Home Military DA-PAM-27-17 06-1970

DA-PAM-27-17 06-1970

DA-PAM-27-17 06-1970

DEPARTMENT OF THE ARMY PAMPHLET NO. 27·17

MILITARY JUSTICE HANDBOOK

PROCEDURAL GUIDE FOR ARTICLE 32[b)

INVESTIGATING OFFICER

LOGO
HEADQUARTERS, DEPARTMENT OF THE ARMY JUNE 1970

This copy is a reprint which includes current pages from Change 1.
\

Pam 27-17
PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY No. 27-17 WASHINGTON, D.C., 10 June 1970
l
MILITARY JUSTICE HANDBOOK
PROCEDURAL GUIDE FOR ARTICLE 32(b)
INVESTIGATING OFFICER

Paraaraph Pase
SECTION I.     INTRODUCTION Purpose and Scope 1-1 1-1 General Instructions __________________________________________________ _
1-2 1-1
II.     PREPARING FOR THE INVESTIGATION General Considerations __ _ _ _____________________________ ~ ____ _ ________ 2-1
2-1 Sequence of Preparation ____ _ __ _ ___ _ _ _ _________ _ ___ _ _ _ ____________ _ ____ _ 2-2
2-1 Informing the Accused of the Investigation and His Right to Counsel ___ .. _ 2-3 2-2 Consultation with Counsel for the Accused—————————·–2-4 2-3 Attendance of Witness ____________________________________ -_______ -_–2-5
2-3
III.     THE FORMAL INVESTIGATION General _________________________________ -__________ -___ ——__ ——-3-1 3-1
Procedure for Opening Session _________ •____________________ —________ _ 3-2 · 3-1 Procedures for Taking Testimony and Examining Evidence __ _ __ _ ____ _ _ _ _ _ _ 3-3 3-1
IV.     COMPLETION OF THE INVESTIGATING
OFFICER’S REPORT General __________________________ -________ -______ ————_——–4-1 4-1
Considering the Evidence and Making a Recommendation _—————–4-2 4-1 Forwarding the Report __ . __ . _—-____ ——————————–4-3 4-1 Informal Report -_———————. ——————————­
4-4 4-1
I-1
APPENDIX I.     PRELIMINARY ADVICE TO ACCUSED—————————–­
11-f
II.     NOTIFICATION TO ACCUSED ————————————–­
111.     ARRANGEMENT OF ROOM FOR INVESTIGATION ——————–III-1
IV-1
IV.     PROCEDURE FOR OPENING SESSION —————————–­V-1
V. OATHS     ————————————————————–­
VI-1
VI.     EXAMINATION OF WITNESSES –_-. ——————————–­VIl-1
VII. EXAMINATION OF EVIDENCE————————————–­
VIIl-1
VIII. REPORT OF INVESTIGATION —————————————­
SECTION I

INTRODUCTION

1-1. Purpose and Scope
This guide is published for the use of officers who have been appointed as investigating officers under Article 32(b) of the Uniform Code of Military Justice. They should use this guide in con­junction with The Investigating Officer’s Report (DD Form 457) and the Manual for Courts­Martial 1969 (Revised edition) [hereafter designated as MCM]. The ipvestigating officer’s func­tions are: (1) to make a thorough and impartial investigation into the truth of the allegations;
(2) to consider the correctness and the form of the charges; and (3) to make recommendations as to the disposition of the charges in the interest of justice and discipline.
1-2. General Instructions
a. Duties of Investigating Officer.
Assignment of an officer as an Article 32 (b) Investigating Officer should take precedence over other military duties. An officer detailed to perform these duties must be familiar with the entire contents of this guide, Article 32, UCMJ, and paragraph 34, MCM. In preparing for and in conducting the investigation, the investigating officer must bear in mind that he is per­forming a judicial function. He must be impartial in appearance and in actuality.
b. Legal Advice for Investigating Officer.
At the beginning of the investigation, and at all other times when the investigating officer requires legal advice, he should seek that advice from the judge advocate officer serving the command of the officer who directed the investigation. However, the conclusions to be drawn from the evidence in the case and his recommendations concerning the disposition of the case are matters solely within his judgment and responsibility and are to be determined without re­liance upon the opinions or recommendations of any other person.
c. Legal Representation for the Accused~
The accused may be represented during the investigation proceedings by a civilian lawyer provided by him or on his behalf at no expense to the United States, by military counsel, lawyer or non-lawyer, of his own selection if reasonably available, or by military counsel certified un­der Article 27b detailed for that purpose by competent authority. The accused’s preference for non-lawyer counsel should be discouraged. Counsel representing the accused will be allowed to present evidence on behalf of the accused, cross-examine witnesses for the Government, and otherwise perform the normal functions of counsel. Whenever counsel is requested by the ac­cused, the taking of evidence will be conducted in the presence of that counsel unless the accused expressly excuses him. See paragraph 5 for a complete explanation of the accused’s right to counsel.
d. Legal Counsel for the Government.
Counsel may also be detailed to represent the Government. Such counsel is not the legal ad­viser of the investigating officer, but represents a party to the investigation. Accordingly, the investigating officer shall not seek legal advice from him. Counsel for the Government may pre­sent .evidence, cross-examine witnesses, and argue for such disposition of the matter as he con­siders appropriate. The Investigating Officer should recognize that arguments made by counsel for either side are not evidence and should carry no additional weight merely because of the side making the argument.
SECTION II

PREPARING FOR THE INVESTIGATION
2-1. General Considerations
The file will normally include five copies of the charge sheet; civilian or military police re­ports; statements of witnesses or summaries thereof; documentary evidence, such as extract copies of morning reports in cases involving unauthorized absence; and the record of previous convictions, if any. If these documents are not in the file, the Investigating Officer should request them immediately from the officer who appointed him. The file may also include a letter of in­struction from the officer who appointed the investigating officer or directions to report to the office of the local judge advocate for a briefing.
The Article 32 investigation is a judicial proceeding and plays a necessary role in military due process of law. The investigation is subject to subsequent review at the trial, if there is a trial, or on appeal. The ultimate outcome of the case may well depend upon whether the in­vestigating officer properly performed his duties in making certain that the accused was fully informed of and afforded all his rights in connection with the investigation.
It is important to conduct the investigation expeditiously. Usually, the officer appointing the investigating officer will set a date for completion of the report. If the investigating officer can not comply with that date, he will report this fact in writing to the authority who directed the investigation and explain the cause of the delay in detail. Such delay on the part of the investi­gating officer could result in a gross injustice to the accused and in a dismissal of the charges. On the other hand, the investigating officer must take the necessary time for a thorough investi­gation. Requests for delay by the accused should normally be in writing and attached to the report of investigation. Any reasonable request for delay by the accused should be granted.
2-2. Sequence of Preparation
After receipt of the file, the investigating officer should read Article 32, UCMJ, paragraph 34, MCM, and this guide, study the file and take action in the sequence indicated below.
a. Consult with a Judge Advocate.
The investigating officer should report to the judge advocate office serving the officer who directed the investigation for an initial briefing on his duties. He should consult that office at other times as needed for legal advice or assistance.
b. Examine the File.
(1)
.Examine the charge sheet and all accompanying papers.

