Lady Liberty stands blindfolded holding a set of scales. What does this represent? In a perfect society it is supposed to mean that justice is blind, it leans neither to the prosecution nor the defense.
What happens to civil liberties and justice if a judge, who is standing in Lady liberty’s stead, peeks out from under the blindfold and assists either the prosecution or the defense in a case? What happens when a judge contributes to determine or influence the out come of a case? Why would a judge feel swayed to peek?
Perhaps, if a judge felt, in his opinion that a prosecution could bring about a greater good then he could be swayed to lean toward a prosecution. If a judge felt a prosecution could damage society, I suppose, the judge would lean toward a defendant’s defense.
In the military however judges work under the office of the Judge Advocate General and there are many Judge Advocate Offices through out the military that assist judges. In the military everything is done according to rank. Generals tell Colonels what to do, Colonels tell Majors, Majors tell Lieutenants, Lieutenants tell Captains, Captains tell Sergeants, and Sergeants tell Privates.
If a directive, order, or request comes down from the top, who steps out to stop it if it needs to be stopped. (Case in point John the Baptist, when King Herod called for an innocent mans head, did anyone step forward and say, “But king, John’s not guilty!”)
Command structure; without it we would have an Army of chaos. But, what happens when within a command structure it becomes apparent that someone is seeking a vendetta, revenge, or just despises a lower ranking aggressive officer? What if a circumstance allowed a Lieutenant the opportunity to get rid of a Sergeant that he saw as a threat to his authority?
Lieutenant Peters didn’t like staff Sergeant Burley very much. Staff Sergeant Burley, a veteran of two deployments, is a very out-spoken person when it came to something that he thinks is stupid. Staff Sergeant Burley is not the least bit afraid to voice that fact in front of people. Call it a character flaw if you will, yet Staff Sergeant Burley’s men will tell you that it was one of the reasons why they respected him. But, perhaps at least one college-educated Commissioned Officers didn’t respect this battle-hardened knowledge, humor or even this attitude. Still, Staff Sergeant Burley was recognized by most of his officers as being proficient in his job so his attitude had to be tolerated.
Quote from Staff Sergeant Burley, “ I’m not going to let myself or my men get killed by a retarded Lieutenant, I’ve already been through it once!”
Due to a bad command decision Staff Sergeant Burley’s platoon, while in Afghanistan, found them selves in a needless situation of death. Because of Sergeant Burley’s swift and decisive actions during this difficult time, his commanders at that time, recommended that Staff Sergeant Burley should receive a Bronze Star. Now, other commanders who didn’t know Staff Sergeant Burley’s demeanor had replaced that command. He not only didn’t receive the Bronze Star, but also is now an E1 in prison for the next two years and will be discharged from the service with a bad-conduct discharge.
Private E2 Jared Kent, a young man who had never been away from home before, finds that after arriving to his duty station in Caserma Ederle, Italy, that he cannot adjust to Army life. Squad leaders try to shape him into a man who is about to face the realities and hardship of war. Other privates around him are finding them selves in trouble because of his unmotivated attitude. The platoon is forced to do extra physical training, and some are even alleged to have taken it upon themselves to try and hasten Private E2 Kent’s education.
Because of this crash course from the lower rank, Private E2 Kent decides the only thing he can do is to go AWOL. Thanksgiving Weekend 2006, Private E2 Jared Kent decides it is time to return home to Florida. Somehow without orders, Private E2 Kent is mentally able to make his way from Italy to Florida. Upon his return to Florida Kent wrote an E-mail to his Congressman, Connie Mack. In the E-mail he makes allegations of being hazed by squad leaders and demands that because of this he should be “Honorably Discharged” from the Army. (E-mail from record of trial)
Mean while back at the base:
Private E2 Kent is noticed missing, and everyone in his platoon is ordered to look for him. After many hours of wild goose chase the command realizes that he must be AWOL.
November 30, 2006, while Kent is AWOL, Senior Congressman Bill Young, of Florida, visits the base in Caserma Ederle and very shortly thereafter an investigation is done into allegations of hazing within the HHC/ 1-503. My question to the Command of Caserma ederle is, “When and how were you made aware of Private E2 Kent’s allegations of being hazed?” At the end of that investigation it is determined that extra PT was being used as a tool of discipline, but that the wild claims made by Private E2 Kent could not be substantiated.
When it was arraigned that Private E2 Kent was to return to Caserma Ederle to be discharged from the Army, Captain Curry, Private E2 Kent’s captain, made a recommendation to his command chain that Private E2 Kent should be discharged from the Army with a less than honorable discharge.
After Private E2 Kent and his family received assurances from Lieutenant Colonel Fenzel, did he agreed to return to Italy. Private E2 Kent was flown from the United States and arrived in Germany December 13, 2007. Lieutenant Peters and another individual, Sergeant First Class Poynor, were ordered to escort Kent from Germany back to Italy. By this time it was common knowledge, by rumor, that Kent was returning to be discharged from service and receive an “Honorable Discharge”. This decision was not being well received. Private E2 Kent was becoming despised and the theme for crude jokes. In fact the moral to the men was so affected that an order had to be put out by Captain Curry that no one from the HHC/1-503d was to have any form of contact with Private E2 Kent upon his return December 15, 2006.
