STUTTGART, Germany -- It was late December 2011 and Pfc. Thomas Nguyen, 20, had just landed at Camp Bondsteel in Kosovo, where members of his Georgia National Guard unit were taking part in peacekeeping operations. Inside the tactical operations center, after a few questions about his predeployment training, Nguyen's first sergeant gestured toward the wooden board and told the young private that waterboarding was a training requirement in the field.
Was it a lighthearted joke or meant to instill fear?
While no attempt was made to torture the private, the insinuation was enough to convince senior Army leaders that 1st Sgt. Brett R. Paul had committed a crime. U.S. Army Europe commander Lt. Gen. Mark Hertling, soon after learning about the incident, made his feelings clear.
"Our Army is much better than this, and to see this form of immature frat house activity with leaders knowing it is going on, is just criminal," Hertling wrote in a Jan. 29 email to subordinate officers that was obtained by Stars and Stripes.
Nguyen filed an equal opportunity complaint that ultimately led to an investigation of 17 soldiers, one of U.S. Army Europe's largest criminal probes into hazing. Allegations ranged from harsh physical punishments to initiate troops, to sexual harassment and racial insults.
The investigation resulted in numerous nonjudicial punishments and three courts-martial, two of which ended with acquittals.
Some military leaders were critical of how the situation was handled. The Kosovo probe revealed the complex nature of some hazing prosecutions, particularly when the allegations don't include charges of physical assault.
For Army leadership looking to take a zero-tolerance approach to hazing and rite-of-passage rituals, such distinctions could prove to be complicating factors when it comes to meting out military justice. It becomes more complicated as political pressure mounts on the military to get a handle on hazing after a series of high-profile cases.
During a March 22 congressional hearing on hazing in the military, Sgt. Maj. of the Army Raymond Chandler III told lawmakers the Army is taking the issue seriously, though the problem remains hard to quantify.
"I can assure you the Army has taken a strong stance against hazing," Chandler said. "Hazing is not compatible with our Army values and will not be tolerated."
One challenge the Army faces is determining the extent of the problem.
While there are many forms of misconduct, there is no punitive title for hazing in the Uniform Code of Military Justice, making it hard to track, Chandler said. As of March, a review of records within the Army showed that since 2006 there had been 71 instances that met the criteria for hazing. Of those accused, 65 received administrative, judicial or nonjudicial punishment; 43 were pending adjudication; and 21 had no action taken, according to Chandler.
Hazing can take many forms. There are high-profile cases like that of Pvt. Danny Chen, who committed suicide after being subjected to physical and verbal assaults.
Then there are murkier situations, such as what happened with the Georgia National Guard unit in Kosovo. In that case, what was seen as criminal in the eyes of some commanders was dismissed as a tasteless, inappropriate attempt at humor in the eyes of others.
As a result, some soldiers found themselves facing felony charges for behavior that could have been corrected internally, according to the Guard unit's squadron commander.
"I don't believe these things they were accused of rose to the level of court-martial," Lt. Col. Joe Lynch, commander of the Georgia's 3rd Squadron, 108th Cavalry Regiment, told Stars and Stripes.
"Was there some inappropriate behavior? I think there was. There was some college prank type stuff."
The push to prosecute three soldiers, all of whom faced potential prison time, was an unprecedented overreaction by senior Army leaders, Lynch said.
"I've never seen this level of reaction to what is essentially an EEO (Equal Employment Opportunity) complaint," he said. "We chose the nuclear option when we could have chosen small-arms fire. We as leaders failed our soldiers on this one."
Hertling argues that rites of passage and hazing-like activities need to be confronted, even if the participants are willing, as is the case when soldiers pin so-called "blood wings" on one another after airborne school.
"It's deviancy from Army traditions," Hertling said in an interview with Stars and Stripes, referring to initiation rituals such as "blood wings," which involves jabbing the pin of a badge into a soldier's chest. "And beyond that, it is poor leadership. You don't motivate people with this kind of action."
Excessive exercise routines and incidents such as what happened with the perceived threat of waterboarding also fall into the deviancy category, according to Hertling.
For Lynch, the case against Paul epitomizes the overreaching nature of the Army's investigation. At a time when the military is under pressure to get tough on hazing, Lynch said he believes his soldiers were singled out as an example.
Lynch's boss in Kosovo, battle group commander Col. Jeff Liethen, conveyed similar feelings in a Feb. 6 email to Lynch, in which he expressed concern about what he described as an overzealous USAREUR investigative team dispatched to Kosovo.
"Joe, I've got a bad feeling about this," Liethen wrote in the email, which was obtained by Stars and Stripes. "I believe BG (Maj. Gen. Aundre) Piggee's team came here with preconceived notions and that the US Coy (Company) might not get a fair shake. As you well know, the DOD is extremely sensitive to hazing incidents right now and in my opinion, has been overly heavy handed in dealing with them.
"Our issues present a great opportunity for the Active Army to make an example out of the Nat'l Guard which has been their joyful modus operandi for many years," Liethen wrote.
Hertling, the supervisor of Piggee, who was the convening authority in the case, disputed that it was a case of Guard versus active duty.
"It doesn't matter what element of the Army it is. It happens in all of them," Hertling said. "It is our responsibility to ensure standards are attained in all elements of the Army.