(2)
Ascertain whether the charges were sworn before a commissioned officer who is auth­orized to administer oaths (Article 136 UCMJ, para 29e, MCM). If they were not, confer with the accuser to determine whether he desires to swear to the charges. The investigating officer should not, however, administer the oath for this purpose. If the accuser does not want to swear to the charges, or if it is impracticable for him to do so without unnecessary delay, the in­vestigating officer should consult with the officer who appointed him for guidance in the mat­ter and should proceed with the investigation only if directed ..

c. Determine Whether There Are Any Reasons Which Would Prevent the Investigating Offi­cer From Conducting a Fair and Impartial Investigation.
If there are any reasons which would prevent the investigating officer from conducting a fair and impartial investigation, he should notify the officer who appointed him of this fact.
d. Determine the Applicable Law.
(1) The investigating officer should be familiar with the elements (essential facts) of the
offense(s) charged. He should read the discussion of the offense or offenses in chapter XXVIII, MCM particularly the paragraphs entitled “Proof.” In addition he should consult DA Pam 27-9,’ (Military Judges’ Guide). If the offense is charged as a violation of Article 134 and no discussion of the specific elements appears in the Manual or DA Pam 27-9, the elements of the offense can be identified by separating the specification into its essential, component allegations. Each of these allegations is an element of the offense. For example, if the offense charged is wrongful sale of heroin, the offense will be charged in substantially the following language:
In that Private John Doe, U.S. Army, Company A, did, at Fort
_________, on or about 4 September 19__, wrongfully sell a habit form­
ing narcotic drug, to wit: heroin.
The elements of this offense are:
(a)
At the time and place alleged the accused sold heroin.

(b)
That heroin is a habit forming narcotic drug.

(c)
That the sale was wrongful.

(d)
That the conduct of the accused was prejudicial to good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces.

(2)
The investigating officer should insure that each specification actually alleges an of­fense (see para 28, MCM) and that each offense is charged as a violation of the proper Article of the Code. If he concludes that the wording of a specification departs so materially from an applicable form specification (App 6c, MCM,) that no offense is alleged or the specification is am­biguous, he should return the file to the officer who appointed him, stating his reasons for return­ing it.

(3)
If the accused is charged with a failure to obey a regulation or written order and a copy of the directive is not in the file, the investigating officer should obtain copies of the direc­tive for the report and familiarize himself with its provisions.

(4)
The investigating officer must determine whether documentary evidence in the file, such as extract copies of morning reports and copies of records of previous convictions, is prop­erly authenticated (para 143 b, MCM). He should assign “identifying numbers to all documen­tary evidence and any physical objects in order that they may be accurately referred to when he makes out the investigating officer’s report. (See section IV.)

(5)
If familiarity with the scene of the alleged offense would assist him in gaining a more accurate picture of the case, he should visit the scene.

e. Determine What Witnesses to Call.
In preparing for the formal investigation, the investigating officer may communicate by telephone or otherwise with prospective witnesses to determine the extent of their knowledge concerning the case, whether he will interview them as witnesses, whether they are in posses­sion of relevant documentary evidence or physical objects which should be produced at the in­vestigation, or whether they are aware of other witnesses or evidence that should be examined during the investigation. The investigating officer must not, however, consider such informal communications as evidence in the case or in making his recommendations in the case.
f. Arranging for Pl.ace for Investigation.
The investigating officer should contact the officer who appointed him, to secure a place for conducting the investigation and such clerical assistance as can be provided.
2-3. Informing the Accused of the Investigation and His Right To Counsel
The investigating officer ~hould arrange (through the accused’s commanding officer, if the accused is not in pretrial confinement, or the confinement officer, if he is in pretrial confine­ment) to meet with the accused for the purpose of giving him preliminary advice and infor­mation eoncerning the investigation (See Appendix I). The accused may also be notified of the investigation and his right to counsel in writing. If the accused is already represented by counsel, a copy of a written notice, if any, should be sent to the counsel whenever possible the investigating officer should personally deliver the notice to the accused, read its contents, explain it and answer any questions. If the accused can reach a decision at that time, his answer should be obtained in the form of an indorsement to the letter. A sample notification and in­dorsement is contained in appendix II. At this first meeting with the accused, the investigating officer should introduce himself and explain that he has been detailed as investigating officer and explain the purposes of his investigation in accordance with appendix I. Any attempt by the accused to discuss the facts of the case with the investigating officer at this time should be discouraged.
2-4. Consultation with Counsel for the Accused
a. Generat
If the accused requests that he be represented by counsel, his request must be promptly reported to the officer who ordered the investigation. The investigating officer should request that officer to notify him as soon as possible as to the identity and address or military organi­zation of counsel who is to represent the accused. When the investigating officer receives this information, he should contact the accused’s counsel for the purpose of delivering a complete copy of the file to him. At this time the investigating officer should advise counsel of his pro­posed date, time, and place of the investigation and allow counsel reasonable time for preP­aration of the case. If counsel requests additional time for preparation, such request should be in writing and directed to the investigating officer. Investigating officers will grant reasonable requests. ‘
b. Witnesses for the Accused~
The investigating officer should attempt to secure from counsel for the accused a list of any witnesses desired by the accused sufficiently in advance of the formal investigation to allow time for securing their attendance. This will help insure orderly and expeditious procedure in the opening session. If the accused desires to have witnesses called or to have certain documents or records obtained, the investigating officer should arrange, if possible, to have the witnesses present and the documents or records produced at this first session. If this is not possible, then arrange­ments should be made for their appearance and production at the time and place set for the next session of the investigation.
In the event the investigating officer is unable to arrange for the attendance of civilian witnesses or the production of certain documents requested by the accused by the date he orig­inally planned to call the next session of the investigation, he should set a date for further hearing to permit the attendance of the witnesses and the production of the documents. The investigating officer need not delay proceeding with the initial session of the investigation until he has arranged for the production of all the witnesses or other evidence requested by the ac­cused. Sound discretion on his part is essential. For example, if all of the witnesses requested by the accused are readily available but certain requested documentary evidence will not be available until several days later, there may be no objection to proceeding with the investigation. It must be kept in mind that the thoroughness of the investigation is not dependent upon having all of the evidence available at the same time, but only upon the ultimate examination of all of the witnesses and evidence in a manner which is as orderly as possible. If, however, the investigating officer must temporarily postpone the investigation in order to arrange for the attendance of witnesses, he should inform the accused and the potential witnesses of the date and place he has set for future proceedings and arrange for their attendance.
2-5. Securing the Attendance of Witness
a. Military1 Witnesses and Government Employee Witnesses.
Military witnesses may be ordered to appear at the investigation. If there is a question as to the availability of such witnesses, application should be made to the immediate command­ing officer of the requested witness (para 34d, MCM). The supervisors of civilian employees of the government should be requested to arrange for their attendance.
b. Civilian Witnesses not Employed by the Government.
Generally, non-government civilian witnesses may not be compelled by the investigating officer to attend the pretrial investigation and testify (para, 34d, MCM). The investigating officer should arrange where practical for transportation to the hearing of any civilian witnesses who are willing to appear voluntarily. In the alternative, the investigating officer may arrange transportation for himself, the accused, and counsel, if any, to a place convenient to the civilian witness. In those cases where the investigating officer determines that the testimony of a re­luctant civilian witness is substantial, material, and necessary for a proper disposition of the case, he should immediately ask the staff judge advocate to assist in obtaining the witness’ attendance.
c. Arranging for Documentary Evidence.
The investigating officer should make every effort to insure that witnesses in possession of essential documentary and real evidence are present at the investigation. He should examine but not take real evidence into his possession as such a procedure might produce additional problems regarding admissibility of such evidence at a later trial.
SECTION III
THE FORMAL INVESTIGATION

