JIM TURNER v. U.S. NAVY
U.S. District Court, DC, 1998
[22 JUL 97]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JIM A. TURNER
Plaintiff,
v.
UNITED STATES NAVY, Office of General Counsel The Pentagon Washington, D.C. 20350;
THE HONORABLE WILLIAM S. COHEN, Secretary of Defense The Pentagon, Room No. 3E880 Washington, D.C. 20301-1000; and
THE HONORABLE JOHN H. DALTON Secretary of the Navy The Pentagon, Room No. 4E686 Washington, D.C. 20350-1000;
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Mark H. Lynch (D.C. Bar No. 193110), Allan B. Moore(D.C. Bar No. 429108), Erin M. Egan (D.C. Bar No. 452009)
Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 662-6000
Attorneys for Plaintiff Jim A. Turner
TABLE OF CONTENTS
A. THE "DON'T ASK, DON'T TELL, DON'T PURSUE" POLICY
4. The Procedural Requirements of the Policy
B. ARTICLE 15 NON-JUDICIAL PUNISHMENT PROCEEDINGS
C. ADMINISTRATIVE DISCHARGE PROCEEDINGS
1. The Discredited King and Poore Allegations
2. The Coerced Maurer Allegation
C. PLAINTIFF'S NON-JUDICIAL PUNISHMENT PROCEEDING
1. Events Immediately Before The Proceeding
D. PLAINTIFF'S ADMINISTRATIVE DISCHARGE PROCEEDING
E. PLAINTIFF'S APPEAL OF HIS NON-JUDICIAL PUNISHMENT
G. PLAINTIFF'S PETITION TO THE BCNR
COUNT ONE " VIOLATIONS OF THE "DON'T ASK, DON'T TELL" STATUTE AND THE ADMINISTRATIVE PROCEDURE ACT (10 U.S.C. ß 654; 5 U.S.C. ßß 701-06)
COUNT TWO - DENIAL OF DUE PROCESS OF LAW (U.S. Const. amend. V)
COUNT THREE - DENIAL OF EQUAL PROTECTION OF THE LAWS (U.S. Const. amend. V)
COUNT FOUR - DENIAL OF FREE SPEECH AND DUE PROCESS (10 U.S.C. ß 934; U.S. Const. amends. I, V)
JIM A. TURNER,
Plaintiff,
UNITED STATES NAVY; THE HONORABLE WILLIAM S. COHEN, SECRETARY OF DEFENSE; and THE HONORABLE JOHN H. DALTON, SECRETARY OF THE NAVY;
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff Jim A. Turner hereby alleges, by and through his attorneys, as follows:
1. This is an action for declaratory and injunctive relief against Defendants for unlawfully proceeding against, demoting, and discharging former Petty Officer Jim A. Turner from active duty in the United States Navy for alleged sexual misconduct in violation of the United States Navy's "Don't Ask, Don't Tell, Don't Pursue" policy.
2. In May 1994, because of unsubstantiated rumors that he might be gay, Plaintiff was subjected by the command of the USS ANTIETAM to two overlapping and rapid administrative proceedings in a highly charged and prejudicial shipboard atmosphere. Both proceedings were conducted unlawfully and without basic procedural protections. At the conclusion of the second proceeding, Plaintiff was adjudged to have used indecent language and to have solicited one of his fellow service members for homosexual oral sex. For these alleged offenses, Plaintiff was demoted and dishonorably discharged.
3. The two witnesses who originally accused Plaintiff of misconduct — Petty Officer John T. King and Seaman Apprentice Lee J. Poore — were notoriously unreliable individuals with histories of severe disciplinary problems. Both were known not to be credible or reliable persons at the time that they made their allegations against Plaintiff, and both were expressly so found, during the administrative proceedings, by the Navy itself.
4. The third witness who accused Plaintiff of misconduct - - Seaman Chad M. Maurer - - did not come forward of his own volition and made no allegations against Plaintiff when originally asked. Instead, Seaman Maurer was coerced and intimidated by improper, illegal, and abusive conduct and questioning into providing false accusations and false testimony.
5. Defendants' proceedings against Plaintiff, and their decisions to demote and dishonorably discharge him, have violated Plaintiffs legal rights under the United States Constitution; the "Don't Ask, Don't Tell, Don't Pursue" statute, directive, and regulations; and other federal laws and regulations.
6. This Court has jurisdiction under 28 U.S.C. ß 1331, 28 U.S.C. ß 2201, and 5 U.S.C. ß 702.
7. Venue is proper in this district under 28 U.S.C. ßß 1391(b) and 1391(e)(l)-(2).
8. Plaintiff Jim A. Turner is a 40 year-old former Navy petty officer, who provided outstanding service to the United States Navy for seven years and rose to the rank of Operations Specialist, Second Class ("OS2"), with an apparently imminent promotion to OS1, before his discharge on August 25, 1994. Plaintiff is currently a resident of [deleted].
9. Defendant United States Navy is a branch of the United States armed forces and a department of the United States government with its headquarters in the Pentagon building in Washington, D.C.
10. Defendant William S. Cohen is Secretary of Defense and maintains his principal place of business in the Pentagon. He is named here in his official capacity. In that capacity, Defendant Cohen has ultimate responsibility for the circumstances and conditions relating to Plaintiff's military service and his termination therefrom; for the regulations that govern military service for all citizens in all branches of the armed forces; and for ensuring the legality of all military policies and procedures. In this connection. Defendant Cohen is responsible for enforcement of the federal policy on homosexuality in the armed forces, as codified in the National Defense Authorization Act of 1994 (10 U.S.C. ß 654), as well as for the promulgation and implementation of all related regulations and procedures (see, e.g., DoD Dir. No. 1332.14; NAVADMIN 33/94).
II. Defendant John H. Dalton is Secretary of the Navy and maintains his principal place of business in the Pentagon. He is named here in his official capacity. In that capacity, Defendant Dalton has overall responsibility for the Navy and for the conditions, terms, and procedures that governed Plaintiff's service in the Navy. In addition, Defendant Dalton is directly responsible for the final decision to discharge or retain any naval servicemember on grounds of homosexuality, and through his designees, he specifically authorized Plaintiff's discharge here.
A. THE "DON'T ASK, DON'T TELL, DON'T PURSUE" POLICY
12. On November 30, 1993, Congress enacted the National Defense Authorization Act of 1994, Pub. L. No. 103-160, which the President signed into law. For the first time in the nation's history, this Act codified into federal law a nationwide policy regarding homosexuality and military service: the so-called "Don't Ask, Don't Tell, Don't Pursue" policy (10 U.S.C. ß 654).
13. One of the avowed purposes of the new policy is to prevent the arbitrary and capricious exercise of military authority in policing matters of sexual orientation - specifically, to end the practice of "witch hunts" against suspected homosexual service members that has occurred, from time to time, in certain military commands. Another avowed purpose of the new policy is to ensure that service members are properly protected against the hysteria and stigma that can be associated with an accusation of homosexuality in a military setting.
14. Under the policy, a service member is subject to involuntary discharge from the armed forces if he or she (1) "has engaged in, attempted to engage in. or solicited another to engage in a homosexual act or acts;" (2) "has stated that he or she is a homosexual or bisexual, or words to that effect;" or (3) "has married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. ß 654(b)(l)-(3).
15. The statute defines "homosexual act" to include:
A. any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
B. any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (a). 10 U.S.C. ß 654(f)(3).
16. A service member who is properly found, under the implementing regulations, to have engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts shall not be discharged but shall be retained if there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that -
A. such conduct is a departure from the member's usual and customary behavior;
B. such conduct, under all the circumstances, is unlikely to recur;
C. such conduct was not accomplished by use of force, coercion, or intimidation;
D. under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
E. the member does not have a propensity or intent to engage in homosexual acts. 10 U.S.C. ß 654(b)(l)(A)-(E).
17. On December 21, 1993, the Secretary of Defense, the late Les Aspin, issued two Department of Defense ("DoD") Directives specifying the procedures to be followed by the service branches in administering the new policy. DoD Directive No. 1332.14 governs the policy as it applies to enlisted service members, such as Plaintiff, and DoD Directive No. 1332.30 governs the policy as it applies to commissioned officers.
