War on Men in the Military: Cases Shockingly Similar

While reading a WRAL.com article today, I couldn’t help but notice similarities between the sexual assault prosecutions of Army Brig. Gen. Jeffrey Sinclair and Sgt. 1st Class Kelly A. Stewart, the man whose wrongful conviction is chronicled in my first nonfiction book, Three Days In August.

U.S. Army Brig. Gen. Jeffrey A. Sinclair, the deputy commanding general of support with the 82nd Airborne Division and Regional Command-South, speaks with Afghan media outside of a school near Forward Operating Base Howz-e-Madad in Kandahar, Afghanistan, Nov. 16, 2011. Sinclair was attending an open house, where Afghan students received backpacks full of school supplies. (U.S. Army photo by Sgt. Amanda Hils/Released)

U.S. Army Brig. Gen. Jeffrey A. Sinclair is shown near Forward Operating Base Howz-e-Madad in Kandahar, Afghanistan, Nov. 16, 2011. (U.S. Army photo by Sgt. Amanda Hils/Released)

One example can be found in the three paragraphs that follow an explanation of how the military judge in the case decided to prosecute despite a recommendation from the lead prosecutor that General Sinclair’s plea to a charge of adultery be accepted.  The example begins in paragraph four as follows:

The defense contends that the captain, who served with Sinclair in Iraq and Afghanistan, committed perjury in a January hearing about finding text messages form Sinclair on an old cellphone, making her a poor witness on which to build a case against the general.

The captain said in the January hearing that she came across the old phone in December and charged it up to see if there was anything on it that would affect Sinclair’s court-martial. A defense forensics expert contradicted her testimony, saying she had turned the phone on several times in the months before she said she found it packed in a box.

The defense argues in the motion that the Army continues to press the case only to support a get-tough policy against sex assault in the military.

Notice the word, perjury, and how a forensics expert proved it?  Apparently, perjury by a female in a military sexual assault case isn’t cause for concern.

In the case of Stewart, a highly-decorated Green Beret combat veteran, several instances of perjury surfaced during and after his court-martial.

Read the reviews.

Read the reviews.

Two that surfaced during the trial involved a German police detective and a taxi driver whose memory issues are highlighted in the article, German Police Detective Has Memory Issues Like Accuser.

One arose during the pre-sentencing phase and involved the accuser offering a strange definition of “contact.”

Yet another was brought to the court’s attention by a long-time friend of the accuser who made a post-trial statement that should have netted Stewart a new trial.

I, for one, can’t wait to read the trial transcript if or when General Sinclair’s case reaches the trial phase.  Why?  Because I suspect it will be as chock full of half-truths, lies and innuendo as Stewart’s trial was as the War on Men in the Military continues.

UPDATE 3/16/2014 at 8:11 p.m. Central:  Sexual assault charges dropped against general after case tainted by political influence.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Oklahoma Army Officer’s Appeal Rejected by Justices

A crucial milestone in the military’s case against Army Ranger 1st Lt. Michael Behenna passed today as the U.S. Supreme Court announced justices rejected the appeal filed on behalf of the Edmond, Okla., native who was convicted in 2009 of unpremeditated murder after he shot and killed Ali Mansur, a known al-Qaeda operative, in what he said was self-defense near Baghdad May 16, 2008.

Michael-Behenna-Photo-CollageThough I’ve written more than 60 articles about the lieutenant’s case since June 4, 2009, I share links to a handful of the most important ones below:

Army 15-6 Investigation Report Proves Elusive (Jan. 15, 2013);

Is Army Protecting Someone in Officer’s Chain of Command? (Aug. 20, 2012);

American Warfighters Deserve Same Consideration as Taliban (July 17, 2012); and

Photos Show Scene Where Trail of Injustice Began (Feb. 10, 2010).