3-1. General
Whenever practicable, the interview room should be arranged so that the witness chair faces both the investigating officer and the accused (app III). The formal taking of evidence in the in­vestigation and the actual interrogation of witnesses and examination of real evidence will be held at a time and place designated by the investigating officer. The investigating officer should have before him a copy of DD Form 457, (Investigating Officer’s Report Form) (app VIII). Use of that form as a check list commencing with Item 4f, in conjunction with the provisions of this guide, is recommended.
3-2. Procedure for Opening Session
Appendix IV sets forth the suggested procedure in a typica’l opening session with the accused and his counsel after appropriate introductions are made. Variations in these procedures may be made to meet special circumstances.
3-3. Procedures for Taking Testimony and Examining Evidence
a. Record of testimony.
Generally, the testimony of the witnesses given at the investigation is recorded by having them sign and swear to the truth of the substance of their statements after the testimony has been re­duced to writing by the investigating officer. If, however, obtaining witnesses on statements of summaries of testimony will cause undue delay, they need not be signed by the witness but they will be authenticated by the investigating officer. These statements should be recorded on DA Form 2823, given exhibit numbers and noted in Item 5c, DD Form 457. In certain cases, the officer who appointed the investigating officer may desire to have the entire proceedings reported verbatim by a sworn reporter. In such case the verbatim report of the testimony of witnesses given on oath or affirmation need not be signed by the witnesses. Verbatim statements should also be given exhibit numbers and entered in Item 5c, DD Form 457.
Ordinarily it is not necessary to give Article 31 warnings to witnesses who are not accused or suspected of a crime; however, if during the taking of testimony it appears to the investigat­ing officer that amilitary witness might be suspected of committing any offense, the investigating officer should stop him and advise him of his rights under Article 31 and his right to lawyer counsel.
b. Refmal to testify.
If a witness who is a member of the military refuses to make a sworn statement and it does not appear that the statement will incriminate him, he should be allowed to consult with a judge advocate concerning his rights and duty to testify. If he persists in refusing to testify he may be given an order to do so. Failure to comply with this order could result in disciplinary action. If a witness has previously made a sworn written statement and now refuses to testify, the in­vestigating officer should show the witness his previous statement and inquire into the reasons for which he now refuses to make a sworn statement regarding the same subject matter. After having determined as far as possible the reasons for which the witness refuses to make an ad­ditional statement, the investigating officer should indicate to the accused and counsel that he is still going to consider the previously sworn statement. If the witness refuses to make a sworn statement and he not previously made a sworn statement, the investigating officer is not permit­ted to consider any unsworn statement. If it appears that any witness who is apparently essential to the trial is subject to early discharge, transfer, temporary duty, or other personnel action
which might prevent his availability at a later trial, the investigating officer should so note in ·Item 11, DD Form 457. If the change of status is within a period of 30 days, the staff judge
advocate should be notified to determine if a deposition should be taken.
c.     Spectators.
The authority who directed the investigation may provide that the investigation be closed to the public. The investigating officer may also decide not to permit spectators, including mem­bers of the news media, to attend all or part of the proceedings. In this connection, the investi­gating officer must follow the guidlines established in AR 345-60, which prohibit the release of certain information to the public concerning disciplinary actions prior to trial. In addition, pro­spective witnesses in the case should not be permitted to hear or exambQ the testimony, or stak­ments of other witnesses. Witnesses should remain available outside the hearing room and should be called one at a time to testify. Witnesses should be instructed not to discuss their testimony with other witnesses. (See appendix Sb, MCM. 1969 (Rev.), paragraph AS-17 for a warning guide.)
d.     Oatks.
The procedure for administering the oath to a witness is set forth in appendix V.
e.     Examination of Witnesses.
A procedure for examining witnesses is set forth in appendix VI.
f.     Examination of Evidence.
The procedure for examining evidence is set forth in appendix VII.
g.     Inquiry into Mental Responsibility or Capacity (para 120, MCM). If the investigating officer considers that grounds exist for inquiring into the mental condi­tion of the accused to determine whether he was mentally responsible at the time of the acts charged or has sufficient mental capacity to understand the nature of the Article 32 investigation, he should notify the officer who directed the investigation who will take appropriate action (para
121, MCM). In addition, the investigating officer should complete all items under Item 10, DD Form 457, as appropriate.
h. Closing the Investigation.
When the investigating officer receives all the evidence and the accused and his counsel have indicated that they have no further evidence tQ offer, he should inform the accused that he does not contemplate calling any more witnesses or receiving other evidence unless the accused or his counsel have other evidence to present, or argument to make. If the accused or his counsel pre­sent evidence in t)Xplanation or mitigation it should be noted in Item 12, DD Form 457. If the accused or his counsel has no further evidence to offer, the investigating officer should declare the
taking of evidence closed.
The accused or his counsel should be afforded the opportunity to make a statement of what he considers an appropriate recommendation concerning the disposition of the charges in the case. The investigating officer should consider any comm~mts made in that connection in deciding what disposition he will recommend to the officer who directed the investigation. The investigat­ing officer should explain to the counsel that his recommendation in the case is advisory only and is in no way binding upon the officer who directed the investigation or any superior authorities.