18. DoD Directive No. 1332.14, which Defendants applied to Plaintiff here, took effect on February 28, 1994, and is the Directive most relevant to this case.
19. On March 3, 1994, Defendant Dalton's designee, the Chief of Naval Operations, issued a Naval Administrative Message to all commands in the United States Navy to implement the new "Don't Ask, Don't Tell, Don't Pursue" policy, statute, and directives (NAVADMIN 033/94). This message relayed the policy throughout the United States Navy and effected its operation as a practical matter.
4. The Procedural Requirements of the Policy
20. DoD Directive No. 1332.14 promulgated, as an enclosure thereto, the governing "Guidelines for Fact-Finding Inquiries Into Homosexual Conduct." These guidelines establish the limited circumstances under which, and the circumscribed manner in which, inquiries may be undertaken into allegations of forbidden homosexual conduct by enlisted service members.
21. Under the Guidelines, "[o]nly the member's commander is authorized to initiate fact-finding inquiries involving homosexual conduct. " Guidelines, 1A.1.
22. The Guidelines also limit the circumstances under which an inquiry may be commenced. Specifically, they provide that "[a] commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge." Guidelines, 1A.1.
23. The Guidelines provide that:
Credible information exists when the information, considering its source and the surrounding circumstances, supports a reasonable belief that there is a basis for discharge. It requires a determination based on articulable facts, not just a belief or suspicion. Guidelines, 1C.1.
24. "Neither investigations nor inquiries will be conducted solely to determine an individual's sexual orientation." Memorandum of Secretary L. Aspin (July 19,1993), at 2.
25. The Guidelines specify that "credible information" does not exist when:
a. The individual is suspected of engaging in homosexual conduct, but there is no credible information, as described, to support that suspicion; or
b. The only information is the opinions of others that a member is homosexual: or
c. The inquiry would be based on rumor, suspicion, or capricious claims concerning a member's sexual orientation; or
d. The only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes. Such activity, in and of itself, does not provide evidence of homosexual conduct. Guidelines, 1C.3 (a)-(d).
26. By contrast, an allegation of impermissible homosexual conduct may constitute "credible information" sufficient to warrant an inquiry if the information meets the other requirements of the definition and comes from a "reliable person." Thus, credible information exists when:
a. A reliable person states that he or she observed or heard a servicemember engaging in homosexual acts, or saying that he or she is a homosexual or bisexual or is married to a member of the same sex; or
b. A reliable person states that he or she heard, observed, or discovered a member make a spoken or written statement that a reasonable person would believe was intended to convey the fact that he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or
c. A reliable person states that he or she observed behavior that amounts to a non-verbal statement by a member that he or she is a homosexual or bisexual; i.e., behavior that a reasonable person would believe was intended to convey the statement that the member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts. Guidelines, 1 C.4(a)-(c).
27. If authorized, a fact-finding inquiry must be conducted by the commanding officer or by a person he or she specifically appoints. Guidelines, 1 A.2.
28. The Guidelines strictly limit the scope of such inquiries:
Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether a member is a heterosexual, a homosexual, or a bisexual. However, upon receipt of credible information of homosexual conduct, commanders or appointed inquiry officials may ask members if they engaged in such conduct. Guidelines, 1 D.3.
29. Prior to questioning a member if he or she has engaged in homosexual conduct, "[t]he member should first be advised of the DoD policy on homosexual conduct (and [his] rights under Article 31, UCMJ, if applicable)." Guidelines, 1 D.3.
30. In addition, the Guidelines grant a member the right to "choose not to discuss the matter further." Guidelines, 1 D.3.
31. As a further check on overbroad inquiries, the Guidelines require that inquiries "be limited to the factual circumstances directly relevant to the specific allegations" (Guidelines, 1 A.3), and "[a]t any given point of the inquiry, the commander or appointed inquiry official must be able clearly and specifically to explain which grounds for separation he or she is attempting to verify and how the information being collected relates to those specific separation grounds" (Guidelines, 1 D.4).
32. The safeguards embodied in the Guidelines are intended to ensure that even "a service member who may be homosexual can serve under this policy without lying and without fear of 'witch hunts.'" Statement of Hon. Les Aspin, Policy Concerning Homosexuality in the Armed Forces: Hearings Before the U. S. Senate Comm. on Armed Services, 103d Cong., 2d Sess. 703 (July 20, 1993).
B. ARTICLE 15 NON-JUDICIAL PUNISHMENT PROCEEDINGS
33. Article 15 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. ß 815, sets forth procedures for the administration of "non-judicial punishment" ("NJP") by commanding officers in a military context.
34. Non-judicial punishment may be imposed only for "minor" offenses. 10 U.S.C. ß 815(b).
35. When determining whether a particular offense is "minor," commanders must consider the following factors:
the nature of the offense and the circumstances surrounding its commission; the offender's age, rank, duty assignment, record and experience; and the maximum sentence imposable for the offense if tried by general court-martial. Ordinarily, a minor offense is an offense which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than I year if tried by general court-martial. Manual for Courts-Martial ("MCM"), Part V, 1 l(e).
36. The administration and imposition of a non-judicial punishment must be conducted in a manner that is consistent with the "Don't Ask, Don't Tell, Don't Pursue" policy and other applicable federal laws and regulations.
37. Among other requirements, an NJP proceeding relating to an allegation of homosexual conduct (or any other allegation) cannot proceed without a properly authorized and properly conducted preliminary inquiry. See R.C.M. 303.
38. In addition, a servicemember must be properly notified of his alleged offenses prior to the initiation of an NJP proceeding (which is also known as a "captain's mast" proceeding, when conducted aboard ship in the Navy). MCM, Part V, 4(a).
39. Involuntary discharge is not a permissible form of non-judicial punishment. 10 U.S.C. ß 815; MCM, Part V, 5.
40. A service member who has been subjected to non-judicial punishment may not be subjected to multiple or increased punishments thereafter. MCM, Part V, I l(f).
C. ADMINISTRATIVE DISCHARGE PROCEEDINGS
41. Under DoD Directive No. 1332.14, when "homosexual conduct" is alleged as a basis for the involuntary separation of a service member, the "Administrative Board Procedure . . . shall be used." DoD Dir. No. 1332.14, enc. 3, att. 1, H.4 (Reasons for Separation).
42. Proceedings before administrative discharge boards ("ADBs") must comport with the requirements for such proceedings, as set forth in the DoD Directive and the applicable provisions of the Naval Military Personnel Manual ("NAVMILPERSMAN").
43. DoD Directive No. 1332.14 provides that an ADB must consider the following factors when deciding the issue of a member's separation or retention:
(1) The seriousness of the circumstances forming the basis for initiation of separation proceedings, and the effect of the member's continued retention on military discipline, good order and morale.
(2) The likelihood of continuation or recurrence of circumstances forming the basis for initiation of separation proceedings.
(3) The likelihood that the member will be a disruptive or undesirable influence in present or future duty assignments.
(4) The ability of the member to perform duties effectively in the present and in the future, including potential for advancement or leadership.
(5) The member's rehabilitative potential.
(6) The member's entire military record.
DoD Dir. No. 1332.14, enc. 3, att. 2, A.2.d(l)-(6) (Guidelines on Separation and Characterization).
44. A discharge under "Other Than Honorable Conditions" is permissible only in the following circumstances:
a. When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Services.
b. When the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Military Services. Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other members of the Military Services, and deliberate acts or omissions that seriously endanger the health and safety of other persons. DoD Dir. No. 1332.14, enc. 3, att. 2, C.2.b(3)(a)(l)-(2) (Guidelines on Separation and Characterization); see also DoD Dir. No. 1332.14, enc. 3, att. I, H.3 (Reasons for Separation).
