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Both situations frequently occur in the same investigative incident."

PARTY DESIGNATION

A person subject to the Uniform Code of Military Justice or an employee of the Department of Defense whose conduct or performance of duty is "subject to inquiry" or who has a "direct interest" in the subject under investigation may properly be designated a party to an investigation.8

Only a member of the naval service subject to the Uniform Code of Military Justice whose conduct is subject to inquiry or a person subject to the Uniform Code of Military Justice who has a direct interest in the subject of inquiry and who requests to be made a party must be designated."

Any civilian employed by the Department of Defense who has a direct interest in the subject of inquiry and requests party designation, or any member of the Naval or Marine Corps Reserve not subject to the Uniform Code of Military Justice by virtue of his status whose conduct is subject to inquiry or who has a direct interest in the subject of inquiry may be designated a party upon his own request.10 Any member of the armed forces subject to the Uniform Code of Military Justice whose conduct is subject to inquiry or who has a direct interest in the subject of inquiry may be designated a party when it is considered advisable and practicable.11 No other persons may be designated parties."

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The convening authority in his appointing order should designate parties if they are apparent at the time. He may designate parties

7. Occasionally, a member of the naval service's conduct may be so obviously suspect that charges are preferred against him prior to the investigation. If such is the case and if a General CourtMartial appears warranted, were the charges substantiated, an Article 32, Uniform Code of Military Justice investigation must be conducted or the charges may not be referred to trial by General Court-Martial. (See paragraph 34, MCM 1951.)

8. JAG Manual, sec. 0301a. JAG Manual, sec. 0301b provides that a person's conduct or performance of duty is "subject to inquiry" when the person is involved in the incident or event under investigation in such a way that disciplinary action may follow; or which may affect his rights or privileges; or jeopardize his personal reputation or professional standing. JAG Manual, sec. 0301c states that a person has a "direct interest" in the subject of inquiry (1) when the findings, opinions, or recommendations of the fact-finding body may, in view of his relation to the incident or circumstances under investigation, reflect questionable or unsatisfactory conduct or performance of duty; or (2) when the findings, opinions, or recommendations may relate to a matter over which the person has a duty or right to exercise official control.

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at any subsequent time during the proceedings.13 The investigating officer also may designate parties during the course of the investigation if the circumstances so warrant.14

Difficulty is often encountered by the investigating officer in determining who should be designated a party. What guidelines are available to the investigating officer? It is apparent that in line of duty-conduct determinations, the injured parties and the individual (s) whose acts or omissions may have caused or contributed to the injuries should be designated parties where an adverse finding may result. In investigations involving casualties, such as collisions, the problem increases in complexity. Where is the line drawn between "subject to inquiry" and "direct interest"? Is an accurate distinction possible or necessary? Normally, the commanding officer of a ship involved in an incident which is the subject of inquiry should be designated a party as should those personnel whose conduct or omissions may have had a direct bearing on the incident (e.g., the OOD or CIC officer in a collision situation). However, in situations such as an engineering casualty which may have resulted from the extended inattention to duty by many personnel, the possibility of multiple party designation arises. Assuming it can be determined that the circumstances attending the casualty occurred between a specified time period, should all watchstanders and supervisory personnel for this period as well as those responsible for their training be designated parties? Section 0303 of the Manual of the Judge Advocate General provides that party designations may be withdrawn when it appears that certain parties no longer are involved in a material degree. What is meant by material degree? Should this section be used as a means of circumventing the problem of proper party designation? Can it not be argued that it is better initially to designate all who may technically fall within sections 0301 and 0302 of the Manual of the Judge Advocate General parties and then withdraw the designations of those not involved in a material degree?

