Army Memo: Appointment of Investigating Officer

DEPARTMENT OF THE ARMY 21-)_ BRIGADE, 4 TI INFANTRY DIYISON (MECHANIZED)
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BAQUBAH AaFIELD. IRAQ
23 November 2003AFYB-AR-CDR
MEMOZANDUM FOR MAJ Headquarters and Headquarters Company. 2d Brigade,, 4-1h Infantry Division (Mechanized), Fort Hood, Texas 76544
SUBJECT: Appointment of Investigating Officer
1.
You are hereby appointed as an investigating, officer to conduct a formal investigation pursuant to AR 15-6 (Procedures for Investigating Officers and Boards of ficers) on the circumstances surrounding the capture and detention of and his two sons

on 22 November 2003.

2.
All witness statements will be sworn and recorded on DA Form 2823 if possible and you will obtain Privacy Act Statements from all witnesses who complete a written statement. If, in the course of your investigation, you come to suspect that an individual may be criminally responsible, you will advise that individual of their rights under Article 31, UCMJ, or the Fifth Amendment as appropriate. Use the DA Form 3881 to advise soldier of rights.

3.
Legal advice and assistance must be obtained from the Office of the Staff Judge Advocate before you take any action on this matter. Consult with your legal advisor (CPT HHC, 2d BCT) prior to your investigation. You will familiarize yourself with the provisions of AR 15-6 and the Guidt ror Informal 15-6 Investigations.

4.
Your report, together with all evidence marked as exhibits, will be submitted to me on DA • Form 1574 no later than 2000 hours on 30 Nesqem\ber 20031 Submit any requests for delay to me

m . t, .
either orally or in writing. You will obtain a legalle review prior to submitting the completed investigation.
J.. COL, AR Commanding
DOD FINAL 222

For use of this hat, see AR 15-5; the proponent agency is OTJAG.
IF-MORE SP.4CE IS REQUIRED Di FILLING OCT . ,!.1' PORTION OF THIS FORM. ATTACH ADDITION-1. SHEETS SECTION I • APPOINTMENT
_ . . . . .
ammancier, 2d Brigade, 4th Inrantry Division (Mechanized), Baqubah. Iraq
Appointed`t1)1"ri
._., .-
..'Appointing authority)
23 NOV03/25_NOV 03
on attach indlositre 1.-Letter of appointment or summary of oral appointment dara.) (See para 3-15. AR 15-6.)
(Date)— ,
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- SECTION II • SESSIONS
The (investigation) (board) commenced at Baqubah, Iraq at 0900
(Place) (Time)

on 24 NOV03 (If a formal board met for more rhan one session, check here ¦ . Indicate in an inclosure the rime each session began and(omn i
ended, the place. persons present and absent, and explanation of absences, if any.) The following persons (members, respondents, counsel) were
present (Alter each name, indicate capacity, e.g., President, Recorder. Member. Legal Advisor.)

Major HHC, 2d Brigade, 4th Infantry Division, Investigating Officer
Tile following persons (members, respondents, counsel) were absent: (Include brief explanation of each absence.) (See paras 5-2 and 5-8a, AR 15-6.)
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The (investigating officer) (board) finished gathering/hearing evidence at 0900 on 4 DEC 03
(Time) (Dare)

and completed findings and recommendations at 1600 'o4 DEC 03
on
(Time) (Dare)
SECTION III - CHECKLIST FOR PROCEEDINGS
A. COMPLETE IN ALL CASES YES I NO-u!I
lnclosures (para 3-15, AR 15-6) 1
Are the following inclosed and numbered consecutively with Roman numerals. (Attached in order listed)
a.
The letter of appointment or a summary of oral appointment data?

P.
Copy of notice to respondent, if ally? (See item 9. below)

.
Other correspondence with respondent or counsel, if any?
i d. All other written communications to or from the appointing authority?
e Privacy Act Statements (Certificate, if statement provided orally)?

I. Explanation by the investigating officer or board of any unusual delays. difficulties. irregularities, or other problems
encountered (e.g., absence of marerial witnesses)?

g. Information as to sessions of a formal board not included on pace 1 of this report?
iiiAny other significant papers (other than evidence) relating to administrative aspects of the investigation or board?
`OOT VOTES 1. Lipiain all negative :v'swers on an attached sheer. _ .
2 L se of Inc :VA column constitutes a positive representation ;hat the rnylonstantes described in the question did not occur in iilts investigation
or soma
DOD FINAL 223
2 Exhibits (hard 346. :-IR 15-6ii
a.
Are all items offered (whether or nor received)ior considered as evicienti individually numbered or lettered as
exhibits anti attached to this report?

b.
is an index of alt exhibits offered uli,cMconsiciered by investigating officer or board attached before the first exhibit?

