Disciplined After a Command Directed Investigation? Read This.

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Editor’s Note: a trend noted within the US Air Force the past few years is the use of Command Directed Investigations (CDIs) as a basis to impose legally binding consequences on airmen through administrative actions such as reprimands, counseling letters, referral performance reports, and non-judicial punishment proceedings. CDIs are not performed by professional investigators or individuals with law enforcement backgrounds. They lack a standard of evidence or a binding set of rules governing how they are done. As a result, they’ve become a prime channel by which some commanders cover their tracks, settle scores, and establish legitimate (if not strictly legal, moral, or ethical) grounds to end the careers of those they disfavor. It is by this process that airmen of all ranks find themselves suffering ruinous punishments without having been found guilty of anything. Enough have been victimized at this point that there is a growing movement to push Congress for legislative reform. It’s not a trivial effort. This article, submitted without attribution by someone who had his career ended by a corrupt CDI, offers a perspective and appeals for information to help build the case.

Over the past few years, there have been a number of high profile cases involving the firing of Squadron Commanders under questionable circumstances.  The stories, which have been chronicled on this site and others, have highlighted the abuse of authority by superior commanders with regards to their apparent sole discretion and arbitrary use of the Commander-Directed Investigation (CDI) process to somehow justify their decision upon removing a subordinate commander.  In an alarming number of these cases, the CDI has been exposed as a corrupt and biased process without any oversight.  The CDI appears to receive a rubber stamp of approval from the local legal office (JA) as “legally sufficient” despite a lack of adherence to any published guidance.  Furthermore, those who have been subjected to firing, investigation, and negative “administrative” actions which are often career-ending, have also been denied access to the collected investigative information.

Several high-profile cases have illustrated, both through true stories and satirical pieces, how the CDI process has become an instrument of abuse and exploitation.  As the saying goes “absolute power corrupts absolutely,” and if not held to a minimum standard of conducting an investigation in compliance with published guidance, commanders will continue to wield the CDI as a tool of their uncontested authority.  Without an unbiased and transparent process for redress, the subject of such investigations will continue to perish, both personally and professionally, under this quasi-legal process which is dispensed behind closed doors and hidden in the shadows of what are considered “non-punitive administrative actions.”  We should all be concerned with the use and abuse of this type of investigation and with the bureaucratic processes that aim to protect the actions of the superior commander without affording the subject of the investigation any rights to due process or means for defending themselves. 

While the Secretary of the Air Force (Sec AF) has provided specific guidance with instructions and recommendations on conducting “prompt, fair and objective investigations,” it falls short of being a mandatory Air Force Instruction.  In many cases, actions by the ordering commander, the appointed investigating officer (IO), superior commanders, as well as the local legal staff have contributed to the corruption of the CDI.  The published Sec AF’s guide provides a framework for how a CDI should be conducted to ensure that the collection of evidence is free from innuendo, supposition, or rumor, and rather based on specific corroborated facts gathered during an impartial investigation.  But this is only possible if the guidance is followed.  Unfortunately, as seen in recent cases, there seems to be very little adherence to this published guidance, and commanders have unchecked latitude in conducting and overseeing, as well as biasing and influencing their investigations.  Even less fortunate is the fact that within its own otherwise rational and comprehensive guidance, the Sec AF’s CDI guide ultimately defers to the ordering commander and the local legal office for “specific instruction,” which provides for their personal interpretation and sole discretion, since no other formal or established “instruction” exists.  Without the benefit of a third party providing oversight and/or guidance, completely independent and removed from the influence of the local command, the CDI can easily devolve into a box to tick upon firing a commander, and nothing more than an attempt to justify an outcome that has already been pre-determined by the ordering commander.  “Oversight,” in the sense of a means to assure the provision of a fair and just process with checks and balances, is simply non-existent.

Although the local legal office is at the disposal of both the ordering commander and the IO to ensure the process proceeds as recommended in the published guidance, it appears that they offer little more than a rubber stamp of approval of “legal sufficiency” rather than any valuable guidance, critique, or oversight to ensure legal fairness and due process for the accused.  And, despite an appointment letter which specifically advises the IO to “follow the guidance in the Commander-Directed Investigation Guide,” investigations during which the IO gathers and uses witness opinion in lieu of fact-finding, offers his/her own opinion in support of gathered information, and fails to meet the standard of thoroughness all seem to be the norm.  In at least one recent case, senior leadership openly sided against the accused before the investigation had even begun, influencing any future witness statements and biasing the entire process.  In that case and in a number of others, when challenged on the quality and legitimacy of the CDI, the hierarchy of the military establishment appears to have closed ranks and protected itself hiding behind the veil of the legal office.  A simple statement that the CDI was found to be “legally sufficient” is all the justification they provided no matter how many glaring deviations the CDI had taken from the recommendations in the Sec AF’s guide that should have rendered it “legally insufficient.”  The subject of the investigation is left with no meaningful course for redress and his/her efforts are even further thwarted when they are eventually denied any access to the facts of the investigation as the legal office invokes generic Freedom of Information Act (FOIA) protection and exemption.  Astonishingly, even facts collected that are supposedly the basis of evidence of wrongdoing or actions that warranted the initiation of the CDI have been withheld as part of the investigative process, which is contrary to published guidance, and access is later denied upon any FOIA requests.

One way of instilling trust and confidence in this administrative process is to provide procedures that are open and transparent, that have appropriate third-party oversight, and whose legitimacy and sufficiency are measured at the very least by compliance with existing published and approved written guidance.  Several cases already have the attention of the Senate Armed Services Committee and key congressional representatives.  In an effort to further advocate for needed reform, we are interested in collecting information regarding ongoing and past CDIs that exemplify any measure of misuse and/or abuse.  If you, or anyone that you might know, have been the victim of an abusive and/or flawed CDI we want to hear from you.  If you have requested through the FOIA process and have been denied access to evidence, witness statements, or the CDI report itself, we would appreciate your testimony.  Any media reports, congressional reports, inspector general reports, personal accounts, etc. would all be most helpful.  Please provide your name and contact information as well as a brief paragraph of your case details.  If you would like your personal information held in confidence we will ensure your anonymity as requested.  Simply provide the circumstances surrounding your case by contacting us at militaryjusticereform@gmail.com.

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