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COMMUNICATIONS WITH THE CA If at any time during the investigation it should appear, from the evidence presented or otherwise, that the CA might consider it advisable to enlarge, restrict, or otherwise modify the scope of the inquiry or to change in any respect any instruction provided in the appointing order, an oral or written report should be made to the CA. The CA may take any such action on this report deemed necessary. There is no requirement that such communications with the CA be included in the report or the record of the investigation. The investigative report, submitted in letter form, consists of the following items: l Opinions l Recommendations l Enclosures Preliminary Statement The purpose of the preliminary statement is to inform the convening and reviewing authorities that all reasonably available evidence was collected and that the directives of the CA have been met. The preliminary statement should refer to the appointing order and set forth the following information: . The nature of the investigation . Any limited participation by a member and/or the name of any individual who assisted and the name and organization of any judge advocate general who assisted . Any difficulties encountered in the investigation and the reasons for any delay . If the evidence in the enclosures is in any way contradictory, a factual determination in the findings of fact section along with an explanation of the basis for that determination (this explanation should be reserved for material facts) . Any failure to advise individuals of their rights l The fact that all social security numbers were obtained from official sources . An attorney work product statement when a claim, or litigation by or against the United States, is reasonably possible l Any other information necessary for a complete understanding of the case Do not include a synopsis of facts, recommendations, or opinions in the preliminary statement. These should appear in the pertinent sections of the investigative report. It is not necessary for the IO to provide an outline of the method used to obtain the evidence contained in the report. A preliminary statement does not eliminate the necessity for making findings of fact. Even though the subject line and preliminary statement may talk about the death of a person in a car accident, findings of fact must describe the car, time, place of accident, identity of person, and other relevant information. Findings of Fact Findings of fact must be as specific as possible as to times, places, persons, and events. Each fact is made a separate finding. Each fact must be supported by testimony of a witness, statement of the IO, documentary evidence, or real evidence attached to the investigative report as an enclosure. Also, each enclosure on which the fact is based must be referenced. For example, the IO may not state: "The car ran over Seaman Doe's foot ," without a supporting enclosure. He or she may, however, have Doe execute a statement such as "The car ran over my foot." Include this statement as an enclosure and, in the findings of fact, state: "The car ran over Seaman Doe's foot," referencing enclosure (X). When read together, the findings of fact should tell the whole story of the incident without requiring reference back to the enclosures. The IO may only make findings of fact that are supported by a preponderance of evidence. A preponderance is created when the evidence as a whole shows that the fact sought to be proved is more probable than not. Weight of evidence in establishing a particular fact is not to be determined by the sheer number of witnesses or volume of evidence, but depends upon the effect of the evidence in inducing belief that a particular fact is true. In order that the acts of a deceased member may have caused harm and/or loss of life, including his or her own, through intentional acts, findings of fact relating to those issues must be established by clear and convincing evidence. Clear and convincing means a degree of proof beyond the preponderance of evidence discussed earlier. It is proof that should (1) leave no reasonable doubt in the minds of those considering the facts and (2) create a firm belief or conviction. It is that degree of proof that is intermediate, being more than a preponderance, but not reaching the extent of certainty as beyond any reasonable doubt. If the evidence is in any way contradictory, the IO still must make a factual determination in the findings of fact section. The following problem should make this clear. Problem. The enclosures in an investigation reveal the following information. Mr. Doe states he had seen a vehicle speeding by him at 90 mph; he was almost hit by the car; he does not own a car, is 80 years old, and has not driven since 1945. Mr. Hatch, an off-duty police officer, states that, as the car passed him, he glanced at his speedometer and he was traveling 35 mph; he estimates the speed of the other car at 45 mph. The police report reveals that the car left only 7 feet of skid marks on dry, smooth, asphalt pavement before stopping. How should the IO record this information? Solution. The IO should note the conflicting account in the preliminary statement as follows: "Two conflicting accounts of the speed of the vehicle in question appear in witness statements, but only encl (x), the statement of Mr. Hatch, is accepted as fact because of his experience, ability to observe, and emotional detachment from the situation." Findings of fact should reflect only the IO's evaluation of the Fact: "That the vehicle left skid marks of 7 feet in length in an attempt to avoid the collision (encl [x]); "That the skid marks were made on a dry, smooth, asphalt surface (encl [y]); and "That the speed of the vehicle was 45 mph at the time brakes were applied (encl [z])". In some situations, it may not be necessary to show a discrepancy in the preliminary statement. In other situations, it maybe impossible to find a particular fact. If, in the opinion of the IO, the evidence does not support any particular fact, this difficulty should be properly noted in the preliminary statement as follows: "The evidence gathered in the forms of encls (x) and (y) does not support a finding of fact as to the . . . and, hence, none is expressed." Only rarely will the conflict in evidence or the absence of it prevent the IO from making a finding of fact in a particular area. Thus, this should not be used as a way for the IO-who is either unwilling to evaluate the facts or too lazy to gather the necessary evidence-to make the required findings of fact. Opinions Opinions are reasonable evaluations, inferences, or conclusions based on the facts. Each opinion must reference the findings of fact supporting it. In certain types of investigations, the CA will require the IO to make certain opinions. Recommendations Recommendations are proposals derived from the opinions expressed, made when directed by the CA, and may be specific or general in nature. If corrective action is recommended, the recommendation should be as specific as possible. Disciplinary action is an area commonly addressed by the recommendations. If trial by court-martial is recommended, the IO submits a signed, sworn charge sheet as an enclosure to the investigative report. Unless specifically directed by proper authority, an 10 must not notify an accused of the charges. If a punitive letter of reprimand or admonition is recommended, the IO will prepare a draft of the recommended letter and submit it with the investigative report. If a nonpunitive letter is recommended, a draft is no t included in the investigation, but should be forwarded to the appropriate authority separate] y for issuance. If an award is recommended, the 10 should draft the appropriate citation and include it as an enclosure. Enclosures The first enclosure is either the signed written appointing order and any modifications or the signed written confirmation of an oral or message appointing order. Include any requests for extensions of time as enclosures, in addition to letters granting or denying such requests. JAGMAN 0229a requires the IO to properly identify all persons involved in the incident under investigation with complete name, grade or title, service or occupation, and station or residence. The list of enclosures is a suggested place for ensuring compliance with that section. Enclosures are listed in the order referenced in the investigative report. Separately number and completely identify each enclosure. Make each statement, affidavit, transcript of testimony, photograph, map, chart, document, or other exhibit a separate enclosure. If the IO's personal observations provide the basis for any finding of fact, a signed memorandum detailing those observations should be attached as an enclosure. Enclose a Privacy Act statement for each party or witness from whom personal information was obtained as an attachment to the individual's statement. The signature of the IO on the investigative report serves to authenticate all the enclosures. Figure 13-5 is an example of a completed JAGMAN investigative report (without enclosures). Because of the wide circulation of JAGMAN investigative reports, classified information should be omitted unless inclusion is essential. When included, however, the investigative report is assigned the classification of the highest subject matter contained in it. Encrypted versions of messages arc not included or attached to investigative reports where the content or substance of such message is divulged. To assist in the processing of requests for release of investigations and to simplify handling and storage, declassify enclosures whenever possible. If the information in question cannot be declassified, but contributes nothing to the report, consider removing the enclosure from the investigation with notification in the forwarding endorsement. |
 
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