[Congressional Record Volume 140, Number 13 (Thursday, February 10, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: February 10, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
RESPECT FOR MEN AND WOMEN IN UNIFORM
(Mrs. SCHROEDER asked and was given permission to address the House
for 1 minute and to revise and extend her remarks and to include
extraneous material.)
Mrs. SCHROEDER. Mr. Speaker, the one thing every Member in this body
should work very hard to do is to see that our men and women in uniform
who are out there for our freedoms are treated with respect and
dignity, and the command is sending all the right messages.
As we know, in Tailhook they have dismissed all the charges because
the brave Navy captain who wrote the decision seemed to find exactly
the same thing that our new Navy Secretary found, and that was the CNO,
Mr. Kelso, happened to be at the event and sending all the wrong
messages to our young people that this was OK. Therefore, we have 88
victims and no one held accountable, because it appears Admiral Kelso
was winking at it.
This has been brushed aside twice now. I am putting this decision in
the Record. I hope every Member looks at this, and we call upon our new
Secretary of Defense, Mr. Bill Perry, to please, please act on this.
Otherwise I think it will look like we really do not care, and we
really do not think how young women are treated in our military is very
important, that an admiral is much more important than 88 women.
General Court-Martial, United States Navy, Tidewater Judicial Circuit,
Norfolk, VA
United States v. Thomas R. Miller, Cdr., USN, and United States v.
Gregory E. Tritt, Cdr, USN, and United States v. David Samples, Lt.,
USN
i. nature of motion
On motion through defense counsel, CDR Miller, CDR Tritt,
and LT Samples\1\ move this court to dismiss the charges
brought against them for the following two separate but
related reasons.
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Footnotes at end of article.
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First, that ADM Frank B. Kelso II, Chief of Naval
Operations (CNO) is an ``accuser'' within the meaning of
Article 1(9), Uniform Code of Military Justice (UCMJ).\2\
Further, that he was an ``accuser'' at the time he
appointed VADM Paul Reason, Commander Naval Surface Force,
U.S. Atlantic Fleet, to act as the convening authority in
their respective cases. The defense then argues that
pursuant to Rule for Courts-Martial (R.C.M.) 504, ADM
Kelso's status as an ``accuser'' must result in the
disqualification of VADM Reason from acting as the
convening authority. This would be true if ADM Kelso is an
``accuser,'' as R.C.M. 504 requires the disqualification
of any convening authority junior in rank or command.
Second, the defense contends that since ADM Kelso may have
been guilty of the same or similar crimes of omission as
those alleged against CDRs Miller and Tritt, his appointment
of a subordinate officer to act as convening authority
effectively shielded him from prosecution and thus amounted
to unlawful command influence within the meaning of Article
37, UCMJ.\3\
In support of these two broad contentions, CDR Miller, CDR
Tritt and LT Samples more specifically contend the following
chain of events:
(1) CDR Miller and CDR Tritt are charged, inter alia, with
being present and then failing to take action to stop
subordinate officers, including several officers assigned to
their command, from assaulting certain unidentified females
by touching them on the buttocks with their hands during the
1991 Tailhook Symposium (hereinafter ``Tailhook 91'').
(2) The alleged failure to act as well as the alleged
assaults on the unidentified females by the subordinate Navy
officers took place on the third floor pool patio of the Las
Vegas Hilton (hereinafter ``patio'') during the evening hours
of Saturday, 07 September 1991.
(3) ADM Frank B. Kelso II, CNO, was also present on the
patio on 07 September 1991 at or about the time these alleged
crimes took place.
(4) ADM Kelso later denied being present on the patio at
any time during the evening hours of Saturday, 07 September
1991. He likewise denied being in the third floor hallway or
in any of the various squadron hospitality suites at any
time.
(5) Subsequent to this interview, the Defense
Criminal Investigative Service (DCIS)\4\ obtained the
statements of a substantial number of eyewitnesses who
recalled seeing, and in some cases speaking with, ADM
Kelso on the patio during the evening hours of Saturday,
07 September 1991.
(6) Based on these eyewitness statements, ADM Kelso was
reinterviewed by DCIS on 15 April 1993. At this interview ADM
Kelso was advised of his rights under Article 31(b), UCMJ, as
a suspect. He was advised that he was under suspicion of
violating Articles 107 and 134, UCMJ (Making a False Official
Statement and False Swearing, respectively), both suspected
crimes stemming from his 23 July 1992 statement wherein he
denied being on the patio Saturday evening, 07 September
1991.
(7) That likewise on the prior evening, Friday, 06
September 1991, ADM Kelso was present on the patio, which he
acknowledges, and also in the third floor hallway and made
personal visits to the various squadron hospitality suites,
which ADM Kelso denies.
(8) That during this earlier Friday visit, ADM Kelso
witnessed inappropriate conduct occurring on the patio and in
the hospitality suites, including female ``leg shaving.''
This personal knowledge of innappropriate behavior by
subordinate officers, combined with his failure as the senior
Navy officer present to stop the behavior, is sufficient to
make ADM Kelso a suspect in the commission of the same type
of crimes (failure to act) alleged against CDR Miller and CDR
Tritt. At the very least he would be considered a material
witness to these events. That, furthermore, ADM Kelso's
personal knowledge and involvement with the misconduct at
Tailhook 91, and the subsequent publicity surrounding the
allegations of assault and failure of Navy leadership, have
so closely connected him with these events that he would
reasonably be preceived to have a personal interest in the
courts-martial of CDRs Miller and Tritt and LT Samples.
