Article 32, UCMJ, states that no specification or charge against a Servicemember may be referred to a General Court Martial for trial until a thorough and impartial investigation has taken place. Rule for Court Martial 405 (f) states that each Servicemember is entitled to the following rights flowing from the right to an Article 32, UCMJ investigation:
(1) Be informed of the charges under investigation;
(2) Be informed of the identity of the accuser;
(3) Except in circumstances described in R.C.M. 804(b)(2), be present throughout the taking of evidence;
(4) Be represented by counsel;
(5) Be informed of the witnesses and other evidence then known to the investigating officer;
(6) Be informed of the purpose of the investigation;
(7) Be informed of the right against self-incrimination under Article 31;
(8) Cross-examine witnesses who are produced under subsection (g) of this rule;
(9) Have witnesses produced as provided for in subsection (g) of this rule;
(10) Have evidence , including documents or physical evidence, within the control of military authorities produced as provided under subsection (g) of this rule;
(11) Present anything in defense, extenuation, or mitigation for consideration by the investigating officer; and
(12) Make a statement in any form
Subsection (g) requires production of witnesses and evidence which are generally reasonably available. If civilian witnesses refuse to testify, they are unavailable. This has caused numerous problems with obtaining testimony of civilian witnesses. Recently, the Congress addressed this problem in The National Defense Authorization Act of 2012, H.R. Res. 1540, 112th Cong. (2011) (enacted), where section 542 empowers the investigating officer to issue a subpoena against a civilian witness forcing him or her to testify.
Each Servicemember should utilize the right to an Article 32 investigation to the fullest extend possible. The opportunity to cross examine all reasonably available witnesses, including the complaining witnesses is a powerful weapon because it creates possible impeachment material. Also, it allows both sides to observe how witnesses perform while testifying. The investigating officer may recommend not to go forward on the charges. This does not happen often. The investigation may show to the trial counsel that perhaps an Article 10 (administrative discharge in lieu of a court-martial under AR 635-200) could be a better outcome for all sides. It may also create numerous other issues which will result in more litigation that will affect various portions of the trial.
All in all, it is critical to select an attorney who is very knowledgeable in an Article 32, UCMJ, representation to achieve the best result possible. Whether this is a recommendation not to refer the charges to a general court-martial, have an administrative discharge, or get strong impeachment material against key witnesses.
