Department of the Army

Pamphlet 27–17

Legal Services

Procedural

Guide for

Article 32(b)

Investigating

Officer

Headquarters

Department of the Army

Washington, DC

16 September 1990

UNCLASSIFIED
SUMMARY of CHANGE

DA PAM 27–17

Procedural Guide for Article 32(b) Investigating Officer

This revision contains new guidance in the areas of Government and defense

requested delays (para 2-1), ex parte discussions between the investigating

officer and witnesses (para 2-2f), and rights warnings to witnesses who are

suspected of committing an offense (para 3-3).
Headquarters

Department of the Army

Washington, DC

16 September 1990

Legal Services

Procedural Guide for Article 32(b) Investigating Officer

*Department of the Army

Pamphlet 27–17

History. This UPDATE printing publishes a

r e v i s i o n o f t h i s p u b l i c a t i o n . B e c a u s e t h e

publication has been extensively revised, the

changed portions have not been highlighted.

This publication has been reorganized to make

i t c o m p a t i b l e w i t h t h e A r m y e l e c t r o n i c

p u b l i s h i n g d a t a b a s e . N o c o n t e n t h a s b e e n

changed.

S u m m a r y . T h i s p a m p h l e t i s i n t e n d e d t o

provide information and reference material.

While it may suggest workable solutions to

legal problems, it does not purport to promulgate Department of the Army policy. Comments concerning laws, regulations, cases, or

other matters represent the opinions of individual specialists in military justice. Laws,

regulations, and decisions published prior to

1 January 1990 generally have been considered and included in this text.

Applicability. This pamphlet applies during

peacetime and mobilization to the Active Arm y , t h e A r m y N a t i o n a l G u a r d i n F e d e r a l

service under title 10, United States Code,

and the U.S. Army Reserve.

P r o p o n e n t a n d e x c e p t i o n a u t h o r i t y .

Not applicable.

Interim changes. Interim changes to this

pamphlet are not official unless they are authenticated by The Adjutant General. Users

will destroy interim changes on their expiration dates unless sooner superseded or rescinded.

S u g g e s t e dI m p r o v e m e n t s . T h e p r o p o -

nent of this pamphlet is Office of The Judge

Advocate General. Users are invited to send

c o m m e n t s a n d s u g g e s t e d i m p r o v e m e n t s o n

DA Form 2028 (Recommended Changes to

P u b l i c a t i o n s a n d B l a n k F o r m s ) d i r e c t l y t o

The Judge Advocate General’s School, Army, ATTN:JAGS–ADC, Charlottesville, VA

22903–1781.

Distribution. Distribution of this publication is made in accordance with the requirements on DA Form 12–09–E, block number

4063, intended for command levels B, C, D,

a n d E f o r A c t i v e A r m y , A r m y N a t i o n a l

Guard, and U.S. Army Reserve.

Contents (Listed by paragraph and page number)

Chapter 1

Introduction, page 1

Purpose • 1–1, page 1

General instructions • 1–2, page 1

Chapter 2

Preparing for the Investigation, page 1

General considerations • 2–1, page 1

Sequence of preparation • 2–2, page 2

Informing the accused of the investigation and the right to counsel 

• 2–3, page 2

Consultation with counsel for the accused • 2–4, page 3

Securing the attendance of witnesses • 2–5, page 3

Chapter 3

The Formal Investigation, page 7

General • 3–1, page 7

Procedure for opening session • 3–2, page 7

Procedures for taking testimony and examining evidence • 3–3,

page 7

Chapter 4

Completion of the Investigating Officer’s Report, page 15

Report preparation • 4–1, page 15

Considering the evidence and making a recommendation • 4–2,

page 15

Forwarding the report • 4–3, page 15

Figure List

Figure 2–1: Preliminary advice to the accused, page 4

Figure 2–2: Notification to the accused, page 5

Figure 2–3: Response of the accused, page 6

Figure 3–1: Arrangement of room for investigation, page 9

Figure 3–2: Procedure for opening session of the formal

investigation, page 10

Figure 3–3: Oaths, page 11

Figure 3–4: Examination of witnesses, page 13

Figure 3–5: Examination of evidence, page 14

Figure 4–1: Sample DD Form 457, page 16

Figure 4–1: Sample DD Form 457—Continued, page 17

*This pamphlet supersedes DA Pam 27–17, 15 March 1985.

DA PAM 27–17 • 16 September 1990 i

UNCLASSIFIED
RESERVED

ii DA PAM 27–17 • 16 September 1990
Chapter 1

Introduction

1–1. Purpose

This guide is published for use by officers who have been appointed

as investigating officers under article 32(b) of the Uniform Code of

Military Justice (UCMJ). This guide should be used in conjunction

with the DD Form 457(Investigating Officer’s Report) and the applicable Rules for Courts-Martial(R.C.M.) in the Manual for CourtsMartial, United States, 1984 (hereafter referred to as MCM, 1984).

