UNITED STATES MARINE CORPS

IN REPLY REFER TO
5800
JAGT/jtc
07 APR 98

From: Major General John T. Coyne USMC

To: Commanding General, I Marine Expeditionary Force

Subj: INVESTIGATION TO INQUIRE INTO THE CIRCUMSTANCES SURROUNDING THE JOINT TASK FORCE-6 (JTF-6) SHOOTING INCIDENT THAT OCCURRED ON 20 MAY 1997 NEAR THE BORDER BETWEEN THE UNITED STATES AND MEXICO

Ref: (a) JAGINST 5800.7c (Manual of the Judge Advocate General)

Encl: (1) Appointing Order

(2) List of Enclosures (1) - (252)

1. Background

a. On 20 May 97, Mr. Esequiel Hernandez, Jr. died near Redford, Texas after being shot by Corporal Clemente M. Banuelos, USMC, during a Joint Task Force Six (JTF-6) mission in support of the U.S. Border Patrol (USBP). The operation, designated as Mission JT414-97A, was conducted by Marines from Headquarters Battery, Fifth Battalion, Eleventh Marine Regiment (HQBtry, 5/11), 1st Marine Division, Camp Pendleton, California. Mission JT414-97A employed small teams of Marines to conduct surveillance of four areas of the international border between the U.S. and Mexico where USBP officials believed illegal drug smuggling occurred. Cpl Banuelos led a four-man team designated as Team 7. Team 7's assignment during Mission JT414-97A was to occupy a Listening Post/Observation Post (LP/OP) at a location known as Hole 3 along the Rio Grande River and observe an area known as Polvo Crossing, located south of the town of Redford.

b. On the evening of 20 May 97, following the report of the shooting, JTF-6 initiated an investigation into the incident. JTF-6's authority for conducting this investigation arose from its responsibilities as the operational command over the elements of HQBtry, 5/11 participating in Mission JT414-97A. On the same evening, the Texas Rangers responded to the scene of the shooting and commenced a state criminal investigation. Shortly thereafter the Department of Justice (DoJ), Criminal Section, Civil Rights Division, opened a criminal investigation to determine whether Cpl Banuelos' shooting of Mr. Hernandez violated federal criminal civil rights statutes. Their active work on this investigation, however, was suspended pending the outcome of the Texas Rangers' state criminal investigation.

c. A draft version of the JTF-6 investigation report was provided to the Marine Corps in late June 1997. It was determined that the report's operational focus did not address all the facts and issues required by Marine Corps service regulations for a command investigation of a serious incident. As a result, on 10 Jul 97 the Commanding General, I Marine Expeditionary Force (CG, I MEF) signed enclosure (1) directing this investigation.

2. Administrative Comments.

a. In accordance with the reference, and as directed by enclosure (1), this investigation was conducted to inquire into the circumstances surrounding the 20 May 97 shooting incident near Redford. All reasonably available relevant evidence was collected.

b. In the course of the investigation, formal statements were taken from more than 60 individuals. In addition, more than 640 documents were collected - totaling more than 13,000 pages of material pertaining to the investigation. For administrative ease in review and because of the large number of documents collected during this investigation, the enclosures to this investigation are organized as outlined in Enclosure (2). The original documents and records relating to this investigation have been forwarded to the I MEF Staff Judge Advocate's office for retention.

c. A JAGMAN team of support personnel were assigned to assist the Investigating Officer with his report. The team was supplemented as needed in certain disciplines. Over the investigative period, a total of 22 individuals provided full time support. They are identified at enclosure (3).

d. This investigative report addresses the seven broad topics the convening order directed be investigated. To assist the reader in obtaining a sequential understanding of events, the essential findings of fact are, generally, presented in chronological order. Amplification of these findings of fact may be found in the referenced enclosures. Some essential facts are not anchored to a specific date or time. These facts are labeled by topic and presented either at the beginning of the narrative to provide context or after the incident chronology as a predicate for later opinions.

e. The question of compliance with the rules of engagement (ROE) and their adequacy is problematic. The investigation was fortunate to have the assistance of a recognized expert in the field, Colonel W. Hays Parks, USMCR (Ret), who reviewed investigative material and provided an analysis with his observations and opinions.

f. The USBP District Headquarters in Marfa, Texas, recorded the radio transmissions made on the USBP frequency during the incident. Times noted in the transcript were provided automatically by the USBP recording equipment. Using the original recording of these transmissions, the Federal Bureau of Investigation (FBI) Laboratory in Washington, D.C. technically enhanced the recording to reduce static and permit better voice clarity. Identification of the voices in the transcript is the product of the Marine participants in the mission and USBP personnel listening to the enhanced recording and providing their best judgment and recollection of who spoke.

g. A three-dimensional scale model of the incident site was created by the Topographical Platoon, Intelligence Company, Surveillance Reconnaissance and Intelligence Group, I MEF. This model has proven to be invaluable for briefings and interviews of witnesses and is available as required for future briefings.

h. The Department of Defense (DoD) Armed Forces Institute of Pathology provided essential expert opinions regarding the survivability of the medical injuries sustained by Mr. Hernandez. While their findings with respect to what could be deduced from the angle of the gunshot wound are inconclusive, that determination has value to this investigation.

i. The Fleet Numerical Meteorology and Oceanography Detachment, Ashville, North Carolina, relying upon meteorological data obtained through the National Weather Service, provided a comprehensive review of the detected weather conditions found in the vicinity of Redford, Texas, at about 1800 on 20 May 97. Because the closest weather observing/ recording station to Redford is located 65 miles to the northeast in Marfa, Texas, this review and its attached radar summaries could only provide a general picture of weather conditions in southwest Texas for 20 May 97. To obtain the highest degree of accuracy concerning the weather conditions at Polvo Crossing, the findings of fact contained in this report provide the specific observations of persons who were at Polvo Crossing during or shortly after the shooting incident.

3. Investigation Chronology. The progress of the investigation was frequently dependent upon matters outside the control of the investigative team. Certain phases of the investigation are identifiable, and they reveal the reasons for delays as follows:

a. Texas Grand Jury Investigation, 7 Ju1-14 Aug 97.

(1) On 7 Jul 97, the I MEF Investigation Team traveled to JTF-6 Headquarters at Fort Bliss, Texas to begin investigating the numerous areas required by the reference and enclosure (1). The team worked at this location until it returned to Camp Pendleton, California on 23 Jul 97 to continue interviewing witnesses belonging to Eleventh Marine Regiment. During this phase of the investigation, the effort focused on the two principal areas of directed inquiry: facts surrounding the incident on 20 May 97; and the pre-mission training the unit conducted to prepare for the JTF-6 mission.

(2) Also during July and August, the Texas Rangers and the District Attorney for the 83rd Judicial District of Texas, which includes Presidio County and the town of Redford continued their criminal investigation prior to the Texas Grand Jury hearing. This ongoing state investigation precluded the JAGMAN investigation team from contacting or interviewing the Marines of Team 7 or the law enforcement officers from the various state and federal agencies directly involved in responding to the shooting.

(3) In August, the District Attorney presented evidence to a Grand Jury in Marfa, Texas, on the issue of whether Cpl Banuelos should be indicted for the unlawful killing of Mr. Hernandez. The three other members of Team 7, Corporal Roy Torrez, Jr., Lance Corporal Ronald H. Wieler, Jr., and Lance Corporal James M. Blood were subpoenaed to this Grand Jury. Each received immunity from both the State of Texas and the U.S. Marine Corps in exchange for their testimony concerning the events on 20 May 97. On 14 Aug 97, the Texas Grand Jury returned a "No-Bill" indicating that it did not find sufficient grounds for an indictment.

b. Conduct of JAGMAN Investigation, 15 Aug - 12 Nov 97.

(1) When the Texas Grand Jury announced its finding, DoJ activated its suspended criminal investigation into possible violations of the civil rights statutes. Mr. Barry Kowalski, Special Counsel, Criminal Section, Civil Rights Division, became the attorney directing the federal investigation. Consistent with the 1984 Memorandum of Understanding between DoD and DoJ, this Investigating Officer and Mr. Kowalski coordinated their respective investigative efforts.

(2) DoJ cooperation provided immeasurable benefit to this investigation. Mr. Kowalski and the FBI persuaded the Texas law enforcement officers and USBP officers to permit a joint interview by Marine Corps investigators in conjunction with Mr. Kowalski's and the FBI's interviews. Without DoJ's intercession many of the local law enforcement officers would have declined to be interviewed by the Marine Corps. Further benefits to the JAGMAN investigation from DoJ cooperation include obtaining transcripts of the Marines' testimony before the Presidio County Grand Jury, forensic evidence, and other documentary evidence obtained by the FBI from the local law enforcement agencies.

(3) Also during this period considerable effort was expended to obtain a joint USMC and DoJ interview of the three members of Team 7 who testified before the Presidio County Grand Jury. Protracted negotiations with the respective attorneys regarding further immunity from prosecution issues were not successful. The defense counsel collectively argued that a military Court of Inquiry, conducted in accordance with Naval Regulations, should be convened to inquire into the facts of the incident and that only this body could fulfill their interpretation of the legal requirements essential to afford their clients complete immunity.

(4) While these negotiations continued, LCpl Blood was separated from the Marine Corps on 15 Sept 97. After his discharge, and upon the advice of civilian counsel, LCpl Blood accepted the offer of a joint USMC and DoJ interview. This occurred on 29 Oct 97 in Washington, D.C. Following his interview, LCpl Blood voluntarily consented to a polygraph examination by the FBI to provide additional credibility to his memory of key facts. LCpl Blood passed this examination. In return for this cooperation, he received immunity.

(5) Despite the success of LCpl Blood's interview, civilian counsel for Cpl Torrez and the now-promoted Corporal Wieler continued their objection to the Marine Corps and DoJ jointly interviewing their clients in any forum other than a Court of Inquiry. To accommodate these concerns the CG, I MEF convened a limited Court of Inquiry.

(6) The particular rules of procedure for the limited Court of Inquiry were the subject of negotiation between the Convening Authority, DoJ and defense counsel. In the expectation of reaching agreement on the rules of procedure the Convening Authority scheduled the Court of Inquiry for 4 Nov 97. Agreement on the rules was reached between the Convening Authority and DoJ but defense counsel ultimately would not consent to certain portions of the proposed rules. DoJ refused to participate under the rules counter-offered by defense counsel and, when defense counsel proposed proceeding without the participation of DoJ, Mr. Kowalski raised the issue of whether the military could make a valid grant of immunity under the circumstances. Defense counsel then elected to not proceed given the ambiguity of the issue. With this development, the Court of Inquiry recessed and never was recalled.

c. Conduct of JAGMAN Investigation, 13 Nov 97 - 7 Apr 98.

(1 ) Because cooperation with Cpls Torrez and Wieler to obtain their testimony in a military forum had proved impossible, DoJ subpoenaed them and other witnesses to a Federal Grand Jury held from Nov 97 to Jan 98 in Pecos, Texas.

(2) Understanding the Marine Corps' need for access to the testimony of these Marines, DoJ granted Cpls Torrez and Wieler immunity from prosecution for any incriminating statements they might make during a military interview limited to discussing their training for Mission JT414-97A. On 22 Nov 97, at a joint interview with their counsel present, Cpl Torrez and Cpl Wieler answered questions for this investigation about their pre-mission training.

(3) Pursuant to an agreement reached between defense counsel for Cpl Wieler and Mr. Kowalski of the DoJ, a polygraph examination and interview of Cpl Wieler was conducted in Washington, D.C. on 4-5 Dec 97. With the consent of all parties, the Investigating Officer was a participant in the interview. As a result of the polygraph examination, Cpl Wieler was given transactional immunity in this matter.

(4) After this interview, negotiations resumed between the Investigating Officer and counsel for Cpl Torrez for an interview regarding the incident. To meet the legal requirements for immunity, as determined by the Marines' counsel, the convening authority ordered Cpl Torrez to present himself for an interview. As agreed upon, Cpl Torrez received transactional immunity from military charges. This required the continued assistance of DoJ, which provided the necessary letters of testimonial immunity from DoJ, the U.S. Attorney for the Western District of Texas, and the District Attorney for the 83rd Judicial District of Texas. Cpl Torrez was interviewed on 15 Dec 97. A follow-up interview of Cpl Wieler was conducted by the Investigating Officer on 18 Dec 97 under the same conditions of immunity.

