Article 32 Proceedings re: Investigating Officer's Report on Charges Against Sergeant Scott A. McKenzie

INVESTIGATING OFFICER'S REPORT
(Of Charges Under Article 32, UCMJ and R. CM. 405, Manual for Courts-Martial)
la. FROM: (Name of nvestigating Officer -b. GRADE C. ORGANIZATION d. GATE OF REPORT Last, First, MI) 220TH MILITARY POLICE BRIGADE APO AE 09366
',1(4)-2)

0-5/LTC
(7) ti) 2-

2a. TO: (Name of Officer who directed the -b. TITLE C. ORGANIZATION investigation - Last, First, MI)
BRIGADE COMMANDER 800TH MILITARY POLICE BRIGADE APO AE 09366
KARPINSKI, JANIS L.
3a. NAME OF ACCUSED (Last, First, MI) b. GRADE c. SSN (* ..: 5 713)-ed. ORGANIZATION e. DATE OF CHARGES
320TH MILITARY POLICE BN MCKENZIE, SCOTT. A. E-6
(Check appropriate answer) YES N
4.
IN ACCORDANCE WITH ARTICLE 32. UCMJ, AND R.C.M. 405, MANUAL FOR COURTS-MARTIAL I HAVE INVESTIGATED THE CHARGES APPENDED HERETO lExhibil 1)

5.
THE ACCUSED WAS REPRESENTED BY COUNSEL III not, see 9 below) X

6.
COUNSEL WHO REPRESENTED THE ACCUSED WAS QUALIFIED UNDER R.C.M. 405(d)(2), 502(d)

X
X
7a. NAME OF OUNSEL I, First, MI) 0*-Z - * Z b. GRADE 0-3/CPT Cie. NAME OF ASSISTANT DEFENSE COUNSEL NA (If any) b. GRADE
c. ORGANIZATION (If appropriate) c. ORGANIZATION (If appropriate)
US ARMY TRIAL DEFENSE SERVICE NA
REGION VIII, VICENZA FIELD OFFICE
d. ADDRESS (If appropriate) d. ADDRESS (If appropriate)
APO AE 09630 NA

9. (To be signed by accused if accused waives counsel. If accused does not sign, investigating officer will explain in detail in Item 2) )
a. PLACE b. DATE
I HAVE BEEN INFORMED OF MY RIGHT TO BE REPRESENTED IN THIS INVESTIGATION BY COUNSEL, INCLUDING MY RIGHT TO CIVILIAN OR MILITARY COUNSEL OF MY CHOICE IF REASONABLY AVAILABLE. I WAIVE MY RIGHT TO COUNSEL IN THIS INVESTI- . CATION.
c. SIGNATURE OF ACCUSED
10. AT THE BEGINNING OF THE INVESTIGATION I INFORMED THE ACCUSED OF: (Check appropriate answer) YES
a. THE CHARGES) UNDER INVESTIGATION
X
b. THE IDENTITY OF THE ACCUSER
X
c. THE RIGHT AGAINST SELF-INCRIMINATION UNDER ARTICLE 31
X t THE PURPOSE OF THE INVESTIGATION
e.
THE RIGHT TO BE PRESENT THROUGHOUT THE TAKING OF EVIDENCE

I.
THE WITNESSES ANO OTHER EVIDENCE KNOWN TO ME WHICH I EXPECTED TO PRESENT

X
p. THE RIOT TO CROSS-EXAMINE WITNESSES
X
h. THE RIGHT TO HAVE AVAILABLE WITNESSES AND EVIDENCE PRESENTED
X
i. THE RIGHT TO PRESENT ANYTHING IN DEFENSE, EXTENUATION, OR MITIGATION
X
j. THE RIGHT TO MAKE A SWORN OR UNSWORN STATEMENT. ORALLY OR IN WRITING
X 11a. THE ACCUSE) ANO ACCUSED'S COUNSEL WERE PRESENT THROUGHOUT THE PRESENTATION OF EVIDENCE (If the accused or counsel were absent during any pan of the presentation of evidence, complete b below.) X
b. S LA ft DiELIHLUMS FAKES AND DESL'RIBE THE PROCEEDINGS CONDUCTED IN THE ABSENCE OF ACCUSED OR COUNSEL
NOTE: If additional space is required for any item, enter the additional material in Item 21 or on a separate sheet Identify such material with the proper numerical and, it appropriate, lettered heading (Example: '7c".1 Securely attach any additional Sheets to the form and add a note in the appropriate Item of the form: "See additional cheat"
_
ORM 457, AUG 84 EDITION OF OCT 59 IS OBSOLETE.
o us CO--
DOD 14457

