FM 27-1 Chptr 8 Investigations

CHAPTER 8

Investigations

METHODS

Often, you must conduct or participate in investigations authorized by Army regulations. You may have to determine the cause of a soldier's injury or inquire about damage to unit or individual equipment. You may also have to participate in an investigation conducted by other officers concerning a matter in your command. Investigations usually conclude with findings and recommendations for administrative action that may have serious and far-reaching effects on soldiers; therefore, you must understand their purpose and proper conduct.

Objectives

Every investigation has the same basic objectives:

To collect, assemble, and preserve evidence.
To find facts known to be true and and those that may be presumed from all the evidence.
To make determinations and recommendations for administrative disposition.
To gather the best available evidence with the least possible delay.

An investigation should develop definitive answers to the questions who, what, when, where, and how. Generally, a simple report will establish the time, place, persons, and circumstances involved in an incident. Establishing the cause and the results, however, requires much effort. An investigator must read and understand the applicable regulations so that he can seek and recognize pertinent facts. If a regulation is not clear, he should get advice from the local SJA. Each investigator must be aware of the importance of his task. He must remember that his report is often the sole source of information available to the appointing authority who will take the final action.

Investigators must promptly obtain and record adverse and favorable evidence. As time passes, witnesses may forget, develop a biased view of the facts, hesitate to give statements, or become difficult to find. The scene of the incident may also change, perhaps due to repairing damaged property or moving evidence. The investigator should inspect and photograph damaged property before it is repaired. He should visit, observe, and interview injured persons, if possible, to accurately report the type and extent of their injuries. If warranted, the investigator should arrange for medical examinations of injured persons.

Proper investigation of an incident requires patience, training, experience, and skill on the part of an investigator. Specific rules for investigating cannot cover all situations. The investigator must use ingenuity and imagination to determine the best way to get the facts. He is primarily a fact gatherer and is not expected to engage in extensive legal research. He must, however, gather all pertinent facts impartially and report them accurately and concisely. The appointing authority and SJA apply the appropriate legal principles to the situation the investigator develops. If the investigator has doubts about his responsibilities, he should consult the SJA. Unless complete and precise statements and other information are already available from previous investigations, the investigator will interview witnesses and parties involved, obtain statements and photographs, and prepare diagrams.

If an investigation has already been made for other purposes, the investigator should get a copy of that report. While such a report may not be adequate for the current investigation, it could contain evidence and valuable leads. If the prior report contains diagrams, photographs, or witness statements, the investigator may not have to cover the same ground. He may make copies of such evidence, verify it, and include it in his investigation. Generally, however, the investigator will need to get more complete statements from witnesses. He must ensure that his report includes all pertinent facts, since reviewers see only the information in his report.

Evidence

Evidence may take several forms:

Real.
Documentary.
Testimonial.
Pictorial.

REAL

Real evidence is any tangible item other than something in writing. A defective windshield wiper in an accident case is a good example.

DOCUMENTARY

Documentary evidence is any writing, whether an official record or not, that can be easily identified on sight. Examples are extracts from regulations, military police reports, and extracts from Army records and letters. If the investigator's report contains an original document, the copies of the report need not be certified. If the investigator cannot get an original document, any copy must be noted "A TRUE COPY," with the officer's signature block and signature.

While documentary evidence is valuable in any investigation, the investigator should not rely on it alone to provide the whole story. For example, suppose an officer investigating a fire attached the standard fire report as an exhibit and relied on it in his findings as evidence of probable cause for the fire and for the amount of loss. Suppose also that he knew the fire chief was present at the fire, but that the post engineer prepared the report and signed it 'For the Fire Chief. ' In this case, he misused documentary evidence. First, while the officer knew that the fire chief was present at the fire, the post engineer, not the fire chief, prepared and signed the fire report. Second, the fire report showed only final figures as to property loss, putting undue reliance on one document. The proper action would have been to obtain a statement from the fire chief and others who were present, on what was witnessed and their analysis of the event. The report should be used only as secondary evidence. The investigator must use only accurate costs, including depreciation, salvage, and repair costs or estimates to establish the amount of damages.