(5) DoJ completed its Grand Jury investigation on 8 Jan 98. This investigation ultimately concluded with no federal indictment. On 2 Apr 98, U.S. District Court Judge Royal Ferguson entered an order granting the U.S. Department of Justice's request to permit the Investigating Officer and the Cognizant Staff Judge Advocate of this investigation to review the federal Grand Jury materials. This review was authorized for the purpose of assisting the Marine Corps investigation into possible violations of the UCMJ. The Investigating Officer and Cognizant Staff Judge Advocate completed their review on 7 Apr 98. The Investigating Officer found insuffcient evidence in the federal Grand Jury materials to support preferral of charges under the UCMJ.

(6) The Federal Rules of Criminal Procedure, like the Texas Rules of Criminal Procedure, require secrecy for the testimony given to a grand jury. No information derived from either Grand Jury is included in this JAGMAN investigation.

4. Unique Problems Encountered During The Investigation.

a. When the Presidio County Grand Jury declined to issue an indictment in August, some misunderstood this decision as a complete exoneration of the Marines. As a result, the continuing requirement for this investigation was questioned. This, coupled with the need to advise certain Marines of their rights under the Uniform Code of Military Justice (Article 31) - as a consequence of training issues - caused great angst in the command. Over time a better understanding was developed and, in the end, all necessary witnesses waived their right to remain silent and cooperated with the investigation.

b. The personal information normally obtained in a JAGMAN death investigation regarding a decedent proved difficult to gather. Regrettably, but understandably, local community feelings continue to run high against the military. Out of respect for the grief of the community no attempt to obtain personal information about Mr. Esequiel Hernandez (beyond what is available in the public record) has been made. The estate of Mr. Hernandez and his family have filed a claim against the United States for causing his death. Ample discovery procedures are available during that process to obtain any relevant personal information.

c. Comment is required on the cooperation given to the investigation by Captain Lance McDaniel, the Mission Commander. While keenly aware his performance of duty during the training and conduct of Mission JT414-97A was being closely scrutinized, he displayed candor and great integrity in providing information. Whatever the consequence of those facts to the judgment of his performance, he sought to hide nothing. His immediate understanding of the need for this investigation and forthrightness is commendable.

5. Privacy Act Requirements. All social security numbers contained in this report were obtained from administrative sources and not from the individuals concerned.

1. In late 1989, JTF-6 was established at Fort Bliss, Texas by the Chairman, Joint Chiefs of Staff (CJCS), to assist Operation Alliance by coordinating Department of Defense (DoD) support to Federal, state and local drug law enforcement agencies (LEAs) as a result of the Secretary of Defense's guidance for a comprehensive military support role in counter narcotic activities. (Encls (132), (233), (227), (229))

2. JTF-6 counterdrug missions are conducted for the purpose of assisting in the interdiction of the flow of illegal drugs into the United States. (Encls (132), (139), (221), (244))

3. JTF-6 counterdrug missions assist units of the 1st Marine Division (1st MarDiv) in increasing readiness and achieving unit METLs (Mission Essential Tasks Lists). The counterdrug missions can be conducted by units ranging in size from Platoon to Special Purpose Marine Air Ground Task Forces (SPMAGTF). (Encl (172))

4. Participation in counterdrug missions is "strictly voluntary" and involves units that are qualified to conduct the intended missions. Counterdrug missions are not intended to "take priority over Division TEEP'd (Training Exercise Employment Plan) training." (Encls (46), (172))

5. 1st MarDiv participated in 119 counterdrug missions between October 1992 and May 1997. These missions were distributed as follows: 19 in FY93; 24 in FY94; 18 in FY95; 38 in FY96 and 20 of 28 scheduled in FY97 (The unexecuted eight missions were canceled when ground missions were suspended in July 1997). (Encls (129), (172), (174))

6. A JTF-6 Mission Report compiled by the 1st MarDiv Counterdrug officer on 22 Jul 97, shows that 11th Marine Regiment ( l lth Marines) performed seven counterdrug missions during fiscal years 1995-1997. Three were ground reconnaissance missions and four were Listening Post/Observation Post (LP/OP), which included Mission JT414-97A. (Encl (174))

7. Each JTF-6 counterdrug deployment is directly funded by JTF-6. (Encls (144), (171))

8. Along with the direct funding provided to units for the expense of participating in a JTIF-6 mission, 1st MarDiv also received funding for indirect costs associated with maintaining readiness for Special Operations - Low Intensity Conflict (SOLIC) operations. (Encls (144), (157), (158), (171))

9. A 1st MarDiv briefing presentation prepared in 1997 shows the aggregate of direct and indirect funds provided to 1st MarDiv for participating in JTF-6 missions during the following fiscal years: FY93 - 19 missions and $1.4 million; FY94 - 24 missions and $1. million, FY95 - 18 missions and $2.0 million; FY96 - 38 missions and 4.0 million; FY97 - 28 missions and no revenue figures shown. (Encls (157), (172), (173))

10. JTF-6 counterdrug missions also have financial value for the individual units involved. In FY96, units received $1.5 million in OPTEMPO funding based on their counterdrug mission participation. A benefit noted on one of the 1st MarDiv briefing slides is "Training deployment at JTF-6's expense." (Encls (172), (173))

11. The Commanding General (CG), 1st MarDiv stated in his FY98 Budget Estimate, "Unequivocally, my commanders depend on, and plan for, this annual infusion (JTF-6 counter drug money) . . . Withdrawal from counter drug missions will impact small unit training and could impact anticipated budget plus-ups." (Encl (155))

12. I st MarDiv assigns one of the two Assistant Operations Officers in the Division G-3 Section to be the Counterdrug Officer. From 1995 to present, three officers have held the billet. From the summer of 1995 to the summer of 1996, Lieutenant Colonel Dave Heiland held the billet. From the summer of 1996 to May 97, Major Gary Lehmann performed the duties. In May 1997, Maj Lehmann was succeeded by Major Joe Spair. (Encls (47), (51), (52), (119), (129), (175))

13. While Maj Lehmann's oversight and coordination responsibilities for JTF-6 missions were a collateral duty to his role as the 1st MarDiv Assistant Operations Officer, it comprised 50 percent of Maj Lehmann's work load. (Encl (51))

14. Maj Lehmann published a "Division CD Newsletter" on roughly a monthly basis from October 1996 until April 1997 and distributed it electronically to the S-3s of the Regiments and Battalions throughout the Division. In the newsletters JTF-6 deployments were characterized as "training deployments." (Encls (43), (51), (125), (175))

15. The Counterdrug Officer is the primary repository for lessons learned from counterdrug operations performed by 1st MarDiv units. There were, however, no standard procedures adopted by any of the three officers who held the billet from 1995 to date for capturing and disseminating this information. No use was made of the Marine Corps Lessons Learned System (MCLLS) nor was it thought relevant for that purpose. While Maj Lehmann initiated a counterdrug newsletter during his tenure, all three officers stated that the primary method of dissemination was individual verbal contact between them and individual mission commanders on a case by case basis. (Encls (41), (51), (175))

16. The Division Counterdrug Officer maintained a collection of mission turnover binders obtained from mission commanders at the conclusion of their operations. While newly designated mission commanders were invited to go through the materials as they elected, there was no formal organization or accountability for this collection. (Encl (175))

17. There existed a 1st MarDiv Counterdrug SOP signed by Major General J. M. Myatt. It was considered outdated and, since it was not a Division Order, not directive in nature. During his tenure as the Counterdrug Officer, Maj Lehmann did not provide copies of the SOP to mission commanders. Each of the three Counterdrug Officers stated that a revision of the SOP was on their list of projects but had a low priority. (Encls (51), (52), (171))

18. As FMFM 0-1 notes, at Paragraph 6009b, "SOPs provide the vital link between MCOs and unit performance. They provide necessary guidance from the commanding general and tailor HQMC and force directives to the specific missions of the command." (Encl (233))

19. The CG, JTF-6, "Commander's Intent" is briefed by 1st MarDiv to be that "A Counter Drug mission is an actual MOOTW (Military Operation Other Than War) deployment. Mission Commanders must plan, train and evaluate Risk Assessment and Force Protection. Don't come to these missions unprepared." (Encl (140))

20. Between January 1993 and February, 1997, JTF-6 classified eight events as shooting incidents. In these incidents, mission participants reported gun fire directed at them. In three of these cases, mission participants returned fire. (Encls (21), (118), (129))

21. Five of the eight incidents between January 1993 and February 1997 involved Marines. In four of the five Marine incidents, the Marines were from 1st MarDiv units. In all four 1st MarDiv incidents, the Marines did not return fire, although in one shooting a Marine was wounded. (Encls (118), (121))

22. The fifth Marine shooting incident involved a unit from Second Marine Expeditionary Force (II MEF) from Camp Lejeune, N.C. In March 1993, they provided covering fire for law enforcement officers who received automatic weapons fire from drug traffickers. One of the assailants was arrested and 2,000 pounds of marijuana were seized. (Encls (118), (129))

23. The other three JTF-6 shooting incidents between 1993 and 1997 involved U.S. Army soldiers. In one of these, a soldier was wounded but fire was not returned. In the other two incidents, the soldiers returned fire. (Encls (118), (121), (224))

24. The most recent incident where soldiers returned fired occurred on 24 Jan 97. A five-man Special Forces team, conducting a JTF-6 mission near Brownsville, Texas, encountered three men approaching its position. The men were directed to halt. A man, later determined to be an illegal immigrant, ignored the warning and charged the team, firing a weapon. A soldier returned fire, wounding the man. The man who fired at the team was an illegal immigrant. He was later prosecuted by the U.S. Attorney for assault on a federal officer and attempted murder. (Encls (118), (121), (216), (224))

25. On 6 Sept 96, another gunfire occurrence took place during a mission, but JTF-6 did not classified it as one of the eight shootings incidents between January 1993 and February 1997. During Mission JT129-96A, four Marines from 1st Marine Regiment, 1 stMarDiv, conducted a reconnaissance of a suspected marijuana garden in San Jacinto National Forest. A single shot was fired in their immediate vicinity. The Marines immediately departed the area and reported the incident to the LEA. There were no injuries. (Encls (121), (122), (124))

26. The last gunfire event before 20 May 97 occurred on 16 May 97. In that event, Marines from I Marine Expeditionary Force (I MEF), Camp Pendleton, CA, encountered recreational shooters near their LP/OP during Mission JT329-97. The shooters fired over the heads of the Marines and conducted themselves in a threatening manner. The Marines team leader defused the situation by talking to the individuals even though one of the men was "very hostile." (Encl (123))

27. Marines from 1st MarDiv performed 119 JTF-6 missions, including the subject mission. Four involved shooting incidents exclusive of the subject mission. This means 3.3% of the time Marines deployed on counter drug missions from 1st Mar Div a shooting occurred. If the incidents described in Findings of Fact 25 and 26 are counted as shooting incidents, the percentage increases to 5%. (Encls (173), (174))

28. Lieutenant Colonel Douglas J. Montgomery took command of Fifth Battalion, Eleventh Marine Regiment (5/11) in May of 1996. (Encl (41))

29. LtCol Montgomery indicated to his staff that he would like to do a JTF-6 mission within a year's time and he directed his staff to conduct an estimate of supportability. He stated that he wanted "headquarters Marines to do a real world mission." (Encl (41)).

