Investigating officers are appointed under the provisions of Army Regulation (AR) 15-6 to conduct timely, thorough, and legally sound inquiries. AR 15-6 investigations are specifically designed to be informal, though some provisions are also applicable to formal investigations. For the purposes of this guide, only informal investigations will be discussed.
Who Can Serve as an Investigating Officer?
The only people who may serve as investigating officers include commissioned officers, warrant officers, and DA civilian employees. The investigating officer must also be senior to any person they are investigating. The appointing authority chooses investigating officers based on their education, training, experience, length of service, and temperament.
The primary duties of an investigating officer include:
- Ascertain and consider the evidence on all sides of the case.
- Be thorough and impartial.
- Make findings and recommendations according to the facts in the case.
- Comply with the instructions of the appointing authority.
- Report findings and recommendations to the appointing authority.
What Allegations Warrant an AR 15-6 Investigation?
When a military service member is accused of criminal misconduct or arrested for any reason, disciplinary action may be initiated under the Uniform Code of Military Justice (UCMJ). An AR 15-6 investigation may be warranted for any of the following accusations:
- Unit property loss
- Inappropriate relationships (with a subordinate, superior, or the spouse of either)
- Sexual harassment
- Hostile work environment
- Equal opportunity complaints
- Cruelty and maltreatment of subordinates
- Sexual harassment
- Inappropriate punishments
Conducting an AR 15-6 Investigation
Developing an Investigative Plan
Before obtaining any information, the investigating officer should develop a plan that includes these points:
- Determine what facts are readily available and what additional information is needed to formulate findings.
- Create a strategy for obtaining evidence.
- Make a list of potential witnesses and decide what order to conduct interviews.
At the start of the investigation, the investigating officer should obtain documentary and physical evidence, such as:
- Applicable regulations
- Existing witness statements
- Accident or police reports
The investigating officer should also personally inspect and photograph the location where the alleged events transpired, if possible and appropriate. Thorough documentation is required in all cases, even those with findings of no fault, no loss, or no wrongdoing. After all, it’s equally important for evidence to support innocence as it is to demonstrate guilt.
Obtaining Witness Testimony
Most cases call for witness testimonies, though sworn statements are typically not required for informal investigations. Still, the appointing authority or investigating officer may choose to ask witnesses for them. Be aware that investigating officers don’t have the power to subpoena witnesses, and the authority to interview civilian employees may also be limited.
All soldiers accused of criminal misconduct must be advised of their rights, typically at the outset of an interview. If the accused asserts their rights and requests an attorney, all questioning must cease.
Note that rights advisement only applies when questioning accused individuals. If other witnesses with information about the case are being interviewed, they may not assert their rights to avoid incriminating others.
Scheduling & Conducting Witness Interviews
Often, the information one witness provides can raise questions that should be discussed with other witnesses. Strategically scheduling witness interviews can save time and effort by minimizing the need to backtrack and re-interview prior witnesses. These interviewing tips can promote a smooth process:
- Prepare a list of questions or key issues to be covered in each interview.
- Conduct the interview in a private place that ensures the witness’s privacy.
- Begin by interviewing witnesses who are most likely to have direct knowledge of the events in question.
- Without disclosing evidence, attempt to seek information that supports or refutes the statements obtained from others.
- Instruct witnesses not to discuss their statement or testimony with others (apart from their legal counsel) until the investigation is complete.
- When closing an interview, ask if the witness knows anyone else who might have useful information.
- Consider interviewing experts with a specialized understanding of the subject matter.
Rules of Evidence
The rules of evidence that apply in judicial court proceedings don’t apply to administrative AR 15-6 investigations. Therefore, the evidence that may be used is limited by only a few rules:
- The evidence must be relevant and material to the matter under investigation.
- Polygraph results may only be used with the subject’s permission.
- Privileged communications—such as those between husband and wife, priest and penitent, and attorney and client—may not be considered.
- Statements made off the record may not be admitted.
The investigating officer should consult with an attorney if there are any questions regarding these rules.
Standard of Proof
An AR 15-6 investigation is not a criminal proceeding, so facts and findings are not required to be proven beyond a reasonable doubt. Instead, the investigation’s findings must be evidence-based and point to one conclusion being more credible and probable than any other conclusion.
Concluding an AR 15-6 Investigation
Preparing Findings & Recommendations
Once all the evidence is collected, the investigating officer reviews it thoroughly and impartially to make findings supported by the facts and in compliance with the appointing authority’s instructions. Submissions to the appointing authority should include:
- Facts: The investigating officer should be able to explain the who, what, when, where, and why of the case.
- Findings: When stating findings, the investigating officer should rely on the facts and reasonable inferences drawn from those facts. Findings should be supported by the documented evidence submitted with the report.
- Recommendations: The proposed course of action—including discipline, corrective action, or fines—should be consistent with the findings.
Preparing Submissions to the Appointing Authority
The investigating officer should complete DA Form 1574 and assemble the submission in the following order:
- Appointing order
- Initial information collected
- Rights warning statements
- Exhibits (including an index)
Conducting a Legal Review
While informal investigations don’t require a legal review, appointing authorities are encouraged to obtain one anyway. The review determines:
- Whether the investigation complies with legal requirements
- The effects of any errors in the investigation
- Whether the findings are supported by sufficient evidence
- Whether the recommendations are consistent with the findings
The appointing authority may approve, disapprove, or modify the findings and recommendations, or they may direct further investigative action.
Legal Counsel is Essential During an AR 15-6 Investigation
Military service members are advised to seek legal counsel as soon as possible after being accused of a crime or arrested for any reason. Joseph L. Jordan, Attorney at Law has garnered worldwide success defending soldiers against a wide range of allegations. We will advocate on your behalf and conduct our own investigation to benefit your case. For professional assistance defending yourself during an AR 15-6 investigation, please call us toll free at 800-580-8034 or 254-221-6411 to speak directly with our military defense lawyer about your case.