Investigations often disclose negligence in areas unrelated to the subject matter under investigation. Although those personnel responsible fall within the technical language of sections 0301 and 0302 of the JAG Manual, practical considerations indicate that unless their omissions are of a serious nature, warranting possible disciplinary action, their designation

13. JAG Manual, sec. 0302b (1). 14. JAG Manual, sec. 0302b (2).

as parties would only serve to divert the investigation from its purpose. Improved training programs can be initiated subsequently as corrective measures in such circumstances.

It is therefore advisable for the investigating officer to avoid designating non-material parties, thereby avoiding needless complications and work. Normally it is readily apparent to the investigating officer who, of necessity, should be named parties, and a thorough investigation subsequently will disclose whether additional parties should be designated.

Careful scrutiny of the instructions in the appointing order and a constant re-examination of the "purpose" of the investigation are invaluable guides in assuring that the investigation is confined to its proper limits.

CIVILIAN PARTIES

Unusual difficulties may develop when a civilian Department of Defense employee is accorded party status. Although civilian parties are entitled to all the benefits and rights of military parties and are technically entitled to the same treatment as naval personnel, it must be emphasized that they nevertheless are civilian personnel and are not subject to military control or authority and thus are not bound by military laws and regulations. A civilian party cannot be compelled to testify as a witness before a Navy investigating body unless subpoenaed by a court of inquiry.15

Where it appears that disciplinary action as to a civilian party may be appropriate, the investigating officer or board should not hesitate to recommend that such action be taken by proper authority. However, before any disciplinary action may be initiated against a civilian employee, he must be given certain rights as set forth in the Naval Civilian Personnel Instructions, section 750. These rights are not related to JAG Manual party rights and must be accorded the party by appropriate authority regardless whether he has been accorded all JAG Manual party rights. Although compliance with the Naval Civilian Personnel Instructions is not the responsibility of the military investigating officer, he nevertheless should familiarize himself with them so as to insure that no prejudicial action is taken during the military investigation which may subsequently provide the basis for the preclusion of any effective disciplinary action.

15. MCM 1951, par. 115; UCMJ, art. 135; JAG Manual, sec. 0417. See JAG Manual, sec. 0130, regarding payment of nonmilitary witnesses.

INVESTIGATING OFFICER'S RESPONSIBILITY TO

PARTY

It is essential that parties be accorded their rights immediately after they are so designated or as soon as their status is apparent to the investigating officer. Nevertheless, it is not always practical or possible to do this. The investigating officer should fully explain the reasons for such delays in the preliminary statement of his report.

It is the duty of the investigating officer or board counsel to insure that the party fully understands his rights. A verbatim reading of the pertinent JAG Manual sections, though technically correct, may prove to be inadequate and can create considerable difficulty if the party subsequently claims he lacked comprehension. If the party is represented by qualified legal military counsel, the responsibility of determining whether the party understands his JAG Manual party rights shifts to party counsel. In those situations where the party may not have the benefits of qualified counsel, the situation is more difficult, especially as a junior investigating officer may not fully understand all the implications associated with party rights.

It happens far too frequently that an overzealous investigating officer, eager to complete the investigation as quickly as possible, visits a hospital patient who is under heavy medication or in a semicomatose state, advises him of his rights, obtains an incriminating statement, and a waiver of rights only to have the party subsequently claim he never received his rights or that he was incapable of understanding them at that time. Similarly, investigating officers fail to realize that many enlisted personnel are too scared to admit noncomprehension. If a party can prove that he did not understand his rights, and thus did not properly exercise them, he will subsequently be afforded the opportunity to do so and portions of the initial investigation may be invalidated.

In those cases where parties are physically incapacitated or are geographically separated, the investigating officer must determine whether he can afford to wait until the parties are assembled and physically capable of participating in the proceedings or whether pending current factors as personnel orders or the necessity of removing pertinent physical evidence (such as damaged property) would demand immediate action. Photographs or affidavits often may simplify matters. However, common sense may well be the best criteria.