30. On 2 Jun 96 during JTF-6 Mission JT177-96, (a ground reconnaissance mission conducted in the Angeles National Forest, California) Lance Corporal Eric D. Davis of Company B, 1st Battalion, 5th Marine Regiment (1/5) died as the result of a fall. (Encls (159), (160), (162))

31. On 3 Jun 96, Captain Daniel C. Hodges was appointed as the Investigating Officer to investigate LCpl Davis' death. On 13 Jun 96, he submitted his Report of Investigation (hereinafter "Davis Investigation") to the Commanding Offcer, 1/5. (Encl (159))

32. On 8 Jul 96, a Formal Safety Investigation Report (FSIR) on the Davis death was forwarded from the CG, I st MarDiv, to the Commandant of the Marine Corps (CMC). This safety report was required by Marine Corps Order (MCO) to address ground safety issues associated with operations and training. (Encl (161))

33. In July of 1996, Captain Gregory K. Tesch was designated the Assistant Operations Officer for 5/11, but in the absence of an Operations Officer (S-3), he was the acting Battalion S-3. (Encl (43))

34. At this same time Major Russell H. Smith was the Supply/Logistics Officer (S-4) and acting Battalion Executive Officer for 5/11. He was slated to become the Battalion S-3 when the new Executive Officer arrived. (Encl (43))

35. Capt Tesch discussed many training and scheduling issues with Maj Smith in anticipation of Maj Smith assuming responsibility for their execution in the future as S-3. Among the issues Capt Tesch discussed was the possibility of 5/11 doing a JTF-6 counterdrug mission during Fiscal Year 1997 because there was "a large, white space in our FY97 training plan" which this training would fill. (Enel (43))

36. Maj Smith believed that HQBtry was generally deficient in individual and collective tactical security tasks because their administrative and support responsibilities made this type of training difficult to schedule and conduct. (Encl (43))

37. Maj Smith saw a JTF-6 counterdrug mission as a great opportunity for HQBtry to improve its small unit training readiness status in the area of LP/OP operations as part of its progressive training plan. (Encl (43))

38. In July 1996, Capt Tesch and Maj Smith identified the period of April to May 1997 as being relatively free of scheduled events. After coordinating with Maj Smith, Capt Tesch submitted a request through the chain of command that 5/11 be assigned one of the planned missions during April to May 1997. (Encl (43))

39. On 8 Aug 96, the Battalion Commander of 1/5 provided the First Endorsement on the "Davis Investigation." The Battalion Commander's endorsement specifically approved the Findings of Fact, Opinions and Recommendations contained in Capt Hodges' report. Significant recommendations were:

a) Recommendation 2: "That a minimum of ten uninterrupted training days be allotted to the mission commander, prior to deployment for future missions of this type."

b) Recommendation 3: "That a minimum of five uninterrupted training days be allotted to the mission commanders for pre-deployment preparation immediately prior to deployment."

c) Recommendation 4: "That all Standing Operating Procedures be produced in writing and disseminated to key personnel, to include team leaders, for all missions of this type."

d) Recommendation 5: "That Operations Orders be produced in writing and presented to the team leaders of every patrol prior to insertion." (Encl 159))

40. The Battalion Commander's endorsement also specifically noted that "Company B was not staffed, trained, nor supported in a fashion that allowed them to be successful on its JTF mission . . . The company was faced with a personnel tempo that made the company commander the focal point of contact for all aspects of the mission . . . The company had no executive officer for over a two month period prior to the JTF mission . . . . The company deployed to its JTF mission with two Second Lieutenants onboard less than four months before the mission . . . it became apparent that the battalion staff did not look at the JTF missions as a deployment or as a serious training opportunity . . . Captain Smith was not afforded the opportunity to prepare operationally due to his having to look into each logistical and administrative matter personally. A staff is to administer to the company. This was a deployment as well as a training exercise. The staff accomplished little in support of Company B." (Encl (159))

41. On 15 Aug 96, Major Steven Hogg became the Executive Officer, and Maj Smith assumed full-time duties as the S-3 for 5/11. (Encl (43))

42. On 5 Sep 96, the Commanding Officer, Fifth Marine Regiment provided the Second Endorsement to the Davis Investigation report. It said, in pertinent part, "The investigating officer and the Battalion Commander noted several possible deficiencies in the preparation and training of Company B. Their observations are well taken and a thorough review of JTF mission preparation will be initiated. However, I do not believe that overall mission preparation was inadequate." (Encl (159))

43. The Regimental Commander's endorsement, having indicated what would be done within his command, further recommended to higher headquarters that "a thorough review be undertaken of JTF missions to ensure adequate staffing, logistical support, and written guidance." (Encl (159))

44. The Regimental Commander then specifically concurred with all recommendations in the investigating officer's report except for recommendation 7 (that appropriate administrative action be taken against Capt Smith) which he disapproved. (Encl (159))

45. In the Fall of 1996, Maj Lehmann contacted Maj Smith and offered him the choice of two missions available during April and May 1997. (Encl (43))

46. One of the missions was near San Diego, California, and the other was a detection and monitoring mission in support of the USBP along the international border at the Rio Grande River near Redford, Texas. (Encl (43))

47. Maj Smith elected the mission in Texas, titled Mission JT414-97A, so that the unit could undergo long distance deployment training. (Encl (43))

48. Maj Smith reviewed the candidates for Mission Commander with LtCol Montgomery. (Encl (43))

49. The only batteries in 5/11 available to perform the JTF-6 mission were HQBtry or Tango Battery. (Encl (43))

50. Of the two batteries, Tango Battery was under strength due to post-deployment personnel reductions. (Encl (43))

51. In any event, Maj Smith and LtCol Montgomery wanted to give the deployment opportunity to a unit like HQBtry that was outside the deployment cycle. (Encls (41), (43))

52. Based on the discussion of unit availability, LtCol Montgomery decided that HQBtry would perform the mission. Captain Lance McDaniel, the HQBtry Commander, was chosen to be the Commander for Mission JT414-97A. (Encls (41), (43))

53. Capt McDaniel recalls being told in October, 1996 that 1st MarDiv had a block of missions available and HQBtry would be given Mission JT414-97A. With this news, Capt McDaniel began working with the JTF-6 mission planners, Major Charlie M. Hester, Jr., USA, and Major Mark E. Simpson, USAF. (Encls (30), (57), (58))

54. Mission JT414-97A called for small teams of Marines to observe from four camouflaged listening posts/observation posts (LP/OPs) near the U.S.-Mexico border along a 20-mile length of the Rio Grande River near Redford, Texas, where USBP officials believed drug smuggling occurred. Eight four-Marine teams, numbered 1-8, were to conduct surveillance from the LP/OPs during the mission. Two teams were assigned to each LP/OP. One team was to be in place for a three-day observation cycle and then be replaced by the other team. The teams were to remain undetected and report any crossing of the Rio Grande River or other suspicious activity to the USBP via radio to their Tactical Operations Center located 65 miles to the north in Marfa, Texas. (Encls (30), (130))

55. Capt McDaniel recognized that training for the mission would be a challenge because it is hard to bring the battery together as a unit. (Encl (30))

56. Capt McDaniel noted that, "Artillery Battalions view themselves as 'force providers' when it comes to counterdrug missions. Typically, the Battalion staff hands off the mission to the Mission Commander and provides whatever support the Mission Commander asks for (specifically personnel and equipment). There is no training guidance per se." (Encl (30))

57. On 5 Nov 96, the Assistant Chief of Staff G-3, Ist MarDiv, Lieutenant Colonel Lewis W. Rollins, sent a memorandum on the Davis Investigation report to the Staff Judge Advocate (SJA) of Ist MarDiv. LtCol Rollins prepared this memo for the SJA's use in preparing the Commanding General's endorsement of the Davis Investigation. The memo stated, in pertinent part, "Concur with recommendations addressed by the Investigating Officer. Battalion Commander, and Regimental Commander as they pertain to JTF-6 missions . . . These are issues that must be addressed by the Regimental/Battalion Commander so that their staffs will provide the necessary staffing and support to the JTF-6 Mission Commander . . . No action is needed at this time at the Division level where it concerns JTF-6 missions." (Encl (50), (159))

58. LtCol Rollins stated that the memorandum resulted from his review, together with the Counterdrug Officer, of the entire Davis Investigation. LtCol Rollins said, "What we saw from our perspective, they needed to have preparation time exclusively as part of their training to go out on these missions . . . In our opinion, this training needed to be like anything else, locked on. The Marines should be set aside, because this is not a training mission they are going on, this is a real life situation." (Encl (50))

59. LtCol Rollins observed that dedicated training is essential because of the nature of the mission. He noted, "It is rare in the Marine Corps that an officer who is in charge will raise their hand and say 'Help me.' When you are dealing with subordinates who are junior, as the Battalion Commander or Regimental Commander, you have to be able to determine whether or not this person is getting his fair share of assistance." (Encl (50))

60. On 13 Nov 96, the CG, 1st MarDiv received the final Headquarters, U.S. Marine Corps endorsement on the FSIR for LCpl Davis' death. (Encl (161))

61. On 19 Nov 96, Maj Lehmann, as the 1st MarDiv Counterdrug Officer, distributed a memorandum on "Force Protection" to the regimental and separate battalion S-3s that identified four key force protection "take aways" from the accident:

"A) CD missions should be considered 'mini training deployments.' The mission commander needs the help and support of many on the battalion or regimental staff.

B) For most mission commanders, these missions are the first time they have total responsibility for their unit's deployment, from pre-deployment training to redeployment. If not careful, these mission commanders may get overly involved with all the mission supporting efforts and lose sight of basic essentials such as written unit SOPs, and supervising the required pre-deployment training.

C) Eliminate, to the greatest extent possible, seemingly harmless additional taskers on your units conducting their pre-deployment training. Mission commanders already have a full plate with a new responsibility experience. Their ingrained 'can-do' attitude can easily turn against them if they are not comfortable saying, 'I can't.'

D) If a unit is having difficulty pulling everything together to meet its JTF-6 deadlines, let me know so I can work with JTF-6 to either shift the mission start date or cancel the mission. There is no shame in either course of action when force protection is involved." (Encl (160))

62. On 19 Nov 96, the CG, 1st MarDiv, signed the Third Endorsement on the Davis Investigation. In pertinent part it stated:

a) "The proceedings, findings of fact, opinions, and recommendations of the investigating officer, as modified and endorsed, are approved."

b) "A copy is provided to each Regimental Commander as a 'lesson learned', for future JTF missions." (Encl (159))

63. The Manual of the Judge Advocate General provides the regulations that govern the conduct of administrative fact-finding investigations within the Department of the Navy. In particular, Section 0203 notes:

a) "One of the primary purposes of conducting investigations of any type is to identify ways to improve the effectiveness and efficiency of the Department or its components. Investigations alone, however, do not achieve that purpose. Put differently, investigations are means, not ends. Thus, if investigations are to serve their purpose, tenacious follow-up action is required."

b) "Each level of command involved in the investigation process is responsible for taking such action. Merely recommending improvements is not enough; follow through, feedback, and commitment are essential. Superior commanders must ask their subordinates how they implemented the lessons learned, whether economies can be achieved by adopting corrective measures at higher levels, whether other commands may benefit, and so forth. If follow-up action is not completed, then valuable time and resources will have been wasted in conducting the investigation." (Ref (a))

64. The 1st MarDiv Chief of Staff, G-3, Division Inspector (G-7) and SJA all play a part in ensuring that corrective actions resulting from investigations are promulgated for review and implementation. (Encl (49))

65. Following the CG, 1st MarDiv's approval of the recommendations contained in the Davis Investigation, no actions were taken by the Chief of Staff, G-3, Division Inspector (G-7) or the SJA to provide new Division policy directing a minimum number of dedicated training days for 1st MarDiv units conducting JTF-6 missions. (Encl (46))

66. At a Commanders' Meeting on 19 Nov 96, the same day he provided the third endorsement to the Davis Investigation, the CG, 1st MarDiv, told the attending Regimental Commanders, separate Battalion Commanders and their Sergeants Major that he wanted the commands within 1st MarDiv to look at the investigation, read it and learn from it. (Encl (46))

67. Colonel John R. Todd, Assistant Division Commander, 1st MarDiv, and Colonel Joseph F. Weber, Commanding Officer, 11th Marines, both related that their take-away from that discussion was that it was necessary to increase the level of attention to safety in all JTF-6 missions. Both indicated that there was no discussion of minimum required training for JTF-6 missions. (Encls (46), (49))

68. Among the officers who reviewed copies of the Davis Investigation after it was endorsed by the CG, 1st MarDiv were Col Todd, Col Weber, LtCol Montgomery, Maj Hogg, Maj Smith, Capt McDaniel and Captain Paul Petit, the 11th Marines Air Officer/Counterdrug Officer. (Encls (30), (41), (43), (48), (46), (49))

69. The crucial lessons, remembered by these officers from the investigation, addressed issues involved in mission execution, including the importance of not moving at night, not changing plans at the last minute, and ensuring force protection through situational awareness. No officer recalls a minimum amount of dedicated training time being one of the lessons highlighted. (Encls (30), (41), (43), (48), (46), (49))

70. Col Todd specifically observed that, "In the context of integrating the required training tasks into the existing training plan, it is not useful to measure in days. Units are continuously training in their core competencies, integrating JTF-6 specific tasks. These tasks have a high correlation with the unit's mission essential tasks." (Encl (49)).

