15 July 2004
MEMORANDUM FOR 18 AF/CC
FROM: Civilian and Military Defense Counsel
SUBJECT: Appeal of Nonjudicial Punishment – Maj Harry M. Schmidt
1. Major Schmidt, through his undersigned counsel, herein provides the grounds of his appeal from the Article 15, UCMJ punishment imposed on 5 July 2004. As set forth herein, punishment should not have been imposed because: 1) The Government procured Major Schmidt's waiver of the two-year statute of limitations by fraud; 2) The factual findings contained in the Letter of Reprimand allege that Major Schmidt made false official statements and committed unpremeditated murder, offenses for which Major Schmidt was provided no notice prior to the Article 15 proceedings; 3) neither the findings nor the punishment are supported by the evidence the Commander considered; 4) The Commander arbitrarily and capriciously imposed punishment for offenses not charged; 5) The Commander was biased and prejudiced and did not credit the uncontradicted evidence submitted by Major Schmidt; and 6) The Commander materially breached the agreement with Major Schmidt by releasing Privacy Act protected service record documents without authorization from Major Schmidt.
2. With due respect to the Commander who imposed punishment, sir, it is with disbelief and exasperation that we respond to the reprimand issued Major Schmidt as part of his nonjudicial punishment proceedings and request that the appeal authority set aside the findings and punishment imposed by 8 AF/CC, which essentially criminalized Major Schmidt’s honest mistake in combat. Frankly, when we reviewed the reprimand we became convinced that the Commander neither read the written submissions we provided to the Commander nor authored the reprimand. The wild allegations in the reprimand are not rooted in any evidence ever adduced in this two-plus year process and belie a desire to mount a public relations campaign rather than actually attempt to see justice done. The Commander wrote that Major Schmidt’s integrity was “the final casualty” of the 17 April 2002 accident. Sir Winston Churchill’s famous quote, however, is that truth is the first casualty, and Major Schmidt’s case was no different (Churchill also said, “In time or war, the truth is so precious it must be attended by a bodyguard of lies.”). The Air Force core values were mugged before Brig Gen Sargeant’s investigation even began, and this process still has not been able to breathe life into anything resembling integrity.
3. In the Commander’s reprimand, LTG Carlson accused Major Schmidt, variously, of making false official statements, obstructing justice, willfully assaulting eight members of 3 PPCLI and murdering four others. No thoughtful commander in any of the Military Departments would ever deal with such serious offenses in a nonjudicial punishment forum without immediately having his or her nonjudicial authority immediately withdrawn. The fact that the Commander elected to offer nonjudicial punishment in this case is evidence that not even the Commander believe the unsupported and histrionic allegations in this reprimand. Moreover, the manner in which this reprimand was delivered is conclusive evidence that this process was little more than a public-relations campaign completely devoid of any interest in justice. Early in the day of 6 July 2004, members of the media had been alerted by the Commander’s public affairs office that the Commander would be issuing the Article 15 decision. Major Schmidt learned this because reporters called his home and his counsel seeking further information, after the notice was provided by 8 AF/PA. Of course, neither Major Schmidt nor counsel were so notified, in what has become common practice within LTG Carlson’s command since immediately before charges were preferred (on 11 September 2002). One of the reporters who contacted military counsel astutely noted that 8 AF/CC has made it a common practice throughout these proceedings to issue media releases late in the day, leaving reporters scrambling to meet deadlines, often without sufficient time to obtain and incorporate defense counsel views into their stories. This Canadian reporter point-blank asked Major Key if the Government even understood what fairness was and why the Air Force was so focused on “spin.” At virtually the exact same time the Commander’s staff notified Major Schmidt of the Commander’s decision in this case (by fax), the Commander posted the text of the reprimand on the 8 AF website, and the Commander’s public affairs office issued a media release (which we believe the Commander approved) with excerpts from the reprimand – before Major Schmidt had actually read the reprimand, exhausted his appeal rights, and before the Commander’s action had even been found legally sufficient.
4. The manner of immediate publication of the reprimand and the failure to deliver it in person to Major Schmidt, particularly where the Commander included the wild allegations of new criminal misconduct, is ample evidence that this reprimand was not written for Major Schmidt – it was plainly written for the media and the Air Force’s external audiences, and we have so advised Major Schmidt. With due regard to the fact of the reprimand, we could not in good conscience advise Major Schmidt to take it seriously – simply, it is a cartoon, not to be taken seriously by anyone who has actually read the evidence.
