THE INVESTIGATORY BODY

An investigation not requiring a hearing may be composed of a single investigator or a board consisting of two or more members. The most common is the one-officer investigation. The IO should normally be a commissioned officer, but may be a warrant officer, senior enlisted, or a civilian employee, when appropriate. IOs must be those individuals who are best qualified for the duty by reason of age, education, training, experience, length of service, and temperament. Unless impractical, the IO should be senior to any person whose conduct or performance of duty will be subject to inquiry. An expert may participate as IO or for the limited purpose of using his or her special experience. The report should make clear any participation by an expert. Ordinarily, counsel is not appointed for an investigation not requiring a hearing, although a judge advocate is often made available to help the IO with any legal problems or questions that may arise.

APPOINTING ORDER

An investigation not requiring a hearing is convened by a written order called an appointing order. An officer in command is responsible for initiating investigations of incidents occurring within his or her command or involving his or her personnel.

An appointing order must be in official letter form, addressed to the IO of the one-officer investigation. When circumstances warrant, an investigation may be convened by an oral or message order. The IO must include the signed, written confirmation of oral or message orders in the investigative report.

The written appointing order for a JAGMAN investigation not requiring a hearing will contain the following:

1. Subject line (fig. 13-1)

2. Witness warnings, purpose, and scope of the investigation (fig. 13-2)

The paragraphs in figure 13-2 serve several purposes. They recite the specific purpose(s) of the investigation, give explicit instructions as to the scope of the inquiry, and direct the IO to the required witness warnings.

These instructions help the IO accomplish all the objects of the investigation, not just the CA's immediate objectives. For example, the following case of a vehicle accident involving a member of the naval service may give rise to various concerns that include (1) the CA who orders the investigation may be concerned whether local procedures regarding the use of government vehicles should be changed and whether disciplinary action may be warranted; (2) JAG maybe concerned with a line of duty/misconduct determination; and (3) the cognizant naval legal service office (NLSO) claims officer will be concerned with potential claims for or against the government. A properly completed investigation requires the 10 to satisfy the special requirements for each of these different determinations.

All fact-finding bodies are required, as directed in paragraph 2 of figure 13-2, to make findings of fact. In the typical investigation not requiring a hearing, the appointing order directs the IO to conduct a thorough investigation into all the circumstances connected with the subject incident and to report findings of facts, opinions, and recommendations concerning the following:

l The resulting damage

l The injuries to members of the naval service and their line of duty and misconduct status

l The circumstances attending the death of members of the naval service

l The responsibility for the incident under investigation, including any recommended administrative or disciplinary action

l Claims for and against the government Any other specific investigative requirements that are relevant, such as those contained in the JAGMAN l

During the course of the investigation, on advice of the investigative body or on his or her own initiative, the

Figure 13-1.-Sample subject line for JAGMAN investigation.

Figure 13-2.-Sample witness warnings, purpose, and scope of investigation.

CA may broaden or narrow the scope of the inquiry by issuing supplemental directions amending the appointing order.

Paragraph 2 of figure 13-2 also directs the IO to report opinions and recommendations. Unless specifically directed by the appointing order, opinions or recommendations are not made. The CA may require recommendations in general, or in limited subject areas.

The appointing order may direct that testimony or statements of some or all witnesses be taken under oath and may direct that testimony of some or all witnesses be recorded verbatim. When a fact-finding body not requiring a hearing takes testimony or statements of witnesses under oath, it should use the oaths prescribed in JAGMAN 0212b.

The Privacy Act requires that a Privacy Act statement be given to anyone who is requested to supply personal information in the course of a JAGMAN investigation when that information will be included in a system of records. Note that witnesses will rarely provide personal information that will be retrievable by a witness' name or other personal identifier. Since such retrievability is the cornerstone of the definition of system of records, in most cases the Privacy Act will not require warning anyone unless the investigation may eventually be filed under that individual's name.

Social security numbers should not be included in JAGMAN investigation reports unless they are necessary to precisely identify the individuals involved, such as in death or serious injury cases. If a service member or civilian employee is asked to voluntarily provide their social security number for the investigation, a Privacy Act statement must be provided. If the number is obtained from other sources, the individual does not need to be provided with a Privacy Act statement. The fact that social security numbers were obtained from other sources should be noted in the preliminary statement of the investigation.

If prosecution for a suspected offense under the UCMJ appears likely, the witness suspected of the offense should be warned under Article 31(b), UCMJ, and JAGMAN 0170. Appendix A-1-m of the JAGMAN shows the proper form to be used. The IO should collect all relevant information from all sources-other than from those persons suspected of offenses, misconduct, or improper performance of duty-before interviewing the suspect.

A member of the armed forces, before being asked to provide any statement relating to the origin, incurrence, or aggravation of any disease or injury suffered, should be advised of the statutory right not to make such a statement. Appendix A-2-f of the JAGMAN contains a proper warning format and without this warning the statements are invalid.

As figure 13-2 illustrates, all sections of the JAGMAN that may apply to the particular incident under investigation should be listed, along with any applicable chain of command directives.

Paragraph 2 of figure 13-2 directs completion of the IO's report within 30 days of the date of the appointing order. JAGMAN 0202c established the following time limits for processing JAGMAN investigations:

(a) The CA prescribes the time limit the fact-finding body has to submit its investigation. This period should not normally exceed 30 days from the date of the appointing order; however, this period may be extended for good cause. Always include requests and authorizations for extension as enclosures to the investigation.

(b) The CA and each subsequent reviewer have 30

days (20 days in death cases) to review the investigation. Reasons for exceeding these time limits must be documented by the responsible endorser, and deviations must be requested and approved in advance by the immediate senior in command who will next review the investigation.

3. Attorney work product statement (fig. 13-3)

Figure 13-3 is an attorney work product statement. This language must be included in the appointing order if the possibility of litigation or a claim for or against the government exists.

Figure 13-3.-Attorney work product statement.

4. Administrative support (fig. 13-4)

Figure 13-4 directs the SJA office of the command to provide clerical support to the IO. It is extremely important to designate who provides that support in order for the IO to obtain assistance in typing the investigation and producing the necessary number of copies.