Congressman Pallone’s Study of Non-Hostile Death Investigations

 

Statement of Congressman Frank Pallone, Jr.

12 September 1996

 

Subcommittee on Personnel, Senate Armed Services committee

 

More that three years ago, Congressman Dave Levy and I began a joint effort to have Congress and the Department of Defense recognize deficiencies and correct the findings of investigations that have been conducted into the deaths of certain servicemen–our constituents–who are alleged to have died by their own hand.

 

We are joined in this effort by many other members of Congress and their own constituents, family members who have been devastated by similar losses. These families joined together in an informal organization that is represented here today. They provided the motivation that resulted in enactment of our Section 1185 amendment to the Fical ‘94 DOD Authorization bill, which directed preparation of the report this committee addresses today.

 

While I am submitting for the record a brief summary of my findings from the study of approximately eighty cases of unattended, non-combat military deaths, there are several specific things I need to say.

First, I am repeatedly asked if I believe that the problems I have identified in the study of unattended deaths are systemic throughout the military.

 

My answer is yes. With few exceptions, the deficits in investigations that I have reviewed have occurred everywhere and exist in each branch of the military.I have been asked to explain why there are not more families questioning or challenging determinations of self-inflicted death, if the problems are systemic?

 

That question assumes that each family was somehow notified that they could request a review by the DOD Inspector General’s office, which was not and is not the case. My understanding from families interviewed is that they usually spend considerable time in the first two years after the death in pursuing answers and documentation.

 

In too many cases, over a year will pass before the final report is issued. Many families have never received specific information that has been requested.After the emotional exhaustion of months or years of being patronized or ignored, countless citations of regulations barring information, delays in receiving reports and the finality of those reports – none of which provide recourse – many families have resigned themselves to their grief and come away with a sense of helplessness and a loss of faith in their government. Others, such as those here today, have begun to meet with each other at a crossroads of grief and anger as they understand the commonality of not only their loss, but their experiences with the Department of Defense.

 

These families have chosen to seek accountability and answers. They have endured exhumations, second autopsies, brutal discussions of crime scene photos and they have often sought out independent expert opinions.

 

They now want the records of these deaths amended because the military has not proven, through competent investigation, the manner of death – only the cause. They look now to you for recourse and for your collective commitment to families who may be similarly affected in the future.

 

Frequently I am asked whether or not I believe these families are “in denial,” which has become a catch-all phrase utilized by many military investigators and officials to describe those families who refuse to accept the official findings. This question appears to be based on failure to understand that a self-inflicted death – a suicide – is the only manner of death wherein the victim is also charged with the crime. But the victim cannot speak, nor defend himself. And in a system where no provision exists to act in that capacity, the victim’s families must.

 

The motivating force behind these families is one of defense, not denial.

 

Overall, the military investigators have not proven their cases against these servicemen. In fact, there is no mechanism within the military, no defense attorney, no investigative review board, that requires the military investigators to substantiate their allegations against these deceased servicemen and women. Even if, gentlemen, respected, professional opinion contradicts their findings. If an attempt were made to support a homicide charge with the types of investigations currently used to determine that an unattended death was accidental of self-inflicted, no court in the land would entertain such a prosecution. There would be no conviction.

 

But here we have death after death–over (230) in 1995 and over four thousand(4000) since 1979–subjected to flawed and incomplete investigations that have led to findings of suicide or accidental self-inflicted death: findings that are set in stone despite evidence to the contrary.

 

My 21- year-old constiuent, Marine Lance Corporal ——– ——- , died of a contact bullet wound to the head. Another young Marine was court-martialed for involuntary manslaughter, based upon an admission to a friend. In the end, the other Marine was aquitted because he had never been read his rights, because critical paperwork disappeared and because evidence had been mishandled. This case remains as a self-inflicted death on the records.

 

In most of the more recent cases, the armed forces’ employment of psychological autopsies has compounded the injury done to these families. It’s use, without checks and challenges, by under-specialized and possibly under-educated investigators has become a tool to conform or provide evidence where concrete evidence exists.

 

In many of these cases, relationships between the victim and everyone that ever played a part in that victim’s life is dissected in a vacuum.

 

The importance of ordinary incidents and activities in a young person’s life is magnified.