45. With respect to the characterization of service, DoD Directive No. 1332.14 further states that:
In every case in which characterization of service Under Other Than Honorable Conditions is recommended, the record of the Board's proceedings will be reviewed by a judge advocate or civilian attorney employed by the Military Department prior to action by the Separation Authority.
DoD Dir. No. 1332.14, enc. 3, att. 3, If C.6.b (Procedures for Separation).
46. Plaintiff enlisted in the United States Navy on September 3, 1987, with the intention of making his service to the Navy a life-long career.
47. Throughout his seven years of service, Plaintiff received excellent performance reviews, extremely high commendations, and consistently strong recommendations for advancement. His service to the Navy has been exemplary, and his talents and performance have been deeply valued by his superiors and subordinates alike and by the Navy as a whole.
48. In or about November 1987, after completing basic training in Great Lakes, Illinois, Plaintiff entered operations specialist "A" school in Dam Neck, Virginia. Because of his outstanding performance there, the company commander appointed Plaintiff as "class leader" for his class of over 40 students.
49. Plaintiff's first duty station after graduation from Dam Neck in March 1988 was the USS MAHLON S. TISDALE (FFG-27), a guided missile ship stationed in San Diego, California, which conducted missions in both the Eastern and Western Pacific regions. Plaintiff excelled in his service aboard the TISDALE. advancing to Operations Specialist, Third Class ("OS3") in July 1988.
50. On or about October 7, 1988, the Commanding Officer of the USS TISDALE, P.D. Leibendguth, chose Plaintiff as USS TISDALE's "Junior Sailor of the Quarter" for the fourth quarter of 1988. In his citation, Commanding Officer Leibendguth wrote:
You have displayed those rare qualities most sought in today's Navy . . . Your dynamic leadership, initiative, maturity, and exceptional professional performance are admired by both peers and subordinates alike. A polished understanding of the communications suite on board the TISDALE sets you apart from your peers, as does a rare blend of personal candor, mature judgment, and self-starting motivation.
51. On or about November 3, 1988, the Commander of Surface Squadron One, Captain H.E. Bailey, similarly selected Plaintiff as the Surface Squadron One "Junior Sailor of the Quarter" for the fourth quarter of 1988. In his citation, Bailey commended Plaintiff for his "sustained outstanding performance." He further wrote: "You have consistently demonstrated an exceptionally high degree of military and professional excellence that marks you as a valuable member of the command. "
52. On or about December 31, 1988, Plaintiff was selected as the TISDALE's "Sailor of the Year." Commanding Officer Oliver Hazard Perry III commended Plaintiff for "perform[ing] all duties in a uniformly outstanding manner, " concluding that Plaintiffs "[t]otal reliability and sound judgment enabled [him] to complete all assigned tasks with exceptional results."
53. In early 1989, Plaintiff was also selected as the Surface Squadron One "Sailor of the Year" for 1988. In presenting this award. Captain H.E. Bailey stated:
Petty Officer Turner's extraordinary professionalism, initiative and loyal dedication to duty reflected great credit upon himself and were in keeping with the highest traditions of the United States Naval Service.
54. In July 1989, Plaintiff was promoted to Operations Specialist, Second Class ("OS2").
55. During his subsequent deployment with the TISDALE in 1990 to the Northern and Western Pacific regions. Plaintiff controlled the airspace and operations for numerous aircraft during several search-and-rescue missions. During one of these missions, he played an integral part in the rescue of 23 shipwrecked Korean sailors.
56. On or about May II, 1990, the TISDALE's Executive Officer, Lieutenant Commander J.E. Grause, recognized Plaintiff as "TISDALE's number one air controller. "
57. On or about April 24, 1991, the TISDALE's subsequent Executive Officer, Lieutenant Commander L.M. Henry, noted that Plaintiff "is driven by an unflinching desire to make everything in his area of responsibility flawless, streamlined, and smooth running. . . . A self-starter . . . , he performs his own duties, then assists others on his own time. He starts early and stays late to get the job done."
58. In May 1991, Plaintiff received a Letter of Commendation from the Commander of Surface Squadron Five, Captain H.A. Torok, who commended Plaintiff for "displaying exceptional skill and resourcefulness" and for helping to "maintain (his) watch section at maximum operational efficiency, contributing to the outstanding readiness posture of the ship."
59. On or about July 31, 1991, the TISDALE's Executive Officer. Lieutenant Commander L.M. Henry, described Plaintiff as a "self starter with [a] desire for challenge. Demands high standards of performance from self and subordinates. "
60. On or about December 9, 1991, Plaintiff was re-billeted to the USS ANTIETAM (CG-54), an Aegis-class cruiser stationed at Long Beach, California and scheduled for a January 1992 deployment to the Western Pacific region.
61. On or about September 8, 1991, soon after reporting for duty aboard the ANTIETAM, Plaintiff received a Good Conduct Award from the ANTIETAM's then-Commanding Officer, Captain R.J. Natter.
62. On or about March 31, 1992, in Plaintiff's first evaluation aboard the ANTIETAM, Lt. Commander M.E. Kosnik, the ship's Executive Officer at the time, reported that "[Petty Officer] Turner's performance was outstanding. Quickly establishing himself as a frontrunner, [Petty Officer] Turner became an integral member of ANTIETAM's Aegis Combat team. During his short time on board ANTIETAM, his supervisory skills and leadership have proven highly effective and reliable. "
63. In July 1992, Plaintiff received a Letter of Commendation from Rear Admiral B.M. Bennitt, Commander of Carrier Group Five and the Carrier Strike Force for the Seventh Fleet and Commander of the Battle Force for the Seventh Fleet. Admiral Bennitt wrote:
Displaying meticulous attention to detail, [Petty Officer Turner] spent countless hours personally ensuring that precise data reporting and plotting standards were maintained. His diligent efforts inspired all who observed him and contributed to the accomplishment of ANTIETAM's mission.
64. On or about April 1993, the ANTIETAM's then-Executive Officer, Michael D. Palatas, noted the following in his evaluation of Plaintiff:
Petty Officer Turner's performance has been superb. He is an integral part and significant contributor to ANTIETAM's Combat Information Center. His experience, knowledge and skill support every aspect of his division's administration and supervision . . . . He consistently obtains outstanding results in all assigned tasks.
65. In the fall of 1993, the Navy gave Plaintiff another Letter of Commendation for his meritorious service, while serving as air controller during a search-and-rescue operation. In this commendation, Captain G.L. Hanson wrote:
Demonstrating the highest degree of technical knowledge, flexibility, forethought, and meticulous attention to detail, he assumed control of up to six aircraft for over six consecutive hours. His excellent air control, airspace management and coordination procedures for numerous aircraft resulted in safe and efficient flight situations.
66. In a letter dated October 5, 1993, Lt. Commander K.J. Bickel wrote the Command Advancement Program Board to recommend Plaintiff for advancement to Operations Specialist First Class ("OS1"). Bickel noted:
Petty Officer Turner's dynamic leadership, maturity, and initiative combine smoothly with his experience, knowledge and skill in all warfare areas second to none.
67. On April 10, 1994, in Plaintiffs annual evaluation aboard the USS ANTIETAM, Executive Officer Palatas acknowledged that Plaintiff is "the most experienced ASTAC [Air Surface/Subsurface Tactical Air Controller] on board ANTIETAM" with "an unparalleled level of operational skill and systems knowledge." Based on Plaintiffs "acute level of awareness normally expected of more senior petty officers," "dynamic leadership skills," and "sound technical knowledge," Palatas "strongly recommended" Plaintiff for "immediate advancement to operations specialist first class."
68. But for the proceedings at issue in this case and his subsequent discharge, Plaintiff almost certainly would have been promoted to OS1 on or about July 16, 1994.
