AR 15-6 Investigating Officer’s Course

1. AR 15-6 Investigating Officer’s Course USMA Office of the Inspector General 646 Swift Road West Point, New York 10996 (845) 938-8210

2. Outline • References • Investigating Officers (IO) Resource Handbook • Terminology • Understanding the Appointment • Planning the Investigation • Conducting the Interviews • Examining the Evidence • The Report

3. References • AR 15-6 Procedures for Investigating Officers and Boards of Officers (2 October 2006) • AR 20-1 Inspector General Activities and Procedures (1 February 2007) • A Comprehensive Guide for Investigating Officers (NOV 07)

4. Investigating Officers (IO) Resource Handbook • AR 15-6 Procedures for Investigating Officers and Boards of Officers (2 October 2006) • A Comprehensive Guide for Investigating Officers (NOV 07) • AR 15-6 Investigating Officers Course Slides (NOV 07) • Freedom of Information Act 1974 • Privacy Act of 1974 • Witness Interview Guide • DA Form 1574 – Report of Proceedings • DA Form 2883 – Sworn Statement • DA Form 3881 – Rights Warning Procedure • Miranda Warning Rights

5. Terminology • Investigation – A duly authorized, systematic, detailed examination to uncover facts and determine the truth of the matter. They are not criminal proceedings in which proof beyond a reasonable doubt is required. Rather, the standard of proof that applies is proof by a preponderance of the evidence. Investigations require formal collection of evidence, taking of (sworn) testimony from complainants, witnesses and subjects, and documentation of the findings in a report of investigation.

6. Terminology • Investigating Officer (IO) – A Commissioned or Warrant officer or DA civilian appointed by a competent authority to conduct an investigation. • An IO is the personal representative of the Appointing Authority (AA). • The AA conveys authority to the IO. • An IO’s authority extends to all subordinate echelons of the command and requires the compliance and cooperation of subordinate supervisory channels. • Normally the IO will be equal to or senior in grade to the subject of the investigation. • An IO must have a substantial breadth of experience, exceptional maturity, and demonstrated sound judgment..

7. Terminology • Timely – Conducted and completed within a timeframe that facilitates efficient and effective mission accomplishment while protecting the public’s safety and security. (Investigations should be completed within 90 to 120 days.) • Thorough – Addressing relevant aspects of readiness, economy, efficiency, and state of discipline of the institution. Reasonable steps must be taken to ensure pertinent issues are sufficiently resolved and that all appropriate root causes and remedies are considered. Results must not raise unanswered questions or leave matters open to question or misinterpretation.

8. Terminology • Legally Sufficient – A review of the Report of Investigation to determine whether: • The investigation complies with all applicable legal and administrative requirements. • The investigation adequately addresses the matters under investigation. • The preponderance of the evidence supports the findings of the Investigating Officer. • The Conclusions are consistent with the Findings. • Any errors or irregularities exist and, if so, their legal effect, if any.

9. Terminology Preponderance of the Evidence – The standard of proof for all investigations. The preponderance standard means that the Investigating Officer is satisfied that the greater weight of the credible evidence supports the findings and conclusions – it is more likely than not that the alleged events have occurred. The weight of the evidence supporting a conclusion is not to be determined by the sheer number of witnesses or the volume of evidentiary matter presented, but rather by the evidence which best accords with reason and probability.

10. Terminology • Subject – a military service member or civilian employee against whom allegations of wrongdoing have been made and whose conduct is the focus of an investigation. • Suspect - an individual suspected of a criminal offense. Military suspects must be advised of their Article 31 rights before an interview can begin. • Witness – An individual, civilian or military, who is interviewed, or testifies during the course of an investigation. • Respondent - Person(s) designated by the appointing authority in formal investigations

11. Understanding the Appointment • A 15-6 Investigation is… • A fact-finding examination by an investigating officer (IO) into allegations, issues, or adverse conditions to provide the directing authority with a sound basis for decision and actions. • Investigations normally address allegations of wrongdoing by an individual and are authorized by a written directive.