Where there is no verbatim record of the proceedings,1o the party must execute in writing an acknowledgment that he had been informed of and permitted to exercise his party rights. He must further indicate any waivers thereof.17

The investigating officer or board counsel should not consider the proceedings as adversary proceedings. He must not view himself as a prosecuting attorney and should not treat the party as an accused in court-martial proceedings. The investigating officer is not the trier of facts but rather an impartial gatherer of facts.

The investigating officer should be aware of the party's interests and when it appears that the party obviously does not understand what is happening and is not properly exercising his rights, it would not be remiss for him to again remind the party of his rights. In line of dutyconduct investigations wherein it is evident that the party has incurred a permanent disability, such action is strongly recommended.

PARTY RIGHTS

Section 0304a of the Manual of the Judge Advocate General affords a party to an investigation the following rights. (Comments will be included where appropriate.)

1. "To be given due notice of such designation". 2. "To be present during the proceedings but not when the investigation is clear for deliberation."

A party has the right to be present whenever hearings are held or testimony is taken. However, this right is not extended so as to require the presence of parties whenever the investigating officer privately confers with, questions or elicits statements from witnesses. The party is entitled to examine these statements and can question the witnesses himself.

3. "To be represented by counsel."

A party may be represented by civilian counsel if provided by him or by military counsel of his selection. A party is entitled to military counsel of his own selection if reasonably available. A party to a JAG Manual investigation does not have the absolute right to lawyer military counsel (qualified in accordance with Article 27b, Uniform Code of Military Justice) unless the investigation is also serving as an Article 32, UCMJ, pre-trial investigation. In a Court of Inquiry or formal board, legal counsel should be made available if practicable; in an informal investigation, legal counsel should be provided if reasonably available.10 What

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16. The record of the proceedings must be verbatim if the investigating body is a Court of Inquiry or formal Board of Investigation. JAG Manual, secs. 0435, 0506.

17. JAG Manual, sec. 0304e.

18. JAG Manual, sec. 0304b. 19. Ibid.

do these terms mean and to what degree do they differ? No concise distinction is available. However, in view of the greater importance and gravity associated with formal proceedings as opposed to informal investigations, the if practicable test should be construed more liberally than the reasonably available test. Thus lawyer counsel should more readily be made available to those people designated as parties by a formal board as opposed to an informal investigation.

As a practical matter, convening authorities when requested have been making legal counsel available to parties designated by courts of inquiry and formal boards of investigation; many problems which otherwise might be encountered have thus been avoided.

If

Most difficulties relating to the question of the availability of legal counsel occur in informal investigations. Frequently, they involve situations requiring a line of duty-conduct determination on a permanently disabled active duty member. the man is denied legal counsel and an adverse determination is made, the man often will retain civilian counsel and possibly seek congressional assistance. Invariably he will request that the matter be reconsidered and may submit information not previously evaluated which will require further investigation. He may claim that as he was not initially assigned qualified legal counsel, he was unable to effectively present his case or his serious physical condition may have prevented him from participating in the investigation. As an adverse line of duty-conduct determination may result in substantial loss of benefits to a permanently disabled service member, it is recommended that requests for qualified legal counsel be honored whenever practicable, especially in those instances where an adverse determination is indicated. Similarly, in those instances when the disabled service member is physically unable to participate in the investigation and an adverse determination is indicated, the convening authority should make every reasonable effort to appoint qualified legal counsel to represent the individual.

37 U.S. Code 802 precludes any active duty Naval person who is absent from his regular duty for a continuous period of more than one day because of a disease that is directly caused by and immediately follows his intemperate use of alcoholic liquor or habit forming drugs from receiving pay for such a period. Frequently, large amounts of money may be involved when hospitalization or disability lasts for several months as frequently occurs with liver ailments and nervous disorders directly attributed to intemperate use of liquor and habit forming drugs. In such situations, an adversely affected service member may well seek financial relief in the federal courts or request reconsideration by the Judge Advocate General, especially if he did not have the services of legal counsel in the initial proceedings. It must be emphasized that the issue of causality which often arises in

determinations under this statute requires a degree of legal expertise which nonlegal counsel normally does not possess.

