38-2-1032. Investigation; cross-examination; effect of failure to perform.

No charge or specification shall be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made unless such investigation has been waived in writing by the accused after consultation with his or her defense counsel. Such investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.#

The accused shall be advised of the charges against him or her and of the right to be represented at the investigation provided for by subsection (a) of this Code section by counsel. The accused has the right to be represented at such investigation as provided in Code Section 38-2-1038 and in regulations prescribed under that Code section. At such investigation, full opportunity shall be given to the accused to cross-examine witnesses against him or her, if they are available, and to present anything relevant he or she may desire in his or her own behalf, either in defense or mitigation, and the investigating officer shall examine available relevant witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.#

If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b) of this Code section, no further investigation of that charge shall be necessary under this Code section unless it is demanded by the accused after he or she is informed of the charge. A demand for further investigation shall entitle the accused to recall witnesses for further cross-examination and to offer any new relevant evidence in the accused’s own behalf.#

If evidence adduced in an investigation under this Code section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused is:#

1. (1)

   Present at the investigation;#

2. (2)

   Informed of the nature of each uncharged offense investigated; and#

3. (3)

   Afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b) of this Code section.#

The requirements of this Code section shall be binding on all persons administering this article, but failure to follow them shall not constitute jurisdictional error.#