The investigating officer’s functions are: To make athorough and

impartialinvestigation into the truth of the allegations; to consider

the correctness and the form of the charges; and 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. Just as the assignment of an

officer to be a court-martial member takes precedence over other

military duties, your assignment as an article 32(b) investigating

officer must take priority over other duties. As an officer detailed to

conduct an important investigation, you will actually be performing

a judicial function.In preparation for a complete examination of the

c a s e p r e s e n t e d t o y o u , y o u r i n i t i a l r e s p o n s i b i l i t y i s t o b e c o m e

thoroughly familiar with the contents of this guide, R.C.M. 405. and

article 32, UCMJ. Your two most important and legally vital responsibilities are: To thoroughly investigate all charges and specificat i o n s a l l e g e d i n t h e c h a r g e s h e e t ( s ) ; a n d , t o c o m p l e t e t h i s

investigation impartially.

b. Legal advice for investigating officer. Upon your initial appointment and throughout the investigation, you will have occasion

to seek legal advice from the office of the judge advocate serving

the command of the officer directing the investigation. It is imperative that this advice come from a judge advocate who has no direct

interest in the outcome of the proceedings. Normally, such a judge

advocate officer will be designated, in writing or otherwise, to assist

you in your role as investigating officer.Although you will receive

advice from the designated judge advocate, the conclusions to be

drawn from the evidence in the case and the recommendations

concerning the disposition of the case are matters solely within your

judgment and are your responsibility. The law requires that you

determine these matters without reliance upon the opinions or recommendations of any other person. You must scrupulously avoid

inquiries of or discussions with judge advocate officers who might

be perceived as lacking impartiality in the case (for example, defense counsel or the Government representative). Such discussions

often give the appearance of partiality toward either side regardless

of the motivation or real interest of the investigating officer.Restricting your preliminary discussion of the case to the designated legal

advisor will ensure the integrity of your judicial role and will maintain the impartiality demanded by law.

c. Legal representation for the accused. The accused may be

represented during the investigation by a civilian lawyer of the

accused’s choice at no expense to the United States, by military

counsel of the accused’s selection(if reasonably available), or by

military counsel certified under article 27(b)and detailed for that

purpose by competent authority. Counsel representing the accused

will be allowed to present evidence on behalf of the accused, crossexamine Government witnesses, argue for a disposition of the matter appropriate to the interests of the accused, 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 expressly excused by the accused. See

paragraph 2–3 for a complete explanation of the accused’s right to

counsel.

d. Legal counsel for the Government. Although not required by

law, counsel may also be detailed to represent the Government.

Such counsel isnotthe legal advisor of the investigating officer, but

instead, represents a party to the investigation. Accordingly, you

may notseek legal advice from counsel representing the Government. Counsel for the Government may present evidence, crossexamine witnesses, and argue for a disposition of the matter appropriate to the interest of the Government. You 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.

e . A d v i c e c o n c e r n i n g s u b s t a n t i v e m a t t e r s . Y o u s h o u l d i n f o r m

counsel for the accused and counsel for the Government, if detailed,

of all matters discussed with your legal advisor in your initial

briefing. If you later seek additional advice from your legal advisor,

you must give prior notice to counsel for the accused and to counsel

for the Government, if any, and you must provide these parties with

an opportunity to respond to the advice you received. If practical,

you may give counsel for both sides advance notice of your intent to

seek legal advice and may allow them an opportunity to be present;

however, this is not required. As a general rule, you should keep

arecord of the dates of consultation with your legal advisor, the

matters discussed, when parties were notified of such discussions,

whether counsel for the parties were present at such discussions, and

any response by counsel to your legal advisor’s advice.

Chapter 2

Preparing for the Investigation

2–1. General considerations

a. The case 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

Standard Installation/Division Personnel System (SIDPERS) documents in cases involving unauthorized absence; and the record of

previous convictions, if any. If these documents are not in the file,

you should request them immediately from the appropriate agencies.

The file may also include a letter of instruction from the officer who

appointed you and directions to report to the office of the local

judge advocate for a briefing by the judge advocate legal advisor

designated to assist you.

b. 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, and on

appeal.The ultimate outcome of the case may well depend upon

whether you properly perform your duties in making certain that the

accused is fully informed of and afforded all applicable rights in

connection with the investigation.

c. 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 you cannot comply with that date,

promptly report this fact in writing to the authority who directed the

investigation and explain the cause of the delay in detail. Such delay

on your part could result in a gross injustice to the accused and in

dismissal of the charges. On the other hand, you must take the time

necessary for a thorough investigation.

d. Requests for delay by the accused/defense must be in writing

and must be attached to the report of investigation. The Government

should be allowed an opportunity to respond to the defense requested delay. You should ensure that there are no ambiguities in

the request. Additionally, you should ensure that the accused and

defense counsel understand that their requested delay will not be

attributable to the Government. Any reasonable request for delay by

the accused should be granted.

e. The Government representative may ask you to approve a

delay in the investigation. The Government representative will also

normally ask that you exclude the period of delay from Government

speedy-trial accountability. You should require the Government representative to put the request for delay and reasons for the request in

writing. When these requests are made, you should review R.C.M.

707 and consult with your legal advisor.Before ruling on the Government’s request, you should hold a hearing at which the defense

counsel and the Government representative can present evidence

DA PAM 27–17 • 16 September 1990 1
and argument on the request. The Government must always establish that its request is for a “reasonable” period of delay. If you

grant the delay, the defense counsel may ask the military judge to

review your decision. For this reason, you must be sure that you

gather sufficient evidence to support your decision and that you

clearly explain your reasons for granting the delay. You may deny

the Government’s request or approve a shorter period of delay than

that requested. In short, you must hear evidence and arguments from

both sides, approve only reasonable delays, have an evidentiary

basis for granting the delay, explain your reason(s) for the decision,

and include this information in your report.

f . Y o u s h o u l d c o m p l e t e a c h r o n o l o g y s h e e t d o c u m e n t i n g t h e

dates of all your actions in conducting the investigation and the

reasons for any delays in the investigation. You should attach this

chronology sheet to your report. See R.C.M. 405(j)(2)(F).

