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DoD News Briefing: Mr. Kenneth H. Bacon, ATSD PA

Presenters: Mr. Kenneth H. Bacon, ATSD PA
June 21, 1995 2:00 PM EDT

Tuesday, June 20, 1995 - 2 p.m.

[Mr. Bacon is joined by Maj. Gen. Nolan Sklute, Judge Advocate General, USAF]


Mr. Bacon: Good afternoon. I have a brief announcement to start with -- two brief announcements.

First is that Captain Michael Doubleday is here as the new Deputy to fill Dennis Boxx's shoes. Many of you know Mike from his previous tours in this building. We're very glad to have him back. I hope if you haven't met him already, you'll stop by and say hello to him.

The second announcement is the Navy's first Seawolf submarine, a new class of fast attack submarines, will be christened at 11:30 a.m. on Saturday, June 24th at the Electric Boat Division of General Dynamics Corporation in Groton, Connecticut. The Secretary of the Navy, John Dalton, will be the speaker, and his wife Margaret will formally name the ship. If you want to know more, you can contact the Navy on that.

With that, I'll take your questions.

Q: Could you please try to pull together all these different elements on the nuclear testing policy? Why does the U.S. feel it has to resume testing? If so, at what level? And will there be a special meeting, this week, at the White House? Any details you can give to us, I'd be grateful.

A: Sure. I think there's been a little confusion about this.

President Clinton has imposed a moratorium on U.S. nuclear tests until we complete negotiations of a comprehensive test ban treaty. That's supposed to happen by September 30, 1996. We are, currently, in negotiations with the other four declared nuclear powers -- that's China, Russia, France, and United Kingdom -- over the terms of the Comprehensive Test Ban Treaty. Those will be the five initial signatories, but we also hope eventually to sign up, that other countries with nuclear weapons will sign on to that treaty.

The purpose of that treaty is to, basically, stop large tests. The Treaty will provide for experiments or verification procedures to allow people to assess the safety and reliability of nuclear weapons. The issue that arose over the weekend was what will the U.S. government's position be on what those experiments or verification procedures should be under the new Comprehensive Test Ban Treaty, which is yet to be negotiated. In other words, what will the U.S. government's position be when we go to the negotiations in Geneva? These negotiations are, actually, ongoing, but this is one of the issues that has to be determined.

So the issue is not that we're going to start testing tomorrow or next week or next month. The issue is what sort of experiments will be allowed to verify the safety and reliability of our stockpiles after -- sometime after September 30, 1996 -- if we have to do that.

Earlier this year, Tony Lake, the National Security Adviser, said that a Treaty has to be comprehensive, that it must not prohibit activities required to maintain the safety and reliability of our stockpile, and that it must be signed by all declared nuclear states -- those are the four other states that I named earlier.

So I think you should look at this as a two-part process. The first part is that we have to come up with a U.S. government view on what the safety and reliability verification procedures will be. That will be the negotiating position we take to Geneva. Then the five declared nuclear powers have to agree on what will be included in the Treaty. Then, of course, the Treaty will have to be ratified by our Senate.

That's a long-winded explanation of where we stand now.

Q: Has the U.S. given assurances to New Zealand, and other countries, it will not resume testing? And is there going to be a meeting between them?

A: As I said, the President has imposed a moratorium that will last until the date when we're supposed to have a Comprehensive Test Ban Treaty -- that's September 30, 1996. We have no plans to lift that moratorium. We are going to continue our moratorium against nuclear tests.

What is being discussed is the development of a negotiating position to be considered during the Treaty talks in Geneva.

Q: Is the meeting this week?

A: There, currently, is a meeting scheduled for the end of the week to discuss this. I do not expect that a decision will be made, but sometimes I'm surprised.

Q: The Secretary indicated this morning that the Pentagon might be able to provide some additional information about those who were punished as a result of the investigation into the shootdown of the Black Hawk helicopters. Can you give us any of that information now?

