Article 73 - Petition for Retrial ... the TRUTH can't be restrained!

Secretary McHugh, Secretary Fanning and LTG Darpino,


"At anytime within two years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court.  If the accused's case is pending before a Court of Military Review or before the Court of Military Appeals, the Judge Advocate General shall refer the petition to the appropriate court for action.  Otherwise the Judge Advocate General shall act up on the petition."

It can't be any more clear and anyone who has served in the military knows that everything has an exception...the TRUTH should never have a timeline or restraint.

Fraud on the Court is universally accepted as follows:

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."

The actions taken by US Army personnel named by the primary witness in US V Pinkela, did in fact restrict and wrongfully influence COL Michael Hargis, while sitting as judge alone, to not perform the impartial functions of the court.

Not only are the actions of the Us Army prosecution legally insufficient, but with a thorough legal review, under Article 73, your office will find that the case is factually insufficient and deserving of a review and complete dismissal.

I submit the public letter signed by Elliott Scott Henney as grounds for your direct intervention and professional legal review of the entire case proceedings of US v Pinkela as documented in the Record of Trial and all Defense appellate briefs to date.

Primary Witness calls for Article 73 Review and Dismissal

Courage against Hate, Fear and Prejudice

Primary witness takes a courageous stand

Aug 12, 2015 — In an amazing courageous act, Mr Henney has sent this letter to Secretary McHugh. With his permission I am updating my petition to ask for support and pressure on the US Army to review my case and give me my life back...This can never happen again to another servicemember

August 10, 2015

The Honorable John M. McHugh
Secretary of the Army
101 Army Pentagon
Washington, DC 20310-0101

Dear Secretary McHugh,

My name is Elliot Scott Henney. I was the primary witness, and an alleged “victim” in the case United States v. Kenneth Pinkela. I am contacting you with the hope that you can help correct an injustice imposed on me, on LTC Pinkela and on the American people.

Since the Army determined I was an alleged victim of Ken’s, I have a right for the Army to hear what I have to say. 

I am the son of a retired Naval Officer, and the grandson and great-grandson of others who have served in the U.S. military. I hold those in such positions to a higher moral obligation and trust. For me to agree to testify against LTC Pinkela was not an easy decision. To later discover it was based on lies within more lies has been emotionally devastating, physically made me sick to my stomach and led to health crises in my life. 

I deeply regret my cooperation with the US Army and the prosecutor, CPT Jordan Stapely. CPT Stapely coerced me into believing LTC Pinkela was a sexual deviant and predator who would put others at risk if I did not agree to testify. I was always doubtful, as what CPT Stapely told me was at complete odds with my nothing but positive experience with Ken (I knew Ken when I was in college). But CPT Stapely assured me he had 100% proof, beyond a reasonable doubt, and that it was my duty to testify against Ken. 

Now I know the facts: 

1) The Army did no investigation, and that there was, and is, no physical evidence incriminating Pinkela.

2) The Army did not pursue the phylogenetic testing that could determine the extent to which the strain of HIV Pinkela’s accuser, Hamilton, was or was not similar to the strain Pinkela has; I had a partner who was HIV+, I understand the virus and how the virus can and cannot be transmitted.


3) The Army, through CPT Stapely, lied when he told me that there were at least “half a dozen” other witnesses testifying against him. That was and is, a complete lie, used by Stapely to mislead me and “calm” my concern that I was not the only witness against Pinkela, which, in fact, it turned out to be the actual situation. I was the only one.


4) If the same RAP sheet of sexual partners I have is the same one used in the prosecution, I have more than enough evidence to raise a red flag regarding the validity of Hamilton’s claim, and from what I know, Chris Hamilton is lying. One page listing information with sexual partners only going back a couple years would be enough evidence for me. I was raised by parents who live by the same code of morals and ethics the US Army and Chris Hamilton should be upholding as well. All of this could have been proven with an investigation. I can’t believe that an investigation is missing and a man’s life has been ruined.