(9) On 01 February 1993, ADM Kelso personally appointed
VADM Reason to act as the Consolidated Disposition Authority
(CDA) to take administrative and disciplinary action for all
Navy personnel found to have committed misconduct at Tailhook
91. ADM Kelso further directed that all related matters
requiring review would be forwarded to his office for action.
The defense contends these events taken together lead to
the disqualification of the convening authority. In short,
they reason as follows: ADM Kelso's presence on the patio
during the evening hours of 06 and 07 September 1991, at
which times he either observed or knew of the inappropriate
behavior of his subordinates and failed to act to stop such
behavior; ADM Kelso's subsequent status as a criminal suspect
and as a potential material witness; and, the current
controversy regarding ADM Kelso's denial that he was ever
physically present on the patio during the evening hours of
07 September 1991--viewed either separately or
collectively--give him an interest ``other than official''
in the outcome of the prosecution of courtsmartial
stemming from Tailhook 91.
If ADM Kelso has an ``other than official interest'' in
this litigation generally or these three accused's cases
specifically, he is an ``accuser'' within the meaning of
Article 1(9), UCMJ. As an ``accuser,'' ADM Kelso was
disqualified from appointing any subordinate in rank or
command to convene a court-martial stemming from Tailhook 91,
and as a subordinate in rank and command to ADM Kelso, VADM
Reason became a ``junior accuser'' and was disqualified from
acting as the convening authority in these cases pursuant to
R.C.M. 504(c)(2).
Finally, that ADM Kelso's action in appointing a
subordinate, VADM Reason, to act as the CDA when ADM Kelso
knew himself to be a possible suspect for his own actions
related to Tailhook, 91, which appointment effectively
shielded himself and possibly other officers senior to VADM
Reason from courtsmartial, amounted to unlawful command
influence within the meaning of Article 37, UCMJ.
Briefly, the government generally denies the above
contentions and responds that ADM Kelso never visited the
third floor hallway or the hospitality suites during his stay
at Tailhook 91 and, although he did visit the patio on
Friday, he never went to the third floor at all on Saturday
evening, 07 September 1991. Further, since ADM Kelso never
personally witnessed any inappropriate conduct, he would not
be a material witness. That throughout this courtmartial
process, ADM Kelso has had only an official interest in the
litigation and has taken no action that would in any way
influence these proceedings. Finally, the government responds
that the evidence fails to establish that ADM Kelso has been
so closely connected to these events that a reasonable person
would conclude that he had more than simply an official
interest in the cases of CDRs Miller and Tritt and LT
Samples.
ii. background to tailhook 91
The defense claims that the nexus linking ADM Kelso's
personal involvement in Tailhook 91 to the charges before
this court does not arise from any single event. The defense
argues that ADM Kelso's personal involvement derives from all
of his connections with the events of these courts-martial
beginning with his knowledge of reported incidents of
inappropriate behavior at Tailhook Symposiums prior to 1991,
and continuing up to his appearance as a witness before this
court. In order to assess the merit of this claim by the
defense, and to bring Tailhook 91 events germane to the
defense issues into proper perspective, the court will begin
with an analysis of the evidence relating to the Navy's past
sponsorship of the Tailhook Association. This includes
reports of inappropriate behavior occurring at past Tailhook
Symposiums and the Navy's response to those reports.
This court finds that:
1. Tailhook 91 was held at the Las Vegas Hilton Hotel, Las
Vegas, Nevada, from 05 through 08 September 1991. It was
attended by hundreds of aviators, male and female, including
active duty, reserve, and retired officers from both the Navy
and Marine Corps aviation communities. Also in attendance
were many high ranking uniformed Navy and Marine Corps
officers and civilian Department of the Navy (DON) personnel,
including ADM Kelso and then Secretary of the Navy (SECNAV),
H. Lawrence Garrett III.
2. The Tailhook Symposium was an annual event sponsored by
the Tailhook Association. At the time of Tailhook 91, the
Association was officially sanctioned by the Department of
the Navy. However, following reports of alleged assaults on
female attendees and other inappropriate conduct at Tailhook
91, the Navy withdrew its support of the Association.
The stated purpose of the annual symposium was to provide a
single forum within the Navy and Marine Corps aviation
communities to address a broad range of matters affecting the
state and future of naval aviation. Tailhook 91 was to be
particularly significant since it provided an opportunity to
address the recent combat successes of ``Operation Desert
Storm,'' and a future aviation plan then under consideration
by the Congress. The future role of female aviators would
also be a major topic of discussion, which was one of the
primary reasons that ADM Kelso attended. See Appellate
Exhibit LXXII, p. 17.
3. Despite the worthy official purpose, the evidence is
replete with references to the annual symposium's long-
standing and widely-known reputation for wild partying, heavy
drinking, and lewd behavior by some attendees, particularly
junior aviators. Reports of such activities at past Tailhook
Symposiums had sparked concerns at the highest levels of the
Navy.
In 1986, VADM Martin, then serving as the Assistant Chief
of Naval Operations for Air Warfare (OP-05), formally
expressed his concerns in writing regarding inappropriate
behavior at the 1985 Symposium. See Appellate Exhibit CLXXXV.