On their way back from Germany, Lt Peters was involved in a car accident and Lt. Peters was over heard, by many, making a joke of the incident by stating, “I only regret that I wasn’t going fast enough to send Kent through the windshield.” (Or words to that effect.) Enlisted soldiers were making crude comments about the situation, and not understanding how it could be that this individual was indeed receiving an honorable discharge.
Lieutenant Colonel Fenzel later rescinded Cpt. Curry’s recommendation. When Private E2 Kent retuned to Caserma Ederle he was physiologically evaluated and was judged to be “unfit for further military service”. Yet for reasons unknown, the rumor became fact. Private E2 Kent was to be chaptered out of the military on a 5-17 wherein he would receive an “Honorable Discharge”.
Staff Sergeant Burley and his wife went on block leave December 19, 2006 and spent time at home with their families in Oregon. When they returned to Italy Staff Sergeant Burley learned January 10, 2007 that he was to be Private E2 Kent’s NCO escort while Kent was processing out of the Army with an honorable discharge.
As a seasoned combat sergeant, Staff Sergeant Burley commented on the situation, “Private Kent is a type of soldier you hear about, but pray you never get!”
As Cpt. Curry testified at the court-martial proceeding, he chose Staff Sergeant Burley because he was proficient at the tasks he is ordered to perform.
Even though Staff Sergeant Burley had a broken collarbone, and slipped disks in his back and was under a Doctors care, Cpt. Curry still thought Staff Sergeant Burley was the right man for the job. Staff Sergeant Burley was asked to complete the process in two days.
Miles of walking on base that was okay, but some of the locations Sergeant Burley and Private E2 Kent need to visit are located miles off the base. The problem? Staff Sergeant Burley does not have a European drivers license, and the following day he has a dental appointment at 1000 hours to which his wife is going to drive him, but then afterward, she needs to be at work so she cannot assist him.
After the first day of out-processing January 11, 2007, Staff Sergeant Burley is visiting with Cpt. Curry and giving him a progress report and Cpt. Curry is pleased by the results. Then Sergeant Burley expresses how he can see people swooping down to kick Kent’s ass because of the situation.
The Cpt testified that he thought Sergeant Burley was joking and that he knew the sergeants demeanor and did not take him to be serious. The Captain even interjected that if that were to happen he, himself, would be so disappointed that he would probably have to write a letter of reprimand. A Staff Sergeant and a Captain talking crap about the situation.
Staff Sergeant Burley let it be known to his command that he needed help the following day getting Kent off base. The weekend was an extended weekend (Martin Luther King Weekend) and everyone it seemed had made prior arraignments for the holiday, and would not be available to help. He was told by his command, “Do what you have to do, just get it done!”
So Staff Sergeant Burley started making phone calls, many phone calls trying to get hold of anyone who might be available to assist. He was having no luck. The morning of his dental appointment, while en route with his wife, he was finally able to get hold of one of his privates, Private first Class Joshua Stockton. Private Stockton agreed to help Sergeant Burley at 1200 hours.
After Sergeant Burley’s dental appointment and lunch Staff Sergeant Burley’s wife dropped him off at the barracks where Private Stockton was living. (Many witnesses said they could testify seeing Sergeant Burley and his wife together having lunch and at what time, but these people were never called as witnesses or questioned by investigators.)
Sergeant Burley says that when he arrived to Privates Stockton’s room at 1200 Stockton was not present. Noticing the door next door was open he went in to see if Stockton might be there. This was Private E2 Colkmire’s room. He and Private Stockton were buddies so Sergeant Burley thought he might be there. Private Colkmire was packing to go somewhere and Staff Sergeant Burley asked him where he was going. Colkmire told him that he and some friends were going to Rome for the long weekend. Sergeant Burley shared that he and his wife had visited Rome and that they had a lot literature for places to see. If Colkmire was interested Staff Sergeant Burley would get the literature to him after he was done with Private Kent later in the day.
Cody Colkmire’s room looked like he might have had a frat party the night before, so Sergeant Burley told him to have it in order before he left and that he, Sergeant Burley, would inspect the room when he brought him the literature.
Another Private, Frank Kirmse, was moving into Colkmire’s room while Staff Sergeant Burley was there and beings he was moving from next door was in and out of the room. Colkmire seemed to notice that Sergeant Burley was in pain from all the previous days walking. According to testimony from the record of trial, Colkmire wanted to know, “what would happen to a guy like Kent, a dirtbag who went AWOL, in the old days”. (page 1080,1081) So, Staff Sergeant Burley told Colkmire the basic joke that he and Captain Curry had shared with each other from the day before. In fact Sergeant Burley admits he shared this joke with many different people. “How he could see people dressed up as ninja’s jumping out and kicking Kent’s ass.” This joke, though, is not without precedence, in the past, on this very base, but in a different company, men were dressing up as ninja’s and pulling pranks on other barracks. Typical young nincompoops acting like nincompoops.