TESTIMONIAL

The most difficult form of evidence to collect and preserve is also the most important--testimonial evidence. It is the transcript of an individual's oral statement. Ideally, the person making the statement will then swear that it is true. A statement may be taken in several ways:

The investigator may simply ask a witness to write out everything he has to say. This typically results in a poor statement because witnesses frequently find telling a comprehensive story difficult.
The investigator may ask the witness to tell the story while he either takes notes or tape records it. Later, he uses his notes or recordings to write a statement for the witness to approve and sign.
Perhaps the best method is to discuss with the witness what took place, ask questions, clarify points, and take notes of the discussion. The investigator then transcribes the testimony for the witness's signature. The result is an orderly, comprehensive, and coherent statement.

No matter how an investigator takes a witness's statement, several errors often occur. Failure to record all that the witness has said is probably the most serious error. Many investigators will take a short, formal statement and then casually discuss the case with the witness, gaining new facts. If the investigator does not record these facts, any finding or recommendation that relates to them may be invalid.

Investigators sometimes have difficulty with wording when administering oaths relating to sworn statements. UCMJ, Article 136(b)(4) gives an investigating officer the authority to administer oaths. Using DA Form 2823 for witness's statements solves the wording problem. Just restate what's set out on the form. The investigator may use it for military and civilian personnel.

If a witness is willing to make an oral statement, but refuses to swear to it or sign the written statement, his oral statement is still proper evidence. If the witness is unwilling to sign any written statement, the investigator should take notes of the discussion, prepare them in statement form, and note the refusal of the witness to sign or swear to it. AR 15-6, the guide for most investigations, permits this type of evidence as long as it is relevant and material. The investigator should be cautious in accepting at full value the statement of any witness who refuses to sign it.

Although these alternatives are time-consuming and burdensome, they are necessary in preserving evidence. Reviewers of the investigation will want to see the basis for the conclusions; any deficiency in the evidence may invalidate the report.

PICTORIAL

Documents and statements do not always provide an adequate representation of the incident. Investigators should use photographs and diagrams to further support the facts of their investigation. They should indicate the date, time, and place on all photographs and drawings. Physical conditions may change with time, so photographs taken or diagrams prepared long after an incident may be worthless.

Findings And Recommendations

After an investigator has collected, recorded, and analyzed the evidence, he is ready to start the last stage of the investigation--the findings and recommendations. A finding is a conclusion. The investigator must present, in a logical, step-by-step manner, the facts that support his finding.

A single finding may be based on direct evidence. For example, Sergeant Doe may state that he saw Sergeant Jones light a fire; therefore, if Sergeant Doe is believed, the finding is that Sergeant Jones lit the fire. Sergeant Doe's statement would be discussed as the basis for that finding. Or, a finding may be based upon circumstantial evidence. For example, Sergeant Doe may state that he saw Sergeant Jones in the area where the fire started and that no one else was in the area. The CID agent has said that the fire started in the area due to the lighting of several sticks with matches. Therefore, the investigator may find that Sergeant Jones lit the fire. The findings must be supported by the reasoning process and facts leading up to the finding. Reviewers should get a complete picture of what is known about the incident without having to examine the supporting evidence.

The investigator should not overlook the obvious in stating the findings. For example, in a fire investigation, the fact that a fire occurred at a certain time and place should be stated as the first finding. Failure to mention each link in the chain of facts may result in a report that is not legally sufficient.

The recommendations are the personal opinion of the investigator based solely on his findings and not on conjecture or suspicion. Under some regulations, the recommendations must meet certain standards to be legal. The investigator must read the applicable basic regulation carefully. The recommendations must cover each of the issues raised by the appointing order or the regulation. They should deal with each issue separately unless several issues can be logically combined. Finally, they should be fair, reasonable, and appropriate to the situation and known conditions.

The simplest way to look at the final report is as a pyramid. The evidence forms the base, the findings are the middle, and the recommendations are the peak. Each part of the report relies on the and completeness of the underlying parts. If the evidence does not support the the recommendations will have no foundation, and the report will fail. The investigator must review his work critically to ensure that his investigation will stand on its own.

BOARDS

Many Army regulations require investigations but provide little or no guidance for an investigator or board of officers to follow. In such cases, use AR 15-6. For example, aboard appointed to consider the administrative separation of a soldier for misconduct uses the procedures set forth in AR 15-6, as modified by AR 635-200, Chapter 2, Section III. On the other hand, if you are inquiring into a matter in your command, you may find that no regulation covers the specific situation. In such cases, use AR 15-6 as a guide for the investigation.

