Puckett & Faraj

The Board of Inquiry for Lt Col Chessani scheduled for December 3^rd will determine whether he failed to properly report or investigate the events at Haditha, Iraq, in November of 2005. If the board finds that such a failure has been substantiated, they can make a recommendation as to whether LtCol Chessani should be retired, and if so, at what pay grade. They may recommend that he retire as a Major rather than his current rank of Lt Col.

Purpose of a Board of Inquiry

The purpose of a Board of Inquiry is to have senior officers review the officer’s record and allow Lt Col Chessani to rebut any allegations supporting his separation for cause or retirement in a current grade or lesser grade and define the characterization of his service.

Board Members

The Marine Corps is assigning one Brig General and two Colonels to hear Lt Col Chessani’s case. It is highly unusual that a Brig General would be assigned to such a board for a Lt Col BOI when the regulation only requires the board be senior in grade to the officer. The Marine Corps could have assigned senior Lt Cols and one Colonel to hear the case. The board members selected must be officers without personal knowledge pertaining to the case. It would have been difficult to find board members when the associated allegations surrounding the incident at Haditha have had broad and frequent publicity.

Rights in a Board of Inquiry

The Board of Inquiry is an official proceeding, with a recorder, rights to legal counsel, opportunities to present matters, present and/or question witnesses under oath, rights to challenge any member of the board for cause, rights to submit evidence, rights to give sworn or unsworn testimony, presentation of oral and written (either, or both) testimony, and rights to rebut a board recommendation.

Secretary of the Navy

The final decision regarding the future of a Naval or Marine officer facing separation proceedings rests within the authority of the Secretary of the Navy. The Secretary acts upon the recommendation of the Board of Inquiry either by approving, disapproving, or modifying the recommendation. Assignment of continued duty, retirement or separation actions are made by the appropriate administrative offices after the Secretarial decision. If the officer feels the Secretary’s decision was not appropriate, his or her options after separation or retirement are with petitions to either a Board of Corrections of Naval Records or the Naval Discharge Review Board.

Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.

Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.

LtCol Victor Fehrenbach, a weapon system operator in the F-15E, is hoping the Secretary of the Air Force will rule against a board recommending his separation from the Air Force. Nearing retirement, Lt Col Fehrenbach will lose the right to serve long enough to be vested with a pension of nearly $50,000 a year for being identified as a homosexual.

Don’t Ask, Don’t Tell Law

Congressional hearings are slated this fall in both the House and the Senate to review the current law (10 USC § 654) upon which a review board judged Lt Col Fehrenbach and recommended his separation. The current “Don’t Ask, Don’t Tell” law holds the military society to a higher standard than the civilian community. The law cites fundamental differences from civilian life to include unit cohesion and numerous restrictions on personal behavior that “would not be acceptable in a civilian society.” The Law states those restrictions apply to a military member’s life 24 hours each day, whether on or off duty or whether on or off base. The reason the law uses a 24-hour clause is that military members must be ready for deployment and duty at all times.

Military Case Defense Theory

If LtCol Fehrenbach enjoyed the advice of military criminal defense attorneys for his show cause hearing, the defense theory must not have prevailed on the requirement for the government to prove that LtCol Fehrenbach’s personal actions interfered with his F-15 squadron’s good order and discipline. Additionally, the law states a member’s confession of homosexual tendencies for the purpose of termination coupled with an assessment that the member is need in the unit, may not be sufficient to justify his separation.

Burden of Proof

The defense theory, or strategy a military criminal defense attorney adopts, usually reflects the truth surrounding the incident. In this case, LtCol Fehrenbach’s off-base, after hours activities were reported to the military, probably with the full intention of getting him in trouble under the Uniform Code of Military Justice (UCMJ). Proving that his actions caused unit disruption is very difficult unless the military member admits such actions and his squadron members then become aware of and there is actual proof of disruption to good order and discipline.

Application of Military Law

The Secretary of Defense told reporters last month that he had asked his general counsel to look for ways to apply the law in “a more humane way.” An application of common sense when interpreting the law includes proving military unit disruption by private actions off base. All sexual activities in a deployed location are subject to UCMJ actions when discovered – even opposite sex activities. In the case of LtCol Fehrenbach, his own willingness to admit wrongdoing proved violation of 10 USC § 654, making the job of those seeking his discharge much easier. We do not know what legal advice he received, and we do not know the details of his hearing, because of Privacy Act protections on military personnel actions. But it seems that with a good defense theory based on his continued service being more valuable to the Air Force than the principal of prohibiting homosexuals from serving openly, he may have been able to save his military career.

Puckett and Faraj, PC. has been retained by Mr. Issam Hamama of El Cajon, California to defend him against charges brought by the U.S. Attorney in the Eastern District of Michigan.  Mr. Hamama, a former Iraqi citizen, served with the U.S. forces in Iraq over the last few years as a translator and cultural advisor to U.S. forces engaged in operations in Iraq.  Mr. Hamama’s charges stem from his efforts in the nineties as as an activist working to relieve the suffering of Iraqi children and civilians harmed by the U.N. sanctions against Iraq following operation Desert Shield and Desert Storm.  The case of Mr. Hamama is a companion case to several other similar cases in which some defendants pled guilty and at least one defendant was acquitted.

Puckett & Faraj PC

Neal Puckett and Haytham Faraj are criminal defense and general litigation attorneys and partners in the The Law Firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial.  Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others.  Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

Puckett and Faraj, PC. has been retained by Mr. Issam Hamama of El Cajon, California to defend him against charges brought by the U.S. Attorney in the Eastern District of Michigan.  Mr. Hamama, a former Iraqi citizen, served with the U.S. forces in Iraq over the last few years as a translator and cultural advisor to U.S. forces engaged in operations in Iraq.  Mr. Hamama’s charges stem from his efforts in the nineties as as an activist working to relieve the suffering of Iraqi children and civilians harmed by the U.N. sanctions against Iraq following operation Desert Shield and Desert Storm.  The case of Mr. Hamama is a companion case to several other similar cases in which some defendants pled guilty and at least one defendant was acquitted.

Puckett & Faraj PC

Neal Puckett and Haytham Faraj are criminal defense and general litigation attorneys and partners in the The Law Firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial.  Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others.  Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.