5. Notably, Major Schmidt never waived his Privacy Act rights with regard to the text of any reprimand the Commander issued. The agreement to waive his Privacy Act rights at all in this case was negotiated over a one month-plus timeframe, and was strictly limited to allowing the Commander to announce the case had been settled and that Major Schmidt’s case would be heard in a nonjudicial forum under Article 15, UCMJ. The negotiated agreement did not allow for the publication of any documents, specifically due to our fears of this process being spun for ends unrelated to justice, as has obviously occurred. Violations of the Privacy Act are subject to criminal penalties. 5 USC §552a(i). This violation also raises questions about the continued viability of the Commander’s agreement with Major Schmidt. Indeed, as Major Schmidt’s waiver of the two year statute of limitations made clear, it was specifically conditioned upon the original agreement being honored. The Commander’s violation of the Privacy Act, in our view, vitiates Major Schmidt’s waiver of the two-year statute of limitations, leaving the Commander without authority to impose NJP.
6. Other circumstances connected with the Commander’s news release indicate that the action the Commander took was not designed to correct or punish any behaviors of Major Schmidt, but rather to satisfy an Air Force public relations need. Although Major Schmidt did request in writing to change his earlier demand for a court-martial, this request came at the end of lengthy negotiations with the 8 AF SJA and staff, based upon their repeated assurances that the Commander would provide a full and fair hearing and that the Commander had not already decided the case. The Commander’s staff indicated that LTG Carlson was anxious to resolve this case at any forum other than a court-martial and approached Major Schmidt’s counsel repeatedly to make this entreaty to alternative disposition. The Commander’s press release, however, implies Major Schmidt came to the Commander “hat in hand,” asking the Commander to give him permission to accept nonjudicial punishment when – in reality – this outcome was negotiated over a months’ time and mutually agreed upon between the Commander’s legal staff and the Defense – and only after repeated entreaties to Major Schmidt by the Commander’s legal staff.
7. Several aspects of the substance of the reprimand merit specific comment. First, the Commander accused Major Schmidt of portraying himself as “a victim of the disciplinary process” during his personal presentation. This is an entirely inaccurate portrayal of what he told the Commander. Major Schmidt told the Commander that he found it unacceptable that he had been pre-judged by many Air Force leaders who were not involved in the investigation. He specifically addressed factually inaccurate and outright libelous course materials produced by personnel at Air Command and Staff College (which materials refer to pilots, inter alia, as “zipper suited sun gods”) and which materially misrepresent the facts that led to the accident of 17 April 2002. We agree with Major Schmidt about this unnecessary character attack, as do hundreds of aviators who have contacted us to report the content of the Air Force “training” materials after being subjected to them. The remainder of Major Schmidt’s presentation to LTG Carlson consisted of his debrief of the mission, explaining to the Commander exactly what happened and when according to his perception and understanding of the tactical situation. Major Schmidt never mentioned the disciplinary process or the Commander’s role except to say that he had decided to have the Commander, rather than a panel of officers, determine whether or not he was guilty of the offenses of dereliction of duty. The Commander’s allegation is not just inaccurate, it is completely false. We – Major Schmidt’s defense counsel – did sharply criticize, with good reason, the ineffective command and control tools in the theater, to wit, the combined air operations center (CAOC) and the airborne warning and control system (AWACS). Major Schmidt, however, never leveled any such accusation, although he should have, with good reason.
8. We must point out that Major Schmidt elected to have his personal presentation be public, but the Commander overruled that election. Had the presentation been public, as requested, there would be no questions about what Major Schmidt said or how he “portrayed” himself. The concern over releasing classified information was not a legitimate reason for closing the presentation, as we have shown repeatedly throughout this process that we can use alternatives to divulging classified information. Indeed, nothing that Major Schmidt discussed in his presentation to the Commander was classified. In other words, if the Commander had any interest in honoring Major Schmidt’s election to have his personal presentation public, the Commander could have simply instructed the Defense not to orally disclose classified information and provide any classified information as part of a written document, as was actually done. By closing the hearing, the Commander gained the ability to “spin” the presentation any way the Commander wanted in the media, an opportunity of which the Commander took great advantage. Major Schmidt sought to allow the public to draw its own conclusions from his presentation and explanation, but as has been the case from the outset, the Air Force command has shown a practiced avoidance and aversion to any critical public scrutiny of the facts and factors that actually led to the accident. It is only because of our vigorous defense that the public even has an inkling of the dishonorable Government tactics employed in this case from Brig Gen Sargeant’s so-called investigation to the Commander’s pro forma nonjudicial punishment proceedings resulting in a reprimand that is based entirely upon fabrication.