69. During April and May 1994, Plaintiff was billeted as an ASTAC aboard the ANTIETAM performing operations in the Persian Gulf.
1. The Discredited King and Poore Allegations
70. On or about April 26, 1994, Petty Officer John T. King, a fellow crew member aboard the ANTIETAM and a sailor with a remarkably poor record and reputation, crafted an allegation against Plaintiff with the assistance of and, upon information and belief, at the instigation of the ANTIETAM's Chief Master-at-Arms ("CMAA"), Chief Petty Officer C.M. Clanahan.
71. King accused Plaintiff of three pertinent acts.
72. First, King alleged that, on April 24, 1994, Plaintiff offered to perform oral sex on King for $50.00 on the ANTIETAM's forward port breezeway. King alleged that he refused this request.
73. Second, King alleged that, on the following day, April 25, 1994, Plaintiff wrote down "$75.00" on a radar scope repeater and showed it to King, while he and Plaintiff were on watch aboard the ANTIETAM. King alleged that he ignored this message.
74. Third, King alleged that, on April 12, 1994, Plaintiff "put his hand on my leg and then brought it up to my groin. " King also alleged that another member of the ANTIETAM's crew, OS3 Nishon Barnes, witnessed this alleged incident.
75. At the time that he made these three allegations against Plaintiff, Petty Officer King was widely known aboard the ANTIETAM to be "off the wall," unreliable, and not credible.
76. For example, at the time that he made these allegations. King was known to have engaged in the following misconduct:
b. stealing cigarettes from a store while on shore leave;
c. failing to perform his duties;
d. drinking excessive amounts of alcohol; and
e. upon information and belief, engaging in other gross misconduct aboard the ship and elsewhere.
77. On or about April 27, 1994, King's close friend and protege, Seaman Apprentice Lee J. Poore, crafted a similar allegation against Plaintiff with the assistance of, and, upon information and belief, at the instigation of King and CMAA Clanahan.
78. Specifically, Poore alleged that, in or about September 1993, Plaintiff, Poore, and three other enlisted members of the ANTIETAM's crew — Seaman Chad M. Maurer, Seaman Apprentice J. Ryan Barnett, and Seaman Apprentice Anderson - left the ship while in port in Long Beach, California to watch some football on television and drink beer at a nearby hotel. Poore alleged that, after the two had finished a card game and were alone in the hotel room. Plaintiff threw Poore on the bed and stated that he was going to perform oral sex on Poore.
79. Poore alleged that he resisted this advance, left the hotel room, and waited outside until Maurer, Barnett and Anderson returned, at which time he alleged that he informed them of what had occurred.
80. At the time that he made his allegation against Plaintiff, Seaman Apprentice Poore was known to be susceptible to undue influence by Petty Officer King, whom he regarded as a close friend. Poore made the foregoing allegation against Plaintiff only after first speaking with King and being urged by King to do so.
81. At the time that he made his allegation against Plaintiff, Poore -- like King -- was also widely known aboard the ANTIETAM to be unreliable and not credible. He, too, had a poor record and reputation.
82. For example, at the time that he made his allegation, Poore was known to have engaged in the following misconduct:
a. illegal gambling, which resulted in a "captain's mast" proceeding and stiff disciplinary action against him, including 15 days of restriction and extra duties and graduation from an inferior boot camp unit;
b. drinking excessive amounts of alcohol;
c. failing to appear for mandatory treatments for alcoholism; and
d. upon information and belief, engaging in other gross misconduct aboard the ship and elsewhere.
83. Despite having both an obligation and abundant grounds to question their reliability. Defendants accepted the accusations of King and Poore at face value. Defendants failed to conduct a full, proper, and impartial fact-finding inquiry.
84. Among other shortcomings, Defendants declined to question most of the individuals whom King and Poore had identified as their allegedly corroborating witnesses. Had they done so. Defendants would have learned that none of these allegedly corroborating witnesses could have supported the accusations against Plaintiff.
85. Defendants initiated both NJP and administrative discharge proceedings against Plaintiff on the basis of the unsubstantiated and unreliable allegations of King and Poore.
86. During Plaintiff's administrative discharge proceedings (but significantly, not during his NJP), Defendants fully and finally conceded that King and Poore were not reliable witnesses and that their accusations against Plaintiff could not be credited.
2. The Coerced Maurer Allegation
87. On or about April 27, 1994, after King and Poore had crafted and presented their allegations against Plaintiff, another member of the ANTIETAM's crew, Seaman Chad M. Maurer, was ordered to report to the ship's Executive Officer, Commander Michael D. Palatas, for questioning.
88. At the time. Seaman Maurer was a known friend and associate of Plaintiff.
89. When Seaman Maurer reported for questioning. Executive Officer Palatas directly asked him whether he wished to present an accusation against Plaintiff.
90. Upon information and belief, Seaman Maurer considered this question odd. Seaman Maurer told Executive Officer Palatas that he had no accusation to make and that he perceived "nothing strange" about Plaintiff.
91. At the time that he so questioned Seaman Maurer, neither Executive Officer Palatas nor any other member of the ANTIETAM's command had any reasonable or lawful basis for asking Seaman Maurer if he had any such accusation to make against Plaintiff.
92. On or about April 28, 1994, despite Seaman Maurer's denial that he had any complaint to make against Plaintiff and his assertion that he perceived nothing strange about Plaintiff, Executive Officer Palatas ordered Seaman Maurer to report to CMAA Clanahan for further questioning.
93. At the time, CMAA Clanahan was widely known aboard the ANTIETAM for his penchant for extracting confessions from alleged witnesses and wrongdoers and for bragging about his alleged talents in this regard.
94. Upon information and belief, in response to CMAA Clanahan's questions. Seaman Maurer again denied that he had any complaint against Plaintiff.
95. On or about April 29, 1994, despite his repeated denials. Seaman Maurer was again ordered to report to CMAA Clanahan.
96. When Seaman Maurer reported to CMAA Clanahan, he was interrogated in a highly abusive manner and was led to believe that he was a criminal suspect - - not a potential victim, witness, or complainant.
97. For example, CMAA Clanahan turned off the lights in the room and then turned on a single light, which, upon information and belief, he directed toward Seaman Maurer. CMAA Clanahan then took off his shirt and placed his feet up on the desk. Upon information and belief, CMAA Clanahan then engaged in a variety of other, intimidating and highly abusive conduct and questioning, including threatening Seaman Maurer that his requested early separation from the Navy would not be approved if he did not make an accusation against Plaintiff.
98. Upon information and belief, Seaman Maurer found this interrogation to be a highly stressful and distressing experience.
99. During this second interrogation, CMAA Clanahan directly asked Seaman Maurer whether he was a homosexual. This question was unlawful.
100. In response, Seaman Maurer stated that he was not a homosexual.
101. At no time, either before or after he was questioned by CMAA Clanahan, was Seaman Maurer advised of his rights under the Don't Ask, Don't Tell, Don't Pursue policy or other relevant military laws.
102.. In response to and solely as a result of CMAA Clanahan's coercive and threatening interrogations. Seaman Maurer ultimately agreed, under duress, to make a sworn allegation of sexual misconduct against Plaintiff.
103. Accordingly, on or about April 29, 1994, with the assistance of and, upon information and belief, at the instigation of CMAA Clanahan, Seaman Maurer crafted an allegation against Plaintiff.
104. Seaman Maurer's allegation included three events.
105. First, Seaman Maurer alleged that, on or about February 11 or 12, 1994, while on a recreational gambling trip with Plaintiff in Laughlin, Nevada, he woke up naked in the hotel room that he was sharing with Plaintiff, and "panic went through [his] mind because [Plaintiff] may have undressed [him]. " Maurer further alleged that he had consumed 12-14 hard-liquor drinks during the previous night and that he did not "recall anything" due to this intoxication, and he further alleged that, "at no time," did he ever ask Plaintiff "if anything had occurred."