Perhaps Private Frank Kirmse listened in, but Staff Sergeant Burley says he didn’t speak directly to Private Kirmse. When Stockton arrived a short time later, around 1230 hours he and Sergeant Burley went straight to Kent’s barracks, where, for his protection he was housed with Bco. There were several big duffel bags that needed to be carried down a flight of stairs along with other gear that was to be turned in. Staff Sergeant Burley needing physical help incorporated Private Stockton and Kent as pack mules and made the move in one trip. With Private Stockton’s appreciated help, all of the locations off base locations were completed. Staff Sergeant Burley and Kent were returned to the base at around 1430. A few more locations on base still need to be visited but Staff Sergeant Burley released private Stockton from his duty because all the remaining locations were close by.
.
While finishing Kent’s out-processing, Staff Sergeant Burley received a text message from Colkmire asking, “Where you all at?”
To which Staff Sergeant Burley responded, “About 45 minutes.”
Of course Staff Sergeant Burley thinks Private Colkmire is talking about the Rome literature and room inspection. Later Colkmire sends another message, “It is finished.” To which Staff Sergeant Burley never responded assuming Colmire had finished his room.
(It is important to keep in mind that Staff Sergeant Burley admitted to investigators that he had received these text messages from Private Colkmire. That is the only reason that the messages were used against him during his general court-martial because when investigator Soria checked the phones for physical evidence, looking to verify the Private E2 Colkmire and Private First Class Stockton’s changed sworn statements, there was no physical evidence present on the phones. Only by Staff Sergeant Burley being truthful enough to say that he had received the text messages were they twisted and used against him at his court-martial. In fact Staff Sergeant Burley says his phone had evidence on it that would have proven that the privates were lying but when he received his phone back after he was arrested his phone had been erased.
When I asked the lawyer, Cpt. Compton about this fact, he told me, “We didn’t know how to introduce it as evidence.”)
I am going to copy the time line investigation that was completed on 13 January 2007. This is from the MEMORANDUM FOR RECORD
SUBJECT: 15-6 Investigation Regarding the Assault on PV2 Kent on 12 January 2007. This report is signed by Michael R. Fenzel LTC, IN Commanding
We pick up this report in item number 4, paragraph n.
n. Friday 12 January, 2007. SSG Burley completes the clearance requirements with PV2 Kent. PV2 Kent has his orders issued and tickets for a commercial flight departing Venice 130730LJAN07. At approximately 1540 SSG Burley dropped PV2 Kent off at his room in building 106. At 1541 SSG Burley calls CPT Curry to inform him the process was complete. CPT Curry called LTC Fenzel who inquired about the flight information to which CPT Curry did not have the specific details. CPT Curry called SSG Burley directing him to get the detailed itinerary fromPV2 Kent. AT approximately 1555 SSG Burley went to PV2 Kent’s room, copied down the itinerary, and confirmed PV2 Kent knew he needed to be at the Ederle Inn at 0330 on 13 January, 2007. SSG Burley called CPT Curry, gave him the flight information, and stated that he will inform the CQ since he is in the vicinity. At approximately 1615 SSG Burley met with SGT Punsky, B/1-503 CQ (Exhibit F)
5. Description of the assault of PV2 Kent on 12 January 2007 and the actions taken immediately in response. At approximately 1620 hours, 12 January, 2007, PV2 Jared Kent, was assaulted in his barracks room by three individuals. The assailants bound him, beat him and fled from the scene with in a matter of minutes. PV2 Kent was discovered by the B CO CQ who was coming by to check on PV2 Kent and provide him with flight and related movement times. Immediately following the identification that an assault had taken place, 1-503 conducted a 100% unit recall and lock down to protect the crime scene and ensure that the perpetrators did not flee post. Working with the MP’s and CID, 1-503d conducted a series of interviews with suspects, solicited tips from every soldier via secret ballot, conducted inspections and targeted searches which collectively led to the identification of the one confessed assailant and two other suspects. The following paragraphs list actions taken and events that occurred after the assault occurred:
a. 1550 hours- PV2 Kent is escorted back to his barracks room (Room 83, Building 106).
b. 1553 hours- SSG burley, HHC/1-503 escort, copies PV2 Kent’s itinerary.
c. 1612 hours- SSG Burley calls CPT Curry with flight information and states will to inform the B/1-503 CQ about the timeline for 13 January 2007.
d. 1615 hours- SSG Burley speaks to SGT Punsky about Kent stating that he needs to be at the Ederle Inn at 0330 the following morning to take the shuttle to the Venice airport. (Exhibit F)
e. 1620 hours- PV2 McGriff, one of two roommates, departs room to go to PV2 Fulton’s room next door, Room 82, building 106, to watch a movie.
f. – 1621-1630 hours- assailants enter the room and assault PV2 Kent.
g. 1635 hours- SGT Punsky goes to room 83, Bldg 106, to inform PV2 Kent that he would wake him at o230 for a 0330 departure from Ederle Inn on the airport shuttle to the Venice airport. SGT Punsky arrives to the door to find it unlocked. He enters the room and sees PV2 Kent bound and injured.
