AR 15-6 INVESTIGATIONS

1
AR 15-6 INVESTIGATIONS

• Captain W. Lance Blanco
• Telephone [phone]

2
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).

3
INVESTIGATING OFFICER
4
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

5
FORMAL VS. INFORMAL

• INFORMAL
• No respondent designated
• Single Investigative Officer (IO)
• No hearing

• FORMAL
• Respondent designated
• Hearing required
• Due Process (notice, counsel, discovery)

6
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.

7
Who Can Be an Investigating Officer?

• Commissioned Officers
• Warrant Officers
• DA Civilians (GS-13 and above)

8
CONDUCTING THE INVESTIGATION

• Develop an investigative plan
• Obtain documentary and physical evidence
• Obtain witness testimony
• Giving rights advisements
• Scheduling witness interviews
• Conducting witness interviews
• Rules of Evidence
• Standard of Proof

9
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.

10
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.

11
How to Obtain Witness Statements
12
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.

13
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).

14
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).

15
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.

16
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.

17
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.

18
Conducting Witness Interviews

• Prepare
• List of questions
• Timeline 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

19
Rules of Evidence

• AR 15-6 investigations are administrative and do
  not require that you follow the rules of
  evidence.
• HOWEVER some rules do apply
• Relevance information must be relevant to
  inquiry
• Coercion testimony must not be obtained in
  violation of Article 31 (prohibition against
  self-incrimination)
• No polygraph evidence is admissible (unless
  witness consents)
• Privileged communications are not admissible
  (husband/wife, priest/penitent, attorney/client,
  IG)
• Certain medical information is not admissible
• Off the record statements are not admissible

20
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

21
Concluding the Investigation

• Prepare Findings and Recommendations
• Prepare Submission to Appointing Authority
• Obtain Legal Review

22
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)

23
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.

24
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)

25
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?

26

• THE

• END