71. Col Weber stated, "I do not view these recommendations (regarding uninterrupted training days) as directive in nature, in any way, nor is there any correspondence from higher headquarters of which I am aware that specifies that they are directive in nature. They are concurred with by my Division Commander, but I believe that if my Division Commander would have felt that strongly that this was 'the' solution to keep this type of incident from 'ever' happening again, that we would have gotten something pretty directive in nature." (Encl (46))

72. The Of fice of the SJA, 1st MarDiv, is responsible for making copies and ensuring the distribution of JAGMAN investigations within the Division. (Encl (53))

73. The Legal Chief of the Office of the SJA, 1st MarDiv maintained no record but is aware of copies of the Davis Investigation reaching at least two of the four Regiments of the Division - 7th and 11th Marines. (Encls (48), (53))

74. No complete copies (i.e. containing all of the pages) of the Davis Investigation presently exist at any of the Regiments of 1st MarDiv. (Encls (48), (162))

75. Capt Petit reviewed the copy of the Davis Investigation received by the Regiment. Capt Petit believed that it would be a good idea to present a class to the leadership of the Regiment bringing out important lessons. He recommended to Col Weber that a class be given during the Back-in-the-Saddle Safety Standdown. Col Weber approved the idea. (Encls (46), (48))

76. On 16 Dec 96, Capt Petit forwarded to the Operations Officers of 1st, 2nd, 3d and 5th Battalions copies of the relevant investigations he had received. They were the July 1996 Fatality Mishap Brief with Maj Lehmann's covering memo of 19 Nov 96 and the JAGMAN investigation report on the death of LCpl Davis. The latter investigation was incomplete in that it did not contain page 20, the Recommendations portion of the report. It did contain the endorsements up to and including the CG, I st MarDiv endorsement. (Encls (43), (48), (159), (160), (162), (163))

77. Capt Petit's transmittal memo noted that "there are an abundance of lessons that can be garnished from it." It was to be "one of the topics discussed at the Officer/SNCO PME at the conclusion of the Back in the Saddle (Bits) Safety Standown [sic] scheduled for 6 January." (Encl (163))

78. The 5/11 Routing Sheet shows that LtCol Montgomery noted on it "Ugly Accident!! Alcon Read/Heed!" The routing sheet was endorsed by Capt McDaniel on 19 Dec 96. The route sheet is on top of a file folder containing both investigations referenced in Capt Petit's memo. (Encl (163))

79. None of the officers in 11th Marines - who were interviewed for this investigation and had reviewed the Davis Investigation - noticed it was missing page 20, which contained all the significant recommendations of the Investigating Of ficer. (Encls (30), (41), (43), (46))

80. Capt Petit was the 11th Marines Counterdrug Officer from 7 Jul 96 to 17 Jun 97. During this period 11th Marines units participated in three JTF-6 missions, including Mission JT414-97A. Capt Petit never attended a confirmation brief given at 1st MarDiv. (Encl (48))

81. During late December 1996, Maj Lehmann confirmed the mission dates for JT414-97A and requested the name of the Mission Commander. (Encl (43))

82. On 6 Jan 97, Capt Petit presented a class to most of the officers and staff noncommissioned officers of 11th Marines, reviewing lessons learned from the Davis Investigation. (Encls (46), (48), (163))

83. The recommendations for dedicated pre-mission training time were not a subject of discussion identified by any officer attendees interviewed. (Encls (30), (41), (43), (46), (48))

84. On 19 Feb 97, JTF-6 formally requested trom Secretary of Defense approval for 5/11 to support Counterdrug mission JT414-97A. In a paragraph titled "(U) Training Value," the request message stated, "This counterdrug mission provides an excellent training opportunity for exercising and evaluating the unit's MCCRES (Marine Corps Combat Readiness Evaluation System) training and for small unit leaders." (Encls (133), (135), (137))

85. On 19 Feb 97, the Initial Planning Conference (IPC) for Counterdrug Mission JT414-97A was held at JTF 6 Headquarters in Ft. Bliss, Texas. (Encls (30), (43), (133), (213))

86. In the JTF-6 mission planning cycle, the IPC and the site visit that follows is the first face-to-face meeting between the JTF-6 Mission Planner, the Mission Commander, and LEA representatives. (Encl (144))

87. The attendees at the IPC from HQBtry, 5/11, included Capt McDaniel (Mission Commander), First Lieutenant G. W. Nelson (Mission Communication Officer), Gunnery Sergeant William F. Fitzgerald (Mission Logistics Chief) and Sergeant Daren R. Dewbre (Mission Intelligence Chief). (Encls (30), (34), (144))

88. Neither LtCol Montgomery, Maj Smith nor Maj Lehmann attended the JTF-6 IPC or site visit. (Encls (30), (34), (41), (144))

89. Maj Smith wanted to attend the IPC, but felt discouraged from doing so by the JTF-6 Mission Planner. (Encl (43))

90. Based on what he perceived to be close mission oversight by MAJ Simpson and MAJ Hester at JTF-6 and Maj Lehmann at 1st MarDiv, Maj Smith believed that the battalion role was simply to be a force provider. He felt that, once the Mission Commander was identified to the Division Counterdrug Officer and to JTF-6, those officers preferred that the Mission Commander contact them directly, rather than via the chain of command. (Encl (43))

91. The Mission Planner, MAJ Simpson stated, "We (JTF-6) do not discourage a unit's chain of command visit. The funding for the mission commander and his planning team at the IPC comes from JTF-6 counterdrug funds. Chain of command visits are funded by the unit." (Encl (58))

92. The JTF-6 Counterdrug Logistics Handbook states that JTF-6 funds may not be used to fund command visits. (Encl (153))

93. At the IPC, the JTF-6 Mission Planner, MAJ Simpson, provided Capt McDaniel with a JTF-6 IPC handout titled "A Compendium of Operational Considerations For Counterdrug Support Missions." This handout consisted of a number of pages addressing various subjects in a bulletined format. (Encls (30), (144))

94. One page in the handout folder was entitled "PREPARATORY TRAINING . . . HOME STATION." It contained the following bulletined sub topics:

Legal and Public Affairs Situational Training Exercises Posse Comitatus Rules of Engagement Communications Procedures Weapons Fam/Qualification Emergency First Aid Combat Lifesaver Land Navigation Counterdrug Tactical Reporting Special OPSEC Measures Pilot Qualifications/Night Vision Goggles/Rope Training Admin/ID's, ID Tags, Pay Talking LEA Onto A Target. (Encl (144))

95. The following page in the handout was entitled "PRE-MISSION ACTIVITIES . . . AREA OF OPERATIONS." It listed the following bulletined sub topics: Mission OPORD to LEA Final Mission Planning Unit-LEA Joint Train-Up Reporting to LEA LEA Response System MEDEVAC Procedures Control Measures

SPOTREP-TRP System;

Team Preparation

Current Intel Update

Immediate Action Drills

Brief Backs

Final Equipment Checks

ROE Review

Border Control Measures

Communications Procedures

Coordination With Adjacent Units (Encl (144))

96. The handout contained no textual explanation of the bulletined sub topics under the headings "PREPARATORY TRAINING . . . HOME STATION" or "PRE-MISSION ACTIVITIES . . . AREA OF OPERATIONS." (Encl (144))

97. The handout provided to Capt McDaniel at the IPC also contained an Initial Site Survey Checklist that specified the requirement that the Mission Commander develop a suitable pre-mission training plan. (Encls (60), (144))

98. Capt McDaniel expressed the opinion that, "The guidance that JTF-6 stresses is primarily logistical and administrative in nature . . . What they do not do is provide tactical type guidance, or specific operational type guidance which would dial you into the box for operations like this . . . I think that JTF-6 should have provided the standards and guidance that I needed to work to." (Encl (30))

99. During his IPC/site visit trip, Capt McDaniel said he was told by Patrol Agent In Charge (PAIC) Dave McCutchen of the USBP Station at Presidio, Texas that the Border Patrol Agents' standard response time would be 15 minutes, or perhaps less if agents were nearby. (Encls (30), (72))

100. On 20-21 Feb 97, the 5/11 participants at the IPC conducted a site survey of Marfa, Texas, and the four LP/OP sites on the border. MAJ Simpson, PAIC McCutchen and Border Patrol Agent James Kramer of the Presidio Station accompanied the 5/11 participants during this site survey. (Encls (30), (58), (70))

101. After returning from the IPC and site visit in Texas, Capt McDaniel attended a 1st MarDiv Planning Conference. The "key players at this brief were Maj Lehmann and Master Sergeant Walls. The meeting was in the Commanding General's conference room . . . It was a chance for the Division to say what needs to be accomplished and the timelines for execution . . . There was no operational guidance given at all. Neither was there any tactical guidance." (Encl (30))

102. Upon his return, Capt McDaniel also discussed mission preparation and the idea of dedicated training time with Maj Smith. They discussed using blocks of training days during the Battery Phase of the upcoming Desert Fire Exercise to prepare for the mission. These training blocks were a four-day and two-day segment when Capt McDaniel could ideally have all Mission JT414-97A personnel participate in training dedicated solely to mission preparation in addition to other necessary Battery training. (Encl (43))

103. While Maj Smith does not recall Capt McDaniel asking for more training time, he observed that Capt McDaniel apparently accepted the reality that "this is the best I (Maj Smith) can do with the time allocated for the battalion to train, this is what I give you." (Encls (30), (43))

104. In late February 1997, Border Patrol Agent James DeMatteo and then Agent-trainee Johnny Urias were working the 1500 to 2300 shift when they became involved in an encounter with a man Agent DeMatteo later identified as Mr. Esequiel Hernandez Jr. (Encls (85), (86))

105. While patrolling the Polvo Crossing of the Rio Grande near Redford, Texas, Agent DeMatteo heard "three popping sounds coming from our left. We were not sure what was making the noise or exactly where it was coming from." They left the area. (Encl (85))

106. As they drove away from the Polvo Crossing area, Agent DeMatteo observed two vehicles following behind them. The border patrol agents stopped, and Agent DeMatteo recalled "a tall thin male exited from the driver's side of the first vehicle." The man said, "I'm sorry that I was shooting. I thought someone was doing something to my goats. I didn't know you were back there." (Encl (85))

107. Agent DeMatteo advised the man that it was not smart to shoot his rifle in the Polvo Crossing area at night. After giving that warning, Agent DeMatteo felt the incident did not warrant any further action, so he made no formal report of the incident. (Encl (85))

108. After the shooting incident of 20 May 97, Agent DeMatteo later saw a newspaper photo of Esequiel Hernandez, Jr., and recognized him as the man he talked to in February, 1997. (Encl (85))

109. Agent Urias also recalled the incident and hearing a "firecracker kind of pop at a distance," and he remembered the individual saying that he was "sorry he was shooting around the area" but that he "thought he had seen someone trying to steal his goats so he shot to try to scare them off." The man said that "he would not have shot his weapon" if he had realized the agents were in the area. Agent Urias recalled telling the young man to "use more discretion when shooting his weapon, especially at night." (Encl (86))

110. Agent Urias is not able to state that the young man was Esequiel Hernandez. (Encl (78))

111. Esequiel Hernandez was a 17-year-old high school student at the time of the February 1997 shooting incident with the Border Patrol agents. He turned 18 just prior to his death on 20 May 97. He apparently enjoyed a good reputation among his teachers and contemporaries. (Encls (79), (195), (239))