Administrative fact-finding procedures may be designated for an investigation or a board of officers, and the proceedings may be formal or informal. Proceedings that involve a single investigating officer using informal procedures are designated investigations. Procedures that involve more than one investigating officer using informal or formal procedures or a single investigating officer using formal procedures are designated a board of officers.

Functions

The primary function of an investigation or board of officers is to ascertain facts and report them to the appointing authority for appropriate action. A formal board may have the additional function of affording a hearing to a soldier, the result of which may be a finding or recommendation adverse for the soldier. Thus, you may use AR 15-6 as a guide for investigating widespread personnel complaints in the unit, excessive vehicle accidents in a particular platoon, or the lack of proficiency in a particular skill as reflected in MOS test scores.

These boards and investigating officers also may--

Determine the cause of an injury or a death.
Inquire into the loss or misappropriation of property.
Establish liability for the loss of funds or fix responsibility for the cause of an accident.

Boards of officers may act as advisory bodies to appointing authorities at higher levels of command. Boards may act as administrative tribunals to examine facts, hear evidence, and decide promotions, separations, and retirements.

Perhaps the best known administrative tribunals are the separation boards for enlisted personnel. (See Chapter 6.) These boards are appointed pursuant to a specific regulation, such as AR 635-200, but they conduct hearings in accordance with AR 15-6 as modified by the specific regulation.

Responsibilities

Commanders must know when to initiate board action and be able to supervise investigations within the unit. Company commanders and other company grade officers also may serve as members of boards of officers and as investigating officers. The major burden of conducting investigations and boards typically falls at company level. Therefore, as a company commander, you must familiarize yourself with AR 635-200 before participating in proceedings. You must also have a working knowledge of AR 15-6.

Proceedings

The proceedings for an investigating officer or board of officers include the preliminary actions, hearing, findings and recommendations, and final report.

PRELIMINARY ACTIONS

The first task of an investigating board or officer is to carefully read the memorandum of appointment and the applicable regulations it references. You may address questions to the appointing authority or the local SJA. You must understand the language of the regulation--many investigations and reports of boards are found to be legally insufficient because the investigating officer misunderstood a provision in the basic regulation.

Appointments. AR 15-6, paragraphs 2-1,3-1, 3-2, and 5-7, outlines appointments, oaths, and challenging of investigating officers and boards.

Duties of recorders. AR 15-6, paragraph 5-3, details the duties of the recorder before, during, and after the hearing of a formal board of officers. The AR's discussion is important to any proceeding; for example, if a recorder fails to give timely notice of a hearing to the parties under investigation or fails to notify witnesses, the investigation may be needlessly delayed or may be overturned as legally insufficient.

Assistance of counsel. AR 15-6, paragraph 5-6, provides that soldiers under investigation are entitled to the assistance of counsel. This counsel may be civilian and, if so, must be employed by the soldier at no expense to the government. Soldiers not retaining civilian counsel are entitled to representation by military counsel designated by the appointing authority.

In general, counsel as used here may refer to one who is not a lawyer. Counsel must be an attorney only if AR 15-6 or the basic regulation under which a board of investigation is appointed so requires.

HEARINGS

Chapters 3, 4, and 5 of AR 15-6 outline procedures for conducting formal and informal proceedings. The rules in these chapters discuss evidence, rights of witnesses, prejudicial allegations, and pecuniary responsibility. Investigating officers and boards of officers must know the rules well and should have a copy of AR 15-6 available throughout their proceedings.

Although, as an investigating officer, you need not observe the technical rules of evidence and procedure for courts-martial, you must base your conclusions and recommendations on substantial and credible evidence. Whenever possible, consider the highest quality evidence available. Rumors do not establish facts. An individual designated a respondent in formal board proceedings must be present at all open sessions of the hearing and must have the opportunity to cross-examine adverse witnesses.

FINDINGS AND RECOMMENDATIONS

AR 15-6, Chapter 3, Section II, discusses findings and recommendations. Findings should recite clearly and coherently the facts established by the evidence and the conclusions of the investigator or board. Your recommendations must be based on your understanding of the rules and regulations governing the Army, Army policies, and military customs. Your concept of justice, both for the government and for any individual concerned, should guide your recommendations.