Similarly, in those situations where a party's performance of duty is under inquiry and an adverse recommendation may for all practical purposes terminate the party's career advancement, legal counsel should readily be made available.

Although a party who has been issued a punitive letter has the right to appeal and seek the aid of counsel, representation by legal counsel in the initial stages would facilitate the entire matter in that it would discourage appeals where they are unwarranted.

Other situations, depending on the individual circumstances, may require that the convening authority make available legal counsel. It is readily apparent that because of the limited number of law specialists, it is often not possible to assign a party legal counsel though the command is eager to do so. An examination of court decisions as well as congressional inquiry into military matters over the past decade strongly warrants the conclusion that whenever possible, convening authorities should make legal counsel available to those parties who stand to lose property or personal rights. In the event that the convening authority is unable to provide legal counsel he should include an explanation in his endorsement to the investigative report.

4. "To cross-examine witnesses."

In board proceedings whenever witnesses are called to testify, each party is entitled to crossexamine each witness. The normal strict rules of evidence used in courts-martial do not apply to investigative proceedings, but rather the scope of cross-examination should be of considerable latitude. Nevertheless, despite the liberal rules of evidence, non-material and degrading matter not pertinent to the investigation as well as crossrecrimination should not be permitted. If witnesses are not called to testify at a hearing but rather are interviewed privately, parties do not have the absolute right to be present for cross-examination. However, the party must be afforded the opportunity to question such witnesses and submit statements elicited from them as evidence.

5. "To testify as a witness."

If the party is charged with an offense relating to the matter under investigation, he cannot be compelled to testify at a court of inquiry unless at his own request; subject to this exception the party may be called as a witness and he must take the stand and testify," however, he cannot be compelled to incriminate himself, to answer questions which tend to incriminate him or to make a statement or produce evidence, the contents of which is nonmaterial to any issue under investigation and may tend to degrade him." If such party is suspected of an offense he must be warned of his rights under

20. JAG Manual, sec. 0305a. 21. JAG Manual, sec. 0305b.

Article 31, Uniform Code of Military Justice. A military investigation other than a court of inquiry cannot compel a non-military party to testify." 6. "To refuse to incriminate himself, and to refuse to make any statement regarding any offense of which he is suspected."

7. "To make voluntary statement himself, oral or written, to be included in the record of proceedings or investigative report."

8. "To make an argument at the conclusion of presentation of evidence."

Such argument may be written or oral, sworn or unsworn, and need not follow any particular format.

In courts of inquiry, a party has two additional rights:

1. "To challenge members of the court of inquiry for cause stated to the court." 23

2. "If charged with an offense, to be a witness at his own request and not to be called as a witness in the absence of his own request." "

In addition, if the investigation is inquiring into the circumstances surrounding the disease or injury of a member of the armed forces, the service member must be advised that he cannot be required to sign a statement relating to the origin, incurrence or aggravation of any disease or injury he may have. Any such statement against his own interest which an individual is required to sign without first receiving this warning is invalid.25

Similarly, any adverse evidence obtained solely as a result of such a statement will also be considered invalid.

If the investigation is to be used as a pretrial investigation under Article 32, Uniform Code of Military Justice, the party is entitled to a copy of the record,26 otherwise there is no mandatory requirement that a party be given a copy of the record although the party must be permitted to examine the investigative report upon its completion.

Section 0304e of the JAG Manual requires that in those proceedings wherein a verbatim transcript is not provided, the substance of the advice given to a person designated as a party should be reduced to writing and that the party shall acknowledge therein that he has been informed of his rights and indicate any waivers thereof.