2–2. Sequence of preparation

After receipt of the case file, you should read article 32, UCMJ,

R.C.M. 405, and this guide, then study the file and take action in the

sequence indicated below.

a. Consult with the judge advocate legal advisor. You should

report to the designated legal advisor for an initial briefing on your

duties. You may consult with this judge advocate officer as often as

necessary during the course of your investigation for advice and

assistance. Keep in mind that although you may feel that the judge

advocate designated as trial counsel to represent the Government is

more familiar with the case than the legal advisor, your impartial

role requires avoiding any discussions with legal personnel performing adversarial roles in the case. As explained in paragraph 1–2b,

you should inform counsel for the accused and counsel for the

Government of all substantive matters discussed with the legal advisor, give them advance notice of such discussions when practicable,

and keep a record of all such discussions.

b. Examine the file.

(1) You should examine the charge sheet and all accompanying

papers.

(2) Additionally, you should ascertain whether the charges were

sworn before a commissioned officer who is authorized to administer oaths.Seearticle 136, UCMJ; R.C.M. 307. If they were not, confer with the accuser to determine whether he or she desires to swear

to the charges. You 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 to do so without unnecessary delay, you should

consult with the officer who appointed you for guidance in the

matter and should proceed with the investigation only if directed.

c. Determine whether there is any reason you cannot conduct a

fair and impartial investigation. If there is any reason you cannot

conduct a fair and impartial investigation, you should promptly

notify the officer who appointed you of this fact. Prior knowledge

about the case should not disqualify you from acting as the investigating officer, provided you have not drawn conclusions about the

guilt or innocence of the accused and have not assisted in perfecting

a case against the accused.

d. Determine the applicable law.

(1) You should be familiar with the elements (essential facts) of

the offense(s) charged. You should read the discussion of the offense or offenses in MCM, 1984, Part IV. If the offense is charged

as a violation of article 134, UCMJ, and no discussion of the

specific elements appears in the MCM, 1984, or DA Pam 27–9,

consult your legal advisor regarding the elements.

(2) You should ensure that each specification actually alleges an

offense (see R.C.M. 307(c)) and that each offense is charged as a

violation of the proper article of the UCMJ. If you conclude that the

wording of a specification departs so materially from an applicable

form specification(see MCM, 1984, Part IV) that no offense is

alleged or the specification is ambiguous, you should return the file

to the officer who appointed you, stating your reasons for returning

it.

(3) If the accused is charged with failure to obey a regulation or

written order and a copy of the directive is not in the file, you

should obtain copies of the directive for the report and familiarize

yourself with its provisions.

e. Determine what evidence to examine. You must determine

what evidence, including documents or physical objects, should be

examined and whether such evidence is reasonably available for

production at the formal investigation. See R.C.M. 405(g). You

may, in some circumstances, decide to consider alternatives to examining the actual physical evidence, for example, testimony describing it or photographs depicting it. See R.C.M. 405(g)(5). You

should review R.C.M. 405(g), particularly subsections (1), (2), and

(5), to determine when evidence is reasonably available and when

alternatives to the original evidence may be considered. If there are

copies of documents in the file which you decide to consider because the originals are not reasonably available, you should ensure

that those copies are properly authenticated.SeeR.C.M. 405(g). You

should assign identifying numbers to all documentary evidence and

any physical objects so that they can be accurately referred to when

you complete DD Form 457. (See chap 4.) If familiarity with the

scene of the alleged offense would assist you in gaining a more

accurate picture of the case, you may visit the scene. If you do visit

the scene, you should inform all parties in advance when practicable

and give them an opportunity to accompany you; otherwise, inform

them afterward that you have visited the scene.

f. Determine what witnesses to call. Your review of the file

should disclose the names of prospective witnesses. Once you decide which witnesses to call in your formal investigation, you must

determine whether each witness is reasonably available. That determination requires you to balance the significance of the expected

testimony and personal appearance of the witness against the difficulty, expense, delay, and effect on military operations of obtaining

t h e w i t n e s s ’ s p r e s e n c e a t t h e i n v e s t i g a t i o n . S e e R . C . M .

405(g)(1).You may communicate by telephone or otherwise with

prospective witnesses to determine their availability. You should not

discuss the facts of the case with prospective witnesses at this time.

The law regards you as a judicial officer.You should hear the testimony of each witness only during the formal proceeding when the

accused and counsel have an opportunity to hear the same testimony

and cross-examine the witnesses. During your initial contact with

witnesses, you may discuss procedural matters such as travel cost,

lodging, and expected length of time the witness will be needed.

Regarding military witnesses, if you determine that a witness is

r e a s o n a b l y a v a i l a b l e , t h e w i t n e s s ’ s i m m e d i a t e c o m m a n d e r m a y

make a contrary determination and decline to make the witness

available. See R.C.M. 405(g)(2). If this occurs, you should obtain

the commander’s reasons for the determination of nonavailability

and include this information in your report. You should review

R.C.M. 405(g), particularly subsections (1) through (4), before deciding what witnesses to call and when alternatives to live testimony

by witnesses may be considered.

g. Arranging for place for investigation. You should contact the

officer who appointed you to reserve a place for conducting the

investigation and to request available clerical assistance.