12a. THE FOLLOWING WITNESSES TESTIFIED UNDER OATH: (Check appropriate answer)
GRADE (If any)
E-6/SSG

E-5/SGT E-4/SPC E-5(SGT E-4/SPC E-4/SPC
YES NO
X X X X X
X
X
X X .X X X
X
X
X
X
X
X
X

X

NAME (Last. First, MO IIIIIIIIIIIIIIIIF
IIIIIIIIIIIIII.r
11111111111111—.(&41-Y */ IIIIIINNIIIV.7() c
b.
THE SUBSTANCE OF THE TESTIMONY OF THESE WITNESSES HAS BEEN REDUCED TO WRITING AND IS ATTACHED. 13a..THE FOLLOWING STATEMENTS, DOCUMENTS. OR MATTERS . INERE CONSIDERED; THE ACCUSED WAS PERMITTED TO

ORGANIZATIDNIADDRESS (Whichever is appropriate)
223rd MP COMPANY 223rd MP COMPANY 223rd MP COMPANY 223rd MP COMPANY 320th MP BATTALION 320th MP BATTALION

EXAMINE EACH.
DESCRIPTION OF ITEM

#1:SWORN STATEMENT, SG T,41111111111
DTD 14 MAY 03 #2:AIR, SA MANORA IEM, 14 MAY 03 #3:SWORN STATEMENT, SPAIIIMr,,,
DTD 14 MAY 03 #4:SWORN STATEMENT,M11111
DTD 14 MAY 03 #5:SWORN STATEMENT, SP #6:EPW MANIFEST, 744th MP BN,
DTD 12 MAY 03
LOCATION OF ORIGINAL (If not attached)

OSJA, CFLCC, Camp Doha, KU OSJA, CFLCC, Camp Doha, KU
..1 _1 OSJA, CFLCC, Camp Doha, KU.0:06:0-1)\-0) 4' OSJA, CFLCC, Camp Doha, KU OSJA, CFLCC, Camp Doha, KU
I

OSJA, CFLCC, Camp Doha, KU .j
b. EACH ITEM CONSIDERED. OR A COPY OR RECITAL OF THE SUBSTANCE OR NATURE THEREOF, IS ATTACHED.•
14..THERE ARE GROUNDS TO BELIEVE THAT THE ACCUSED WAS NOT MENTALLY RESPONSIBLE FOR THE OFFENSEIS) OR NOT COMPETENT TO PARTICIPATE IN THE DEFENSE. (See R.C.M. 909, 916(k).)
15.
THE DEFENSE DID REQUEST OBJECTIONS TO BE NOTED IN THIS REPORT (If Yes, specify in Item 21 below.)

16.
ALL ESSENTIAL WITNESSES WILL BE AVAILABLE IN THE EVENT OF TRIAL

17.
THE CHARGES AND SPECIFICATIONS ARE IN PROPER FORM

18.
REASONABLE GROUNDS EXIST TO BELIEVE THAT THE ACCUSED COMMITTED THE OFFENSEIS) ALLEGED

19..I AM NOT AWARE OF ANY GROUNDS WHICH WOULD DISQUALIFY ME FROM ACTING AS INVESTIGATING OFFICER,
(See R.C.M. 405(d)(.1).
20. I RECOMMEND:
a. TRIAL BY.. SUMMARY. . SPECIAL. Eil GENERAL COURT-MARTIAL —
b. . OTHER (Specify in Item 21 below)
21. REMARKS (Include, as necessary, explanation for any delays in the investigation, and explanation for any "no" answers above.)
SEE ATTACHED CONTINUATION SHEET
•

i
r
,
(4) --/ ) (7)(e) /
22a. TYPED NAME OF INVESTIGATING OFFICER. b. GRADE c. ORGANIZATION
220th MILITARY POLICE BRIGADE

•.. 0-5/LTC •
APO AE 09366

d. SIGNATU1Pf INVESTIGATING WI e. DATE
01280"1"

DOD 14458

CONTINUATION SHEET, DD FORM 457, INVESTIGATING OFFICER'S REPORT Item 12a, Witnesses
E-4/SPC.744th MP BATTALION.YES E-7/SFC.744th MP BATTALION.YES E-5/SGT.744th MO BATTALION YES E-6/SSG.314th MP COMPANY.YES E-4/SPC.314th MP COMPANY.YES E-4/SPC.314th MP COMPANY.YES E-4/SPC.314th MP COMPANY.YES EPW.CAMP BUCCA, IZ.YES EPW.CAMP BUCCA, IZ.YES EPW.CAMP BUCCA, IZ.YES EPW.CAMP BUCCA, IZ.YES
W.CAMP BUCCA, IZ.YES EPW.CAMP BUCCA, 1Z.YES EPW.CAMP BUCCA, IZ.YES
EPW.CAMP BUCCA, IZ.YES

