Is Being Under Investigation in the Military Serious?
Yes. When you are under investigation in the military you are under a microscope, even if you may not know it. Whether it is an investigation by military criminal investigators or the command, you will be looked at for ANY type of misconduct regardless of what you were originally suspected of. Many investigators automatically view allegations as true, and all of their efforts will be focused on finding evidence of your guilt. They are absolutely not in the business of finding service members innocent. This is a very dangerous time for a service member, and many make mistakes that end up having catastrophic consequences, to include self-incrimination even when they are innocent. Make no mistake about it, this is the best time to contact us to help you.
What is Flag/Legal Hold?
When your command informs you that you are under investigation in the military, you will most likely be flagged (Army), put on legal hold (Navy/USMC), or administrative hold (Air Force). This means that you cannot receive any awards, get promoted, PCS, get discharged at the end of your service obligation, or even retire. You may be relieved from your normal duties and given menial tasks instead. Your commander may impose conditions on your liberty, to include restricting you to certain areas of the post or base, requiring you to stay in uniform, and/or check in periodically with the Duty Officer or NCO. You will literally be stuck in place until the subject matter of the investigation has been completely handled and disposed of, even if you are stationed in a foreign country.
WHAT SHOULD I DO WHEN I AM INTERROGATED?
If it is a law enforcement investigation, at some point you will be escorted to CID (Army/USMC), NCIS (Navy/USMC), OSI (Air Force), or CGIS (Coast Guard) to be interrogated without advanced warning. This is when most discover that they are under investigation in the military. If you are involved in a situation where the Military Police or Security Forces are involved, they will likely take you to the station to be interrogated right away. If it is a command investigation, you can expect the Investigating Officer to approach you for a statement.
It is ALWAYS advisable not to make a statement until you have talked to an attorney. Before a law enforcement interrogation begins, the agent will try to build rapport with you and make you feel like s/he is your friend. They might tell you that if you cooperate fully, they will put in a good word with your commander, so that the commander will go easy on you. These are all lies. Law enforcement agents are not your friends and they are not interested in your commander going easy on you. They are allowed to lie to you. Everything they do is designed to get you to talk so that they can use your words against you.
When agents feel that they have buttered you up enough, they will present you with a rights advisement form. The form includes the words, “Anything you say can and will be used against you at court martial.” This is not a simple advisement, it is a guarantee. Even if you deny the allegations and proclaim your innocence, they will not believe you. They will twist your words and make you feel like you have done something wrong. They will confront you until you say something they can use against you, even if you are 100% innocent. They are trained to do this. There is an actual method that they follow. This is why it is very important that when the rights advisement form is presented to you, that you elect your right to silence and your right to an attorney. If you do so, the law does not allow them to continue and you will be returned to your unit. Command investigators are not as aggressive, but the same principle applies. In very rare cases, it might be helpful to make a statement. However, this should be discussed with and considered very carefully by your attorney first. Under no circumstances should you ever give a statement without an experienced attorney present with you.
As the investigation continues, you will not be updated or told what is going on. It is common for service members to feel excluded or even banished, even though they were previously held in high regard within the unit. The investigation may last months or even years, and you will be held in place until the investigation is complete and the matter has reached final disposition (no action, completed administrative action, completed NJP punishment, acquittal, or completed court martial sentence).
Probable Cause Opine
During the military investigation, a Judge Advocate (JA) will advise the investigators. At some point, the JA will provide an “opine” about whether the evidence supports probable cause (PC) that you committed an offense. This is a low standard which basically means “more likely than not.” If the JA gives an opine that there is no PC, the investigation may continue until the agents gather enough evidence to support a PC opine, or the investigation may be closed as unfounded. If a no PC opine is given on a sexual assault or domestic violence investigation, it may be routed to the investigating agency’s higher headquarters for their JA to provide a second opine.
Disposition After Investigation
The completed investigation will be sent to the command for disposition. The unit’s servicing JA will advise the command on what kind of action they believe is appropriate. The command has a range of options, to include no action, a counseling, Nonjudicial Punishment (NJP), adverse administrative action (such as a letter of reprimand or administrative separation), or court martial. Although this is a command decision, they typically follow the JA’s recommendations. If you are under investigation, you are in serious danger of UCMJ or administrative action being taken against you – even if you are innocent.
If you Are Under Investigation, don’t wait. Call Us Immediately!
Frequently Asked Questions
I went to the military defense office (TDS/ADC/DSO), and the attorney just gave me basic advice about my rights. Why wouldn’t they take my case or help me further?
These services are designed to assist you after adverse action has been taken against you. You will need to hire an attorney to get focused assistance during the investigation.
Since my investigation started, my command treats me differently. Are they conspiring against me?
This is highly improbable. Many service members under investigation feel that they are being targeted and that their command has it out for them. However, most commanders simply follow regulations and the advice of their Judge Advocate.
How can my command treat me like I’m already guilty if the investigation is still ongoing?
If you are under investigation, you are officially a “suspect.” Being flagged or put on legal/administrative hold are prescribed by service regulations and are to ensure the continuity of the investigation. Rule for Court Martial (RCM) 304 allows authorities to place conditions on liberty, restriction in lieu of arrest, arrest, or confinement if there is PC that you committed an offense. This is to ensure that no further serious misconduct is committed, and to secure your presence at trial. Compare this to the civilian system, where a defendant will be arrested and released from jail pending investigation if s/he can post bail. The military does not have a bail system. It relies on command authority.
Isn’t being relieved, flagged/placed on hold, and placed on restriction considered punishment?
No. “Punishment” only occurs as the result of NJP or an adjudged sentence at Court Martial pursuant to the Uniform Code of Military Justice (UCMJ). Everything else is considered “administrative.”
My superiors humiliated me about the allegations against me in front of others. Is this ok?
No. If this happens, notify your attorney immediately.
I was not flagged/placed on legal or administrative hold during the investigation, or the flag code was wrong. Are these grounds to dismiss the case or get the command in trouble?
No. The mistake will simply be corrected as it will not have any detrimental effect on you.
If I invoke my right to silence or to an attorney during the interrogation, won’t that make me look guilty?
This does not matter. The command may either think you are guilty already, or they might think you are smart for invoking your rights. Exercising your rights cannot be used against you in any way. On the other hand, your words are guaranteed to be used against you.
Why won’t my command tell me what is going on in the investigation?
They are not allowed to. Even if they know what the agents are doing in the investigation, the details of the investigation will never be released until adverse action is taken against you.
Can I get a copy of the report of investigation?
You will NOT get a copy of the investigation until after adverse action is taken against you, such as preferred charges, notification of NJP, and notification of administrative separation. If this happens, the investigation will be provided to your attorney. If the investigation is complete, unfounded, and no action is taken against you, you may still be able to get a copy if you file a Freedom of Information Act (FOIA) request. If you obtain it this way, it will be heavily redacted.
If you or someone you love is facing any of these or similar charges, contact us immediately.
Even if the investigation is ongoing and you have not yet been formally charged, we can help protect your rights, and take proactive steps to mitigate your exposure to life-changing criminal penalties.