With almost 11 years remaining on his sentence, it remains unclear as to how many of those years he must serve before being given the opportunity for parole. Until then, I hope you will write to him at the address below to show your support:

Michael Behenna #87503
1300 N. Warehouse Road
Fort Leavenworth, KS 66027-2304

FYI:  Behenna and Kelly Stewart, the Green Beret combat veteran whose life and wrongful conviction are chronicled in my book, Three Days In August, were good friends while both were behind bars at Fort Leavenworth.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Supreme Court Battle Will Be Costly for Oklahoma Soldier

EDITOR’S NOTE: I’ve been following the case of Army Ranger 1st Lt. Michael Behenna since 2009. In addition, I wrote a book, Three Days In August, about Army Sgt. 1st Class Kelly A. Stewart, another wrongfully-convicted man he befriended while both served time behind the walls of the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan. Today, I share an email from someone very familiar with his case:

To the thousands of Michael supporters,

My name is David Wahl. I am the father of Michael Behenna’s girlfriend Shannon Wahl and run the DefendMichael.com website. I have known Michael for several years going back to when Michael and Shannon first started dating. I attended Michael’s officer school graduation at Fort Benning, his Ranger school graduation, and his deployment to Iraq from Fort Campbell. I was in the courtroom for Michael’s trial for premeditated murder at Fort Campbell, including the moment when a jury of seven non-combat officers convicted him of unpremeditated murder. I witnessed the stunned look of betrayal on Michael’s face. I was in that same courtroom again three weeks later when the trial judge denied a request for a mistrial on a Brady Law violation (the government had withheld evidence.) And I was in the small room at the back of that courtroom with Michael and his family for his last thirty minutes of freedom before he was taken away.

Clockwise from upper left:  Michael's family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

Clockwise from upper left: Michael’s family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

These past four years that Michael has sat in a small prison cell at Fort Leavenworth have been a tortuous journey for those closest to him – but as you can imagine, most of all for his parents Vicki and Scott. They have endured the emotional pain of seeing their son treated as a criminal at the hands of a broken and blind military justice system, of five hour drives to ‘celebrate’ birthdays and holidays in a noisy visitation center, of the heartbreak of one court ruling after another go against Michael, of bizarre prison rules that change from visit to visit and which make civilian prisons look like Club Med.

But beyond the emotional toll that the Behenna’s have carried is the financial burden of taking on the United States government that has unlimited resources at their disposal (our tax dollars hard at work.) Starting with the original trial to the Court of Appeals of the Armed Forces [sic] appeal which we lost by a narrow 3-2 vote the Behenna’s have spent well over $400,000 in their fight for their son’s freedom. I know that so many of you have already graciously stepped forward and lightened this financial burden, but unfortunately a significant shortfall remains. And if the Supreme Court decides to hear Michael’s case that shortfall will grow by at least another $100,000.

The Behenna’s are a proud family and asking for financial support is not something they are comfortable doing, especially given how many people are in need today, including so many fellow Oklahomans devastated by the recent tornadoes. So I humbly ask each of you who believe in Michael’s cause, to consider giving a few dollars to his legal fund, which can be found on his web site at DefendMichael.com. If each one of the thousands of supporters of Michael gave $20 then the Behenna’s would be able to cover most of the current deficit. Donations can be made through PayPal on Michael’s web site, or if you prefer you can mail a check directly to his Michael’s defense fund at:

Michael Behenna Legal Defense Fund
c/o Jack Dawson, co-trustee
100 Park Avenue, Second Floor
Oklahoma City, Oklahoma 73102-8099

Please know that your support for Michael, whether in the form of a donation, a card, or a letter, is appreciated more than words can say. For Michael and his parents this difficult journey has only been possible because of the outpouring of support from all of you. It has sustained them in their darkest hours, of which there have been many. Finally, please keep Michael in your thoughts and prayers as we await the ultimate decision by the highest court in the land on whether they will hear Michael’s case.

I remain, now and forever, a proud supporter of a young man who some day I hope will be my son-in-law.