9. We also note that the Commander claimed in the 8 AF press release that “Major Schmidt will no longer be permitted to fly Air Force aircraft,” a statement which is wholly misleading. As Lt Gen Carlson well knows, Major Schmidt is likely to be assigned to non-flying pilot duties by the Illinois Air National Guard, an assignment that he does not oppose. No one has prohibited Major Schmidt from flying – he will be assigned to a non-flying pilot job and not seek reassignment back to the cockpit. However, if the Air Force or National Guard order him to resume flying duties, there is no legal prohibition to such reassignment.
10. The Commander further states in the reprimand that the written materials submitted by Major Schmidt “only served to illustrate the degree to which [he] lacked flight discipline.” We note that Major Schmidt did not provide any written materials – they were all submitted jointly by his counsel. The Commander failed to indicate what exactly in the written materials illustrates a lack of flight discipline, which we, who prepared it, find confounding. The written materials we presented consisted of counsels’ discussions of:
a. Applicable legal standards;
b. Major Schmidt’s professional background;
c. Contributing factors of Amphetamine usage and NVG employment;
d. Information provided to COFFEE flight prior to the flight;
e. Testimony by Government witnesses as to Major Schmidt’s obligation to his flight lead and the Rules of Engagement;
f. The Rules of Engagement in place at the time;
g. The inefficacy of the CAOC;
h. The fact the CAOC and the AWACS failed to discover or recognize the Kandahar Ground Control Approach (GCA) airspace control measure;
i. The fact AWACS directed COFFEE flight to fly through the GCA airspace without notifying the GCA (or COFFEE flight);
j. The failure of the accident investigation board to thoroughly investigate the accident;
k. Ground force contributing factors; and
l. The lengthy history of fratricide in the U.S. military.
In addition, we provided to the Commander new evidence we collected from experts in the field of fighter employment, with extensive qualifications as FWS instructors – one of whom the Commander appointed to us – all demonstrating that Major Schmidt’s actions not only were NOT undisciplined, but in accordance with the Rules of Engagement and SPINS and reasonable under the circumstances, given the failure of the USAF command and control architecture to provide critical information about the highly unusual night live-fire training event conducted at Osama Bin Laden’s former headquarters in Afghanistan.
11. Much has been said about the threat level in the theater. We presented the Commander with documentation of what Major Schmidt understood the threat to be, what he was briefed, and what the relevant threats in the theater were. Despite having access to this information during his investigation, Brig Gen Sargeant’s accident investigation board misstated the theater threat, failed to seek and obtain the evidence that demonstrated the existence of the particular threat Major Schmidt perceived, and falsely asserted that Major Schmidt flew into a WEZ of a threat never claimed by Major Schmidt (“AAA”), apparently to justify Brig Gen Sargeant’s pre-determined conclusions. Hiding behind the cloak of claimed classification, these false assertions were never publicly corrected in the public forum of the Article 32 hearing. We request that the appeal authority seek declassification of these documents so that the public can understand the fraud that has been perpetrated by the Air Force upon the public and Major Schmidt’s fellow airmen.
