Report by Debbie Clark
On Thursday, May 12, 2005, I attended the new Art. 32 investigative hearing at Fort Stewart, Georgia of the case against Sgt. Kevin Benderman, a soldier who requested conscientious objector status subsequent to serving in the invasion of Iraq in 2003 and allegedly refused a second deployment. I had traveled from Atlanta to Fort Stewart thinking I was attending Sgt. Benderman’s court martial, which began Wednesday afternoon, May 11, 2005, and was scheduled to continue on May 12 at 8 AM. However, upon arriving there, I learned that the court martial had been halted and the Art. 32 investigative hearing was started over again with a new investigating officer as it was ruled by the judge the previous day during the court martial that the original investigating officer who recommended trying him in a general court-martial had compromised her impartiality in an e-mail to a military prosecutor without cc’ing the email to the defense.
The Art. 32 investigative hearing was in regard to charges against Sgt. Benderman of desertion and missing movement by design (Articles 85 and 87 in the Uniform Code of Military Justice) stemming from Sgt. Benderman’s refusal to redeploy to Iraq the weekend of January 7 subsequent to his application for conscientious objector status.
The new hearing began with testimony by Sgt. Benderman’s company commander, Cpt. Gary Rowley, who is currently serving in Tikrit, Iraq and was brought back in order to testify. Cpt. Rowley described the circumstances surrounding Sgt. Benderman’s request for conscientious objector status, which he was notified about on December 31, 2004, and what occurred around the time frame that Sgt. Benderman refused second deployment to Iraq on January 7. He stated that on January 7, he was getting his unit ready for deployment to Iraq and was very busy with that, complicated by the attempted suicide that day of one of the soldiers in his unit. Cpt. Rowley stated that he was not able to meet with Sgt. Benderman that day at the planned time of 1500, nor at 1700, but that the battalion sergeant major met with him at 1700. Cpt. Rowley further stated that he did not give Sgt. Benderman permission to not deploy to Iraq and that he was still on the “manifest,” which is the roster of the soldiers who are to deploy to Iraq and which included everyone in the unit except for those not fit, such as those with medical profiles. (It was noted by the defense that the name of the soldier who attempted suicide and was admitted to the psychiatric ward was still on that roster along with Sgt. Benderman’s.)
The defense’s initial questioning of Cpt. Rowley focused on the procedures followed by Cpt. Rowley in handling the conscientious objector request of Sgt. Benderman. After a while, this brought objection from the prosecution, however, the defense was allowed to complete the line of questioning. During this time, Cpt. Rowley plainly acknowledged that he had never handled a conscientious objector request before and did not know the proper procedures to follow, nor was he even familiar with the official Army regulation to be followed in handling such a request. Cpt. Rowley stated that he had recommended disapproval of the request for conscientious objector status because Sgt. Benderman seemed more opposed to the Iraq war, the stop-loss policy, etc., rather than being opposed to all war. (Sgt. Benderman’s article, “Why I Refused a Second Deployment to Iraq” was one of the exhibits in the hearing.)
The primary question being explored by the defense during Cpt. Rowley’s testimony and that of subsequent witnesses seemed to be whether or not Sgt. Benderman had been authorized through his chain of command to not deploy to Iraq.
The next witness brought in was the wife of the soldier who had attempted suicide on the weekend of the re-deployment to Iraq and she testified as to the contact she had had with Sgt. Benderman and his wife that weekend. This was followed by testimony of the battalion sergeant major concerning his contact with Sgt. Benderman on Jan. 7. (It struck me that perhaps the truest thing he testified to, is that an NCO with ten years in the Army is hard to scare.)
The battalion adjutant, who was the commander of the rear detachment (comprising those who did not deploy to Iraq), testified next. He said that Sgt. Benderman had been reassigned to rear detachment that weekend based on his refusal to deploy to Iraq. He further testified that he had been told that Sgt. Benderman was on duty January 10 and that he met with him that evening, during which time he told him to report the next morning for duty, which he did. He took a sworn statement from Sgt. Benderman covering the events January 7-10. (This statement, which both the defense and prosecution had a copy of, as well as the investigating officer, was not read aloud during the hearing, hence the content of it was not made known to those in attendance.)
In a surprise move preceding the start of the hearing that day – which started late – the prosecution had tacked on the additional charge of Larceny based on Sgt. Benderman’s being paid combat pay, including hazardous duty pay, family separation pay, and safe pay, since January 2005 when his unit re-deployed to Iraq. Called in as a witness for the prosecution relative to this was the finance officer of the Soldier Service Center who testified that this extra combat pay was started on February 12, 2005, retroactive to January. Questioning by the defense brought out the clarification that this pay was not initiated by Sgt. Benderman; it was started by the Army. The finance officer further testified that Sgt. Benderman was one of five individuals in his unit receiving this pay who had not gone to Iraq.
[I naturally wondered, since Sgt. Benderman has been charged with Larceny for receiving extra pay which the Army had initiated and had not yet stopped and recouped, if the other four members of his unit who were in the same situation were going to likewise be brought up on charges of Larceny. I can just see it now: Cpt. Rowley trying to report five cases of Larceny to the Military Police, allegedly committed by five members of his unit because of a screw-up by the Army which the Army had not yet straightened out. (I doubt I need to mention to anyone who has ever served in the Army how difficult it can sometimes be to get one’s pay straightened out once it gets screwed up…)]
Following the testimony of the finance officer, the unit’s first sergeant – flown in from Iraq to testify – took the stand and stated that he did not see or hear from Sgt. Benderman on January 7. He stated that all soldiers in the unit were supposed to be assembled at 1500 (3 PM) that day and that if any soldier was not there, then there was a problem. He had been told that Sgt. Benderman was at Battalion at that time. Upon questioning, he explained that the last time that a soldier could show up and still make the plane for deployment to Iraq was 2300-2400 (11 PM to midnight)
(It was noted that neither the company commander nor the company’s first sergeant apparently felt any need to address the defense attorney as "sir," in spite of the defense attorney being a major and outranking both of them…)
Next to testify was a sergeant in the unit who was on duty as the duty NCO on January 7 and he testified that Sgt. Benderman was there at 1500 to see the battalion sergeant major. A copy of the log that he kept was introduced as an exhibit and attention was brought to a log entry for 1714 (5:14 PM) directed by the sergeant major that Sgt. Benderman had refused to deploy. The duty NCO stated that the handwriting of that entry in the log looked like his own writing, but could not specifically remember making this log entry.
Because the defense needed additional time to prepare in regard to the unexpected additional charge of Larceny, the Art. 32 investigative hearing was scheduled to reconvene at 9 AM, May 26, 2005.