muzzle of the gun was up against the soft pallet, only a half-inch away from the brain stem.

There was no exit wound. Obviously, the autopsy report showed that there was total destruction of the brain stem, no brain stem remaining. Yet the autopsy report that I received 1 year after the death showed that Colonel Sabow had breathed for a substantial period, for his lungs were filled with aspirated blood, and I quote the autopsy, aspirated. So were the bronchi, the bronchiales, and the trachea. Well, it is absolutely impossible to breath after the brain stem has been destroyed.

Second, the body was found falling forward and on his right shoulder. Well obviously, with 1,771 foot pounds of energy that was totally dissipated within the head, the body would have been thrown backwards and to the left, not falling to the shotgun.

There were no fingerprints on the shotgun of Colonel Sabow. Colonel Sabow's palms of his hands and the ventral aspects of both forearms were covered with blood. There was no blood on the body. There was no, not one drop, blood on the gun.

Only recently I found an x-ray taken by the Orange County Coroner's Department that shows a massive depressed skull fracture behind the right ear and in the right occiput. The autopsy pictures, photos, and the crime scene photos, show a massive swelling the size of my fist over this depressed skull fracture. At the autopsy, the scalp was reflected back, and it shows a massive fresh blood clot, without one shard of bone, without any wadding, with no pulpified brain in the blood clot, and not one gunshot pellet. The x-rays substantiate this.

Well, how in the name of God could this have occurred from the shotgun wound? Obviously, the brain would have been blown back into that area, the skull would have been blown back into that area; it is a physical impossibility. But it is this type of evidence that goes beyond incompetence, obviously.

I sent these x-rays and the photos to the University of Minnesota, the University of Colorado, and another major neurological center. A combined conference at the University of Minnesota was held by the neurosurgical department, one of the biggest in the world, and the neuroradiological department, another large, very famous department. Their conclusions were, and I will quote:

Number one: The wound of the skull, the depressed skull fracture, was typical of external blunt force trauma.

Number two: The shotgun blast could not have caused that fracture.

Number three: The wound to the back of the head had to have taken place at least substantial time before the shotgun was discharged, because of the amount of blood in the clot.

They also concluded that if he fell off a second story building a similar fracture could not occur unless he hit a rock or some hard object because of the location of the depression of the fracture, which was not on the extreme convexity, but was actually hidden under.

Gentlemen, this type of animus has to be dealt with. The suggestions that I have arrived at with the help of my counsel show that we must make investigative procedures of high professional quality mandatory at this time, so that there is no discretionary exemption

for whatever happens in these investigations of military deaths. Second, we must at this time establish an Office of Ombudsman, so that families like you see here today can take evidence there and have thorough independent nonmilitary investigations take place and given to a permanent special counsel who has the ability to effectively settle these cases through Federal litigation. It is not only necessary and not only is it due these individuals, but it is your duty.

Thank you.

[The prepared statement of Dr. Sabow follows:]

PREPARED STATEMENT BY DOCTOR JOHN David SabOW

Good afternoon gentlemen, my name is Doctor John David Sabow. I appear before you this afternoon in three distinct capacities.

First: I am the brother of United States Marine Corps Colonel James E. Sabow, the 51 year-old commander of all western air operations for the United States Marine Corps who was found shot to death at his home on his United States Marine Corps base in California.

In this capacity, I share with the other men and women whom you see before you today, the profound anguish of having been informed by my Government that one of our loved ones committed suicide under very suspicious circumstances while in the military service of our country.

In my second capacity, I appear before this respected body as a board certified neurologist and a board qualified medical expert in internal medicine with 25 years of professional experience.

In this second capacity, I am professionally capable of testifying, to my own personal professional certainty, that the initial United States Military Investigative Service investigations which are presently conducted into the causes of non-combat in-service deaths of our U.S. servicemen and women are conducted, at the present time, in a medically incompetent manner and that the entire pattern of conduct which characterizes such military investigative services in-service death investigations (as was officially declared in a recent, August 28, 1996, decision rendered by the highly-respected United States Circuit Court of Appeals for the ninth circuit in California constitute:

An "alarming pattern of instances of poor judgment" which display “a general disregard for sound-investigative procedures" and which are, therefore, both "unprofessional and ineffective".