12. Perhaps the Commander’s most outrageous claim regarding Major Schmidt’s conduct was the Commander’s assertion that Major Schmidt used self-defense as a “pretext” and “an excuse to wage [his] own war.” The Commander’s accusation, if true, means that Major Schmidt’s conduct constituted unpremeditated murder, a charge that the Air Force lacked the courage to prefer; a charge for which Major Schmidt was not notified prior to the imposition of Article 15 punishment that he was required to defend; and, a charge so outrageous on its face that no Air Force official, including the Commander himself, has had the moral courage to make on the record or directly to Major Schmidt to his face. Importantly in this regard, the few timid technical questions the Commander chose to ask of Major Schmidt during the Article 15 hearing clearly were not intended to elicit any evidence supporting these outrageous and false accusations, or illuminate what would possess a highly trained combat aviator and instructor pilot to act in the manner alleged in the reprimand. One would think that if the Commander truly harbored such concerns that a member of his command was a lying murderer, he might have at least inquired about the concerns. Highlighting the absurdity and lack of integrity of these allegations is the fact that throughout two years of investigation these accusations have never before surfaced until now. Brig Gen Sargeant’s report did not include them; and when Brig Gen Sargeant was specifically asked by Mr. Gittins at the Article 32, in the presence of Major Schmidt, whether he claimed Major Schmidt declared self defense “as a pretext,” Brig Gen Sargeant denied he was making such a claim. The only person associated in any way with the case who has made this reckless assertion, up to now, is Col John Odom, the “Special Prosecutor” who has spent two years of Government time, money and military pay litigating this one case (with little success) and who provided neither evidence nor testimony in any proceeding, particularly the Article 15 hearing.
13. To support the Commander’s new assertion of self-defense “pretext,” the Commander necessarily was required to seek evidence outside the evidence the Commander notified Major Schmidt that he was considering, rendering the proceeding invalid for lack of notice and compliance with the governing AFI. Further, the Commander’s opinion that he did not believe that Major Schmidt acted in defense of Major Umbach or himself is perplexing, since there is no evidence to support it. Every witness who has ever testified or provided evidence to any investigation in this matter has accepted that it was reasonable for Major Schmidt to conclude Major Umbach was targeted by the rocket propelled munitions that actually were fired by the Canadians. No one, including Brig Gen Sargeant, claimed that Major Schmidt did not actually believe that the rockets were fired at Major Umbach or that Major Schmidt was exercising self-defense. Indeed, Brig Gen Sargeant testified that at the point that Major Schmidt released the bomb, he acted reasonably. He took issue with the fact that Major Schmidt was in the area at all, not with the judgment exercised at the point of release. With due respect to the Commander’s allegation, that Major Schmidt’s claim of self defense was false and therefore that he necessarily is a liar, sir, the Commander’s allegation is supported by the same quantum of evidence as the claim that the moon is made of green cheese. Major Schmidt’s professionalism as an aviator and Navy and Air Force instructor pilot have been well-established; his character as a military officer with deep sense of duty clearly manifest; and, his honor and integrity never questioned, until Lt Gen Carlson’s specious accusation. The Commander’s opinion, unsupported as it is by any evidence adduced at the Article 32 hearing or in this proceeding, necessarily leads to the conclusion that Lt Gen Carlson sought and considered evidence or testimony outside of the evidence identified to Major Schmidt in anticipation of the hearing. Indeed, the Commander’s opinion has the sound of Col Odom’s rantings, and Col Odom was neither a witness at the Article 32 nor in the Article 15 hearing. In short, NO WITNESS has ever questioned Major Schmidt’s truthfulness or integrity and the Commander’s opinion finds no support in the factual record of this case.
14. Lt Gen Carlson’s reprimand accuses Major Schmidt of lying without citing any basis for such an allegation. Not even Brig Gen Sargeant accused Major Schmidt of lying, and Brig Gen Sargeant testified at the Article 32 hearing that he had seen no evidence that Major Schmidt was a liar. The Commander, however, accused Major Schmidt of lying while denying him the opportunity to make his presentation in public – preventing the public from determining not only whether Major Schmidt was being truthful, but conveniently shielding the evidence claimed to support the Commander’s criticism from the crucible of critical public evaluation.