112. Capt McDaniel stated that his mission analysis of the training tasks necessary to accomplish Mission JT414-97A was based on information he obtained from Maj Smith, the JTF-6 IPC, and personal observations made during the site visit to Marfa, Texas and the LP/OP locations. (Encls (30), (41)

113. The Intelligence Estimate for the mission provided by JTF-6 stated, "The overall threat to LP/OP missions in the Presidio AO is LOW, with a LOW-MEDIUM threat for the river area adjacent to the village of Redford." (Encl (146))

114. The Intelligence Estimate for the mission was restated in the Risk Assessment section of Capt McDaniel's Operation Order and in the three Confirmation Briefs he gave as "Low to Moderate Risk (Less than Moderate)." (Encl (141))

115. Specific local intelligence about Polvo Crossing, beyond discussion with LEA during the site visit, was not provided to Capt McDaniel. Agents DeMatteo and Urias told no one about the February, 1997 shooting incident involving Mr. Hernandez until after the second incident in May, 1997. (Encls (30), (85))

116. In an undated Memorandum to Commanding Officer, 5/11, the Deputy Commander of JTF-6 provided a summary of the threat faced by Mission JT414-97A. This memorandum cautioned LtCol Montgomery that "There are several areas of special concern when conducting counterdrug military operations. The most significant is the threat your unit will face from an organized, sophisticated, and dangerous enemy (drug smugglers). In the Southwest region, your unit may encounter criminal elements engaged in smuggling illegal drugs, weapons, other contraband and the possibility of personal threat. These gangs are extremely dangerous and will also use force. These situations make operations dangerous for the unprepared. Your unit should come to the border region trained accordingly." (Encl (139)

117. This was a standard letter JTF-6 mailed during the time frame of an IPC. The purpose of the letter was to bring to the attention of the next higher level of command an appreciation of the threat faced by units undertaking JTF-6 missions and the importance of proper pre-mission preparation. (Encl (185))

118. A copy of the JTF-6 Deputy Commander's memorandum was provided to Capt McDaniel sometime after he returned from the mission communication exercise on 12 Apr 97. (Encl (30))

119. Capt McDaniel termed the letter an "eye opener for my Battalion." He said the Battalion Commander got with the S-3 to "ensure that Headquarters Battery had all the support they needed to successfully execute this mission." (Encl (30))

120. Notes used by Sgt Dewbre in his various briefs mentioned that "Redford not a friendly town" and "Criminals in A.O. (Area of Operations)" Connections between town residents and drug traffickers were assumed to be the norm. The use of armed scouts to conduct reconnaissance of the U.S. side prior to moving drugs across the border is mentioned as are recreational shooters and hunters. (Encl (145))

121. These notes were used in a briefing given to the Mission JT414-97A participants by Sgt Dewbre. Capt McDaniel stated that the emphasis of the brief, however, was more devoted to force protection from drug traffickers than it was to contact with recreational shooters. (Encl (30))

122. On 4 Mar 97, the Commanding General, 1st Marine Division issued Frag Order 35-97 to Eleventh Marines to deploy a Battery (-) "to conduct ground reconnaissance and LP/OP operations in support of the USBP . . . to increase unit readiness and achieve unit METLs." (Encl (134))

123. The message stated, "This Division has received a great training deployment opportunity in support of the nation's war on drugs. Training in this unfamiliar environment, in support of civil authorities, with an actual potential threat, is both challenging and rewarding. We must take maximum advantage of this opportunity to focus on communications skills (HF, UHF, VHF, SATCOM, SINGARS frequency hopping), patrolling and reporting procedures, land navigation skills, and small unit leadership. Desired end state: Safe and successful deployment and return, full accountability of all personnel and equipment, professional support to assigned law enforcement agencies (LEA), and a more combat ready unit." (Encl (134))

124. DoD policy, JTF-6 and 1st MarDiv all require mission commanders to match mission requirements to their unit's combat mission essential tasks to determine training focus for JTF-6 deployments. (Encls (55), (56), (57), (58))

125. From the time Maj Smith assumed the duties as S-3 of 5/11 until 2 May 97, 5/11 did not have a Mission Essential Task List (METL) as required by FMFM 0-1. The requirement for a METL is clearly identified as an inspection item on the Marine Corps Automated Inspection Reporting System checklist. During a Commanding General's Inspection Program Inspection on 30 Nov 95 it was noted that 5/11 had a METL. No copy of that METL is available. (Encls (41), (43), (168), (169), (170), (234))

126. Capt McDaniel believed he had "sufficient guidance for this training mission from my Battalion. I would have liked to have seen lessons learned or some standards to train to, but I did not feel that it was my Battalion's responsibility to provide those things. I think JTF-6 should have provided the standards and guidance that I needed to work to." (Encl (30))

127. When asked whether he received command guidance for JTF-6 mission training from the Regimental Commander or the Division G-3, Major Jeffery M. Seng, Operations Officer/S-3 of 11th Marines, stated, "I don't recall any specific discussion with the Regimental Commander, I am sure we've discussed it at some point," and "I don't recall any specific discussion with the G-3, but I did have some casual conversation with the Division Counterdrug Officer." (Encl (47))

128. When asked how he was made aware of the training progress made by a unit in preparation for a counterdrug mission, Maj Seng stated, "That is not something I monitor on a daily basis, or frankly much at all unless the Battalion has required some support." (Encl (47))

129. Regarding the degree of oversight the Regiment exercises to ensure that a Battery is properly trained for a JTF-6 mission, Maj Seng stated, "We don't conduct any kind of formal training assessment of the Battery. We authorize or grant DIRLAUTH (Direct Liaison Authorization) for the unit and JTF-6 so they can coordinate the demands of a specific mission for which they're committed, and they get the most current information on the area." (Encl (47))

130. When asked what role the Regiment had in directing, conducting or supervising training in preparation for a counterdrug mission, Maj Seng said, "Advertising Counter Drug mission opportunities." (Encl (47))

131. Maj Lehmann, the 1st MarDiv Counterdrug Officer, stated that he would not use the term "required" in connection with training because of the "implication that there would be some associated evaluation or validation, there was no such thing." He personally did not review training schedules or visit unit training because he believed "that was for intervening staff." (Encl (5 1))

132. Maj Lehmann described his role in providing training guidance to subordinate units preparing for JTF-6 missions as an attempt to "complement but not duplicate efforts of JTF-6. The JTF-6 Mission Planner and other IPC participants had the primary role to provide guidance." (Encl (51))

133. Maj Lehmann described himself as, "Mostly an information provider. Primary agent to deconflict issues with JTF-6. Did not review detailed training schedules; would only intervene if mission commander complained that intervening commands were not giving enough time . . . Never visited unit training, that was a job for intervening command." Maj Lehmann stated that he had no role to review mission training plans or schedules. (Encl (51))

134. Maj Lehmann stated he had a responsibility to attend the 1st MarDiv Confirmation Briefs and identify unprepared units, but he never had to make such an identification. (Encl (51))

135. LtCol Rollins, currently Assistant Chief of Staff G-7 for 1st MarDiv, stated that the Division's role in supervising training was limited to pointing out Marine Corps Orders and common knowledge. (Encl (50))

136. By doctrine and in practice, headquarters batteries conduct (on a day-to-day basis) diverse, decentralized supply, maintenance, and administration tasks in support of the entire battalion, while at the same time conducting individual and team tactical training for their wartime mission. (Encls (30), (41), (43))

137. In March 1997, Capt McDaniel was authorized to use a portion of the five days dedicated to battery training during Desert Fire Exercise (DESFIREX) at 29 Palms to conduct JTF-6 preparation training. (Encls (30), (43))

138. Capt McDaniel planned for individual and team training at 29 Palms during the Battery portion of DESFIREX, to be followed by a planned team and unit training event at Camp Pendleton. (Encl (30))

139. There was no formal mission training plan written, but Capt McDaniel wrote a list of classes and assigned instructors for a two-day block of dedicated training (on specific areas needed for mission success) to occur at 29 Palms on 18-19 Mar 1997. Capt McDaniel tasked the instructors to prepare written lessons, but he did not require written lesson plans for the training at DESFIREX. (Encl (30))

140. The training during this two-day block of time at DESFIREX was in camouflage, cover and concealment, movement techniques, hide sites, field sketches, use of optics, communications and field expedient antennas, reporting procedures, first aid, field survival, MEDEVAC procedures, basic map reading, and land navigation. (Encl (147))

141. At DESFIREX, the training on cover and concealment included discussion of stealth movement and using the cover of darkness during ingress and egress. It included practice sessions in both daylight and darkness over terrain described as similar to the mission area. (Encls (30), (37))

142. Lance Corporal James M. Blood, a member of Team 7, recalled doing some "six to eight hours of training for the JTF-6 mission" during the DESFIREX. Although he had volunteered for the JTF-6 mission early on, he had not been identified as a mission participant at that time. Therefore, he trained with Team 3, led by Sergeant R.R. Macias (who has since been promoted), and the subjects he remembers being covered were medical training from the Battalion Aid Station (BAS), use of night vision devices, night movement and the use of SINGARS HF radio and the SABER radio. By Military Occupational Specialty (MOS), LCpl Blood is a Motor Vehicle Operator (3531). (Encls (16), (21), (37))

143. Corporal Roy Torrez, Jr. and Lance Corporal Ronald H. Wieler, Jr., both members of Team 7, believe they first learned of the JTF-6 mission about a month before they went to Texas on the deployment. Neither recalled whether they were at 29 Palms on the DESFIREX when they first learned of the opportunity to participate in the JTF-6 mission. (Encl (29))

144. Cpl Torrez said that, because of his job, the mission was a "last minute thing" for him. They just asked in his shop "if anybody wanted to go." His primary MOS is a 3531 (motor vehicle operator) with a secondary MOS as a Wrecker Operator (3536). (Encls (10), (29))

145. Cpl Torrez recalled that team leaders and others were doing training in the field at DESFIREX, but due to his job he didn't participate in any of that training. (Encl (29))

146. LCpl Wieler said that, due to his other duties, the only training he did was "just erecting antennas during communications" back at Camp Pendleton. He never did JTF-6 training at DESFIREX. His primary MOS is as a Field Radio Operator (2531). (Encls (22), (29))

147. Cpl Torrez stated that his training as a Combat Aidsman arose from a quota that had to be filled in his shop - not as a result of volunteering for Mission JT414-97A. Cpl Torrez completed the Combat Aidsman Course on 7 Mar 97. (Encls (29), (152))

148. With respect to the subjects on which training was conducted at DESFIREX - camouflage, cover and concealment, movement techniques, field sketches, use of optical devices, night vision devices, basic radio communications, reporting procedures, map reading and land navigation – Cpl Torrez stated that the only training he ever received in those subjects was during MCT (Marine Combat Training) following boot camp. (Encl (29))

149. LCpl Wieler also stated that MCT was the only place he trained in the areas required for Mission JT414-97A. LCpl Wieler did, however, have some on-the-job experience with vehicle camouflage. He also had some exposure to night vision devices at 29 Palms doing night movement in the vehicle for which he was a driver. (Encl (29))

150. LCpl Wieler also noted that he got some basic communications training at MCT and then he went on to Communication School. (Encl (29))

151. Both Cpl Torrez and LCpl Wieler indicated that the only other experience they had in LP/OP operations occurred at MCT. (Encl (29))

152. SSgt Macias recalled that at DESFIREX the battery "conducted training such as, fire team formations, land navigation, site systems, radio procedures, communication checks, cover and concealment and caring for a variety of weapon systems. The training was conducted periodically over a two or three day period (but they) did not do this training as

a team. We were supposed to have other classes . . . However, time was short, and we didn't accomplish that training." (Encl (37))

153. While SSgt Macias knew who the designated members of his team were, they were not always able to train together because of their involvement in other training. (Encl (37))