This led to a routine practice by Tailhook Association
Presidents of sending a letter to aviation squadron
commanders prior to each annual symposium urging moderation
regarding social activities. CAPT Ludwig, then President of
the Tailhook Association, sent such a letter to squadron
commanders some weeks prior to Tailhook 91. In his
correspondence, CAPT Ludwig, being concerned with past
incidents of misbehavior among some symposium attendees,
urged squadron commanders to guard against what he termed
``late night gang mentality.'' See Appellate Exhibit CLXXXVI.
Col Wayne Bishop, USMC, former Special Assistant and Marine
Corps Aide to SECNAV, and who attended Tailhook 91 with
Secretary Garrett, harbored serious reservations concerning
both Secretary Garrett's and his own attendance at Tailhook
91. Col Bishop's concerns stemmed from reports he had
received of inappropriate behavior occurring at past Tailhook
Symposiums. This included what he described as:
``stories concerning pornographic movies, strippers and
prostitutes * * * lots of drinking, junior officers and
senior officers, flag officers, removing themselves from
their office for the purpose of discussing contentious
issues in the aviation community one-on-one.'' (Appellate
Exhibit CXL at pp. 14-18.)
VADM Dunleavy, who was serving as the Assistant Chief of
Naval Operations for Air Warfare (OP-05) at the time of
Tailhook 91, was also keenly aware of the social climate at
past Tailhook Symposiums. In his sworn statement to Mr.
Suessman, DCIS, of 28 July 1992, VADM Dunleavy acknowledged
his attendance at the 1990 Tailhook Symposium. In discussing
his knowledge of reported incidents of inappropriate behavior
at that Symposium, VADM Dunleavy stated,
``I've seen some wild stuff over the years * * * broken
furniture and spilled drinks * * *. I heard of the '90
Gauntlet from my son * * * he says it is a bunch of drunks
running around chasing girls * * *. It's a grab ass of JOs
[junior officers] * * * everyone just lines up in the
passageway and every good looking girl that goes through they
grab at some of that.'' (Appellate Exhibit LXXXII(A), pp. 7-
9.)
In commenting on the term ``late night gang mentality''
used by CAPT Ludwig in his letter to squadron commanders
prior to Tailhook 91, VADM Dunleavy stated, ``[t]he kids just
getting out of hand in the sense of dancing and, you know,
mooning people. * * *''
Secretary Garrett was also aware of the potential for
inappropriate activities at Tailhook 91. He attended the 1990
Tailhook Symposium, at which time he acknowledged witnessing
``female leg shaving'' activities. The potential for
inappropriate behavior at Tailhook 91 was also anticipated by
members of Secretary Garrett's personal staff. He was warned
by at least one highly vocal member of his staff not to
attend Tailhook 91 because of the well-known reputation for
lewd and inappropriate behavior. See Appellate Exhibit CXL at
pp. 14-18.
4. This court finds that this quantum of information
concerning the symposium's notorious social reputation prior
to Tailhook 91, and in particular the warnings given by VADM
Martin and CAPT Ludwig, could not have escaped Adm Kelso's
attention. It served to place him and other high ranking
officers on notice as to the social climate at past Tailhook
Symposiums, and the kind of social environment to expect at
Tailhook 91.
The failure by those responsible to take strong corrective
action regarding inappropriate behavior that obviously
occurred at past Tailhook Symposiums is incomprehensible. As
events have proven, this embarrassing failure of leadership
and ``head in the sand'' attitude, which conveyed a signal of
condonation, contributed to the sexually offensive conduct
which later escalated to the actual sexual assaults on female
attendees. This excusing attitude was underscored by
Secretary Garrett's in-court testimony that he did not
find the female leg shaving exhibition to be offensive. He
further stated that he viewed the female leg shaving to be
permissible as ``conduct between consenting adults.''
Excessive drinking, ``pornographic movies, strippers, and
prostitutes,'' all of which had been a well known part of
past Tailhook conferences were repeated again at Tailhook 91
as part of the planned activities in the hospitality suites.
Finally, the infamous gauntlet, in which male Navy officers
felt it was permissible to grab at any woman who walked
past--and which was at the heart of the complaints by female
attendees--was likewise a tradition of past Tailhook
conferences. It should go without saying that this behavior
should have never been permitted to start, having started
should have been swiftly ended, and that over the years of
permissive leadership had gotten completely out of hand. This
common knowledge of inappropriate and offensive behavior at
past symposiums and failure by senior Navy leadership to take
corrective action is an inseparable part of the motion before
this court.
5. Within days following Tailhook 91, LT Paula Coughlin, a
female aviator, was the first to formally complain to the
Naval Investigative Service (NIS) that she had been the
victim of an assault in the gauntlet on the third floor. In
the weeks that followed, other female attendees also came
forward to complain of being assaulted. The growing reports
of sexual assault quickly generated public outrage and a
demand by the Congress for an investigation to both identify
the assailants and secure individual accountability under the
UCMJ. It is the actions of ADM Kelso in carrying out his
codal role in the ensuing military justice process, and the
extent to which his own accountability and personal
involvement at Tailhook 91 may have affected the lawfulness
of this process, that have been called into question by the
defense.
