Part 2

This is the Home of the Brave

non-combat-death.org

History, Part Two

This is the 1978 Act that established Inspectors General and what they are responsible for.OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE, Report of Investigation (Case Number 103-89-3, March 1993.) The Oversight and Investigations Subcommittee of the House Committee on Armed Services in investigating the three Military Criminal Investigation Organizations (MCIOs) – The Naval Investigative Service (NIS), the Army Criminal Investigation Command (CID) and the Air Force Office of Special Investigations (OSI). As part of this effort, the Oversight and Investigations Subcommittee staff was tasked to examine instances in which families of deceased service personnel disputed determinations that their children committed suicide. Ten families met with the subcommittee staff in Washington, D.C. The NIS was involved in eight of the cases and two involved CID. None involved NIS.

This report is a summary of what the staff learned after: Interviewing the families May 13 and 14, 1993; Reviewing the Navy and Marine Corps case files at NIS headquarters in Washington, and; Gathering elements of other information from interviews and discussions. (Footnote: The NIS has recently been renamed ‘Naval Criminal Investigative Service’ (NCIS). It was known as NIS when all the cases described herein originated. Consequently, this report uses that terminology throughout. The Army Criminal Investigation Command has been known as CID from the day when it was a ‘division’ rather than a ‘command.’ The larger, ongoing examination of the MCIOs arose out of the criticisms leveled against their investigative practices following the Moscow Marine Security Guard, Iowa, and Tailhook incidents, to name a few. The families came to Washington to meet with congressional representatives and the subcommittee staff on this issue.)

This was not a reinvestigation of the extant cases. The subcommittee does not have the resources to reinvestigate each case. Moreover, even if there were unlimited resources, some of the cases are very old and thus would be difficult to reinvestigate. Also, the subcommittee does not have the legal authority to change the manner of death determination. In these circumstances, the subcommittee’s principal concern was two-fold: To determine whether the NIS investigations were complete and professional, and To determine whether the families were treated in the fair and courteous manner that the Congress and public expect of Federal officials. It is important to note the difference between the two kinds of investigations that are often conducted in questioned death cases. First, there are JAG Manual (or JAGMAN) investigations. These are administrative investigations conducted pursuant to the Manual of the Judge Advocate General. These investigations are usually ordered by a unit’s commanding officer and are designed to collect and preserve information to help ensure efficiency in the command and administration of the Navy. They allow the proper adjudication and disposition of claims and legal actions for and against the Navy, and make administrative determinations whether personnel are responsible for injuries to persons or property. NIS investigations are different. They are criminal investigations which gather evidence that may be the basis for a criminal prosecution. In a death case, the first issue is whether a crime was committed. When a service member dies off a military installation, NIS will often conduct a supplementary investigation that complements the work of civilian authorities. NIS will furnish evidence or interview witnesses to which civilian authorities have restricted access. In virtually every questioned death case, NIS will open a case file and conduct an investigation, even if it is secondary to another investigation. On the other hand, every service member’s death will not result in a JAG Manual investigation. Those investigations usually occur when there may be civil liability, when safety is at issue, or when the cause of death is not clearly criminal or from natural causes.

(Investigations of Alleged Suicides were conducted to determine if the investigations were complete and professional and to determine whether the families were treated in the fair and courteous manner that the Congress and public expect of Federal officials. They found some problems which resulted in Section 1185 initiation.)

