1. 1 Situations Where You may Be Required to Give Rights Warnings. Conducting an investigation Regularly interview people Non-judicial punishment proceedings Conducting formal and informal boards Conversations

2. 2 When to advise a soldier of his/her rights Official Capacity Prior to Questioning Suspect or Accused

3. 3 Rights Warning Under Article 31(b), UCMJ Right to be informed Right to remain silent Any statement can be used against you Right to Counsel

4. 4 Waiver of Rights Under Article 31 (b), UCMJ Do you understand your rights? Do you want a lawyer? Are you willing to make a statement?

5. 5 Article 15 Responsibilities 1. Whether an offense was committed 2. Whether the soldier was involved, and 3. The character and military record of the soldier

6. 6 Commanders should conduct an informal inquiry upon learning that offense may have been committed. The preliminary inquiry should concentrate on : Whether an offense was committed Whether the soldier was involved The character and military record of the soldier.

7. 7 Article 15 Guidance A commander must consider: Nature and Circumstances of the offense Age Previous Record

8. 8 Commander Authorized to administer non-judicial punishment A commissioned or warrant officer who by virtue of that officer’s grade and assignment exercises primary command authority over military organization or prescribed territorial area, that under pertinent official directives is recognized as a command.

9. 9 Commander’s Discretion Your discretion as a commander to impose an Article 15 is personal Your discretion must not be hampered by and superior’s guidelines or policies.

10. 10 Types of Article 15 proceedings 1. Summarized proceedings Available for enlisted members Punishment will not exceed extra duty for 14 days, restriction for 14 days, oral reprimand or admonition or any combination thereof.

11. 11 Types of Article 15 proceedings 2. Formal proceedings Available for enlisted members and officers The punishment might exceed 14 days extra duty 14 days restriction, an oral reprimand or admonition, or any combination thereof.

12. 12 Rights of a soldier under Article 15 Right to remain silent Right to counsel(formal proceedings only) Right to demand trial Decision period Right to call witnesses The Hearing The Right to Appeal

13. 13 1. Admonition or reprimand 2. Restriction or extra duty 3. Deprivation of pay 4. Reduction in grade Types of Article 15 Punishment

14. 14 Article 15 Appeal Appeals within 5 days after imposition of punishment are timely. Appeals are transmitted through the commander who imposed the punishment to to that commander’s next superior authority. The appellate authority normally should make a decision on an appeal within 5 calendar days. ( 3 days for summarized proceedings)

15. 15 Article 133, UCMJ Conduct Unbecoming an Officer and a Gentleman

16. 16 Article 134, UCMJ Conduct Prejudicial to Good Order and Discipline

17. 17 Preliminary Inquiry A commander is required to commence and investigation when he receives information that a member of the command is: Accused of a crime Suspected of committing a crime.

18. 18 AR15-6 1. A commander at any level can appoint an investigating officer to determine the facts and make recommendations for appropriate action. 2. The AR 15-6 investigating officer must be a commissioned officer, warrant officer, or GS-13 Department of the Army civilian.

19. 19 Overview Article 32 Investigation Authority: Art 32, UCMJ & R.C.M. 405 Required before a general court-martial Purposes –inquire into truth of matters asserted –consider the form of the charges –make a recommendation as to disposition of the charges and specifications

20. 20 Participants Any court-martial convening authority may appoint the Art 32 Investigation Appointing Authority is usually the Brigade Commander

21. 21 The Investigating Officer (IO) AA appoints the IO Commissioned officer or commissioned warrant officer Preference for field grade officers or officers with legal training Serves in a judicial capacity Obtains legal advice from impartial judge advocate

22. 22 Participants Accused may attend hearing, present evidence, and cross examine witnesses Accused represented by military or civilian counsel Trial counsel represents the Government AA details a reporter to record hearing

23. 23 Procedure-Evidence Military Rules of Evidence generally do not apply Witness testimony generally taken under oath except for accused and in time of war.

24. 24 Report of Investigation The IO must submit a timely report to the AA The IO uses DA form 457 for findings and recommendations and attaches summaries of testimony and physical evidence to report AA receives original and accused receives copy of report

25. 25 Convening Authority Action Accused has 5 days to object to report AA can take action on report before 5 days have expired Convening Authority may take action before 5 days have expired Convening Authority not bound by IO’s recommendation

26. 26 Search and Seizure Who may Authorize? Commander Military Judge Military Magistrate

27. 27 Who controls the person or place? Authority to Search Authority to Apprehend Exception - apprehension in the home (warrant required)

28. 28 Search and Seizure Probable Cause Totality of the Circumstances Neutral and Detached

29. 29 Search and Seizure Consent Incident to Apprehension Exigent Circumstances

30. 30 Inspections Not a Search Primary Purpose to ensure security, military fitness, good order and discipline of a unit Does not require probable cause

31. 31 Key Points to Remember 1. Be able to articulate what you are doing and why you are doing it, that is, your primary purpose. 2. Tailor the scope of the inspection to your primary purpose; make it no more intrusive than necessary to accomplish the primary purpose 3. Limit the discretion of the individuals actually conducting the inspection. Clarify what is and is not subject to inspection; ensue all soldiers inspected are treated equally; issue clear procedures to follow in the event contraband is found 4. Consider scheduled inspections.