2–3. Informing the accused of the investigation and the

right to counsel

You should arrange (through the accused’s commanding officer, if

the accused is not in pretrial confinement, or the confinement officer, if the accused is in pretrial confinement) to meet with the

accused for the purpose of providing preliminary advice and information concerning the investigation. See figure 2–1. The accused

may also be notified of the investigation and the right to counsel in

writing. If the accused is already represented by counsel, the written

notice, if any, should be sent to the counsel. Otherwise, you should

personally deliver the notice to the accused, read its contents, explain it, and answer any questions. If the accused can reach a

decision concerning representation by counsel at that time, or if the

accused desires to request specific witnesses for the investigation,

his or her answer should be obtained in the form of an endorsement.

Samples of notification and endorsement are contained in figures

2–2 and 2–3. At this first meeting with the accused, you should

2 DA PAM 27–17 • 16 September 1990
introduce yourself, explain that you have been detailed as investigating officer, and explain the purposes of the investigation. (See figure

2–1.) You must prohibit any attempt by the accused to discuss the

facts of the case with you at this time.

2–4. Consultation with counsel for the accused

a. General. If the accused requests representation by counsel, the

request must be promptly reported to the officer who ordered the

investigation.You should request that officer to notify you as soon

as possible as to the identity and address or military organization of

counsel who is to represent the accused. When you receive this

i n f o r m a t i o n , c o n t a c t t h e a c c u s e d ’ s c o u n s e l f o r t h e p u r p o s e o f

delivering a complete copy of the file. At this time, advise counsel

of the 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, the request must be in writing

and directed to you. You should grant reasonable requests for delay.

See paragraph 2–1. Once the accused requests counsel, you should

have no further contact with the accused outside the presence of

defense counsel.

b. Availability of witnesses for the accused.

(1) You must carefully consider defense requests for production

of essential witnesses to testify at the pretrial investigation. The

t y p i c a l i s s u e f o r y o u r d e c i s i o n i s t h e “ a v a i l a b i l i t y ” o r

“unavailability” of a witness who is not located at the site of the

hearing. Typically, the defense wishes to call the requested witness

to support its own defense, but often the defense wants to crossexamine a potential prosecution witness who is not expected to

appear for the hearing. Any witness whose testimony is relevant to

the investigation and not cumulative should normally be produced if

reasonably available. As explained in paragraph 2–2f, your determination of reasonable availability requires you to balance the signific a n c e o f a w i t n e s s ’ s e x p e c t e d t e s t i m o n y a g a i n s t o t h e r f a c t o r s ,

including the difficulty of obtaining the witness’s presence and the

effect on military operations. If the defense counsel has no objection, you may consider various alternatives to live testimony by

a v a i l a b l e w i t n e s s e s , s u c h a s s w o r n s t a t e m e n t s . S e e

R.C.M.405(g)(4)(A). If a witness is not reasonably available, you

may consider, over defense objection, various alternatives to testimony, such as sworn written statements, statements under oath

taken by telephone (provided each party has an opportunity to question the witness), or depositions. See R.C.M.405(g)(4)(B). If the

defense objects to a determination that a witness is not reasonably

available, you must include the reasons for your determination in

the report of investigation. See R.C.M. 405(g)(2)(D).

(2) You should secure from defense counsel a list of any witnesses the accused wants called sufficiently in advance of the formal

investigation to allow time for securing their attendance. This will

help ensure an orderly and expeditious procedure in the opening

session. If the accused desires to have witnesses called or to have

certain documents or records obtained, you 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.

(3) In the event you are unable to arrange for the attendance of

civilian witnesses or the production of certain documents requested

by the accused by the date originally planned, you should set a date

for a future hearing to permit the attendance of the witnesses and

the production of the documents. You need not delay proceeding

with the initial session of the investigation until you have arranged

for the production of all the witnesses or evidence requested by the

accused. Sound discretion on your part is essential. For example, if

all witnesses requested by the accused are readily available but

certain requested documentary evidence will not be available until

several days later, you may proceed with the investigation.Keep 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 that is as orderly as possible. If, however, you must

temporarily postpone the investigation in order to arrange for the

attendance of witnesses, you should inform the accused and the

potential witnesses of the date and place set for future proceedings

and arrange for their attendance.

2–5. Securing the attendance of witnesses

a. Military 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 a witness, you make the initial

decision whether the witness is reasonably available. If you decide

that the witness is reasonably available, you should ask the witness’s immediate commander to make the witness available. If that

commander decides that the witness is not reasonably available and

cannot be persuaded to reconsider the decision, you must abide by

the decision and consider alternatives to live testimony by the witness. You should ask supervisors of Government civilian employees

to arrange 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.