CONCLUSIONS After reviewing these cases, the subcommittee finds the following: Primary Findings First, there are no systemic problems with the way the NIS conducted the suicide investigations. This is not to say there have been no errors or unprofessional actions in individual cases. It is to say, that NIS does not have a policy, campaign, conspiracy, or predisposition to present homicides as suicides, as all the families argued. There is no evidence to support this allegation. Second, the Navy has often been inept in its dealings with the families of the deceased. In turn, this sparked their anger and suspicions. As an institution, the Navy tends to display a degree of arrogance when its judgments are questioned by individuals outside the service. This in turn offends those on the receiving end and feeds their suspicions. In some of the cases, however, the families would still be disbelieving and suspicious no matter how courteously they were treated. Given the level of distrust in government that has arisen over the last quarter century and the nature of death cases, it would be an impossible standard to require that the services satisfy all families in all circumstances. Secondary Findings First, the subcommittee found that, contrary to many families’ assertions, NIS did not have a predisposition to rule the deaths as suicides. Interviews form the crux of any investigation. And in each case, NIS agents spoke to many people to learn about the deceased. Many families felt the standard questions asked by agents about emotional and financial problems were evidence that NIS was starting with an assumption of suicide. But those questions are not evidence of any such assumption; they are simply the means by which agents test one hypothesis. As the Vanderbur case shows, the conclusion reached after raising these questions can be that no available information links the deceased to suicidal tendencies. One cannot reach that conclusion without asking pointed questions about suicidal tendencies. (Footnote: The subcommittee discovered that the Army also had this very problem when the subcommittee investigated the manner in which families of war dead had been treated after Operation Desert Storm.) The families did point to various oversights in the investigation, e.g., a failure to fingerprint, as evidence that NIS agents had a predisposition. In spite of these omissions, there was still sufficient evidence to support the finding of suicide. Additionally, the suggestion of some families that NIS had a predisposition flies in the face of the incentives that drive all law enforcement agents. The subcommittee has randomly questioned dozens of agents who had nothing to do with these cases. It is clear from those interviews that conducting a homicide investigation and securing a conviction is prestigious for agents; they talk about it as a badge of status. Agents have a mind-set that their job is to ‘put the bad guys in jail.’ In any organization, of course, there are likely to be individuals who are lazy or sloppy. But if there is any institutional predisposition in a NIS death investigation, it would logically be to a finding of homicide. Second, the subcommittee finds that the Navy must do a better job notifying families about a loved one’s death. Often, the families were poorly treated by the service casualty officer during the death notification and later by Navy representatives. Some of the families received multiple reports on the cause of death and this naturally fostered suspicion and distrust. Third, the subcommittee finds that some families propound theories based on speculation and allegations of faulty investigations based on inconsequential details. The families need to understand that, while many of their questions are ‘newsworthy’ in the journalistic sense, many are largely irrelevant in the evidentiary context of building an investigative file and prosecuting an individual. The Congress has not funded the MCIOs to the degree that they can be expected to answer questions that are irrelevant or tertiary to a criminal investigation. The subcommittee is, therefore, surprised at the number of times the Navy and NIS went beyond the call of duty to try to satisfy the families’ concerns. In many of the cases, these institutions pursued theories that were either irrelevant to the death investigation or mere conjecture in an attempt to please the families. At the same time, the subcommittee is equally surprised – and disturbed – that these agencies rarely explained to the families why certain lines were not initially pursued and why they lack relevance. The end result is that NIS and the Navy wasted resources and provided the families with fodder for the belief that these issues were overlooked during the original investigation. In sum, if NIS does pursue such ‘newsworthy’ tidbits to assuage a family’s concern, it ought to make clear from the onset that it is doing so as a courtesy. Fourth, the families read the NIS and JAGMAN reports, but they are written without this readership in mind and this creates unnecessary tension. The NIS agents and JAGMAN authors should be sensitized to the types of questions families ask when suicide is the conclusion and incorporate this into the reports. In several of the cases, the reports should have been much clearer about why homicide was not a rational hypothesis. It is unfair (if not impossible) to demand that any investigation prove a negative, i.e., ‘prove’ that a homicide was NOT committed. Nonetheless, in many of the cases it was readily demonstrable that a homicide was only possible if there was a massive conspiracy. In short, these reports are written for Navy officials, but the subcommittee’s suggestion should help dispel the families’ belief that the investigations were conducted with a predisposition towards suicide, and also solidify the reports’ conclusions. Fifth, the subcommittee found that NIS is needlessly uncooperative with the families when they request information about their loved one’s death. The NIS office handling Freedom Of Information Act (FOIA) requests told the subcommittee staff that if a family writes and requests ‘the NIS report’ they will only send the NIS Summary of Investigation. (Such a report is merely a several page summary and does not include the interview reports.) To receive all the documentation that preceded this final report – and which comprises the meat of an investigation – the family must use the magic words ‘entire case file’ or ‘all documentation related to the case.’ Congress previously ordered an end to this practice. The subcommittee reminds the MCIOs that section 1072 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484) provides in pertinent part that: (1) The Secretary of each military department shall ensure that fatality reports and records pertaining to any member of the Armed Forces who dies in the line of duty shall be made available to family members of the service member in accordance with this subsection. ________________________________________________________________________________ (Footnote: The NIS reviewed a draft of this report and denied this assertion after reviewing the eight cases and speaking to individuals in the FOIA office. The NIS stated that ‘the requestor received full disclosure of the entire case file, no matter how the request was articulated.’ The subcommittee staff, however, stands by its finding regarding the handling of FOIA requests.) (2) Within a reasonable period of time after family members of a service member are notified of the members death, but not more than 30 days after the date of notification, the Secretary (of the service) concerned shall ensure that the family members--- (A) in any case in which the cause or circumstances surrounding the death are under investigation, are informed of that fact, of the names of the agencies within the Department of defense conducting the investigations, and of the existence of any reports by such agencies that have been or will be issued as a result of the investigations; and In essence, much of the current practices are illegal and the MCIO’ shall instruct their employees accordingly. (B) are furnished, if the family members so desire, a copy of any completed investigative report and any other completed fatality reports that are available at the time family members are provided the information described in subparagraph (A) to the extent such reports may be furnished consistent with sections 552 and 552a of title 5, United States Code (the Freedom of Information Act.