May 14, 2005

Ft. Stewart, Georgia

The court martial of Army Sgt. Kevin Benderman for refusing to deploy to Iraq with the Third Infantry Division has taken two dramatic turns before it has begun.

On Wednesday, in the no-frills courtroom here at this sprawling Army post near Savannah, Col. Stephen Henley granted a motion filed by defense attorneys for a new Article 32 hearing, setting the proceedings against Benderman back to square one. Then, as the process began anew the next day, the Army filed two new allegations against the 40 year-old sergeant that could add up to 10 more years to his sentence if he is found guilty.

Col. Henley ruled that the original Article 32 investigation, the procedure by which the Army determines if it has sufficient grounds to send a case to a General Court Martial, was flawed by a "presumption of prejudice" on the part of the officer in charge of the investigation, Lt. Col. Linda Taylor, based on a facsimile message she sent to her superior during the course of her investigation.

In granting the defense's motion for appropriate relief and dismissing Taylor's findings, Henley restarted the Army's case against Benderman with a new Article 32 hearing that began yesterday morning. But before the day was out, Army attorneys, attempting to bolster their case against Benderman, filed two specifications of larceny one for $1,947.50 in hazardous duty and family separation pay he allegedly received even though he did not go to Iraq and $975.33 of federal income taxes that are routinely waived for soldiers deployed to combat zones.

Benderman's civilian attorney, William Cassara, called the larceny charges "silly," noting that out of 20 soldiers in Benderman's division who did not deploy to Iraq for various reasons, four others were also overpaid. He said none of them had been charged with larceny, and added he was confident they would be able to disprove the Army's charges.

A vehicle mechanic with the Third Infantry Division, Benderman has been in the Army for 10 years. He served one tour of duty in Iraq during the U.S. invasion of that country in 2003, but when his unit was ordered back for another tour and he filed for Conscientious Objector status. The initial charges against him are alleged violations of the Uniform Code of Military Justice (UCMJ) Article 85, desertion with intent to avoid hazardous duty, and Article 87, missing movement by design.

He contends he did not desert, since he reported for duty at Ft. Stewart on Monday, January 10, following the deployment of his unit the previous Friday, and that since the complete deployment of the division would take another week, there was reasonable doubt as to whether his company superiors intended for him to leave that day or continue to review his C.O. application and take a later flight.

If found guilty on the Article 85 and 87 charges, Benderman faces a maximum seven years in prison, a dishonorable discharge, and reduction in rank to private.

Major David Bedard, appointed as investigating officer for the new Article 32 hearing ordered by Henley, took testimony from three soldiers who had returned to Ft. Stewart from Iraq. They were questioned by Army trial counsel, Captain Johnathan DeJesus, as well as Benderman's military JAG lawyer Major Scot Sikes, and Cassara. Bedard then recessed the hearing until May 26.

Mike Ferner is a former Navy Hospital Corpsman and a member of Veterans for Peace. He spent three months in Iraq, before and after the U.S. invasion, and is writing a book about his experiences. He can be reached
at: mike.ferner@sbcglobal.net