32. 32 DoD Homosexual Conduct Policy Focus of the policy is Homosexual Conduct, NOT Sexual Orientation Command will separate soldiers for homosexual: –Statements (e.g. “I am gay”); –Acts; or, –Marriages (actual or attempted) Note: A soldier who makes a homosexual statement, but who also convinces a separation board that he or she will not engage in homosexual acts, can be retained in the Army

33. 33 Investigating Homosexual Conduct Only Commanders Initiate Inquiries An inquiry must be based on Credible Information Examples of information that is NOT Credible: –Mere suspicion, opinions or rumors –Reading homosexual publications/Going to “gay bars” Conduct the inquiry (informal inquiries preferred): –Right against self-incrimination (Article 31, UCMJ) –Cannot ask soldier about his/her sexual orientation –Can question soldier’s supervisory chain-of-command –Can question persons suggested by the soldier

34. 34 Investigating Homosexual Conduct “Substantial investigation” requires DA approval Statements to chaplains, attorney and spouses may be considered confidential You will violate the Policy IF: –You investigate a soldier for homosexual conduct without a commander’s permission; or, –Accuse a soldier of violating the Policy based on either suspicion w/o credible evidence, rumor, or observing the soldier w/ homosexual materials or in certain locations –Require a soldier to reveal his/her sexual orientation –Initiate a substantial investigation w/o DA approval

35. 35 Anti-Harassment Policy A soldier being harassed should seek out the chain-of-command, a chaplain, the IG, or a legal assistance attorney A harassed or threatened soldier should not be investigated simply because of the harassment or threat The DoD Homosexual Conduct Policy does not, however, prohibit investigating a soldier(s) who harasses or threatens another soldier for possible violations of the UCMJ

36. 36 Anti-Harassment Policy Commanders need credible information other than harassment to investigate a soldier for homosexual conduct. HARASSMENT ALONE IS NOT CREDIBLE INFORMATION. Absent credible information, an investigation into a complaint of either harassment or of a threat must focus on the harassment or threat, ONLY Credible information discovered during the course of an investigation does NOT stop the requirement to properly dispose of allegations of harassment

37. 37 Anti-Harassment Policy The command cannot make harassment stop if it is not reported Commanders must adequately address reported instances of harassment –The focus of any investigation into alleged harassment must be on the soldier(s) committing the harassment –When conducting the investigation, a commander can request the assistance of either MPI or CID –Harassed or threatened soldiers must know that their own sexual orientation will not be the subject of the investigation

38. 38 Army Policy Equal opportunity for soldiers regardless of race, color, religion sex, national origin; vital unit cohesion and morale; essential to mission accomplishment Military personnel must reject participation in extremist organizations or activities as it is inconsistent with military service.

39. 39 Extremism Organizations and activities that –advocate racial, gender, or ethnic hatred or intolerance –advocate, create, or engage in illegal discrimination based on race, color, sex, religion, national origin –advocate use or use force or violence or unlawful means to deprive others of their constitutional or legal rights.

40. 40 Commander’s Authority In addition to specific prohibitions, commanders have authority to prohibit activities that will have adverse effect; includes: – removal of symbols, flags, posters, displays –place areas off-limits –order soldier s not to participate in those activities that are contrary to good order and discipline or morale of the unit

41. 41 Command Action Any extremist involvement, even if not specifically prohibited, will result in action, such as: –educating soldier on equal opportunity policy –considering in performance evaluation and in selecting for leadership positions –reclassification –bar to reenlistment

42. 42 Prohibitions Public demonstrations or rallies Attending meetings on duty, in uniform, in foreign country, when breach of law and order, where violence likely to result, or in violation of an order Fundraising Recruiting Creating, organizing, leading Distributing literature

43. 43 HAZING Any conduct by a service member regardless of rank, that is cruel, abusive, humiliating, impressive, demeaning or harmful to another service member, regardless of rank.

44. 44 HAZING Abusive or Harmful Practical Jokes Branding Tattooing Body Painting “Blood Wings” Ceremonies Forced Consumption of Alcohol