Ha , rile TecTIMCW.y ,T5te!llt!li ¦ , 1,,`aCr. itheco been recorded verbatim or beer reduced it `Vrirrtr. fcrrn and attached as
at ex:-fl-,7? ,

d. Are copies. descriptions. or depictions fif.subsnruted for real or documentary evidence)iproperly authenticated and is
the location of the original evidence inchcated?
i e.iAre descriptions or diagrams included of loCations visited by the investigating officer or board (para 3-66, AR 15-6)'

! fiIs each written stipulation anached as an exhibit and is each oral stipulation either reduced to writing and made an
exhibit or recorded in a verbatim record? .. -:

p.iIf official notice of-any matter was taken ove• the objection of a respondent or counsel. is a statement of the matter
of which official natice was taken attached as an exhibit (pain 3-16d. AR I5-6)?

3 Was a quorum prese:nt when the board voted on findings and recommendations (paras 4-1 and 5-26, AR 15-6)?
B. COMPLETE ONLY FOR FORMAL BOARD PROCEEDINGS (Chapter 5, AR 15 -6)
4 At the initial session. did the recorder read, or determine that all participants had read. the letter of appointment (para 5-3b, AR 15-6)
5iWas a quorum present at every session of the board (para 5-2b. AR 15-6)?
6ol Was each absence of any member properly excused (para 5-2a, AR 15-6)?
7iWere members. witnesses, reporter, and interpreter sworn, if required (pare 3-1, AR 15-6)?
S If any 'members who voted on findings or recommendations were not present when the board received some evidence,

does the inclosure describe how they familiarized themselves with that evidence (para 5-2d, AR 15-6)?
C. COMPLETE ONLY IF RESPONDENT WAS DESIGNATED (Section II, Chapter 5, AR 15 -6)
9 Notice to respondents (para 5-5, AR 15-6):
a.iIs the method and date of delivery to the respondent indicated on each letter of notification?
b.iWas me date of delivery at least five working days prior to the first session of the board?
Does each letter of notification indicate —

(1)
the date. hour. and place of the first session of the board concerning that respondent?

(2)
the mane; to be investigated, including specific allegations against the respondent, if any?

(3)
the respondent's rights with regard to counsel?

(4)
the name and address of each witness expected to be called ba the recorder?

(5)
the respondent's rights to be present, present evidence. and call witnesses?

d.iWas the respondent provided a copy of all unclassified documents in the case file?
a,iIt there were relevant classified materials. were the respondent and his counsel given access and an opportunity to examine them?

le ; If any respondent was designated after die proceedings began (or otherwise was absent during pan of the proceedings). : a.iWas he properly notified (pare 5-5,:44.15-6)?
0. Was record of proceedings and evidence received in his absence made available for examination by him and his counsel (para 5-4c. AR 15-6)? :1iCounsel (para 5-6. AR 15-6t:
i a.iWas each respondent represented by counsel?
Name and business address of counsel

(If counsel is a Lawyer, check herei7 )
b.
Was respondent's counsel present at all open sessions of the board relating to that respondent?

c.
If military counsel was requested but not made available, is a copy (or, if oral, a summery) iof the request and the
action taken on it included in the report (para 5-66, AR 15-61?

12 !.if the respondent challenged the legal advisor or any voting member for lack of impartiality (pare 5-7; AR 15-6):
• C.' Was the challenge properly denied and by the appropnatt officer?
' b. Did each member successfully challenged cease to participate in the proceedings?

I3 Was the respondent given an opportunity to (para 5-8a, AR 15-6):
aiBe present with his counsel at all open sessions of the board which deal with any matter which concerns that respondent?
biExamine and object to the introduction of real and documentary evidence, including written statements?

. Object to the testimony of wimesses and cross-examine wimesses other than his own?
d. Call witnesses and otherwise introduce evidence?
; e Testify as a witness?
Make or have his counsel make a final statement or argument (pare 5-9. AR 15-6)'

14 It requested. did the recorder assist the respondent in obtaining evidence in possession of the Government and in arranging for the presence of wimesses (para 5-86, AR 15-6)?
-5 ; Are all of the respondent's requests and objections which were denied indicated in the report of proceedings or in an
inciosure or exhibit to it (para 5-11, AR 15-6)?

