Commander Directed Investigation

September 17, 2024

This Article is meant to address a Commander Directed Investigation (CDI/CDIs), sometimes referred to as Command Directed Investigation.

Until recently, there was no Air Force Instruction, or other regulation, that prescribed a formal Commander Directed Investigation (CDI) process. However, SAF/IGQ and AF/JAA published a Commander Directed Investigation (CDI) Guide, available at this link. The CDI Guide should have been followed; however, there was no requirement to do so. The guide stated that "[t]he guide provides procedures for commanders and their investigative teams can use to conduct prompt, fair and objective investigations. The procedures contained in this publication are a set of recommended guidelines and are not mandatory." In 2021, however, the Air Force published DAFMAN 1-101, and is now required to be followed.

The purpose of a Commander Directed Investigation (CDI) is to "gather, analyze and record relevant information about matters of primary interest to those in command." CDIs are the Command's primary investigative tool. Essentially, a Commander Directed Investigation (CDI) is the Command's tool to figure out what happened in a certain situation. The most common use of a CDI is to investigate an allegation of misconduct that is presented to the Command. A CDI can be used to investigate any allegation as long as it is not in the investigative purview of OSI, Security Forces, or the IG (i.e. sexual assault, domestic violence, reprisal, and more). A Commander, typically at the Squadron Level or higher, has the authority to appoint a CDI and the standard of proof for all allegations is a preponderance of the evidence, or more likely than not (51%).

A Commander Directed Investigation (CDI) should have a timeline that it should be conducted in; however, extensions can, and often are, granted.

The investigating officer (IO) for a CDI should be equal to or senior in rank to the subject of the investigation. Generally, the IO should be a Captain, Civilian Equivalent, or Senior NCO. The IO is typically chosen from the appointing authority's unit, but can be chosen from another unit with Command concurrence.

Prior to conducting any Commander Directed Investigation (CDI) in the Air Force, the IO should review the CDI Guide and DAFMAN 1-101, meet with his/her legal advisor, and come up with a detailed investigation plan (i.e. who to interview, what questions to ask, what evidence should be collected).

After the IO has completed these steps, he/she is ready to begin the Commander Directed Investigation (CDI). The IO will typically base his/her findings on witness statements. A best practice is to meet with every witness/subject, ask questions, and then ask the individual in question to write a sworn statement that answers all of the questions that were asked; however, some IO's will conduct interviews and draft a memorandum/statement that summarizes what was discussed. IO's can also collect hard evidence, such as emails, text messages, photos, social media messages, videos, etc. Typically, an IO will ask a witness to provide this type of evidence; however, should the witness decline to provide it, the IO would have to obtain a seizure authorization from the appointing authority to forcibly seize anything.

Anyone suspected of misconduct should have his/her Article 31 rights read to him/her prior being asked incriminating questions. Anyone who has been read their Article 31 rights should recognize that they are officially suspected of misconduct and should say "I need to talk to a lawyer" and contact an experienced military lawyer.

After the IO is done with all investigative activity, he/she should write a detailed report with a detailed statement of facts, conclusions based on the preponderance of the evidence, and analysis that applies the facts to the law/regulations and explains why the IO reached the conclusions that he/she did. If there is some evidence, including witness statements, that contradict the IO's proposed conclusions, then the IO should explain why he credits some evidence over other evidence. The IO should only make recommendations if specifically asked by the appointing authority. The IO should obtain a legal review from his/her legal advisor and then forward his report and all supporting evidence to the Commander that directed the Commander Directed Investigation (CDI).

If there are proposed adverse findings, then the Commander Directed Investigation (CDI) will provide the subject with a tentative conclusion letter (TCL) that will briefly outline the allegations, the reasoning for the conclusions, and a redacted copy of the IO's report. The subject will be given no more than two weeks to submit a response, which should include additional evidence. CDI Rebuttals are explained in depth at this link. Before writing a response to a CDI, an experienced Military Lawyer should be consulted. After considering the subjects response, the appointing authority either approves, disapproves, or modifies the proposed findings from the IO.

If a CDI results in substantiated findings of wrongdoing of an Air Force Officer, the SAF/IGQ must be informed through the local IG. Additionally, Commanders must provide all completed CDI Reports to the local IG for retention, regardless of rank or finding. Furthermore, for Officers, a CDI with a substantiated finding, but the Command takes no action, is still documented in a memorandum called an Adverse Information Summary (AIS). The AIS includes the following: "grade and position at the time of the allegation, summary of what the officer did, investigating agency, findings, date findings approved, command actions taken (e.g. verbal counseling or no command action), and reason for command action (or no command action)." Prior to submitting the AIS, which is filed in the Officer's MPerRGp and OSR, the Officer will be afforded the opportunity to submit another rebuttal/response, which will be filed along with the AIS.

At this point, the Commander Directed Investigation (CDI) is complete. The subject is not immediately entitled to a copy, but can request one under the Freedom of Information Act. Additionally, if any adverse action is taken, such as a letter of reprimand, article 15, establishment of a UIF, or separation action (Officer or Enlisted), then the Commander Directed Investigation (CDI) will be disclosed in the course of due process for each of those actions. There is no appeal process for a CDI in the Air Force, but the subject of one can still request reconsideration, entirely dependent on the discretion of the appointing authority. CDI Appeals are discussed in depth at this link.

Anyone that is the subject of a Commander Directed Investigation (CDI) should understand that his/her career is in jeopardy. CDIs are not well-regulated, and are typically conducted by inexperienced IOs. Prior to talking to an IO, or at any point during the CDI process, anyone suspected of misconduct should consult with an experienced Military Lawyer. While Area Defense Counsel are available, they are typically over-worked and inexperienced. Subjects of CDIs can hire a Civilian Counsel, which allows the Servicemember to hire an experienced Military Lawyer with a proven track record of success and a high-number of former client reviews.

This Article was written by Attorney Matthew Barry, an experienced Military Lawyer.

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