NCIS Investigation ProcessJanuary 3, 2022
NCIS Investigation Process.
NCIS, or Naval Criminal Investigative Service, is, essentially, the organization in the Navy that investigates felony-level offenses. Typically, they will investigate allegations against members of the Navy and Marines; however, sometimes they will investigate felony-level allegations made against Army and Air Force Servicemembers, depending on the location of the crime itself.
The NCIS Investigation Process begins when an allegation is made. An allegation can be made in a variety of ways. Most commonly, an individual will walk into an NCIS office and report a crime or will call the Command and report a crime, who, in-turn, informs NCIS. Furthermore, NCIS will sometimes find out about an allegation from a Civilian Law Enforcement counterpart (i.e. local police, FBI).
In contrast to Civilian law enforcement agencies, NCIS does not care if someone is "pressing charges." NCIS will investigate allegations and present the information to the Command and their respective JAGs. It is those individuals who will make a decision on whether to pursue action against a Sailor or Marine. Again, NCIS does not care if anyone, including the victim, is "pressing charges." This may be factored in when the Command/JAGs are deciding whether or not to pursue adverse action.
Once NCIS receives "credible information" that a Servicemember has committed a violation of the UCMJ, they will "title" the individual involved. What this means, essentially, is that the subject of the investigation will be placed in the NCIC database. Even though NCIS does not arrest Sailors/Marines, Civilians typically consider a "titling" action in the NCIC database as an arrest. It is almost impossible for a Servicemember to get this expunged later on, even if the allegation is ultimately unfounded or no adverse action is pursued. More information can be found in Department of Defense Instruction 5505.07. In practice, NCIS will essentially "title" anyone who has an allegation made against them. This is, typically, the most frustrating part of the NCIS investigation process.
After an allegation is made, the NCIS investigation process continues with the lead agent following all leads. This typically includes interviewing eye witnesses, disclosure witnesses, and those close with the subject and/or victim. Furthermore, NCIS agents will often collect hard evidence, such as text/social media messages, cell phones, photos, clothes, DNA, fingerprints, etc. This evidence can be seized and/or searched either with consent of the owner or a search warrant, signed by either a Commander or Military Magistrate/Judge.
NCIS will interrogate the subject of the investigation. This typically occurs almost immediately upon a report and/or after all evidence has been collected (essentially, in the beginning and/or end of the investigation). Despite common opinion to the contrary, Servicemembers undergoing an NCIS interrogation do have rights, explained more at this link.
At some point, the agent will determine that the NCIS Investigation Process is complete. The agent will provide his/her corresponding JAG with the complete investigation file and will brief him/her. The JAG will sometimes agree that the investigation is complete and other times will ask the agent to pursue additional investigative leads. Once the JAG and agent are in agreement that the investigation is complete, the JAG will render a probable cause opinion, or probable cause OPINE.
If the JAG finds that there is no probable cause that the Servicemember committed an offense, then the investigation will be closed and no adverse action will be taken. If the JAG finds that there is probable cause, he/she will provide a written opinion (typically). Additionally, the subject's DNA will be taken and added to CODIS. The investigation will then be presented to the recently created Office of the Special Trial Counsel (for offenses of sexual assault, rape, domestic violence, child abuse, manslaughter, kidnapping, murder) or the Command (for other cases). The Office of the Special Trial Counsel will decide only whether a court martial will be pursued or not. For cases sent to the Command, they consider their options, which could include no action, nonjudicial punishment, administrative separation, a court-martial, or other adverse actions.
Typically, once the Office of the Special Trial Counsel/Command takes action, the NCIS investigation process is over. However, there are times when the prosecutor will ask NCIS to complete additional investigative tasks. These could include identifying, locating, and interviewing new witnesses or re-interviewing known witnesses.
The NCIS investigation process has no set timeline. The investigation could be completed within a few days (unlikely), or even take years (not common). Typically, an investigation will take 6-8 months, but this does vary greatly, for a variety of reasons.
Anyone who is the subject of an NCIS investigation should proceed with caution. Before doing anything, including talking with NCIS, the subject of an NCIS investigation should consult with a military lawyer.
This article was written by Attorney Matthew Barry.