EPW CAMP BUCCA, IZ YES
SA CID, CAMP BUCCA, IZ YES
SA CID, CAMP BUCCA, 1Z YES
SA CID, CAMP BUCCA, IZ YES
SA CID, CAMP BUCCA, IZ YES
0-4/MA.1 800th MP BRIGADE.YES
E-4/SPC 320th MP BATTALION.YES
E-4/SPC 320th MP BATTALION YES

E-4/SPC.223rd MP COMPANY.YES

By Telephonic Interview:
SA. YES
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CONTINUATION SHEET, DD FORM 457, INVESTIGATING OFFICER'S REPORT Item 13a, Witnesses
(bk - (f
#7: SWORN STATEMENT, SS OSJA, CFLCC, CAMP DOHA, KU.YES DTD 15 MAY 03
#8: SWORN STATEMENT, MSGIIIIIPt.OSJA, CFLCC, CAMP DOHA, KU .YES
• DTD 16 MAY 03
#9:AIR, SAMMIllin OSJA, CFLCC, CAMP DOHA, KU.YES DTD 14 MAY 03
it #10:SWORN STATEMENT, SP.111111111p,..,.OSJA, CFLCC, CAMP DOHA, KU.YES
• DTD 15 MAY 03
#11: SWORN STATEMENT, SSG K. McKENZIE .OSJA, CFLCC, CAMP DOHA, KU.YES DTD 16 MAY 03
(WO-5--#12: SECOND SWORN STATEMENT, SPC 1111111111--OSJA, CFLCC, CAMP DOHA, KU.YES DTD 15 MAY 03
/...
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CONTINUATION SHEET, DD FORM 457, INVESTIGATING OFFICER'S REPORT
.

SSG Scott A. McKenzie411111111111 (4.4?) 5"
Item 21, Remarks
1.
Twelve pieces of evidence were submitted during the hearing. The evidence presented and examined consisted of sworn statements or Agent's Investigation Reports taken or written by CID Special Agents.- A manifest from the 744 th Military Police Battalion, dated 12 May 03, was also submitted during the hearing. In some cases, witnesses referred to their" statements or reports to re-fresh their recollection of events under question. Thirty-one separate witnesses were heard. The witnesses were credible, although defense counsels attempted to refute the testimony of certain witnesses and highlight that previous testimony or statements were contradictory to the recorded testimony during this hearing. Based on the testimony of the witnesses and the evidence presented, I am able to make a recommendation with regard to further action involving the accused soldier.

2.
With regard to SSG McKenzie, I make the following recommendations to the charges . and specifications alleged against .'It

a. Charge 1: Violation of Article 92, Dereliction of Duty: I find that a preponderance of the evidence exists to validate the specification alleged against him. By virtue of his position, experience and rank, SSG McKenzie had a certain duty to safeguard EPWs and was aware of those duties. The testimony of SS
64J-$1 SGT.SGT .and SPC .indicate that he was willfully C.) derelict in the performance of those duties.
b. Charge.Violation of Article 93, Cruelty and Maltreatment: I find that a preponderance of the evidence exists to validate Specifications 2, 3 and 5 alleged against him. Evidence was not presented to sufficiently validate Specifications 1
6\1--61).
and 4 alleged against him. SGAIllipitestimony confirms
lc-) A.

account of being dragged across the ground by his armpits (Specification 2). SGT
11111111and SPC.
oth testified to his mistreatment of EPVIIIIIMp (Specification 3). The testimony of SSG...Pend SG.to his mistreatment of EPVJ.Other than the testimony of the EPWs themselves, I did not find corroborating testimony to substantiate the mistreatment of EPWs
NM.an4ligraig
012804
c. Charge III, Violation of Article 107, False Official Statements: I find that a preponderance of the evidence exists to validate the specification alleged against him. The testimony of the previous witnesses indicates that SSG McKenzie's
sworn statement of 16 May was false in that he denied the mistreatment of any
EPWs and that he evidently knew such denial to be false at the time, and that his
intent was to deceive investigators as to the true events of 12' May.
d. Charge IV: Violation of Article 128, Assault: I find that a preponderance of the
evidence exists to validate Specifications 1, 2, and 5 alleged against him. Evidence was not presented to sufficiently validate Specifications 3 and 4 alleged against him. The testimony of SOTilliellmfirrns EPWIIIIIIIIpccount of being dragged by his armpits across the ground. Salillitad SPAM
testified as to EP11111buse. SSGVIIIIIII SG'jllIllttified as to
his abuse of Epw ether than the testimony of the EPWs themselves, I did not find corroborating testimony to substantiate the assualt of EPWAIIIIIIL
.0111111111111111111111fr eDuring the course of the hearing, testimony from SPC111111111Lompted .. counsel for the government to request that the investigation be broadened to include violations of Article 81, Conspiracy, and Article 134, Obstruction of Justice, against all four of the accused. I granted that request over the objection of all defense counsels. Aside from the testimony of SP -donot feel that 0L furthir, sufficient evidence was presented to. validate these charges. I, therefore, cannot report that a preponderance of the evidence suggests that these charges are true. f. I recommend that you proceed with a general court martial, charging the accused with Violation of Article 92, as specified, Violation of Article 93, Specifications 2, 3, and 5, Violation of Artie 107.and its specification, and Violation of Article 128, Specifications 1, 2, and 5. 3. Delays in proceedings: .P
a.
JO proposed original date of 28 July 03 for hearing. Defense counsels requested delay to 5 September 03 due to schedule conflicts. 10 set date of 27 August 03 after consulting all counsels. Defense counsels acknowledged that the time would not count against the speedy trial requirement of the government.