15. The selective wording of the Commander’s reprimand perpetuates a consistent pattern of misstating that Major Umbach issued “a directive” that Major Schmidt supposedly disobeyed. The Commander’s reprimand claims that Major Umbach gave a directive: “make sure it’s not friendlies.” The transcript (created by the Government) shows that Major Umbach’s statement actually was: “Let’s just make sure it’s not friendlies, that’s all.” This practiced omission in the wording of the quote clearly is designed to make Major Umbach’s statement appear directive in nature, when it actually was a hortatory statement directed to no one in particular. Importantly in this regard, the Commander apparently agreed that this statement was not directive when the Commander reprimanded Major Umbach for giving Major Schmidt “no direction” prior to the accident. It is impossible to reconcile the Commander’s assertion of record that Major Umbach gave “no direction” with Major Schmidt failing to follow the directives of his flight lead. If Major Schmidt’s flight lead never gave him any direction, as the Commander’s reprimand of Major Umbach clearly states, then Major Schmidt could not possibly be guilty of violating those directions that were never given. The evidence provided to the Commander by Major Schmidt includes a statement from Major Umbach in which he agrees that he did not direct Major Schmidt to do anything with that statement, and that he was trying to get the attention of anyone who might have information helpful to determine what was going on on the ground (e.g., AWACS or the CAOC). Moreover, as the Commander are well aware, any directive Major Umbach did give was overridden when Major Schmidt observed another rocket launch, declared self defense, and was backed-up by Major Umbach (“Check Master Arm, Laser Arm”) in ensuring that ordnance was delivered by Major Schmidt on the first pass. The practiced selective quotation by the Commander in the reprimand itself is a demonstration of the clear lack of integrity that has attended the investigation of Major Schmidt from the beginning.
Major Schmidt and his counsel are particularly concerned that the Commander apparently disregarded entirely the evidence provided by Lt Col Michael Loida, USAFR. As Lt Gen Carlson knows, he personally appointed Lt Col Loida as a consultant to the defense to assist in the preparation of the case for trial. We did not ask for Lt Col Loida; we asked for another officer, who the Commander determined to be “unavailable.” Without consulting the defense, the Commander made the appointment of Lt Col Loida, who was equivalently qualified to Major Schmidt and the officer requested by the defense. After the Commander made the appointment, Lt Col Loida was asked to consider exactly what the prosecutors provided to the putative Government “expert” witnesses. Lt Col Loida (and others) reviewed that evidence and found that it was incomplete and, as such, not susceptible to enabling an expert to provide an informed opinion about Major Schmidt’s conduct due to significant omissions. After Lt Col Loida confirmed that the prosecutors were providing only that evidence that supported the prosecutor’s wrongheaded theories, we made ALL of the evidence available from the Article 32 hearing; the AIB report, classified documents retained by Major Schmidt after the accident that informed his judgment, and we made major Schmidt available (alone and without benefit of counsel) for a searching interview. The Commander’s Air Force expert, sir, concluded that the accident was the product of the failure to notify the theater command and control system of the live-fire training conducted by the Canadians. The Commander’s Air Force expert, sir, concluded that absent information about the live fire training – or the fact that such training ever was undertaken in Afghanistan with munitions simulating anti-aircraft threats – made Major Schmidt’s evaluation of the situation and decision to employ self-defense reasonable under the circumstances. The question we must ask, sir, is if the Commander thought Lt Col Loida competent to evaluate the case in the first place, why did the Commander fail to credit his uncontradicted and unbiased evidence?
17. Sir, it may be convenient and easy to portray the 17 April 2002 accident as the product of two “cowboy” aviators out looking for a cheap thrill, but that superficial analysis is both naive and intellectually dishonest. The fact that Air Force doctrine puts the obligation to avoid fratricide at every level of the command and communications chain is testament that fratricide is rarely the result of one person's blunder. Instead, there is generally a string of causal factors leading up to the ultimate accident, because our pilots are instruments of the command structure, not lone operators. As Maj Gen Wood told us in an interview, war is like a symphony, with the CAOC as the conductor and the aircrews as the woodwinds. Responsibility for failures and shortcomings start at the top of the command structure. When command procedures fail, it is incumbent upon the command structure to stand up and accept responsibility for those failures. In the past, commanders would stand up for the failures of their mission. In today's military, however, as examples of careerism increasingly drown out examples of leadership, there is a growing tendency to find the lowest person on the totem pole and focus all the responsibility at that level while turning a blind eye to any responsibility higher up the chain. Years ago, practices and training were adjusted in response to mission failures. In this case, however, Maj Schmidt was punished and nothing at all has been done to avoid the problem from recurring, which really raises the question of what the nonjudicial punishment was supposed to accomplish in the first place. Rehabilitate Maj Schmidt? Deter other pilots from acting in self-defense?