SECTION IV
COMPLETION OF THE INVESTIGATING
OFFICER’S REPORT

4-1. General
As indicated in paragraph 6, the investigating officer should have before him during the in­vestigation a copy of DD Form 457, Investigating Officer’s Report. The DD Form 457 used dur­ing the investigation and other notes may be used as working papers in preparing the report to the officer who directed the investigation. If the investigation is not to be completed verbatim, he should put the substance of each witness’ testimony in writing and ask the witness to sign and swear to the statement.
4-2. Considering the Evidence and Making a Recommendation
In many cases, the investigating officer may be able to make his recommendation as soon as the investigation closes. If so, he should record it in Item 17 or 18 of the working copy of the In­vestigating Officer’s Report and then have the report typed in final form. If the investigating offi­cer is unable to make a decision immediately, he may desire to have the testimony transcribed and to review it before coming to a conclusion.
4-3. Forwarding the Report
The investigating officer should secure all papers furnished to him together with all evidence produced at the investigation to the Investigating Officer’s Report (DD Form 457) and, if at all practicable, hand-carry the entire file to the headquarters of the officer who directed the investi­gation.
Each document in the file should be in five copies unless there is more than one accused. The furnishing of a copy of the investigation to the accused is not a part of the investigating offi­cer’s responsibilities.
If the accused or his counsel requests a copy of the report, the investigating officer should ex­plain that he will transmit the request to the officer who directed the investigation. The investi­gating officer should make a notation of the request in the “remarks” section (Item 18) of his report.
4-4. Informal Report
Where it clearly appears that the charges will not be referred to a general court-martial, an informal report may be made in lieu of a formal report (34f, MCM, 1969 (Rev.)). In appropri­ate cases this can eliminate much needless paper work.
APPENDIX I
PRELIMINARY ADVICE TO ACCUSED
The following procedure provides guidance for an introductory session with the accused in an Article 32 investigation.
I.O. (to accused: “I am (Major) • By order of , I have been appointed investigating officer under Article 32(b) of the Uniform Code of Military Justice to investigate certain charges against you. The charges allege, in general, (the otil:nse(s) of ) (that you did ). The name of the accuser is . The names of the witnesses thus far known to me are ————–­Identity of 1.0.
Charges referred for investigation
Informing accused of charges
“I am now going to advise you of your rights in this investigation. You will have the right at the proper time: to cross-examine all available witnesses against you, to present anything you might desire in your own behalf, either in defense or mitigation, to have a lawyer represent you at the investigation, to have the investigating officer examine available wit­nesses requested by you, to make a statement in any form at the proper time or to remain silent or to refuse to make any statement regarding any offense of which you are accused or suspected or concerning which you are being investigated. In addition you are advised that any statement made by you might be used as evidence against you in a trial by court-martial. Do you understand?
“As investigating officer, it is my duty to investigate thoroughly and impartially all the matters set forth in the charge(s) and specification(s) against you. This investigation shall include inquiries as to t1’e truth of the matter set forth in the charges, form of charges, and the disposition which should be made of the case in the interest of justice and discipline. It is my duty to evaluate and weigh impartially all of the evidence. I will examine the available witnesses against you as well as any available witnesses requested by you. You and your counsel will be given full opportunity to cross-examine witnesses against you if they are available and to present anything you may desire in your own behalf, either in defense or mitiga­tion or extenuation. I can recommepd that the charge(s) against you be referred for trial to a general court-martial or to a different type of court­martial or that the charge(s) be dismissed or disposed of other than by trial by court-martial. It is not my purpose during this investigation to act as prosecutor but only as an impartial fact finder. Do you understand?
“Before I begin the formal investigation and examination of any of
the witnesses in this case, I must inform you that you have the right to be
represented at all times during this investigation by legally qualified
counsel. This means that you have the right to be represented by a civilian
lawyer of your choice, but at no expense to the United States, by military
counsel (whether a lawyer or not) of your own selectiol.l if that counsel is
reasonably available, and by a qualified military lawyer counsel detailed to
represent you during the investigation. There is no cost to you for military
lawyer counsel or military counsel. Do you wish to be represented by
counsel and, if so, state the kind of counsel you want to represent you.
Note. If the accused is hesitant about whether he should ask for lawyer coun-
Cautioning the accused
Duties of
I.O.
Accused’s
rights to
counsel
sel, the investigating officer should encourage him to ask for legally qualified coun­sel. If the accused requests counsel other than a lawyer, he must be advised that such non-lawyer counsel cannot represent him before a general court-martial or a special court-martial which can adjudge a bad conduct discharge.
APPENDIX II
NOTIFICATION TO THE ACCUSED
DEPARTMENT OF THE ARMY
Headquarters

(Date)
SUBJECT: Article 32b Investigation
Private (E-1) John J. Doe Post Stockade Fort Blank, Missouri
1.
On at hours in Building , Room , I will conduct an investigation pursuant to Article 32b, UCMJ, to investigate the facts and cir­cumstances concerning charges preferred against you by . The charge(s) (is) (are) and ————–. in violation of Articie(s) (and ), UCMJ.

2.
You have the right to be present during the entire investigation. Additionally you have the right to be represented at all times during this investigation by legally qualified counsel. Such counsel may be a civilian lawyer of your choice, provided at no expense to the United States, a qualified military lawyer of your selection, or a non-legally qualified military counsel, if reason­ably available, or by qualified military counsel detailed by competent autliority. There is no cost to you for military counsel. You also have the right to waive representa1.1on by counsel. Send me

(date) your decision by ——–­
3. The names of witnesses as known to me, who will be asked to testify at the hearing are:
a.

b.

c.

d.

e.
Additionally, it is my intention to examine and consider the following evidence:
a.

b.

c.

4.
As investigating officer, I will try to arrange for the appearance of any witnesses that you want to testify at the hearing. Send me names and addresses of such witnesses by—-­If, at a later time, ·you want additional witnesses, inform me of their names and addresses.

(telephone number)

5.
You may contact me during duty hours at ————-­

MAJ, INF Investigating Officer
–( ) 1st Ind PVT (E-1) John J. Doe, ________, ——-­TO: Major _________, Investigating Officer,———-­_______ (date)
1.
Receipt of basic communication is acknowledged.

2.
I want to be represented by (civilian counsel, who is Mr. ———–­(Name)

bar
(Address) (Rank) (Name) if he is reasonably available) (legally qualified military counsel detailed by competent authori­ty) (I do not want to be represented by counsel.)
3. I want the following witnesses and/or evidence present at the hearing:
a.

b.

c.

d.

PVT (E-1), Accused
APPENDIX III
ARRANGEMENT OF ROOM FOR INVESTIGATION

Note. The Article 32 investigation should be conducted in a formal and dignified manner. While the investiga­tion is not a trial and the strict rules of procedure and evidence applicable in trials by courts-martial do not apply to the investigation, the investigating officer will find that the investigation will be far more successful if informality is kept to a minimum. For this reason, the investigating officer should attempt to hold the investi­gation under conditions of relative quiet and without interruption. When the investigation is conducted in a place where people are walking about holding general conversation, the accused and observers are likely to get the impression that the investigation is a casual affair, rather than the serious judicial function which it was intended to be by the Congress and the United States Court of Military Appeals. The investigating officer should attempt to arrange the furniture in the room where the investigation is to be held substantially in the follow­ing manner.
chart
C)
0
()
<
0 ~
i::: 11
:; s
QI
~ ~ ~
~
Reporter
or
Clerk

Witness
Chair

Desk
Investigating
Officer
DI-1

APPENDIX IV
PROCEDURE FOR OPENING SESSION OF THE FORMAL INVESTIGATION
I.O. (to accused–counsel) : This is a formal investigation into certain charges against ___
ordered pursuant to Article 82(b), UCMJ, by——­On , 197 _, I informed you of your right to be represented by civilian counsel at no expense to the Government, military counsel (lawyer or not legally qualified) of your own selection, and a military lawyer counsel detailed by You informed me that you (did not desire to be represented by counsel) (that you desired to be re­presented by (Mr. Thomas White of Bowie, Maryland) (Captain Staff Judge Advocate Section, Headquarters, 20th Infantry Division) (Detailed military counsel).
Let the record show that ( was available and is here present with you) (Mr. White is present here with you) (Captain was tletailed by ———-and is here with you).
(Mr. White, I will ask you to step forward and enter your appearance by filling out Item 3 on the Official Investigating Officer’s Report) (DD Form 457).
1.0. (to accused–counsel): I want to remind you that my sole function as the Article 32 in­vestigating officer in this case is to determine thoroughly and impartially all of the relevant facts of this case, to we!gh and evaluate those facts and determine the truth of the matters stated in the charges. I shall also consider the form of the charges and make a recommendation concerning the disposition of the charges which have been preferred against you. I will now read to you the charges which I have been directed to investigate. They are as follows:
(Charge (I): Violation of the Uniform Code of
Military Justice, Article—­Specification (1): In that——­Specification (2): In that ———–­
(Charge     (II): (Additional Charge): Violation of the Uniform Code of Military Jus­
tice, .Article  )
(Specification (1)): In that  .)
(  )