With advance approval by the general court-martial convening authority, however, you may arrange for the issuance of invitational

travel orders authorizing a mileage advance for transportation to the

hearing of an essential non-Government civilian witness who is

willing to appear voluntarily. See AR 37–106, chapter 13, section

III.In the alternative, you may arrange transportation for yourself,

the accused, and counsel, if any, to a place convenient to the

civilian witness. If you determine that the testimony of a reluctant

civilian witness is essential and necessary for a proper disposition of

the case, you should request the appropriate staff judge advocate to

assist in obtaining the witness’s attendance.

c. Arranging for documentary evidence. You should make every

effort to ensure that witnesses in possession of essential documentary and real evidence are present at the investigation. Examine but

do not take possession of real evidence. Your receipting for evidence might create admissibility problems at a later court-martial.

DA PAM 27–17 • 16 September 1990 3
The following procedure provides guidance for an introductory session with the accused.

I.O. (to accused): I am (rank and name). By order of(rank and name of appointing authority), I have been appointed

investigating officer under article 32(b) of the Uniform Code of Military Justice to investigate (a)certain charge(s) against you. The

charge(s) allege(s) in general, the offense(s) of (name of offense(s) and description(s) of conduct). The name of the accuser is

(rank and name of accuser). The names of the witnesses thus far known to me are (name all known witnesses).

I am now going to advise you of your rights in this investigation. You have the right to be present throughout the taking of

evidence so long as your conduct is not disruptive. 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, extenuation, or mitigation;to have

a lawyer represent you at the investigation; to have me examine available witnesses requested by you; to make a statement in any

form at the proper time, to remain silent, or to refuse to make any statement regarding any offense that you are accused or

suspected of, or concerning that 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 thoroughly and impartially investigate the charges against you. This investigation shall

include inquiries as to the truth of the matter set forth in the charge(s), form of the charge(s), and the disposition which should be

made of the case in the interest of justice and discipline. It is my duty to impartially evaluate and weigh 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 extenuation or mitigation. I can recommend that the charge(s) against you be referred for trial to a

general court-martial or to a different type of court-martial 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 of your own selection if

that counsel is reasonably available; or by counsel detailed by the Trial Defense Service to represent you during the investigation.

There is no cost to you for military counsel. Do you wish to be represented by counsel? If so, state the type of counsel you want to

represent you.

Note. If the accused is hesitant about whether to ask for counsel, the investigating officer should encourage the accused to obtain legally qualified counsel. If the

accused requests counsel other than a lawyer, you must advise the accused that such non-lawyer counsel cannot serve as defense counsel before a general courtmartial or a special court-martial that can adjudge a bad-conduct discharge.

Figure 2-1. Preliminary advice to the accused

4 DA PAM 27–17 • 16 September 1990
DEPARTMENT OF THE ARMY

(Organization name)

(Geographic location and zip code)

S: (suspense date)

(office symbol) (27) (date)

MEMORANDUM FOR (name and address of accused)

SUBJECT: Article 32(b) Investigation

1. On (date), at (time) in (building number),(room number), I will conduct an investigation pursuant to Article 32(b), UCMJ, to

investigate the facts and circumstances concerning (a) charge(s) preferred against you by (rank and name of person who preferred

charge(s)). The charge(s) is/are(general nature of the charge(s)), in violation of (UCMJ article(s)).

2. You have the right to be present during the entire investigation.Additionally, you have the right to be represented at all times

during the investigation by legally qualified counsel. Counsel may be a civilian lawyer of your choice, provided at no expense to the

United States; a qualified military lawyer of your selection, if reasonably available; or a qualified military counsel detailed by the Trial

Defense Service. There is no cost to you for military counsel. You also have the right to waive representation by counsel.Send your

decision to me by (suspense date).

3. The names of witnesses known to me, who will be asked to testify at the hearing are:

a. (Name of witness).

b. (Name of witness).

c. (Name of witness).

d. (Name of witness).

e. (Name of witness).

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

a. (Describe evidence and its location).

b. (Describe evidence and its location).

c. (Describe evidence and its location).

4. As investigating officer, I will try to arrange for the appearance of any witnesses that you want to testify at the hearing. Send

names and addresses of such witnesses to me by (suspense date for witness notification). If, at a later time, you identify additional

witnesses, inform me of their names and addresses.

5. You may contact me by writing to: (investigating officer’s rank, name, and military address).

(Name)

(Rank, Branch)

Investigating Officer

Figure 2-2. Notification to the accused

DA PAM 27–17 • 16 September 1990 5
XXXX–XX (XXX–XX/Date) 1st End Accused/XX/AV XXX–XXXX

SUBJECT: Article 32(b), UCMJ Investigation

(Name and address of accused)

FOR (Name and military address of investigating officer)

1. Receipt of basic communication is acknowledged.

2. I want to be represented by (select one of the six options):

a. Civilian counsel, who is (name and address).

b. An individual military counsel, who is (rank, name, and military address), if he or she is reasonably available.

c. A legally qualified military counsel detailed by the Trial Defense Service.

d. A civilian counsel, who is (name and address), and individually requested military counsel, who is (rank, name, and military

address).

e. Detailed military counsel and civilian counsel, who is(name and address).

f. I do not want to be represented by counsel.

3. I understand that the Government will not cover the cost of a civilian attorney, but military attorneys will be furnished at no cost to

me.

4. I want the following witnesses and/or evidence present at the hearing.

a. (Name and address of witness or description and location of evidence).

b. (Name and address of witness or description and location of evidence).

(Include information on where they can be contacted.)