The report goes on to detail the rest of the actions taken that night. This includes the discovery and arrest of Private E2 Cody Colkmire. In the statement Private Colkmire gave to investigator Soria he names only two accomplices, Private first class Joshua Stockton and Private E2 Frank Kirmse. He names no one else as a co-conspirator. When asked, “Whose idea was it to give Kent a going away surprise?” Colkmire answered, “It actually was me.”
When Joshua Stockton was questioned by investigator Soria and asked, “How far out did you, Kirmse, and Clolkmire plan the attack on Kent? Joshua answered, “around like 1400 today.”
Later in his questioning Soria asked Private Stockton, “Did anyone else know about this plan?” Private Stockton answered, “No, I told them not to say anything about it.”
So the three, Colkmire, Stockton, and Kirmse are arrested and held in D-Cell pending investigation. According to witnesses from the record of trial the three are allowed to speak to each other, and even pass notes back and forth to each other through the bars.
It is important to note at this time that Frank Kirmse is not a young man, even though he is just a private. He is 36 years old, and I would imagine if anyone did a background check you would most likely find that this is not his first encounter in legal matters. Frank Kirmse gave no official statements to investigator Soria, and he is the only one to request a lawyer after first being arrested. He knows what you are supposed to do!
So then, how was Staff Sergeant Burley implicated?
On January 15, 2007 “PV2 Kirmse passed a note to 1SG Bryant in the holding cell stating that SSG Burley planned and oversaw the assault.” (E-mail from LTC Fenzel to MAJ William Helixon.)
Just moments before the attack took place against PV2 Kent, it is stated by Sergeant Punsky (Sworn affidavit dated 12 Jan) that while Staff Sergeant Burley is briefing him on PV2 Kent’s departure times, “SSG Burley said that PV2 was lucky that none of the guys in his platoon (the Mortar platoon) hadn’t done anything to him since they really didn’t like him”
Does that sound like a statement that a man would make mere moments before his planned attack? If nothing else it should have put SGT Punsky on alert to be on the look out for possible strangers in his barracks.
Also, the note Kirmse passed on January 15, 2007, it was shredded and flushed down a toilet. That was Private E2 Frank Kirmse’s written statement, not given to investigators but to a First Sergeant who allowed the note to be destroyed.
Then on the 16 of January Cody Colkmire and Joshua Stockton both gave new sworn statements to investigator Soria in which they named Staff Sergeant Burley as the one who gave them an order to assault PV2 Kent.
In Colkmire’s second statement he claims to be approached by Staff Sergeant Burley after his EMT class “around 3:00 or 1500 hours”.
That is when this plan was schemed, and I believe truthfully according to Cody Colkmire’s second statement. Just one problem, there is no way Staff Sergeant Burley could be present while the plans were being made.
In Joshua Stockton’s second statement he says he dropped Sergeant Burley and Kent off on the base at around 1430 and then he went back to the barracks and met with Cody Colkmire. In PFC Stockton’s first statement he said they planned the attack, “Around like 1400 today.” In PFC Stockton’s second statement he starts it out:
“On the 12 of January 2007 around 1200 I, Joshua Stockton got a phone call from staff Sergeant Burley it went something like this:
PFC Stockton then goes into a very detailed conversation wherein SSG Burley is alleged to have said, “ After he’s finally cleared out of the Army, I want some people to put on some baklavas and go beat the F--- out of him.”
We need to examine these two sworn statements very close. Note that in each of them they put Cody Colkmire, Joshua Stockton, and Frank Kirmse together at around 1400 to1500 hours. That is when Cody in his statement says that Sergeant Burley met with them and arrangements are made for the assault to take place. This statement has one major problem. Staff Sergeant Burley is with Kent during this time period and could not possibly be meeting to plan an assault against him.
So inter a third scenario:
The prosecutor CPT Hill writes in a “Finding of Fact” (This is of course after a very detailed investigation) that is used at Colkmire, Kirmse, and Stockton’s guilty pleas in their court-martials held in Germany. In this document it is stated that SSG Burley met with Colkmire at around 1200 hours and planned the assault. That is the only way it could work. It had to happen when staff Sergeant Burley went to pick up Joshua Stockton while he was needing help, that Staff Sergeant Burley could have been the master mind.
But now look at Stockton’s second statement. According to this statement Staff Sergeant Burley is on the phone at 1200 hours making arraignments to have the F--- beat out of Kent, and oh yea, by the way, I need a ride off base can you help?