12. Understanding the Appointment Informal VS Formal • Decided by the appointing authority • Considerations are: • Purpose of inquiry • Seriousness of subject matter • Complexity of issues • Need for documentation • Desirability of hearing for person whose conduct or performance is being investigated

13. INFORMAL Outlined in AR 15-6 Chapter 4 Single investigating officer or 1-2 member board No respondent Less time; fewer resources FORMAL Outlined in AR 15-6 Chapter 5 Board of several officers Respondent designated More time; more resources Understanding the Appointment

14. Understanding the Appointment Informal VS Formal • Regardless of the purpose of investigation – formal procedures are not mandatory unless required by other applicable regulations or directed by higher authority

15. ABUSE OF AUTHORITY OR POSITION IMPROPER PERSONNEL ACTIONS FAILURE TO PROVIDE DUE PROCESS UNEQUAL TREATMENT PRE-SELECTIONS ATTEMPTING TO INFLUENCE PROMOTION BOARDS REPRISAL FAILURETO INVESTIGATE • FAILURE TO TAKE CORRECTIVE ACTIONS • FAILURE TO SUPPORT EO PROGRAMS • UNLAWFUL COMMAND INFLUENCE • ALLEGATIONS PERSONAL MISCONDUCT FRAUD,WASTE & ABUSE ABUSIVE PROFANE LANGUAGE SEXUAL HARASSMENT SEXUAL MISCONDUCT FRATERNIZATION AWARDS APFT UNNECESSARY/EXCESSIVE TRAVEL • IMPROPER USE OF RESOURCES • DOUBLE PAYMENTS • Understanding the Appointment

16. Understanding the Appointment • A Properly framed allegation contains: • Who • Must be an individual • Improperly • The word “improperly” shows wrongdoing • Did (or did not do) • In Violation of a Standard • A standard is law, regulation, or policy • CPT Clint Eastwood improperly engaged in an adulterous affair in violation of Article 134, UCMJ

17. Understanding the Appointment • A commander has many options: • UCMJ Rule 303, Cdrs Inquiry • AR 15-6 Investigation • UCMJ Article 32 • Criminal Investigation Division • Military Police Investigation • Chain of Command • Civil Authority • Inspector General • Do Nothing

18. INFORMAL Any officer authorized to appoint a formal A commander at any level A principal staff officer or supervisor (MAJ or above) FORMAL Any general or special court-martial convening authority Any general officer Any commander or principal staff officer (COL or above) Understanding the Appointment Appointing Authority is an individual with the authority to "start" an investigation.

19. Understanding the Appointment For Incidents resulting in … • Property damage of $1,000,000 or more • Loss or destruction of an Army aircraft or missile • An injury and/or illness resulting in, or likely to result in, permanent total disability • The death of one or more persons Only a general court-martial convening authority may appoint!

20. Understanding the Appointment IO Appointment: • Commissioned officers, warrant officers, or DA civilian employees (GS-13 or above) • IOs are the best qualified by reason of their education, training, experience, length of service and temperament • An IO will be senior to any person being investigated

21. Understanding the Appointment The Appointment Order: • Oral or Written appointment • Appointment should specify purpose and scope of investigation and nature of findings and recommendations required • Seek clarification if unclear • Order may specify guidance not required by AR 15-6 • Upon receipt, begin a chronology of events

22. Understanding the Appointment The Investigating Officer Responsibilities • Must advise the appointing authority immediately of any factors that may affect impartiality • Must advise appointing authority if retiring, separating, or deploying • Must investigate the allegation; not the individual • Must protect confidentially

23. Planning the Investigation As in any military operation, planning is a critical element leading to successfully attaining the objective. You must formulate a plan of how you will obtain facts and information pertinent to the allegations you have received. The planning process of an investigation is CRITICAL.

