INTERVIEWING SOLDIERS
1. The Soldier's Right to Remain Silent and Right to Counsel. Whenever a Soldier is
suspected of a crime, or it is discovered that a crime may have been committed (such as
during a counseling session) – the Soldier must be advised of his rights under the
provisions of Article 31, UCMJ.
a) Any person subject to the Code of Military Justice may advise another person
subject to the Code of their Article 31 Rights by exercising General Military
Authority granted them under AR 600-20, 4-6.
b) Serious violations of the UCMJ, such as drug use, assault etc, will
immediately be referred to law enforcement officials for investigation. Commanders
and Leaders are discouraged from trying to conduct their own “investigation” in these
cases and should counsel the Soldier after they have been interviewed by law
enforcement personal.
2. The Soldier should be advised of these rights by using DA Form 3881 Warning
Procedure/Waiver Certificate.
a) The warning contained on DA Form 3881, entitled, "For civilians not subject to
the UCMJ," is the warning to be used whenever the UCMJ does not apply (i.e., when
interviewing a unit technician for conduct occurring in his or her civilian capacity).
b) If time allows, the commander should consult with the Trial Counsel prior to
interviewing a suspect.
(1) The portion of the waivers in DA Form 3881 pertaining to personnel
subject to the UCMJ should be used in all cases involving Soldiers.
(2) If the individual does not waive his right to remain silent and his right to
counsel, questioning must stop immediately.
(3) Any spontaneous or unsolicited statements by the Soldier should be
written down whether he waived his rights or not.
*NOTE Failure to advise a Soldier suspected of
committing an offense of his Article 31 rights may in
itself constitute an offense under the provisions of
Article 98, UCMJ. It may also prevent the use of his
statement at any subsequent proceedings against the
Soldier.
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APPENDIX C