5) I had no knowledge that CPT Stapley, and the US Army, had even brought charges against LTC Pinkela in my name. They even falsified the allegation date (2007) when I was still living in San Diego, CA. When I knew Ken he was HIV negative and therefore the HIV charges were ALL false. 

Ken Pinkela is a human, a soul, and an O5; the same rank as my father when he retired, all of which has made this whole entire ordeal hit close(r) to home. I can’t stop thinking that someone could have made the same accusations against my father and ruined my entire family without any proof and for no reason. Until now, I never would have imagined a branch of the military would do something like this without an adequate investigation and evidence.

As a Navy “brat” it saddens me to say that, because of this terrible experience and all of the injustices, it has fundamentally changed how I, as a patriotic civilian, the son of a Navy career officer view the US Army and the entire U.S. military and its representatives. 

The day I testified against LTC Pinkela, was one of the worst days of my life. I felt terribly guilty, knowing I had been lied to and tricked into ruining the life of a man who did not deserve any such treatment. I went into a downward spiral, not knowing what to do and ultimately going off the deep end, in drugs and alcohol, to try and cope with what I had done.

Every day had become so unbearable, as I was racked with guilt and furious at the injustice I was unwittingly a party to, that the thought of continuing on in my own life became too much. When alcohol and drugs no longer filled the void, I attempted other, even more destructive, remedies. I continue to live everyday hearing Ken’s mom gasp, in the courtroom, when the judge found Ken guilty. I could not believe what had just happened.

Fortunately, in a moment of clarity and with support from my family and friends, I was able to piece together the puzzle enough to motivate me to clean up my act and find out more about LTC Pinkela’s case. When I found out there was no investigation, and it was simply the accusation of one soldier against another, with me being manipulated into testifying against Pinkela, I knew I had to do something.

For Ken’s family, his life and my family and my life, please drop this obscenely unjust case against LTC Pinkela. As the unknowingly primary, and only witness, against him, after being lied to by the Army prosecutor and thereby destroying innocent people's lives in the name of homophobia and HIV-phobia, I believe my request must be heard and acted on.

My mission in sobriety is to correct a terrible wrong I helped perpetrate, a wrong that reflects poorly on the U.S. Army and the entire military justice system. 

This entire case is NOT what the United States military represents. This case should have NEVER made it to a courtroom, and the way in which the case was “put together” with deceit and lies, is NOT the way any person, or officer, should ever suffer.

I'm begging you to give this wrongly accused man, and officer, LTC Ken Pinkel, his family and his own life back, so I that I may have my life back as well as demonstrate a respect for admitting when a process has gone so wrong that senior officials can, will and do, have the courage to act and fix a mistake. 

Personally, I also understand that the person reading this may be Eric Fanning; I served you and slung your cocktails for years. I made the connection thanks to Facebook and new position as the Assistant Secretary and maybe new Secretary of the Army. I hope you are well. You may not remember me without seeing me, but because so many people remember my fallout, you may have wondered what could have happened to that guy with so much potential. 

This is what happened to me, Sir. 

This case is wrong and it must be thrown out. 


With Sincere Respect,
///original signed\\\

Elliot Scott Henney


cc: The Honorable Eric K. Fanning, Under Secretary of the Army (Acting)
General Raymond T. Odierno, Army Chief of Staff

HIV Criminalization...WHy is LTC Pinkela's case important ??

Not only does my case represent everything wrong with the UCMJ process, it also demonstrates the sad ever present reality of ignorance, fear and discrimination surrounding people living with HIV.

I urge you to take a moment, and read what a very brave young man has done in the case against me...not only does Mr Henney describe the lengths to which uniformed personnel went to fabricate a case, but the blatant abuse of authority, and lies to convince a military judge to convict an innocent man.

Primary witness calls for case to be dismissed against LTC Pinkela

Yes, I am the innocent man fighting for my Life and Dignity...but I am also the officer fighting for the dignity and integrity of the US Army I still love and believe in.