} Sixth, the subcommittee notes the frequency with which families asserted that their offspring’s personal property was not returned by the Navy. One parent supplied a long list of specific items she knew were in her son’s possession and which were not returned. The subcommittee finds the volume of these complaints disturbing. Greater care needs to be taken to ensure that all personal possessions are returned to the family. Finally, the subcommittee finds that the families relied excessively on the presumed utility of certain scientific evidence – fingerprints and gunshot primer residue. Sometimes NIS did not examine the weapon or the crime scene for fingerprints. And in many cases, NIS did not test the victim or suspects for the presence of gunshot primer residue (GSR). The families argued that these omissions demonstrated inadequacies with the investigations. The following discussion about GSR and fingerprints sheds some light on this evidence. At the same time, it recommends that NIS follow current law enforcement practices governing the gathering of this evidence. Gunshot primer residue The current NIS ‘Manual for Investigations’ dictates that ‘where firearms are used, the deceased’s hands must be processed to detect the presence of gunshot residue.’ The staff contacted other law enforcement agencies and compared their GSR practices to NIS’s. The agencies uniformly discredited the utility of GSR evidence; though one of the agencies (District of Columbia Metropolitan Police) always collects GSR samples anyway. GSR analysis has little value and should not be routinely used as an investigative tool during suicide and homicide investigations. More gunshot residue escapes through the barrel with the bullet than through the handle. If a close range shooting victim attempts to grab the gun or instinctively shields his or her head, significant GSR deposits can be left on the hands. In short, the mere presence of GSR in close range shootings does not reveal whether the death was a homicide or suicide. Likewise, a positive GSR test cannot identify the shooter. The FBI Laboratory guidelines on the collection and analysis of GSR reflect this reality. Indeed, the FBI will not analyze a sample if the individual was shot at close range, or if the individual is found in possession of a firearm. The FBI has determined that this analysis is futile because it will not reveal whether the victim (or suspect) discharged the firearm. (Footnote: The Manual establishes NIS’s investigative policy and doctrine, and ensures standardization of methods, procedure and techniques. See NIS Manual at chap.30. & 3014 7. Staff spoke with evidence technicians at the Federal Bureau of Investigation, the district of Columbia Metropolitan Police Department and the Fairfax County (Virginia) Police Department. The NIS informed the subcommittee staff that, while the manual currently requires GSR testing, this is not the practice. The NIS noted that the FBI will not process GSR samples for the NIS unless a suspect maintains that he or she did not handle a firearm. The NIS is currently reviewing the manual to reflect the FBI policy and the overall reliability of GSR evidence. The conclusions discussed in this paragraph can be found in Aaron, Gunshot Primer Residue. FBI Law Enforcement Bulletin, June 1991. The conclusions in this paragraph can be found in the FBI Laboratory Gunshot Primer Residue Examination Guidelines. ) Some of the families also questioned why NIS did not run tests on the victim’s clothes for the presence of GSR. The FBI guidelines instruct that surfaces, other than the hands, are not suitable for GSR examinations. Moreover, the analysis would not shed any light on who actually pulled the trigger. In sum, NIS agents are required to test for the presence of gunshot primer residue, however, they are not following this directive. Since GSR evidence appears to be unavailing, the subcommittee finds that NIS should revise its GSR collection and testing policy to reflect the associated evidentiary difficulties. (Had proper investigations been conducted regarding gunshot residue, the absence of GSR anywhere on the victim may have indicated that the shooter was distant to the victim, creating a possibility that the victim did not cause his own death - and at a minimum, a reasonable doubt may have changed the cause of death to Unknown.) Fingerprints The families were also disturbed when NIS failed to dust the scenes or weapons for fingerprints. The staff reviewed the NIS manual and discussed this issue with the other law enforcement agencies as well. The staff found that, in most instances, fingerprinting is essentially a judgment call. Crime scenes often encompass very large areas and include many objects. Thus, it is not possible (or useful) to dust the entire scene, and officers must use their judgment in deciding what, if anything, to check for prints. Because this is a judgment call, the agents’ decisions on what to dust must be examined on a case-by-case basis. NIS told the families that the guns were not processed for prints either because it was not necessary, or because blood interfered with collection efforts. Officers from the other law enforcement agencies told the staff they will do everything possible to lift a print off a gun; they will not just look at a gun (as NIS did in some cases) and conclude fingerprinting is impossible, In the future, NIS should act in accordance with other law enforcement agencies’ standard practices and make every effort to lift prints off weapons. The NIS’s failure to check the firearms for prints was clearly a mistake. And this contributed to the sour relations between the Navy and the families. Recommendations The subcommittee staff has reviewed only eight case files; it has not reinvestigated any cases and does not suggest that its review is exhaustive. Nonetheless, by taking a fresh look at these cases the staff has gained certain insights and makes the following recommendations: First, the subcommittee recommends that the Department of State Inspector General reinvestigate the death of John R. MacCaskill. The investigation should place particular emphasis on the manner in which the MacCaskill family was treated by Department of State personnel. If a fourth of the allegations the subcommittee heard are only partly accurate, the State Department has a problem that demands its attention. Second, the subcommittee recommends that each MCIO establish, within its headquarters, an office with primary responsibility for dealing with families and others who have questions about investigations. The MCIOs may wish to combine the functions of family relations, press relations and Freedom of Information Act activities into one external relations office. Regardless of the exact structure, the MCIOs must ensure that relations with the families becomes part of their mission; this is not a burdensome and distractive chore. Too many of the families experienced various difficulties in their dealings with the MCIOs. The families have a right to expect fair and reasonable attention in cases of homicide or accidental death. Third, the subcommittee recommends that NIS formally revise its gunshot primer residue (GSR) testing policy to reflect current law enforcement practices. Moreover, in the future NIS and the other MCIOs should explain to the families why samples were not taken and the problems associated with GSR evidence. Fourth, the subcommittee recommends that NIS institute policies and practices that require agents to lift fingerprints off weapons and other relevant evidence, and to conduct ballistics on the firearms found at the crime scene. These actions will help ease the families’ concerns about the quality of the investigation and help confirm the finding of an investigation. (Footnote: The MacCaskill case is the only one in which the subcommittee recommends a reinvestigation. This was not done because the subcommittee believes this case demands more attention than the others. Rather, the MacCaskill case involves the Department of State. As discussed in the ‘Conclusory Note’ below, Congress provided for the Department of Defense Inspector General to review suicide investigation conducted by the MCIOs. The legislation, however, does not direct the Department of State Inspector General to take any action. And, as the MacCaskill discussion revealed, the Department needs to examine its action. Conclusory Note The staff notes that, since its investigation began, more than 70 families have come forward to question the death determinations involving their loved ones in uniform. In these circumstances, Congress enacted legislation that attempt to address some of the families’ concerns. The provision, incorporated in section 1185 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160. directs the Secretary of Defense to review the military departments’ procedures for investigating the deaths of service members that may have resulted from self-inflicted causes. The Secretary is also directed to prescribe regulations governing these types of investigations. Finally, the provision directs the Department of Defense Inspector General to review any suicide investigation conducted by the MCIOs since 1982 where a family requests a reinvestigation and describes specific evidence of a material deficiency in the first investigation.