III. ADM KELSO'S PERSONAL INVOLVEMENT AT TAILHOOK 91
ADM Kelso gave two sworn statements to DCIS investigators
on 23 July 1992 and 15 April 1993, respectively. See
Appellate Exhibits LXXII and LXXVIII. He also gave sworn
testimony before this court. See Transcript at pp. 349-
385. In both of his statements to DCIS and during his in-
court testimony, ADM Kelso acknowledged that during the
Tailhook 91 symposium he visited the patio of the Las
Vegas Hilton Hotel (Hilton) during the evening hours of
Friday, 06 September 1991. The patio adjoins the
hospitality suites and it was there that most of the
socializing and partying took place. Nevertheless, ADM
Kelso denied: (1) that he witnessed any inappropriate
behavior at any time; (2) that he visited any of the
squadron hospitality suites during his sojourn on the
patio Friday evening or at any other time during his two-
day visit; and (3) that he ever visited the patio on
Saturday evening, 07 September 1991.
Friday, 06 September 1991
This court finds the convincing weight of the evidence
reveals the following chain of events on Friday, 06 September
1991.
6. AMD Kelso arrived at Nellis Air Force Base, located near
Las Vegas, Nevada, at approximately 1700, to commence his
official visit at Tailhook 91. He was accompanied by members
of his personal staff which included CAPT Philip Howard, his
Executive Assistant (EA); Maj Mike Edwards, USMC, his Flag
Aide; Master Chief Roger Wise, his Flag Writer; and Petty
Officer Dubell, his Communicator. ADM Kelso was greeted by
LCDR Elizabeth Toedt, one of the Tailhook 91 VIP protocol
officers. LCDR Toedt escorted ADM Kelso and his official
party to the Hilton via limousines furnished by the Hilton.
See Appellate Exhibit CLXX.
7. They arrived at approximately 1730 and ADM Kelso was
greeted by CAPT Ludwig, President of the Tailhook
Association. Maj Edwards checked the Admiral into the hotel
and escorted him to his room, number 2124, located on the
21st floor. ADM Kelso settled into his room, changed into a
suit and tie, and made final preparations for his keynote
speech at the Friday evening reception and banquet. This
reception and banquet was scheduled to begin at 1900.
8. At approximately 1845, Maj Edwards met ADM Kelso at his
room and escorted him to the banquet room on the first floor
of the Hilton. While enroute, ADM Kelso informed Maj Edwards
that he would be going to the patio with VADMs Dunleavy and
Fetterman following the banquet. Maj Edwards did not attend
the banquet. After escorting ADM Kelso to the banquet room,
Maj Edwards went to survey the patio and the various squadron
hospitality suites in advance of AFM Kelso's visit.
9. The banquet was attended by some 800 people, including
VADM Dunleavy, VADM Fetterman, and a host of other flag
officers. CAPT Howard also attended the banquet. Following
the banquet, which ended at approximately 2100, Maj Edwards
escorted ADM Kelso back to his room to change clothes. ADM
Kelso changed into slacks and an open-collar sport shirt. At
approximately 2200, VADMs Dunleavy and Fetterman, CAPT
Howard, and Maj Edwards met with ADM Kelso at his room, and
escorted him down the center bank of elevators to the third
floor.
Tour of the hospitality suites
10. ADM Kelso testified that, upon arriving on the third
floor, he immediately entered the patio from the center bank
of elevators. ADM Kelso further testified that while on the
patio he remained in about a 30-yard radius, talking and
socializing. After about 40 minutes on the patio, he was
escorted back to his room by Maj Edwards. Transcript at 351.
However, VADM Dunleavy testified that after the Friday
evening banquet, he and VADM Fetterman escorted ADM Kelso to
the patio, and together they made a tour of the hospitality
suites. ADM Dunleavy specifically testified that: ``[A]fter
the President's dinner Friday night . . . my partner [VADM
Fetterman] and I escorted Kelso down, so that he could see
the JOs [junior officers] and chat with them. We spent about
probably 45 minutes to an hour down there, and then I
escorted the CNO out, and he went to his room, and I think I
went--Friday night, I think I went back down and spent some
more time with the JO's and then went back to my room,
probably about 11, 1130 . . . Yes, in fact, I escorted him
[referring to ADM Kelso] around, and we walked around. From
the patio, finally made a swing through the suites down the
passageway, up to another suite and back on the patio . . .
about 9:30, 9:45, immediately after the President's dinner .
. . . Yeah, but, you know, again we swing out through the
patio and then up, usually 128 because for me it is the
walkway in there and then back again.'' (Transcript at pp.
501, 504, 515.)
Maj Edwards' testimony also contradicts ADM Kelso's best
recollection of the route he took when he initially entered
the patio. In describing the route the party took onto the
patio from ADM Kelso's room, Maj Edwards stated, ``the party
entered the patio from the doorway near room 308, the Rhino
suite.'' Maj Edwards further stated, ``if ADM Kelso gave a
different account of the route onto the patio, he must have
been mistaken.'' Transcript at pp. 1088-1090. This court
finds Maj Edwards' testimony concerning this issue more
accurate since it corroborates, at least in part, the
detailed account given by VADM Dunleavy. Moreover, Maj
Edwards was more familiar with the patio area, having made
a tour of the section earlier in the evening.
