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Uses of the Record of Investigation - 14135_368
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. 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 13-17

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