154. Corporal Corey McMillan, who served as team leader for Team 2 during Mission JT414-97A, recalled that HQBtry did some training for the mission at DESFIREX. He was assigned to the Survey Section and did not train with them. He did, however, teach a class for the other team leaders there on the Position Locating Global Positioning System Receiver - a miniature Global Positioning System. (Encl (39))

155. Cpl McMillan said that the composition of his team changed "every couple of weeks" and was fixed only "about two weeks before we went." (Encl (39))

156. Corporal Robert S. Yates was the radio operator for Team 2. He recalled using the Battery phase of DESFIREX for JTF-6 training and remembered that about five of the 14-day field operation was devoted to the training. (Encl (38))

157. LtCol Montgomery recalled that, during DESFIREX, HQBtry "had several days set aside to do land navigation, cross training in communications systems and observation post procedures." Capt McDaniel told him that "he had accomplished his personal training plan." He recalled that Capt McDaniel even brought several Marines from Camp Pendleton to the desert to participate in the training. (Encl (41))

158. LtCol Montgomery was in a great deal of pain during the DESFIREX from a cervical disc injury. (Encls (41), (42))

159. Upon returning from DESFIREX, Maj Smith and Capt McDaniel discussed the training status of HQBtry in general and JTF-6 mission preparation in particular. (Encl (43))

160. They agreed that HQBtry needed to do some dedicated training to complete preparation for the JTF-6 mission. (Encl (43))

161. Capt McDaniel planned to use the post-DESFIREX period to conduct field training at Camp Pendleton involving practice LP/OP operations and staged contact with role players. (Encl (30))

162. On 20 Mar 97, the SJA of I Marine Expeditionary Force (I MEF) prepared a memorandum for the CG regarding significant events in which he participated. He summarized a trip to JTF-6 and noted, "The G-2 and I spent two days with JTF-6 meeting folks and doing a border tour. I looked closely over the Rules of Engagement that they use and noticed that they have, to my mind, made some improvements by making them simpler. . . I did notice that the level of threat is gradually increasing from what I saw two years ago at Division and that it's a matter of 'when' vice 'if' a shooting incident occurs. The Army recently had one with a bandit." (Encl (214))

163. On 7 Apr 97, the CG, I MEF, endorsed the Davis Investigation and noted, in pertinent part, "In discretionary operations, I will stress the necessity of not conducting same unless we are fully prepared . . . There was some criticism by the new battalion commander regarding the battalion not supporting the company in this mission. If true, this will not be tolerated." (Encl (159))

164. The endorsement of the CG, I MEF lists the CG, 1st MarDiv as a "copy to" addressee. (Encl ( 159))

165. A Division Maintenance Stand Down scheduled between 8-18 Apr 97 precluded any training during that period. (Encl (43))

166. On 9 Apr 97, LtCol Montgomery submitted a letter to the Regimental Commander regarding the state of his battalion, 5/11. It noted that it was intended to be a "situational awareness tool for the Regimental Commander." (Encl (164))

167. The letter provided a review of key personnel shortages in the battalion, predicted more to come, and indicated that the high operational tempo within the battalion was going to be negatively impacted by the personnel situation. It requested a meeting with the Regimental Commander to discuss this matter of urgency. (Encl (164))

168. The cover sheet submitted with the letter requested that the Regimental Commander direct his staff to coordinate closely with all battalions to ensure a systematic approach to the needs of all battalions. (Enel ( 164))

169. The 1st MarDiv personnel status report for 7 Apr 97 showed 5/11 with a Table of Organization (T/O) of 47 officers, a Staffing Goal of 42 officers and an on-board strength of 39 officers. A 5 May 97 report listed an on-board strength of 38 officers. (Enel (165))

170. On 9 Apr 97, a USCINCACOM message restated the relationship between JTF-6 and the units conducting counterdrug missions by placing greater emphasis on force protection. Specifically, USACOM directed that the Commander of JTF-6 "will have TACON with directive authority for force protection of forces, to wit:

A. JTF-6 would communicate to the supporting unit chain of command the standards and requirements for the mission. The parent command remains responsible for ensuring that the deploying unit meets training and equipment standards before the mission starts. JTF-6 will validate that these standards have been met before the mission starts.

. . .

C. This new command relationship does not include UCMJ authority over deployed units. The ultimate authority that CJTF-6 has now, and will continue to have under this redefined command relationship, is the authority to halt a counterdrug mission until an unsatisfactory situation is corrected." (Encl (136))

171. On 9-12 Apr 97, Capt McDaniel, lstLt Nelson (Communications Officer), Gunnery Sergeant Jimmy Vela (Communications Chief), Sergeant John C. Dick, Sergeant Ernest W. Rose and Lance Corporal James M. Steen conducted a Communication Exereise at Marfa, Texas. (Encl (125))

172. Annex K of the Operation Order (OPORD) for Mission JT414-97A addressed the communications plan. The primary eommunieations method was VHF frequency hopping radio to the Forward Tactical Operations Center (TOC), with the Forward TOC then relaying the message to the TOC at Marfa via SATCOM. The secondary communications method was High Frequency radio. The tertiary communications method was by SABER radios on the Border Patrol operating frequency. Though designated as tertiary, this net was to be the primary net during emergencies or other incidents requiring Border Patrol response. Annex K states that SABER communications will not be encrypted. (Encl (141))

173. The readiness of 1st MarDiv units to deploy to and perform JTF-6 missions is assessed by the Division chain of command through a Confirmation Brief process. (Encls (41), (46), (49), (56), (125)

174. On 16 Apr 97, LtCol Montgomery received the Confirmation Brief presented by Capt McDaniel, Lt Nelson, GySgt Fitzgerald and Sgt Dewbre. Other attendees from 5/11 at the brief were Maj Hogg and Maj Smith. (Encls (30), (36), (41), (42), (43), (125))

175. Maj Hogg earlier "read Capt McDaniel's Operation Order (and) pre-critiqued his Confirmation Brief." Based on his discussing training topics with Capt McDaniel, he "was satisfied that Capt McDaniel was hitting all the wickets." (Encl (42))

176. Capt McDaniel's Confirmation Brief outlined areas of pre-mission training but was not specific about the amount of individual and collective training the unit had conducted. (Encl (140))

177. At this brief and the two later Confirmation Briefs (to the Division and JTF-6), Capt McDaniel briefed his training focus for the deployment in the form of a Mission Essential Task List (METL) stating that he intended to train in the following unit combat mission essential tasks during the deployment: communications, land navigation, night operations, stealth movement techniques, reporting procedures, and camouflage, cover and concealment. (Encl (140))

178. Capt McDaniel's mission statement, as reviewed and approved by his chain of command during the confirmation briefs, was "Between 15-29 May 97, Headquarters, 5th Battalion, 11th Marines conducts LP/OP operations in direct support of the United States Border Patrol to increase unit combat readiness, improve individual and collective skills, and detect, monitor and report illegal drug activity crossing the border." (Encl (140))

179. Also on 16 Apr 97, Captain Michael Gante, a Marine Corps Judge Advocate assigned as Operational Law Officer and Officer in Charge, Administrative Law Section, Legal Services Support Section, 1st Force Service Support Group, Camp Pendleton, conducted a briefing on legal issues that included classroom instruction on the rules of engagement (ROE) for the HQBtry, 5/11 participants of Mission JT414-97A. (Encls (30), (182))

180. Capt Gante said he used only the JTF-6 provided ROE materials for his brief. These materials contained lecture slides, speaker notes, a video tape, a ROE information paper, and scenarios with questions and answers to lead discussions. A ROE card was not included in the training materials that Capt Gante used. (Encls (182), (184))

181. In the portion of the lecture concerning ROE, Capt Gante instructed the students that deadly force could be used if they or a member of their unit faced "imminent danger of death or grievous bodily injury AND lesser degrees of self-defense had been exhausted." (Encl (182))

182. In a description of this ROE portion of the lecture, Capt Gante stated, "I remember discussing de-escalation of force and how deadly force was to be the last possible resort---Many Marines had questions at this point, however, I do not remember any of the questions specifically. I also remember we discussed a number of scenarios, however, I can not remember specifics. When we finished this portion everyone had a very good idea of non-deadly v. deadly force." (Encl (182))

183. Although he does not remember specifics, when giving the ROE brief Capt Gante would use three scenarios for illustration: # I, #2, and #7A, rather than all 24 provided in the ROE teaching materials. (Encls (180), (182), (183))

184. On the issue of pursuit, Capt Gante remembered instructing the class not to pursue except to retrieve military personnel and not to cross into Mexico under any circumstances. (Encl (182))

185. The speaker notes that accompanied the JTF-6 ROE teaching materials describe "Pursuit" as follows:

"1. Can chase person who stole equipment, no threat, no use of deadly force.

2. Can chase person who posed threat, if no present threat-no use of deadly force, if situation changes and during chase faced with threat of death or serious bodily harm then deadly force justified.

3. Cannot pursue across border for any reason." (Encl (180))

186. Sometime after the ROE class, HQBtry distributed ROE cards to the Marines participating in Mission JT414-97A. The card used was an older version dating from 1993. There were two subsequent modifications of the card in 1995 and January 1997. (Encl (185))

187. The 1993 training card distributed listed the condensed ROE as follows:

1. FORCE MAY BE USED TO DEFEND YOURSELF AND OTHERS PRESENT.

2. DO NOT USE FORCE IF OTHER DEFENSIVE MEASURES COULD BE EFFECTIVE

3. USE ONLY MINIMUM FORCE NECESSARY.

4. YOU MAY DETAIN ANY PERSON WHO POSES AN IMMINENT THREAT OF SERIOUS BODILY HARM TO YOU OR OTHERS PRESENT. RELEASE TO THE CIVILIAN LEA SOONEST.

5. YOU MAY PURSUE HOSTILE FORCES ONLY TO DEFEND OR RETRIEVE MILITARY PERSONNEL.

6. YOU MAY NOT PURSUE HOSTILE FORCES INTO ANOTHER NATION'S TERRITORY WITHOUT COMMAND AUTHORITY (Encl (185))

188. The January 1997 version of the card reads as follows:

"You MAY

- Use only the amount of force necessary and proportional to the threat;

- Use deadly force to defend yourself and others from death or serious bodily injury;

- Detain any person who poses an imminent threat of death or serious bodily harm; release them to civilian LEA at soonest opportunity;

- Pursue armed persons only to defend or retrieve personnel;

- Pursue unarmed forces to retrieve military equipment;

- NOT use deadly force to defend property;

- NOT use deadly force if other measures would be reasonably

effective;

- NOT enter into Mexico/Canada;

- NOT participate in arrests, searches, seizures, or interrogation;

- NOT trespass on private property;

- You WILL make every effort to avoid confrontation and armed conflict with civilians." (Encl (185))

189. The normal practice is for the Mission Commander to receive the ROE card at the IPC. He then makes arrangements at his parent command to reproduce the card for the mission participants. Capt McDaniel cannot explain how he came to use an older version of the card if he did not receive it at the IPC unless he confused the card among materials extracted from a prior mission folder. (Encl (185))

190. Cpl Torrez recalled attending a class in "Classroom Orange" on the ROE before deploying to Texas. He recalled receiving a helmet card with the rules of engagement on it. He does not recall an intelligence brief. (Encl (29))

191. LCpl Wieler recalled attending classes on the rules of engagement and hearing the

S-2 brief by Sgt Dewbre. He too recalled receiving a helmet card. (Encl (29))

192. SSgt Macias noted that the rules of engagement training for Mission JT414-97A would have benefited from civilian law enforcement input. He said the emphasis they place on a "scale of force" to be used is important because of clear differences between hostile forces and civilian U.S. citizens. SSgt Macias has had previous use of the rules of engagement through duty in Desert Storm and Somalia. He has also taken night courses at the Sheriff Academy at Escondido, California. (Encl (37))

193. In particular, SSgt Macias observed that the second class on the rules of engagement, conducted at Marfa, was more beneficial because it made extensive use of scenarios for practical application. He felt the first class was too academic in nature. (Encl (37))

194. SSgt Macias said that he could understand how someone of Cpl Banuelos' age and experience could react as he did if he had only the rules of engagement training to rely on. SSgt Macias does not believe the rules of engagement training the unit received would overcome prior combat training. In his own case, because he is older and more experienced, he opined he would not have done what Cpl Banuelos did even if he had not had civilian law enforcement training. (Encl (37))

195. Capt McDaniel recalled briefing his Marines sometime in April on the shooting incident in Brownsville, Texas involving an Army Special Forces unit on a JTF-6 mission. He told them of this to make sure they understood an incident could arise where they might have to defend themselves. (Encl (30)).