18. Refusing to accept responsibility, especially at the command level, causes failures on the battlefield. Rather than bolster the Air Force's image in the eyes of the US and international public, it gives the real impression of the Air Force leadership looking for a scapegoat. This command structure character trait has recently been arising after major international debacles resulting in either death or injury or international embarrassment of senior level military or government officials. It is usually identified by the command structure professing the brilliance (if not absolute perfection) of the strategic and tactical planning with the concomitant blame for the results being leveled at the "little guy" with accusations of failure to follow orders or procedures. For example:
a. The command structure professed that there were WMD in Iraq (blamed on bad intelligence from the CIA);
b. The Abu Ghraib scandal is being blamed on a handful of wayward lone-acting enlisted folks;
c. Tarnak Farms is blamed on Majors Schmidt and Umbach while all command failings are swept aside as "irrelevant;"
d. The Blackhawk shootdown was blamed on Capt Wang, the AWACS controller (no action taken against those who created the procedures that prevented identification of the helicopters or the pilots who actually shot the helicopters down without visual identification).
More complex analysis of the factors leading to the 17 April accident may not yield easily digestible sound bites, but it's the only way to take real steps to stop exactly this type of accident from recurring. As demonstrated by the many fratricide events in OIF, the USAF leadership has failed to curb fratricide with its push-the-blame-down approach. We submit that being able to publicly say "action has been taken" in the form of punishing the warfighter is inferior to being able to say actions are being taken to ensure the same thing doesn't happen next time.
19. Although we did not raise the issue in the materials we provided to the Commander, we feel that it is necessary to point out that Gen T. Michael Moseley – the person who sent out the e-mail to all the theater commanders the day after the accident stating that he did not believe it was a case of self-defense – is scheduled to assume command of Air Combat Command later this year. In other words, he will become the commander’s immediate commander, who will be evaluating the 8th AF commander for promotion. Gen Moseley was also responsible for issuing the orders that prohibited witnesses, indeed all CENTAF personnel, from talking to military defense counsel about this case. Gen Moseley created a command and control structure that failed to adhere to established published Air Force doctrine and has never addressed the fact he chose to build and employ a non-doctrinal command and control structure that failed to do its job on 17 April 2002. Pilots are trained to fight wars using the doctrine written and approved by their commanders and employed daily in exercises and simulations, yet Gen Moseley elected to take a less-costly, non-doctrinal approach and no one, certainly not Gen Moseley, has scrutinized the impact of the doctrinal deviation on this accident. His appointed accident investigation board president, remarkably, could find no fault with the CAOC and AWACS being completely unaware of the live-fire exercise or even the existence of the firing range. Nor could Brig Gen Sargeant find anything wrong with the fact the CAOC could not provide any information to help the pilots evaluate the situation that the AWACS flew Majors Schmidt and Umbach into, even though the CAOC was tasked with tracking only two tactical fighter flights over Afghanistan that night. We now have to question whether or not the Commander’s reprimand is just another step in the ongoing process of shielding Gen Moseley from scrutiny in this case.
20. Similarly, Gen Hornburg, the current appeal authority in this case, was advised by Col David Nichols, that the missions the 332nd AEG were flying into Afghanistan violated Air Force and ACC regulations concerning single-pilot aircraft crew day. Such restrictions on crew day were implemented as a safety measure and were augmented with the ACC directive that the aircrews flying the mission take Schedule II amphetamines in order to remain alert. Gen Hornburg’s implementation included providing a defective “informed consent” to the use of the controlled drugs which failed to warn pilots that they should not take such substances when operating vehicles or when engaging in hazardous activity (such as combat?). Similarly, after having been briefed by Col Nichols that the missions were being flown in violation of USAF and ACC regulations, Gen Hornburg took no corrective action to bring the missions within the USAF guidelines or to investigate whether waiver was legally or medically appropriate. As a parochial service matter, it was necessary for the Air Force to fly these oppressively long-duration missions in order not to cede the OEF TacAir mission entirely to Navy carrier-borne air wings and we believe that aircrew safety was sacrificed in order that the Air Force TacAir would remain relevant in OEF and not be excluded from OEF operations.
