I did up a draft Sir for you to get started on this. We won't submit until after the record of the BOI is completed (2 to 4 weeks from now). Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Christian Hur [mailto:christian.hur@gmail.com] Sent: Saturday, April 02, 2011 13:11 To: Scarselli Maj Pietro P; scarselli13@yahoo.com; Hur Capt Christian P Cc: Haytham Faraj Subject: Respondent's Rebuttal ICO Board of Inquiry to Maj Pietro Scarselli USMC Sir, Had a conversation with Haytham very late last night/early this morning. He says that with a general you can still continue on with your military career...perhaps in another branch or even the reserves (I did some quick research and the National Guard might work). You have 36 months and the goal is to get that time no matter what. Natural delay between Friday and the SECNAV approval, appeals, congrints, request masts and Art 138 are all tools available for your use and can probably eat up between 6 months to a year. Regarding errors I can think of (see secnavinst 1920.6c, enclosure 8, paragraphs 12 & 13) YOU (with me assisting/editing/reviewing/signing) would craft a "Respondent's Rebuttal ICO Board of Inquiry to Maj Pietro Scarselli USMC" that would go from the Respondent through his counsel to the SECNAV via the convening authority and DCMRA. Off the top of my head (and without the findings worksheet in front of me) these are just some of the errors I can think of: 1. Maj Miner gave the board advance copies of all of the Government materials to read/review about 2 weeks out without any input or comment from the defense. I partially cured this by emailing them some materials a few days out but the damage had already been done in that they had ample time to read the 600 page IG investigation but not enough time to consider your materials. 2. Board considered a finding worksheet over the respondent's objections that had all of the NJP charges and all of the dismissed with prejudice court martial charges even though the charges were multiplicous of each other and that is not why the board was convened according to the convening instructions (counsel for respondent asked that the sheet be blank or contain the NJP charges only) 3. Board made factual findings not supported by the evidence (found you borrowed money and lied about MCMAP) despite 3 witnesses saying you did MCMAP and Baker admitting that he lied in his sworn statement when he was on active duty. 4. Board considering statement of Humberston typed up by Capt Ellis when Humberston never made that statement or signed it himself and neither did Capt Ellis. 5. Board indicated that they did not want to hear from Humberston himself but then they relied exclusively off of the 410 proffer reporting to be from Humberston IOT reach their findings that you had borrowed money from Humberston. 6. UCMJ Article 37 Unlawful command influence occurred here where a 2 star general wrote a letter to the board of inquiry asking for your retention. I got that letter only the day before the board convened giving you no time to counter that letter. The board could not disagree with a 2 star general. Maj Miner argued the significance of the General's letter in his closing arguments. See Encl 8, para 6, e. 7. I asked the government to produce GySgt Buccanan to say that no loyalty oath had ever occurred and that you had not debriefed him and the recorder failed to do that. Despite the letter from the Commandant, the board considered the event surrounding that pulled fitness report in making their decision. See Encl 8, para 6, g. 8. Maj Miner produced Col Quoss to say that he felt like he got an illegal MCMAP hook up from you without me having the opportunity to speak with Col Quoss in advance...ever. He had invoked his right to remain silent and was unavailable at all times until his hearing. See Encl 8, para 6, e. 9. The board did not produce live most of the witnesses requested by Maj Scarselli in the Respondent's witness list, specifically GySgt Buchananan or Col Quoss. 10. Board considered the suppressed statements you gave Mr. Gill taken in violation of Art 31 according to a military judge's written order. 11. Your seperation would constiute a manifest injustice given MGySgt Humberston was allowed to honorably retire and Col Quoss who admitted submitting a false training record has been allowed to continue serving with no adverse impact to his own career (not to mention Col Gill who had misstated before the board his 2 false official statement convictions at NJP). Finally, I'm already soliciting MGySgt Humberston to write an email or even an affidavit verifying his belief that you took that PFT, that you did MCMAP, that you never borrowed money and that you never gave any loyalty oath to anyone or asked anyone to lie. This is for appeal purposes and also to protect you in the event Maj Miner retaliates with a court martial for Art 107 against you (unlikely and if he did I'm confident we would win but on the plus side it would eat into more delay until your retirement). I'm going to do the same with GySgt Buchannan via email too on the side. -- Christian P. Hur
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Maj Scarselli BOI findings rebuttal statement.docx
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