Based on the convincing weight of the testimony given by
VADM Dunleavy, CAPT Howard and Maj Edwards, and despite ADM
Kelso's best recollection, this court finds the following
chain of events occurred relating to ADM Kelso's movements
during his visit to the third floor on Friday evening:
Upon arrival on the third floor, VADMs Dunleavy and
Fetterman, in company with CAPT Howard and Maj Edwards,
escorted ADM Kelso onto the patio through the exit from the
center bank of elevators. The group then walked past the
front center planters and turned left towards the third floor
hallway entrance from the patio adjacent to room 308, the
Rhino suite. They entered the third floor hallway from that
entrance and toured the various suites, during which time
they talked and socialized with junior aviators and others
present. Following a tour of the suites, the group exited
back onto the patio through the same doorway from which they
entered, where they spent a period of time talking and
socializing with others individually and as a group. Later,
ADM Kelso, VADM Dunleavy, CAPT Howard and Maj Edwards re-
entered the third floor through the entrance to the center
bank of elevators. Maj Edwards escorted ADM Kelso back to his
room. VADM Dunleavy and CAPT Howard returned to the patio.
Activities in the suites
This court further finds that ADM Kelso was exposed to, and
actually witnessed incidents of inappropriate decorum and
behavior while touring the various hospitality suites. More
specifically:
11. Based on VADM Dunleavy's testimony, this court finds
that both VADM's Dunleavy and Fetterman were keenly aware
that activities of questionable propriety were occurring in
the suites on Friday evening. In fact, VADM Dunleavy's
testimony strongly suggests that VADM Fetterman moved ahead
of him and ADM Kelso to alert unsuspecting aviators and
others of ADM Kelso's approach. This was done in order to
minimize ADM Kelso's exposure to untoward activities
occurring in the suites. Transcript at 507-508 . However, ADM
Kelso was unavoidably exposed, at the very least, to the
sexually oriented displays in the various suites, including
the Rhino suite's large and very visible rhino mural, adorned
with a ``dildo'' drink dispenser. See photographs, Appellate
Exhibits CXXXVIII, CXXXIX, and CXCVI.
12. This court further finds that indisputable evidence has
been presented showing that female ``leg shaving'' occurred
in at least one of the suites during Tailhook 91. The
occurrence of such activities is clearly and explicitly
revealed in photographs taken during Tailhook 91. See
Appellate Exhibit CXCVII. This court also finds that ``leg
shaving'' activities were occurring during the time that ADM
Kelso was on the patio and touring the various suites on
Friday evening with VADMs Dunleavy and Fetterman.
For example, in a sworn statement to DCIS investigators on
18 July 1992, LT John Wood, then attached to VF-124, declared
that he was on the patio from approximately 2200 to 2300 on
Friday evening. During that time he witnessed ``females
having their legs shaved in the VAW-110 suite.'' Appellate
Exhibit LXXVI, Attachment GG.
In a sworn statement to DCIS investigators on 09 December
1992, CAPT Daniel Whalen corroborated LT Wood's observation.
CAPT Whalen, then serving as the TQL Program Coordinator in
OP-05, related that he visited the patio on Friday evening
from about 2100 to 2300. During his visit, he observed ``leg
shaving'' occurring in the VAW-110 suite, room 303. Appellate
Exhibit CII. CAPT Whalen affirmed the accuracy of his 09
December statement during his in-court testimony. Transcript
at 553.
13. This court further finds that ADM Kelso actually
witnessed ``leg shaving'' activities on either Friday or
Saturday evening, or on both evenings.
For example, in his sworn statement to DCIS investigators
on 16 September 1992, Col Raymond Powell, USMC (Ret), stated
that he was on the patio on Saturday night, 07 September
1991, from approximately 2200 to 2300. He stated that during
that time, he spent approximately 20 minutes talking with
Secretary Garrett and a group of admirals including ADM
Kelso. At that time, according to Col Powell, they were
standing ``approximately 20 feet from the leg shaving suite,
and that women were lined up waiting to get into the suite.''
He also stated that someone in the group commented to the
effect that, ``the girls must like having their legs
shaved.'' Col Powell further stated, ``ADM Kelso walked in
front of the window to the `leg shaving' suite.'' (Appellate
Exhibit LXXVI, Attachment X.)
Activities on the patio
Even if one were to assume that ADM Kelso did not actually
witness female ``leg shaving,'' the evidence demonstrates
that he could not help but know that such activities were
occurring. In this respect, this court finds that:
14. The convincing weight of the evidence reveals that
while he was on the patio, the sign over the doorway to room
303, the VAW-110 suite, advertising ``Free Female Leg
Shaves'' was clearly visible to ADM Kelso. The sign was
reported to be more than 15 feet long. Further, this finding
is strongly corroborated by the testimony of both CAPT Howard
and Maj Edwards. Maj Edwards, who initially viewed the ``leg
shaving'' sign during his earlier tour of the patio area,
testified that he was standing near ADM Kelso on the patio on
Friday evening. Maj Edwards recalls the ``leg shaving'' sign
was plainly visible from his vantage point. He specifically
stated that, ``[f]rom about 20 feet away from the Admiral, I
could observe it * * *. It was pretty hard to miss * * *. It
was a fairly large sign. Transcript at 1103-1104.
CAPT Howard also testified that he viewed the ``leg
shaving'' sign during his visit to the patio with ADM Kelso
on Friday evening. In testimony mirroring that given by Maj
Edwards, CAPT Howard stated that, ``the sign was visible
at a distance of about 20 to 25 feet from where [he] and
ADM Kelso were standing.'' Transcript at pages 443-445.