The Deputy Secretary of Defense Washington D.C. 20301 January 19, 1994 MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS ASSISTANT SECRETARY OF DEFENSE (HEALTH AFFAIRS) ASSISTANT SECRETARY OF DEFENSE (PERSONNEL AND READINESS) COMPTROLLER GENERAL COUNSEL INSPECTOR GENERAL ASSISTANT TO THE SECRETARY OF DEFENSE FOR LEGISLATIVE AFFAIRS DIRECTOR OF ADMINISTRATION AND MANAGEMENT SUBJECT: Department of Defense Compliance with Section 1185 of the National Defense Authorization Act for Fiscal Year 1994. (Public Law 103-160) Prior to the enactment of the subject law, 40 members of Congress requested that a Board of Special Inquiry be established for the purpose of reviewing the evidence in cases of disputed suicides of Service members. However, in light of the direction given to the DoD in Section 1185 of P.L. 103-160 (copy enclosed), I have decided not to establish a Board of Special Inquiry, but to direct the following actions: The Inspector General, Department of Defense, will conduct the review and draft the report required by Section 1185 (a). The Secretaries of the Military Departments will provide comments on the report prior to its submission to the Secretary of Defense for release to the House and Senate Committees on Armed Services. The Inspector General, DoD, will be the proponent for the Secretary of Defense for development of the regulations required by Section 1185 (a). The Secretaries of the Military Departments will review and provide comments, as applicable, on the proposed regulations. Disagreements will be resolved by the General Counsel, DoD. The Secretaries of the Military Departments will refer to the Inspector General, DoD. Within 10 days of receipt, all written requests complying with Section 1185 (b) (3) that identify investigations previously conducted by Defense criminal investigative organizations. Requests for reviews in cases where a Defense criminal investigative organization did not conduct the death investigation should be identified as such and referred to the Inspector General, DoD, for review in connection with implementation of Section 1185 (a). Additionally, the Secretaries of the Military Departments will expedite the delivery of all investigative and other documentation related to the cases for review by the Inspector General, DoD. The Inspector General, DoD, will provide a report on his review of a particular case to the Secretary of the Military Department concerned. The Inspector General, DoD, after consultation with the Secretary of the Military Department concerned, shall provide a copy of the report to the family members who requested the review Your cooperation in assisting the DoD in the effective implementation of Section 1185 of P.L. 103-160 is appreciated. Signed: William J. Perry

