Performing JAG Manual investigations is viewed as an onerous task and usually thrust upon untrained junior officers. This important duty should instead be assigned to a career field specially trained to conduct these often complex inquiries.
The monkey, or burden, of JAG Manual investigations: what commander needs or wants it? Can the Marine Corps and Navy find a better, more efficient way to conduct investigations? If they were truly dedicated to warfighting excellence, would commanders delight in reading the following JAG Manual investigation?
SUBJECT: INVESTIGATION TO INQUIRE INTO THE CIRCUMSTANCES SURROUNDING REMOVING THE BURDEN OF COMMAND INVESTIGATIONS FROM COMMANDERS
Finding of fact 1. Major A. B. Smith USMC, a supply officer throughout his career, is deploying in three months with his command to Iraq, but he has just spent two months investigating a serious training accident that killed two Marines, an incident receiving much attention from the command, the Marines' families, and news media.
Finding of fact 2. This was Major Smith's first assignment as an investigating officer, so he knew nothing about conducting investigations. He worked on the investigation day and night, which prevented him from performing his regular duties as supply officer.
Finding of fact 3. Major Smith had to contact the command's Staff Judge Advocate (SJA) frequently for assistance with the investigation.
Finding of fact 4. The SJA returned the "final" investigation report to Major Smith five times for correction.
Finding of fact 5. The Chief of Staff contacted Major Smith at least twice weekly about the investigation's progress, each time pressuring him to complete it as soon as possible.
Opinion 1. Major Smith's first few attempts at a "final" investigation report were substandard: poorly written; unorganized; important information omitted; incomplete; and lacked crucial findings of fact, opinions, and recommendations. Hours of assistance and review from the SJA office were required to aid him in producing a final report of acceptable quality.
Opinion 2. Major Smith's expertise is supply, not investigation. His time could have been better devoted to performing the regular military duties for which he was trained. His absence because of the investigation directly affected his unit's readiness and preparation for pending deployment.
Opinion 3. A competent investigator, supplied from outside the command, would have made life easier for the command, Major Smith, and the SJA by facilitating the investigation process and by producing a quality investigation from the beginning.
Recommendation 1: Find a better method for conducting command investigations.
Recommendation 2: Implement that method.
The Burden of Investigations
Commanders in the field often view investigations as a burden that must be endured. During almost 25 years as a judge advocate in the regular and reserve components I learned much about investigations from both ends: by conducting investigations and reviewing investigations conducted by others. These experiences were valuable but not always pleasant or easy. I reviewed my share of substandard investigations submitted from the field.
One was an aviation mishap involving three deaths. The investigation described the actions by the pilot leading to the mishap but failed to address a basic issue: it did not question or evaluate the pilot's actions or make any recommendations concerning disciplinary action.
The second example is similar: a tactical vehicle driven by a Marine and carrying four other Marines overturned, killing two occupants. Carelessness by the driver, who survived, arguably caused the accident, yet the investigator made no recommendations concerning disciplinary action. I found two documents in the file: the executive officer's exhaustive list of discrepancies he found in the investigation and the commanding officer's endorsement, which failed to address disciplinary action.
The third was an investigation of an ordnance explosion that injured three Marines. I wrote a lengthy endorsement for the commander (a lieutenant general) endorsing the investigation. The endorsement made numerous corrections of and modifications to the investigation. It directed a lower command to evaluate the propriety of the actions of the senior Marine present since the investigating officer and the commander signing the endorsement lacked the expertise or command relationship to make that evaluation.
Field vs. Headquarters
The system of providing personnel to conduct investigations and the poor quality of investigations produced under that system must be viewed from both the bottom and top of the chain of command. As I learned from serving in the field and at Headquarters, Marine Corps, in many areas (including investigations), the following tension is reality: the field complains about the headquarters and its lawyers and the headquarters and its lawyers complain about the field and its lawyers.
At the bottom of the chain of command, the investigation burdens the command in several ways. What commander, focused on the unit's warfighting mission, wants to remove officers from their regular duties and devote them to investigating problems or incidents?
Often, investigators are junior officers chosen for just that qualification: they are junior officers. Through no fault of their own, they are inexperienced not only in the military but also in investigations, so they often produce poor quality investigations.
