An investigation found me guilty of Dereliction of Duty (ART 92) and Wrongful Disposition of Government Property (ART 108) and simple negligence as a result of a FLIPL investigation tied to missing property. The JAG reviewed the investigation and concurred with the IO's findings. However, my commander filed a report of misconduct to the General Court Martial Convening authority stating I was grossly negligent, guilty of ART 107 (false official statements), and Guilty of Fraud (Article 108). He didn't send the investigation back down asking either the JAG or IO whether these offenses were substantied or explain how the elements of those charges applied to this situation. I know the appointment authority is not restricted by a IO's recommendations, but can he "report" or state the findings of an investigation are offenses that were never stated in the investigation or reviewed by an attorney?
State/Country relating to question: APO/FPO
Thanks for the chance to help. I am an attorney with over 12 years military law experience.First it is important to understand that an investigation can not find anyone guilty. Only a court or a properly administered Article 15, UCMJ hearing (NJP) can find a service member guilty.An investigation is simply a tool that a commander can use to determine how best to address allegations of misconduct. You are correct, the commander is not limited by the IO's recommendation. At all. But the larger point is that an investigation is simply a tool for the commander. It carries no punitive consequences to the service member investigated. It can be used to prefer charges (either at court or at Art 15, UCMJ).And it can be used for other administrative action...so, for example it can be used as a basis for a letter of reprimand. But it is not in and of itself punitive.So, to answer the question, can a subordinate commander make recommendations on criminal charges outside the scope of the investigation initiated by the commander?Sure. They certainly can. In the same way a subordinate commander can make such recommendations in the absence of an investigation.In other words, the fact that a commander has initiated an investigation will not limit a subordinate commander in any way. The subordinate commander can make any recommendations that they see fit.The commander, after consulting with his or her legal advisors, will decide what to do, if anything, with such recommendationsPlease let me know if you have more questions, if not please accept or rate the answer so I get credit for my work.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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