INVESTIGATION REQUIRED TO CONDUCT A HEARING

The investigation required to conduct a hearing is intended to be an intermediate step between an investigation not requiring a hearing and a court of inquiry. Such investigations are used, for example, when a hearing with sworn testimony is desired or designation of parties may be required, but only a single IO is necessary to conduct the hearing.

The principal characteristics of an investigation required to conduct a hearing include the following:

~ The investigation is convened by any person authorized to convene a general or special court-martial. @ It consists of one or more commissioned offficers.

The investigation should normally be composed of a single officer; however, if multiple members are considered desirable, a court of inquiry should be considered. Usually, it consists of one commissioned officer, but a Department of the Navy (DON) civilian employee may be used if appropriate. The IO should be senior to any designated party and at least an O-4 or GS-13. It may consist of two or more commissioned officers with the senior member who will be the president of the board at least an O-4. If appropriate, warrant officers, senior enlisted, or DON civilian employees may be assigned as members, in addition to at least one commissioned officer. No member of the board should be junior in rank to any person whose conduct or performance of duty is subject to inquiry.

Legal counsel should be appointed for the proceedings, with duties and requirements identical to those for a court of inquiry. The investigation is convened by written appointing order. The required contents, with an example, can be found in JAGINST 5830.1, encl (2). All testimony is under oath and all proceedings are transcribed verbatim. A formal hearing procedure, similar to the court of inquiry is used. The CA may designate those persons whose conduct is subject to inquiry or who have a direct interest in the subject inquiry as parties in the convening order. The CA may authorize the fact-finding body to designate parties during the proceedings. Unless convened to investigate a claim under Article 139, UCMJ, and JAGMAN, chapter II, an investigation does not possess the power to subpoena civilian witnesses.

USES OF THE RECORD OF INVESTIGATION

If an individual is accorded the rights of a party with respect to the act or omission under investigation, punishment may be imposed without further proceedings. The individual may, however, submit any matter in defense, extenuation, or mitigation. If an individual has not been accorded the rights of a party, a hearing conducted according to paragraph 4 of part V, Manual for Courts-Martial (MCM), 1984, must be conducted before punishment is imposed.

In cases where a GCM is contemplated, it is sometimes possible to use the record of a court of inquiry instead of a formal pretrial investigation of the offenses. If a court of inquiry is used in place of an Article 32, UCMJ, investigation, the accused can demand to recall witnesses for further cross-examination and to offer any new evidence on his or her own behalf. Normally, the convening of a separate Article 32, UCMJ, investigation is the most efficient method for bringing an accused to trial.

Sworn testimony contained in the record of proceedings of a court of inquiry or investigation required to conduct a hearing before which an accused was not designated as a party may not be received in evidence against the accused unless that testimony is admissible independently of the provisions of Article 50, UCMJ.

A party is entitled to a copy of the record of an Article 32, UCMJ, pretrial investigation where trial by GCM has been ordered, subject to the regulations applicable to classified material. If a letter of censure or other nonjudicial punishment (NJP) is imposed, the party upon whom it was imposed has a right to have access to a copy of the record in order to appeal.

SELECTION OF FACT-FINDING BODIES

Deciding which type of fact-finding body to convene depends upon the purpose of the inquiry, the relative seriousness of the subject under inquiry, the complexity of the factual issues involved, the time allotted for completion of the investigation, and the nature and extent of powers required to conduct the investigation. The type of fact-finding body selected is left to the judgment and discretion of the officer in command. Before convening an investigation, the CA must consider the powers the fact-finding body will require and the desirability of designating parties. If the subject of the inquiry involves disputed issues of fact and a risk of substantial injustice if an individual is not afforded the rights of a party, a court of inquiry or an investigation required to conduct a hearing should be ordered. If the ability to subpoena witnesses is necessary, a court of inquiry should be convened.

If the subject of the investigation is a major incident, a court of inquiry should be convened. For less serious cases, an investigation not requiring a hearing will normally be adequate.

