“So is this justice? Not really.
Having promised a full and open inquiry, the Corps held many
hearings in secret session, held the findings secret, and released
its decision on the disposition of the case on the Friday
afternoon before Memorial Day, the perfect time to bury such news
in a long holiday weekend. The Corps wanted this to just go away
because of the embarrassment it caused and the doubts it cast on
the fledgling Marine Corps Special Operations Command. Now, there
are also lingering doubts over whether justice was indeed done,
and worse, open questions about the credibility, honesty and
professionalism of the institution. What a shame.”
--Marine Times editorial,
No Justice in Secrecy, concerning the Court of Inquiry into
the actions of Marine Special Operations (Fox) Company responding
to a suicide attack in Afghanistan on their convoy on March 4,
When I read in
the LA Timesthat LtGeneral Flynn had decided to refer
LtCol Jeff Chessani’s case to a BOI (Board of Inquiry), I felt
embarrassed and ashamed as a Marine.
I say this because with all the Haditha investigations (the
Watt Investigation, the
Bargewell Report, the NCIS Investigation, all the
Article 32 investigations conducted on the accused) and the
mountain of other published material and evidence, I cannot
understand why General Flynn did not have enough information to
simply end the circus by exonerating LtCol Chessani.
A military Court or Board of Inquiry is essentially an
investigation or administrative fact finding procedure that has
been around for a long, long time. Major Reno received a Board of
Inquiry after the General Custer Massacre. The significant
difference between a Board of Inquiry and a Court Martial is that
the defendant basically loses the “beyond a reasonable doubt”
right for a “preponderance of evident” procedure. Another way to
say that is instead of being absolutely sure, the members of the
board can apply the 50% to 90% rule. This is a definite
disadvantage for the defendant.
Another interesting fact is the Marine Corps, except in the case
of Marine Special Operations (Fox) Company mentioned above, has
not used this procedure since 1956. The Fox Company incident is
similar to the Haditha incident in that a platoon from Fox Company
was ambushed in Afghanistan and was then accused of killing
civilians. That rush to judgment was lead by then Army Col. John
Nicholson and General Francis H. Kearney, both commanders in
Afghanistan at the time.
Both Army officers have since been promoted despite a
congressional directed investigation of General Kearney for
undue command influence. This investigation not only looked at
the Fox Company incident but also the charges Kearney brought
against an Army Special Forces Captain and Master Sergeant for
killing a known terrorist. I mention this because of the eight Fox
Company Marines investigated, none have been promoted and many are
not in the Marine Corps today. The stress these investigations
create for our Marines and their families is enormous. When
speaking of the Fox Company Eight, many Marines will tell you, the
price both they and their families paid can be measured in the
cases of cancer, diabetes, divorce, financial loss and their
The 1956 Court of Inquiry was convened for the famous Parris
Island Ribbon Creek Incident. A Marine Drill Instructor led his
platoon of 74 recruits into the swamps of Parris Island on a
Sunday for “night maneuvers”. As they waded down the creek bed
they hit deep water and panic ensued probably starting with some
of the non-swimmers. Six of the recruits drown. The subsequent
court martial found the drill instructor guilty of negligence but
he was also acquitted of manslaughter and oppression. (For more,
see John Steves, Court Martial at Parris Island: The Ribbon
Creek Incident, University of South Carolina Press, 1999.)
One important difference between the Ribbon Creek and LtCol
Chessani’s coming Board of Inquiry is that the Ribbon Creek
Inquiry was convened the day after the incident. In addition, the
Board of Inquiry established the facts for the court martial. In
LtCol Chessani’s case, we seem to be putting the cart before the
horse. This BOI raises the question, why the change in normal
procedure? I believe that in the Ribbon Creek incident the Marine
Corps was trying to establish the facts compared to the LtCol
Chessani BOI where the generals are covering their own political
Another notable difference is that both the Commandant of the
Marine Corps, General Randolph Pate, and LtGeneral Chesty Puller,
the Marine Corps' most highly decorated officer, testified for the
defense. My, my, how things have changed!