"It's especially important when you leave young leaders alone on specific sites, and that's what we've been doing for 10 years, on COPS (combat outposts), on FOBs (forward operating bases) or, in the case of Kosovo, on base camps."
Rites of passage?
Many of the incidents in Kosovo involved rites of passage and excessive exercise routines imposed on junior troops to instill discipline, according to USAREUR.
Six soldiers received Article 15s -- a nonjudicial punishment under the UCMJ -- and four others received letters of reprimand. Several more were cleared during the course of the investigation.
The unit's first sergeant, Paul, and two other NCOs were referred for courts-martial.
During their trials in Kaiserslautern, Germany, in August, Paul was found innocent of cruelty and dereliction of duty. Sgt. Cody Lee Phillips was found innocent of hazing-related charges involving accusations that he ordered excessive exercise routines as corrective punishment to junior soldiers. Phillips also was found innocent of using a derogatory racial slur and indecent exposure.
Staff Sgt. Troy Flud, who was initially slated for a special court-martial, made a deal for a less severe summary court-martial on the eve of his mid-August trial date. He agreed to plead guilty to a charge of cruelty and maltreatment in connection with a "gay test" joke and innocent to hazing-related charges that he ordered excessive exercise, according to the 21st Theater Sustainment Command staff judge advocate office. Flud's guilty plea was accepted and resulted in a forfeiture of $1,571, according to the 21st TSC.
"Looking back, you could say I took it a little too far ,and I was wrong in terms of making repeated jokes," Flud said in a telephone interview. "I never meant to make anyone feel uncomfortable, and I don't believe it was something court-marital worthy. Big Army tried to ruin people's careers over some push-ups and a joke."
While the other defendants, prosecutors and the main accuser declined to comment, defense attorneys argued in court that the only reason criminal charges were brought was to satisfy the demands of senior USAREUR leaders -- specifically, Hertling.
According to a transcript of a pretrial motion to have the case dismissed, Paul's attorney pointed to a separate March 2012 hazing case in which a captain and first sergeant from USAREUR's Germany-based 10th Army Air and Missile Defense Command received administrative reprimands despite two soldiers being hospitalized in connection with the incidents. The convening authority in that case also was Piggee, but without Hertling behind the scenes as a driving force for action, defense attorney Capt. Christopher Lacour argued.
"That case where a first sergeant physically abused a soldier, making him do iron mikes (walking lunges) around an airfield until his muscles failed and he urinated blood, this was a GOMOR (general officer memorandum). Why? Because it doesn't have the interest of Lt. Gen. Hertling.
"How can an observer reconcile one case, where two soldiers are hospitalized by a first sergeant? Why the difference? The rank is the same. The injuries of the other two soldiers are much more severe. What's the difference? It's easy to see. The difference is Lt. Gen. Hertling."
Hertling rejects the allegation, noting that a military judge rejected the defense motion for dismissal of Paul's case on grounds of unlawful command interference.
Hertling said his early outspokenness about the Kosovo case was necessary to send a message that hazing won't be tolerated. Also, the Kosovo case required extra attention since the soldiers involved were in the middle of a deployment in a tense environment, he said.
During the March 22 congressional hearing, lawmakers and military officials credited Hertling for speaking out about the case.
"Lieutenant General Hertling's visible leadership stance in this regard is often the most effective factor in changing a culture or creating an environment that supports and reinforces the policy of reporting incidents," said Master Chief Michael Leavitt, the senior enlisted leader of the Coast Guard, according to a transcript of the hearing.
Meanwhile, Hertling acknowledged the acquittal of two soldiers could send the wrong message to troops.
Col. Mark Elam, a Georgia guardsman and military intelligence commander with the battle group in Kosovo, expressed those concerns to Piggee in an April 3 memo obtained by Stars and Stripes that argued against criminal charges.
"I would caution that we do not need to take this forward and lose," Elam said shortly before charges were filed against the Guard soldiers. "I would not risk court-martial if there is more than a good chance of losing it. The second- and third-order effects of losing could possibly create the appearance that what they did was acceptable."
At issue during the trial of Paul, the most senior soldier facing criminal charges in the Kosovo case, was whether the incident involving a fake threat of waterboarding amounted to maltreatment or an ill-advised joke.
"When I went to the TOC, I was asked if I knew anything about waterboarding," said Nguyen, who testified he was unaware of the word's meaning.
Paul, chuckling at the private's confusion, thought the whole thing was a joke, said defense attorney Capt. Christopher Lacour.
"You were never touched?" Lacour asked.
"No, sir," Nguyen said.
Nguyen testified that he then did an Internet search on the term waterboarding and upon learning its meaning, felt threatened and began keeping a journal, which was later submitted as part of Nguyen's equal employment opportunity complaint. In it, he also described being subjected to arbitrary physical punishments, racial slurs and sexual harassment.
The sexual harassment allegation led to the indecent exposure charge against Phillips, who allegedly danced around in his underwear. Phillips also was accused of ordering excessive exercise routines as "corrective punishment" to junior soldiers. The juries in both trials came back with innocent verdicts in under two hours.
Hertling said he can't account for why the case resulted in two acquittals and one partial acquittal.
The Criminal Investigative Command report on the incidents in Kosovo showed "hard and tyrannical treatment being conducted by those who felt they wielded power over soldiers with less rank," Hertling said. "And that is anathema to me."