Respectfully,

David Wahl
DefendMichael.com

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

SCOTUS to Consider Hearing Imprisoned Army Officer’s Case

EDITOR’S NOTE:  I’ve been following the case of Army Ranger 1st Lt. Michael Behenna since 2009.  I even wrote a book, Three Days In August, about Army Sgt. 1st Class Kelly A. Stewart, another wrongfully-convicted man the lieutenant befriended while both served time behind the walls of the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan.  Today, I share an email update (unedited below) from Lieutenant Behenna’s parents, Scott and Vicki Behenna:

To all the thousands of Michael supporters,

1LT Michael Behenna and SFC Kelly StewartMichael’s case, including the Petition, the Government Response, and the Reply to the Government Response, is now complete and before the Supreme Court.  The Supremes have set Michael’s case to be initially discussed at their conference on May 30th which is ironically during the 50th Anniversary of Brady vs Maryland (the Supreme Court case demanding that prosecutors disclose all beneficial information to the criminally accused).  During the conference, four out of the nine Supreme Court Justices must vote to hear the case in order to grant certiorari.  If certiorari is granted in Michael’s case it would be the first time the Supremes would have granted a service member’s appeal from the Court of Appeals for the Armed Forces (CAAF).  Needless to say, anxiousness will abound for the next few weeks and prayers are certainly welcome.  We should have the Court’s decision sometime during the first week of June.  If the Court grants certiorari, Michael’s case would proceed through a briefing process, oral arguments, and a decision by the Supreme Court hopefully before the end of the year.

We can’t thank you enough for all the encouraging cards and letters that you sent to Michael for his birthday.  As Michael told us this past weekend it is these cards and letters that help him navigate the sometimes helpless and hopeless thoughts that have haunted him these past four years behind prison walls. He reads every card and letter sent to him, but given his prison schedule of work, exercise time, meals and early lights out he unfortunately does not have time to send out very many thank you notes.  For this he sends his apologies and hopes a day will come soon when he can thank all of you in person.

If you did not see the Mother’s Day tribute to Vicki last Sunday in the Oklahoman, hopefully the attached video and article will describe the huge appreciation we have for all your support and what your individual words of encouragement have meant to Michael and our whole family.

Vicki’s Mother’s Day Video

Vicki’s Mother’s Day Article

Bless you all for your support of our son,

Scott & Vicki Behenna
DefendMichael.com

I pray for this young man’s swift release.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Senior Officers Back Supreme Court Brief Filed on Behalf of Lieutenant Michael Behenna

Thirty-seven retired high-ranking military officers, including a former Chief of Naval Operations, signed an Amicus Brief submitted to the U.S. Supreme Court Feb. 27 in support of Army Ranger 1st Lt. Michael Behenna.  An Edmond, Okla., native, Lieutenant Behenna is serving 15-years behind bars at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., for killing a known Al-Qaeda operative in Iraq.

Army Ranger 1st Lt. Michael Behenna SCOTUS Amicus Brief

Click image to download document (pdf)

Early on, the 31-page brief raises an important question — that is, whether a servicemember in a combat zone categorically forfeits the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy. In the case of Lieutenant Behenna, he admitted during his court-martial that he shot Ali Mansur in self-defense. And therein lies the rub.

Behenna SCOTUS Question PresentedThe brief’s conclusion section (below) makes a clear argument, stating that Lieutenant Behenna deserves some punishment, but not what he received, and, more importantly, a new trial:

Lieutenant Behenna’s unauthorized actions in a combat zone were a serious breach of military discipline and for that reason he should be subject to appropriate disciplinary action under the (Uniform Code of Military Justice). But in so acting without authorization, he did not forfeit his right to self-defense. This Court should grant the petition for certiorari, reverse the (Court of Appeals of the Armed Forces), and remand to allow a new court-martial panel to consider Lieutenant Behennas’s claim that he acted in self-defense, including evidence unlawfully withheld by the prosecution corroborating that claim.