There are a number of reasons why these two generals testifying
for the defense. The defense attorney’s pre-trial legal
maneuvering was exceptional and, as in the Haditha case, there was
a media frenzy spilling false information onto the public. General
Pate was convinced to testify by the defense attorney to help
avoid a congressional investigation on the incident and Chesty had
issues with the false press reports. Chesty was actually pulled
out of retirement for the court martial. When this occurred,
Mrs.Puller protested to her husband citing previous trouble and
controversy in Puller's career.
Puller told her, "...The important thing is the Marine Corps.
If we let 'em, they'll tear it to pieces. Headquarters won't speak
up. It's my duty to do it."
As punishment, the drill instructor received a $270 fine ($30 for
nine months), nine months of confinement at hard labor, rank
reduced to private and a bad conduct discharge. The Secretary of
Navy would reduce this sentence to three months in the brig (time
served), reduction to private with no discharge and no fine. The
drill instructor went back on active duty but never regained his
rank. I should note that the entire episode, from incident to
court martial to Secretary of Navy final disposition took less
than six months from April 8, 1956 to October 5, 1956. If Jeff
Chessani’s Board of Inquiry moves into this November, the Haditha
incident will pass the four year mark and we still have yet to
resolve SSgt Frank Wuterich’s proceedings.
Part of the bad news for Jeff Chessani is that each time one
general passes this case to the next, they not only distance
themselves from the responsibility but also extend the time line.
Some people might accuse General Conway of trying to win this case
by attrition. The attrition part takes the form of an oppressive
stress and falls on Jeff Chessani’s shoulders and his family.
The Navy-Marine Corps Court of Criminal Appeals released its
unanimous three-judge decision, upholding the dismissal of charges
on the grounds of unlawful command influence, in March 2009.
General Conway passed the final decision to LtGeneral Flynn on
June 16, 2009. It took six weeks (June 16 to August 27) for
LtGeneral Flynn to initiate the Board of Inquiry. The Fox Company
Inquiry was initiated in May 2008 and finally wrapped up the end
of January 2009 (8 months). I see no quick end here.
The other bad news is that the board is limited to what it can
consider. General Flynn actually defines the limits in his Board
of Inquiry (BOI) Notification. The good general really starts to
tighten the screws on the scope of the board with this gem from
paragraph 1 of
the BOI Notification:
“a Board of Inquiry will be convened to make a recommendation on
your retention in the U.S. Marine Corps based on the information
contained in reference (d) and (e), as well as the allegations
articulated in enclosure (1).”
Reference (d) is “LtCol Chessani DC fitrep 20060401-20060407”. In
other words, the fitness report that LtCol Chessani received for
the period of April 1 to 7, 2006. By the way, the “DC”, is the
U.S. Marine Corps Fitness Report Code for “Directed by Commandant”
for adverse action. So reference (d) is the adverse action
fitness report that LtCol Chessani received before the Bargewell
investigation was complete on June 15 that relieved Chessani from
his battalion command. I am sure there are a lot of favorable
comments in that career ending document. In addition, I would
really like to see who signed that fitness report as his reporting
senior and what justification was sited, again, since the
Bargewell investigation was still not complete.
Reference (e) is the Article 32 Investigation prepared for his
court martial. Yep, that is basically the investigation that was
thrown out for undue command influence and upheld by the
Navy-Marine Corps Court of Criminal Appeals. A couple of one-word
questions here about this document: Fair? Unbiased?
Enclosure (1) is “Haditha Reporting/Investigating Allegation”. I
am not sure which investigation this is but if it is the Bargewell
Investigation, as I suspect, it is a monument to a staff officer’s
loyalty to his own developed administrative reporting system. I am
talking about Col Ewers, who was one of the authors of the
Bargewell investigation and the principle party responsible for
the undue command influence finding against General Mattis. (I
have already said a lot about the unprofessionalism of this
Now here is the icing on this BOI cake. Paragraph 2.c. of the BOI
“Because you are a retirement-eligible officer, if your retirement
is recommended, the Board shall also recommend whether you should
be retired in the current grade or a lesser grade. The Board must
recommend the grade in which you last served satisfactory.”
My interpretation is that General Flynn is telling the board: if
you find any misconduct, make this go away forever by retiring
LtCol Chessani out of the Marine Corps as a Major.
The BOI Notification lists the charges that will be considered by
its members. All the allegations are essentially focused on
Article 92 of the UCMJ; Failure to obey an order or regulation.