(Accused)

(Rank), U.S. Army

Figure 2-3. Response of the accused

6 DA PAM 27–17 • 16 September 1990
Chapter 3

The Formal Investigation

3–1. General

Whenever practicable, the hearing room should be arranged so that

the witness chair faces both yourself and the accused. See figure

3–1. 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 you. You should use

a copy of DD Form 457 (fig 4–1) as a checklist in conjunction with

the provisions of this guide when conducting the investigation.

3–2. Procedure for opening session

Figure 3–2 sets forth the suggested opening session procedure with

the accused, the accused’s counsel, and the Government representative. These procedures may be varied to meet special circumstances.

3–3. Procedures for taking testimony and examining

evidence

a. Record of testimony.

(1) 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’s signatures on statements of summaries of testimony will cause

undue delay, they need not be signed by the witness, but they must

be authenticated by you. These statements should be recorded on

DA Form 2823 (Sworn Statement), given exhibit numbers, and

noted on DD Form 457, item 12a. In certain cases, the officer who

appointed you may desire to have the entire proceedings reported

verbatim by a sworn reporter. In such cases, 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 on DD Form 457, item 12a.

(2) You are not required to tape record testimony taken during

your investigation. It is not uncommon, however, for the person

acting as reporter during the investigation to record testimony to aid

in the preparation of the summary of testimony. If such recordings

of testimony are made, or substantially verbatim notes of testimony

are taken, you should ensure that they are preserved until final

d i s p o s i t i o n o f t h e c a s e o c c u r s , e i t h e r b y t r i a l o r c o n c l u s i v e

withdrawal and dismissal of the charges.

(3) 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 that a military witness

might be suspected of committing any offense, stop and advise the

witness of article 31 rights and the right to counsel.

(4) If during the taking of testimony it appears that a civilian

witness might be suspected of committing any offense, stop and

advise the witness of self-incrimination and counsel rights.

(5) You should use DA Form 3881 (Rights Warning Procedure/

Waiver Certificate) when advising military and civilian witnesses of

these rights. If the witness initially waives these rights, you may

proceed with questioning. If the witness remains silent or requests to

speak to an attorney, stop all questioning and note this fact on DA

Form 3881. You should not initiate further questioning of this witness until the witness has consulted with counsel and has consented

to further questioning after readvisement of all rights (again use DA

Form 3881). You should see your judge advocate legal advisor for

assistance in determining if it is again permissible to question the

witness.

b. Refusal 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 is incriminating or otherwise privileged, allow the witness

to consult with a judge advocate concerning the witness’s rights and

duty to testify. If the witness persists in refusing to testify, you may

give 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, you should show the

witness the previous statement and inquire into the reasons for

which he or she now refuses to make a sworn statement regarding

the same subject matter. If you determine (with the assistance of

your legal advisor, if necessary) that the witness has a privilege not

to testify, or if you have determined that there is no privilege and

ordered the witness to testify but the witness persists in refusing to

do so, you may consider the witness to be unavailable and consider

the prior sworn statement. See R.C.M.405(g)(1)(A) and Mil. R.

Evid. 804(a)(1) and (2). If it appears that any witness who is apparently essential to subsequent proceedings is subject to early disc h a r g e , t r a n s f e r , t e m p o r a r y d u t y , o r o t h e r p e r s o n n e l a c t i o n t h a t

might prevent his or her availability at a later proceeding, you

should note this fact on DD Form 457, items 16 and 21. 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. Normally, the hearing is open to the public, but

either you or the authority who directed the investigation may provide that the hearing be closed to the public. You may also decide

to restrict spectators, including members of the news media, to only

certain parts of the proceedings.You must also follow the guidelines

established in AR 340–17, chapter 5, regarding the release of certain

information to the public. In addition, prospective witnesses in the

case should not be permitted to hear or examine the testimony or

statements 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 MCM, 1984, appendix 8, page A8–13, for

a sample witness advisement.

d. Oaths. The procedure for administering the oath to a witness is

set forth in figure 3–3.

e. Examination of witnesses. A procedure for examining witnesses is set forth in figure 3–4.

f. Examination of evidence. The procedure for examining evidence is set forth in figure 3–5.

g. Inquiry into mental responsibility or capacity. If in your opinion grounds exist for inquiring into the mental condition of the

accused to determine whether the accused was mentally responsible

at the time of the acts charged or has sufficient mental capacity to

understand the nature of the article 32 investigation and to conduct

or cooperate intelligently in his or her defense, you should promptly

notify the officer who appointed you. The appointing authority will

take appropriate action. See R.C.M. 706. In addition, you should

complete DD Form 457, item 14, as appropriate.

h. Defense objections. If the defense objects to any of your decisions on procedures or otherwise objects to alleged defects in the

investigation, you are not required to rule on objections. You may,

however, take corrective action in response to an objection if you

believe such action is appropriate.If an objection raises a substantial

question about the propriety of your conducting the investigation

(such as challenging your impartiality), you should consult with

your legal advisor and inform the commander who directed the

i n v e s t i g a t i o n b e f o r e d e c i d i n g w h e t h e r a n y c o r r e c t i v e a c t i o n i s

needed. You may require a party to file any objection in writing.

You must note a party’s objection in your report (items 15 and 21)

if requested to do so. See R.C.M. 405(h)(2).

i. Closing the investigation.

(1) After you receive all the evidence and the accused and counsel have indicated that they have no further evidence to offer,

inform the accused that you do not contemplate calling any more

witnesses or receiving other evidence unless the accused or counsel

have other evidence to present or argument to make. If the accused

or counsel has no further evidence to offer, you should declare the

taking of evidence closed.

