SHARP Investigation Process

SHARP Investigation Process

January 31, 2022

This article is meant to address the SHARP investigation process in the Army.

As most Soldiers know, "SHARP" stands for the Sexual Harassment and Assault Response and Prevention.  This means that if a Soldier is under investigation for a SHARP complaint, it could be either a sexual harassment allegation or a sexual assault allegation.  The SHARP investigation process for each type of complaint will be discussed, in turn, below.

SHARP Investigation Process: Sexual Assault Allegation

The term "sexual assault" encompasses any sexual activity (i.e. penetrative sex, oral sex, touching) without the other party's consent. CID investigates all sexual assault allegations.  If a Soldier is told that they are under a CID investigation because of a SHARP complaint, he/she should immediately recognize that they have been accused of a serious crime that could result in them being a sex offender.   CID will interview any and all witnesses, including the accuser and the Soldier accused.  CID agents are required to read a Soldier his/her rights before questioning any one suspected of a crime.

Common CID tactics include encouraging a Soldier to talk with the agent because "you are only suspected; you haven't been accused."  This is not a meaningful distinction, and Soldiers should not fall for this tactic. Anything a Soldier says to a CID agent can be used against them at a future Court-Martial, and only being "suspected" does not make a difference.  Another common tactic is the agent telling the Soldier to cooperate and admit the allegation because "I can tell you aren't a bad guy" and "the Command will go easier on you."  The opposite is actually true; those who confess will almost always end up convicted at a Court-Martial, spend time in jail, and be a sex offender for the rest of their lives.

After CID interviews witnesses and collects any hard evidence (i.e. DNA samples, text messages, photos, videos), the lead agent will present the case to the accused Soldier's Brigade JAG.  Said JAG will make a legal determination (called an OPINE) on whether or not there is probable cause that the accused committed an offense.  The JAG then will present the case to the Soldier's chain of command, with a recommendation on what action to take.  This could range all the way from "no action" to the preferral of Court-Martial charges.  Once the Command has taken this action, the SHARP Investigation Process concludes.  Click these links to learn more about the CID Investigation Process or the Court Martial Process.

SHARP Investigation Process: Sexual Harassment Allegation

The term "sexual harassment" is defined by AR 600-20, Chapter 7, as: "Conduct that involves unwelcome sexual advances, requests for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature when -- (a) Submission to such conduct is made either explicitly or implicitly a term or condition of a person's job, pay or career; or (b) Submission to or rejection of such conduct by a person is used as a basis for career or employment decision affecting that person; or (c) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment; and (d) Is so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the environment as hostile or offensive." Sexual Harassment also includes "Any use or condonation, by any person in a supervisory or command position, of any form of sexual behavior to control, influence, or affect the career, pay, or job of a member of the Armed Forces or Civilian employee of the DoD" and "Any deliberate or repeated unwelcome verbal comment or gestures of a sexual nature by any member of the Armed Forces or Civilian employee of the DoD."

Sexual harassment can be verbal, nonverbal (i.e. staring, blowing kisses, winking), or physical.  "Physical" sexual harassment may also be considered sexual assault, discussed above.

Regarding sexual harassment allegations, the SHARP investigation process begins when a complaint is filed (either formally a DA Form 7746 or informally) or the Command becomes aware of an allegation.

An informal complaint is simply a complaint that is not filed on a DA Form 7746.  Although AR 600-20, Chapter 7, encourages these types of complaints to be handled at the "lowest level" through discussion, problem identification, and clarification of issues, they can still result in a 15-6 investigation.  The Command always has the discretion to investigate an informal sexual harassment complaint, even if the complainant doesn't desire this.  15-6 investigations are typically appointed by a Commander and conducted by a Commissioned Officer, called an investigating officer (IO).  The IO will interview witnesses, including the subject, and collect any hard evidence (i.e. text messages, recordings, videos).  After doing so, the IO makings formal findings and recommendations, and presents them to the Command.  The Command can then either unflag the Subject, or, take adverse action.  For substantiated sexual harassment allegations, this typically includes a GOMOR, Article 15, adverse OER/NCOER, and/or the initiation of separation (Officers or Enlisted).

A formal complaint is one that IS filed on a DA Form 7746AR 600-20, Chapter 7, "encourages" Soldiers to file formal complaints within 60 days of the behavior in question; however, this is not a requirement. Despite what Soldiers commonly think, if a complaint is filed outside of the 60 day window, adverse action can still result for the Subject.  There are requirements in AR 600-20, Chapter 7, regarding how quickly a formal sexual harassment investigation should be conducted; however, these timelines are frequently ignored and do not invalidate the results of any investigation.  Formal sexual harassment complaints are investigated using an AR 15-6 investigation, just like with an informal complaint.  However, once the IO has finalized his/her findings and recommendation, the complete investigation will be forward to the General Court Martial Convening Authority (typically the Commanding General).  The Command then decides what actions to take against the Subject of the investigation, if any.  For substantiated formal complaints, this typically includes a GOMOR, Article 15, adverse OER/NCOER, and/or the initiation of separation (Officers or Enlisted).  If either the subject or the complainant disagree with the findings of the investigation or the actions taken to resolve the complaint (different from the adverse action taken against the subject), they can submit an appeal to the GCMCA.  Said appeal must be filed within 7-days of notification of the results of the investigation and acknowledgement of the actions of the Command to resolve the complaint.

UPDATE: On 20 September 2022, the Secretary of the Army implemented Army Directive 2022-13, available at this link. This Directive now makes initiation of separation mandatory for a substantiated sexual harassment complaint.  Brigade Commanders can determine that a sexual harassment violation is "minor" and therefore not initiate separation. It is important to note that even if separation is initiated, it does not mean the Soldier in question will be separated. Enlisted Soldiers should read more about the separation process at this link and Officers should read more about the separation process at this link. This Army Directive makes quality legal representation even more important during the SHARP Investigation Process.

Conclusion

As detailed above, the SHARP Investigation Process can be long and confusing. It can also result in potentially career altering adverse action taken against the subject of any SHARP complaint.  Any Soldier that is the subject of a SHARP complaint should consult with a military lawyer.  At any point during the SHARP investigation process, a military lawyer can assist.  Trial Defense Service JAGs and Legal Assistance Attorneys are often too busy, or simply unwilling, to assist a Soldier accused of a SHARP violation early in the process. However, legal intervention early on ensures that anyone accused of a SHARP complaints makes the right decisions and maneuvers themselves to either avoid or mitigate adverse action.  Soldiers can hire a Civilian Lawyer to assist them.

This article was written by Attorney Matthew Barry.

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