A: Yes, we will give you that information. I have Major General Nolan Sklute here, the Judge Advocate General of the Air Force who will provide that information to you. But I want to talk -- broadly, first -- about this tragedy and the follow-up to it -- the shootdown of the Black Hawk helicopters.

On the day the accident occurred, Secretary Perry and General Shalikashvili made three promises in dealing with this. They said they would conduct a thorough and exhaustive inquiry of the charges that led to the tragedy; that they would ensure that corrective actions had been taken; and that they would hold people accountable, so they would address the accountability issue -- who was accountable for this.

There have been exhaustive studies on this. The Air Force devoted thousands of hours -- thousands and thousands of hours -- to this. The Air Force has taken a number of actions which will be detailed for you later. The Air Force is putting together a list of these actions, which will be available later this afternoon.

The Joint Chiefs of Staff have taken a number of actions as well, to change operating procedures of joint task forces. The goal of all of this has been to make sure that a tragedy like this would not occur again, or at least to minimize sharply the possibility that something like this would happen again.

There were a series of errors and mistakes made. General Shalikashvili has addressed those. We're not hiding those. There were a number of problems. We've tried to correct those problems on a number of fronts.

You can get, afterwards, a copy of a JCS Memorandum that addresses some of the changes that were made at the JCS-level in terms of command and control, training, etc. As I said, the Air Force has a summary of earlier reports that have been put out on this. I think there was a 24-volume report that looked at this.

The third issue is accountability. I'd like to invite Major General Sklute to address that now. He'll talk about it really from the standpoint of how the military justice system has functioned here, and what the actions have been.

General Sklute: Good afternoon, ladies and gentlemen.

First, let me explain to you what my role is in the military justice system as the Judge Advocate General of the Air Force. I'm charged with the administration of military justice, and in large part that means to do all that's necessary to ensure that the system operates in a fair and impartial and an even-handed manner.

I'm sure that most of you are aware of the fact that this morning the court panel in the Wang, the court martial, the court martial of Captain Wang, returned a finding of not guilty as to the charge and three specifications of dereliction of duty.

There are a number of other actions that have been taken concerning the Black Hawk incident. I should point out at the outset, that as Mr. Bacon said, there were a number of investigations conducted. There was the 24-volume report of investigation that was conducted immediately following the mishap. In addition to that, there were several investigations that were conducted, investigations and inquiries, in accordance with various provisions of the Uniform Code of Military Justice.

Not every mishap that occurs means that there is criminal liability or culpability. As a result of the investigations that were conducted, as I said, Captain Wang was tried and acquitted. There was one member of the AWACS crew that received punishment under Article 15 of the Uniform Code of Military Justice and he received a reprimand. We have other members of the AWACS crew who received letters of reprimand, all of which were placed in unfavorable information files, their official files. We have two F-15 pilots who received reprimands, again, with unfavorable information files. And we have two general officers who received admonishment, letters of admonishment.

At the outset, I'm sure one might ask what's the impact of all of that on an individual? I can't predict what impact a letter of reprimand or a letter of admonishment... And I should point out that a letter of admonishment is slightly lesser in severity than is a letter of reprimand. But the impact is significant upon an officer's career, and I think that goes without saying. That, certainly, doesn't help one's career.

What does a promotion board do with all of that information when it comes to their attention? They consider it and give it whatever weight they deem appropriate. But you can speculate, and I can speculate, on what the impact is, and I would have to say the impact would have to be very significant.

I'm available to take any questions that any of you might have.

Q: Your exhaustive study said that there was a failure up and down the chain of command in dozens of areas. Why aren't the actions taken against people involved stronger than letters of reprimand?

A: Again, a letter of reprimand, from an administrative standpoint -- unless you're going into actions under the Uniform Code of Military Justice -- is a very significant administrative action. What that might say is that commanders -- and understand, that the military justice system is a system that is in large part in the hands of commanders -- commanders act as convening authorities for courts martial. Commanders impose non-judicial punishment under Article 15 of the Uniform Code of Military Justice. The commander who reviewed the report of investigation, who reviewed the inquiry that was conducted under a section of the UCMJ, 303 -- and who reviewed the Article 32 investigations which are kind of like a grand jury investigation -- determined that that was the appropriate action to take in these cases.

