An Article 32 hearing beginning Jan. 13 will investigate the charges against two F-16 Fighting Falcon pilots involved in a "friendly fire" incident in Afghanistan last year.

Majs. Harry Schmidt and William Umbach of the Illinois Air National Guard's 170th Fighter Squadron face charges stemming from an April 17 incident in which four Canadian soldiers were killed and another eight injured at Tarnak Farms, near Kandahar, Afghanistan.

Schmidt reportedly dropped a 500-pound bomb on the Canadians, who were conducting night training. The hearing, directed by Lt. Gen. Bruce Carlson, 8th Air Force commander, will be held at Barksdale Air Force Base, La.

Schmidt is charged with four counts of involuntary manslaughter, eight counts of assault, and dereliction of duty by failing to exercise appropriate flight discipline and failing to comply with the rules of engagement in Afghanistan. The charges were filed under Articles 119, 128 and 92 of the Uniform Code of Military Justice.

Umbach faces the same charges in addition to an allegation that he, as flight commander at the time, failed to ensure that Schmidt complied with the rules of engagement. According to Col. Craig A. Smith, chief of the military justice division for the Air Force Legal Services Agency at Bolling AFB, D.C., the military justice system affords the two officers significant rights, many not available in the civilian criminal justice system.

"Every effort has been made throughout this entire matter to ensure that impartial officers and commanders evaluated the evidence against Majors Schmidt and Umbach," Smith said. "They have been, and continue to be, represented by experienced Air Force and civilian defense counsel, who will ensure that the rights guaranteed to them by the U.S. Constitution, the UCMJ and the Manual for Courts-Martial are protected."

On April 18, Gen. Tommy R. Franks, commander of U.S. Central Command, directed an investigation board to convene to determine the facts and circumstances of the incident. The board found the cause of the incident to be failure of the two pilots to exercise appropriate flight discipline, which resulted in violation of rules and an inappropriate use of lethal force.

The board also found that failures within the pilots' immediate command structures were contributing factors, but that they did not cause the incident.

On Sept. 11, Brig. Gen. Stephen T. Sargeant, the U.S. co-president of the Coalition Investigation Board that investigated the incident, preferred charges against Schmidt and Umbach. The preferral of charges initiates the formal court-martial process, which includes the upcoming Article 32 hearing.

According to military law, the convening authority may dismiss the charges or continue the process by referring the charges to court-martial.

"The Article 32 investigating officer will submit a written report, with recommendations," Smith said. "General Carlson will then determine how the charges will be handled. He may dismiss some or all of them, forward the charges to a subordinate or senior commander for disposition, or refer charges to a court-martial."

Although the Article 32 hearing is similar to a civilian grand jury proceeding, there are some important differences, Smith said.

Article 32 hearings "differ in certain important rights afforded to an accused that are not present in a civilian grand jury proceeding," he said. "For example, a servicemember has the right to be present at the hearing, to be represented by appointed military defense counsel at the investigation, to request an individual military defense counsel by name and hire a civilian attorney at no expense to the government. The servicemember, through his attorney, has the right to cross-examine witnesses against him, and he may testify and call witnesses of his own."

The important thing to remember about an Article 32 investigation, Smith said, is that it is not a trial. "The primary purpose of the Article 32 investigation is to investigate the charges," he said. [ANN Thanks Master Sgt. Scott Elliott, AFPN]

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