In the Record of Pretrial Investigation, dated 06 February 1980, the Staff Judge Advocate investigating officer places before the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina, the recommendation for Trial by General Court-Martial of Private First Class Robert R. Garwood, U.S. Marine Corps.

THE SUMMARY OF EVIDENCE

Part IV, The Government's Case, presents excerpts from 10 witnesses, most of them Ex-POWs who knew Robert Garwood and who gave sworn testimony, 2 sworn statements and various exhibits against Robert Garwood.

Part III, features excerpts from the only witness presented as part of the defense case. Although the Government's Case witnesses testimony was presented against Garwood, and as there was only 1 defense witness, the few objective extracts from these witnesses are presented for balance.

Part IV will wrap up the Summary of Evidence with Elements of the Offenses; Charges; Comments; Specifications and Recommendations from the Staff Judge Advocate.

ELEMENTS OF OFFENSES - Extracts
CHARGES: III: Between MARCH 1967 and JUNE 1967, PFC GARWOOD absented himself from the USMC. He remained so absent until on or about 22 MARCH 1979. That his absence was without proper authority. That his absence occurred during a time of war. That he intended to remain away therefrom permanently.

COMMENTS: I concur with the recommendation to dismiss Charge VI. This charge is supported by evidence, but is unnecessary. It was originally charged for contingencies of proof.

I concur with the recommendation to combine Charge II and Charge III into a single charge. Prior to the investigation, the unauthorized absence and desertion were set out separately for contingencies of proof and to put the defense on notice of the Government's theory of the case. In my opinion, the evidence in the record of the investigation supports the contention that PFC GARWOOD absented himself without authority prior to his being captured; and then subsequently formed an intent to remain away permanently when he began collaborating with the enemy. It is not clear just how early GARWOOD may have entertained the requisite intent to remain away permanently; but the evidence supports the contention that PFC GARWOOD had such an intent at least by 1967 when he allegedly refused repatriation and accepted a commission with the enemy forces. It is proper to combine the two charges into one because it does not change the nature of the charges, make them more serious, increase the punishment, nor mislead the defense.

The remaining recommended changes to the charges will merely remove surplusage and make the specifications conform more readily to the testimony of the expected witnesses. During the war, South Vietnam was the Republic of Vietnam and North Vietnam was the Democratic Republic of Vietnam. All Vietnam is now Democratic Republic of Vietnam. This allegation of venue is not essential to the charges in any event. The charges should be amended to show that Headquarters and Service Battalion had been redesignated Headquarters Battalion.

Therefore, I recommend that the trial counsel should be directed to amend the charge sheet to reflect these modifications.

B. Paragraph 121 in the Manual for Courts-Martial directs that:

If it appears to any commanding officer who considers the disposition of charges as indicated in 32,22 and 35 or to any investigating officer (34), trial counsel, or defense counsel that there is reason to believe that the accused is insane (120d) or was insane at the time of the alleged offense (120b), that fact and basis of the observation should be reported through appropriate channels in order that an inquiry into the mental condition of the accused may be conducted before trial.

The defense presented evidence which ostensibly was offered for the purpose of raising the issue of competency of the accused to stand trial or his mental responsibility at the time of the alleged offenses or presently. This evidence consisted of the testimony of Staff Sergeant PETERSON which related his knowledge of three incidents in which PFC GARWOOD sustained what he (PETERSON) perceived to be head injuries while they were stationed together in Okinawa from February through May 1965. Staff Sergeant PETERSON had personal knowledge of only one of the incidents, but recalled that the other two were common knowledge among the dozen or so Marines assigned to the unit to which he and PFC GARWOOD were assigned. Staff Sergeant PETERSON further testified, that at about the time of these incidents, PFC GARWOOD began complaining of headaches and was on more than one occasion precluded from his duties as a driver because of these headaches and accompanying dizziness. Through conversations with PFC GARWOOD both in Okinawa and later in Danang (Aug/Sep 65), Staff Sergeant PETERSON believed PFC GARWOOD had indicated that he was to return to Balboa Naval Hospital to receive treatment associated with his head injuries. Staff Sergeant PETERSON recalled that he saw PFC GARWOOD on 5 or 6 occasions in Danang, and, to his recollection, PFC GARWOOD did not complain of having headaches. Further, that on each occasion, PFC GARWOOD was driving a government vehicle and appeared to be performing his assigned duties.

The defense also offered the accused's health record for consideration by the investigating officer, without articulating whether it, along with Staff Sergeant PETERSON's testimony, was being offered to raise the issue of mental competency.

The investigating officer stated that, while such evidence may well have been offered for reasons other than raising the issue of mental competency, he did review such evidence with that issue in mind. He concluded that, in his opinion, the evidence presented was insufficient to raise the issue so as to warrant any further action pursuant to paragraph 121 at the time. Such action, if warranted, would involve the referral of the matter to a medical board consisting of medical officers of whom at least one should be a psychiatrist. The board's express purpose would be to determine the mental competence of GARWOOD.

It is my opinion as well that the evidence is insufficient to warrant referral of PFC GARWOOD to a medical board.

