Misc Pub 27-8 Legal Handbook Commander’s 2019


Evidentiary standards and presumptions



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CommandersLegalHandbook
ArmyDemLogProgramBriefing-Jan17
8. Evidentiary standards and presumptions
Soldier is presumed ILD UNLESS rebutted by a preponderance of evidence contained in the investigation. This means the Investigating Officer has to overcome that presumption and show appropriate evidence that the Soldier was NLD. A finding or determination must be supported by a greater weight of evidence than supports a contrary conclusion.
9. Timeline for Active Component Soldiers
• Informal 60 calendar days after incident Formal 180 calendar days after incident.
NOTE: updates required every 30 days (see DODI 1300.18)
10. Procedural Due Process Requirements
During Evidence Collection Soldier is not required to make a statement against interest. Soldier must be advised that he or she does not have to make a statement against interest. If Soldier is not informed of her right not to make statement, or is forced to make statement, the statement cannot be used in making the LOD determination (10 USC § 1219).
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Regarding Adverse Findings Investigating officer must provide Soldier with written notice of proposed adverse finding, a copy of the investigation, and the supporting evidence. Investigating officer must issue warning regarding making statements against interest. Investigating officer must give a reasonable opportunity to reply in writing and to offer rebuttal. If investigating officer receives a response, it must be considered before finalizing findings. If investigating officer does not receive a response, the investigating officer may proceed to finalize the findings.
Formal investigations must receive a legal review before a final determination is made. Informal investigations may receive a legal review but it is not required. (Para. 3-6 & 4-5)
11. Final Approving Authority (GCMCA or Field Grade Designee) Deci-
sion
Final approving authority either approves or disapproves the finding under the authority of the Secretary of the Army. The report must be forwarded to the service member through his command. The transmittal letter must notify the service member of his right not to make a statement against interest and of his appellate rights.

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