Worse, a conflict of interest arises when officers investigate an incident within their own commands, which means they may end up directly or indirectly investigating their own commanders or reporting seniors.
At the top of the chain of command, the primary dilemma at headquarters for lawyers reviewing mediocre or poor investigations is whether to return them to units for correction or correct them via endorsements prepared by the headquarters. Returning investigations to units means days or months lost; correction via headquarters endorsement makes for cumbersome reading but speeds the investigation process.
Some bureaucrats and lawyers at headquarters would rather curse the field for submitting a defective investigation and return it to the field command for correction rather than preventing it in the first place. I found this attitude with administrative separations at one command and learned that preventing poor quality investigations from the field can be accomplished in one of two ways.
The first is for headquarters to assist the field in producing a quality investigation from the beginning by providing detailed guidance, forms, and checklists. Such material is already available in various places for officers assigned to investigations, but the officers must know of, and use it. The second is for headquarters to assume the burden from the field and to do the work with specialists at the headquarters level.
Establish a Cadre of Professional Investigators
This essay advocates the second proposal: create a cadre of professional investigators at the headquarters level to be dispatched to field commands needing investigating officers. The Judge Advocate General of the Navy would establish the cadre system structure, organization, and guidance for the Marine Corps and Navy.
For example, the Marine Corps would create such cadres at the Force level (such as Marine Corps Forces Atlantic, Pacific, or Reserve) or at the major subordinate command level (such as Marine Expeditionary Force, Aircraft Wing, Division, or Force Service Support Group). The Navy would create similar cadres at its equivalent levels of command.
This proposal would change the current system of investigations found in Chapter II of the Manual of the Judge Advocate General, which authorizes or requires formal "JAG Manual investigations" of two types: "command" or "litigation-report."
Rather than using the current system of drafting officers from commands to conduct investigations, the cadre of professional investigators could be created as a separate section or could work under the inspector.
The cadre could be staffed from one or two sources. One would be officers trained in a new Military Occupational Specialty-command investigator. Another source would be officers of any MOS assigned as investigators for tours of two or three years after receiving formal training. This would be akin to the routine practice of assigning officers for a tour outside their MOS such as assignment to recruiting.
A system would be required for obtaining assistance in specialized areas such as health care incidents and aviation mishaps. Health care professionals or aviators could be assigned temporarily to assist professional investigating officers.
Commanders could request command investigation assistance with or without first conducting a preliminary inquiry (PI), which is an informal, brief first look at incidents. Commanders would retain the authority to order a PI conducted by an officer from within the command. After reviewing the PI, the commander may decide that a formal investigation is required or could request that an investigator be dispatched from headquarters. Headquarters could be given the authority to overrule field command decisions that formal investigations are unnecessary.
Should We Really "PCS" the Monkey?
Why PCS (permanent change of station) the investigation monkey from command to headquarters?
Leaving the investigation monkey-the burden-at the command level has one advantage: investigations are learning opportunities for investigators. I learned much, not only about investigations but also about various aspects of the Marine Corps from conducting and reviewing investigations. As a reservist called to active duty briefly to accomplish a specific task, I could devote my time solely to conducting or to reviewing investigations. I did not, as do officers on active duty full time, have a primary duty consuming my time, nor did I have to "answer the phones" or extinguish the inevitable "fires" (crises) disrupting daily military life.
Under the current system, officers conducting investigations have regular duties such as supply, aviation, infantry, repair, or law enforcement. Is any education these officers acquire by conducting investigations worth the time and effort they must divert from regular duties to complete the investigations? A lieutenant colonel told me that he lost a month from his regular duties when assigned to conduct an investigation. Is such a loss a benefit to commands or investigating officers?
While officers may learn valuable lessons by investigating problems or incidents, they can learn those same lessons by reading of them in various publications. Most investigations involve recurring problems or incidents, such as aviation mishaps, vehicle accidents, and negligent discharges of firearms. This information can be found in various publications or resources.
Another factor is legal review. The average SJA office, especially if small, wastes precious time-easily three to five or more days-and resources in reviewing and correcting deficient investigations.
The big picture is also important. Events triggering a formal investigation often are serious, usually involving deaths, grave injury, or extensive property damage or loss.