July 1, 1994 AMENDMENT NO. 2187 (Purpose: To express the sense of the Senate that the Senate Committee on Armed Services should hold hearings related to the procedures used by the Department of Defense’s investigation organizations when investigating the death of a member of the Armed Forces who, while serving on active duty, died from a cause determined to be self-inflicted.) Mr. COATS, Mr. President, on behalf of Senator Dole I offer an amendment which expresses the sense of the Senate that the Armed Services Committee should hold hearings related to DOD procedures for investigating the death of a service member from a cause determined to be self-inflicted. I send the amendment to the desk and ask for its immediate consideration. THE PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Indiana (Mr. COATS) for Mr. DOLE proposes an amendment numbered 2187. Mr. COATS, Mr. President, I ask unanimous consent that reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: At the appropriate place insert the following new section: SEC. REVIEW OF THE PROCEDURES USED BY DEPARTMENT OF DEFENSE INVESTIGATIVE ORGANIZATIONS WHEN CONDUCTING AN INVESTIGATION INTO THE DEATH OF A MEMBER OF THE ARMED FORCES, WHO, WHILE SERVING ON ACTIVE DUTY DIED FROM A CAUSE DETERMINED TO BE SELF-INFLICTED. SENSE OF CONGRESS. —It is the Sense of Congress that, upon receipt of the report required by section 1185 of the National Defense Authorization Act for Fiscal Year 1994, the Senate Committee on Armed Services should review that report and hold hearings related to the procedures employed by Department of Defense Investigative Organizations when conducting an investigation into the death of a member of the Armed Services, who, while serving on active duty, died from a cause determined to be self-inflicted. Mr. NUNN. I urge adoption of the amendment. Mr. DOLE, Mr. President, this is an amendment which expresses the sense of the Senate that the Senate Armed Services Committee should hold hearings related to the procedures used by the Department of Defense’s investigative organizations when they investigate the death of any member of the Armed Forces, who, while serving on active duty, died from what appears to be a self-inflicted cause. Last week I met with two of my constituents, Royal and Linda Shults of Atchison, KS. The story they related to me was extremely disturbing. However, it is one that I think is important to bring before the Senate. On July 2, 1992, Allen Shults was found dead in his living quarters at Keesler Air Force Base. The Air Force Office of Special Investigations determined that his death was due to asphyxia, induced by self-inflicted hanging. However, Mr. and Mrs. Shults soon learned that he official explanation of their son’s death didn’t fit with the facts. In fact, by conducting their own investigation, Mr. And Mrs. Shults have uncovered evidence of a material deficiency in the Air Force’s original investigation. Unfortunately, the Shultses are not alone. There are families from all over the country, from California to Maine and from Minnesota to Texas who can identify with Mr. And Mrs. Shults. These families have come together to form “Until We Have Answers.” A nationwide organization made up solely of relatives of military personnel whose deaths occurred mysteriously and have been ruled self-inflicted. Each of these families tells of rushed, incomplete, and often fumbled investigations conducted by DOD investigative organizations. I am particularly concerned that, in an effort to close these cases quickly and to prevent embarrassment to local commanders and the armed services, deaths are often ruled self-inflicted without full and complete investigation. We owe the families of our military personnel more. This matter deserves the attention of the Armed Services Committee and I am pleased that the chairman and the ranking member have agreed to accept this amendment. The PRESIDING OFFICER. If there be no further debate, the question is on agreeing to the amendment. The amendment (No. 2187) was agreed to. Mr. COATS, Mr. President, I move to reconsider the vote. Mr. NUNN. I move to lay that motion of the table. The motion to lay on the table was agreed to.