196. Neither Cpl Torrez nor LCpl Wieler recalled any one saying anything to them about any incidents where drug traffickers had shot at Marines or soldiers. (Encl (29))

197. When asked what he thought the risk to his safety to be from his briefings, SSgt Macias replied that he felt he would have to be cautious. He did not feel that he was in danger but he was aware from the briefings that some of the drug smugglers had high caliber weapons and night vision devices as well as scanners and the ability to jam radio communications. (Encl (37))

198. On 17 Apr 97, LtCol Montgomery submitted an E-Mail message to Lieutenant Colonel Larry Lane, Executive Officer, 11th Marines, stating that he had received no response to his letter of 9 Apr 97 to the Regimental Commander. (Encl (166))

199. In the E-mail message LtCol Montgomery stated, "If the plan is to [sic] 5/1 1 up for failure congrats! I think Regt is well on the way to doing just that!" (Encl (166))

200. The message included the statement: "If the boss wants another 'yes' man, I can guarantee, if I simply say yes and agree to every decision being made for my battalion, we will fail at something and bring the rath [sic] of HHQ down." (Encl (166))

201. On 18 Apr 97, 5/11 underwent a Marine Corps Administrative Assistance Team (MCAAT) inspection. (Encl (43))

202. There was no confirmation brief for mission JT414-97A at the Regimental level. (Encl (46))

203. On 19 Apr 97, Col Todd received the Division Confirmation Brief from Capt McDaniel, Lt Nelson, GySgt Fitzgerald and Sgt Dewbre. Attendees were Maj Lehmann, Captain Joe Spair as the incoming lstMarDiv Counterdrug Officer, and Major Peter Keating as the 5/11 command representative. (Encl (30), (51), (55))

204. Capt McDaniel recalled the brief was scheduled to last a little over an hour and actually went over two hours since Col Todd had a lot of pointed questions to ask. (Encl (30))

205. Col Todd expressed great concern with the extension of the MEDEVAC response time beyond 60 minutes. He stated that unless the MEDEVAC time was substantially decreased the mission would not be allowed to go forward. (Encls (30) (49))

206. Col Todd personally called JTF-6 to request relocation of the MEDEVAC helicopters to reduce their response time. (Encl (49))

207. Col Todd indicated to Capt McDaniel that it was important to work the communications plan so that he would have dedicated, organic Marine Corps communications, rather than relying on SATCOM or Border Patrol SABER radios. (Encl (49))

208. Col Todd impressed on Capt McDaniel that it was important that his communications response team and vehicle, located at the Forward Tactical Operations Center, be labeled a React Vehicle in order to maintain the proper operational mind set. (Encl (49))

209. Col Todd did not specifically inquire about the amount of pre-mission training Capt McDaniel had planned or conducted nor did Capt McDaniel describe what had been planned or done. (Encl (49))

210. Colonel Todd and Major Lehmann expected some mention of pre-mission training at the confirmation brief. However, both explained that if there was mention of a few key training items such as the rules of engagement, situational training exercises, land navigation, and first aid, they would not usually delve further into details. (Encls (49), (51))

211. Col Todd expected any 1st MarDiv officer who was performing as a JTF-6 Mission Commander to develop a training plan after the site visit. This training plan would be submitted to the battalion to be placed on the training schedule, integrated into the training cycle and supervised by the battalion. (Encl (49))

212. Capt McDaniel recalled Col Todd saying that an LP/OP mission for HQBtry, 5/11 "was a very good mission for us, since operating LP/OP as part of our local security is something we do, and that we are responsible for our own security in the modern battlefield." (Encl (30))

213. Each Confirmation Brief given by Capt McDaniel addressed the subject of U.S. Border Patrol response. Capt McDaniel's briefing package contained a slide captioned "Actions with the LEA" that stated "LEA estimated response time to the farthest hole: 15 minutes (significantly shorter for the LP/OPs on the ends)." (Encl (140))

214. During his 1st MarDiv Confirmation Brief, Col Todd cautioned Capt McDaniel not to become frustrated with the Border Patrol's response time since they are sometimes otherwise occupied. (Encl (49))

215. On 21 Apr 97, Second Lieutenant Enrique Diaz reported to 5/11 and replaced IstLt Nelson as the Communications Officer. As a consequence, 2ndLt Diaz became the Communications Officer for Mission 414-97A despite not having participated in any pre-mission planning or training. (Encl (32))

216. From 21-25 Apr 97, 5/11 underwent a Division Supply and Maintenance Analysis Team (SMAT) Inspection. (Encl (43))

217. On 24 April 97, Capt McDaniel presented a Confirmation Brief to JTF-6 at Ft Bliss in El Paso, Texas. (Encls (30), (56))

218. Those attending the JTF-6 Confirmation Brief (also referred to as an OPORD Brief) included Lieutenant Colonel Jerry D. Scott, USA, representing the Commander, JTF-6; Captain Matthew Spencer, USAF, who had recently been assigned as the J-3 Operations Officer for Mission JT414-97A; Captain Robert W. Clark, USA, JTF-6 Assistant Legal Advisor, Sergeant First Class Preston T. Tifft, USA, Communications Specialist for JTF-6; and Associate Chief Patrol Agent (ACPA) Larry Caver of the USBP, who also represented Operation Alliance. It was at this OPORD briefing that JTF-6 validated the training conducted by HQBtry, 5/11, based upon Capt McDaniel's presentation. (Encls (56), (60), (63), (80))

219. Capt McDaniel's briefing of his OPORD, which was dated 17 Apr 97, stated that in the event of an incident, "The Border Patrol will have agents close enough to our holes to respond in short order (15 minutes or less). The Border Patrol will handle the situation from that point." (Encl (141))

220. Marine Corps personnel understood that the terms of Mission JT414-97A required USBP agents to respond to the "individual sites" for incidents involving Marine Corps personnel on a 24-hour basis. (Encls (21), (30), (34))

221. ACPA Caver stated that, as a result of the Confirmation Brief, he understood the required response time by USBP extended only to the hours of darkness. In a USBP memorandum, dated May 21, 1997, he described his understanding and observed that the incident on 20 May 97 was a deviation from what was briefed. In particular, he understood that the Marines were to move to their LP/OP after darkness and the USBP response unit was to arrive in close proximity immediately after darkness to respond. When the Marines came up from their hide site early, the response unit was not in place to respond to the emergency that developed. (Encls (80), (179)

222. LTC Scott stated that, during the Confirmation Brief and the following site visit to the LP/OP positions, the USBP agreed to respond to an emergency within 15 minutes. His understanding was that this meant responding to the scene of the emergency, without exception, 24 hours a day. (Encl (56))

223. From 28 Apr 97 to 2 May 97, 5/11 participated in a Division Operational Readiness Exercise (DORE). (Encl (43))

224. On 29 Apr 97, LtCol Montgomery was hospitalized for neck surgery. On 30 Apr 97, he was released from the hospital and placed on convalescent leave until 16 May 97. (Encls (41), (167))

225. Maj Hogg, Maj Smith and Capt McDaniel agree that the Division Maintenance Stand Down from 8-18 Apr 97 followed by the three major inspections experienced in April and May 97 - the Marine Corps Administrative Assistance Team Inspection (MCAAT), 18 Apr 97; Supply and Maintenance Analysis Team Inspection (SMAT), 21-25 Apr 97; and Division Readiness Evaluation (DORE), 28 Apr to 2 May 97 - placed heavy demands on the personnel of HQBtry and precluded unit training for Mission JT414-97. (Encls (30), (42), (43))

226. First Lieutenant Thomas O. Harper was the Executive Officer for HQBtry, 5/11 from 1 March to 1 July 1997. Capt McDaniel tasked him to schedule a training exercise for the Marines going on the JTF-6 mission that would reinforce the training they received in March at DESFIREX. (Encl (44))

227. To fulfill this task, lstLt Harper scheduled a two-day training exercise with 1st MarDiv Reconnaissance Company on 1-2 May 97. The training was to encompass four areas: cover and concealment; LP/OP Operations; infiltration/exfiltration for surveillance teams; and field expedient communications. The plan was to provide adequate practical application and field training in these topics. (Encl (44))

228. Capt McDaniel's intent was "to determine the ability of the teams to camouflage themselves adequately for the mission . . . (and) . . . get into the Rules of Engagement . . . What kinds of decisions these young Marines will make under stressful conditions or simulated stressful conditions cannot be adequately judged in the classroom." (Encl (30))

229. On 30 Apr 97, Reconnaissance Company canceled their participation in the training because of conflicting training commitments. The training was rescheduled for 8 May 97 with HQBtry leadership scheduled to provide the instruction. (Encl (44))

230. SSgt Macias is unable to recall any training that was done back at Camp Pendleton. He does recall that there were legal and public affairs classes and Sgt Dewbre gave an intelligence brief. He also remembered that they were "supposed to have somebody from Recon come down and give us a couple of classes but that never happened either." (Encl (37))

231. SSgt Macias observed that "we had so many things going on at one time, which I thought to myself, it didn't make any sense we were getting ready to go on a mission and we were doing other things that weren't really important." He mentioned this to the Battery Gunnery Sergeant but he just observed that we had a lot of commitments. (Encl (37))

232. SSgt Macias' own training assessment was "I don't think I was as ready as I wanted to be. I think I could have known a little more, had more classes on different stuff but I was pretty confident in myself." (Encl (37))

233. On 3 May 97, JTF-6 received SECDEF approval for the execution of Mission JT414-97A. (Encl (137))

234. On 5 May 97, lstLt Harper was informed that HQBtry would be providing the "Alphas Platoon" for the uniform portion of the Commanding General's Inspection (CGIP). He sought relief from this requirement from Maj Hogg because it conflicted with the scheduled Mission JT414-97A training. Maj Hogg told lstLt Harper that HQBtry personnel must stand the inspection. Accordingly, 1stLt Harper canceled the JTF-6 mission training to allow the Marines to prepare for the inspection. (Encl (44))

235. Neither Cpl Torrez nor LCpl Wieler could recall being notified of training that was later canceled at Camp Pendleton. (Encl (29))

236. Maj Hogg believed the CGIP had priority over training and did not request relief from the inspection requirement. (Encl (42))

237. LtCol Rollins, who had moved from duties as the 1st MarDiv Deputy G-3 to become the 1st MarDiv Inspector, stated that it was common for a unit to cancel scheduled training in order to accommodate the CGIP. However, LtCol Rollins also stated that if the training situation had been raised, the affected HQBtry Marines would have been permitted to conduct the scheduled training. (Encl (50))

238. On 5 May 97, an advance party of GySgt Fitzgerald, Staff Sergeant Jay L. Lillefloren, Sgt Dewbre, Corporal Brad E. Smith, Lance Corporal Jonathan G. Vasiliauskas, and LCpl Steen departed for Marfa, Texas. (Encls (30), (148))

239. On approximately 5 May 97, LCpl Blood was told he would participate in Mission JT414-97A as a member of Team 7. (Encl (21))

240. Capt McDaniel ultimately assigned Cpl Torrez (combat aidsman), LCpl Wieler, (radio operator), and LCpl Blood (rifleman) to Team 7, led by Corporal Clemente M. Banuelos. (Encl (151))

241. At the time of assignment to Mission JT414-97A, Cpl Torrez and LCpl Blood were motor vehicle operators assigned to the Motor Transport Section of 5/11 and LCpl Wieler was a field radio operator assigned to the Liaison Section of HqBtry 5/11. (Encls (10), (16), (22))

242. Capt McDaniel believed that, based on training and experience as a scout observer and his demonstrated leadership skills and abilities, Cpl Banuelos was one of the best qualified Marines in the battery for the duties of team leader for a distant LP/OP operation. Because Capt McDaniel identified Hole 3 as the most challenging assignment, he selected Team 3, led by SSgt Macias, and Team 7 to man that hole. (Encl (30))