At the same time as I’m pleased with this document, I remain disappointed that its authors made no mention of the colossal failure of leadership among officers in Lieutenant Behenna’s chain of command. That failure, a subject I tackled in a post Aug. 20, 2012, allowed him to be put in a position from which nothing good could result.

To read any of the more than 60 posts I’ve written about the lieutenant’s case since June 4, 2009, click here.

EDITOR’S NOTE:  Lieutenant Behenna and Army Sgt. 1st Class Kelly A. Stewart, the man whose life story is chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, became good friends behind bars at Fort Leavenworth.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Video Offers Glimpse Into World of Special Forces Soldiers

Kelly A. Stewart, the man whose life and wrongful conviction are chronicled in my book, Three Days in August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, is a highly-decorated Green Beret who served several tours in Iraq.  The one-hour National Geographic video below offers a glimpse of what his life was like as a “top one percent” soldier during the years before the military justice system failed him.

This sample chapter highlights Stewart’s last mission in Iraq.

To learn more about his wrongful conviction, read Three Days in August.  Based on extensive interviews and never-before-published details taken from the actual Record of Trial, it paints a portrait of military justice gone awry that’s certain to make your blood boil.

The book’s available in paperback and ebook via most online booksellers, including Amazon.com.  In addition, my second nonfiction book, THE CLAPPER MEMO, is set for release this fall was released May 2013.  Please check it out, too!

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Special Operations Veterans to Champion Soldiers’ Cases

Many of the same people who helped derail the 2004 presidential campaign of Sen. John Kerry (D-Mass.) as members of Swift Vets and POWs for Truth are back in 2012 as members of Special Operations Speaks.  As part of an effort to combat what one leader of the group describes as “a government that has gone rogue,” the group’s members have decided to champion the causes of two soldiers about whom I’ve written much over the past three-plus years:  1LT Michael Behenna and Sgt. 1st Class Kelly Stewart.

The good news came this morning in the form of an email from Beverly Perlson, founder of the pro-troops organization, The Band of Mothers, who had received the news from Larry Bailey, one of the leaders of Special Operations Speaks who is a retired Navy captain and also chairs the pro-military group, Gathering of Eagles.

Behenna is the Army Ranger officer about whom I have written and published more than 60 articles during the past three years.  He is currently serving a 15-year prison sentence for killing Ali Mansur, a known Al-Qaeda operative, in self-defense in Iraq in 2008.

My most-recent post, American Warfighters Deserve Same Consideration as Taliban, offers details about Lieutenant Behenna’s case that will make you shake your head in disbelief.

Stewart is the highly-decorated Green Beret whose life story and wrongful conviction are chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

Based on extensive interviews and never-before-published details taken from the actual Record of Trial, Three Days in August paints a portrait of military justice gone awry that’s certain to make your blood boil.  The most-recent update on his case can be found here.

To learn more about Special Operations Speaks, visit the group’s website and/or read the post I published at BobMcCarty.com soon after the group’s launch early last month.

To offer support and/or keep up to date on both soldiers’ cases, visit DefendMichael.com and SaveThisSoldier.com.

*Note:  The photo of Lieutenant Behenna above was shot prior to his deployment to Iraq when he was still wearing the gold bar of an Army second lieutenant.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Convicted Army Officer Loses Final Military Appeal

Short of a presidential pardon or a United States Supreme Court ruling in his favor, which isn’t likely in this day and age, it appears Army Ranger 1LT Michael C. Behenna will remain behind bars at Fort Leavenworth, Kan., until he turns 40 years old. The Court of Appeals of the Armed Forces in Washington, D.C., has upheld the 29-year-old Edmond, Okla., native’s conviction stemming from a May 16, 2008, shooting in Iraq.

Clockwise from upper left: Michael’s family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

The sad news arrived shortly after 6 p.m. Central Thursday, almost 11 weeks after the five-member CAAF panel heard Lieutenant Behenna’s final appeal of the verdict that found him guilty of unpremeditated murder in the shooting death of Ali Mansur, a known Al-Qaeda operative in Iraq.