(2) The accused or counsel should be afforded the opportunity to

make a statement of what they consider an appropriate recommendation concerning the disposition of the charges in the case. You

should consider any comments made in that connection in deciding

what disposition you will recommend to the officer who directed the

investigation.You should explain to the accused and counsel that

your recommendation in the case is advisory only and is in no way

binding upon the officer who directed the investigation or upon any

DA PAM 27–17 • 16 September 1990 7
superior authorities. You should also affordcounsel for the Government, if any, the opportunity to make a statement regarding an

appropriate recommendation for disposition of the charges.

8 DA PAM 27–17 • 16 September 1990
Figure 3-1. Arrangement of room for investigation

DA PAM 27–17 • 16 September 1990 9
I.O. (To accused-counsel): This is a formal investigation into (a)certain charge(s) against (rank and name of accused) ordered pursuant to

article 32(b), UCMJ, by (rank and name of appointing authority). On (date of notification), I informed you of your right to be represented by

civilian counsel at no expense to the United States, military counsel of your own selection if reasonably available, or military counsel detailed

by the Trial Defense Service. You informed me that you (did not desire to be represented by counsel/desired to be represented by (name of

civilian counsel)/desired to be represented by (rank and name of individually requested counsel)/desired to be represented by (rank and name

of detailed military counsel)).

Let the record show that (name of civilian counsel/rank and name of individually requested military counsel who was available/rank and

name of detailed counsel) is here present with you.

((Name of civilian counsel), I ask you to step forward and enter your appearance by filling out item 7a on the official Investigating

Officer’s Report, DD Form 457).

I.O. (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 weigh and evaluate those facts and determine the truth of the matters stated

in the charge(s). I shall also consider the form of the charge(s) and make a recommendation concerning the disposition of the charge(s) that

has/have been preferred against you. I will now read to you the charge(s), which I have been directed to investigate. (At this point, the defense

may waive reading of the charge(s).) It/They is/are as follows:

Charge (I): Violation of the Uniform Code of Military Justice, (article number).

Specification (1): (the specification).

Specification (2): (the specification).

(Charge (II):(Additional Charge): Violation of the Uniform Code of Military Justice, (article number).

Specification (1): (the specification).

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 offense(s)

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

like the testimony of other witnesses.

You have previously been given a copy of the investigation file that has been compiled in your case. It contains (list all documents

contained in the case file that will be considered). It is my intention to call as witnesses in this investigation (list all witnesses who will be

called to testify at the investigation). After these witnesses have testified in response to my questions, you or your counsel 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

(name of witness) (because it has been determined that the witness is unavailable or because the witness’s commander has determined

this). I therefore intend to consider the sworn statement of the witness in my recommendations as it is contained in the file.)

I.O. (To accused-counsel): Before proceeding further I now ask you whether you have any questions concerning your right to

remain silent, concerning the offense(s) of which you are accused, your right to make a statement either sworn or unsworn, the use that

can be made of any statement you may make, your right to cross-examine witnesses against you, or your right to present anything you

may desire in your own behalf and have me examine available witnesses requested by you either in defense, mitigation, or extenuation.

(Counsel-Accused): (Yes/no).

Note. At this point, answer any questions that the accused may have with respect to rights or as to procedural or other matters concerning the investigation. You should

not proceed further until convinced that the accused understands these rights. If the accused is represented by counsel, however, the latter will generally indicate that he or she has

explained these matters to the accused and that they are understood.

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?

(Counsel-Accused): (Yes/no).

I.O. (To accused-counsel): Do you want me to call any other witness(es) in this case for cross-examination? If so, provide name(s) and organization(s) or

address(es). If you are aware of any military records that you want me to consider and that you have been unable to obtain, provide a list of these documents.

(Counsel-Accused): (Yes/no).

Figure 3-2. Procedure for opening session of the formal investigation

10 DA PAM 27–17 • 16 September 1990
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 you as the investigating officer or counsel be sworn.Interpreters must also be sworn before

beginning their duties. The oath may be administered by you in the following manner: You should raise your right hand and have the person being sworn stand with right hand raised.

You should then read or recite the appropriate oath and receive the appropriate response.

Oath for Witnesses

I.O. Do 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

I.O. Do 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 believe in the

existence of a supreme being. See R.C.M. 807. Persons who recognize special forms or rites as obligatory, and persons who do not believe 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

I.O. Do you (swear) (affirm) that in the case now being investigated you will interpret truly the testimony you are called upon to interpret (, so help you

God).

Note. When testimony is given through an interpreter, the interpreter must first be sworn. See R.C.M. 807. The interpreter must translate questions and answers in verbatim

form.

Figure 3-3. Oaths

DA PAM 27–17 • 16 September 1990 11
Introductory questions to witnesses

(Swear witness) See figure 3–3.

I.O.: State your full name and (for military witnesses: grade, organization, and armed force) (for civilian witnesses: residence address

and occupation).

WITNESS: (Complete response).

I.O.: Do you know the accused in this case?

WITNESS: (Yes/no).

Note. If the identification of the accused is not an essential part of the expected testimony of the witness, this question may be omitted. If the witness identifies the accused, the

witness should normally be asked to state the accused’s name and organization if known. 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 nonsuggestive 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, you should inquire into the basis

for the witness’s identification of the accused.

