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Administrative and civil law note: TJAGSA practice note: faculty, The Judge Advocate General's School, U.S. Army
Army Lawyer, March, 2003
New Army Regulation on Fatal Training and Operational Accident Collateral Investigations and Family Presentations.
The Army has published new guidance on fatal training and operational accident collateral investigations, and presentations to next of kin. Army Regulation (AR) 600-34, effective 2 February 2003, (1) implements a congressional requirement to ensure that commands make fatality reports of service members who die in the line of duty available to family members. (2) Judge advocates must be familiar with this new regulation as it contains specific guidelines for conducting collateral investigations into these accidents and requires SJAs to support their commands in presenting accident investigation reports to family members.
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First, the regulation provides guidance on conducting collateral investigations of fatal training and operational accidents. The regulation defines a "training related death" as "an accidental loss of life associated with a noncombat military exercise or training activity that is designed to develop a soldier's physical ability, or to maintain and increase a soldier's collective combat and peacekeeping skills." (3) An "operational related death" is one "[a]ssociated with [an] active duty military exercise or activity occurring in a designated war zone or toward designated missions related to current war operations or military operations other than war, contributing directly or indirectly to the death of the soldier." (4)
Commanders must conduct these investigations under AR 15-6, (5) AR 385-40, (6) and the new regulation, AR 600-34. The most significant new requirements for conducting these investigations are the timelines for completing investigations and the interim reporting requirements when investigations are not completed within the required time period. The regulation requires the investigating officer to submit the report of investigation to the appointing authority (7) within thirty days from the date of the accident. In response to a written request showing good cause, the appointing authority may grant the investigating officer delays, but only in ten-day increments. (8) If the appointing authority grants an extension, he is responsible for the release of status information from the investigation, first to the primary next of kin (PNOK) (9) and then to the public, if necessary. (10) The regulation requires the legal office to review each update and the final presentation to ensure that they do not contain any admission of liability, waiver of a defense, offer of compensation, or statement that might jeopardize the Army's litigation posture. (11)
Once the collateral investigation is complete, the new regulation requires the appointing authority to offer a family presentation based on the report of investigation to adult PNOK on all fatal training and operation accidents, as well as suspected cases of friendly fire and special interest cases of probable high public interest, as determined by The Adjutant General. (12) The PNOK must receive the report of investigation first, followed by members of Congress and local civic officials whose constituents were casualties, and finally, the media. (13)
The appointing authority must coordinate the appointment of a briefer, who is most often the deceased soldier's colonel or brigade-level commander. (14) At a minimum, the briefing team consists of a briefer, the family's casualty affairs officer, and a chaplain from the unit in which the mishap occurred. The team may also include a legal advisor or public affairs officer if a family has invited, or may invite, a family legal representative or local media members to attend the presentation. (15)
The new policy requires the briefer to present facts to the family in three areas. First, the briefer must provide an explanation of the unit's mission, focusing on the soldier's significant contributions to the unit, its mission, and the Army. The briefer must then give an accurate account of the facts and circumstances surrounding the accident, focusing on releasable portions of the collateral investigation report. (16) Finally, the briefer must explain any corrective action that the Army has taken. (17)
The SJA or legal advisor performs several reviews before the presentation. The SJA or legal advisor redacts the collateral investigation report as necessary to comply with the Privacy Act and Freedom of Information Act (18) and prepares copies for the family members. The SJA must also prepare a letter to the family explaining the reasons for the redaction. (19) The SJA or legal advisor also conducts a legal review of all materials that the briefer intends to use during the rehearsals and the actual presentation, including bullet briefing charts, notes, and executive summaries. (20) If family members ask questions during the presentation that are appropriately answered by a legal advisor, the briefer must forward the questions to the legal advisor, who may follow up directly with the PNOK. (21)