When staff Sergeant Burley was arrested he never denied talking to Colkmire, or even being in his room at around 1200 and joking with him about Kent, but one thing Sergeant Burley has always maintained, the conversation was a “Bullshit Joke” and “he never thought anyone would go and do it.” But Colkmire and the other two could not have known what Staff Sergeant Burley was saying, unless someone showed them and wrote up a possible scenario. The only thing Colkmire knew for sure is that the three, Stockton, Kirmse and his self planned the attack together at around 1500, so that was the time he used. PFC Stockton said they planned the attack at around 1400. Colkmire and Stockton did not realize in making up their stories that it would be easy to prove that there is no way, according to their time lines, that Staff Sergeant Burley could involved in planning the attack.
My theory:
The plan, by Frank Kirmse, was to implicate Sergeant Burley to deflect blame. After all it was Staff Sergeant Burley’s “bullshit joke” they acted out on. The only way they were going to get out of this was to say that they, Colkmire, Stockton, and Kirmse were ordered to do it. In order to do that they would all “need to get on the same sheet of music”. He is telling the two accomplices to stop talking, but it is too late they had already given statements.
I can only imagine, LTC Fenzel is mad as hell because this thing happened, and right under his nose. This anger I suppose is coming clear from the top, General Helmick, and when they got word that a Staff Sergeant was involved I’m sure something along the line of, “Hang that little ----!” was said. Thus began vigilante justice through the command structure of Caserma Ederle. I believe LTC Fenzel should have excused himself from the investigation because the anger which could have clouded his judgment to see clearly. In anger, I believe eight charges against were stacked Staff Sergeant Burley, of which he was court-martialed on six. Staff Sergeant Burley could have received twenty-six years confinement because of the charges brought against him.
“Charge I: Violation of the UCMJ, Article 81. Plea: Not guilty. Finding: Guilty
Specification: At or near Vicenza, Italy, on or about 12 January 2007, conspire with Private E2 C.A.C., Private First Class J.L.S., and Private E2 F.J.K. to commit an offense under the Uniform Code of Military Justice, to wit: house breaking and aggravated assault with a means likely to produce death or grievous bodily harm, and in order to effect the object of the conspiracy and for the purpose of bringing about he object of the agreement:
(a) Staff Sergeant Burley called Private First Class S. about a plan to attack Private E2 K.;
(b) Staff Sergeant Burley brought Private First Class S. with him to Private E2 K.’s barracks room while Staff Sergeant Burley was escorting Private E2 K. through out-processing so Private First Class S., Private E2 C., and Private E2 K. would know the location of the barracks room where Private E2 K. was residing;
(c) Staff Sergeant Burley sent a message to Private E2 C. to be ready in 45 minutes;
(d) Private E2 C. called Private First Class S. and informed him of the text message he received from Staff Sergeant Burley and Private first Class S. went to Private E2 C.’s room to get ready;
(e) Private E2 C. obtained all temperature woven cloth backing adhesive tape (DUCT tape);
(f) Private E2 C., Private First Class S., Private E2 K. all changed into blue jeans and white T-shirts and secured balaclavas;
(g) Staff Sergeant Burley met with Private First Class S., Private E2 K., Private E2 C. and told them to wait about 5 minutes before attacking Private E2 K. and instructed the group to call him after the attack was complete;
(h) Private E2 C., Private First Class S., Private E2 K. went to the barracks building where Private E2 K. was residing and hid in the laundry room until Private E2 C. determined that there were no people around the stairwell;
(i) Private E2 C., Private First Class S., Private E2 K. concealed their faces by covering them with their black balaclavas and went to the barracks room where Private E2 K. was residing;
(j) Private e2 C. moved the door handle to see if it was unlocked and when the door opened Private E2 C., Private first Class S., and Private E2 K. rushed into the barracks room where Private E2 K. was residing surprising private e2 K. as they started to punch him;
(k) Private E2 C. tackled private e2 k. causing Private E2 K.’s face to hit a bed post while falling to the ground;
(l) Private e2 C., and Private e2 K. used DUCT tape to bind Private E2 K.’s hands together and then Private E2 C. used DUCT tape to bind his hands to a bed frame;
(m) Private First Class S. sat on Private E2 K.’s ankles and used Duct tape to bind Private E2 K.’s feet together and did strike Private E2 K. on the legs, chest, stomach, and in the face;
(n) Private E2 K. did choke Private E2 K. and did strike Private e2 K. on the legs, chest, stomach, and in the face;
(o) Private E2 C. and Private E2 K. wrapped DUCT tape around Private E2 K.’s head and neck several times covering his nose and mouth;
(p) After Private E2 C., Private First Class S., and Private E2 K. had finished taping Private E2 k., Private E2 C. did strike Private e2 K. on the forehead, the kidneys, his left leg, and thigh;
(q) Private E2 C., private first class S., and Private E2 K. did flee Private E2 K.’s barracks room, leaving Private E2 K. alone and unattended with his feet bound together with DUCT tape, his hands bound together and attached to a bed frame with DUCT tape, and DUCT tape wrapped several times around Private E2 K.’s head and neck covering his nose and mouth;
(r) After fleeing the barracks room where Private e2 K. was residing, Private E2 C. and Private first Class S. reported to Staff Sergeant Burley that they had successfully attacked Private E2 K.
