COMMAND INVESTIGATIONS

Overview

0201 Scope

General – Chapter II of the JAGMAN sets forth principles governing the convening, conduct, review, and storage of administrative investigations conducted in or by the Department of the Navy (DON) under the authority of this Manual. The term “commander” generally refers to both commanding officers and officers in charge, but see section 0203b(2) in the case of a major incident. The commander who directs an investigation, other than a preliminary inquiry, is the convening authority (CA).

Relation to UCMJ investigations – If the only basis for an investigation is disciplinary action, a preliminary inquiry under Rule for Courts-Martial (R.C.M.) 303, Manual for Courts-Martial (MCM), or a pretrial investigation under R.C.M. 405, MCM, and Article 32, UCMJ, should be conducted without a separate investigation.

Relation to other investigations – In addition to the investigations governed by this Manual, investigations may be required by other regulations. These investigations have different purposes and both may be appropriate. Examples of investigations required by other regulations:

(1) situation reports prescribed by Articles 0831, 0851 and 0852, U.S. Navy Regulations (1990), OPNAVINST 3100.6 (series), or other situation reports prescribed by operational commanders, bureau manuals or departmental regulations;

(2) investigations conducted by an inspector general under SECNAVINST 5430.57 (series);

(3) investigations of aviation mishaps under OPNAVINST 3750.6 (series);

(4) reports concerning security violations prescribed by SECNAV M-5510.36;

(5) safety and mishap investigation reports required by OPNAVINST 5102.1 (series) or by MCO P5102.1 (series);

(6) investigations conducted by the Naval Criminal Investigative Service (NCIS) under SECNAVINST 5430.107 (series);

(7) investigations of allegations against senior DON officials conducted pursuant to SECNAVINST 5800.12 (series); and

(8) quality assurance reviews required by BUMEDINST 6010.13 (series).

Coordination with other investigations – To avoid potential conflicts among investigations, commanders must remain cognizant of the progress made by other investigative bodies. Before conducting a preliminary inquiry or convening an investigation under this chapter, the commander shall liaison with the Naval Criminal Investigative Service (NCIS) or the Naval Safety Center (NSC), as appropriate, regarding any pending law enforcement (military, federal, or state) or safety investigation.

(1) If a law enforcement investigation is pending, the commander should determine whether the law enforcement investigation will serve to appropriately document the matter without further investigation under this chapter. If the commander determines that a preliminary inquiry or investigation needs to be conducted in addition to the law enforcement investigation, the commander shall coordinate any preliminary inquiry or investigation with the cognizant law enforcement agency through NCIS. If NCIS declines, direct liaison may be made.

(2) If a safety investigation is pending, the commander shall ensure that any preliminary inquiry or investigation convened does not interfere with the safety investigation. If, in the course of conducting an investigation under this chapter, misconduct by naval personnel is discovered, the commander shall immediately notify the senior member of any on-going safety investigation.

(3) Refer to the Region Commander, his designee, or, in the case of the Marine Corps, to the general court-martial convening authority (GCMCA), via the chain-of-command, any conflicts between the law enforcement agency or NSC and the commander that cannot be resolved locally.

0202 assistance

Commanders are encouraged to seek guidance from the cognizant judge advocate or, if that judge advocate is not immediately available, the Command Services Department of the local Region Legal Service Office (RLSO) prior to convening an investigation. In addition, guidance for all types of investigations, except litigation reports, may be obtained from the Office of the Judge Advocate General (OJAG), Administrative Law Division (Code 13) at DSN 224-7415 or 703-614-7415. Guidance on interpretation and application of policy for litigation reports may be obtained from OJAG, Claims and Tort Litigation Division (Code 15) at DSN 325-4600 or 202-685-4600, or, in the case of Admiralty investigations, from OJAG, Admiralty and Maritime Law Division (Code 11) at DSN 325-5040 or 202-685-5040.

Preliminary Considerations

0203 preliminary inquiry

Purpose – A preliminary inquiry serves as an analytical tool to help a commander determine whether an investigation is warranted and, if so, how it should be conducted. A preliminary inquiry is not intended to develop extensive findings of fact. Commanders should discuss the findings and recommendations of the preliminary inquiry with a judge advocate to determine the appropriate command action.

Responsibility

(1) Generally, a commander is responsible for initiating preliminary inquiries into incidents occurring within, or involving personnel of, the command. The reporting command of a member who is injured or dies during permanent-change-of-station transfer shall ensure that appropriate inquiries are conducted.

(2) In the event of a major incident (see Appendix A-2-a for definition), however, the GCMCA over the command involved, if a flag or general officer, or the first flag or general officer in the chain-of-command, or any superior flag or general officer in the chain-of-command, will immediately take cognizance over the case as the “commander.”

Method – A commander may conduct a preliminary inquiry personally or through designees. While the preliminary inquiry may be accomplished in any manner considered sufficient by the commander, normally it will be directed in writing by an appointing order and the outcome documented in writing (see Appendix A-2-c). Evidence gathered during a preliminary inquiry shall be preserved by the investigating officer or in the Command General Administration and Management files in the event the commander later initiates an investigation.

Preliminary inquiries into incidents involving potential claims or litigation – An incident may occur in which there is a potential for claims or litigation against the DON or the United States for damage to personal property, personal injury or death, or for claims on behalf of the DON as an affirmative claim for damage to DON property. Although in most cases, a litigation-report investigation will be required, absent a preliminary inquiry, the commander will not know whether the matter is more appropriately the subject of a command investigation, litigation-report investigation, or court or board of inquiry. In such situations, a preliminary inquiry under the direction and supervision of a judge advocate should be conducted, using an appointing order and including language as described in section 0210(c).