I will now show you the charge(s) and specification{s). I advise you that you do not have to make any statement regarding the offense(s) of which you are accused and that any statement you do make may be used as evidence against you in a trial by court-martial. You have the right to remain silent concerning the offenses with which you are charged. You may, however, make a statement either sworn or unsworn and present anything you may desire, either in defense, extenuation or mitigation. If you do make a statement, whatever you say will be consider­ed and weighed as evidence by me just as is the testimony of other wit­nesses. You have previously been given a copy of the investigation file which Examination of has thus far been compiled in your case. It contains the (sworn) (and) the file. (unsworn) statements of (Captain) (Sergeant) (Private First Class) It
also contains [kere state tke other relevant documents contained in the’ file]. It is my intention to call as witnesses in this investigation (Captain) ———. (Sergeant) , and (Mister)
. After these witnesses have testified in response to my questions, you and your cou.nsel will have the right to cross examine them. You also have the right to call available witnesses for my examina­tion and to produce other evidence in your behalf. I have arranged for the appearance of those witnesses previously requested by you. If you desire additional witnesses, I will help to arrange for their appearance or for the production of any available evidence relating to your case.
[I do not intend to call as a witness (Private First Class) —­but intend rather to consider his sworn statement in my recommendations as it is contained in the file.]
Note. If the statement of a witness the investigating officer intends to consider is unsworn and the investigating officer does not intend to call him as a witness, he should advise the accused substantially as follows:
1.0. (to accused-counsel): Since the statement of (Private First Class) , is unsworn I am not permitted to consider it unless you consent. Do you consent to my consideration of (Private First Class) ‘s unsworn statement, even though I do not intend to call him as a witness?
(COUNSEL)(ACCUSED): ——–­
If the accused answers in the negative, the investigating officer may not consider the unsworn statement in making his recommendation. How­ever, he is at liberty to attempt to obtain a sworn statement from the wit­ness in question. If the investigating officer chooses to do so he must be sure to advise the accused of the decision. If the accused consents to the unsworn statement, the investigating officer should mark it as an exhibit and enter it in Item 5c, DD Form 457, with an appropriate explanation in Item 18. He may then consider the statement in arriving at his recom­mendation.
If the statement of a witness the investigating officer intends to consider
is sworn and he does not intend to call him as a witness, advise the accused
substantially as follows:
1.0. (to accused-counsel): Even though I do not intend to call (Pri­vate First Class) , whose sworn statement I intend to consider in arriving at my recommendation, it is your right to have an opportunity to cross-examine him if he is available and, if you wish, I will arrange his presence for that purpose. Do you want me to call (Private First Class as a witness?
(COUNSEL) (ACCUSED): ——–­
If the accused answers in the affirmative, IO must arrange to have the requested witness, if available, present at the place and time set for the next session. If the accused answers in the negative and the witness is not available, the investigating officer should mark the statement as an ex­hibit and enter it in Item 6a and may consider it in arriving at his recom­mendation.
1.0. (to accused-counsel): Before proceeding further I now ask you whether you have any questions concerning your right to remain silent concerning the offenses of which you are accused, your right to make a statement either sworn or unsworn if you want to, the use that can be made of any statement you do make, your right to cross-examine wit­nesses against you, or your right to present anything you may desire in Explanation regarding unsworn statements your own behalf, and to have me examine available witnesses requested by you either in defense or mitigation.
(COUNSEL) (ACCUSED): ——–­
Note. At this point, answer any questions which the accused may have with re­spect to his rights or as to procedural or other matters concerning the investigation. The I.O. should not proceed further until he is convinced that the. accused understands his rights. If the accused is represented by lawyer, counsel, however, the latter will generally indicate that he has explained these matters to the accused and that they are understood by him.
I. O. (to accused-counsel): Do you want me to call any witnesses to testify in your defense or to testify in mitigation or extenuation on your behalf? Do you want me to call any other witness regarding this case so that yau may cross-examine them? Ifso, give me their names and organi­zations or addressed. Ifyou are aware of any military records which you want me to consider and which you have been unable to obtain, give me a list of these documents.
(COUNSEL) (ACCUSED): Ascertaining accused’s desire to call witnesses

APPENDIX V
OATHS

Note. The word “oath” as used in this appendix includes the word “affirmation.” All oaths and affirmations should be made in the presence of the accused. Generally, only witnesses need be sworn at an Article 32 inves­tigation. There is no requirement that the investigating officer or counsel be sworn. Interpreters must also be sworn before beginning their duties. The oath may be administered by the investigating officer in the following manner: The investigating officer should raise his right hand and have the person being sworn stand in front· of him and raise his right hand. The investigating officer should then read or recite the appropriate oath and the witness should respond appropriately.
OATH FOR WITNESSES
1.0. You swear that the evidence you shall give in the case now being investigated shall be the truth, the whole truth, and nothing but the truth. So help you God.
AFFIRMATION
1.0. You affirm that the evidence you shall give in the case now being investigated shall be the truth, the whole truth, and nothing but the truth. Note. The “AFFIRMATION” is used when administering the oath to persons who have conscientious scru­ples against taking an oath or to persons who do not b~Iieve in the existence of a Supreme Being (para, 112d, MCM). Persons who recognize special ·forms or rites as obligatory, and persons who do not belie~~ in a Supreme
Being may be sworn in their own manner or according to the ceremonies of the religion they profess and de­clare to be binding.
OATH FOR INTERPRETER
1.0. You swear that you will faithfully perform the duties of interpreter in the matter now in hearing. So help you God.
Note. When testimony is given thro1•gh an interpret.er, he must first be sworn (para. 114, MC:M). Tlte inter­preter must translate questions and answers in verbatim form.
APPENDIX VI
EXAMINATION OF WITNESSES

Introductory questions to witnesses
(Swear WITNESS) See appendix V.
l.O.: State your full name (grade, organization, and armed force) (occupation and resi­dence address).
WITNESS:
l.O.: Do you know the accused in this case? WITNESS: (I do) (I do not). Note. If the identification of the accused is not an essential part of the expected testimony of the witness, this question m:i.y be omitted. If the witness identifies the accused, the 1.0. should normally ask him to state the accused’s name and organization if he knows it. If the identity of the accused is particularly relevant in a case, and the identity of the accused as the perpetrator of the offense depends upon the ability of the witness to identify the accused, the accused’s counsel may request that the witness be required to identify the accused from a non-suggE>stive lineup of persons similar in appearance to the accused. This request should be granted whenever possible. Otherwise the ability of the witness to identify the accused as the offender may be based on the fact that the accused is the only person whose conduct is being investigated. In any event in this situation, the 1.0. should inquire into the basis for the witness’ identification of the accused.
GOVERNMENT WITNESS
I.O.: (to witness after introductory questions): Did you see the accused on the morning of 4 September 1970? WITNESS: Yes, sir, I did.
I.O.: Where were you when you saw him? WITNESS: I was in the dayroom of Company , Fort——-· 1.0.: About what time was this? WITNESS: It was approximately 0930 hours, sir. I.O.: Who else, if anyone, was present at the time? WITNESS: Sergeant John Smith was there then, sir. I 1.0.: What did the accused do, if anything, when you saw him at this time? WITNESS: When I came into the dayroom, sir, I saw Sergeant Smith and the accused facing each other and (witness continues with details of the incident}.
• • * * * * * *
CROSS-EXAMINATION OF GOVERNMENT WITNESS When the investigating officer has completed his examination of a witness, he should advice the accused and his counsel, if the accused is represented by counsel, substantially as follows:
I.O. (to accused–counsel): You may now cross-examine this witness concerning any of his testimony, any knowledge he may have of the offense(s), or concerning his worthiness of belief. (Since you are not represented by counsel, I will do this for you, if you wish, if you will inform me in a general way of the matters about which you want me to question the witness.} Do you wish to cross-examine this witness? (COUNSEL) (ACCUSED): I (do) (do not) (request that you ask him whether he …}.
Note. If the accused or counsel desires the witness to be cross-examined proceed substantially as follows:
(COUNSEL) (ACCUSED) (1.0) (to the witness): Did you hear the subject of the ar­gument between the accused and Sergeant Smith? WITNESS: No, sir, they were arguing at the time I came into the dayroom, and I didn’t hear what was said before I got there.
(COUNSEL) (ACCUSED) (1.0~): Did you see any gestures made during the argument
by Sergeant Smith?
WITNESS: I’m not exactly sure what you mean, but (witness continues to describe details of
the incident).