Q: It's obvious that they determined that and that's what was meted out. I'm asking why wasn't there, given the fact that so many people died in this, and that there were so many instances of failure to carry out rules that are pretty clear, why that's not a stronger action.

A: As I said before, my heart and I'm sure all of our hearts go out to the families involved in this incident. But an incident like this does not necessarily mean that the conduct of all those involved rises to the level of criminal culpability. The commanders who reviewed these reports, apparently, so determined in all cases but one, and that one case went to trial. A panel of ten court members heard that case and determined that the individual, based upon the evidence presented, was not guilty.

Q: Can you say when the commander's decision... When a commander looks at a case like this, does he look at it in an isolated fashion? Or, for example, is the family's charge... Is it possible that the F-15 pilots were not pursued more vigorously because the commander might view that kind of action as detrimental to the overall squadron or overall effort of the Air Force?

A: I have to say -- having been around this business for 29 years now commanders throughout the Air Force, as well as the other services, make some very, very difficult decisions in handling matters under the Uniform Code of Military Justice. The mere fact that a given case may pose, or present, morale problems for an organization would not enter into the equation if you're dealing with criminal conduct. If a commander determines that an individual is, in fact, involved in criminal conduct of some type, charges would be preferred, investigated under Article 32, as they were in this case, Article 32 of the Code, and the commander would then make a determination on whether or not to refer this case or that particular case to trial.

We had very experienced individuals, military judges, senior military judges, who acted as the Article 32 investigating officers in these cases. They reviewed all of the evidence and made their recommendations to the commanders concerned. In the case of the AWACS crew, the recommendation was to dismiss the charges as to all the AWACS crew members who had been charged, except for Captain Wang. That means in that case there was sufficient evidence to go forward to trial. It doesn't necessarily mean the person is guilty. That's up to a panel of court members.

Q: These are the reprimand letters that would go into the permanent file, a tagged file?

A: They go into an unfavorable information file, sir, which has a limited life.

Q: That could be six months, that could be one year...

A: I believe the UIF [Unfavorable Information File] period is two years.

Q: For each and all of these letters?

A: Yes, sir.

Q: And these letters would come up, when they're up for promotion that would go through the promotion board?

A: If it was within the two year period, yes, sir.

Q: What is the total number of reprimands? You said other crew members...

A: If you can bear with me a second, we had four letters of reprimand imposed on... Three on AWACS crew members, one on the pilot. We had the two letters of admonishment against general officers. We had an Article 15 action taken against another AWACS crew member. And another letter of reprimand against the second F-15 pilot.

Q: But no one will have a black mark on their record after two years, is that correct?

A: It goes without saying that the conduct of an individual can be reflected in many ways: It can be reflected in a letter of reprimand that goes into an unfavorable information file; it can be reflected in an officer performance report that stays in an individual's records throughout his or her career.

Q: Is this Article 15, is that non-judicial punishment?

A: That's non-judicial punishment, yes, sir.

Q: Is there stronger non-judicial punishment that could have been -- short of criminal action against these men -- that could have been taken stronger than letters of reprimand?

A: Let me say this. Non-judicial punishment under Article 15 is normally not offered to an individual unless there is sufficient evidence to follow through with a court martial in the event an individual refused to accept non-judicial punishment under Article 15. An individual who is offered punishment under Article 15 of the UCMJ has the right to refuse that punishment and demand trial by court martial. So, in answer to your question, when you get up to a letter of reprimand, you're about at the top of the level of administrative action that would be taken against an individual, something less than separation administratively.

Q: Let me try and follow the legal logic here. Wang was the only one that faced a trial -- meaning, he was the only one the investigators found reasonable suspicion of criminal wrongdoing. Is that...

A: That's fair to say.

