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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
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