Article 138 Complaint

On Wednesday January 19, 2011, the defense filed an Article 138 complaint with the Quantico base commander, Colonel Daniel Choike. The Article 138 complaint is a complaint filed under the Uniform Code of Military Justice to address a perceived wrong against a soldier by his command. The defense asserts that the action of holding PFC Manning in Maximum (MAX) custody, under Prevention of Injury (POI) watch for over five months and recently placing him under suicide risk was an abuse of CWO4 James Averhart’s discretion, and a wrong within the meaning of Article 138, UCMJ. As redress, the defense has requested that Colonel Choike order PFC Manning’s removal from suicide risk and POI watch and that he order the reduction of PFC Manning classification level from MAX to MDI.

By way of background, PFC Manning was transferred to the Quantico Brig on July 29, 2010. Upon his arrival, he was placed in MAX custody and under suicide risk. On August 6, 2010, the forensic psychiatrist for the Brig recommended that he be moved from suicide risk to POI watch. That recommendation was followed and PFC Manning was moved to POI watch. Due to his improvement and adjustment to confinement, on August 27, 2010, the Brig’s forensic psychiatrist recommended that PFC Manning be taken off of POI watch and that his confinement classification be changed from MAX to Medium Custody In (MDI).

Over the course of the following three months, two separate forensic psychiatrists consistently stated that there was no medical reason for PFC Manning to be under POI watch. The only exception to this was on December 10, 2010 when it was recommended that PFC Manning remain under POI watch for one week. The following week, the forensic psychiatrist once again recommended that PFC Manning be removed from POI watch. Despite these consistent recommendations, PFC Manning has remained on POI watch and in MAX custody.

On January 18, 2011, over the recommendation of two forensic psychiatrists, the commander of the Quantico Brig, CWO4 Averhart, placed PFC Manning under suicide risk. The suicide risk assignment meant that PFC Manning was required to remain in his cell for 24 hours a day. He was stripped of all clothing with the exception of his underwear. His prescription eyeglasses were taken away from him. He was forced to sit in essential blindness with the exception of the times that he was reading or given limited television privileges. During those times, his glasses were returned to him. Additionally, there was always a guard sitting outside of his cell watching him.

The Army Staff Judge Advocate’s Office was made aware of this situation on January 19, 2011. To its credit, the Army Staff Judge Advocate’s Office worked through the military channels at the request of the defense to ensure that the Quantico Brig conducted a timely review of the necessity for the suicide risk restrictions. Based upon this review, CWO4 Averhart removed the suicide risk restrictions at 3:21 p.m. yesterday and placed PFC Manning back into POI watch.

Life for PFC Manning, however, is not much better now that he has been returned to POI watch. Like suicide risk, he is held in solitary confinement. For 23 hours per day, he will sit in his cell. The guards will check on him every five minutes by asking him if he is okay. PFC Manning will be required to respond in some affirmative manner. At night, if the guards cannot see him clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure that he is okay. He will receive each of his meals in his cell. He will not be allowed to have a pillow or sheets. He will not be allowed to have any personal items in his cell. He will only be allowed to have one book or one magazine at any given time to read. The book or magazine will be taken away from him at the end of the day before he goes to sleep. He will be prevented from exercising in his cell. If he attempts to do push-ups, sit-ups, or any other form of exercise he will be forced to stop. He will receive one hour of exercise outside of his cell daily. The guards will take him to an empty room and allow him to walk. He will usually just walk in figure eights around the room until his hour is complete. When he goes to sleep, he will be required to strip down to his underwear and surrender his clothing to the guards.

The Article 138 complaint will now be forwarded from Colonel Choike to the officer exercising general court-martial jurisdiction over CWO4 Averhart. This officer is required to inquire into the complaint and take proper measures for redressing the wrong complained of by PFC Manning. Afterwards, the matter must be sent to the Secretary of the Navy for review.