Q: Everyone else who was investigated -- the conclusion, basically, was that there was some kind of human error, or mistake, that they made, just a simple error, human mistake. So Wang, then, faced trial because they decided he knowingly made a mistake that led to this? Does that follow? Because he faced criminal charges?

A: Within the next month, I would assume, we'll have the transcript of the trial ready. It's being typed by a court reporter as we speak. You can see for yourselves the evidence that was laid out in the courtroom and draw your own conclusions as to what evidence was available to the government to present, what defense evidence was available that was, in fact, presented by Captain Wang.

When I say, and I think I mentioned this earlier, the mere fact that a case is referred to a court martial does not reflect on the guilt of the individual. It merely indicates there was sufficient evidence to go forward to a trial by court martial.

Q: But for a criminal trial, then, there was sufficient evidence... For this situation the government thought there was sufficient evidence to pursue this case against Captain Wang on the basis that he knowingly, i.e., a criminal situation, made an error that led to the shootdown. It was not...

A: That he was negligent in the performance of his duties. That's the standard for dereliction.

Q: What happens to Captain Wang now? Does he return to duty?

A: Captain Wang will be returned to duty, yes, sir. Now, as to what those duties would be -- as to whether or not there would be any other administrative action of any type -- I'm not in a position to say. That's strictly up to Captain Wang's commander.

Q: He could take further action?

A: I wouldn't speculate on that. Again, that's strictly up to his commander.

Q: Can you tell us the names of the individuals who received non-judicial punishment...

A: That's already a matter of public record. The individuals who had charges, initially, preferred against them and were the subject of the Article 32 investigation, in addition to Captain Wang, as far as the AWACS people are concerned.

Q: What about the general officers?

A: The Commander of Operation PROVIDE COMFORT, General [Jeffrey S.] Pilkington; and the Air Component Commander of that operation, now Brigadier General [Curtis H.] Emery [II]. Those were not letters of reprimand, those were letters of admonishment.

Q: Was there any review conducted of rules of engagement? I know you cannot comment on the rules of engagement, but the rules of engagement at that time, did it contribute in any way to the incident... There were many criticisms like, "shoot first, ask later."

A: Sir, I'm not in a position to really delve into the rules of engagement, but I'd be more than happy to answer any questions on the accountability side of the ledger.

Q: Was there any change or review conducted to the rules of engagement there?

A: I'm going to let that question go for Mr. Bacon.

Col. Kennett: You have a report you can read on the way out.

Q: As the Judge Advocate General of the Air Force, are you completely satisfied the way these cases were handled, that everything was done as it should have been?

A: I am completely satisfied that the procedures set forth in the Uniform Code of Military Justice and the Manual for Courts Martial were followed. I'm completely satisfied that the rights of the individuals were fully protected. I'm satisfied that the government had its opportunity to present its evidence in the case of Captain Wang. I'm satisfied that our commanders, our Air Force commanders, worked long and hard in a very, very complex fact situation. And I'm satisfied that they exercised their independent judgment in arriving at the decisions which they ultimately reached. So, from that standpoint, I'm satisfied.

Q: Were you satisfied with the procedures, or do you see any improvements that can be made?

A: We look at our procedures on a recurring basis. We have a group of representatives from all the services that continually examine the military justice system and make recommendations to the service secretaries and ultimately to the Department of Defense on improvements that could be made in our procedures. I see nothing in the way that the incident we're talking about worked out that would call for a change in any of the procedures. I have utmost confidence in our military justice system, and utmost confidence in our commanders to discharge their responsibilities under that system.

Q: The fact that you're releasing these non-judicial punishments is sort of a change, though, isn't it? Why is that being done?

A: First of all, the fact that non-judicial punishment was handed out, we have released in the past. We've released information that non-judicial punishment resulted from a given incident, that letters of reprimand had resulted from a given incident. I have not tied -- other than the two general officers -- I have not tied names to the letters of reprimand or to the non-judicial punishment, but as a matter of fact, it's a matter of record as to who charges were preferred against, for example, aboard the AWACS. That's already been released. So you can draw your own conclusions as to who received letters of reprimand and who received non-judicial punishment. Again, other than the general officers concerned, in view of their positions, and in view of the significance of the incident, I feel it's perfectly appropriate to release that type of information.