Plea: Not Guilty. Finding: Guilty, except the words “aggravated assault with a means likely to produce death or grievous bodily harm, “ substituting therefore “battery.” Further exception the words, “ Staff Sergeant Burley called Private First Class S. about a plan to attack Private E2 K.” Of the excepted words, Not guilty, of the substituted words, Guilty.
Charge II: Violation of the UMCJ, Article 92. Plea: Not Guilty. Finding: Guilty
Specification: Derelict in the performance of his known duties at or near Vicenza, Italy, on or about 12 January 2006, in that he willfully failed to provide for the safety of Private E2 J. K., as it was his duty to do. Plea: Not Guilty. Finding: Guilty.
Charge III Violation of UMCJ, Article 107. Plea: Not Guilty. Finding: Guilty
Specification: 1: At or near Vicenza, Italy, on or about 12 January 2007, with intent to deceive, make to first Sergeant M. L. B. certain official statements which were totally false and then known by the said Staff Sergeant Burley to be false, to wit: (a) answering “No” to First Sergeant B.’s question, Do you know anyone or have any knowledge of personnel who assaulted Private E2 K. on 12 January 2007?
(b) answering “No” to First Sergeant B.’s question, ‘Did you have any idea or knowledge that tan assault would take place on Private E2 K.?;
(c) answering “No” I do not have any information or knowledge to Private E2 K.’s attackers, after I notified CQ I was across the street at the Arts & Craft with my wife conversating (sic)” to First Sergeant B.’s question, “Do you have anything that you would wish to say that would bring about identification of the attackers to Private E2 K.? ;
(d) answering “No” to first Sergeant B.’s question, “ did you notify anyone else besides the company commander that Private e2 K. was leaving tomorrow?”;
(e) answering “No I do not” to First Sergeant B.’s question, Do you have any reason to believe that anyone in the command would harm Private E2 K.?.
Plea: Not Guilty. Finding: Guilty.
Specification 2: At or near Vicenza, Italy, on or about 12 January 2007, with intent to deceive, make to Military Police investigator R.S. certain official statements which were totally false and then known by the said Staff Sergeant Stephen C. Burley to be false, to wit:
(a) “we joked some poking fun at the allusion (sic) of K. being knocked around some but never did I believe that the 3 soldiers accually (sic) go and do it”;
(b) “I had no idea that joking with the men to raise a little marale (sic) among ourselves would lead to the beating of K.”;
(c) answering “I did not ask them, but we joked about it later that day. I never asked them to do it” to Investigator R. S.’s question, did you ask C. or S. to give K. one last good bye treat just by roughing him up a little?”;
(d) answering ‘No I did not want them to assault K. it was a bullshit joke” to investigator S.’s question, did you want C., K., and S. to assault K.?. Plea: Not Guilty. Finding: Guilty
Charge IV: Violation of the UMCJ, Article 128. Plea: Not Guilty. Finding: Guilty.
Specification: In that Staff Sergeant Stephen C. Burley, did, at or near Vicenza, Italy, on or about 12 January 2007, commit an assault upon Private E2 J. R. K. with a means likely to cause death or grievous bodily harm, to wit:
(a) rushing Private E2 K. and tackling him to the ground;
(b) choking PV2 K. and striking Private E2 K. on the torso, face and legs;
(c) using all temperature woven cloth backing adhesive tape (Duct tape) to bind Private E2 K.’s hands and legs together and then binding Private E2 K.’s bound hands to a bed frame;
(d) covering Private E2 K. nose and mouth with DUCT tape;
(e) fleeing Private E2 K.’s barracks room, leaving Private E2 K. alone and unattended with his hands and feet bound together with Duct tape, with DUCT tape covering his nose and mouth.
Plea: Not Guilty. Finding: Not Guilty, but Guilty of the lesser included offense of assault consummated by a battery.
Charge V: Violation of the UCMJ, Article 130. Plea: Not Guilty. Finding: Guilty.
Specification: At or near Vicenza, Italy, on or about 12 January 2007, unlawfully enter a barracks room, the property of the United States Army, with the intent to commit a criminal offense, to wit: assault with a means of force to produce death or grievous bodily harm, therein. Plea: Not Guilty. Finding: Guilty, except the words “assaulted with a means of force likely to produce death or grievous bodily harm,” substituting therefore “battery, of the excepted words, Not Guilty, of the substituted words, Guilty.
Charge VI: Violation of UCMJ, Article 134. Plea: Not Guilty. Finding: Guilty.
Specification: At or near Vicenza, Italy, on or about 12 January 2007, wrongfully solicit Private E2 C.A. C., Private first Class J. L. S., and Private E2 F. J. K. to commit the offense of house breaking and assault with a means of force likely to cause death or grievous bodily harm, by requesting and advising private E2 C. A. C., Private First Class J.L.S., and Private E2 F. J. K. to enter the barracks room where Private E2 J. K. was residing, and bind private E2 J. K. with all temperature woven cloth backing adhesive tape and assault Private E2 J. K. therein. Plea: Not Guilty. Finding: Guilty, except the words “assault with a means of force likely to cause death or grievous bodily harm,” substituting therefore, “battery,” of the excepted words, Not Guilty, of the substituted words, Guilty.