106. Second, Maurer alleged that, a few days later, on or about February 15, 1994, while he was riding in Plaintiffs car after sharing a meal with him at a pizza place. Plaintiff asked to perform oral sex on Maurer. Maurer alleged that he refused this request and asked Plaintiff to take him back to the ship.
107. Third, Maurer alleged that on or about April 16, 1994, Plaintiff approached him while he was working in the ANTIETAM's scullery and offered to perform oral sex on him for $40.00. Maurer alleged that he refused this request and walked away.
C. PLAINTIFF'S NON-JUDICIAL PUNISHMENT
108. On May 3, 1994, on the basis of the King, Poore, and Maurer allegations, the ANTIETAM's commanding officer, Captain J.L. Frank, instituted an Article 15 non-judicial punishment ("NJP") proceeding against Plaintiff.
109. Prior to the initiation of the NJP proceeding, Captain Frank did not engage in or authorize a proper fact-finding inquiry.
110. Prior to the initiation of the NJP proceeding. Captain Frank was already persuaded of the legitimacy and truth of the accusations against Plaintiff. Frank wanted to remove Plaintiff from his ship as quickly as possible, and he and his command proceeded in a fashion designed to achieve that objective without regard to the fairness or propriety of their actions.
1. Events Immediately Before The Proceeding
111. Shortly before the commencement of the NJP proceeding, Captain Frank and his command provided Plaintiff with several forms and documents, which they ordered him to sign.
112. First, on May 3, 1994, shortly before the commencement of the NJP proceeding, CMAA Clanahan handed Plaintiff a "Military Suspect's Acknowledgement and Waiver of Rights" form. Clanahan ordered Plaintiff to sign this form. This form advised Plaintiff, inter alia, that he (a) "ha[d] the right to consult with a lawyer prior to any questioning" and (b) had the right to have his lawyer "present during this interview. "
113. After reviewing this document. Plaintiff informed Clanahan, both verbally and through his execution of the document itself, that he wished to consult with a lawyer and have his lawyer present for the NJP and related questioning.
114. Despite Plaintiff's specific request, he was denied a lawyer for his NJP proceeding and his preparations therefor.
115. Upon information and belief, the command of the ANTIETAM knowingly and falsely allowed the Naval Central Command to be misinformed that Plaintiff had not requested a lawyer. In a message dated May 4, 1994 to the Naval Central Command from the Staff Judge Advocate for the commander of the ANTIETAM's cruiser-destroyer group, it was falsely reported that Plaintiff "did not desire to consult with counsel prior to electing rights" in connection with his administrative discharge proceeding, which was initiated after his NJP.
116. Nearly one year later, on or about April 18, 1995, Captain Frank admitted that his command "denied legal counsel" to Plaintiff in connection with his NJP proceeding. In explaining his denial of Plaintiff's request for counsel. Captain Frank claimed that a lawyer was not available at the time. This statement was and is knowingly false. On May 3, 1994, less than two hours after the conclusion of Plaintiffs NJP proceeding, the Navy ordered Plaintiff transferred off the ANTIETAM to Bahrain to visit with a lawyer, and on May 4, 1994, Plaintiff met with his appointed military lawyer.
117. Second, on May 3, 1994, shortly before the commencement of the NJP proceeding, CMAA Clanahan handed Plaintiff the three typed statements of King, Poore and Maurer along with a completed form entitled "Preliminary Inquiry Report." Clanahan ordered Plaintiff to sign this form, which already had been signed by Commander Palatas and Clanahan himself.
118. Although the NJP proceeding had not yet occurred, this "Preliminary Inquiry Report" indicated that the following actions had already been taken:
a. Plaintiff had been referred to "captain's mast" (i.e., NJP);
b. Plaintiff had been recommended for "Discharge."
119. Third, on May 3, 1994, shortly before the commencement of the NJP proceeding, CMAA Clanahan handed Plaintiff a document entitled "Report and Disposition of Offenses." Clanahan ordered Plaintiff to sign this document.
120. This "Report and Disposition of Offenses" charged Plaintiff and held him accountable for five offenses under the UCMJ and asserted a total of 12 specifications thereunder. These five alleged offenses were: (1) Indecent Assault, (2) Indecent Language, (3) Sodomy, (4) Soliciting Another to Commit an Offense, and (5) False Official Statement.
121. The Navy considered these offenses to be serious offenses at the time of Plaintiff's NJP proceeding, and they have repeatedly referred to them as serious offenses throughout the administrative proceedings in this case.
122. Fourth, on May 3, 1994, shortly before the commencement of the NJP proceeding, CMAA Clanahan handed Plaintiff a form entitled "Captain's Mast Accused Acknowledgment of Appeal Rights." Clanahan ordered Plaintiff to sign this form.
123. Although the NJP proceeding had not yet occurred, the aforementioned form suggested that Plaintiff already had been demoted in rank and notified Plaintiff of his apparent right to appeal his yet to be imposed non-judicial punishment.
124. Only after Plaintiff had been presented with and had signed the documents referred to in paragraphs 111 - 123 above, did the Navy commence Plaintiff's NJP proceeding. Captain Frank presided over this proceeding.
125. Aside from the testimony of King, Poore, and Maurer, all of which was presented in written form and all of which had been written by CMAA Clanahan, the Navy presented no other testimony or evidence at the NJP proceeding to support any of its five charges against Plaintiff.
126. During the NJP proceeding. Captain Frank declined to question King, Poore, or Maurer with respect to the substance of and circumstances surrounding their allegations, other than simply to ask them if they stood by their written statements. Upon information and belief, CMAA Clanahan had informed Messrs. King, Poore, and Maurer in advance of the NJP proceeding that they would not be asked any other questions and that they simply would be asked to note their adherence to the written statements that they previously had executed at Clanahan's request and instigation.
127. Captain Frank denied Plaintiff an opportunity to question his accusers.
128. After the Navy presented its case, each individual in Plaintiff's direct chain of command aboard the ANTIETAM below the ranks of Captain Frank and Executive Officer Palatas testified on Plaintiff's behalf, emphasizing his value to the Navy and his excellent record of performance and reliability.
129. The Navy presented no evidence to support its charge that Plaintiff had made any False Official Statements.
130. Upon the advice of a stateside civilian lawyer whom Plaintiff was able to reach, very briefly, by satellite before the NJP proceeding, and in accordance with the written form that he had signed earlier that morning, Plaintiff invoked his right to remain silent.
131. In response, Captain Frank became irate and banged his fists on the table, shouting derogatory remarks at Plaintiff. Captain Frank called Plaintiff a "homosexual pervert" and other profane terms and stated that Plaintiff was guilty of the worst sexual harassment and sexual perversion.
132. Considering the severity of the charges against Plaintiff, the NJP proceeding was extraordinarily rapid, taking less than 20 minutes from start to finish.
133. At the conclusion of the May 3, 1994 NJP proceeding. Captain Frank read aloud the charges against Plaintiff and stated his conclusion that Plaintiff was "guilty" as charged. The charges, as so read and ruled upon by Captain Frank, were substantially different from the charges set forth in the "Report and Disposition of Offenses" that CMAA Clanahan had previously provided to Plaintiff that same morning. Plaintiff was given no prior notice of the revisions in the charges against him.
134. On May 3, 1994, approximately 30 minutes after Plaintiff's NJP proceeding, CMAA Clanahan presented Plaintiff with a marked-up version of the prior "Report and Disposition of Offenses." This marked-up version, which had been signed by Executive Officer Palatas, contained handwritten revisions that corresponded to the charges, as read aloud and ruled upon by Captain Frank.
