Rules during a 15-6 Investigation

This Article is meant to address the rules during a 15-6 investigation that apply. For a more detailed discussion about the 15-6 investigation process, click this link. Furthermore, the following related links may be of interest: 15-6 investigation rebuttal, 15-6 investigation appeal, AAIP, and Commander's Inquiries.

AR 15-6 investigations are governed by Army Regulation 15-6, available at this link. Contrary to popular opinion, there are actually several rules that apply during the investigation process.

To begin, the following rules during a 15-6 investigation must be adhered to regarding the investigating officer (IO):

• the IO will conduct a fair and impartial investigation;
• the IO is required to notify the appointing authority if any perceived or actual conflicts of interest arise during the investigation;
• the IO will complete the investigation on the timeline set by the appointing authority (typically 30 days) or he/she will request an extension;
• the IO will received a legal in-brief from his/her legal advisor before commencing any investigation;
• the IO cannot subpoena witnesses and evidence;
• The IO will write a report with his/her findings and recommendations, applying a "more likely than not" standard of proof; and,
• the IO must interview an Officer before contemplating an adverse finding against him/her

Generally speaking, the Military Rules of Evidence do not apply during 15-6 investigations. That said, the following rules during a 15-6 investigation do apply:

• Only relevant information will be collected and considered.  Relevance is defined as "evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence....although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay , waste of time, or needless presentation of cumulative evidence.
• Witnesses will not be asked whether they believe a particular individual, because it is not relevant."
• Privileged communications with lawyers (MRE 502), clergy (MRE 503), spouses (MRE 504), psychotherapists (MRE 513) and victim advocates (MRE 514) cannot be considered
• With some exceptions, evidence of an alleged victim's sexual behavior or sexual predisposition is not relevant. Basically, MRE 412 applies during 15-6 investigations.
• No evidence of the results of, or the taking or refusal to take, a polygraph test will be considered without the consent of the person whom the test was administered
• "Off the record" statements will not be considered
• No evidence obtained in violation of someone's 4th Amendment right against unreasonable searches and seizures will be considered unless the legal advisor determines "that the evidence would be inevitably have been discovered."
• Illegal recordings, depending on State Law, should not be used
• Electronic Recordings in violation of the Electronic Communications Privacy Act (18 USC 2510) or fraud/related activity in connection with computers (18 USC 1030) should not be used

Additionally, the following rules during an investigation apply:

• No military witness will be required to answer any question, the answer to which could incriminate him/her. In accordance with AR 15-6, "[a]n answer tends to incriminate a person if it would make it appear that the person is guilty of a crime or conduct punishment under the UCMJ."
• Additionally, "[n]o witnesses or respondents not subject to the UCMJ will be required to make a statement or produce evidence that would deprive them of their rights against self-incrimination under the Fifth Amendment of the U.S. Constitution."

That said, if a witness provides an incriminating statement in violation of Article 31 of the UCMJ, it can still be used against him or her. Only statements that are obtained through unlawful coercion or inducement will not be accepted.

To ensure compliance with the rules during a 15-6 investigation, a legal review will be conducted after the IO concludes the investigation.  The legal review will determine the following:

• Whether the proceedings complied with legal requirements of the regulation and appointing memorandum;
• Whether there are errors and, if so, whether the errors are substantial or harmless; the effect, if any, that the errors had on the proceedings; and, what action, if any, is recommended to remediate the errors;
• Whether the findings of the investigation are supported by a greater weight of the evidence than supports a contrary conclusion; and,
• Whether the recommendations are consistent with the findings

Despite popular opinion, there are important rules during a 15-6 investigation.  Any Soldier facing a 15-6 investigation should be concerned and recognize that his/her career is in jeopardy. While Trial Defense Services (TDS) is available to assist, they are often over-worked and inexperienced.  Soldiers can hire a Civilian Counsel, allowing him/her to be represented by an experienced and effective Military Lawyer. 

This Article was written by Attorney Matthew Barry. Attorney Barry is highly rated by former clients and has a proven track record of success. He has dealt extensively with all types of Army investigations, and has achieved countless positive results for his clients.

The Law Office of Matthew Barry represents Servicemembers worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.

Contact us today for a free consultation to start building your Defense