4. SENTENCE:
a. Date sentence adjudged: 23 May 2007.
b. Maximum possible sentence for the offenses: Reduction to the grade of E1; forfeiture of all pay and allowances; confinement for 26 years; and a dishonorable discharge.
c. Sentence adjudged by the court: To be reduced to the grade of E1; to be confined for 2 years; and to be discharged from the service with a bad-conduct discharge.
d. Clemency recommended by the court: None.
e. Pretrial agreement: None.
5. CREDIT:
a. Days in pretrial confinement: 1 day.
b. Administrative credit: 24 days.
c. Pretrial restraint not requiring sentence credit: None.
Now you have the findings of Staff Sergeant Burley’s general Court-Martial Hearing. Remember I had mentioned that it appears that someone was mad as hell because of this incident? Look back at the charges, someone wanted Staff Sergeant Burley to face attempted murder charges but the panel of five officers, thank God, could not go along with that finding.
There are only four people who know the truth about what happened on the evening of 12 January, and two of them lied repeatedly in their sworn affidavits to Investigator Soria. And I can show through testimony that the two Privates also signed a “Stipulation of Fact” written by the prosecution that was false also. According to the panel of five, without any physical evidence what so ever, they came to a conclusion that Staff Sergeant Burley was “Guilty” beyond reasonable doubt upon all counts. I wonder what the out come might have been if a change of venue request had been up held? Why was it so important that this court-martial proceeding be held on the base at Caserma Ederle? The three assailants had their court-martial proceedings in Germany and after pleading “Guilty” received 60 day of which they only served 45, and were reduced to “Privates” and got to keep there military careers, and honor.
Most of the record of trial is, “Legal stuff and is very boring I believe to make sure nobody reads it all!” I will let anyone read it in its entirety who wishes, but for now I am going to high light parts of the record that seem to make me wonder, “Who is really “Guilty” of a conspiracy and against whom?” Perhaps someone out there has the money, or Rank and cares enough to see that this case is completely and properly investigated and reviewed.
Remember Fist Sergeant Bryant? He was the person who allegedly received a cryptic note from Private E2 Kirmse on the 15 of January 2007 implicating Staff Sergeant Burley’s involvement in the attack against Jared Kent. He also interviewed Staff Sergeant Burley the night of the incident. I am going to pick up his testimony that he is giving many months later to the prosecution beginning on page 458 of the record of trial:
TC: First sergeant, I am now handing you what’s been previously marked as Prosecution exhibit Number 4 for identification.
Q. What is it?
A. It’s a sworn statement, sir.
Q. How do you recognize it?
A. It’s the sworn statement that I initialed, sir- it’s a copy of a sworn statement that I put my initials on, sir, that Sergeant Burley gave me on the 12th.
Q. On the 12th?
A. Yes, sir.
The trial counsel is going over the sworn statement that Staff Sergeant Burley gave to First Sergeant Bryant, now let me turn to page 462 and get to the meat and potato part of this testimony:
Q. Okay. Did he (Staff Sergeant Burley) ever say whether he had any ideas who had been involved?
A. I asked him that question, sir, and he mentioned a couple soldiers who had might have wanted-the question was if he knew of anybody that wanted to do harm to Private Kent, and he mentioned two or three soldiers that had already cleared the unit, sir-PCS’d to different locations.
Q. Soldiers that weren’t in the-
A. - - were no longer in the command, sir; no, sir.
Q. But it wasn’t Private Colkmire, Private Stockton, or Private Kirmse?
A. No, sir, it was not.
Now First Sergeant Bryant has just told the Court that in the process of questioning Staff Sergeant Burley, that Staff Sergeant Burley never mentioned Stockton or Kirmse. Let’s see if First Sergeant Bryant was a little less than truthful on the stand, or perhaps the prosecution was being a little deceitful toward the panel with their line of questions?
Questions by the Defense Counsel: Page 464
Q. When you asked him (Staff Sergeant Burley) you asked him the question who’d have knowledge that PV2 Kent was staying in Bravo Company barracks, correct?
A. Yes, sir.
Q. And he actually responded with two name: Private First Class Stockton- well more names, but he did mention Private First class Stockton and PV2 Kirmse?
A. To that question, I think he gave me several name, including B Company’s CQ’s and anybody that’s in Bravo Company, yes, sir.
Q. Okay. So there were multiple names, but he did actually name Private First Class Stockton?
A . I’d have to see the statement, sir, but I don’t doubt it.
Q. So is there something that would refresh your memory?
A. I’m sorry, sir?
Q. Is there something that would refresh your recollection?
A. If I saw the statement, sir.
DC: Retrieving it back from the military judge.
Handing the Prosecution Exhibit 4 to the witness. Could you please read that quietly to yourself and hand it back when you’ve finished?
(The witness appeared to peruse Prosecution Exhibit 4)
WIT: Yes, sir.