1.0. (to accused-counsel): Do you have any further questions you want this witness to answer? (COUNSEL) (ACCUSED): No Sir.
1.0.:     The witness is excused.
• • • • • • • • \
CALLING DEFENSE WITNESSES
1.0. (to accused–counsel) : I have now called all witnesses I contemplate calling and have revealed to you all evidence I intend to consider in the preliminary portions of this investigation. As I have previously advised you, you may now present any evidence you desire. Do you have any witnesses to testify in your defense or in extenuation and mitigation? If so, I will proceed to call them at this time.
(COUNSEL) (ACCUSED):~~~~~~~~–~~~~~~~~~~~­Note. If witnesses are to be called to testify on the accused’s behalf, the investigating officer should advise the accused substantially as follows:
1.0. (to accused-counsel): You may question each of the witnesses who are to testify for you (or, since you are not represented by counel, I will question them, if you prefer, if you will tell me generally about what you want to question them.)
(COUNSEL) (ACCUSED):~~~~~~~~–~~~~~~~~~~~­Note. If the accused is represented by counsel, the 1.0. should assume that counsel will conduct the examination of the witness and present his evidence in a planned procedure. If the accused has elected not to have counsel at the investigation, the 1.0. should permit the accused to cross-examine witnesses himself and to question his own witnesses if he desires. The procedure for administering the oath (app V) and for introductory ques­tioning of the witness set forth above should be followed for defense witnesses. After the accused or his counsel has completed his examination of the defense witness or the 1.0. has done so for him, the 1.0. may cross-examine the witness or if counsel appears for the Government, he may cross-examine the witness.
CALLING ADDITION AL WITNESSES When all witnesses who were initially called have testified, the investigating officer should de­termine whether other witnesses should be called in the interests of justice, fairness, and a comp­lete investigation. In addition, inquire of the accused substantially as shown below:
1.0. (to accused-counsel): (I do not intend to call any additional witnesses.) (I intend to call and as additional witnesses.) (I am going to recall ___ _____.for further questioning.) Are there any witnesses you desire to recall or are there any additional witnesses who have not been called whom you wish to testify?
(COUNSEL) (ACCUSED):
EXPLANATION OF ACCUSED’S RIGHTS AS A WITNESS
After all the witnesses have testified and the accused or his counsel indicate that they have no further evidence to present, the investigating officer should make inquiry of accused and his counsel, if the accused has not previously made a statement, substantially as follows:
1.0. (to accused): Earlier in this investigation, I advised you of your rights to make a statement or to remain silent. Do you want me to repeat this advice? Do you desire to make
a statement in     any form? Note. The response by the accused or his counsel should be recorded (Item 9, DA Form 457).
APPENDIX VII
EXAl\flNATION OF EVIDENCE
REAL EVIDENCE (PHYSICAL OBJECTS)
I.O     (to witness): I have here a knife which I have designated as Exhibit No. ___ Note. The accused and counsel should be permitted to examine the exhibit at this point.
I.O.
(to witness): Do you recognize this knife? WITNESS: I do.

I.O.
llow do you recognize it? WITNESS: I recognize it by (witness describes how he recognizes the knife).

I.O.
When did you first see this knife? WITNESS: I got my first look at the knife when I found it under the accused’s bunk.

I.O.
(to accused-counsel) after questioning the witness further as to the circumstances under which the knife was found, and after cross-examination, if any, of the witness): Do you have any objection to my considering this exhibit as evidence? (COUNSEL) (ACCUSED): (Yes, sir (stating reasons)) (No, sir).

DOCUMENTARY EVIDENCE
AUTHENTICATED OFFICIAL RECORD

I.O.
(to accused-counsel): I have here an extract copy of the morning reports of Com­pany ___, , for 31July1970 and for 31 September 1970, which I have designated Exhibit No. . It appears to be certified as a true copy by . I now hand you this exhibit for your examination.

I.O.
(to accused-counsel) after permitting him to examine the document): Do you have

any objection to my considering this exhibit as evidence? (COUNSEL) (ACCUSED): (Yes, sir (stating reasons)) (No, sir).
APPENDIX VIII
REPORT OF INVESTIGATION

INVESTIGATING OFFICER’S REPORT
(Of char’es under the provisions of Article 32, Uniform Code of  2d
Militsrv Tustice  ttnd Dttrtt§.rttoh 34  MCM  U.S.  1969 rRev,ll  INOOflSUllENT
,ROMI (Grede, ,….•NI Ol’..nJ••llon ol ln•Hll..tlnf olllc•r)  OATK 0 ,. REftOAT
r~-~~;,.,  …;,,,,,,01  R  t>….~r  R Cn  1 ..t_  ;),..  ?1at  T-4′  ?nth  T-#’  n;v  c;  …_,,_.  10?n
TOt  (Title-“” or,_,.l••llon ol olficw who 411.ctH report to be ….)  l”t. Blank, ?..;o.
Cnmmandi!U!’ Officer. 1st &1  • 71.st  Tnf’.  2tlth  T … f’  1)iv  Ft.  t>’lnnlr  .,; DD• ..·-•
GAAOE. ANO NAME OF ACCUSED  SSAN  l’OftGA.NIZA.TION  DATE 0″ CHARGES

