CHAPTER 13 ADMINISTRATIVE INVESTIGATIONS

Almost every LN will have contact with an administrative fact-finding body, commonly called a _{JAGMAN investigation.} The regulations that govern these investigations are contained in the Manual of the Judge Advocate General (JAGMAN) and JAGINST 5830.1. The primary purpose of an administrative fact-finding body is to provide the convening authority (CA) and reviewing authorities with adequate information upon which to base decisions. In so providing the CA, an administrative fact-finding body searches out, develops, assembles, analyzes, and records all available information about the matter under investigation. As the name indicates, these investigations are purely administrative in nature-not judicial. The investigation is advisory only; the opinions are not final determinations or legal judgments, nor are the recommendations made by the investigating officer (IO) binding upon the convening or reviewing authorities.

TYPES OF INVESTIGATIONS

There are three types of administrative fact-finding bodies (courts of inquiry, fact-finding bodies required to conduct a hearing, and fact-finding bodies not required to conduct a hearing); however, for purposes of procedures, there are only two types of fact-finding bodies.

1. Fact-finding bodies required to conduct a hearing. These include courts of inquiry and investigations required to conduct a hearing. A court of inquiry consists of at least three commissioned officers and appointed legal counsel for the court. It is convened by written appointing order, takes all testimony under oath, and records all proceedings verbatim. A court of inquiry has the power to subpoena civilian witnesses. A fact-finding body required to conduct a hearing consists of one or more commissioned officers and should have appointed legal counsel for the proceedings. It is convened by a written appointing order. The appointing order should direct that all testimony be taken under oath and/or all proceedings recorded verbatim. A collateral function of a court of inquiry and a fact-finding body required to conduct a hearing is to provide a hearing to individuals who have been designated as parties to the investigation.

2. Fact-finding bodies not required to conduct a hearing. This category includes only the investigation not requiring a hearing. It is normally composed of a single investigator who obtains statements, rather than taking testimony, and who is not authorized to designate parties.

The importance of an administrative fact-finding body cannot be stressed enough. It is not only an efficient management tool, but also can be used in a wide variety of situations ranging from the proper disposition of claims to the timely and accurate reply to public inquiry. Various directives establish requirements for conducting of inquiries into specific matters. The JAGMAN, however, is the most inclusive. Some incidents involve conducting an inquiry for several different purposes that can be handled by one investigation; others may not. A CA must be careful to determine why an investigation is being conducted, who is supposed to conduct it, and whether it will satisfy all requirements or only a portion of them. The following situations are examples of the various different types of investigations:

l Aircraft accidents

l Vehicle accidents

l Explosions

l Stranding of a ship of the Navy

l Collisions

s Accidental or intentional flooding of a ship

l Fires

l Loss or excess of government funds or property

l Claims for or against the government

l Reservists (an investigation is required if a reservist is injured or killed while performing active duty or training for 30 days or less, or inactive-duty training)

l Admiralty matters

c Firearm accidents

l Pollution incidents

1 Combined investigations of maritime incidents

1 Security violations

1 Postal violations

1 Injuries and diseases incurred by service members

1 Quality of medical care reasonably in issue

1 Redress of damage to property

1 Death cases

DEATH CASES

A fact-finding body must be convened in the _{following death cases:} (1) when the death of a member of the naval service occurred, while on active duty, from other than a previously known medical condition; (2) when civilians or other nonnaval personnel are found dead on a naval installation under peculiar or doubtful circumstances, unless the incident is one that the Naval Criminal Investigative Service (NCIS) has exclusive jurisdiction; and (3) when death, or permanent disability, in which the adequacy of medical care is reasonably in issue.

You do not have to send a report to the Judge Advocate General (JAG) when death occurs as a result of enemy action. A fact-finding body should be convened and the record forwarded in any case when it is unclear if enemy action caused the death. Because some commercial life insurance policies contain certain restrictions and/or certain types of double-indemnity provisions, it is desirable to make sure the essential facts are recorded while witnesses are known and available. When feasible, the facts reported should permit determinations as to whether death resulted from accidental causes, natural causes, or enemy action.