15. ADM Kelso's exposure to ``leg shaving'' activities is
also corroborated by LT Rolando Diaz. In a Stipulation of
Expected Testimony, LT Diaz states that during Tailhook 91 he
set up a leg shaving suite (VAW-110 suite, room 303) and
placed a large banner across the entrance to the suite
advertising free leg shaves. He further states that at
sometime during either Friday or Saturday evening, he took a
break from leg shaving activities and walked out onto the
patio directly outside of the leg shaving suite. As he walked
out, he observed ADM Kelso, dressed in a yellow ``Izod''
sport shirt, standing with a group of 3 to 4 individuals
approximately 30 to 50 feet from him in the middle of the
patio between his suite and the VAQ suite (room 302). LT Diaz
states that ADM Kelso had a clear view of his suite and the
leg shaving sign. See Apellate Exhibit CLX.
16. This court further finds the evidence clearly reveals
that, in addition to ``leg shaving'' activities, incidents of
rowdy and indecent behavior involving public nudity occurred
in the third floor hallway, in the suites, and on the patio
during both Friday and Saturday evenings. The occurrence of
this kind of activity is clearly depicted in photographs
taken during Tailhook 91. Appellate Exhibit CXCVIII.
In this respect, this court finds that ADM Kelso actually
witnessed at least one such incident during his visit to the
patio on Friday evening. None of the evidence presented is
more convincing of this fact than the undisputed testimony of
CAPT Robert Beck, a Naval Reserve aviator and commercial
airline pilot who was in attendance at Tailhook 91. In
describing a conversation he had with ADM Kelso while on the
patio on Friday evening, CAPT Beck stated that he was well
acquainted with VADM Dunleavy, having worked for him for two
years while serving as Commanding Officer of a Reserve-Out
unit supporting OP-05. He also stated that he had previously
met and talked with ADM Kelso on several occasions in the
Navy Command Center in Washington, D.C. He further described
that ADM Kelso, in company with VADMs Dunleavy and Fetterman,
approached him while he was standing on the patio. He first
spotted the trio at a distance of 75 to 100 feet. As they
approached, he was greeted by VADM Dunleavy. Shortly
thereafter, ADM Kelso ``kind of presented himself,'' and they
began a conversation. As his conversation ensued, VADMs
Dunleavy and Fetterman moved away towards the suites. Moments
later, his conversation with ADM Kelso was interrupted by
chants from several men and women who were surrounding a
woman in the vicinity where they were standing. The few
individuals surrounding the woman quickly grew into a large
crowd, which he estimated numbered at least 100. According to
CAPT Beck's graphic description of the event, the crowd was,
``trying to allure the young lady into exposing her breasts
because they were shouting ``tits, tits, tits'' * * * after
about five or six of the chants, the admiral said to me,
``Am I hearing what I think I am hearing?'' and I said,
``Well, Admiral, if you think that you are hearing `tits'
shouted, yes, you are absolutely right.'' About 15 to 20
seconds later * * * the crowd aroused in claps and
hurraying, and one person in the center, and we could not
see the center of it because we were at the same level,
but I did and we could see the girl's top of her bathing
suit being held up in the air by someone * * * the admiral
turned to me and said, ``Well, I guess that's the end of
that,'' and I said, ``Well, maybe not, maybe not,
admiral.'' And subsequent to that, there was then a
chorus, the words (sic) ``bush'' being used several times,
and I was looking at the mass of humanity in front of me.
At that time, the admiral started walking away * * * the
security of the Hilton came and dispersed the crowd.''
(Transcript at 1000-1001.)
In addition to the photographs mentioned above, CAPT Beck's
testimony is also corroborated by the observations of LCDR
Joseph Fordham. In a statement to DCIS investigators on 27
October 1992, LCDR Fordham stated that he was standing on the
patio near the VA-126 suite on Thursday or Friday night at
which time he heard a group of men chanting, ``show us your
tits.'' When he turned to observe the scene, he witnessed two
women expose their breasts. He further stated that ``the
women were not being coerced'' and were ``laughing'' during
the incident. Appellate Exhibit LXXVI, Attachment I.
Saturday, 07 September 1991
The court next turns to the issue of whether ADM Kelso was
ever present on the patio on Saturday evening, 07 September
1991.
17. This court finds that ADM Kelso's movements and
activities during the morning, afternoon, and early evening
hours of Saturday, 07 September 1991, are not in dispute. He
departed the Hilton at approximately 0700 in the company of
CAPT Howard for an official visit to a classified area
located near Nellis Air Force Base. He returned to the Hilton
around 1400. At approximately 1500, he attended a ``Flag
Panel,'' which ended at approximately 1700. At approximately
1800, ADM Kelso attended an official awards banquet on the
first floor of Hilton, which featured Secretary Garrett as
the guest speaker.
18. What is in dispute, however, is whether ADM Kelso ever
visited the patio following his departure from the banquet
and prior to his departure from the Hilton to Nellis Air
Force Base for his return trip to Washington, D.C. The
defense opines that this was the approximate time period
numerous indecent assaults occurred in the third floor
hallway and on the patio. The assaults were perpetrated upon
female officers and civilian attendees in the hallway of the
third floor and on the patio. It was also during this time
that CDRs Miller and Tritt were on the patio, and
allegedly failed to prevent several of their subordinate
officers from touching females on their buttocks.
As noted earlier, ADM Kelso testified that he never visited
the patio on Saturday evening. He also testified that he
never witnessed any assaultive or inappropriate behavior
during that evening. The court now turns to the voluminous
body of evidence presented on these most contentious issues.