135. Specifically, in the revised Report, the Navy had crossed out Charge III (the Sodomy charge) and had added two new charges: (1) Charge VI charged Plaintiff with Assault with Intent to Commit Sodomy, in violation of Article 134 of the UCMJ, and (2) Charge VII charged Plaintiff with Conduct of a Nature to Bring Discredit upon the Armed Forces, also in violation of Article 134 of the UCMJ. CMAA Clanahan ordered Plaintiff to sign this revised Report, and Plaintiff did so, underneath his prior signature.
136. Thus, at the conclusion of the NJP proceeding. Captain Frank found against and punished Plaintiff for the six offenses identified in the revised Report and Disposition of Offenses — not for the five offenses for which Plaintiff had originally been charged and given notice.
137. Several minutes after Plaintiff signed this marked-up "Report and Disposition of Offenses, " CMAA Clanahan presented Plaintiff with a typed version of this same, revised Report and ordered Plaintiff to sign this typed version. Plaintiff did so.
138. Captain Frank then imposed non-judicial punishment upon Plaintiff, adding two punishments to the "Preliminary Inquiry Report," as described in paragraph 118 above. Specifically, Plaintiff was ordered to "forfeit" $644.00 in pay per month for two months and Plaintiff was reduced in rank to the next inferior pay grade (i.e., OS3).
139. At approximately 1:00 p.m. on May 3, 1994, within two hours of the conclusion of his NJP proceeding, Plaintiff was transferred by helicopter from the ANTIETAM to see his appointed military counsel, Lt. Andrew J. Waghorn, at the Navy's base in Bahrain.
140. On or about May 4, 1994, Plaintiff's counsel requested all documents pertinent to Plaintiff's case.
141. The Navy did not provide Plaintiff with all relevant documents that he requested, either at that time or later in the administrative proceedings.
D. PLAINTIFF'S ADMINISTRATIVE DISCHARGE PROCEEDING
142. On May 3, 1994, almost immediately after the conclusion of the NJP proceeding. Captain Frank provided Plaintiff with official written notice that he had initiated involuntary discharge proceedings against Plaintiff. This notice informed Plaintiff that he was:
being considered for an administrative separation from the naval service by reason of Homosexual Conduct as evidenced by your engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts and Misconduct due to Commission of a Serious Offense involving sexual perversion and sexual harassment as evidenced by your nonjudicial punishment of 03 May 1994.
143. In connection with this notice. Captain Frank took immediate steps to convene an administrative discharge board ("ADB") aboard the ANTIETAM.
144. The convening of an ADB for this purpose -- to seek Plaintiffs discharge for the same offenses that the command had just adjudicated by NJP -- was unlawful. It constituted an impermissible double punishment and an impermissible enhancement of punishment.
145. In addition, in the wake of the just-concluded NJP proceeding, the ANTIETAM plainly did not and could not provide a fair and impartial setting for the conducting of an ADB proceeding against Plaintiff relating to the same alleged offenses. Captain Frank was aware of this fact. Yet, rather than take steps to protect the rights of the accused and the fairness of the anticipated ADB, he and his command took steps to minimize the possibility that Plaintiff would receive a fair ADB hearing.
146. For example, upon information and belief, on or about May 4, 1994, Captain Frank broadcast the results of Plaintiff's NJP proceeding over video monitors throughout the ship.
147. Within a few short days, the rumors surrounding Plaintiff's NJP had reached far beyond the decks of the ANTIETAM to the Naval base in Bahrain and even to the ANTIETAM's home port of Long Beach, California, thousands of miles away. Rumors and hysteria concerning Plaintiff's alleged homosexual misconduct swept quickly through the ship, tainting the pool from which the members of any shipboard ADB would be drawn.
148. On May 21, 1994, the Navy flew Plaintiff and his counsel, Lt. Waghorn, back to the ANTIETAM in preparation for the ADB proceeding, which was scheduled to begin within a few hours of their arrival.
149. At Lt. Waghorn's request, the ADB was postponed, but only until the following day. May 22, 1994. As a result, Lt. Waghorn was denied a sufficient opportunity to interview witnesses and to prepare his client's case.
150. On May 22, 1994, in a highly charged shipboard atmosphere, Plaintiff's ADB proceeding took place before a panel composed of three members of the ANTIETAM's crew. Each member of the panel was under the direct command of Captain Frank and was accountable to Captain Frank.
151. As its "charging sheet" for the ADB, the Navy used the re-typed version of the revised, partially handwritten "Report and Disposition of Offenses" from Plaintiff's NJP proceeding. Before the ADB proceeding began, each member of the panel had heard rumors surrounding Plaintiff's NJP and alleged sexual misconduct; each member of the panel knew that Plaintiff was already found to have committed these same offenses at his NJP proceeding and had been punished for them; and each member of the panel further knew that their collective commanding officer, Captain Frank, considered Plaintiff "guilty" of the offenses charged.
152. Due to his limited time aboard the ship, the absence of relevant witnesses, and his inability to investigate the matter fairly and fully, Lt. Waghorn was handicapped in the representation that he was able to provide to Plaintiff.
153. At the commencement of its case, on May 22, 1994, the Navy first called Seaman Apprentice Poore to testify at the ADB proceeding.
154. Poore's testimony was inconsistent and contradicted his prior statements and allegations. Poore also admitted facts undercutting his credibility.
155. The Navy next called Seaman Barnett in an effort to corroborate Poore's allegations. This effort was not successful. Bamett's testimony consisted of a hearsay recitation of what he claimed Poore had told him. Barnett also contradicted several statements in Poore's testimony.
156. The Navy next called Seaman Maurer to testify.
157. Maurer also contradicted Poore's testimony in significant respects.
158. In testifying about his own allegations, Maurer admitted that he made no allegation against Plaintiff when originally asked and only presented his allegations after CMAA Clanahan had interrogated him and had treated him like a suspect.
159. The Navy next called Petty Officer King to testify. In his testimony, King confessed to a variety of misconduct and admitted that he was regarded as "off the wall" by many aboard the ship.
160. The Navy next called Petty Officer Nishon Barnes in an effort to corroborate one of King's allegations — specifically, King's assertion that, on April 12, 1994, Plaintiff had improperly touched King's groin. This effort was not successful. Barnes testified that he did not see Plaintiff touch King's groin.
161. After the Navy presented its case. Plaintiff presented several witnesses from the ANTIETAM's crew who testified before the ADB about Petty Officer King's reputation as a "troublemaker" and the fact he was well known as "not credible."
162. Plaintiff also presented several crew members who testified about Plaintiff's invaluable skills and his history of excellent and reliable professional conduct.
163. For example, Operations Specialist First Class Craig Drumwright. Plaintiff's immediate supervisor, identified Plaintiff as an "outstanding operations specialist" and stated that he believed Plaintiff to be "the best ASTAC on board."
164. Operations Specialist Third Class James M. Kelly similarly testified that Plaintiff is "outstanding" and "knows his rate as an operations specialist better than any we have."
165. Aviation Electronics Technician, Second Class Davis A. Stacconni testified that Plaintiff was "extremely valuable to the Navy" and that he had "never come across anyone with more experience and better handling of things, both when the aircraft is up or [during] any of the other exercises we do."
166. Stacconni also noted CMAA Clanahan was an "aggressive investigator" and had "often bragged about being able to get people to implicate others."
167. Plaintiff also testified in his own defense at the ADB proceeding and staunchly denied the allegations of King, Poore, and Maurer.
168. Plaintiff also noted that, when he was 23 years-old, his fiancÈe had been murdered, and after that horrific incident, he had buried himself in his work.
169. Plaintiff also submitted supporting character statements from several individuals with whom he worked aboard the ANTIETAM on a daily basis.
170. For example, Petty Officer First Class Michael Pauli's statement read, in part: "Plaintiff has shown himself to be an excellent operations specialist" who has "never given me cause to question his behavior at any time."
171. Petty Officer Frank Cabral, who worked with Plaintiff every day and often up to ten hours per day, stated in relevant part: "In my opinion, Petty Officer Jim A. Turner is bar none the finest ASTAC I have had the pleasure of serving with in my 13 1/2 year career. He is the example of professionalism."
