Guest post: “The Army’s ‘New’ Investigative Standards Are Not New at All”
Today Lawfire® contributor Butch Bracknell unpacks the recent (22 Jun 2025) changes to Army Regulation (AR) 15-6, Procedures for Preliminary Inquiries, Administrative Investigations, and Boards of Officers. The media reports that the changes have raised issues among some observers, and Butch analyzes those concerns.
While AR 15-6 is limited to the Army (where it is widely used) I suspect – as Butch does – that similar changes will appear in AR 15-6’s analogues in the other services. Importantly, Butch concludes his review with very practical ideas as to how to improve these kinds of investigations.
The Army’s “New” Investigative Standards Are Not New At All
by Butch Bracknell
This week, military reporters noticed what they may view as an ominous change in the updated version of the Army’s regulation on conducting administrative investigations. Experts are concerned the changes will further discourage alleged victims of misconduct, particularly sexual harassment and assault, from making reports, while encouraging retaliation.
The Army likely brought this on itself through poor conduct of investigations and investigation management over time. If the system had been functioning as designed, and if investigating officers and legal advisors had been performing to standard consistently, these changes could have been made unnecessary. Even so, the changes likely do not really change much about the way the system actually functions.
The hubbub is all about changes to three paragraphs in Army Regulation (AR) 15-6 – edits to paragraphs 1-8, 1-9, and 1-10. These edits were driven by the Secretary of Defense’s Memorandum of April 23, 2025 entitled “Restoring Good Order and Discipline Through Balanced Accountability.” The memo directed reviews and revisions to all the military departments Equal Opportunity (EO)(military) and Equal Employment Opportunity (EEO)(civilian) programs and processes.
The Army expanded the guidance in the memo to all administrative investigations, the processes of which are governed by AR 15-6, including mishap and misconduct investigations not rising to a level that investigative jurisdiction is assumed by the Army’s Criminal Investigations Division.
These three paragraphs, collectively, reinforce the requirement for a gatekeeping function for initiation of investigations, and remind commanders of the option to hold soldiers accountable for making “knowingly” making false allegations or repeatedly submit frivolous complaints.
Revised investigatory guidance has not yet been made public for the other services. It is a safe bet it is coming, given the origin of the change was Secretarial authority.
Credible Evidence
The new requirement in AR 15-6, para 1-8.b should strike no one as unusual: “Commanders, supervisors, or other appropriate authorities, in consultation with their servicing legal advisor, should assess all available information to determine if sufficient credible information exists to warrant further fact-finding or evidence-gathering.” The term “credible information” is defined in the regulation’s glossary as:
Evidence attributable or corroborated information, in any form, disclosed to or obtained by an appointing authority or investigative authority that–considering the original source, the nature of the information, and the totality of the circumstances–is sufficient to raise a question of fact that would cause a reasonable responsible appointing authority or investigative authority under similar circumstances to inquire further. Information may be credible, even though not initially supported by a preponderance of the evidence. However, to be credible, the information must be based on more than mere speculation and not clearly contradicted by known and material facts. To be attributable, the appointing authority or investigative authority must be able to authenticate the evidence or information. To be actionable, the original source(s) of information should be reasonably valid or verifiable.
This definition virtually mirrors the definition provided in the Secretary’s Memo:
… credible evidence is defined as “evidence of attributable or corroborated information, in any form , disclosed to or obtained by a responsible official that-<:considering the original source, the nature of the information, and the totality of the circumstances- is sufficient to raise a question of fact that would cause a reasonable responsible official under similar circumstances to inquire further. To be credible, the information must be based on more than mere speculation and not clearly contradicted by known and material facts. To be attributable, the responsible official must be able to authenticate the evidence or information. To be actionable, the original source(s) of information should be reasonably valid or verifiable.
These definitions should strike no one as remotely new or novel. In fact, they describe exactly the type and quality of evidence routinely relied on in all western legal proceedings, from administrative investigations to capital trials. For example, the Federal Rules of Evidence govern the permissible introduction of evidence in federal court proceedings and make reliability the bellwether of admissibility.
Specifically, the Summary and Explanation of Federal Rule of Evidence 102 notes “…Rule 102 reminds judges, attorneys, and parties…that the primary goal of the rules of evidence is to promote fairness and justice. It encourages a balanced and flexible approach to evidence, allowing for the admission of relevant and reliable information while protecting against prejudicial or unreliable evidence.” The idea that investigations should go forward based on credible evidence is not the least bit extraordinary.
Reasons for the memo?
What is extraordinary is that the Secretary had to say it, or that he perceived he had to say it. There are likely several reasons for the memo. First, it may be that he wildly misunderstands military investigative processes and approaches the entire field with bias of the type he lays out in black and white in his hyperbolic tome, The War on Warriors.
There is little doubt some distressed servicemembers who committed some form of misconduct and are now playing victim were able to push their stories through the various “warrior-focused” spokesmen, grifters, and nonprofits inhabiting his orbit.
As his memo cites zero evidence for the existence of an out of control investigative cottage industry, he more than likely was influenced by aggrieved warriors whose marginally credible anecdotes readily substitute for evidence of a structural institutional problem.
On the other hand, it may also be because some of those anecdotes of out of control investigations are actually true – where a mere uncorroborated accusation, particularly if uttered by a sympathetic or well-connected figure, is sufficient to launch an intrusive, months long investigation that stops the career of the subject of the investigation in its tracks. There is often no screening mechanism for these inquiries: a mere allegation produces an inquiry in almost all cases.