 

Suddenly, the psychological autopsy becomes riddled with clichés describing why the victim took his life.: Actual examples are the following: If he bounced a check, he had financial problems. If he liked to hike, he was a loner. If his grandfather drank too much, he was probably an alcoholic. If he was found to have been a homosexual, he was unhappy. If he worked out, he was overly concerned with being strong. If he had broken up with a girlfriend any time in his life, he never got over the rejection. If he argued with his parents, he was a disciplinary problem or the parents were overly harsh.

 

I must say that I have the greatest respect of the criminal profiling efforts of the FBI experts at Quantico. I appreciate that developments in this field have lent valuable assistance to police throughout the country. I acknowledge that valuable psychological autopsies spring from such profiling.

 

However, psychological profiling as is currently being utilized in military psychological autopsies is only as good as the information provided to the profiler by criminal investigators who have performed a thorough criminal investigation.

 

If, in fact, a DOD investigator is misusing information, misquoting witnesses and is deliberately or unknowingly misdirecting the profiler, the psychological autopsy is irretrievably corrupted.

 

If the physical evidence from the body and the crime scene is withheld or mishandled, the profiler preparing the psychological autopsy is missing key elements in making his report. And here again, once these reports are prepared and part of the record, there exists no remedy to correct erroneous information alleged to be factual. In one case, for example, the mother of a young Air Force woman, must live with a report stating that she had little communication or contact with her daughter, despite having enjoyed a two-week touring vacation with her daughter shortly before her death. Without exception among these families, the flawed investigations, the reports, the unsupported findings and the absence of recourse are of continuing insult and immense personal pain to each family.

 

We all recognize that suicides and self-inflicted deaths do happen. Often to our best and brightest without warning indicators. They are an unexpected, tragic and frequently unpreventable end to many young lives. However, the number of such military deaths is three times higher than their homicide rate and the suicide, self-inflicted determinations are usually made within a few hours after death.

 

I submit that it is grossly improper and an unacceptable affront to these families to precipitously arrive at the determination that any death was self-inflicted prior to completing a thorough investigation whose findings will withstand the same scrutiny as would those for a homicide.

It is obvious there must be recourse to resolve differences of professional opinion; recourse in correcting military records concerning the manner of death; procedural changes in the procedures and practices of military criminal investigators; a means by which there is federal investigatory involvement in those deaths which occur in civilian jurisdictions; the entitlement to a full physical autopsy documenting each physical finding no matter in what jurisdiction the death occurred; and a substantial change in the process of preparing psychological autopsies.

 

Thank you.

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ISSUES SUMMARY

MILITARY NON-COMBAT, UNATTENDED DEATHS

 

Prepared by Congressman Frank Pallone, Jr.

 

Area one: Crime scene protection, evidence collection and retention, photographs and investigative procedures:

 

A. Often the crime scene is not secured, particularly if the victim is still alive when found and the primary focus is directed toward life saving efforts. In these situations, often hours go by before the attention of investigators goes to the scene and individuals present at the time of the incident.

 

B. Collection and handling of evidence is incomplete and often sloppy. There is no clear mandatory period for retention of physical evidence after the investigation is concluded. The decision to close an investigation rests with the Command and physical evidence can then be destroyed.

 

C. Photographs taken by civilian jurisdictions when the victim is found off base are often of very poor quality (i.e. snapshots) or are incomplete.

 

D. Photographs taken by civilian jurisdiction officials may or may not be made available to the family and even if they are provided to the Department of Defense, the civilian jurisdiction controls the release (even to family or Congressional offices) of the photographs.

 

E. Fingerprints are not mandatory nor often requested of witnesses or those in area with the victim at the time of the incident or those having had problems with the victim. Neither is there immediate nitrate/powder testing on those individuals. Frequently hours pass before such testing. Fingerprinting of crime scene is incomplete and at times non-existent.

 

F. There is a failure to use common investigative techniques and procedures currently utilized throughout the country’s police departments, even when training has been comparable to that of civilian equivalent authorities.

 

G. Investigators appear to make a suicide/self-inflicted or accidental determination prior to initiating an investigation and that predisposition controls the conduct of the investigation. This attitude was clearly stated by a Commander from Camp Pendleton who was quoted in the Bergen Record 9/26/93 as saying “Normally, it’s very obvious what happened. Most of these are witnessed and the circumstances are such that it’s pretty clear what took place”. This attitude is common throughout the military and pervades each case from Command level down.