Q: To clarify on a question about Captain Wang. At the moment, he has no letter of reprimand or admonishment...

A: No, ma'am.

Q: No other sort of...

A: I am unaware of any further action that would be taken against Captain Wang. Again, that's strictly a commander's call.

Q: The court martial itself is part of his permanent record? The fact that charges were preferred against him is part of his criminal record?

A: The fact that he was acquitted in a court martial would never come up, in that context, to a promotion board. Now, the fact that Captain Wang, because of his name and because of the publicity this case has received, it's possible that members of a promotion board would be aware of that. But the fact that he is acquitted should not be considered by a promotion board in scoring, for example, his record.

Q: So his record is better, although he faced the most serious charges, now better than those who...

A: I'm sorry, sir?

Q: His record is now better -- unblemished -- than those who faced less serious punishments?

A: I wouldn't say that Captain Wang's record is better than others who faced other forms of administrative action. No, he doesn't have a letter of reprimand in his file. No, he does not have an unfavorable information file. I suppose one could draw the conclusion that he suffered considerably personally through this ordeal. It's been a long, arduous, complex matter that he was involved in. I know he had retained civilian counsel. I know there is expense associated with a civilian counsel. So to say that Captain Wang has not suffered through this ordeal would not be a fair statement.

Q: What do you say to the families who lost loved ones in that helicopter accident?

A: Well, we've said it before and I will say it again. The Air Force... Everyone in the Air Force, our hearts go out to the family members. It was a very, very tragic incident.

We have conducted an investigation that hopefully will preclude an incident such as this from happening in the future. There are a number of actions which have been taken to, in large part, preclude another Black Hawk incident. Those are going to be detailed to you later on as previously stated.

Q: How has the issue of accountability changed, from your point of view, as a student of 29 years in the system. How has the issue of accountability of commanders changed over the years?

A: In what context?

Q: In the context of responsibility for actions of those under their command.

A: I'm not sure commanders' actions or thought processes have changed concerning accountability. I think commanders have always taken their responsibilities very, very seriously when it comes to accountability. So, as a result of this particular incident, I don't think commanders' actions or mindset has changed. It's always been one of the identifying individuals who may be culpable and taking appropriate follow-up action.

Q: I want to double-check on the numbers you gave us when you ran down who got what. Did you say four letters of reprimand?

A: Let me do this. Immediately following, by the time you leave here, I will have a list of numbers of letters of reprimand, Article 15s, and so on and so forth. Is that satisfactory?

Q: General, now that it's over with, would you -- looking back on it -- have preferred that the early stages of the investigation would have gone differently? That, perhaps, there would have been more indictments? Would it have been better if this had been larger in scope rather than coming down to Captain Wang from a prosecutorial point of view?

A: No. As I said before, my role in the military justice process is to ensure that the system operates fairly, even-handedly, and in an equitable fashion. I think it has done so in this particular incident. I think commanders exercised their best judgment based upon the results of the investigation.

So, I do not place myself in the role of a prosecutor, nor would I ever say nor do I think -- that it would have been better had more charges been preferred or had more cases been referred to trial. I'm not in a position to say that.

Thank you very much.

Mr. Bacon: You asked a question about rules of engagement. They were changed. The report from the JCS will discuss that.

Q: How much of rules of engagement did contribute, looking back to this tragic situation?

A: The 24-volume review of the accident made it clear that there were mistakes and problems in a variety of areas. I don't think it's worth focusing on one aspect at this time. There were many mistakes and many errors. We've attempted to correct them in as many ways as we can.

Q: Is Secretary Perry satisfied that the third point, accountability...

A: The Secretary addressed that earlier, and said that he wasn't going to second-guess the military justice system. It is a system set up to review these incidents, and it has completed its work.

Thank you.

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