The regulations governing AR 15-6 investigations establish specific requirements for who may serve as an investigating officer, including rank requirements relative to the subject of the investigation and rules designed to prevent conflicts of interest. An investigating officer who does not meet the applicable requirements, or who has a relationship with the subject or the complainant that should have disqualified them, creates a procedural defect that can be raised as a challenge to the findings.
Defects in the appointment of an AR 15-6 investigating officer do not automatically void the investigation or its findings, but they do provide grounds for argument. The weight given to a defective investigation, and the extent to which its findings can be used in subsequent administrative or disciplinary proceedings, may be affected by the nature of the defect and the degree to which it calls the integrity of the process into question. Identifying these issues early is essential for preserving the ability to raise them effectively.
The Appointment Authority for AR 15-6 Investigations
The authority to appoint an AR 15-6 investigating officer rests with the commander who convenes the investigation, who must be at least the level of command required by the regulation governing the subject matter of the inquiry. For most routine investigations, a battalion or brigade commander has the authority to appoint. For investigations involving general officers or senior officials, or for investigations with potential criminal implications, the required level of appointing authority is higher.
The investigating officer appointed must hold a rank senior to all subjects of the investigation unless the appointing authority has waived that requirement for documented logistical reasons. This rank requirement exists to protect the integrity of the investigative process by ensuring that the officer conducting the inquiry has the authority and institutional standing to interview subjects and witnesses without undue deference to rank. Violations of these appointment requirements do not automatically void an investigation, but they create procedural defects that a subject can raise in rebuttal and preserve for any subsequent legal proceeding that relies on the investigation’s findings.
Rank Requirements and Why They Exist
The requirement that the investigating officer hold a rank senior to the subject exists to protect the integrity of the investigation and to ensure that the investigating officer can conduct a thorough inquiry without being inhibited by deference to the subject’s rank. An investigating officer who is junior to the subject may feel institutional pressure to be less rigorous in their inquiry, and the resulting findings may be less reliable as a result.
The rank requirement is not waivable for convenience without documentation, and a waiver must be approved by the appropriate authority. An investigating officer appointed in violation of the rank requirement, or one who held the same grade as the subject rather than being senior, has been appointed in violation of the regulation. That violation does not automatically void the investigation, but it does create a procedural defect that defense counsel can use to challenge the reliability of the process and the weight that should be given to the findings.
How Conflicts of Interest in Investigator Selection Are Challenged
A conflict of interest in the selection of the investigating officer exists when the officer has a pre-existing relationship with the subject, the complainant, or the events under investigation that could affect their impartiality. Personal relationships, professional conflicts, and prior involvement in the events being investigated are all potential sources of conflict that should result in the appointment of a different officer.
The challenge to a conflicted investigating officer must be raised through the appropriate channel, which is typically a request to the appointing authority that the officer be replaced and that the investigation be restarted with a properly selected investigator. The challenge must identify the specific nature of the conflict and explain why it created a substantial risk of bias in the investigation. A challenge that is filed promptly, before the investigation has concluded, is more likely to produce a substantive remedy than one raised after the report is complete.
The Effect of an Improperly Appointed Investigator on the Findings
When an investigating officer was appointed in violation of the applicable regulatory requirements, the findings of the investigation are not automatically void, but their reliability is subject to challenge. Administrative bodies and reviewing courts have the authority to give reduced weight to findings from a defectively conducted investigation, and in some cases a complete restart of the investigation by a properly appointed officer has been ordered.
The practical effect of challenging an improperly appointed investigating officer depends on the nature of the defect and the significance of the findings. A minor technical defect that did not affect the conduct of the investigation is unlikely to produce meaningful relief. A substantial defect, such as an investigating officer who had a significant prior relationship with the complainant or who was junior to the subject and had no waiver, is more likely to warrant the reviewing authority’s intervention.
Raising Procedural Defects in the AR 15-6 as a Defense
Procedural defects in an AR 15-6 investigation can be raised in a rebuttal to the findings, in a challenge to adverse actions based on the findings, and in any subsequent legal proceeding in which the investigation’s results are offered against the soldier. A rebuttal that specifically identifies regulatory violations in how the investigation was conducted and explains why those violations affected the reliability of the findings gives the appointing authority a basis for discounting the report that is independent of the substantive merits of the underlying findings.
In a court-martial or administrative separation proceeding, the procedural defects of an AR 15-6 investigation can be used to challenge the admissibility or weight of the investigation’s findings if they are offered as evidence. Defense counsel who have identified specific violations of the regulatory framework have a foundation for motions in limine or objections at the proceeding that can limit the use of the investigation in ways that benefit the soldier.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.