The Investigating Officer (IO)

The Oath

If your religious beliefs require you to affirm rather than swear, you have the right to "affirm" that your testimony is true. Using this right, however, raises issues that you should know about. In recent years, military courts have decided a large number of child-abuse cases. Witnesses in these cases have included very young children--sometimes even pre-schoolers--for whom the standard oath is meaningless. Military judges have therefore tried several alternatives to the traditional oath, some of which have been challenged on appeal.

The Court of Appeals for the Armed Forces has decided that, in order to be legally sufficient, an "alternative oath" must include an acknowledgment by the witness of the solemnity of the proceedings and the importance of telling the truth. This means that you may no longer be able simply to affirm that you will tell the truth, but may be asked to make a more formal affirmation.

If you or your witnesses object to this kind of "alternative oath," you will have to make some difficult decisions. Your refusal to take an alternative oath which you are offered could be construed as refusal to testify and might severely damage your claim or lead to its rejection.

Before you decide, you should seek a compromise that both you and the Investigating Officer can accept. One wording which might be acceptable is as follows:

I understand that this hearing is a serious and important proceeding. My religious (moral, ethical) beliefs require me to be truthful in my testimony at this hearing, as they require me to be truthful in all matters. I am willing to answer any questions concerning my testimony.

The last sentence is important because a sworn statement is subject to cross-examination, while an unsworn statement is not. By saying that you are willing to answer questions, you agree to let the Investigating Officer examine you, while avoiding the traditional sworn oath.

Be sure to clear any alternative oath with the Investigating Officer prior to the hearing.

Witnesses

You have the right to have witnesses testify in your support at the hearing. If you can think of people who could offer evidence of your sincerity, ask to have them testify. People who wrote supporting letters for your claim are especially important witnesses. By attending the hearing, such witnesses give additional weight to their testimony of your sincerity.

While the military won't pay for the personal or travel expenses of your witnesses, local commanders are supposed to "render all reasonable assistance in making available military members of his command requested by the applicant as witnesses." (DoD 1300.6, VI (D)(2)(c)) If you want fellow service members or officers to serve as witnesses, you should, as soon as possible, request in writing that the local command make those persons available. If your commander does not help, and if those witnesses do not appear at the hearing, you should explain in your application why you wanted them to come, attach a copy of the letter to the commander, and state that they did not appear at the hearing. All witnesses should be notified as soon as possible of the hearing date, time, and place. In addition, you will be allowed to question any other witnesses the Investigating Officer calls or who volunteer to come.

During the Hearing

Just prior to and on the day of the hearing you should meet with your counsel and any of your witnesses to prepare for the hearing. It can be particularly helpful to role play questions with your counselor to help you prepare for the hearing. You can request that your witnesses be present during the interview. If this is allowed, it could give you additional support and be especially helpful to any witness who is also a CO applicant.

Many COs find that their Investigating Officers don't know very much about conscientious objection or the procedures. So it's a good idea to be ready to take the initiative yourself. Put together a brief opening statement so you can get the conversation going if necessary. In your statement, concentrate on your beliefs--not on political issues or military hassles. Before you give your statement, though, ask the Investigating Officer whether he or she would like you to give a statement, or would rather just go ahead and base the interview on your written application.

Bring a copy of your application and any additional material, as well as a list of those who will testify and those not available for testimony. After taking the oath or affirmation, you or your counsel can review all items in the investigating officer's file and submit any new information. If the officer wants you to give a statement, you can then deliver the one you've prepared.

Usually, whether or not you give an opening statement, the Investigating Officer will have some questions to ask. Some of these are likely to be routine, such as whether you belong to a church. Others may be very difficult or hostile, like the ones in Questions Asked COs. If you don't have an answer to a question, say so and then explain why. You don't have to know the answer to every problem in order to be a conscientious objector. And sometimes, if you say honestly that you find a question difficult, your sincerity and truthfulness will impress the officer far more than a glib answer. Do make clear throughout the interview that you know you're against all war and can't be part of it.

Either before or after the questioning, you should call your witnesses, one by one. They must also take the oath or affirmation before they testify. All should state their relationship with you and why they offered to testify, and then go on.

If the Investigating Officer has summoned any other witnesses, you or your counsel can question them if necessary. After all witnesses have testified, your counsel should question you on any points the Investigating Officer did not raise.

Transcript

The regulations do not require a verbatim transcript of the IO hearing, only a summary of testimony prepared by the IO him or herself. Though DoD 1300.6 says that no verbatim transcript of the hearing is required, you should request one anyway. If the military doesn't provide a transcript, you can make your own.

Be careful in deciding how you will go about making your transcript. If, for instance, you bring along a tape recorder to the hearing or hire a court stenographer, you may intimidate the investigating officer and actually make the hearing more difficult for yourself. It's best to talk with your counselor about how to proceed. And be sure to tell the investigating officer in advance that you will be making a transcript. This is more polite, and it will cut down on the chance that the officer will go harder on you because you are making a transcript. Any transcript you make must be done at your expense, and you must provide a copy to the Investigating Officer. (The Marine Corps will not accept a tape recorded record of the hearing.)

Many lawyers feel that a record of the testimony can prove invaluable when the entire case is reviewed at department headquarters--or in federal court, should the case end up there. You can, as suggested above, use a tape recorder to make your transcript. Or you can hire a court reporter if you can afford to do so.

If no transcript has been made, the officer will summarize the hearing in his or her report. You and your counsel can submit a rebuttal statement with any disagreements you have with the Investigating Officer's interpretation of what happened. If the summary seems biased or incorrect, you may submit your own summary of the hearing.