FINAL REPORTS

As the investigating officer, you should prepare a report of proceedings in accordance with the regulation under which the board or investigation was appointed. AR 635-200, for example, requires that the findings and recommendations of the board be recorded verbatim in the report. You may find an adjutant general corps officer helpful in assembling the report.

DA Form 1574 is an excellent guide, especially if the report has no prescribed format. The form should be available to you at the start of the investigation. AR 15-6, Chapter 3, Section III, outlines the requirements for these reports.

CLAIMS

The Army claims system provides for payment--

Of claims resulting from the negligent or wrongful conduct of soldiers, civilian employees, or other agents of the government.
Of claims for personal property lost or damaged incident to the service of a soldier or civilian employee.
Directly from an offender's military pay to the victims of some crimes (pursuant to UCMJ, Article 139).
Of affirmative claims, which are claims by the United States.

AR 27-20 covers all claims. Many installations have their own claims regulations that apply local procedures and direct appointment of claims investigating officers. You should be familiar with AR 27-20 and with your local regulations.

Avoiding incidents that could result in claims is an important function of a commander. Properly inventorying and safeguarding personal property of soldiers on emergency leave, AWOL, or in confinement as outlined in Chapter 8, can prevent claims concerning missing personal property. Attention to driver safety can prevent claims resulting from accidents. In Europe, prompt reporting of maneuver damage significantly reduces the amounts spent for such claims. As a commander, you should understand these concerns and take action to reduce needless claims generated by the activities of your units.

Types Of Claims

The four types of claims are tort; personnel; UCMJ, Article 139; and affirmative.

TORT

Federal statutes authorize payment of damages for property damage, personal injury, or death caused by authorized Army activities or by the acts of soldiers and Army civilian employees performing government duties. The intelligent disposition and protection of the government's financial interests require prompt and thorough investigation of activities or incidents that may generate such claims.

PERSONNEL

The claims system benefits soldiers and Army civilian employees who suffer loss or damage to their personal property incident to their military service or employment. Such claims include those for the loss of or damage to belongings shipped or stored pursuant to military orders; those arising from fire, flood, hurricane, or other unusual occurrences; or those resulting from theft or vandalism at government quarters or other authorized places.

Payment of these claims significantly reduces the hardships of military life and has a significant effect on morale. Prompt filing of these claims not only benefits soldiers but also assists the Army in recovering from common earners, warehouse owners, insurers, and other third parties. As a commander, you should be familiar with the provisions of AR 27-20, Chapter II, and help your soldiers and civilian employees file their claims promptly.

UCMJ, ARTICLE 139

Unlike any other claims provision, Article 139 authorizes commanders (as opposed to claims offices) to approve or disapprove certain claims. Not only is Article 139 designed to recompense injured parties, it is also designed to assist commanders in maintaining discipline. If a soldier willfully damages or wrongfully takes someone's personal property, as the commander, you can have money withheld from that soldier's pay and paid to the victim. This action is separate from any other UCMJ action.

AFFIRMATIVE

The Federal Claims Collection Act (31 USC 951-53) directs heads of federal agencies to attempt to collect all government claims for money or property incurred during agency operations that do not exceed $20,000. The Federal Medical Care Recovery Act (42 USC 2651-53) enables the government to recover the reasonable value of medical care it provides a third person due to an injury or disease incurred under tort liability. Under either act, soldiers may be called upon to cooperate in the collection effort.

Investigation Of Claims

AR 27-20, Chapter 2, details the procedures for claims investigations. The local SJA is responsible for administering the claims system. He decides whether a claim will be paid and, if so, how much. Address any question about claims investigations to the SJA.

NOTIFICATION

A claim may not be paid until a claims investigating officer has thoroughly investigated the facts and circumstances surround an accident or incident. Therefore, as the commander, you must ensure that any accident or incident in the unit which may give rise to a potential claim is promptly investigated. As the commander, you will usually be the first to know about such incidents. It is your duty to notify the claims investigating officer promptly. Prompt notification ensures the timely preservation of evidence, which is very important in the review and payment of claims.