Inevitably, three factors exist in serious cases. First, such investigations routinely require more time and effort than originally estimated. second, surprise issues arise, unanticipated by anyone. For example, when investigating an allegation of sexual harassment within a unit, I was surprised when witnesses described two problems unknown to the command: a unit member had misused a vehicle rented at government expense and unit members had submitted false travel claims. Since I had already learned much about the command, I felt a duty to investigate these allegations. Investigating these two additional allegations, however, took extensive time and effort.
Finally, superiors constantly inquire about progress and possible results of investigations. They pressure investigators to complete investigations quickly, even at the cost of quality and completeness. The operative phrase-asked without understanding or appreciating difficulties investigators are encountering-is "What is taking so long?"
Moreover, members of families, Congress, and the media often receive copies of investigations. They deserve the best quality report to explain death, injury, and loss of health or taxpayer dollars.
Since a cadre of professional investigators would be based at and supervised by a higher headquarters, that headquarters could ensure uniform quality of reporting. SJA and headquarters review would be easier because both would receive a better quality investigation from the beginning. Eliminated would be the current time-consuming methods for correcting investigations: return of (often repeatedly) the investigation to the command for correction or correction by headquarters endorsement, which means a tedious, cumbersome process of approving, disapproving, adding, deleting, and modifying findings of fact, opinions, and recommendations.
Under the cadre system, the finished investigation-with standardized, coherent, logical format and content-would be routed to the commander requesting the investigation for that commander's comment and then returned through the chain of command to the headquarters dispatching the investigator. That headquarters could then endorse the investigation.
Pack the Monkey's Bags
The primary mission of the Marine Corps and Navy is warfighting excellence. All other tasks are subordinate to, and supportive of, that mission.
No part of the naval service is independent. In the Marine Corps, the infantry does not fly airplanes, fire artillery, or conduct courts-martial; it requests help from pilots, artillerymen, and judge advocates. Likewise, Navy pilots do not drive ships; surface officers are trained to do so. In neither service would an administrative officer be given instructions for surgery and told to operate on someone, with the results to be endorsed-reviewed and corrected-by a surgeon. Likewise, commanders should be able to call for specialists or experts to conduct investigations.
Finally, the investigation problem can be seen in two contexts. The first is the legal, litigious nature of society. Commanders already spend much time consulting judge advocates on subjects ranging from operational law to officer misconduct to environmental problems to administrative separations to claims to courts-martial. The military, like the rest of society, has become legalized. Appointing, supervising, and supporting command investigations is yet another legal burden on commanders who, after command tours, may have learned enough law to earn law degrees.
The second is institutional resistance to change. One of the greatest challenges for military members-regular or reserve, senior or junior-is to improve process. This occurs only if the person suggesting the improvement "pushes" the suggestion over the long run and conducts the bureaucratic frontal assaults, flanking movements, or guerilla warfare necessary to have someone look at the proposed change. Actually having the change adopted and implemented in the military culture is a formidable task, well beyond the scope of this essay.
A cadre of professional investigators dispatched from headquarters to the field may not be the perfect answer for removing the investigation burden from commanders' backs, but it should be considered and perhaps tried as an experiment at selected commands. Given resistance to change, I suspect that one year or ten years from now the monkey will still be firmly on the backs of a new generation of commanders who will, as with past generation, receive poorly written and disorganized investigations filled with incoherent, illogical, and incomprehensible narrative, findings of fact, opinions, and recommendations. Large postage bills and amounts of time lost will continue to be the norm as SJA offices mail defective reports back to units for correction.
Military doctrine and procedures are not true-false or multiple-choice tests. They are essays constantly being revised and edited, where ideas for change must be loaded into the weapons that challenge bureaucratic resistance to change and shot to the field for testing. The end result may be process improvement and a well-written, and logical investigation report. With the investigation burden removed from commands, commanders will have more time to lead, and subordinate officers will have more time to perform the regular duties for which they were trained. Both will have more time to devote to enhancing their command's reason for being: warfighting excellence.
Colonel Jones is a reserve judge advocate drilling at the Operational Law Branch of the Judge Advocate Division, Headquarters, Marine Corps. He began active duty as a regular in 1981 and became a reservist in 1993.