172. At the conclusion of the proceeding, at 3:45 p.m. on May 22, 1994, the ADB adjourned to deliberate. It returned with its findings, less than two hours later, at 5:05 p.m. that afternoon.
173. The Board found, by a vote of 3-0, that Plaintiff had not committed misconduct due to the commission of a serious offense involving sexual perversion.
174. By the same vote, however, the Board found that Plaintiff had committed misconduct due to the commission of a serious offense involving sexual harassment. The Board recommended that Plaintiff be discharged under an "other than honorable" characterization.
175. Specifically, with respect to all of Petty Officer King's allegations, the Board found for Plaintiff. The Board determined that Petty Officer King was an "uncredible witness," and it refused to credit any of his allegations or testimony against Plaintiff: "Anything that had to do with [King] was thrown out."
176. With respect to Seaman Apprentice Poore's allegation of indecent assault, the Board also found for Plaintiff. The Board determined that Poore's testimony was inconsistent and unreliable and that Plaintiff had not indecently assaulted turn.
177. With respect to Seaman Maurer's allegation that he "woke up naked" in Plaintiff's presence on or about February 11 or 12, 1994. the Board similarly found for Plaintiff. The Board determined that there was no evidence that Plaintiff had committed an indecent assault in connection with this alleged incident.
178. With respect to Charges IV, V, and VI - - which charged Plaintiff with False Official Statements, Assault with Intent To Commit Sodomy, and Conduct of a Nature to Bring Discredit upon the Armed Forces, respectively -- the Board similarly found for Plaintiff.
179. The Board found in favor of the Navy and against Plaintiff on two charges relating to Seaman Maurer.
180. First, the Board found that Plaintiff had used Indecent Language with Seaman Maurer on or about February 15, 1994, and on or about April 16, 1994.
181. Second, on the basis of the same allegations and testimony, the Board found that Plaintiff had Solicited Another To Commit an Offense by allegedly soliciting Seaman Maurer for oral sex on or about February 15, 1994, and on or about April 16, 1994.
182. In explaining its findings, the Board evidenced substantial confusion over what it had decided.
183. In particular, it is unclear from the Board's explanation of its decision whether it found that Plaintiff had engaged in Indecent Language and improper Solicitation in connection with Seaman Apprentice Poore on or about September 1993.
184. Because the Board found that Poore regarded the allegedly indecent and soliciting statement by Plaintiff to be "horseplay" and a "joke," any finding that this alleged statement occurred could not support a finding against Plaintiff, on either of these two charges, as a matter of law.
185. In addition, Poore did not allege any unlawful Solicitation, and there was no allegation, evidence, or testimony to support any such charge in the first place.
E. PLAINTIFF'S APPEAL OF HIS NON-JUDICIAL PUNISHMENT
186. On May 14, 1994, prior to his ADB proceeding. Plaintiff filed an administrative appeal of his NJP with the Commander of the ANTIETAM's cruiser-destroyer group. Rear Admiral V. E. Clark, the designated NJP appeal authority.
187. On May 22, 1994, in response to Plaintiff's NJP appeal. Captain Frank submitted a letter to Admiral Clark.
188. Captain Frank's letter untruthfully stated he had offered Plaintiff an opportunity to question his accusers at the NJP proceeding.
189. In defending his failure to question witnesses who might corroborate or contradict the accusations against Plaintiff, Captain Frank stated:
"Each primary allegation described separate, isolated incidents. The only occurrence that one accuser stated was witnessed (Petty Officer Plaintiff placing his hand on OS3 King's leg - witnessed by OS3 Barnes), was one that easily could have been explained as horseplay or accidental conduct. Since proof of the motive behind that incident would be difficult, I chose not to pursue it."
190. This statement directly contradicted the effort of Captain Frank's command, on that same day, to prove this aspect of King's allegation against Plaintiff through testimony at the ADB proceeding.
191. On or about May 28, 1994, the Staff Judge Advocate for the NJP appeal authority, Lieutenant Commander Eric Geiser, sent a memorandum to Admiral Clark to summarize the NJP proceedings and to recommend a disposition of the NJP appeal.
192. In his letter, Geiser stated that Plaintiff "was taken to NJP for two instances of offering other service members $50 to let [him] perform oral sex on them. "
193. This statement inaccurately described and minimized the charges against Plaintiff and contradicted the record of the NJP proceeding. This statement also contradicted Geiser's earlier Naval message of May 4, 1994, which listed five of the six revised charges brought against Plaintiff at that proceeding.
194. On May 29, 1994, based on the inaccurate representations of Frank and Geiser, Admiral Clark denied Plaintiffs NJP appeal.
195. On June 4, 1994, in a Naval message to Washington. D.C., Captain Frank requested that Plaintiff be promptly transferred from the ANTIETAM, pending the decision of the Chief of Naval Personnel on whether to accept the ADB's discharge recommendation. Captain Frank stated that Plaintiffs continued presence aboard the ANTIETAM threatened to cause an "international incident." At the time that Captain Frank issued this message. Plaintiff already had been transferred off of the ANTIETAM to Bahrain.
196. On August 25, 1994, Defendants discharged Plaintiff from the Navy under other than honorable conditions.
197. On September 6, 1994, Rear Admiral H.C. McKinney affirmed Plaintiff's administrative separation under other than honorable conditions.
G. PLAINTIFF'S PETITION TO THE BCNR
198. On or about December 30, 1994, without the benefit of counsel and two months before his discharge, Plaintiff petitioned the Board for the Correction of Naval Records ("BCNR") to intervene. Plaintiff asked the BCNR to review the records of his NJP and ADB proceedings and to remedy the injustices that had occurred in those proceedings.
199. Nearly two years later, on April 9, 1996, the BCNR issued its decision. The BCNR found in favor of Plaintiff and rejected the Navy's arguments that it had acted properly in its proceedings against Plaintiff.
200. By a vote of 2-1, the BCNR recommended to Defendant Dalton that he correct Plaintiffs record by (a) overturning his NJP, (b) overturning his discharge, and (c) revising his official record to remove derogatory references arising from these proceedings.
201. The BCNR found, in part, that there was insufficient evidence to support the discharge recommended by the ADB:
[U]nsubstantiated allegations supported only by suspicion and rumor generated within the command do not constitute a preponderance of the evidence. . . . [We find] it extremely disturbing that an individual can be found guilty and labeled a homosexual without a modicum of corroborative evidence. In every instance except one, there were no witnesses to the alleged misconduct, and in the one incident were there was a witness, he could not really say what he saw. While [Captain Frank] may have been convinced the Petitioner had committed some, or all, of the offenses charged, [we] cannot ignore Petitioner's contentions of innocence and believed that suspicion and rumors may have greatly influenced the decisions of both [Frank] and the ADB in this case. Based on all of the foregoing, the majority firmly believes a preponderance of evidence did not support the imposition of NJP and the findings of the ADB which resulted in Petitioner's discharge from the service.
202. Recognizing that the ADB had based its decision entirely on Seaman Maurer's testimony, the BCNR further noted:
[T]here is a strong implication that [Seaman Maurer's] allegation that he was solicited by Petitioner was made out of a fear that his early separation would not be approved if he did not so allege. Further, [Maurer's] testimony clearly indicates that he would not have made a statement had he not been ordered to report to CMAA [Clanahan]. His testimony also indicates that the portion of his statement to the effect that he was offered money for sexual favors, came only after the CMAA asked if such had happened.
203. In a brief separate statement, one member of the BCNR dissented from the majority opinion.
204. On May 30, 1996, despite the BCNR's carefully reasoned opinion, Defendant Dalton's designee. Deputy Assistant Secretary Karen Heath, literally rubber-stamped and approved the dissenting recommendation and rejected the BCNR's decision.