Q. Has your memory been refreshed?
A. Oh, yes, sir.
DC: Handing the document back to the military judge.
Q. So, to the question where you asked him who would have knowledge the PV2 Kent was staying in Bravo company barracks, he, in fact, had mentioned Private First Class Stockton and PV2 Kirmse, along with others?
A. Yes, sir. He named ten individuals.
So we see for some reason First Sergeant Bryant over looked the fact that Staff Sergeant Burley mentioned both Stockton and Kirmse to him on the night of the incident as possible people who knew where PV2 Kent was staying and therefore could be considered suspects. But is there something else First Sergeant Bryant withheld?
He once again is answering questions by the trial counsel:
Q. You had mentioned before that you thought, when you first talked to him (Staff Sergeant Burley) that he was being truthful to you?
A. Correct, sir.
Q. How, if at all, did that change- did that opinion change later on?
A. After it came out that he was a part of it, sir, very much, sir.
TC: Okay. No further questions.
MJ: Recross?
Questions by the defense counsel:
Q. You found out this information about other people knowing about this from other- what other people have told you, correct?
A. Correct, sir.
DC: No further questions.
No further questions? First Sergeant Bryant just said he “found out this information about other people knowing about this from other- what other people have told you, correct.” If this is not a deliberate lie, then it is at least a very misleading statement. First Sergeant Bryant is the one who supposedly received first hand knowledge through a note passed to him from Frank Kirmse that Staff Sergeant Burley was involved.
E-mail dated January 16, 2007 from Michael Fenzel to Maj. William Helixon and Cc’d to Col Charles Preysler.
Will,
As we discussed in person, on Friday, 12JAN after PV2 Kent was assaulted (1620hours) I asked the HHC Commander to bring SSG Burley to see me (approximately 1815hours). The reason being he was the NCO who was charged with clearing Kent and ensuring that he was aboard his flight home. Further, I felt as though the window between him leaving PV2 Kent at his barracks and when PV2 Kent was assaulted indicated that he either had knowledge of the attack or was under surveillance by those soldiers who carried out the attack. My questions to him revolved around who he might have informed of PV2 Kent’s barracks location and who he might have informed of PV2 Kent’s impending departure, wittingly or unwittingly. In our meeting he denied any knowledge of who might be responsible for the attack, stated that he could not remember sharing any information about the location of PV2 Kent’s barracks room, and made clear that he didn’t know who else would have known about his flight information other than the Bco CQ (SGT Punsky).
I had a sworn statement in my hand from SGT Punsky that stated SSG Burley had voiced his own disdain for PV2 Kent when he asked him – Bco CQ – (PV2 Kent was staying in the Bco barracks) to ensure that PV2 Kent was at the Ederle Inn NLT 0330 the next morning. According to SGT Punsky (sworn statement dated 12Jan), SSG Burley said that PV2 Kent was lucky that none of the guys on his platoon (the mortar platoon) had’nt done anything to him since they really didn’t like him. So while I had SSG Burley in front of me I asked exactly who didn’t like PV2 Kent and when he told me that he didn’t know, I directed the 1SG to gather a sworn statement from SSG burley that pointedly asked him all those questions and focused specifically on those individuals who had voiced their desire to “do something to him.” 1SG Bryant showed me the statements when they were complete and in them SSG Burley denied any knowledge of who might want to hurt PV2 Kent or who might have known about the location of his room. (We know LTC Fenzel is not being truthful here, record of trial showed that SSG Burley did mention to 1SG Bryant that PFC Stockton and PV2 Kirmse were two individuals named out of ten who might have known the location of where PV2 Kent was staying.) SSG Burley stood in front of me and stated that he had no knowledge of the attack and that he was with his wife at the time of the attack, who was at work across the street from Bco barracks. After receiving the sworn statements I had no reason to be further suspicious of him, UNTIL PV2 KERMISE(sic) PASSED A NOTE TO 1SG BRYANT IN THE HOLDING CELL (15JAN) STATING THAT SSG BURLEY PLANNED AND OVERSAW THE ASSAULT.
Did First Sergeant Bryant just forget that HE was the SOURCE that provided LTC Fenzel the information that SSG Burley was allegedly involved because of a note that was passed to him from PV2 Kirmse while PV2 Kirmse was in D-Cell.
The one individual who refused to talk to investigators is passing notes to a First Sergeant through cell bars. Where is that note? What exactly did the note say? It is our understanding that the note was some how shredded and then flushed down a toilet. So which is it, did first Sergeant Bryant learn about SSG Burley’s involvement from other individuals or did Kirmse pass him a note and he, First Sergeant Bryant was compelled to tell LTC Fenzel of SSG Burley’s alleged involvement. Did LTC Fenzel see the note?
Is it possible that PV2 Kirmse just made up a story and passed it on to First Sergeant Bryant? Read this testimony from Staff Sergeant Fillinger who was assigned to guard Stockton, Colkmire, and Kirmse while they were in D-cell.
Q. When you finally went in, did you hear any discussions between the privates?