In my third, and final, capacity, I appear before you today as a battle-weary veteran of 6 long years of constant administrative struggle in which I have attempted— as have the other men and women whom you see before you today-to make use of every avenue of defense department administrative review which the United States Congress has made available to the families of servicemen and women to review the initial medically incompetent military death investigation of their loved

one.

In this final capacity, I am here today to inform you that the present system of internal military administrative review procedures of such in-service death investigations presently made available by Congress is absolutely insufficient, as a matter of practice and of law, to deserve any confidence whatsoever on the part of the American family whom Congress asks to loan their sons and daughters, their husbands and wives and their fathers and mothers to the United States military services to serve our Nation.

In the brief comments which I shall make here today, I will confine my statements to facts which will assist you, as United States Senators, in performing your specific constitutional function of drafting and enacting specific concrete legislative reforms which will restore the initial military in-service death investigation process-and the Government review process over such initial death investigations-to the proper position of trust and confidence to which such procedures must be restored, if Congress is to ask us to place our loved ones in the hands of the United States military services for training and for service to our Nation.

By way of specific example, I will inform this body of four specific issue areas in which I know, to my own professional certainty, that our present initial original military in-service death investigations are, as a matter of regular practice, completely incompetent and are, therefore, entirely incapable of generating objectively reliable physical medical evidence which is adequate to support a trustworthy medi

cal conclusion as to the manner in which a serviceman or woman was actually killed.

Second, I will set forth facts which demonstrate that the present internal military "review" process presently in place is functionally nothing more than a pro forma "rubber stamp" of whatever determination was arrived at by the initial military inservice death investigation conducted in that case, no matter how professionally incompetent that initial military-investigation was. I will testify that this "rubber stamp" attitude within the military rises all the way into the office of the Inspector General of the Department of Defense.

Finally, I will propose to this body two specific, concrete legislative proposals which I and my legal counsel believe will substantially restore to the entire field of in-service military death investigations the degree of public and private confidence to which such investigations must be entitled, if we are to be asked by our Congress and our President to place the lives of our loved ones in the custody and care of our military services in the future.

I am here today because of the violent deaths of over 3,000 young men and women over the past decade while they were serving their country on active military duty. All of these deaths were ruled by the United States military services to have been "self-inflicted". The particular deaths which bring us before the United States Senate today, occurred under very suspicious circumstance's-but all of them were ruled by the military to have been self-inflicted. I am only one of those who appear before you today who questioned the military about their conclusions and who conducted our own private investigation which determined that the official conclusion reached by the military authorities was, in fact, wrong. I have not contacted every one of those dissatisfied parents, brothers, sister or spouses but those with whom I have spoken have all expressed profound disappointment in their Government. There is disappointment in the military service that was supposed to take care of these servicemen and women; disappointment in military investigative agencies that were required by law to perform an objective and competent investigation of the circumstances of the manner of these deaths; and disappointment in the performance of the military "reviewing" agencies which were required to conduct an objective review of the initial death investigation but which were, uniformly, more interested in simply protecting the reputation of the military and in affirming the original incompetent investigation.

There was also considerable disappointment with many of our elected representatives who rather than personally get involved, passed it to the aide who seemed more interested in protecting their Congressman or Senator from controversy than to stir up issues that could theoretically offend large numbers of constituents and risk losing their votes. But the greatest disappointment of the American families gathered before you today has been in their country-whose leaders appear to have an agenda that values the establishment over the individual, the end over the means; appearance over fact and expedience over truth.

All of us mourn the loss of our loved ones but we also mourn the loss of respect we had for our country. In our search for the facts, we have been overwhelmed by the lack of sensitivity shown by the military, the arrogance of the DOD investigators; but most of all by the perception that our Government is attempting to hind the truth and obstruct justice. Many of these American families have been forced to the conclusion that agents of our own Government have played an active role in the deaths of our loved ones and not simply a passive role after the fact.

