Military Investigations: The Basics

The military has developed a variety of investigations and methods for discovering facts and proposing recommendations covering matters such as:

• Injuries and deaths
• Property loss and destruction
• Criminal activity
• Safety violations and concerns
• Any other matter or incident (commanders have the inherent authority to conduct investigations)

There are also various investigating entities within the military, depending on the incident and type of investigation. For example, a matter may be investigated within a command, by the Military Police, or by one of the following specialized criminal investigative services:

• Army: Criminal Investigation Command (CID)
• Marine Corps: Criminal Investigation Division (CID)
• Air Force: Office of Special Investigations (OSI)
• Navy: Naval Criminal Investigative Services (NCIS)
• Coast Guard: Coast Guard Investigative Services (CGIS)

Types of Military Investigations

There are certain events that automatically trigger military investigations, such as deaths due to hostile fire, friendly fire, or suicide. Below are the more common types of investigations that you may encounter in the military:

When a commander learns that a subordinate is accused or suspected of committing a criminal offense, that commander is required to initiate a preliminary inquiry under Rule of Court Martial 303. This inquiry is usually informal, but can involve an extensive investigation depending on the allegations. These investigations look for evidence of:

• Guilt or innocence
• Aggravation
• Extenuation and mitigation

Investigations of property loss or damage, referred to as Financial Liability Investigations of Property Loss (FLIPLs) in the Army, are used to:

• Document circumstances surrounding the loss, damage or destruction of government property
• Adjust property records
• Assess liability or provide relief from liability

These investigations are used for property accountability purposes and are not intended for adverse actions. However, a commander always has the right to take adverse administrative actions based on the results of such an investigation. These investigations seek evidence based on the following elements (similar to a negligence cause of action):  (1) responsibility; (2) loss; (3) culpability; and (4) proximate causation.

Service members suffering injury, illness, or death as a result of their service can expect a Line of Duty (LOD) investigation. This investigation will determine whether an injury was sustained in the Line of Duty, thus opening up eligibility for disability or other compensation from the Veterans' Administration.

An LOD investigation involves a two-step analysis:

1. Was the service member's misconduct the proximate cause of injury, illness, or death?
2. What was the service member's status?

If the injury, illness, or death resulted from misconduct, then it would not be considered in Line of Duty. However, if no misconduct was involved, then in Line of Duty would apply as long as the service member was in an authorized duty status (present for duty, on leave or on pass) and not AWOL. An LOD investigation can result in one of the following determinations:

• In Line of Duty (ILD)
• Not in Line of Duty-Not Due to Own Misconduct (NLD-NDOM)
• Not in Line of Duty-Due to Own Misconduct (NLD-DOM)

These investigations are initiated by a commander and are governed by Army Regulation 15-6 (Army), the Manual of the Judge Advocate General (Navy and Marine Corps), Air Force Instruction 90-301 (Air Force) and the Administrative Investigations Manual (Coast Guard).

CDIs can be formal or informal and are used for any matter not covered by more specific investigations. However, multiple types of investigations can be conducted regarding the same incident. For example, a service member that is injured and who damages a government vehicle while driving under the influence can be subject to a criminal investigation, a FLIPL, an LOD, and a CDI.

CDIs are initiated when a commander appoints an Investigating Officer (IO), who is required to ascertain facts relating to an incident. The IO has a duty to impartially consider all evidence, but is not bound by the Military Rules of Evidence, and must weigh all evidence under the preponderance of the evidence standard. The IO then issues a Report of Investigation containing findings and recommendations, after which, the commander can:

• Approve
• Disapprove
• Return for additional investigation (and appoint a new IO if needed)
• Substitute the findings and recommendations

What if You're the Subject of a Military Investigation?

If you're the subject of a military investigation, it's important to know all of your rights, particularly those protecting against self-incrimination. Also, if you’re subject to a military investigation, you must be advised of your rights under Article 31 of the UCMJ. In addition, you may have a right to challenge any findings by, for example, arguing that they were inconsistent with the evidence, did not account for all of the evidence, or that the investigator was biased.

In any event, you should speak with a military defense attorney to further advise you of your rights during the process. You should also consider speaking with a civilian attorney specializing in military law. For more information on this, see FindLaw’s article on hiring civilian attorneys for military matters.