Staff Sergeant 546 77 7’2:70 HHG, 1st Bn, 71st Inf,
Robert I.S. }’.issing 20th Inf Div, Ft. Blank lfo l Aug 70
(Clteclt •PJWOPl’l•t• anewer) YIS MO 1. IN ACCORDANCE. WITH THE PROVISIONS 01′ AATICl.E 12, UNIFORM CODE OP’ MIL.ITAAY JUSTICE, AND PARAGRAPH M MCM, IHI tREV.1, I HAVI: INVESTIGA.Tl!O THI. CHARGES (BahlbU I) APPl:NDl!O HERETO. QI, and ea •oe1rt ea, II la,,.,_.,,_,, Me ecc.,.ad •l•ct• not to N repN••nted &r COWl••I fll b7 ,uellll-4 coun••I llhr~• the 1n…u..11on, dM ……u..tbll olflc• trlll compr.te In 1na;.1,…. I tlrrou’1t 41 esc•pt ‘1. and wUI ••k th• accualHf to •I,,. lte• fC.) x z. AT THI!. OUTSET oir THI!: INVESTIGATION,I Rl!:AO TO THIE ACCUSED THe: PROVISIONS OP’ A..TIC~ll 11. UNIP’O…. coo• OP’ MILITARY JUSTICE:. AND AL.SO ADVISED HIM: x x•• O” TH& NATUllt& o” TMI: 0″11’11N•&tSI CHAlltQ&D ACJAIN•T …….
xb. O” TM& NAM& 011′ TH& ACCUSl:llt, c. 0″ TH& NAM~• O” TH& WITN&••1:• ACIAIN•T HIM •o “”” AS KNOWN ev MC. d. THAT TH& CMAflUi&a Wl:llt& AaOUT TO 81: INYl:aTIGAT&D ev M&. xx •• TH.-.T …………. llUQHT TO CONSUL.T WITH AND TO oaTAIN, AND TO MAY& Pllt&S&NT DUlltlN• THIS INY&•TleATION. A L.AWY&.., l:ITH&” ,., A CIYIL.IAN LAWVIEft “•TAINCD AT … ,. OWN ••P&Naa, o .. l&I MIL.IT.lt.ftY COUNltL o…-HIS OWN ••L.ICTION….. 8UCH COUN•aL. •• lll&AION.lt.aL.Y AVAIL.A•L.•. 0″ Cll     A MIL.ITA.. V LA.WYE”• C&.. Tlll’l&O UNDIE” AftTICL.W l7(‘b). P”OYIOCO WITHOUT C08T ev THa OP’ll”IC•J’ l:Xl:llllC181NQ Gr:N&lltAL. COUJltT•MAftTIAL .IUflilllDICTION. P.lt.fll:AGlltAPH MC, MCM. y I. 011″ Hl8 flllAHT TO c”o••·&XAMIN& ALL. AYAILA•L.• WITNtr.111:8 A•AtN•T MIM x •• Ofll’ Hll llltlGMT TO Pllt ..a&NT ANYTHIN.CI …. MICIHT DIUI… IN. ….. OWN alt.HAL.tr. &ITH&ft IN o ………. Oft MITl•ATION
r “· orr Ht• “ICIHT TO HAV& THI: INYll8TICIATIN•Ofl”fll’IC …. IXAM1Na AVAIL.AeLll WITNllS81!1 ….QU&ST&O av MIM y I. Ofll’ Ml8 lltlGMT TO MAKll A aTATllMllNT IN ANY “OftM … J. Ofl’ Hla “IGMT TO “llM.lt.IN a1L&NT Oft TO “IEP’Ua& TO M.lt.KIE ANY 8TAT&MIENT lltllGAfltOINO ANY 0″‘”‘&N811 Ofll’ WMICH Hll x WAI •ccuaao 0” CONC&ftNINCI WHICH …… •lllNCI INY ..aTHIATllO• .. THAT ANY aTATIEM&NT MADll BY MIM MICIHT •• u•IED A• llYIDl:NC• AGAIN•T HIM IN A TfltlAL • ., COUlltT…AlllTIAL. –
1••• TH& ACCUS..D “IEQUIE•T•D MILITAlltY COUN•llL. ev NAMC x b. NAMll ANO Gflt.lt.O& Ofl’ aUCH COUNS&L OfltCIANIZATION ‘-‘ .. ‘-‘~A u~-.,,.,…. Tn4′ T>lvI
•• MIL.ITAlltY COUNSIU. 111•ouaaTllD av NAMll WAI QUALIP’l&O WITHIN TMll MIEANINCI Ofl’ AlllTICL.a 17(&) UNIP’OfltM coo• x OP’ MILITAfltY .IU9TIC& d.     ‘” AN8Wllllt TO PftllC&OINe ITllM WAa ..NO””. ACCUSKD WAa INP’OfltM&D THAT SUCH UNQU.lt.L.1″1110 COUNlllL. MAY NOT llt&Plll&l&NT HIM AT .It.NY OllNllfltAL COUlllT•MAlltTIAL •• MIL.ITAfltY COUNallL “llQU&aT•D ev NAM& WA.a R&ASONABLV AYAIL.AeLll, (It not aNfl8bJ9, ……. In I,__ JI, lliia•lnl ’91erettee lo ,_.,,.pitJ4c, llCll, I Hf (R••.)) x x ‘· THll ACCUll:D IT.It.Tllo H& WOULD 81: lltl:PJtaSl!NTIED • ., CIVILIAN COUN91:t. IMllM•ll” Of’ THll 8A.. Of’ (Plioe .nd dlile) I h.,..by enter mr •ppearaace f« the above-o•med accuaed •nd Npreaen.t th•t I •m a member ol. the bar ot 4… TH& ACCUICO lllKQUIUTllO THAT COUN•&L. ……ov10110 •Y THll Cl&NIE..AI. COUlllT-MAlltTIAL AUTHCR:ITY TO lltl:P”lll&NT HIM I
6. NAM& ANO CIRAO& O” IUCH COUNS&L. o”•AN1ZAT10N c. COUN811L ,•• In ••bo••J WAI QUAL.lfl’lllQ WITHIN THC MCA.NINO 0 .. “”TICLllJ:7(‘b) UNl”O”M COD& Ofll’MIL.ITAlllY..JU•TIC& d • •,.. .lt.N8Wllllt TO …..cao1N• iT&M (fC) II ··No••, ACCUSllD ….Clfll’ICALLY W.lt.IV&O COUNlllL. WITH aUCH QUAl.o.lll’ICATIONI appendix VIII
x KOT&: If •ddJ.tiOIMll •pao• i• Hqulnd f• .., it••• •Dl:91′ the addJ.tiOAAI ..t•llll • • Hperat• •M•t• a. …to w.tltUr aooh -t.n..I wttla U.. P”P9I’ aWD91’1cel and, wh•• approprl8t•, latt•nd 1’eadJ.nc (Z…..,,I•, ..Jc”). hcw.1′ ettaelt. • ., eddltlOMl •IM•t to tt.. ,_…S edd •not• ID…_ …….~.. lh• ol the ,_r ….. addition.I.,..••••• ~..ttltH eOIHW.nd P’W•–….,..,..p11 M. llCM, Ifft<•••·> whk:lrl ..Dot w.au. liable wldl ec:.e otHr IMod&ns ID UM 1-ahould b• eat•-d AA lt•• 1.8. DD Form 457
P”•YIOUa &OITIOM IS oeaOL&T&.
VIII-1
appendix VIII – cont.
APP VIIl
VIIl-2
blank space
(Check •ppropriate anawer • continued)
YES NO
I. THE ACCUSED AFTEl’t HAVING BEE.N INFORMED OF HIS RIGHT TO MAKE A STATl!MENT OR ..EMAIN SILENT:
a. HE 010 NOT OEll .. C TOMA KE A ITATl:MENT
x
&. MADIE A ITATIEMl:NT APPllNDILO Hll.. li:TO (lrahlblt ).
c.
THI: c1..CUM8TANC•• 01″ THll TAKING 01″ ANY CONl”l:lllON O” ADMllllON OP’ ACCUllEO w….. INQUl..IED INTO ev M•
AND IUCH CONP’IElatON 0 .. AOMllAION APPaAfU TOHAVa ltlEIEN OBTAINIEO IN ACCO”OANCEWITH A.. TICLI’. 81,
UNll”ORM coo• OP’ MILITA”Y JUITICIE AND/Oflll THI: BTH AMENDMENT. <“,._• •pprOfJ’Mfe, attach •lat•-nt ol ,,….
taldnf conl•••lon • •d•tl••lon •howlna clrcmn•tanc•• ol t.eldrta.)