PFC GARWOOD is represented by two military counsels as well as by civilian counsel. Defense counsel can and should request psychiatric evaluation when it is believed there is a mental defense. Thus far, no such request has been made. Irrespective of any such request by defense counsel, the trial counsel, investigating officer and the commanding officer have independent duties to take action where there is reason to believe that mental competency or responsibility is in question. The investigating officer considered his duty in this matter and found that the issue was not raised. As PFC GARWOOD's commanding officer you should determine, based on the evidence presented, whether there is reason to believe that PFC GARWOOD is not competent, or whether at the time of the alleged offenses he was not responsible for his acts. It is not the ultimate resolution of sanity that is to be made, but rather whether he should at this time be referred to a medical board for its determination. It is my opinion, there is no evidentiary basis to warrant referral of PFC GARWOOD to a medical board at this time. While his health record documents at least one of his head injuries, it also reflects psychiatric and medical evaluations of those head injuries and ensuing headaches, with conclusions that are consistent with mental responsibility and competency.

There is also the testimony from several witnesses who observed PFC GARWOOD's conduct and engaged in conversations with him during the very periods in which the alleged offenses occurred. Though one of them (ANTON) recalled that PFC GARWOOD had mentioned having headaches, their testimony as a whole supports the conclusion that PFC GARWOOD was mentally competent.

In my opinion, there is presently no reason to inquire into the mental condition of the accused.

C. Duress is a defense to criminal charges. If PFC GARWOOD was compelled or coerced to do the alleged acts against his will because of force from other persons, either physical of psychological, and he would not otherwise have done the acts, then he would not be guilty of a criminal act. The degree of duress exerted upon the accused must have been such as to induce in him a well-grounded and reasonable fear that, if he did not commit the acts, he would be killed immediately or immediately would suffer serious bodily injury. The compulsion must have been such as would cause a man of ordinary fortitude and courage to yield thereto. The fear compelling the act must have been of immediate death or serious bodily injury and not of an injury in the future or of an injury to reputation or property. Moreover, the threat of immediate, and impending death or serious bodily injury must have continued throughout the perpetration of the acts. If PFC GARWOOD had a reasonable opportunity to avoid committing the acts, without subjecting himself to the threatened danger, his acts are not excusable. In other words the coercion, compulsion or duress which will excuse an otherwise criminal act must be present, immediate and impending, and of such a nature as to induce a well-grounded apprehension of imminent death or serious bodily harm if the act is not done. If the evidence at trial raises the issue of duress, the Government will have to prove beyond a reasonable doubt that PFC GARWOOD did not act under duress.

Duress will certainly be an issue in this case. The witnesses at the investigation who had been Prisoners, described the conditions of their captivity in great detail. Some of the prisoners were brutally mistreated at times. They were all told they were 'war criminals' who were not entitled to protection under the Geneva Convention. They were given political indoctrination and were forced to sign propaganda statements under threat of punishment. Punishments for infractions of camp rules included beatings, withdrawal of food and being placed in stocks for lengthy periods. It appears, however, that the most immediate physical and psychological threat to the prisoners was gradual starvation and the lack of medical attention for wounds and illnesses.

The evidence in the investigation tends to show that while PFC GARWOOD was initially interned with other American POW's, he began to freely dissociate himself from them and began collaborating with the enemy as early as 1967. The evidence tends to show that he acted willingly, and sometimes enthusiastically. The admissions to other prisoners, and circumstantial evidence, tend to show he engaged in this conduct to secure more favorable treatment and release. There is evidence he refused repatriation and voluntarily served the enemy forces in various capacities.

In my opinion, what evidence that dies exist of duress does not amount to a defense of the alleged criminal acts.

D. The maximum sentence imposable is death, confinement at hard labor for life, total forfeitures of pay and allowances, reduction to the lowest enlisted grade, and dishonorable discharge. Charge III, desertion in time of war, and Charge IV, holding intercourse with the enemy, both authorize the death penalty or confinement at hard labor for life. Charge V, ,maltreatment of prisoners of war, authorizes the maximum punishment, but not the death penalty. Charge I, soliciting an act of misbehavior before the enemy, authorizes a maximum ten years confinement at hard labor.

The investigating officer recommended that the death penalty not be precluded as a potential punishment. While the alleged offenses are serious in nature, it is my opinion this case should be referred as a non-capital offense. You should refer this case as a capital case only if you consider that the death penalty would be appropriate punishment if ajudged. None of the offenses allege conduct from which death or serious injury of any other Americans directly resulted, with the exception of First Sergeant Richard F. WILLIAMS. You have the authority to place any limitation on the maximum sentence to be considered by the court that you determine appropriate.

Should you refer the case as a non-capital, then the maximum punishment would be limited to confinement at hard labor for life, dishonorable discharge, forfeiture of all pay and allowances and reduction to the lowest enlisted grade.

b. The Charges and Specifications allege offenses under the UCMJ and such a serious nature that trial by General Court-Martial is warranted by the evidence indicated in the report of investigation. Accordingly, it is recommended that the charges and specifications with modifications as recommended herein be referred to trial by General Court-Martial as a non-capital case. Should you concur in the above recommendations, you need only sign the referral endorsement on page 3 of the charge sheet.

S/S___________

J.R. MOTELEWSKI

END OF GARWOOD REVISITED