243. Cpl Torrez recalled originally being assigned to a different team but learned about two weeks before deployment on 12 May 97 that he would be on Cpl Banuelos' team. Cpl Torrez did not meet Cpl Banuelos until they arrived in Texas on 12 May 97. (Encl (29))

244. LCpl Wieler learned his team assignment at the time he asked to volunteer for the mission, just prior to DESFIREX. (Encl (29))

245. Cpl Banuelos and LCpl Wieler worked together in the Liaison Section of HQBtry, 5/11. From April through October 1996, they had deployed together as part of the Shore Fire Control Party attached to Battalion Landing Team, First Battalion, Fourth Marine Regiment (1/4), 13th Marine Expeditionary Unit (Special Operations Capable). Prior to this deployment, LCpl Wieler served as a radio operator for Cpl Banuelos during training. (Encls (4), (22), (29))

246. Cpl Torrez had worked in the Motor Transport Section of HQBtry with LCpl Blood since 29 Aug 96. LCpl Wieler did not meet LCpl Blood until they arrived in Texas on 12 May 97. (Encls (10), (16), (22), (29))

247. During the week before they deployed to Marfa, Texas, Cpl Banuelos visited LCpl Blood's work area to tell him what gear he needed to bring with him. LCpl Blood recalled that it was hard to get together due to their different work assignments. (Encl (21))

248. In terms of actual preparation for the mission, Cpl Torrez said the only thing he did prior to leaving for Texas was make his guille suit. He cannot recall whether Cpl Banuelos told him to make a guille suit or not. (Encl (29))

249. LCpl Wieler said he too did nothing to get ready beyond working on his guille suit and "getting more knowledge on the communication with the crypto gear" from Sgt Rose. He doesn't recall talking to Cpl Banuelos about the mission before going to Marfa, Texas. (Encl (29))

250. On 7 May 97, U.S. Army Forces Command issued the Execute Order for Mission JT414-97A. (Encl (138))

251. On 7 May 97, a second advance party consisting of Capt McDaniel, GySgt Vela, Sgt Rose, Sgt Dick and Corporal D. J. Delgadio left for Marfa. (Encls (30), (148))

252. On 9 May 97, LtCol Montgomery formally requested retirement from the Marine Corps via a Unit Diary entry with a requested retirement date of 1 Oct 97. He returned to duty from convalescent leave on 14 May 97. (Encls (41), (167))

253. The Tactical Operations Center (TOC) for Mission JT414-97A was located at the Marfa airport. A Forward TOC was located approximately 45 miles south of Marfa, Texas and 10 miles east of the Rio Grande. (Encls (30), (140))

254. Beginning on 9 May 97, Capt McDaniel filed a "Joint Task Force Six Daily Situation Report." These daily situation reports used a standard format and were sent to JTF-6 and the USBP Presidio Station. From 9 to 11 May 97, these reports documented setup activities at Marfa. They do not document any training activities being conducted. (Encls (30), (126)).

255. On 11 May 97, Capt McDaniel and CPT Spencer visited the locations of all four LP/OPs. (Encls (30), (60))

256. The four LP/OPs were referred to as "holes" and were located in positions to observe either crossing areas of the Rio Grande or access routes to the crossing areas. The holes were 4-6 miles apart along a 20-mile stretch of the river. (Encl (130))

257. On 12 May 97, the daily situation report documented coordination with the USBP regarding land use agreements and exact LP/OP locations. (Encl (126))

258. On 12 May 97, the HQBtry main body left Camp Pendleton for Texas and on 14 May 97 the mission was deemed operational at Marfa, Texas. (Encl (30)).

259. The mission personnel were organized into a headquarters and support element and eight LP/OP teams. The headquarters and support element contained three officers and 21 enlisted persons. Combined with the 32 Marines assigned to the observation teams, HQBtry had a total of 56 mission participants. (Encls (30), (151))

260 During the period of preparation and execution for Mission JT414-97A, HQBtry, 5/11 had an on board strength of approximately 150 Marines. The 56 mission participants were volunteers selected from the diverse work sections of the battery. (Encls (30), (148), (151))

261. At the time the Marines of 5/11 deployed for Mission JT414-97A, Capt McDaniel had conducted three days of dedicated training for the mission. (Encl (30))

262. At the time of deployment Capt McDaniel believed the mission personnel were trained to an adequate, but not ideal level. He advised LtCol Montgomery that he was confident in accomplishing the mission. (Encl (30), (41)).

263. LtCol Montgomery believed that, in spite of scheduling conflicts and the personnel problems within the battalion, the JTF mission was adequately staffed, trained and resourced to perform the mission. He "felt confident that Capt McDaniel would step forward and say 'We're not going to be able to do this' unless he believed that we had trained well enough . . . to accomplish the mission." (Encl (41))

264. As the planned response to contact between Marine teams and civilians, Capt McDaniel directed the team leaders to make the immediate force protection decisions and then call the TOC for further instructions. (Encl (30))

265. Capt McDaniel did not plan, nor rehearse, any specific actions for use by the LP/OP teams if contact with civilians required the Marines to break contact, abort, execute an emergency extraction, or escape. Capt McDaniel also did not rehearse with the USBP any actions to be taken if an emergency response to an LP/OP was required. Capt McDaniel stated he was too busy with other elements of the mission to conduct any field training for mission personnel while at Marfa. (Encls (30), (31), (37))

266. Cpl Torrez, LCpl Wieler and LCpl Blood do not recall any individual team training done at Marfa prior to the insertion of Team 7 into LP/OP#3 on 17 May 97. (Encls (21), (29))

267. SSgt Macias stated that his team did no training at Marfa prior to insertion although they could have had he chosen to conduct training. He does not know what training, if any, Cpl Banuelos did with his team prior to their insertion. (Encl (37))

268. On 13 May 97, the daily situation report documented the set up of the Forward TOC, team leader reconnaissance of the positions, and a mission preparation brief on the ROE. (Encl (126))

269. During the morning of 13 May 97, Capt McDaniel took the two team leaders for LP/OP #3, SSgt Macias and Cpl Banuelos, to the actual position of LP/OP #3, which was located south of Redford, Texas overlooking the Polvo Crossing area of the Rio Grande River. During this leaders' reconnaissance he oriented them to the area and they walked the ground in and out of the hide site and then the route out from the LP/OP to the insert/extract point on the paved road of Texas State Highway 170. (Encls (30), (37))

270. SSgt Macias recalls visiting the location of the LP/OP prior to his team being inserted. He did so in the company of Capt McDaniel, GySgt Fitzgerald, and Cpl Banuelos. He is certain that he and Cpl Banuelos were not told about any families living over the hill from the LP/OP site in the vicinity of Polvo Crossing. He knows that they were told by Capt McDaniel that they should not go forward from the LP/OP site to the old fort area. (Encl (37))

271. On the occasion of this visit, he and Cpl Banuelos went down into the hide site where they found an empty box that would have contained .22 caliber bullets. They speculated whether it belonged to recreational shooters or drug smugglers. (Encl (37))

272. Neither Cpl Torrez nor LCpl Wieler recall Cpl Banuelos going on a reconnaissance with Capt McDaniel and SSgt Macias to look at the LP/OP site. Nor do they recall receiving any report from any of them about the site. (Encl (15))

273. On 13 May 97, CPT Spencer conduced an ROE class with HQBtry personnel to ensure understanding of the ROE prior to commencement of the mission. (Encls (30), (60))

274. CPT Spencer recalled that he "conducted a mission brief with the unit, at tent city, near Marfa. Intel oversight and Executive Order 12333 were discussed to ensure all Marines knew who they were working for (Capt McDaniel) . . . We went over a number of situational scenarios and asked the Marines at random to describe appropriate actions based on the rules of engagement, Intel oversight and Executive Order. The instruction lasted about two hours. We covered safety issues, communication issues, public affairs issues, etc." (Encls (30), (60))

275. CPT Spencer recalled telling the Marines that "the scenarios we cover are extreme and that the chances of them having an armed encounter with anyone are relatively low. Out of 700 or 800 separate missions, we have only had a couple of hostile incidents." (Encl (60))

276. LCpl Blood recalled attending this class and believes the ROE lecture lasted a little over an hour. It repeated much of what Capt Gante covered but it used more teaching scenarios. LCpl Blood did not recall any scenarios used by either Capt Gante or CPT Spencer that resembled what happened to Team 7 on 20 May 97. (Encl (21))

277. Cpl Torrez also recalled a class being taught in Texas by an officer on the ROE again. In terms of an intelligence briefing, Cpl Torrez recalled only some discussion of "spiders, and ants and snakes and the brush, stuff like that" although he did recall "they were talking about two brothers . . . that were bad guys, that were drug dealers in the area." Cpl Torrez heard nothing to cause him to believe he would be in any personal danger during the mission. (Encl (29))

278. LCpl Wieler also recalled the ROE class but remembered little about it. He too did not hear anything that caused him to believe that he might be in any personal danger although he did recall that there was at least the suggestion that somebody might pose a danger to his safety on the mission. (Encl (29))

279. LCpl Wieler did remember that their "hole" was considered a "high risk" hole, which he understood it to be because it was near "a Class B entry . . . (with) a lot of traffic, foot, vehicle, horseback." LCpl Wieler recalled that they were simply told to look for people on horseback, in vehicles, or walking across the Rio Grande. (Encl (29))

280. On 14 May 97, Teams 1 through 4 were inserted into the correspondingly numbered LP/OPs. They were equipped to operate for 72 hours until 17 May 97 when they would be replaced by Teams 5 through 8. (Encl (30))

281. The teams were to man the LP/OPs and observe designated areas of the border during hours of darkness. During the daylight hours, the teams were to remain concealed in a "hide site," a position of cover and concealment near their LP/OP position. (Encls (30))

282. The teams were required to provide SALUTE (Size, Activity, Location, Unit, Time, Equipment) reports on a daily basis to the TOC. These were used by Capt McDaniel to provide his own daily situation reports to JTF-6. (Encl (30))

283. On 15 May 97, the daily situation report documented the initial insertion of teams and reported one call for a USBP response. The report indicates a 20-minute response time. (Encl (126))

284. On 16 May 97, the daily situation report documented two separate vehicle crossings of the border observed by LP/OP #3. The USBP did not respond. At LP/OP#4, a border crossing of seven people was reported. The USBP responded in 10 minutes. (Encl (126)

285. On 17 May 97, the daily situation report documented the compromise of LP/OP # 1 by a low-flying aircraft that observed the position. Two vehicle crossings were also reported at LP/OP #3. The USBP responded in one case in 10 minutes. They did not respond to the other crossing. (Encl (126))

286. SSgt Macias said he had only two occasions to call the USBP on the SABER radio. In neither case was he able to contact them on the radio. He has no basis to gauge their responsiveness to calls for assistance. He believed they were expected to respond within 30 minutes but cannot be certain. (Encl (37))

287. SSgt Macias observed that even his military communications were not good while he was at Hole 3. He had to transmit to the TOC by calling to an adjacent hole - he cannot recall the number but it was manned by Sgt Rose - which in turn would radio the Forward TOC, which in turn would relay the transmission to the TOC. (Encl (37))

288. In response to what his orders were should he and his team be compromised, SSgt Macias said they were to avoid being seen but, if seen, to identify themselves as Marines on a training mission and to ask the civilians to leave the area. He was always to call the

TOC if anything out of the ordinary occurred. He specifically recalled that Capt McDaniel briefed him on this the morning of the day he was inserted and Capt McDaniel had Cpl Banuelos present for the brief as well. He also recalled that Cpl Banuelos rode down to the insertion point that evening with SSgt Macias and his team. (Encl (37))

289. SSgt Macias stated that it was his practice to move up to the LP/OP around 2100-2200 when it was the darkest. He would return to the hide site around 0630. Further, to ensure they could avoid detection, he planned the turnover with Cpl Banuelos and his team to occur in the hide site. This was done and he had all of his gear down in the hide site for Cpl Ban