(The President of the United States signed Amendment No. 2187 on October 5, 1994 and it became part of Public Law 103-160.)

The Secretary of Defense Washington, DC 20301 February 8, 1996 Honorable Strom Thurmond Chairman Committee on Armed Services United States Senate Washington, D.C. 20510-6050 Dear Mr. Chairman: Enclosed is the report required pursuant to Section 1185 (a) of Public Law 103-160, the National Defense Authorization Act for Fiscal Year 1994, codified at Title 10, United States Code, Section 113, note, “Investigations of Deaths of Members of the Armed Forces from Self-Inflicted Causes.” I trust that the report will be of assistance to you and other committee members as you prepare for the hearing on the subject of death investigations conducted by the Military Criminal Investigative Organizations in the Department of Defense (DoD). As indicated to you in my letter of December 19, 1995, the Department stands ready to assist your committee in preparing for an informative and beneficial hearing. The report notes that the DoD had not adopted standard policy and procedures for death investigations and, instead, relied upon those of the individual Military Departments. To correct this situation, the Office of the Inspector General has issued DoD Instruction 5505.10, “Investigation of Non-combat Deaths of Active Duty Members of the Armed Forces,” which establishes policy for death investigations. Based on my review of the report, I will direct DoD officials to consider drafting a legislative proposal to amend Section 403 of title 37, United States Code. Under the existing statute, housing benefits may be extended to the dependent survivors of a Service member only where the death occurs in the line of duty. An amendment would be required to authorize the extension of housing benefits in those instances where the death did not occur in the line of duty. This matter will be further explored with the Department and, as appropriate, with the Office of Management and Budget. During the course of the review of the investigative procedures used by the Military Departments, the DoD was contacted by a Member of Congress expressing concern that the DoD was prematurely classifying three deaths that occurred in Haiti as part of “Operation Restore Democracy” as suicides before a proper investigation was completed. To address this matter, the Department also reviewed the DoD and Military Departments’ policies and procedures for releasing information to the public. We found that, in each case, the Military Department involved provided information indicating the death was still under investigation and no final determination had been made. However, press releases on the incidents referenced the deaths as having resulted from “apparent” self-inflicted causes. It was inappropriate and misleading to use such terminology in a situation in which the manner of death remained under investigation. As part of the DoD Instruction 5505.10, it will be DoD policy that public information releases about a non-combat death of a member of the Armed Forces be closely coordinated with the cognizant criminal investigative organization, the casualty assistance officer, and the judge advocate. This policy will help to eliminate reports in the media that a death has been determined to be the result of self-inflicted causes before an appropriate and thorough investigation has been completed. After you and your committee staff have had an opportunity to review the enclosed report, the Inspector General, Department of Defense, will provide copies of the report to the many other congressional offices that have expressed a strong interest in the matter. Should you require additional copies of the report for distribution purposes, you may contact the Office of the Inspector General. Similar letters have been provided to the Ranking Minority Member of your committee, as well as to the Chairman and Ranking Minority Member of the Committee on National Security, House of Representatives. Sincerely William J. Perry Enclosure

A Review of the Issues Identified During the Personal Subcommittee Hearing on Deaths of Military Personnel Which May Have Resulted From Self-Inflicted Causes September 12, 1996 Findings The Subcommittee received written and oral testimony describing destruction and mishandling of potential evidence, incomplete collection of evidence at the crime scenes (fingerprints, photographs, etc.) and contamination of the crime scene. The Subcommittee received written and oral testimony regarding personal property that had been withheld, misplaced, stolen, or destroyed. The Subcommittee received written and oral testimony expressing concern about the difficulties family members encounter trying to receive information under the Freedom of Information Act FOIA). For example, family members testified that photographs, autopsy reports and other official documents are being denied to them and Members of Congress. In addition, due to the various military investigations, each document or report must be requested separately (service, medical examiner, investigating office, etc.). In general, family members feel very little information is provided unless it is requested under FOIA. The Subcommittee received written and oral testimony describing the frustration resulting from the fact that there are frequently several ongoing military investigations with disparate purposes such as line of duty, administrative and criminal which can complicate the timely flow of information. The Subcommittee confirmed the problems encountered because of jurisdictional issues. Family members feel the Department of Defense and the military services terminate their interest in a service member if his or her death occurred off-base. The Subcommittee received compelling written and oral testimony regarding problems with autopsies, including the integrity of a victim’s remains and the handling of these remains. The Subcommittee received extensive testimony regarding the lack of sensitivity during the casualty notification process and assistance. The Subcommittee also received extensive written and oral testimony expressing a belief that investigators rushed to conclude that suicide was the cause of death before all of the evidence was considered. This was one of the most common complaints of families which surely merits corrective action. FROM SENATE ARMD. SERV. COM 08-26-97 10:58AM

