Recently, yet another Servicemember has been questioned by an Investigating
Officer regarding alleged inappropriate conduct. The Investigating Officer
had questions for a Fort Bragg Battalion Commander, as reported
here, who was subsequently relieved. Other Investigating Officers had questions
for General Officers, as reported
When an Investigating Officer (IO) wants to talk to you consider the following:
- It is s/he who will summarize, evaluate, and write down what you said.
Once you talk to the IO, the IO controls the input.
- What you say may be used against you. There is a reason why the IO may
want to talk to you.
- The standard for a legally sufficient investigation is fairly low. The
recommendations must be supported by findings. The evidence must show
that something happened based on the legal standard of 'more likely
than not.' As such, it is fairly easy for an IO to conclude that you
may have acted negligently. Once the IO finds negligence, and the IO recommends
adverse action against you, it will be too late to argue with the IO.
- Once completed, the investigation will be presumed administratively correct
– very difficult to change it.
There are a few ways of mitigating the dangers of speaking with an Investigating
- Submit your reponses in writing and have an attorney review your responses
before you submit them. The attorney will be able to ask the IO for his
appointment orders, the questions he or she is trying to answer by interviewing
you, and review your responses.
- Have an attorney independently look at the facts. Perhaps your attorney
will be able to speak with the IO and offer him suggestions.
- Have your attorney advocate on behalf of you to the IO. The IO is working
against the deadline to submit the investigation on time. Have your attorney
research additional facts and call the IO with the new information.
- If the result is still adverse, your attorney will be ready to assist you
because s/he will be familiar with the investigation and will be able
to point out its problems. A brand new attorney will have to familiarize
himself or herself with the entire investigation.
This information does not constitute legal advice. It is intended for public
use only. It is directed at general public only. If you need legal advice,
contact an attorney at
The Federal Practice Group.