Walking on unfamiliar ground: a primer for defense counsel representing clients in an inspector general investigation
In the course of a two-year assignment as a trial defense counsel (TDC), most defense attorneys are likely to represent numerous Soldiers at courts-martial and administrative separation proceedings. Likewise, most TDCs routinely assist Soldiers who are the subject of commander’s inquiries (2) and investigations under Army Regulation (AR) 15-6. (3) The formal and informal training TDCs receive, focuses on these aspects of their practice. Because of this emphasis and the volume of cases, most TDCs develop a good working knowledge of criminal investigations, AR 15-6 investigations, and commander’s inquiries. There is another type of investigation, however, that most defense counsel may only see once or twice over the course of a two-year assignment–Army Inspector General (IG) investigations.
Inspector general investigations come with their own set of rules and procedures. (4) Like other investigations, they can adversely impact the Soldier under investigation. Many aspects of an IG investigation are similar to the other investigations that TDCs work with on a regular basis. There are, however, several unique aspects of an IG investigation. (5) This article explains the IG investigation process and provides a primer that will assist defense attorneys to understand their role in protecting the interests of a client under investigation. The article will discuss investigations conducted at both the installation and command level as well as investigations conducted by the Department of the Army Inspector General (DAIG). The paper will first examine the rules of the IG investigative process. Next, it will consider the process. The article will also provide suggestions and highlight particular areas for TDCs to consider. The article concludes with some observations about the due process issues at stake.
Background
Before discussing IG investigations as they relate to a particular client, it is important to understand the IG’s regulatory role and the IG’s responsibilities in the context of an investigation or investigative inquiry. (6) Most judge advocates JA) are familiar with many of the local IG office’s day-to-day functions. One of the IG’s most important functions is to conduct inspections. (7) These inspections are intended to help leaders assess their organization’s ability to accomplish its wartime and peacetime missions. (8) Another function is the IG’s responsibility to provide assistance to Soldiers, family members, civilian employees, and retirees in resolving problems. (9) These functions are not the focus of this article.
The function with which most JAs are less familiar is the IG’s investigative responsibility. The Secretary of the Army (SA), the Under Secretary of the Army (USofA), the Chief of Staff of the Army (CSA), the Vice Chief of Staff of the Army (VCSA), the Inspector General (TIG), and commanders can direct that the IG conduct investigations or investigative inquiries. (10) The stated purpose of investigations is to “provide the directing authority a sound basis for decisions and actions. Inspector general investigations normally address allegations of wrongdoing by an individual and are authorized by written directive.” (11) The purpose of investigative inquiries is “to gather information needed to address allegations of impropriety against an individual that can accomplish the same objectives of an IG investigation.” (12) It is clear from these provisions that the IG uses investigations and investigative inquiries to look into allegations of individual misconduct.
Type of Investigation
Generally, investigations conducted by the command IG at the direction of a local commander are investigative inquiries. Investigative inquiries are less formal than investigations. (13) Investigative inquiries typically involve witness statements and a review of documents. Witness statements are not required to be sworn or recorded verbatim. (14) At the conclusion of the inquiry, a report of investigative inquiry (ROII) must be completed, and a legal review is required for any substantiated allegation. (15) The directing authority must approve the ROII, and the subject or suspect of the investigation must be notified in writing of any substantiated allegation. (16)
Investigations involve a more formal procedure and are typically conducted at the DAIG level. An investigation is a formal fact finding process. The investigation will include a formal directive from the directing authority and a notice to the subject or suspect and to the appropriate commander that an investigation is being conducted. (17) Sworn witness statements and verbatim transcripts of interviews; a report of investigation (ROI); a formal legal review of the ROI; and notification to the subject or suspect, the respective commander, and the complainant of the results of the investigation, are all requirements of a formal investigation. (18)
Inspector General Action Request
Investigations and investigative inquiries are most often triggered by someone making an Inspector General Action Request (IGAR). An IGAR is “[a] complaint, allegation, or request for information or help presented or referred to an IG. An IGAR may be submitted in person, over the telephone, through written communication, by electronic communications, or through the DOD Hotline referral.” (19) A complaint is “[a]n expression of dissatisfaction or discontent with a process or system….” (20) A complainant is “[a]ny person or organization submitting an IGAR. The person can be a [S]olider, family member, member of another Service, Government employee, or member of the general public. The organization can be any public or private entity.” (21) Finally, an allegation is “a statement or assertion of wrongdoing by an individual….” (22) Taken together, these definitions show that any person or any organization can bring information of suspected wrongdoing or misconduct by a military individual in virtually any form, including anonymous tips, and that information may trigger an investigation or investigative inquiry.