Government Witness

You determine the order of questioning of all witnesses and you may conduct the first questioning.

Note: If Government counsel is present, he or she may first examine Government witnesses, followed by cross-examination by the accused or defense counsel, then followed by

questioning by you if further clarification is necessary.

I.O.: (to witness after introductory questions): (Questions the witness about the facts of the case).

I.O.: Where were you when you saw him?

WITNESS: I was in the dayroom of my company.

I.O.: About what time was this?

WITNESS: It was approximately 0930, sir.

I.O.: Was anyone present at the time?

WITNESS: Sergeant John Smith was there, sir.

I.O.: What was the accused doing at 0930?

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

Note. When you or Government counsel have completed an examination of a witness, you should advise the accused and 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/her testimony, any knowledge possessed of the offense(s), or

concerning the witness’s 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): (Yes/no).

Note. If the accused or counsel desires the witness to be cross-examined proceed substantially as follows:

(Counsel) (Accused) (I.O.) (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 did not hear what was said before I got there.

(Counsel) (Accused) (I.O.): Did you see any gestures made during the argument by Sergeant Smith?

WITNESS: I am not exactly sure what you mean, but . . . (witness continues to describe details of the incident).

I.O. (to accused-counsel): Do you have any further questions you want this witness to answer?

(Counsel) (Accused): (Yes/no).

I.O.: The witness is excused.

Figure 3-4. Examination of witnesses

12 DA PAM 27–17 • 16 September 1990
* * * * * * * 

Calling Defense Witnesses

I.O. (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 call them at this time.

(Counsel) (Accused): (No/yes, with name(s) and address(es)).

Note. If witnesses are to be called to testify on the accused’s behalf, you should advise the accused substantially as follows:

I.O. (to accused-counsel): You may question each of the witnesses who are to testify for you (or, since you are not represented by counsel, I will question

them, if you prefer, if you will tell me generally what you want to question them about).

Note. If the accused is represented by counsel, you should assume that counsel will conduct the examination of the witness and present evidence in a planned procedure. If the

accused has elected not to have counsel at the investigation, you should permit the accused to examine or cross-examine witnesses personally if desired. The procedure for administering

the oath (fig 3–3) and for introductory questioning of the witness set forth above should be followed for defense witnesses. After the accused or counsel has completed examination of

the defense witness, or you have done so, you may cross-examine the witness.

Calling Additional Witnesses

Note. When all witnesses who were initially called have testified, you 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 follows:

I.O. (to accused-counsel): (I do not intend to call any additional witnesses.) (I intend to call (name(s)) as additional witnesses.) (I am going to recall

(name(s)) for further questioning.) Are there any witnesses you want me to recall or are there any new witnesses?

(Counsel) (Accused): (No/yes, with name(s) and address(es)).

Explanation of Accused’s Rights as a Witness

Note. After all the witnesses have testified and the accused or his counsel indicate that they have no further evidence to present, you should inquire of accused and counsel, if

the accused has not previously made a statement, substantially as follows:

I.O. (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?

(Counsel) (Accused): (Yes/no).

Figure 3-4. Examination of witnesses - Continued

DA PAM 27–17 • 16 September 1990 13
Real Evidence (Physical Objects)

I.O. (To witness): This is a knife which I have designated as (exhibit number).

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: (Yes/no).

I.O. How do you recognize it?

WITNESS: I recognize it by (witness describes how he or she 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, stating reason(s)/no).

Documentary Evidence

Authenticated Official Record

I.O. (to accused-counsel): I have SIDPERS document of (unit designation), for (inclusive dates), which I have designated (exhibit number).It appears to

be certified as a true copy by (rank, name, organization, and duty position of authenticating official). 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, stating reason(s)/no).

Figure 3-5. Examination of evidence

14 DA PAM 27–17 • 16 September 1990
Chapter 4

Completion of the Investigating Officer’s Report

4–1. Report preparation

During the investigation, you should use a copy of DD Form 457

(fig 4–1). Your notes from the investigation and the DD Form 457

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, you must put the substance of each witness’s

testimony in writing and, unless it would unduly delay completion

of your report, you should ask the witness to sign and swear to the

statement.

4–2. Considering the evidence and making a

recommendation

In many cases, you may be able to make your recommendation as

soon as the investigation closes. If so, record it in items 20 or 21 of

the working copy of DD Form 457 and then have the report typed

in final form. If you are unable to make a decision immediately, you

may have the testimony transcribed and review it before coming to

a conclusion.

4–3. Forwarding the report

a. You should attach all papers furnished to you, together with all

evidence produced at the investigation, to the DD Form 457.If

practicable, hand-carry the entire file to the headquarters of the

officer who directed the investigation.

b. Each document in the file should be in five copies. Furnishing

a copy of the investigation to the accused is not one of your

responsibilities.

c. If the accused or counsel requests a copy of the report, you

should explain that you will transmit that request to the officer who

directed the investigation. You should make a notation of the request in the “remarks”section (item 21) of your report.

DA PAM 27–17 • 16 September 1990 15
Figure 4-1. Sample DD Form 457

16 DA PAM 27–17 • 16 September 1990
Figure 4-1. Sample DD Form 457—Continued

DA PAM 27–17 • 16 September 1990 17
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