DA Form 3881

February 22, 2025

A DA Form 3881, available at this link, is a form that is supposed to be used by anyone subject to the UCMJ prior to questioning a Soldier suspected of misconduct. The form should contain the following information before handing it to a Soldier to review:

Location of the interview/interrogation;
Date and Time;
Soldier's Name, Grade, Status, and Organization;
The Investigator's Organization or Authority to Question the Soldier; and,
The Offenses under the UCMJ that the Soldier is suspected of committing

A DA Form 3881 lists the Soldier's rights under Article 31 of the UCMJ. The questioner may read the Soldier's rights or ask the Soldier to read the form and initial next to each right. To summarize, a DA Form 3881 essentially informs a Soldier that he/she does not have to answer any questions, can talk to a lawyer before answering any questions, can have a lawyer present during questioning, and can stop the interview whenever he/she wants to.

After the Soldier reviews his/her rights, or is informed of them, he/she will be asked to mark on the DA Form 3881 whether he/she wants to waive their rights, or wants to talk to a lawyer, or wants to remain silent. If the Soldier in question waives his rights, by signing in Section B of the form, then he/she is subject to any and all questions that can be used against him/her. If the Soldier in question selects the "I want a lawyer box" in section C of the DA Form 3881, then he/she can be questioned again after being given the opportunity to speak to a lawyer. If the Soldier in question selects the "I do not want to be questioned or say anything" on the form, then the Soldier in question can no longer be questioned unless he/she initiates the conversation.

A DA Form 3881 should be used by any member of the Armed Forces before asking a question that could be incriminating. Most often, it is used by 15-6 investigating officers or members of the chain of command. CID uses their own special form, although it conveys the same information but is typically crafted to make it more likely that a Soldier will waive his/her rights.

A DA Form 3881 is not required to be used, as it is just a tool. As long as the Soldier in question is adequately advised of his/her rights, and properly waives them, no violation of the UCMJ occurred. That said, best practice is to use the form.

If a DA Form 3881 is not used when it should have been, and a Soldier was not otherwise informed of and waived his/her rights, then the Soldiers statement cannot be used against him/her at a Court-Martial. However, in these situations, a Soldier's statement can still be used against him for a variety of actions, such as a letter of concern, GOMOR, Article 15, at a Separation Board (Enlisted), or at a Board of Inquiry (Officer).

The most important take away is that if anyone is provided with a DA Form 3881, it should be an immediate warning sign of a dangerous situation that could ruin a career. The smartest thing to do is to check the "I want a lawyer" box in Section C of the form, and then to consult an experienced military defense lawyer. While Trial Defense Services (TDS) is available to assist, they are often overworked, inexperienced, and unwilling or able to provide the time and attention needed to a Soldier facing allegations of misconduct. Any Soldier in this situation can retain a Civilian Defense Counsel, allowing him/her to choose a lawyer with a proven track record of success and high-quality former client reviews.

This Article was written by Attorney Matthew Barry. Attorney Barry is highly rated by former clients and has a proven track record of success.

The Law Office of Matthew Barry represents Soldiers worldwide. He has offices on the East Coast, West Coast, and in the Central U.S. Attorney Barry and his team will travel to any base, worldwide, to represent Soldiers accused of misconduct.