24. Planning the Investigation • The Planning Process • Begins with the assessment of the appointment order (get necessary clarification and available documents) • Examine the allegations/ issues, standards, and elements of proof • Determine facts necessary to substantiate or not substantiate the allegation(s) (issues are founded or unfounded

25. Planning the Investigation • Develop a strategy to obtain necessary facts and evidence needed • Identify potential witnesses • Complainant • Subject • Respondent • Individual with knowledge of the event/ incident • SME

26. Planning the Investigation • Determine necessary/relevant documents • Standard supposedly violated (Regulation, directive, SOP, etc.) • Orders (Determines status and assigned duty station) • Reports (1379, LOD, Accident Report, physical security inspection, AAR, etc.) • Records (201, Finance, medical, etc.) • Photographs, maps, sketches • Any other document that you determine necessary and relevant to substantiate or not substantiate!

27. Planning the Investigation • Determine necessary/ relevant physical evidence: • Consists of objects or conditions that establish facts • Least likely to get • Establish order to gather documents and interview witnesses • Establish timeline of investigation • Start a chronology • Plan for logistical needs!

28. Planning the investigation • THE PLAN! • Plan your investigation completely – • But remain flexible! • You may have to review and modify your plan while conducting the investigation • Keep the appointing authority updated when necessary!

29. Planning the Investigation • Executing THE PLAN! • Collect all standards involved and gather background information first (DO YOUR HOMEWORK) • See your servicing Staff Judge Advocate (SJA) if available • Plan the order of interviews according to information the witness may provide • Keep the appointing authority updated when necessary!

30. Planning the Investigation • Getting HELP! • Consult legal advisor early (remember, they may give advice, but won’t conduct the investigation) • If at any time you have questions, go to a SME or back to the appointing authority • Some cases are very complicated and may require a board of officers, if you think your investigation is too complicated for you, suggest a board to the appointing authority

31. Conducting the Interviews • Best interviews occur face-to-face, but may be conducted by telephone or mail • Information obtained telephonically should be documented in memorandum for record (MFR) • Document witness statements on DA Form 2823 Sworn Statement • Ensure that witnesses explain technical terms used in statement

32. Conducting the Interviews • AR 15-6 does not require sworn statements for informal investigations • The AA or other applicable regulations may require sworn statements • The IO may ask for sworn statements – even if not specifically required

33. Conducting the Interviews • Title 5 U.S.C. 303 provides authority for civilian employees • IO may administer the oath • Statements taken out of the presence of the IO may be sworn before an official authorized to administer oaths at the witness’s location • IOs do not have the authority to subpoena witnesses, and their authority to interview civilian employees may be subject to certain limitations

34. Conducting the Interviews • Contact SJA prior to interviewing civilians to ascertain their status and rights. • Commanders and supervisors do have the authority to order military personnel and to direct Federal employees to appear and testify • If witness is unavailable or refuses to sign a form or a document you have prepared reflecting your interview, note over your own signature, the reasons why the witness has not signed

35. Conducting the Interviews • Certify that the statement is an accurate summary of what the witness stated • You may fax a statement to a witness, administer an oath over the telephone, and have the witness fax the statement back to you • A witness may be provided copy of his or her own statement, but not the statements of other witnesses • “Signed and Sworn to under the pains and penalties of perjury.”

36. Conducting the Interviews • Do NOT tell a witness that his or her statements will be kept confidential because the statements will be read by other people, especially the Appointing Authority! • There are no “off -the-record” statements! • Civilian witnesses who are not Federal employees may agree to appear, and, if necessary be issued invitational travel orders • Coordinate with legal advisor and AA prior to using this authority

37. Conducting the Interviews Privacy Act Statements - • Privacy Act (PA) Statements are required from all witnesses • Information may be filed and retrievable by reference to the name or other personal identifier of the individual • Person must be advised orally or in writing of the Privacy Act Statement purpose and intent • IO should have PA Statement available for witness to review and sign

