

• Ascertain and consider the evidence on all sides of an issue

• Investigate thoroughly and impartially

• Make findings and recommendations supported by the facts

• Comply with the specific instructions of the appointing authority

• Report findings and recommendations to the appointing authority

OFFICE OF THE STAFF JUDGE ADVOCATE

FORMAL VS. INFORMAL

• INFORMAL

• No respondent designated

• Single Investigative Officer (IO)

• No hearing

• FORMAL

• Respondent designated

• Hearing required

• Due Process (notice, counsel, discovery)

OFFICE OF THE STAFF JUDGE ADVOCATE

INFORMAL INVESTIGATIONS

• 99% of all 15-6 investigations are informal.

• Informal proceedings are designed for fact-gathering only. They are not intended to serve as a forum for a suspect or an interested person to present a case in their defense.

• Formal proceedings are designed to allow the respondent to take an active role in the investigation. More due process is afforded to a designated respondent.

OFFICE OF THE STAFF JUDGE ADVOCATE

Who Can Be an Investigating Officer?

• Commissioned Officers

• Warrant Officers

• DA Civilians (GS-13 and above)

OFFICE OF THE STAFF JUDGE ADVOCATE

CONDUCTING THE INVESTIGATION

1) Develop an investigative plan

2) Obtain documentary and physical evidence

3) Obtain witness testimonya) Giving rights advisements

b) Scheduling witness interviews

c) Conducting witness interviews

4) Rules of Evidence

5) Standard of Proof

OFFICE OF THE STAFF JUDGE ADVOCATE

Develop an Investigative Plan

Plan should consist of:1) an understanding of the facts required for you to make a conclusion;2) a strategy for obtaining evidence, including a list of potential witnesses, a list of questions for each witness, and the order in which witnesses will be questioned;3) identify the information already available in determining what additional information is required for you to reach a conclusion.

OFFICE OF THE STAFF JUDGE ADVOCATE

Obtaining Documentary and Physical Evidence

Prior to witness interviewing, gather all related documentary evidence such as, regulations, existing witness statements, police reports, incident reports, correspondence, emails, photographs, recordings, maps, videotapes, etc.

* Even investigations with a finding of “no fault” or “no wrongdoing” require evidence to support this finding. Gather all relevant evidence.

OFFICE OF THE STAFF JUDGE ADVOCATE

How to Obtain Witness Statements

OFFICE OF THE STAFF JUDGE ADVOCATE

Obtaining Witness Testimony

• All witness interviews should be conducted face-to-face as practicable.

• Use mail, phone, email if necessary (use memorandum for record).

• Witness statements should be taken on DA form 2823. Make sure that handwritten statements are legible.

OFFICE OF THE STAFF JUDGE ADVOCATE

Witness Statements

• Sworn statements are not specifically required under AR 15-6, but may be required by specific direction of appointing authority.

• IO may at his or her own discretion swear witnesses to their statements (IAW Article 136, UCMJ, officers are authorized to administer the oath required to provide a sworn statement).

OFFICE OF THE STAFF JUDGE ADVOCATE

Witnesses

• You have no subpoena power to compel civilian witnesses to appear.

• Commanders can order military members to appear and testify (subject to the prohibition against self-incrimination).

• Supervisors can order federal employees to appear and testify (subject to the prohibition against self-incrimination).

• Civilian employees may be asked to testify, coordinate with employees supervisor or labor counselor. (ITOs may be obtained for this purpose – coordinate with legal advisor).

OFFICE OF THE STAFF JUDGE ADVOCATE

Rights Advisement

• All soldiers suspected of criminal misconduct must first be advised of their rights.

• DA Form 3881 should be used prior to questioning a suspect.

• You do not have to advise every witness, only those who you suspect of criminal liability. Provide rights warning as soon as you suspect criminal involvement.

• If suspect invokes right to remain silent, immediately cease questioning and do not re-initiate without speaking to legal advisor.

OFFICE OF THE STAFF JUDGE ADVOCATE

Rights Warning

A witness may only invoke the right to remain silent to avoid incriminating themselves. They may not refuse to answer a question because it may tend to incriminate someone else.

Never encourage a witness to speak “off the record.” Never imply that incriminating responses will not be used as the basis of criminal action against the witness – this may constitute a grant of de facto immunity.

OFFICE OF THE STAFF JUDGE ADVOCATE

Scheduling Witness Interviews

• Determine who you want to speak with.• Start with witnesses who will give you an

overall picture of the events, then move to the witnesses who know details about the events.

• Use witnesses to identify other potential witnesses.

• Obtain your information from direct sources, avoid second-hand information.

• Consider consulting with expert witnesses to educate yourself about the subject of the investigation.

OFFICE OF THE STAFF JUDGE ADVOCATE

Conducting Witness Interviews

• PrepareList of questionsTimeline of events

• Arrange for a private and discreet location for witness interview

• Focus on relevant information• Let witness use own words, do not

lead/coach/put words in their mouths• Advise witness not to discuss interview with

other witnesses

OFFICE OF THE STAFF JUDGE ADVOCATE

Rules of EvidenceAR 15-6 investigations are administrative and do not require that you follow the rules of evidence.

HOWEVER – some rules do apply:1) Relevance – information must be relevant to inquiry

2) Coercion – testimony must not be obtained in violation of Article 31 (prohibition against self-incrimination)

3) No polygraph evidence is admissible (unless witness consents)

4) Privileged communications are not admissible (husband/wife, priest/penitent, attorney/client, IG)

5) Certain medical information is not admissible

6) “Off the record” statements are not admissible

OFFICE OF THE STAFF JUDGE ADVOCATE

Standard of Proof• Findings must be supported by “a greater

weight of evidence than supports a contrary conclusion.”

• Translation – 51%

Compare to:Criminal Standard – Beyond a Reasonable

Doubt – 99%Legal – Intermediate Std. – Substantial

Certainty – 75%Civil / Administrative – Preponderance of the

Evidence – 51%

OFFICE OF THE STAFF JUDGE ADVOCATE

Concluding the Investigation

• Prepare Findings and Recommendations

• Prepare Submission to Appointing Authority

• Obtain Legal Review

OFFICE OF THE STAFF JUDGE ADVOCATE

Findings and Recommendations

• Facts – fix dates, places, persons, and events definitely and accurately (who, what, when, where, how, to what extent?)

• Findings – a clear and concise statement based on the facts and reasonable inferences drawn from the evidence.

• Recommendations – propose courses of action based on the findings (disciplinary action, imposition of financial liability, corrective action)

OFFICE OF THE STAFF JUDGE ADVOCATE

IMPORTANT

Be specific in your findings. State facts. Your findings are based on these facts and reasonable inferences thereof. Explanations as to how you arrived at these findings are not required. A simple statement such as, “the findings are supported by the evidence” is sufficient.

OFFICE OF THE STAFF JUDGE ADVOCATE

Preparing the Submission to the Appointing Authority

Complete DA form 1574 and assemble the following documents in order.

1-Appointing Order

2-Initial information collected

3-Rights warning statements

4-Chronology of events

5-Exhibits (with tabs and index)

OFFICE OF THE STAFF JUDGE ADVOCATE

Legal Review

Matters involving serious and complex facts, or matters involving potential adverse action require a legal review. Judge Advocates will review 15-6 Investigations for:

1 – Does the investigation comply with the appointing order?

2 – Were there any prejudicial errors made in the investigation?

3 – Does the evidence support the findings?

4 – Are the recommendations consistent with the findings?

OFFICE OF THE STAFF JUDGE ADVOCATE

THE END