Office of the Inspector General, Department of Defense DEPARTMENT OF DEFENSE POLICIES AND PROCEDURES FOR DEATH INVESTIGATIONS Executive Summary Introduction. The National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160) contained Section 1185 (codified at 10 United States Code, Section 113, note ‘Investigations of Deaths of Members of the Armed Forces from Self-Inflicted Causes’) (the Act). The Act required the Secretary of Defense to review the Military Departments’ procedures for investigating the deaths of Armed Forces members that may have been self-inflicted, and to report to the Committees on Armed Services of the Senate and House of Representatives. Section 1185 also required the Secretary of Defense to issue regulations for such investigations. The Deputy Secretary of Defense directed that we conduct the review and prepare the regulations required in the statute. Objectives. Our review focused on whether current policies and procedures are adequate to ensure thorough, appropriate and consistent investigations of possible self-inflicted death cases, and whether family questions and concerns following the deaths are properly addressed. Our review included assessing whether the individuals who conduct the investigations have been adequately trained. In addition, based on a congressional request, we assessed whether the Department of Defense’s (DoD) press releases on several specific deaths prematurely classified the deaths as self-inflicted. Review Results. The DoD had not adopted standard policies and procedures for death investigations and, instead, relied upon those of the individual Military Departments. While we identified some opportunities for improvement, the Military Departments had effective policies, procedures and training for the criminal investigations they conduct in death cases. This does not mean, however, that the guidelines are properly implemented in every death case. We are continuing to review individual death cases in accordance with Section 1185(b) of the Act and will address any implementation problems in our reports on the individual cases. 1) The term ‘self-inflicted’ is not normally used in determinations or classifications of the manner of death. The term encompasses both suicide and accidental deaths. Based on the Handbook of Forensic Pathology, Richard C. Froede, MD, Editor, College of American Pathologists, 1990, suicide is a manner of death that is caused by a purposeful action intended to result in one’s own death, while accidental death is a manner of death that results inadvertently or where no harm was intended. PAGE MISSING PART I - INTRODUCTION Section 1185 of the National Defense Authorization Act for Fiscal Year 1994 directed that the Secretary of Defense take certain actions regarding the investigations of possible self-inflicted deaths of active duty military members (Appendix A). The congressional action responded to questions and concerns by surviving family members who believed that the determination of cause or manner of death was incorrect, or that facts and circumstances surrounding the death were not adequately investigated. Section 1185(a) of the Act directed the Secretary of Defense to review the procedures of the Military Departments for investigating self-inflicted deaths and issue a report to the Committees on Armed Services of the Senate and House of Representatives by July 15, 1994. The Secretary of Defense was also required to issue DoD-wide regulations for the investigation of possible self-inflicted deaths and to set a deadline for their implementation. Section 1185(b) directed the DoD Inspector General (DoDIG) to review certain individual investigations into the deaths of active duty Service members when the cause was determined to be self-inflicted and to issue a report on each review. The DoDIG was to perform a review when a family member made a request and presented evidence of a material deficiency in the original investigation done by a DoD investigative organization. According to Section 1185(b) of the Act, the death must have occurred between January 1, 1982, and the date for implementing the new DoD regulations required by Section 1185(a). In a memorandum dated January 19, 1994, the Deputy Secretary of Defense directed the DoDIG to conduct the review, prepare the applicable report and prepare the DoD regulations required by Section 1185(a) (Appendix B). Subsequently, the DoD advised the Chairmen of the Committees on Armed Services of the Senate and the House that the study would be delayed until the 2nd quarter of fiscal year 1996. BACKGROUND Military Criminal Investigative Organizations Each MCIO is responsible for investigating noncombat deaths of active duty members of the Armed Forces where medical authorities have not determined that death resulted from natural causes. The MCIOs are the U.S. Army Criminal Investigation Command (USACIDC), the Naval Criminal Investigative Service (NCIS) PAGE MISSING Inadequate records maintenance, lack of standardization and inadequate training; and (3) the Office of the Secretary of Defense was not actively overseeing the DoD Casualty and Mortuary Programs. We also identified problems in the implementation of the existing policies and procedures and made appropriate recommendations for improvement. The DoD concurred with our recommendations and has implemented, or is in the process of implementing, the needed improvements. OBJECTIVES, SCOPE AND METHODOLOGY Section 1185(a) Review Our objective was to determine whether the Military Departments’ policies and procedures for investigating deaths of active duty military members from apparent self-inflicted causes were sufficient to ensure adequate criminal investigations. The MCIO policies and procedures require that they investigate all noncombat deaths from other than medically determined natural causes as potential homicides until evidence established otherwise. Therefore, we reviewed the policies and procedures for the conduct of all death investigations. We also evaluated the concerns expressed by the families in 45 of the requests for individual case review submitted under Section 1185(b) to identify common issues that might reflect a systemic weakness in policy, procedure, or agent training. In addition, based on published guidance by technical experts in the field, we developed a set of criteria upon which to compare MCIO investigative techniques and processes. We also compared the individual Military Department regulations to identify any particular ‘best practice’ that all of the Military Departments should adopt. Finally, we reviewed the MCIO basic and advanced agent training programs to determine whether agents are properly trained to investigate death cases. As part of this process, we reviewed course outlines and materials, visited agent training academies and observed ongoing classes, and interviewed instructors and training department managers. To develop a basis for assessing the Military Department policies and procedures, we contacted a wide range of law enforcement organizations to identify the authoritative sources that they use as references in death investigations. Our inquiries resulted in input from large agencies such as New York City, Chicago, Baltimore and Philadelphia Police Departments. We also contacted moderately-sized police departments, such as those in Fairfax and Prince William Counties, Virginia, and Montgomery and Ann Arundel Counties, Maryland. The police departments that we contacted identified a number of authoritative books and publications used as references in death investigations. The documents most frequently cited were the Police Investigation Handbook, Barton L. Ingraham and Thomas P. Mauriello, Matthew Bender & Co., 1993, and Practical Homicide PAGE MISSING Section 1185(b) Reviews During our review, we analyzed 45 requests for individual reviews under Section 1185(b): 19 Army, 12 Navy, 7 Marine Corps, and 7 Air Force. Twenty one of the 45 cases involved U.S. civilian or foreign authority, not DoD, determinations of the cause and manner of death. Seventeen of the 45 requests raised concerns about how the investigators conducted their work, what tests were done and how the ‘crime scenes’ were handled. All 17 of these cases involved investigations that initially were conducted by local, state, other Federal, or foreign law enforcement organizations, rather than by an MCIO. In reviewing the reasons why families requested individual reviews under 1185(b), we found that most family concerns that involved cases within the Military Departments’ investigative jurisdictions dealt with the use of Psychological autopsies, administrative investigations, casualty notification and assistance, and property disposition. Accordingly, we expanded our review to cover those areas. Release of Information to the Public During the review, we received correspondence from a congressional member expressing concerns that the DoD was prematurely classifying certain deaths as suicides. Therefore, we also reviewed the DoD and Military Department policies and procedures for releasing information to the public. PAGE MISSING
To comply with Section 1185(a), we prepared a DoD Instruction, requested comments, and are in the process of issuing DoD Instruction 5505.10, ‘Investigation of Noncombat Deaths of Active Duty Members of the Armed Forces,’ to establish standard policy for DoD death investigations. In addition, this report includes specific recommendations to address problems or opportunities for improvement that we identified.