b.
28 August 03: Defense counsels requested additional time to prepare for EPW witnesses and CID Special Agent testimony. 10 granted recess until 290800

012805

August 03. At approx. 2000 Hrs, defense counsels requested further delay due to problems accessing EPW witnesses. I0 granted further delay until 291300 August
03.

c.
29 August 03: Hearing recessed until arrival of additional witnesses on leave. Re­convene at Camp Doha, KU.

d.
1 September 03: Hearing recessed until 021300 September 03 for additional witness. Further delayed until 021430 Sep 03 at request of defense counsels for additional time to interview witness.

4. Defense and Government Objections:
a. Defense: Defense counsels object& to introduction of sworn statement of SSGinimpon addition to his sworn testimony at the hearing. SS411111.
Cbi(?).
did not refer to hi report during his testimony. K) sustained objection IAW RCM C*).405(4)(g)(B), alltwing introduction of sworn statements over defense objection when the witness is not available.
b.
Government: Government counsel objected to defense line of questioning, asking whether certain witnesses had been advised of their rights under Article 31, or were being investigated, or had been charged with violation of Article 32, UCMJ, Dereliction of Duty. I0 allowed defense counsels to ask this question due to its relevance based on the testimony of the witnesses.

c.
Defense: Government counsel requested to broaden the scope of the investigation to include violations of Article 81, UCMJ, 80, Conspiracy to Obstruct Justice, and Article 134, UCMJ, Obstruction of Justice, against all four of the accused, based

(.1))(1)-.
•
on testimony of SPC MM.. Based on her testimony, 10 allowed government to broaden the scope of the investigation to include these two
0.)(CVLI.
charges.

d. Defense: Defense counsels perceived an allegation of impropriety in line of questioning by government counsel and asked that hearing area be cleared to further discuss the matter. I0 cleared the courtroom of all spectators, including the media. I was advised by the PAO representation of a potential violation of the Freedom of Information Act in doing so, since the hearing was declared open. My legal advisor also suggested that other spectators carried the same weight as the media. Both were allowed back in, although the government counsel assured all parties that no such implied accusation was intended against any defense counsel and withdrew any further line of questioning along these lines.
012806
gOi -Catk

(6)PC--ices
e.
Defense: defe.counsels objected to line of qu tioning by the govergfnent of S.egarding a previous investigation by .MSG.as irrelevant to the proceedings at hand. Government did not argue probative v. prejudiced value of the questioning. I sustained the objection and disallowed the questioning.. 4D)0.--xy

f.
Defense: after the testimony of the final witness, SPC 1111111.111110.e. government counsel asked that the scope of the investigation be broadened to include violation of Article 134, Adultery and Obstruction of Justice. Government withdrew its request for the adultery charge. I did not allow the inclusion of this charge due to inadequate notice to the defense to prepare for the additional charges.

5. While EPW witnesses have agreed to be available for further testimony, their release might make it difficult to reach them once they have returned home. During the course of this hearing, testimony from SSG 11111111111SGRIENE
IIMWSUT.SPC.and SPOillailligndicated that
while the alleged incidents were occurring, they did not actively attempt to intervene as it
was their responsibility to do as soldiers, and in the case
as non-commissioned officers and leader's. Beyond SSG1111111ribal attempts to stop
the abuse of these EPWs, nothing else seems to have been done. SGT
testimony that he turned away because he could not bear to watch this treatment is
especially disturbing. I recommend that you consider appropriate action with regard to
these soldiers and their evident failure to act to pr9tect the enemy prisoners of war in their
charge or stop the mistreatment to which they have testified, under oath.

012807