These notions are not the delusions of despondent relatives. They are not the ravings of conspiracy theorists. They have developed only very gradually, after these families have reviewed available evidence, shared it with experienced experts and then arrived at conclusions totally different than the authorities. But this has not been simply a difference of opinion. In many instances, the evidence has so conclusively proved murder that any other conclusion is beyond reasonable debate.

Everything I will tell you today is documented and verifiable. It deals with the way the DOD gathers evidence, interviews families and witnesses, makes attempts to intimidate experts hoping that they will alter their conclusions, takes statements out of context, erases specific portions of a recording of a meeting and then transcribes it as being complete. When two investigators have conducted an interview, they have stated totally contradictory conclusions as fact, forgetting that the other had just stated the opposite.

Family members of men and women who are killed while in service receive no cooperation whatsoever when trying to get the autopsy reports. Being a board certified neurologist, I was totally qualified to review and understand the details of the autopsy in my brother's death. Even 5 weeks after my brothers death, the pathologist who conducted the autopsy, told me that she couldn't remember the case and

there was such a backlog of cases that the report was not available. Yet, the conclusion of suicide was already established and was published in the first jagman report. Military investigative services refuses to give family members the results of the fingerprint evidence even after months of delay. I finally received both, in my brothers case, only 6 full months after his death-and I realized why they were so reluctant to provide the information.

You see, in my brother's case, the autopsy described the lungs and breathing passages as filled with aspirated blood. Yet my brother's brainstem had been totally blown away by a shotgun blast. Any medically competent person knows that this would result in instantaneous death precluding even the slightest gasp. The presence of aspirated blood in the lungs would have required a period of coordinated breathing with blood entering the lungs from a prior serious injury-an impossibility without a brainstem!

For years, American families of servicemen and women who have been declared to have committed suicide have tried to have the DOD, FBI, the individual military services and the Department of Justice reconcile such gross contradictions, but they can not. They have each offered totally ludicrous explanations. For instance, I my brother's case, they stated that "... after the shot, the victim remained sitting upright, so the blood went into the lungs by gravity. He remained living for a short time after the shot, and continued breathing for some time. Since there was no exit wound, the blood shot down into the lungs from this extremely vascular area."

After that shotgun blast, the entire energy was of the shot was dissipated in the my brother's head, for there was no exit wound. This force would have faunched his body backwards immediately and forcefully. There was no physical possibility of the victim remaining sitting upright.

Furthermore, after the sudden destruction of the brainstem, there is an instantaneous total loss of all muscle function, with ensuing flaccidity, a loss of all vegetative and autonomic activity, resulting in an immediate cessation of all breathing and total loss of blood pressure.

These military service investigations cannot explain the lack of the victim's fingerprints on the weapons except by lying. For example, in one case, military investigators quote a fingerprint expert as stating that it is common to have the finger prints burned from the barrel of a shotgun by the heat generated by a single shot. The expert quoted by the military investigators in that case, a state deputy sheriff, vehemently denies ever making any such statement.

Then there is the blood-stain evidence. In one case the blood covered the palms of both hands of the victim, yet there was not one drop of blood on the death weapon. The DOD investigator, in that case, stated that this fact "bothered" him. But he was bothered only when the family pointed this fact out to him. It apparently did not bother him or any of the military investigators at the DOD, for they refused to give any explanation to the family.

In one case, an x-ray was taken of the victim's skull by a state coroner in the case of an alleged self-inflicted gunshot wound of a military service man. That xray showed a massive depressed skull fracture at the back of the head of the victim. There was also an orange-sized swelling at the back of the head clearly shown on all autopsy photos taken at the crime scene. Furthermore, the swelling was seen and felt by the service man's wife when she discovered the body. It was noted at the crime scene, by the NIS case officer. Under the huge swelling was found a fresh blood clot, which was totally void of any bone shards or shotgun pellets. The x-rays clearly show the absence of these. If that fracture was caused by the gun blast in the victim's mouth, the skull fragments would have been blown outward and the swelling would have been filled with pellets, shards of bone and brain. But there were absolutely none, making it clear that this deadly blow had been inflicted before the service man had been shot.