Time limitations – Generally, the preliminary inquiry should be completed within three calendar days of the commander learning of the incident in question. The commander may grant extensions as necessary on a case-by-case basis and with the limited nature of the preliminary inquiry in mind. A preliminary inquiry into a major incident will usually take more time.

Major incidents

(1) Investigation of major incidents is sometimes complicated by premature appointment of a court of inquiry. Failure to first ascertain the sequence of incident events and identify essential witnesses can unnecessarily prolong and complicate subsequent proceedings.

(2) A commander will normally find it valuable to immediately appoint an officer to conduct a preliminary inquiry. Such officer should promptly begin to locate and preserve evidence and identify and interview witnesses. A commander may direct such officer to submit oral reports, which would permit the commander to make a timely decision as to how to proceed with the investigation.

0204 Command Options

General – A preliminary inquiry is concluded when the commander who initiated the inquiry has sufficient information to exercise one of the options listed below. Although the natural instinct of a commander is to seek out and document facts quickly, doing so without judge advocate involvement may not only be counterproductive but may actually work against the interests of the commander, the command, and DON. Subject to the factors set forth below, determining which option to exercise is, in the first instance, a matter of command discretion. Superiors in the chain-of-command may, however, direct a commander to reconsider or to take a different course.

Options

(1) take no further action (see subsection (d) below);

(2) make appropriate medical or dental record Line of Duty (LOD) determination (see section 0222);

(3) conduct a command investigation (see section 0209);

(4) convene a litigation-report investigation to be conducted under the direction and supervision of a judge advocate (see section 0210). The merits of any potential claim are irrelevant in determining whether to initiate a litigation report; or

(5) in cases involving a major incident, convene a court or board of inquiry. If not authorized to do so, then the commander may request, via the chain-of-command, an officer with such authority to convene the court or board (see section 0211).

Factors to consider

(1) Purpose of the investigation. Generally, the primary manner in which the investigation will be used will determine which option should be exercised. If, for example, an investigation will be used primarily to investigate the circumstances surrounding a claim filed against the United States, defend against a civil lawsuit, or to pursue an affirmative claim against a third party for damage to government property, then a litigation-report investigation or an Admiralty Letter Report should be conducted to ensure that the DON’s legal interests are protected (see Chapter XI of this Manual for discussion on admiralty investigations). However, the fact that a potential claim exists is not the only consideration in determining the nature of the investigation. When the incident being investigated involves large scale property damage, loss of life, or raises issues concerning the management of Naval activities, there may be sound policy reasons, such as openness and transparency of process or results, that warrant the convening of a command investigation or court or board of inquiry instead of a litigation-report investigation. In such cases, consult Code 15 before making a decision on the type of investigation to be conducted.

(2) Powers of the investigative body. In choosing an option, a commander should consider the power that an investigative body will require. For example, if a hearing is required to either resolve significant issues of fact or the commander believes that the individual whose conduct or performance of duty is called into question and their interest should be protected by being designated a party, a court or board of inquiry should be convened. If subpoena power will be required, a court of inquiry is the only option.

(3) Resource and time concerns

(a) Generally, the more formal the investigation, the more resources and time required. Nonetheless, conducting a command investigation when a court or board of inquiry is warranted is not advisable, since the less formal format will often fail to adequately address the issues.

(b) Under circumstances where a court-martial might arise from the incident, a court of inquiry may prove to be efficient because it may be a valid substitute for the Article 32, UCMJ, investigation.

Commander's action

(1) No further action. Not every incident or event warrants an investigation. A commander who concludes that further investigation would serve no useful purpose may decide not to conduct one, unless superior authority directs otherwise or unless an investigation is required under this Chapter. This option is appropriate if there are no potential claims for or against the U.S. or the DON, and the preliminary inquiry reveals that the event is likely to be of little interest to anyone outside the immediate command or that the event will be adequately investigated under some other procedure (e.g., a mishap investigation or NCIS investigation; see section 0201). In such cases, a commander should nonetheless endorse the preliminary inquiry as an internal “memorandum for the record” or “To: File.” See Appendix A-2-c for a sample format.

(2) Reporting the decision. Ordinarily, when a commander determines which of the options discussed in subsection b above will be exercised, a report of that decision will be made to his immediate superior in command.

Review – A superior in the chain-of-command may direct a subordinate to reconsider a decision or to exercise a specific option.

Administrative Investigations

0205 command responsibilities

General – Updating.

Request another command to investigate – Updating.

Different commands involved – Updating.

Other department involved – Updating.

Incidents involving Marine Corps personnel – Updating.

Incidents involving reservists – Updating.

Costs – Updating.

0206 convening orders

General – Updating.

Designation – Updating.

Elements of a convening order – Updating.

Amendments – Updating.

0207 standards of proof and evidence

Standards of proof – Updating.

Evidence – Updating.

Witnesses and warnings – Updating.

Witness statements from other investigations – Updating.

Personally Identifiable Information and the Privacy Act – Updating.

0208 investigation report format

General – Updating.

Classification – Updating.

Preliminary statement – Updating.

Findings of fact – Updating.

Opinions – Updating.

Recommendations – Updating.

Enclosures – Updating.

Signatures – Updating.

Three Types of Administrative Investigations

0209 Command Investigations

Purpose – Updating.

Limitations – Updating.

Convening order – Updating.

Investigatory approach – Updating.

Command investigation report – Updating.

CA action – Updating.

Review – Updating.

Forwarding and retention policies – Updating.

Release of command investigations – Updating.

0210 litigation-report investigations

Omitted, as litigation-report investigations may only be created under the supervision of an SJA.

0211 courts and boards of inquiry

Omitted, as courts and boards of inquiry will require assistance and advice from an SJA.