21. As we showed with the evidence from our retained expert, Dr. Lipman, the amphetamines prescribed to Major Schmidt affected his judgment by causing him to misperceive the duration of the firing he observed and to act more quickly than he otherwise would have acted without the drugs he was ordered, ultimately by Gen Hornburg, to use when engaged in his mission. We question whether Gen Hornburg is in a position to act as neutral and detached appellate authority, where he is reviewing a case in which his own conduct and decisions likely contributed to the accident. Similarly, Gen Hornburg was presented with a briefing by Major Daniel (“Raisin”) Caine about the non-doctrinal command and control architecture that had been implemented by Lt Gen Moseley. That briefing, which was approved by the 332nd AEG Commander, and of which we have a copy, clearly articulates the shortcomings of the non-doctrinal theater command and control approved by Lt Gen Moseley and demonstrates how it failed to support operations in Afghanistan. Significantly, after being put on notice of the potential ramifications of the non-doctrinal command and control system – including the potential for a fratricide accident just like Major Schmidt’s accident -- Gen Hornburg took NO action to correct the situation. As we would have pointed out in cross-examination of Gen Hornburg with these briefing slides during the litigation of our accuser motion, Gen Hornburg avoided taking corrective action because if he did, that would have been a tacit acknowledgment that Lt Gen Moseley had been derelict in his own duties regarding implementation of doctrinal command and control and requiring that he share responsibility for this unfortunate accident.
23. The 8th Air Force Commander chose to excoriate Major Schmidt for his judgment on 17 April 2002 because he did not react in the way the Commander believed he should have, despite the fact the Commander was: 1) not part of the flight that night, 2) unaware of the information Major Schmidt was briefed and collected about potential threats in OEF and, 3) in no position to “look out the window” and see what Major Schmidt observed while fatigued, under the influence of Air Force drugs, and wearing Night Vision Goggles (for five hours). Presumably, the Commander is saying that the he, personally, would have acted differently. So, in evaluating the propriety of this non-judicial punishment process, the questions become: if the Commander were in a situation in which the Commander believed the Commander’s flight lead was threatened, the Commander’s command and control contact could not tell the Commander anything about the threat, the Commander elect to just “fly away” from the situation, and as a result, the Commander’s flight lead was shot down, tortured, raped and slaughtered – what would the Commander tell her parents? Would the Commander expect to be court-martialed or otherwise punished and excoriated? And what would the Commander say in the Commander’s defense? No Medal of Honor has even been awarded to someone who ran away from danger rather than confront it.
24. The fact remains that this case has always been about the acuity of hindsight, focused solely on outcome, when it should have been examined prospectively from the point of view of a reasonable person under the same circumstances, as is prescribed in self-defense doctrine. Had Major Schmidt been correct about the perceived threat and neutralized it after it had engaged Major Umbach, there is little doubt that he would have been decorated for his valor. That his judgment and evaluation of the threat proved wrong and were punished because, with the practiced acuity of hindsight, others who weren’t called upon to make the decision in combat were able to postulate alternatives that might have avoided this accident, demonstrates that punishment under these circumstances is based on a legally incorrect standard and is based not on fact, doctrine and reason, but solely on the effect such punishment would have on USAF public relations and on the public sensibilities of the citizen of a needed ally in the Global War on Terrorism. As Col David Nichols, USAF, a former combat fighter Expeditionary Air Group commander, stated in his Declaration we submitted to the Commander at the Article 15:
A finding of guilt and imposition of punishment on a pilot, who acted in self-defense in a combat situation, even though his decision was objectively determined to be in error with the benefit of hindsight, sends a profoundly wrong message to other pilots who are flying and who will fly dangerous combat missions in the future. Hesitation and indecision out of the fear that judgment will be second-guessed are potentially more dangerous to combat pilots than honest mistakes made by good officers under the stress of combat. The Air Force requires warriors who are decisive, courageous and aggressive. Punishing a pilot because his judgment, though reasonable when it was made, later is determined to be grossly incorrect and injurious, in my opinion, will have a disastrous and adverse effect on aircrew morale.
25. For the foregoing reasons, on behalf of Major Schmidt, we respectfully submit this appeal and request that the punishment imposed on Major Schmidt be set aside. Further, in light of your publication of the reprimand upon the 8 AF/Tarnak Farms website without Major Schmidt’s authorization, on behalf of Major Schmidt, we request that this letter be posted on the website as Major Schmidt’s response to the reprimand.
Respectfully submitted,
CHARLES W. GITTINS
Civilian Defense Counsel
CLAYTON W. MOUSHON, Lt Col, ILANG
Individual Military Counsel
JAMES E. KEY III, Maj, USAF
Detailed Military Counsel
posted by The JAG Hunter at 7:38 AM
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