Progress status reports are required on all death investigations from all command and reviewing activities every 14 days. Send a message to the Chief of Naval Personnel, with JAG and all intermediate commands/reviewing authorities as information addressees. The requirement for the status report ceases once the investigation has been sent to the next higher level of command/reviewing authority.

Advise the next of kin that they may request copies of the death investigation from JAG (Code 33). It is most important, therefore, that mature, experienced officers complete these investigations in an accurate, professional, and expeditious manner. Send an advance copy of each death investigation, with the GCM CA's endorsement, to JAG. If it would unduly delay submission of the investigation to await a final autopsy report, autopsy protocols, death certificates, or similar documents, submit an initial report promptly upon completion of the investigation. Submit a supplemental report via the review chain, with an advance copy to JAG, once the autopsy has been completed. The advance report is usually released to the requesting next of kin by JAG (after exclusion of material protected by the exemptions to the Freedom of Information/Privacy Act), unless JAG has been alerted that subsequent reviewers may significantly alter findings, opinions, or recommendations; in which case, release is withheld until the investigative report is finally reviewed.

INVESTIGATIONS REQUIRED BY OTHER REGULATIONS

If an investigation is required under the JAGMAN, it must be conducted in addition to any other investigation required by other regulations. Situations in which two investigations may be required are listed in JAGMAN 0208a.

A JAGMAN investigation is not required if there is no reason for the investigation other than possible disciplinary action. To avoid interference, a JAGMAN investigation should not normally proceed at the same time as a law-enforcement type of investigation by the Federal Bureau of Investigations (FBI), NCIS, or local civilian law-enforcement units.

If an investigation is required for other than disciplinary action, the IO should communicate with the law-enforcement personnel, explaining the need for the JAGMAN investigation, and request that the police investigators keep him or her informed of what information is obtained.

Other types of investigations that have additional instructions and guidance include the following:

l Safety investigations-OPNAVINST 5100.14

l Aircraft accident reports and aircraft mishap investigations-OPNAVINST 3750.6

l Accidental inquiry to personnel-OPNAVINST 5100.12

l Admiralty-JAGINST 5880.1

l Felonies involving both naval and civilian personnel-SECNAVINST 5820.1

Crimes involving exclusive NCIS jurisdiction- SECNAVINST 5520.3 and OPNAVINST 5450.97

Security violations-OPNAVINST 5510.1

Stolen government property-SECNAVINST 5500.4

Claims for or against the government- JAGINST 5830.1

Postal violations-OPNAVINST 5112.6

INVESTIGATIONS NOT REQUIRING A HEARING

The type of fact-finding body to be convened is determined by the purpose(s) of the inquiry, the seriousness of the issues involved, the time allotted for

completion of the investigation, and the nature and extent of the powers required to conduct a thorough investigation. This section will concentrate on the most common administrative fact-finding body, the investigatiom not requiring a hearing. Courts of inquiry and investigations requiring a hearing will be discussed later in this chapter. Keep in mind, however, that many of the basic rules and principles discussed in this section also apply to other types of investigations. As is the case with any fact-finding body, the primary function of an investigation not requiring a hearing is to gather information. A fact-finding body not requiring a hearing does not have the power to designate parties and, therefore, does not have the collateral function of providing a hewing to a party.

Any officer in command may order an investigation not requiring a hewing. For purposes of the JAG MAN, officer in command means an officer authorized to convene any type of court-martial or authorized to impose disciplinary punishment under Article 15, Uniform Code of Military Justice (UCMJ). This also includes officers in charge (OICs).

An officer in command is responsible for initiating investigations of incidents occurring within his or her command or involving his or her personnel. If an officer in command feels that investigation of an incident by the command is impractical, another command can be requested to conduct the investigation.

If an incident requiring the convening of an investigation occurs at a place geographically distant from the command, or the command deploys before an investigation can be completed, another command can be requested to conduct the investigation. This request should be made to the area coordinator in whose geographical area of responsibility the incident occurred.

A single investigation should be conducted into an incident involving more than one command, convened by an officer in command of any of the activities involved. If difficulties arise concerning who should convene the investigation, the common superior of all commands involved will determine who will convene it. If the conduct or performance of one of the officers in command may be subject to inquiry (as in the case of a collision between ships), the common superior of all the officers involved will convene the investigation.