 

Area Two: Notification process, assignment and participation of casualty officer:

 

A. There are extreme variations in relating to family members the facts of what happened as well as errors in relating when and where the death occurred. Some families receive as many as four variations in the circumstances.Casualty officers assigned to families lack detailed information, lack procedural information and are frequently changed throughout the course of the investigation.

 

Area Three: Autopsy authorization, autopsy photographs, treatment of remains and notification of procedural information:

 

A. There is an evident lack of explanation concerning military autopsy and treatment of remains, and in many cases the absence of any description of other markings, injuries and lacerations in the report.

 

B. Deaths occurring in civilian jurisdiction may or may not have a full autopsy, which may or may not be photographed and those photographs may or may not be made available to families. As a result of the lack of mandatory conformity in the deaths of active duty military personnel, autopsies may solely state the cause of death and never note defensive or other injuries, bruising, lacerations, etc. The injuries are often not known until the family receives the photographs, has a second autopsy or receives the crime scene photographs.

 

C. There is a complete failure to inform families concerning the remains of the victim and serious violations of existing military regulations governing the treatment of remains frequently occurs.

 

Area Four: Theft of personal belongings of deceased servicemen and women:

 

A. There is widespread random looting of the personal belongings of victims, before and after it has been inventoried. Almost without exception, families find that numerous articles are missing, ranging in size and value, even after they have been inventoried.

 

B. Often the military makes a determination as to whether certain personal belongings are suitable to be returned and will remove those items they deem unsuitable. Journals are read and pages removed or entirely confiscated.

 

Area Five: Psychological autopsy as determining factor in manner of death:

 

A. There is widespread use of rumor and unverified information contained in current psychological autopsies, and they frequently appear to be an attempt to explain why a criminal investigation was not thoroughly conducted.

 

B. The use of unverified and erroneous information, aside from being profoundly hurtful to the families, provides investigators with an opportunity to conform evidence, with which intent is established. In order for there to be a suicide, there must be intent. Without proof of intent, and in the face of flawed investigations, the manner of these deaths should be recategorized as ‘undetermined’.

 

Area Six: Deaths within civilian jurisdictions:

 

A. Servicemen who die off base are usually not well-served by either local or military investigators.

 

B. There are widespread problems presented by the fact that localities do no want to expend their resources on “military personnel” and the military does not have jurisdiction to become the lead investigative agency. In effect, the death has occurred in “no-man’s-land”, further compounded by command desires to stay on non-critical and friendly terms with hosting community officials.

 

Area Seven: Release of information, photos and response to questions during the investigations and after:

 

A. Despite regulations to the contrary, over and over again families must write, often appeal and wait an inordinate amount of time for records, reports and photos.

 

B. Responses to questions are incomplete or nor ever forthcoming and never is there a ‘session’ wherein the entire case is reviewed with the family.

 

C. Without exception, an arrogance of attitude by the military is reported by the families in most of their contacts with base officials. Families feel that they are viewed with contempt and that their children are dishonored.

 

OVERVIEW:

 

1. Aside from numerous inadequacies existing in these investigations that conclude with a finding of self-inflicted, there is substantial reason to believe that many investigations concluding with a finding of accidental death are similarly flawed and initially should have been fully investigated. This is particularly true when the deaths or disappearances are unnatural and are not crash related or attributed to training.

 

2. There is substantial need to resolve the jurisdiction problems of investigation when a serviceman or woman dies off base, to assure that there is a full autopsy , that there is a complete and professional investigation and that no reports, photos and information can be withheld from the families. There may be some need to discuss the possibility of investigative lead being taken by a federal investigating agency, such as the FBI, thereby taking it out of the hands of both the civilian and military jurisdictions.

 

3. There is a compelling need for a suicide prevention action program that utilizes the expertise of professionals and that encompasses an “immediate safety net” approach to troubled and fearful servicemen and women-one which allows them to remove themselves from a threatening situation. Many of the cases reviewed contained information that the deceased serviceman or woman had been physically threatened or intimidated for a variety of reasons.

 

4. The establishment of a board of investigative review should be seriously considered within the Department of Defense, to assure that conflicting medical, technical and investigative opinions are heard and weighed in those cases where conflicts exist and the families make the request. Such a board should be able to recommend and implement a change in the official records concerning the manner of death, when the evidence or lack thereof supports it.

 

END