d.
THa ACCUll:D, AP’TIE’-Bl:INCI AOVlllEO THAT Ha 010 NOT HAYI: TO MAKI: ANY ITATl:MENT WITH Rl:IPl:CT TO IT,
WAI IHOWN THI: CONl”CHION Oflt AOMllllON ANO DID NOT CONTl:IT IT Aa Bl:ING NOT IN COM•L.IANCI: WITH A”TICL.lt
••• UNll”O..M CODE OP’ MIL.ITA”Y JUITIC&. (It,,.. conl•••lon -•dm•••lc, …. cont••tfHI, •U•cll accue•d’• ••planatlon ol

th c lreume lance•.)
10.     a. THEJllllE Wll911111: FllEAIONABLI: GJlllOUNDI 1″0” INQUt.. INCI INTO THE MENTAL “lllPONllBILITY OP’ THIE ACCUlllOA.T THa
TIMI: 01″ THI: ALLllGED Ol”l”K.Nla (MCM, J20b)

x
x
b. THR”C Wafla fltl:ASONABLa G ..OUNDS 1″0″ INQUl”INO INTO THC MENTAL CA•ACITY Ofl’ THa ACCUSllOA.T TH& TIM&
01″ THa INVIEITIGATION (MCll, 120<:)
Co     II” GfltOUNDI 1″0″ INQUl.. Y Al TO THC ACCUIED’S MENTAL CONDITION •Xt&TI, ITAT• .. l:AIONI THC,.lll”O” ANO
ACTION TAKIEN

x
1t. ALL ESSENTIAl. WITNESSES WILL BE AVAILABLE IN THE EVENT OF TRIAL. (II any ••••ntlal trltn•••(••) will not be eo
•Y•ll•bl•, llet ne0te, addr•••· ,….on I« nonaY•lt.blllty, and recoour..nct.tlon, II eny, ,..,..,,.., • d•poeltlon allouhl be mbn, Ll•I
••tm..ted dat• ol ••P#•tlott and/or tranefer, II JMl’lln•nl and •P•lt.ble)

x
U. EXPLANATORY OR EXTENUATING CIRCUMSTANCES ARE SUBMITTED HEREWITH.
x
II. a.     I HA.VIE INVll:ITIGATIED ANO P’IND__2_ P .. ll:VIOUI CONVICTIONtSI 01″ OP’P’CNllll COt,ieMITTll:D WITHIN THI: llX Y•A”a
Hll:XT •fltll:CCDINQ THIE COMMllllON 01″ AN OP’l”CNll. WITH WHICH TH& ACCUl&D IS NOW CHAfltlll&O (llCM, IHI.
(Ro•.) par 151>(2))

x
t•. IN AIUUVING AT MY CONCL.USIONS I HA~ CONSIDUll!D NOT ONL.Y THI! NATUIU 01′ THI! Ol’l’ENSl!(SJ AND THE EVI­
DENCE IN TH! CASE, BUT I HAVE L.IKl!WISE CONSIDERED THE AGE 01′ T”E ACCUSED. HIS MIL.ITAftY Sl!ftVICE, AND
THE !STABL.ISHED POL.ICY THAT TRIAL. BY G!NEftAL. COURT•MARTIAL. WIL.L. B! ftl!SotlT!D TO ONL.Y WHEN THE

x
CHAftGt:S CAN BE DISPOSED 01′ IN NO OTHER MANNER CONSISTENT WITH MIL.ITAftY DISCIPL.IN!.
ti. THE CHAftGt:S AND SPt:Cll’ICATIO~I AR! IN PiiiOPEft l’OflM AND TH! MATTERS CONTAINED THEftEIN AftE TftUE, TO
THI! •EST OP’ MY KNOWLEDGE ANO BELIEF’• (II th.,.• ….,. I• “NO” eap..ln and lndlc.ete rec.-.ndecf .oflon en additional

x
·-Ii
x
•••     ANY INCL.OSUftl!I ftECEIVl!D BY ME WITH THE CHAftGt:I AND NOT L.ISTED A•OVE Al AN EXHIBIT AftE Sl!CUftEL.Y
l’ASTENED TOGl!THl!ft AND APPENDED HIEftlETO Al ONE EXHIBIT (•dtlbll If no oucll ln•loo-…,. ,_.,..,,

ch•clc “NO”.)
17. (CMclc •Pfll’oprlate boa ONLF It ,,.,_,I• …c~)
TftlAL. BY IX’1 GENIEftAL. n SPECIAL. nsuMMAftY

appendix VIII- cont.
VIIl-3
This file was received by me at 1300 hours 2 August 1970. The delay in com­pleting my investigation was occasioned as follows: I informed the requested defense counsel, Captain Howard, late in the afternoon of 2 August 1970 that he had been made available and that I would conduct the investigation beginning at 1300 hours 3 August 1970. Captain Howard requested that I delay the investigation until 1000 hours 4 August 1970 because he desired to talk to the civilian witnesses before the .investigation. He further stated he would be unable to talk to these witnesses until the afternoon of 3 August 1970 because of his other assigned duties. I granted the defense counsel’s request. Ref. item 7b. AR 711-140, 20 March 1968, as changed shows that the stock number of a pistol, caliber .45, Model M 1911Al is 1005-673-7965. The value of this stock number item is $57.00. This publication was shown to the accused but is not appended hereto because it is t~o bulky. \ All inclosures to the basic communication have been withdrawn and are aow attached to this report as exhibits as indicated: Incl 1 -Ex 1 Incl 2 -part of Ex 9 Incl 3 -Ex 8 Incl 4 -part of Ex 9 I have considered as part of my investigation and am attaching to this report the unsworn statement of Miss Lillian Russell, 1001 Jay Street, Smithville, Missouri (Exhibit 10). Before considering this statement, I explained to the accused that I could not consider this statement without his consent. The accused though counsel stated that he wished me to consider this unsworn statement, even though Miss Russell was not called as a witness.
19•. 1 HAVE NO PREVIOUS CONNECTION WITH THIS CASE OR ANY CLOSEL.Y RELATED CASE. (11 •P’ ConlM’ctlon I• tndloeled, altiKlll a lull ozpl.,,•tlon.) I AM NOT AWARE 01′ ANY Rl!ASONS WHICH WOULD DISQUALll’Y ME !’ROM ACTING AS INVESTIGATING Ol’l’ICllR. (It ——.nn• —-· tn •Tie -u–L • •t•feMeftl ’11/Vl”.d II…. d•l•ll•-\
TYPED NAMI!, GRADE, AND ORGANIZATION 0,. INVUTIGATING 0,.l’ICER SAMUELE. PRYOR, Captain, B Co. 1st Bn, 7lst Inf, 20th Inf Div, Fort Blank, Missouri  signature

 

4 u
VIIl-4
13 March 1973 C 1, DA Pam 27-17
*The proponent agency of this pamphlet is the office of The Judge Ad­vocate General. Users are invited to send comments and suggested improvements on DA Form 2028 (Recommended Changes to Publications) to HODA !DAJA-MJl WASH DC 2031 O.
By Order of the Secretary of the Army:
CREIGHTON ,V. ABRAMS,
General, United States A1·niy,
Official:  Chief of Staff.
VER.XE L. BOWERS,
Majo1• Gene1’al, United States Anny,
The Adjutant General.

Distribution: To be distributed in accordance with DA Form 12-9 requirements for AR,
Legal Serdces: ActiYc Army: A ((~TY RQR Block #50) NG: B (QTY RQR Block #51)
USAR: A (QTYRQRB1ock#50)
TAGO 448A t. U. S, GOVERNMENT PRINTING OFFICE: 1974 0 -540-812(7627A)