Article 31(b): Compulsory Self-Incrimination Prohibited
When young service members come under investigation, they feel they need to talk. It is not surprising. It is the military. Integrity gets drilled into you in basic training, and close knit groups treat it as everything. It is not surprising that service members assume anyone wearing the uniform has their best interests in mind.
When you are under investigation, the investigators are interested in making their case.
Integrity is not the only reason service members waive their rights. Others think: I have never been in trouble before, these agents will see that. Unfortunately, that is not how it works. There is always someone watching, and someone waiting to catch an inconsistency.
I remember the first time a CID agent came to speak to us during training. Middling height, stocky, long hair, a beard. He looked the part. These days you can spot an agent from a distance; they all wear the same clothes from the local exchange. That agent told us they are always watching, and described working hotel lobbies, clubs, and establishments on post. I understood at seventeen that someone was always looking. If agents will work in plain clothes to observe service members, consider what measures they will use once you agree to be questioned.
Protect Yourself During an Investigation
I spent years prosecuting cases built on these interviews. As an Army prosecutor at Fort Hood and with the 2nd Infantry Division in South Korea, I read what came out of them, and what helped the government was often not a confession at all. They were ordinary explanations that fixed a timeline, placed someone somewhere, or sat badly next to something the same person said a week later.
Service members who ask “why would the military want to come after me” have the question backward. The question is: how do I protect myself while under investigation?
Article 31(b) sets out the rights a service member has. Generally, you have a right to know what you are suspected of and a right to remain silent. The standard rights advisement also informs you that you may consult with counsel.
I have spoken with service members who were read their rights, waived them, and gave a statement because they thought it was the right thing to do. I have had others assert their rights, then return for questioning and waive them because they were not patient enough to wait for legal advice.
This reaches beyond criminal investigations. Command directed investigations and AR 15-6 investigations are often conducted by officers who are not investigators by trade, and the requirement can still apply to them.
What triggers it is narrower than people assume, and worth stating precisely. The statute applies where a person subject to the UCMJ questions someone who is an accused or a person suspected of an offense, about that offense. Courts have also asked whether the questioner was acting in an official law enforcement or disciplinary capacity, or whether the person being questioned would reasonably have perceived it that way. Ordinary operational or administrative questions to someone who is not a suspect do not trigger the requirement.
So an investigating officer questioning the subject of an AR 15-6 about suspected misconduct generally must advise. The same officer asking routine questions of a witness generally need not.
The same analysis applies to non-commissioned officers. An NCO who begins questioning a subordinate the NCO suspects of an offense, in a disciplinary capacity, is within the rule. NCOs are action oriented, and it is not surprising that they want to get to the bottom of something quickly. If you are an NCO in that position, give the advisement. If you are the one being questioned and you believe you are a suspect, you can respectfully ask whether you are suspected of an offense before you answer.
Why You Assert Rights Rather Than Explain
In my experience an explanation does not end an interview. It invites the next question, and the next question is where the damage happens. An unequivocal invocation stops the questioning at that point. Invoking the right is not an admission of guilt. Under Military Rule of Evidence 301(f)(2), the fact that you remained silent, refused to answer a particular question, requested counsel, or asked that the questioning be terminated is not admissible against you. An agent who suggests otherwise is doing their job rather than giving you advice.
The main reason is that you do not know what you do not know. Subjects of investigations think they understand the situation and want to put it to rest. They believe telling the truth immediately will end it.
Investigators say things like “if you talk to us now, things will go easier later.” Some potential clients have told me they were assured the problem would go away if they just explained. Agents are trained to work with a service member’s values and fears. I have reviewed cases where, had the service member simply declined to be questioned, the investigation would have produced nothing actionable. In many of those cases the service member talked.
The less obvious reason has to do with the investigator’s incentives. A case closes faster with a confession from the subject. I have reviewed, represented, and won false confession cases, where a person was convinced of their own guilt through the pressure of the interview.
Not everyone is prepared to push back against an authority figure in a room built for that purpose. Most people want to comply. Investigators know this and their techniques account for it. Service members have been placed in an interrogation room, presented with a set of unattractive choices, and said what they believed the agent wanted to hear.
Unwinding that later requires an attorney who can examine both what happened in the interview room and the case as a whole.
The Takeaway
Assert your Article 31(b) rights when an investigator asks you questions. Consult an attorney. Work through your options with someone who has handled these cases.
Related Case Results
What happens in the interview room shapes what follows. Results include a not guilty verdict for a Navy E-6 following an NCIS investigation and a command directed 15-6 investigation dismissed for an Army colonel at Fort Jackson.
Past results do not guarantee future outcomes. Every case turns on its own facts.
If you want my help with an investigation, court martial, or military criminal defense matter, call my office, Joseph L. Jordan, Attorney at Law, at (888) 643-6254, or use the online contact form. I am a former Army JAG prosecutor and I represent service members in all branches, worldwide.
Article 31(b): “No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”