Attendance at the ``Flag Panel'' and Saturday evening banquet
This court finds from the evidence that:
19. Secretary Garrett arrived at Tailhook 91 around 1400 on
Saturday, 07 September 1991. Shortly following his arrival,
he joined ADM Kelso and CAPT Howard in attendance at the
``Flag Panel.''
20. At approximately 1700, ADM Kelso departed the ``Flag
Panel'' in the company of CAPT Howard, Secretary Garrett, and
Col Wayne Bishop, USMC, Secretary Garrett's Executive
Assistant (EA). Secretary Garrett invited ADM Kelso and CAPT
Howard to accompany him and Col Bishop to view the
symposium's exhibit area. ADM Kelso declined the invitation
explaining that he had already viewed the exhibits. ADM Kelso
and CAPT Howard then entered one of the first floor center
elevators and proceeded to their individual rooms to rest and
to prepare for attendance at the Saturday evening reception
and banquet.
21. Maj Edwards did not attend the ``Flag Panel'' with ADM
Kelso. He participated in a 5K running event during the time
of ADM Kelso's Saturday morning/early afternoon official
activities. Upon his return to the Hilton, Maj Edwards
discovered that ADM Kelso had already departed the ``Flag
Panel'' and returned to his room. He then went to see ADM
Kelso in his room to ensure that he was properly informed as
to the time of the banquet and the required dress. Transcript
at 241, 1081.
22. At approximately 1830, Maj Edwards returned to ADM
Kelso's room to escort him to the banquet, scheduled to begin
at 1900. ADM Kelso was wearing a suit and tie and he wore
these to the banquet. ADM Kelso and Maj Edwards were joined
by CAPT Howard on the way to the banquet room located on the
first floor of the Hilton. Maj Edwards did not attend the
banquet. Upon arrival at the banquet area, Maj Edwards parted
company with ADM Kelso and CAPT Howard.
23. During the banquet, ADM Kelso sat at the head table
with a number of high ranking dignitaries, including
Secretary Garrett who was the keynote speaker. Following the
banquet, and prior to leaving the banquet room, Secretary
Garrett, VADM Dunleavy, ADM Kelso, and other senior officers
engaged in conversation about making a visit to third floor.
During his in-court testimony, ADM Kelso acknowledged that he
engaged in ``some general discussion'' with Secretary Garrett
and VADM Dunleavy following the banquet. Transcript at pp.
352, 388, 427-428, 503.
The question of ADM Kelso's visit to the patio
The defense initially submitted thirty-four Reports of
Interview (ROI)\7\ in support of their averment that ADM
Kelso visited the patio on Saturday evening. The ROI's were
prepared by DCIS investigators from notes taken during oral
interviews of Tailhook 91 attendees. The vast majority of
interviews were conducted during a period from approximately
July 1992 to January 1993, some 8 to 14 months following
Tailhook 91. Of the thirty-four attendees who were subjects
of the ROI's, ten appeared as in-court witnesses, and five
were the subjects of stipulations of expected testimony. The
testimony of one of the nine who testified in court, Ms.
Karye LaRocque, was withdrawn by the defense and disregarded
by the court. The defense also withdrew the ROI relating to
the statement of LCDR Paul LaRocque. All remaining ROI's,
with related corrections or clarifications noted by counsel
on the record, were considered by the court together with all
other evidence of record. However, the court gave the
greatest weight to the ROI's which were augmented by in-court
testimony or by stipulations of expected testimony. See
Appellate Exhibit CXCIV.
In addition to the ROI's and related derivative testimony,
the defense and the government presented the testimony of
other witnesses and numerous documents in support of their
respective positions.
Key evidence
The court further finds that:
24. In evaluating the key evidence in support of the
defense position that ADM Kelso did, in fact, visit the patio
on Saturday evening, the following corroborating facts
supporting this contention were established by the evidence.
More specifically, this court finds that:
(a) The patio area was well-lighted, making identification
more certain.
(b) ADM Kelso's distinctive physical features make him
easily recognizable, a fact which was noted by a number of
witnesses.
(c) The vast majority of the witnesses observed ADM Kelso
on the patio between 2130 and 2300, and close in time with
the surge of banquet attendees coming onto the patio.
(d) ADM Kelso was observed by a large number of witnesses
in the same general area of the patio, that is, along the
front of the patio between the entrance to the center bank of
elevators and the planters. Compare testimony of witnesses to
related diagrams of the patio, Appellate Exhibits XCVII, CV,
CXVIII.
(e) A number of witnesses observed ADM Kelso in the company
of Secretary Garrett on the patio. Since Secretary Garrett
did not arrive at Tailhook 91 until Saturday afternoon, this
minimizes the likelihood these witnesses were confusing
Friday and Saturday evenings.
(f) A number of witnesses observed ADM Kelso conversing
with the young aviators on the patio on either Friday or
Saturday evening, or on both evenings. VADM Dunleavy strongly
encouraged the many flag officers in attendance to engage in
one-on-one social interaction with junior aviators. This was
a part of the Tailhook 91 agenda. Transcript at p. 1021. The
purpose of this interaction was to elicit the views and true
feelings of the junior aviators regarding the state of naval
aviation. ADM Kelso stated to Mr. Suessman during his 23 July
1992 interview that he was most interested in obtaining the
views of all attendees regarding the Navy's aviation plan for
the future. As noted earlier, he was especially interested in
obtaining the views of junior male aviators regarding the
issue of expanding the role of female aviators. The evidence
reveals that many of the junior aviators spent the majority
of their time socializing and conversing on the patio and in
the various squadron hospitality suites. Thus, it was in
these areas that the flag officers, including ADM Kelso,
found the greatest opportunity to meet and talk with junior
aviators one-on-one.