Far too frequently, parties are requested to sign acknowledgements of their rights with waivers thereof at the outset of the investiga

22. JAG Manual, secs. 0417, 0509.

23. JAG Manual, sec. 0414; see MCM, 1951, par. 62f. 24. JAG Manual, sec. 0305. 25. JAG Manual, sec. 0306. 26. JAG Manual, sec. 0304f.

tion. Occasionally, an investigation may uncover information which will tend to implicate a party to a far greater degree than he initially anticipated; or testimony may be offered wherein a witness tends to wrongfully place the entire blame for the incident on a particular party. Under such circumstances, a party may not know what rights he will desire to exercise or waive until he studies all the adverse evidence accumulated by the investigating officer.

As soon after his designation as practicable, the party should be informed of his rights and should execute a detailed acknowledgement that he was so advised. The party should not be requested to indicate those rights he intends to exercise and those he intends to waive until he has had the opportunity to examine all the adverse evidence accumulated by the investigation. For only then can he make a proper election regarding party rights, at which time he should execute a dated acknowledgment disclosing those rights waived, those rights accorded and those rights not waived and not accorded. In the event the party indicates that he was not permitted to exercise certain rights, and prejudice is shown thereby, the issue will normally be resolved in the party's favor. However, it is recognized that a party though offered the opportunity to exercise certain rights may unreasonably procrastinate with the result that compliance becomes impossible. Once a party has been advised of his rights, it is incumbent on him to take positive action regarding the exercise of those rights, and the investigating officer should make this clear to the party. If it is evident that the responsibility for the failure to exercise certain party rights rests primarily with the party, then the party's actions will be considered tantamount to a waiver of those rights. Any information of this nature should be noted in the preliminary statement of the investigative report.

If additional investigation is ordered by reviewing authority and further adverse information is adduced, the party is again entitled to the full exercise of his rights and an appropriate signed acknowledgement should be appended to the additional investigation.

FAILURE TO ACCORD PARTY RIGHTS

The provisions relating to party rights have been enacted to be used rather than abused. Far too frequently, investigative reports containing adverse party determinations will be submitted and the party either has not been accorded his rights or the report fails to contain

the necessary acknowledgement as required by section 0304e of the Manual of the Judge Advocate General.

If the investigative report lacks only the formal acknowledgement, the convening authority will be requested to obtain one. Difficulties and unnecessary delay may result, inasmuch as the party may have been transferred, may refuse to submit the acknowledgement, or may have been discharged from the service. No legal adverse opinion relating to line of duty-misconduct will be rendered by the Judge Advocate General absent such written acknowledgement unless the report contains indisputable evidence (e.g., affidavits) that the party was accorded his rights and permitted to exercise those not waived.

Failure to accord party rights to a person whose conduct becomes subject to inquiry may preclude use of the record as evidence and may require return of the record to the convening authority to permit the member to make a statement in rebuttal concerning any recommended adverse action other than disciplinary action, and if he makes substantiated contentions which are not repudiated in the record, further investigation may be required.27

Section 0304d of the JAG Manual by its innocuous language offers little criteria whereby the effects of a failure to provide party rights can be accurately measured. It contains no provisions for persons who have a "direct interest" in the investigation. It does suggest that it is not always fatal to deny a party his rights and that under certain unspecified situations adverse determinations may be made although a party has never been afforded the opportunity to submit evidence in his behalf. It thus fails to provide any guidelines to the question "when?" which is raised by its permissive language. Nevertheless, the actual policy followed is one which strives to insure that a party is given the opportunity to fully exercise his rights.

In each situation where an adverse determination may result and a party has not been accorded his rights, either in part or in toto, the Judge Advocate General as a matter of course will return the report requesting that the party be accorded those rights which he does not choose to waive. Admittedly, at the stage when subject report is received by the Judge Advocate General, it has passed through the chain of command and a considerable time period has elapsed. As a result, witnesses or physical evidence may be unavailable. It is thus evident (Continued on page 82)

27. JAG Manual, sec. 0304d.

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