FOOTNOTES.iI Erptcan all negative answers on an attached sheet.
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'-'_-' Lie of :he Nil: C011.117711constitutes a positive representation that the circumstances described in the question did not occur i» this investigation n, snare. i Psig ,/ 2 of 4 par/es. DA Form 1574, Mar 8.3
DOD FINAL 224
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DOD 57811

The (investigating officer) (board). having carefully considered the evidence. finds: Findings (Appointment Letter Date? '23 November 2003)' -Two of The three Iraqis cncirtired 7..1 22 November 2903 sustained '..^nificari Iran= tr_i the head gfter bein­588th Engineer Battalion. may have received some of their injuries while the assault team was sweeping through the house. after direct fire contact was initiated by the Iraqis. Video images and sworn statements do not prove or disprove
-The CPT li;N/ to The ic was,a reaction a er left eve took place outsiligiouse. grabbed CPT weapon w tle ked in the left side of the heat was Irvin ,' to secure and hand
the prisoner.
-Not_all injuries sustained by were a result of him resisting arrest.
-Not all injuries sustained by were a result of him resisting arrest and grabbing CPT. weapon.

-PFC admitted under oath, after being read his rights, that he kicked in the back of the head while the u was transporting the prisoners from FOB Gabe to FOB Warhorse on 22 November .4. J.
-PFC admitted under oath, after being read his rights, that he struck in the back of the head with his hand w the unit was transporting the prisoners from FOB Gabe to FOB Warhorse on 22 November 2003.
-One injury sussa. y was not unaccounted for from this investigation. A cut to lower left lip did not appear in •
video footage of at the Badger Detention Facility at 220500C The cut does appear on a photo taken by 978th MP Company at FOB Warhorse Detention Facility at 221651CNOV03. medical treatment records fr*III -88th Engineer Ba: Aid Station did not reflect a cut to the lower lip. E Company, 204th FSB Aid Station reflected the cut to MB lower left lip. Th injury occurred after 0500 hours and before 1726 hours on 22 November 2003. No one admitted to striking in the mouth an during this time.
" Findings (Appointment Letter Dated 25 November 2003) SEE ATTACHED PAGE
SECTION V - RECOMMENDATIONS (para 5-11. AR 15-6) in view of the above findings, the (investigating officer) -(tri5V8) recommends:
Recommendations (Appointment Letter Dated 23 November 2003)
-CPT Alpha Company Commander, 588th Engineer Battalion, be issued a letter of reprimand for failure to safegua: e nemy prisoners of war on 22 November 2003, violation of AR 190-8, paragraph 2.a.
-PFC receive non-judicial punishment for striking an enemy prisoner of war, who was handcuffed and sitting in the of a vehicle, while being transported to FOB Warhorse on 22 November 2003.
-PFC receive non-judicial punishment for striking an enemy prisoner of war, who was handcuffed and sitting in th hack of a vehicle. while being transported to FOB Warhorse on 22 November 2003.
-.Ali soldiers who participated in the raid and transfer of prisoners on 22 November 2003 be individually counseled by the Compan: Commander and First Sergeant (verbal and written) on the proper handling of enemy prisoners of -war.
Recommendations (Appointment Letter Dated 25 November 2003) SEE ATTACHED PAGE
DOD FINAL 225

THIS REPORT OF PROCEEDINGS IS COMPLETE AND ACCURATE. elf any voting member or the recorder .fails to stn iiere it Sectwi: helow. indicate the reason in the space where his signature should appear.) .
(Recorder) (Investigating Officer) (President,
(Member) (Menthe!)
(Member) (Member)
SECTION VII MINORITY REPORT (intro 3-13, .4R 15-6)
To the extent indicated in Inclosure , the undersiened do(es) not concur in the findings and recommendations of the board.
(In the inclosure, identify by number each finding and/or recommendation in which the dissenting member(s) do(es) not concur. State the reasons for disagreement. Additional/substitute findings and/or recommendations may be included in the inclbsure.)
(Member) (Member)
-SECTION VIII ACTION BY APPOINTING AUTHORITY (para 2-3. AR 15-6)
The findings and recommendations of the (investigating officer) (beard) are eapprt,ved) (disappr-oved) (approved with following exc-epriens/
substitutions). (If the appoinnng authority returns the proceedings to the investigating officer or board for further proceedings or
corrective action, attach that correspondence (or a summary, if oral) as a numbered inclosure.)

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DOD FINAL 226