One military investigating agent stated repeatedly that there was no swelling. A second military investigator stated that the swelling was filled with bone, brain and pellets. Yet a third military investigator in the same case stated that the swelling occurred only after the body was positioned on the autopsy table with the head resting on "chocks" ignoring the depressed skull fracture altogether.

The skull x-ray and photos of the back of the head in that case were sent to various universities for their evaluations. The University of Minnesota reviewed this evidence at a combined neurosurgical and neuroradiological conference. The unanimous opinion was that the fracture was a typical external blunt-force trauma and could not have been caused by the gun blast.

It was the unanimous opinion of these undisputed medical experts in that case that the external skull trauma had to have been inflicted several minutes before the shotgun blast, for it would have taken at least that amount of time for the swelling to have developed.

Evidence such as this regularly ignored by in-service military investigators until some explanation is demanded by family members. Then such information is often explained away with the most implausible and medically impossible theories. Medical experts who have contradicted the initial military investigators conclusions are often contacted by the military investigators and DOD “reviewers" and are asked to change their opinions. For example, a neuroradiologist from the University of Minnesota in one of the cases discussed above was contacted by a DCIS investigator and was openly pressured to change his opinion.

In conclusion, I respectfully recommend that this body consider enacting two specific pieces of legislation:

First, I request that this body enact legislation expressly mandating the investigative services in each branch of our United States Armed Forces to take steps to amend the official investigative manuals governing in-service death investigation. They should make mandatory a specific set of professionally-required procedures and steps to be taken when conducting a death investigation. At the present time, the ninth circuit of appeals has ruled that any and all potential investigative steps are effectively "totally discretionary" on the part of the individual investigating officer, making any truly meaningful "review" of such an investigation entirely devoid of any objectively enforceable standards.

Second, I request that this body enact legislation establishing a Federal Office of Ombudsman which would be authorized to accept requests from family members who have exhausted all other forms of administrative relief and to have this ombudsman conduct a de novo professional investigation into the death of the serviceman of that family. An office of permanent independent counsel should also be established which should have the authority to initiate Federal litigation at the request of this ombudsman.

I have spent the larger portion of 6 full years attempting to get my Government to conduct a good faith, professionally responsible investigation into the manner of the 1991 shooting death of my brother, Colonel James E. Šabow. All of these efforts have proved to have been in vain.

Next month, I will be forced to commence a distasteful Federal litigation against my own Government to obtain the justice to which my brother, Colonel James Sabow, was entitled after almost 30 years of distinguished and honorable service in the military service of his country.

Many of the other men and women whom you see assembled before you today do not have the means to commence such distasteful Federal litigation as I have done. Nor should they be forced to resort to this extreme form of conduct in order to obtain an objective and competent investigation of the violent death of a family member whom they have entrusted into the hands of our Nation's armed services.

I ask you, today, to provide to these men and women a less adversarial manner of obtaining a professionally competent and trustworthy fact-finding procedure to determine the facts of the death of their loved one while in the service of our Nation.

It is their right . . . and it is your duty.

Senator KEMPTHORNE. Dr. Sabow, thank you very much. Mr. Casto.

STATEMENT OF CHARLES CASTO

Mr. CASTO. Mr. Chairman and honorable committee members, I am very pleased to be able to present information and concerns to you in support of efforts to improve the military death investigation process. Although the introduction of Public Law 103-160, section 1185, enacted in the National Defense Authorization Act for fiscal year 1994, set a positive framework for administratively identifying inadequacies and shortcomings in the death investigation process, much remains to be done to improve the methods and practices used.

In review of the 1994 congressional report and the current January 1996 DOD IG report provided by Ms. Hill, a recurring theme of cases discussed seems to involve preexistent or extenuating circumstances that occurred before the death incident, poor handling by MCIO's or the criminal investigating offices who do not initiate