All the allegations state that he “willfully failed to report” or
This is where they will get LtCol Chessani.
The reason they will get him is that because the combat reporting
at the battalion level and below is never good. The focus in
combat is never, and should never be, on reporting. The focus
needs to be on the enemy, on your Marines, on support arms, on
causalities, on re-supply, on prevention of friendly fire, and the
list can goes on and on.
Reporting procedures are never good because good commanders pick
up the radio hand set and tell each other what is happening.
Formal reporting is a backup system to one-on-one communications
between commanders. I have never heard or observed a battalion
combat operations center do formal reporting near perfectly, much
less well, in combat.
One of the worse combat reports ever communicated over a radio,
because of its lack of detail, is also one of the most famous for
its courage. On the beaches of Tarawa, at D+1, while wounded, and
desperately attempting to organize Marines from shattered
amphibious assault waves and broken boat teams, Col Shoup, radioed
a situation report to 2D Marine Division Headquarters, "Casualties
many. Percentage dead not known. Combat efficiency — we are
winning." Col Shoup would win the Medal of Honor at Tarawa and
later become the Commandant of the Marine Corps. He received that
award for his valor and not his reporting procedures.
I am sure that LtCol Chessani and his defense team were gearing up
for the “mother of all” court battles back in May of this year
when the government case fell apart. The stake in the heart of the
government case was the finding of undue command influence and the
I believe that the General Flynn BOI steals not only the soul of
Jeff Chessani’s defense strategy but also any vestige of fairness.
Flynn has effectively taken away the undue command influence
issue. He also preserved an administrative fault that he knows all
battalion commanders are inadvertently guilty because of the
pressing urgency of combat operations. What the generals could not
get in a court room, they are trying to get in an administrative
maneuver called the Board of Inquiry. This administrative maneuver
is like the Pirates of the Caribbean movie, where Captain Barbossa,
after violating the spirit of “parley”, states that the Pirate’s
Code is more like general guidelines instead of rules. The circus
The good news, in my opinion, is that by referring this case to a
Board of Inquiry, General Flynn, has passed the responsibility to
three of LtCol Chessani’s peers. The test of courage is now
theirs. The board composition requires three officers senior to
the LtCol Chessani and that probably means a one star general and
two colonels (three colonels if he is lucky). I say peers because
if Haditha didn’t happen, LtCol Chessani, in all probability,
would now be a Colonel.
The Marine Corps is a relatively small organization and an
officer’s professional reputation is always known. Chessani's
professional reputation will count unofficially with these
officers. Hopefully, these officers will be former battalion
commanders, with Iraq combat experience, during the years between
the 2003 invasion and the “Surge” in 2007. This time period is
important because the generals failed to develop an effective
strategy in Iraq leaving battalion commanders to figure it out
themselves. Bing West in The Strongest Tribe and LtCol
Nathan Sassaman in Warrior King both point out the lack of
strategic guidance in their books. Hopefully, the Chessani Board
of Inquiry will recognize that combat reporting is never perfect
and always subject to the friction and fog of war.
Now this is where the “mostly bad” part comes in. General Conway
continues to try to save face and again is trying to preserve his
personal reputation at the expense of the Marine Corps and its
Marines. The Commandant probably feels he has found an out for the
politically thorny problem that the Haditha Marines prosecution
presents him every day it goes unresolved. The Board of Inquiry
covered him in the Fox Company case. It will cover him in LtCol
Chessai’s case and I believe he will use it again in SSgt
Wuterich’s case. The same undue command influence that taints
LtCol Chessani’s case also taints SSgt Wuterich’s case. For that
reason, SSgt Wuterich’s lawyers better break out the books on
military law and the Board of Inquiry.
We need to maintain the support for LtCol Jeff Chessani and SSgt
Frank Wuterich and their families. Everyone needs to do whatever
they can for these two Marines, whether it is commenting on a
blog, writing a letter, or reaching into our pockets to help with
their defense funds. They need to know there are a lot of people
on their side that recognize their loyalty and dedication.
LtCol, USMC Ret.
Former Commanding Officer, Kilo Company, 3/1
Bob Weimann, a veteran of the first
Gulf War, is the
former Commanding Officer, Kilo Co., 3/1,
and a senior contributing editor to Defend Our Marines.