That is where the preliminary inquiry (PI) should come in. The PI in all military investigations, not only the Army, is “ascertaining the magnitude of a problem; identifying and interviewing witness’s; summarizing or recording their statements; and [most importantly] determining whether a more extensive investigation is warranted, and…assisting in determining the scope of such investigation.”
It is designed to be a commander’s tool – a quick look at a situation, a mishap, an allegation, or other circumstance to determine whether and how to investigate further. It should not by itself be a full-blown investigation, and it should perform a screening function. Investigations without merit – i.e. not supported by “credible evidence” should be terminated at this stage.
In practice, however, that almost never happens, because investigating officers routinely exceed the scope of their limited preliminary mandate, and do not really operationalize the principle a PI officer’s function is to determine whether to continue to investigate further by conducting limited factfinding. PI officers’ roles are, upon a report of smoke or fire, to look for credible signs of smoke indicating a fire.
With the PI having met the smoke/fire evidentiary threshold, if appointed, the investigating officer’s job is to look for the fire, determine the cause, magnitude and danger posed by the fire, suggest ways to stop the fire from burning, and affix responsibility for the fire.
If PI officers had been conducing PI’s by design for years, serving not only as an evidentiary factfinder but as a gatekeeper against meritless claims, the Secretary and the Chief of Staff of the Army, the proponent of AR 15-6, likely would not have felt the need to clarify. Often an investigation is warranted, but sometimes, in specific circumstances, investigations should be killed in the cradle.
Accountability for Knowingly Submitting False Allegations or Making Repeated Frivolous Allegations
Para 1-10 of the revised AR 15-6 restates a summary of commanders’ authority that already existed, presumably for the purpose of reminding or signaling to commanders regarding their authority to hold soldiers accountable who make knowingly false or repeated frivolous allegations.
Implied in this language is the authority to take action when an individual (a) knowingly submits a false allegation – that is, an allegation that can be proven objectively to be untrue, and which was known to be untrue at the moment the allegation was made; and (b) repeated frivolous allegations – a pattern of submitting allegations that “a reasonable person [would know] has no merit, particularly allegations brought for an unreasonable purpose such as harassment.”
All knowingly false allegations are, by definition, frivolous, but presumably by creating a second category, the regulation contemplates not all frivolous allegations are knowingly false – rather they “have no merit” – a criteria left undefined by the regulation, though the terms “no merit” curiously seems to align with the concept of falsity.
These types of allegations already could be previously reached by the application of other UCMJ articles, such as Article 107, covering false official statements and false swearing (a false statement under oath but not in court), and Article 131, Perjury.
In fact, these are the types of authorities a commander would use to accept the invitation extended in Para 1-10 – no new authority is provided, only a helpful suggestion…from the Chief of Staff of the Army.
Commanders historically are reluctant to discipline complainants, however, for fear of having the disciplinary action recast as retaliation, and – more importantly – out of concern for taking a shot at disciplining a false complainer and failing.
For example, a soldier knowingly submits a clearly false complaint of sexual harassment against a supervisor, in retaliation for some duty-related slight, such as scheduling the soldier for barracks duty on a weekend.
The preliminary inquiry is conducted and the PI officer uncovers incontrovertible evidence the complaint is fictional – for example, the complainant texts a friend her plans to retaliate by making up an allegation, and the friend turns the texts over to the PI officer. The commander then offers an Article 15 UCMJ nonjudicial punishment proceeding to the soldier making the false allegation, and she demands trial by court-martial. At trial, the evidence of the texts is suppressed for some technical legal reason, or is otherwise unavailable.
The trial by court-marital fails because the government can no longer prove the “knowingly” element beyond a reasonable doubt, and now the commander has an open Inspector General complaint for retaliation.
One can understand why commanders have been gun shy, even when the morally correct course of action is to hold the untruthful complainant accountable. Para 1-10 changes none of that calculus; it mostly encourages more commanders to avail themselves of the opportunity to ruin their careers on shady and unpredictable facts.
In short, these changes to AR 15-6 (and doubtless forthcoming changes to other service investigative guidance) may simply be a tempest in a teapot. The revised language could have a knock-on effect of discouraging complaints with merit, as the language may set a tone for potential complainants in which they hear suppression and discouragement of surfacing meritorious complaints.
Tools to address shortomings
Service leadership has several tools to address the shortcomings:
a. Better training for investigating officers and legal advisors;
b. Like any other military function, holding investigating officers accountable for the diligence, quality and thoroughness of their outputs;
c. Finish the investigations and resulting decisions faster, and leave people in limbo for shorter periods of time; most investigation convening orders say the investigation is the officer’s primary duty, but most investigating officers do not treat them that way – they keep pack with their normal duties at the same time they are attempting to conduct an investigation with significant consequences for the people involved, which likely suboptimizes the performance of both tasks.
d. More deliberate application of the regulatory standards to the stages of the investigative process; and
e. More deliberate and objective disciplinary action against commanders, officers, and noncommissioned officers found to have engaged in retaliation against servicemembers for submitting complaints that are not knowingly false or frivolous at the time the complaint is made.
About the Author
Butch Bracknell is a retired Marine Corps lawyer and former NATO civilian attorney. He is an adjunct instructor at William & Mary School of Law and a Fellow of the National Institute of Military Justice. His degrees include: M.S., University of Oxford; LL.M., Harvard University; J.D., University of Maryland; and a B.A., University of North Carolina.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