REPORT

DA Form 1208 can be used as a guide for the investigation. Typically, each battalion will have a claims investigating officer on orders. When extensive maneuvers are scheduled, you may appoint maneuver damage claims teams. Serious accidents can result in claims for many thousands of dollars. Therefore, an investigating officer must be prompt, follow diligently the provisions of AR 27-20, Chapter 2, and freely direct questions about any phase of the investigation to a local judge advocate.

Often, other investigators working on the same incident, but pursuant to other regulations, will join an investigating officer. In such cases, diagrams, police reports, statements, and other available evidence may serve for more than one investigation. For example, the Army's accident prevention program requires that all accidents involving injury or property damage be investigated. (See AR 385-10.) AR 385-40 provides the requirements for the investigation and the report. Although the purpose and requirements of the safety and claims investigating officers may differ, investigators may use evidence obtained for one investigation in the other. However, each investigator must thoroughly investigate the incident. Before using evidence from another report, the investigating officer should check it completely for accuracy, relevance, and completeness.

LINE-OF-DUTY DETERMINATIONS

When a soldier is injured, disabled, or unable to perform normal duties, the Army must establish the cause of the condition to determine lost pay, eligibility for disability retirement, bad time, and similar matters. For this reason, the Army has established procedures to determine whether the injury or condition occurred while the soldier was in the line of duty (LD) or not in the line of duty (NLD) and, if NLD, whether it was due to the soldier's misconduct or willful negligence. Some legal obligations or legal liabilities may arise as a result of these determinations.

Soldiers absent from duty for more than a day because of disease caused by and immediately following use of alcohol or addictive drugs will not be paid base pay, special pay, or incentive pay for the period of absence. Nevertheless, soldiers participating in the ADAPCP usually are not considered absent from duty. Soldiers unable to perform assigned duties for more than one day because of excessive drinking, disease, or injury caused by their own misconduct may be held past their ETS to make up for such absence.

When a soldier is an inpatient and is so disabled by drug or alcohol abuse that he is comatose for more than 24 consecutive hours, he will be administratively determined to be not in the line of duty-due to own misconduct (NLD-DOM) for the period of actual incapacitation. The medical facility commander makes this LD determination. If a soldier is not so incapacitated, an LD determination is not required. A soldier participating in the ADAPCP and under-going detoxification, treatment, or rehabilitation is considered to be absent from duty because of administrative policies, and the LD provisions of AR 600-8-1 do not apply.

A soldier may question an LD determination during disability processing and submit it to the military personnel center for further consideration; however, the final LD decision is conclusive in determining entitlement to physical disability benefits under AR 635-40.

Rules

In making an LD or NLD determination, a commander or investigating officer must follow certain principles addressed in AR 600-8-1, Part 5. In making such a determination, the commander will arrive at one of three findings:

In the line of duty (LD).
Not in the line of duty-due to own misconduct (NLD-DOM).
Not in the line of duty-not due to own misconduct (NLD-NDOM).

Any injury, disease, or death of a soldier is presumed to be LD, unless the investigator finds substantial evidence that the injury or disease was--

Caused and immediately preceded by willful misconduct or neglect. Simple negligence or carelessness alone does not constitute misconduct.
Incurred while AWOL.
Not incurred while on active duty or aggravated by military service.

Procedures

Unless a presumptive LD determination is appropriate, two types of procedures may be used in making an LD determination: informal and formal. This determination depends on the circumstances of each case.

INFORMAL INVESTIGATIONS

In informal investigations, a unit commander gathers sufficient evidence to show that absence without authority, deliberate injury or illness, or misconduct was not involved. An informal LD report consists of a DA Form 2173, completed by a medical treatment facility and the unit commander. The form may have attached documents, if necessary, to show that absence without authority and misconduct were not involved.

FORMAL INVESTIGATIONS

In formal investigations, a unit commander must make the fullest and most detailed investigation possible to ascertain all the facts surrounding the death, injury, or disease of a soldier. A formal LD report consists of a completed DD Form 261 with attached documents to substantiate the findings. The commander will conduct the investigation according to the provisions of AR 600-8-1.

Appeals

Soldiers who feel that a finding of NLD is erroneous may appeal the decision in writing within 30 days of receiving notice of the findings. AR 600-8-1, paragraph 41-16, provides guidelines for appeal.

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