205. The Deputy Secretary provided no explanation or reason for rejecting the decision of the BCNR.
COUNT ONE: VIOLATIONS OF THE "DON'T ASK, DON'T TELL" STATUTE AND THE ADMINISTRATIVE PROCEDURE ACT (10 U.S.C. ß 654; 5 U.S.C. ßß 701-06)
206. Plaintiff hereby incorporates and realleges paragraphs 1-205, as if fully set forth herein.
207. On the basis of the facts alleged above and for such further reasons as Plaintiff may prove at or before trial, Plaintiff hereby alleges that Defendants have acted toward him in a manner that is: (a) arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law; (b) contrary to Plaintiff's constitutional rights, powers, privileges, and immunities; (c) in excess of Defendants' statutory jurisdiction, authority, limitations, and rights; (d) without observance of procedures required by law; and (e) without reasoned explanation, substantial evidence, or factual basis — all in violation of Plaintiff's rights under the "Don't Ask, Don't Tell" statute, 10 U.S.C. ß 654, and the Administrative Procedure Act, 5U.S.C. ß706.
208. Defendants' violations are evidenced, in part, by their disregard of 10 U.S.C. ß 654, DoD Directive No. 1332.14, and related laws and regulations, and by Defendants' mutual failure to oversee, enforce, and comply with such laws and regulations.
209. In particular, Defendants' violations include, without limitation, the following:
a. Initiating an investigation into alleged homosexual conduct in the absence of credible information that a basis for discharge existed;
b. Failing to follow mandatory fact-finding procedures and to limit the scope of an inquiry into alleged homosexual conduct to the factual circumstances directly relevant to the specific allegations that allegedly gave rise to the inquiry;
c. Specifically asking a servicemember and prospective witness if he is a homosexual;
d. Exercising threats, coercion, and other forms of improper duress upon individuals whom Defendants interrogated and upon whose false and unreliable testimony they relied;
e. Introducing new and different charges against Plaintiff without prior and proper notice thereof;
f. Failing to inform Plaintiff and other suspected individuals on whom Defendants' case relied of the terms of the military's new policy on homosexuality, including Plaintiffs right to present a case in rebuttal, and depriving Plaintiff of a reasonable opportunity to prepare and present a defense;
g. Failing to provide Plaintiff with counsel for his NJP proceeding after advising him of his right to have such counsel, and falsely stating that such counsel was not available;
h. Failing to provide Plaintiff with the complete record and relevant documents relating to his NJP proceeding to assist him in exercising the procedural and substantive rights guaranteed to him by applicable laws and regulations;
i. Failing to conduct a full and impartial investigation prior to initiating proceedings against and discharging Plaintiff;
j. Unlawfully proceeding against Plaintiff for allegedly "serious offenses" in an Article 15 proceeding and intentionally mischaracterizing the record of those proceedings on Plaintiffs appeal therefrom;
k. Corrupting Plaintiff's administrative discharge proceeding by conducting a prior, superfluous, and prejudicial Article 15 proceeding;
l. Punishing Plaintiff twice for the same alleged offenses and impermissibly enhancing Plaintiff's punishment;
m. Holding Plaintiff accountable for a charge that was not supported by any allegation or evidence (i. e., the alleged unlawful Solicitation of Seaman Apprentice Poore);
n. Unlawfully holding that an alleged statement that was found to be a "joke" could support a finding of unlawful Solicitation of Another To Commit an Offense under Article 134 of the UCMJ; and
o. Arbitrarily rejecting a just, reasoned, and corrective decision by the Board for the Correction of Naval Records, thereby rendering Plaintiff's right to petition that body a nugatory and meaningless avenue for redress.
COUNT TWO: DENIAL OF DUE PROCESS OF LAW (U.S. Const. amend. V)
210. Plaintiff hereby incorporates and realleges paragraphs 1-209, as if fully set forth herein.
211. On the basis of the facts alleged above and for such further reasons as Plaintiff may prove at or before trial. Plaintiff hereby alleges that Defendants have deprived him of due process of law, as guaranteed by the Fifth Amendment to the United States Constitution.
212. In particular, Defendants' violations include, without limitation, each and all of the unlawful actions specified in paragraph 209 above.
213. Further, to the extent that the Court may find that Defendants' actions are authorized by 10 U.S.C. ß 654, DoD Directive No. 1332.14, and/or related laws and regulations. Plaintiff hereby alleges that any such laws and regulations violate the guarantees provided by the Fifth Amendment to the United States Constitution and cannot stand.
COUNT THREE: DENIAL OF EQUAL PROTECTION OF THE LAWS (U.S. Const. amend. V)
214. Plaintiff hereby incorporates and realleges paragraphs 1-213, as if fully set forth herein.
215. On the basis of the facts alleged above and for such further reasons as Plaintiff may prove at or before trial, Plaintiff hereby alleges that Defendants have deprived him of equal protection of the laws, as guaranteed to him by the Fifth Amendment to the United States Constitution. Specifically, and without limitation, Defendants have deprived Plaintiff of equal protection by denying to him, as a suspected homosexual and/or as an individual suspected of engaging in forbidden homosexual conduct, the same rights, privileges, and protections that are accorded to heterosexuals and to individuals suspected of the commission of forbidden heterosexual conduct.
COUNT FOUR: DENIAL OF FREE SPEECH AND DUE PROCESS (10 U.S.C. ß 934; U.S. Const. amends. I, V)
216. Plaintiff hereby incorporates and realleges paragraphs 1-215, as if fully set forth herein.
217. , By proceeding against Plaintiff for an alleged "joke" and by holding that said joke either could or did constitute Solicitation of Another To Commit an Offense (notwithstanding that the alleged joke was never even uttered). Defendants have misconstrued the offense of Solicitation, as that offense is actionable under Article 134 of the UCMJ, 10 U.S.C. ß 934, and have deprived Plaintiff of his rights to freedom of speech and due process of law, as guaranteed by the First and Fifth Amendments to the United States Constitution.
218. By proceeding against Plaintiff for allegedly "indecent language" and by punishing and discharging Plaintiff on the basis of such allegedly " indecent language," Defendants have misconstrued the offense of Indecent Language, as that offense is actionable under Article 134 of the UCMJ, 10 U.S.C. 934 and have deprived Plaintiff of his rights to freedom of speech and due process of law, as guaranteed by the First and Fifth Amendments to the United States Constitution.
WHEREFORE, in respect of these claims, Plaintiff hereby prays for a judgment in his favor and relief that this Court:
1. Declare Plaintiff’s non-judicial punishment null and void;
2. Declare Plaintiff's discharge null and void;
3. Order Defendants to reinstate Plaintiff as a non-commissioned petty officer and an Operations Specialist, Second Class ("OS2"), on active duty in the United States Navy, in a billet comparable to the billet from which he was removed with the same opportunities for advancement that he previously had enjoyed;
4. Order Defendants to reinstate all of the rights, benefits and incidents of military service to which Plaintiff otherwise would have been entitled if his non-judicial punishment and dishonorable discharge had never occurred;
5. Order Defendants to remove any derogatory notations from Plaintiff’s official military record arising from or relating to the wrongful actions of Defendants that are the subject of this lawsuit;
6. Declare invalid and permanently enjoin Defendants from acting hereafter under any laws, regulations, or procedures that are shown to be unlawful in this lawsuit;
7. Award Plaintiff reasonable attorney fees and allowable costs of court: and
8. Provide Plaintiff any and all such further relief that the Court deems just and proper.
Respectfully submitted,
Mark H. Lynch (D.C. Bar No. 193110), Allan B. Moore (D.C. Bar No 429108), Erin M. Egan (D.C. Bar No. 452009)
Covington & Burling, 1201 Pennsylvania Ave., N.W. Washington. D.C. 20004 (202) 662-6000
Attorneys for Plaintiff Jim A. Turner
Dated: July 22,1997