Section 0202a(3) of the JAGMAN describes a major incident as "An extraordinary incident occurring during the course of official duties resulting in (1) multiple deaths, (2) substantial property loss, or (3) substantial harm to the environment where the circumstances suggest a significant departure from the expected level of professionalism, leadership, judgment, communication, state of material readiness, or other relevant standard." These cases are often accompanied by national public/press interest and significant congressional attention, as well as having the potential of undermining public confidence in the naval service. It may be apparent when first reported that the case is a major incident, or it may emerge as additional facts become known.

Notwithstanding the fact that a death case maybe a major incident as defined, the circumstances surrounding the death or resulting media attention may warrant the convening of a court of inquiry or investigation required to conduct a hearing as the appropriate means of investigating the incident.

The first flag or general officer exercising general court-martial convening authority over the incident or in the chain of command, or any superior flag or general officer, takes immediate control over the case as the CA. If the CA determines that an incident initially considered major is not, or that a court of inquiry is not warranted under the circumstances, those conclusions must be reported to the next flag or general officer in the chain of command before any other type of investigation is convened.

Because investigating major incidents are sometimes complicated by the premature appointment of a board of inquiry or investigation required to conduct a hearing, the CA may wish to initially convene a one-officer investigation not required to conduct a hearing to immediately begin to collect and preserve evidence and locate and interview witnesses. To decide which course of action to pursue, the CA should set a specific date for the IO to submit an interim oral report. Summaries of testimony or evidence developed by the IO may be used as an aid by any subsequent investigative body, and the initial IO maybe detailed to assist the fact-finding body.

Courts of inquiry and investigations required to conduct a hearing are only used to investigate the most serious incidents. These incidents frequently have extraordinary media and congressional interests, and considerable pressure is often exerted to complete the investigations in a limited period of time. Because of the nature of these investigations, CAs are tasked with providing support for the investigations. Personnel assigned to support these investigations are under the command of the president of the court of inquiry or the IO in an investigation requiring a hearing. The investigation becomes the primary duty of all support personnel. The following types of support will be provided when appropriate:

l Technical advisors

l Court reporters

l Interpreters

l Evidence custodians

l Security

l Administrative support personnel

l Public affairs officers

l Messages

LINE OF DUTY/MISCONDUCT DETERMINATIONS

To assist in the administration of naval personnel, the CO is required to inquire into certain cases of injury, disease, or death incurred by members of his or her command. When these inquiries are conducted, the CO is required to make what is referred to as line of duty/misconduct determinations. As in most matters, the type of inquiry and the degree of formality of the report will depend upon the circumstances of each case.

Normally, the CO of the service member involved is responsible for making the determination as to the type of, and necessity for, inquiry required. If a service member is injured and admitted to a naval hospital, the CO of the naval hospital will, if no investigation has been ordered, report the matter to the local area coordinator or other comparable authority who will take action to cause an investigation to be conducted.

The results of the inquiry and the subsequent line of duty/misconduct determination can affect several benefits and/or rights administered by the DON to which the injured party may be entitled. Some of these rights include the following: . Extension of enlistment . Longevity and retirement multiplier . Forfeiture of pay . Disability retirement and severance pay

This report also may be made available to the Department of Veterans Affairs to assist them in making determinations concerning Veterans Administration benefits.

WHEN LINE OF DUTY/MISCONDUCT DETERMINATIONS ARE REQUIRED

Findings concerning line of duty/misconduct must be made in every case where a member of the naval service incurs a disease or injury that (1) might result in permanent disability or (2) results in the physical inability to perform duty for a period exceeding 24 hours (as distinguished from a period of hospitalization for evaluation or observation).

Opinions concerning line of duty are prohibited in _{death cases.} Misconduct will not be attributed to a deceased member. If such an opinion has been made or recorded after the incurrencc of an injury, but before death, the convening or reviewing authority will note the error and its lack of validity in the endorsement. Because federal agencies must make determinations with respect to survivor benefits, all significant and relevant facts will be recorded in a timely manner when the command is required to investigate the death of a member.