May 8, 1998 CA65-SUI Title V ISI__SASC Majority: Abell __SASC Majority: Henry May 8,1998 Investigations Of Military Deaths The Committee has been interested in improving the procedures and practices used by the criminal investigation agencies of the military departments when investigating the deaths of service members. In September 1996, on behalf of the committees, the Personnel Subcommittee held a hearing that examined the procedures and practices used by the criminal investigation agencies of the military departments during their investigation of military deaths that may have resulted from self-inflicted wounds. Following the hearing, the subcommittee chairman sent letters to the service secretaries identifying the shortcomings and lessons learned during the hearing and requesting a report on each department’s implementation of the recommended improvements. The subcommittee chairman had continued to meet with families of military personnel, whose death may have resulted from self-inflicted causes, to review the status of implementation of the suggested improvements. Additionally, the subcommittee chairman had written to the local law enforcement official in each case in which the family of a service member, whose death may have resulted from self-inflicted causes, requested review of their case. In each case, the subcommittee chairman has followed up to ensure that the local sheriff or chief of police reviewed the original investigation and provided an assessment of the facts of the case. As a result of these activities, the committee believes the military departments and the criminal investigative services have improved the procedures and practices used to investigate military deaths and those governing support to the families. Still, there is work that should be done. The committee remains concerned about the use of psychological autopsies. The military departments must ensure that those who conduct a psychological autopsy are qualified to conduct such activities. The committee believes that the next of kin of the deceased should be permitted to review the report. The committee recommends that the secretaries of the military departments review the qualifications of the military criminal investigators to ensure that those assigned to these critical positions are sufficiently trained and have the maturity to conduct a detailed, fact-based investigation. The committee directs the Secretary of Defense to review the policies, regulations, directives, and practices used by the military departments to describe the cause of death on the military equivalent of the death certificate. In cases in which the cause of death cannot be absolutely determined, the cause of death may be more appropriately listed as undetermined. Recently, the committee was surprised and disappointed that a military department determined the cause of death of a pilot to be suicide solely because they could not find another cause. Suicide, like homicide, should be determined as a result of evidence, not conjecture or as a matter of default when other Causes cannot be determined. The committees acknowledges the professional work of the Department of Defense Inspector General in conducting reviews of cases requested by families of military deaths that may have resulted from self-inflicted causes. While many families remain skeptical of the fidelity and professionalism of the reviews, as well as the original investigation, the Inspector General has recommended important changes to policies and investigative procedures to the military departments. The committee continues to urge the secretaries of the military departments to implement the recommendations of the Department of Defense Inspector General.

It is very important that one become familiar with the requirements set forth in the following document so that we can hold the military responsible for following the rules of conduct. It literally spells out exactly what the military must do in deaths deemed to be self-inflicted. It is the standard by which to hold them - it is the rules they must follow. Military MUST be held to - and made accountable for the requirements set forth by Congress.

Full text of 5505.10 titled "Investigation of Non-combat Deaths of Active Duty Members of the Armed Forces"

Copyright non-combat-death.org. Please contact us for permission to use our material.