It is beyond comprehension how multiple levels of the military justice system were able to reconcile the lieutenant’s conviction with the fact that the government’s own expert witness reached the conclusion that the lieutenant acted in self defense — see this post and this post for more details — but they did. And by a 3-2 margin.

Below is the cruxt of the majority opinion in the decision:

We granted review in this case to determine whether the military judge provided complete and accurate self-defense instructions, and whether the Government failed to disclose favorable and material information to Appellant’s prejudice. We hold that, although the military judge’s instruction on escalation was erroneous, it was harmless beyond a reasonable doubt because escalation was not in issue. Moreover, contrary to Appellant’s arguments, withdrawal also was not in issue. We further hold that, even assuming that the information Appellant asserts the Government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts, Appellant was not entitled to an escalation instruction, and the members clearly rejected the Government’s theory of premeditated murder. We, therefore, affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

Next, the dissenting opinion:

A death occurred in the theater of operations. A soldier has been convicted of murder. Was it murder or self-defense? By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from the military judge deprived Appellant of the right to have a panel of officers make that decision. The military judge compounded that error by failing to take corrective action with respect to the Government’s failure to provide timely disclosure of exculpatory evidence. This Court should reverse the decision of the Court of Criminal Appeals and authorize a rehearing.

The entire document, warts and all, can be found here.

Since June 4, 2009, I’ve written more than 60 posts about Lieutenant Behenna and fight for military justice, and this certainly will not be the last.

Below is a list of several posts I’ve shared about the lieutenant with whom Green Beret Sgt. 1st Class Kelly A. Stewart, the man at the center of Three Days In August, became friends while both were in prison at Fort Leavenworth:

• Soldiers’ Hearings to Take Place Four Days Apart in April

• Top Military Court to Hear Army Officer’s Appeal

• ‘The Ballad of Michael Behenna’ Released Today

• Parents of Army Lieutenant Issue Urgent Plea for Support

• Why Should People Care About Kelly Stewart’s Story?

FYI:  Stewart is still awaiting the outcome of his Army Court of Criminal Appeals hearing that took place April 19, details of which are mentioned in this post.

CORRECTION 7/6/12 at 10:58 a.m. Central:  After publishing this post, I was informed that Behenna can appeal his case to the United States Supreme Court; therefore, I amended the lead paragraph to reflect that change.

Top Military Court to Hear Army Officer’s Appeal

The Court of Appeals of the Armed Forces will hear the case of Michael Behenna, a young Army lieutenant about whom I’ve written dozens of blog posts during the past three years,.

Clockwise from upper left: Michael’s family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

A native of Edmond, Okla., Behenna was convicted of killing a known Al-Qaeda operative in Iraq after Army prosecutors ignored their own expert witness during court-martial proceedings in February 2009.  He is now in his third year of a 15-year sentence at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan.

According to Michael’s parents, Scott and Vicki Behenna, Michael’s attorney has 30 days to file a brief, then the government will have 30 days to file their brief.  Arguments in Washington will take place at some point after that.  Understandably, the Behennas hope the CAAF judges will listen to the arguments and make the right decision so their son can return home to Edmond.

For more details about this news, click here.

Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice is available in paperback and ebook via most online booksellers, including Amazon.com.

EDITOR’S NOTE:  I share news about Behenna on this page, because he and Kelly A. Stewart, the man whose life is chronicled in the book, Three Days In August, were good friends while Stewart was also behind bars at the military prison.

UPDATE 7/5/12 at 9:29 p.m. Central: Sad news. The Court of Appeals of the Armed Forces upheld by a 3-2 margin the conviction of Michael Behenna, according to this report. This means that, without a presidential pardon, the 29-year-old soldier will remain behind bars until he turns 40.

See also:

‘The Ballad of Michael Behenna’ Released Today (11/30/11); and

Parents of Army Lieutenant Issue Urgent Plea for Support (11/10/11).

Soldiers’ Hearings to Take Place Four Days Apart in April (3/28/12)