I have to maintain Hope in the senior leaders of the Army and in the power of social media, print media and the thousands of supporters who have signed my still growing petition to have my case reviewed.

My case is not part of the 34+ US states that have specific HIV criminalization laws on the books...my case specifically evolved from the fear and bias surrounding HIV and the ignorance about the "risks" and understanding How HIV is transmitted.

Neither the President, nor the US Congress, have ever included language authorizing the criminalization or prosecution of HIV in the UCMJ...READ IT...FACT CHECK IT

The continued prosecution stems solely from ignorant prosecutors and commanders (convening authorities) and the misguided opinions of the military appellate courts which refuse to apply the same equal standards of FACTUAL sufficiency and LEGAL sufficiency to HIV.

Look at my case...and the hundreds of other HIV prosecutions wrongfully under UCMJ.

Not one case has ever been the criminal malicious intent of infecting another person...ever!

Not one case has ever been held to the same judicial standards of "elemental" Law...NOT ONE!!

The cowardice use of "aggravated assault" without any element/fact/evidence of violence, intent, consent or harm ...

WHY is this allowed?  How can both military and civilian judges live with themselves allowing and upholding a conviction without any evidence?  How?

Here is how I want to tie this back to the title of this post...
Why is my case important?

First and foremost is that my entire case is a fraud and wrongful prosecution...no investigation, no facts or evidence, an admitted liar and now documented coercion and lies by uniformed Army JAG personnel...

Second, the case demonstrates the absolute the total breakdown in the process from start to finish...the lack of any check and balances to ensure the rights of the accused or the actual presence of a crime.  How could any Commander prefer and refer a case without an investigation or deny medical dna evidence which would clear and prove the allegation false?

Third, since this case is a federal case, it also demonstrates the clear disregard to both Presidential and Congressional authority of what or how the UCMJ is to be used/implemented in the Good Order and Conduct of the armed forces...the fraud waste and abuse of the SJA office in the Military District of Washington Fort McNair MUST be investigated...How was this case ever allowed to go this far? I'd beg and challenge US Senator Gillibrand to finally get involved in my case and see the FAILURES of the process that can be used to strengthen her mission to Reform the Military Justice System.  

If Secretary John McHugh, and now Under Secretary eric Fanning, have the personal and professional courage to REVIEW my case (don't listen to the TJAG staff...READ it themselves) it will show them both the terrible flaws that exist and that are allowed to take place...this is NOT how you run an Army...They have nothing to lose in this action and I beg them both to do so.

HIV is defined as a chronic manageable disease...codified in law but yet the Armed Forces continue to prosecute and use words calling HIV a death sentence...without ANY oversight.

The Obama administration has made enormous headways in the treatment, care and support of HIV.  The Department of Justice has even gone as far as to issue "Guidelines" to prosecutors on HIV.

Department of Justice Guidance on HIV Criminlization

But the Armed Forces, continue to ignore Presidential and Congressional guidance and destroy lives, families and careers NOT based on evidence but based solely on fear stigma and prejudice.

My case is a stain on the US Army, and I continue to say that I love my Army more then the officers who fabricated and brought this malicious wrongful case against me.

I am NOT afraid to show the flaws in my Army, because I know via 26+ years of service it is the ONLY way for us to Grow and Learn to become an even better Army.

I maintain that with the right support and honesty, my case can and will change the face of HIV Criminalization....

It will allow the Federal Government the solid ground on which they can STOP the wrongful discrimination and prosecution of people living with HIV...

Where the feds go the states can follow...HIV is a virus NOT a crime and it should be treated as such...

PLEASE REACH OUT to the US Army leadership and TELL them they MUST Review my case...Dismiss ALL charges and FIX the UCMJ System to never allow this to happen to another innocent soldier.

Turn It Up! A Valuable New Resource for People in Prison - The POZ Staff

Turn It Up! A Valuable New Resource for People in Prison - The POZ Staff