LTC Francesca Graham (Army – United States Military Academy), Director of Operations, Joint Staff, J2X, authored this article. The opinions and views expressed in this article are solely those of the author and do not represent the official policies, positions, or endorsements of the U.S. Army, the Department of Defense, or any other government entity. (Published May 5th, 2024)
Did You Know: Department of Defense leadership (commanders / convening authorities) can add or modify the allegations in an administrative investigation (IG, EEO, EO) without formally updating the person(s) under investigation (the subject(s)). A subject may discover these changes in scope during their interview with an Investigating Officer, upon receiving matters to rebut, upon receiving disciplinary action, or upon receiving (likely years later) heavily redacted investigation records following a Freedom of Information Act request.
Here are some potential implications of these facts:
- The subject of the investigation (military or civilian) and their lawyer, if present, is unprepared to respond to new / modified allegations if they discover the changes during their interview with the IO.
- Hoping to prove their innocence, believing in the process, trusting their leadership, likely under extreme stress given the circumstances, and thinking of the financial burden of a meeting do-over if they hired a civilian lawyer, the subject might make the mistake of continuing the interview. This is a grave mistake that will make them even more vulnerable to unjust punishment.
- If the subject discovers the changes upon receiving matters to rebut, they are forced to climb an uphill battle and pay additional unplanned lawyer fees responding to arguments / evidence the commander / convening authority has already considered and likely reached an initial conclusion regarding.
- If the subject discovers the changes while receiving disciplinary action – this is particularly relevant for junior service members who are not afforded an opportunity to rebut an IO’s initial findings and recommendations – and the punishment is Non-Judicial Punishment, the subject is forced to make an immediate, uninformed, and terrifying decision whether to accept the NJP or request a Court Martial.
- If the punishment is administrative, whether punitive or non-punitive, the subject is forced to endure a finding of guilt and all its potential negative outcomes absent any opportunity to defend themselves.
- If the subject discovers the changes following a FOIA request, there is a risk the subject has already been involuntarily separated from the military with a less than honorable character discharge, denied promotion, lost out on job opportunities, lost their security clearance, been ostracized, and isolated by their colleagues, and lived under a “cloud of guilt” with all its corresponding emotional and psychological repercussions.
A question to ask yourself is how Congress can do nothing when it knows that the DoD’s administrative investigation system design allows blatant disregard of the Sixth Amendment. An Other Than Honorable Discharge, disingenuously called a “non-punitive discharge,” has lifelong negative impacts to pay, education, and health. It makes sense, therefore, for the accused to know “the nature of the charges against them.”
If you feel that you have been a victim of this “Did You Know” highlight, feel free to reach out privately or share your story in the comments, and SIGN THIS PETITION demanding that our leaders in Congress change this unjust system.
Do not be afraid. We all have a voice. We must use it. “We few; we happy few; we band of brothers…”