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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26171
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I brought potential misconduct of a DA Civilian in my unit

Resolved Question:

I brought potential misconduct of a DA Civilian in my unit to the attention of my higher command. During the research of my findings, my higher found separate, minor issues against me. Now I am a respondent and flagged in the informal 15-6 investigation which both issues have been rolled into one. The flag is preventing receipt of my PCS orders (I am an AGR Officer) to my next assignment and also inhibiting the scheduling of my household goods shipment and clearing my resident prior to the closing on the sale of my house. I was not notified of the flag and found out from through a third party 14 days after the flag was initiated, I’ve yet to be formally counseled for the matter and the complete details are being kept close hold by my higher command. Despite this, I have cooperated fully in hopes of a quick resolution, but the DA Civilian is out on convalescent leave and has refused to give a statement until her return to work. This has pushed the IO suspense date back 45 days, further impacting my family with additional emotional and mental stress/anxiety and posing the potential for substantial non-reimbursable personal expenses to vacant our home.

My questions are:
1. Should a Soldier be flagged during the informal 15-6 investigation?
2. Can the investigation be held up to convenience the principal wrongdoer? Once notified by the Investigating Officer, an individual should elect to either give a statement or not, regardless the investigation continues based on the evidence, correct?
3. My higher command would have never been aware of the wrong doing had it not been for my notification, but it appears that I am being punished more so than anyone else in this matter. What are the whistle blower protection options available to Soldiers?
4. As I see the issue, it’s two separate components. Is there an option to find judgment separately, in order to resolve my issues versus the charges I brought to my higher against the DA Civilian?
5. Understood that you don’t have all the details/facts of the case, but would I have a potential complaint to file with an IG office for prejudicial treatment?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I will attempt to address your questions in order
1. Should a Soldier be flagged during the informal 15-6 investigation?

Yes...if you look at the AR that covers this, an investigation under 15-6 (formal or informal) is the basis for a flag. You can see the AR that covers flags here

http://www.apd.army.mil/pdffiles/r600_8_2.pdf


2. Can the investigation be held up to convenience the principal wrongdoer? Once notified by the Investigating Officer, an individual should elect to either give a statement or not, regardless the investigation continues based on the evidence, correct?

This is totally at the discretion of the IO (limited only by direction of the commander). There is not any rule that requires a statement in any order or set period of time. In the investigations where I served as the IO, I made every effort to accommodate the witnesses, including the accused.

3. My higher command would have never been aware of the wrong doing had it not been for my notification, but it appears that I am being punished more so than anyone else in this matter. What are the whistle blower protection options available to Soldiers?

There are whistleblower protections available to solders in VERY limited circumstances. What you describe is not a basis for such protection. Specifically, The Military Whistleblower Protection Act, Title 10 U.S.C. 1034, prohibits interference with a military member’s right to make protected communications to members of Congress; Inspectors General; members of DoD audit, inspection, investigation or law enforcement organizations. So if they are punishing you for making the complaint? THen you have a whistleblower issue. But if the investigation is for something else ? The rule will not apply


4. As I see the issue, it’s two separate components. Is there an option to find judgment separately, in order to resolve my issues versus the charges I brought to my higher against the DA Civilian?

Sure...this is up to the commander who ordered the 15-6. You would have to make a request to him to bifurcate the investigation. But as the accused in an investigation, even a minor one, you really have very little leverage in this regard.

5. Understood that you don’t have all the details/facts of the case, but would I have a potential complaint to file with an IG office for prejudicial treatment?

Perhaps. IF you can show that the commander is treating you unfairly, you can file a complaint under Art 138, UCMJ. This is the provision in the military code that allows formal complaints against a commander. If you feel your commander is not treating you fairly, you can file a complait with the IG or under Art 138, UCMJ.

However, I caution if there is evidence of misconduct, even minor misconduct, you have an uphill battle...again, the UCMJ gives great deference to the commander to deal with alleged misconduct.

Expert:  P. Simmons replied 1 year ago.
I wanted to let you know I have to step away for approx 2. hours. If you have follow on questions I will address them when I return

Phil
Customer: replied 1 year ago.
Additionally, I don't feel that the IO is exhibiting any due diligence in the fact finding. I provided contact information for our unit's entire full-time staff on 26 MAR and to date he has contacted 3 individuals: me, the party of potential wrong doing and the former BN Commander. No one else has been contacted to give statements, answer questions, etc. He does not have access to the required systems to conduct queries to confirm/deny accusations and did not travel to our unit, even with approved travel orders, because the DA Civilian refuse to meet with him until she returned to work. However, there are 25 plus others he could have interviewed.

Is there a mechanism to question the IO's practices/procedures, or lack there of, in producing substantiating finding for his recommendation to the appointing authority? Understanding that i don't want to throw someone who holds my potential fate in his hand. If nothing further is done on his part, it basically becomes matter of my word versus hers, but I have time stamped reports to support my accusations.
Expert:  P. Simmons replied 1 year ago.
As an accused, it is very difficult to challenge an investigation. By design...the accused have a due process right to remain silent, and if they are charged under the UCMJ, they have a right to review the investigation. And they can challenge the investigation at that pont (in conjunction with the defense of the charges).

But short of that? There is no right to challenge how the investigation is being conducted. At least not directly. Not under AR 15-6 (the AR that controls investigations)

Ultimately the commander is responsible for the work of the IO. He or she alone must answer for allegations of i

Now...as I mention, if you believe the commander (not the investigator) is not treating you fairly? Then you can make the complaint. Again, under Art 134, or to the IG (the process is basically the same...you make the report and it is forwarded to the general for investigation)

But as I mention...as an accused? You have very little in the way to complain about. Unless they are placing you in a restriction status, or in jail, the command can take the time it needs to investigate the charges.

I know this is not what you wanted to hear...for that I am sorry.

But the fact is that military justice provides a great deal of due process (rights) to soldiers accused of crimes, but in the investigation process, the accused have very little due process (other than the right to remain silent)

Let me know if you have more questions..happy to assis if I can

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26171
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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