DISCIPLINARY ACTION

Whenever punitive or nonpunitive disciplinary action is contemplated or taken respecting an individual as a result of the incident under inquiry, the action will be noted in the endorsement of the CA. Disciplinary action should be taken in a timely manner and should not await the concurrence of higher authority.

COPIES AND FORWARDING

Send one complete copy of the investigation with the original for each intermediate reviewing authority and an additional copy for JAG. In cases involving death or injury to service members, JAG receives the original and three copies. When certain types of incidents are investigated, send advance copies of the investigative report as soon as possible. Investigations requiring advance copies include the following:

l Admiralty cases

l Collisions

l Loss or stranding of a ship

l Postal losses

l Serious incidents

l Deaths/serious inquiries

l Material property damages

l Claims investigations

In all cases where it is appropriate to send an advance copy of an investigation to JAG, the advance copy will be sent by an officer exercising general court-martial jurisdiction (OEGCMJ) and will include that officer's endorsement.

RELEASING INVESTIGATIONS

Convening and reviewing authorities are not authorized to release JAGMAN investigations. The CNO (OP-09N) is the release authority for investigations involving classified information and JAG is the release authority for all other JAGMAN investigations.

The other types of administrative investigations conducted are the court of inquiry and the investigation required to conduct a hearing. As stated earlier, procedural y there are only two types. Let's look at the second type of administrative investigations now.

COURTS OF INQUIRY AND INVESTIGATIONS REQUIRED TO CONDUCT A HEARING

Other than conducting a hearing, the common thread that runs between a court of inquiry and an investigation required to conduct a hearing is the concept of parties.

PARTIES

A party is a person subject to the UCMJ who has properly been designated as such in connection with a court of inquiry or an investigation required to conduct a hearing whose conduct is the subject of the inquiry or who has a direct interest in the inquiry. Upon request, an employee of the Department of Defense (DOD) having a direct interest in the subject of the inquiry must be designated as a party. Designation as a party affords that individual a hearing on possible adverse information concerning him or her.

A person's conduct or performance is subject to inquiry when that person is involved in the incident under investigation in such a way that disciplinary action may follow, that rights or privileges may be adversely affected, or that personal reputation or professional standing may be jeopardized.

A person has a direct interest in the subject of inquiry when (1) the findings, opinions, or recommendations may, in view of his or her relation to the incident or circumstances under investigation, reflect questionable or unsatisfactory conduct or performance of duty or (2) the findings, opinions, or recommendations may relate to a matter over which the person has a duty or a right to exercise control.

The CA of the court of inquiry or investigation required to conduct a hearing may designate parties, or the fact-finding body may be expressly authorized by the CA to designate parties.

A person designated as a party before a court of inquiry or an investigation required to conduct a hearing has the following rights: . To be given due notice of such designation . To be present during the proceedings, except when the investigation is cleared for deliberations . To be represented by counsel

. To be informed of the purpose of the investigation and be provided with a copy of the appointing order

. To examine and object to the introduction of physical and documentary evidence and written statements

. To object to the testimony of witnesses and to cross-examine witnesses other than his or her own

. To request that the court of inquiry or investigation obtain documents and testimony of witnesses, or pursue additional areas of inquiry

. To introduce evidence

. To testify at his or her own request, but not be called as a witness

l To refuse to incriminate himself or herself and, if accused or suspected of an offense, to be informed of the nature of the accusation and advised that no statement regarding the offense that he or she is accused or suspected is required, and that any statement made by him or her maybe used as evidence against him or her in a trial by court-martial . To make a voluntary statement, oral or written,

Figure 13-7 illustrates the circumstances under which particular fact-finding bodies may designate parties as well as who may be designated (military and/or civilian personnel).

sworn or unsworn, to be included in the record of proceedings . To make an argument at the conclusion of presentation of evidence . To be properly advised concerning the Privacy Act . To challenge members of the court of inquiry and the IO or, when assigned, the president and any member of the investigation required to conduct a hearing for cause COURT OF INQUIRY Designee When Designated Designation Any person subject to Conduct or performance Mandatory the UCMJ of duty subject to inquiry Any person subject to Direct interests in Mandatory the UCMJ or employed by subject of inquiry upon his or DOD her request Any member of of the USNR Conduct or performance Optional or USMC not subject to the of duty subject to upon his or UCMJ by virtue of his or her inquiry her request status No other person without SECNAV (JAG) approval INVESTIGATIONS REQUIRED TO CONDUCT A HEARING Designee When Designated Designation Any member of the naval Conduct or performance Optional service subject to the UCMJ of duty subject to inquiry Any member of any other armed Conduct or performance Optional force other than Navy or Marine of duty subject to upon his or Corps, subject to the UCMJ, DOD inquiry her request employees, any member of the USNR or USMC not subject by virtue of his or her status No other person without SECNAV (JAG) approval

Figure 13-7.-Chart showing circumstances under which particular fact-finding bodies may designate parties.

COURT OF INQUIRY

The court of inquiry is the traditional means by which serious military incidents have beenn investigated. Originally adopted by the British Army, it has remained in its present form with only slight modifications since the adoption of the Articles of War of 1786. A court of inquiry is not a court in the sense of the term used today; rather, it is a board of senior officers charged with searching out, developing, assembling, analyzing, and recording all available information about the incident under investigation. When directed by the CA, the court will offer opinions and recommendations about an incident.

The court is convened by any person authorized to convene a GCM or by any person designated by the Secretary of the Navy (SECNAV). It consists of three or more commissioned officers. When practical, the senior member who is the president of the court should be a least an O-4. All members should also be senior to any person whose conduct is subject to inquiry. Legal counsel, certified under Article 27(b), UCMJ, and sworn under Article 42(a), UCMJ, appointed for the court and under the direct supervision of the president of the court assists in matters of law, presenting evidence, and in keeping and preparing the record. Counsel does not perform as a prosecutor, but must make sure all evidence is presented to the court of inquiry.

The court is convened by a written appointing order, the contents of which are much the same as those discussed for fact-finding bodies not required to conduct a hearing. The required contents, with an example, can be found in JAGINST 5830.1, end (1).

All testimony is under oath (except for a person

designated as a party who makes an unsworn statement) and transcribed verbatim. Using a formal hearing procedure, witnesses and evidence are presented in the following order after opening statements are made:

counsel for the court; a party; counsel for the court in rebuttal; and, subsequently as requested by the court. After testimony and statement by the parties, if any, counsel for the court and counsel for the parties may present arguments.

Although a court of inquiry uses a formal hearing procedure, it is administrative and not judicial. Therefore, as in any other administrative fact-finding body, the Military Rules of Evidence (Mil.R.Evid.) will not be followed, except for (1) 301, self-incrimination, (2) 302, mental examination, (3) 303, degrading questions, (4) 501-504, dealing with privileges, (5) 505, classified information, (6) 506, government information other than classified information, and (7) 507, informants.

A court of inquiry has the power to subpoena witnesses who may be summoned to appear and testify before the court the same as at trial by court-martial.