38. Conducting the Interviews Rights Advisement - • All Soldiers suspected of committing acts in violation of law (UCMJ if Active Duty) must be advised of Article 31 rights (DA form 3881) or Miranda Warning (for civilians). • Includes violations of local, state, or federal laws • For National Guard Personnel, the IO needs to first determine the status of the subject/suspect at the time of the occurrence and at the time of the interview (consult with SJA)

39. Conducting the Interviews • Use DA Form 3881 Rights Warning Procedure to record witness understanding of his or her rights and election to waive those rights and make a statement • If necessary, provide rights warning at beginning of interview • Rights warning must be provided as soon as the IO suspects that a witness may have been involved in criminal activities or other activities that could result in court-martial or civilian criminal charges

40. Conducting the Interviews • IO must not draw an adverse inference against an individual who invokes his or her rights under Article 31, UCMJ or the Fifth Amendment • If witness elects to assert his or her rights and requests an attorney, all questioning must cease immediately • Questions may resume in the presence of the witness’s attorney, if witness consents to being interviewed

41. Conducting the Interviews • NOTE: These rights apply only to information that might be used to incriminate the witness • Rights cannot be invoked to avoid questioning on matters that do not violate violation of law • Rights may be asserted only by the individual who would be accused of the crime • Rights cannot be asserted to avoid incriminating other individuals

42. Conducting the Interviews • Example: A witness who is suspected of stealing government property must be advised of his or her rights prior to being interviewed. However, if a witness is being interviewed concerning the loss of destroyed government property in connection with a Report of Survey, a Rights Warning would not be necessary unless evidence is developed that leads the investigating officer to believe the individual has committed a criminal or other offense subject to court-martial or civilian prosecution. If it is clear that the witness did not steal the property, but has information about who did, the witness may not assert rights on behalf of the other individual.

43. Conducting the Interviews Scheduling Witness Interviews - • IO needs to determine which witnesses should be interviewed and in what order • Complainant • Subject / Suspect • Often, information provided by one witness can raise issues that should be discussed with another • Organizing the witness interviews will save time and effort that would otherwise be spent “back tracking” to re-interview prior witnesses • Keep re-interviewing to a minimum

44. Conducting the Interviews • Contact SJA and State Labor Relations Specialist prior to interviewing civilians Suggestions: • Identify the people who are most likely to provide the best information • Start with witnesses that will provide all the relevant background information and frame the issues

45. Conducting the Interviews • Concentrate on those witnesses that have the most direct knowledge of the events in questions • Without unnecessarily disclosing the evidence obtained, attempt to seek information that would support or refute information already obtained from others • In closing an interview, ask if the witness has anything to add or knows of any other person who might have useful information or any other information the witness believes may be relevant to the inquiry

46. Conducting the Interviews • It may be necessary or advisable to interview experts having specialized understanding of the subject matter of the investigation (Expert Witness) • IOs must be careful not to prematurely terminate an investigation because a few witnesses give consistent testimony

47. Conducting the Interviews Prepare for the Interview - • Create a list of questions or key issues to cover (interrogatory) • Use open ended questions • Follow – up general questions with specific questions

48. Conducting the Interviews • Obtain Information Indicating Specific Evidence: • Who was involved? • What transpired? • When did the alleged impropriety occur? • Where did the alleged impropriety occur? • Why did the alleged impropriety occur? • How did the alleged impropriety occur? • How many other witnesses saw the alleged impropriety occur? • Any Other Allegations?

49. Conducting the Interviews Ensure witness’s privacy - • Interview in a place free from interruptions and intimidation • Avoid improper questions, unnecessarily harsh and insulting treatment or unnecessary inquiry into private affairs

50. Conducting the Interviews Focus on relevant information - • IO should begin the interview by telling the witness about the subject matter of the investigation (unless precluded for some reason) • IO should keep witness on track • Information should be material and relevant to the matter being investigated • Relevancy depends on the circumstances in each case