25. This court further finds that many of the eyewitnesses
gave persuasive detailed accounts of their observations of
ADM Kelso's presence on the patio on Saturday evening,
notwithstanding disparities regarding exact times, modes of
dress, and specific locations. Moreover, a number of the
witnesses insisted that their recollections were uncommonly
clear not only because of that rare and memorable opportunity
of seeing the CNO and SECNAV in person, but also because of
other memorable events surrounding their personal activities
during Tailhook 91, and Saturday evening in particular. These
key witnesses include: CAPT James Terrill, USN; CDR Kathleen
Ramsey, JAGC, USN; LCDR Richard Scudder, USN; Col Raymond
Powell, USMC (Ret); CDR John Hoefel, USN; CDR David Cronk,
USN; LCDR James Quinn, USN; CDR Richard Martin, USN; CAPT
Robert Nordgen, USN (Ret); CDR George Ghio, USN; Capt Ronald
Rives, USMCR; and LT John Moriarty, USN.
26. CAPT James Terrill, currently assigned to the staff of
Commander Naval Air Force, Atlantic (COMNAVAIRLANT),
testified with confidence concerning his observation of ADM
Kelso on the patio on Saturday evening. CAPT Terrill was
previously interviewed by DCIS investigators, however, he
stated that he was never asked during the interview to
comment on whether ADM Kelso was ever present on the
patio. He added that his knowledge of ADM Kelso being on
the patio on Saturday evening was discussed with the
COMNAVAIRLANT Staff Judge Advocate, CDR Tom Taylor, after
he had read an article in a local Tidewater area newspaper
that ADM Kelso's presence on the patio was in question. In
discussing the article's speculation regarding the
location of ADM Kelso on Saturday evening, CAPT Terrill
stated that he commented, ``Well, I know where he was.''
His discussion with CDR Taylor was later brought to the
attention of one of the defense counsel, and this resulted
in his being called as a witness.
In describing his activities on Saturday evening, CAPT
Terrill testified he did not attend the banquet. Following
dinner at the Hilton, he went up to the third floor patio to
visit with friends. He stated he was not wearing a watch, but
estimated he arrived on the patio around 2000, and departed
at approximately 2200. CAPT Terrill testified further that
just after finishing a conversation, he looked up to see who
else was on the patio. At that moment he observed ADM Kelso
about one arm's length to his left and Secretary Garrett
about one arm's length to his right, and that both were
engaged in conversation with separate groups. He estimated
that his observation of ADM Kelso and Secretary Garrett
occurred sometime between 2130 and 2200. He stated that he
was sure, however, that his observation occurred shortly
after he observed ``all of the suits coming in from the
banquet.'' This was one of the reasons he recalled that the
sightings occurred on Saturday night rather than Friday. CAPT
Terrill further stated that he was able to recognize ADM
Kelso from ``numerous exposures, videos and pictures.'' He
also stated that he was embarked on several aircraft carriers
in the Mediterranean during the time ADM Kelso was the Sixth
Fleet Commander, and he had seen him in person several times.
He further stated he recognized Secretary Garrett from
photographs, both official and unofficial. See Transcript at
pp. 688-701.
27. CDR Kathleen Ramsey, JAGC, USN, currently a sitting
military trial judge, was interviewed by an NIS special agent
on 14 November 1991, only five weeks following Tailhook 91.
At that time, the question of whether ADM Kelso was present
on the patio at any time during Tailhook 91 was not at issue.
In fact, as will be addressed later in a separate finding,
the evidence reveals that the NIS investigation never focused
on the conduct or accountability of any flag officer in
attendance at Tailhook 91, nor were any flag officers or high
ranking civilian officials ever interviewed during the NIS
investigation. (See Finding of Fact 63.) During the NIS
interview, CDR Ramsey stated that she was on the patio on
Saturday evening between 2200 and 2330, during which time she
observed Secretary Garrett, ADM Kelso and VADM Dunleavy in
the pool area. See Appellate Exhibit LXXVII.
In a stipulation of expected testimony, CDR Ramsey
related that although she could not now swear to seeing
either Secretary Garrett or ADM Kelso on the patio that
evening due to the lapse of time, she believes her
statement to NIS was accurate at the time she gave it. In
describing her activities, she stated she attended
Tailhook 91 with her husband, CAPT Robert Ramsey, an
aviator who retired from the Navy in July 1993. In a
detailed description of events, she stated she and her
husband attended the Saturday afternoon ``Flag Panel.''
Later at approximately 1800, they attended the Saturday
evening banquet featuring Secretary Garrett as the guest
speaker. Following the banquet, which concluded sometime
between 2100 and 2130, she and her husband went directly
to the third floor pool patio area. She stated that they
entered the patio through the revolving doors leading from
the elevators to avoid the hallway or the hospitality
suites. She did not want to transit either of these areas
because of an incident that occurred during the 1988
Symposium, at which time someone threw drinks on her in
the hallway. In confirming the accuracy of her prior
statement to NIS concerning her observation of Secretary
Garrett, ADM Kelso and VADM Dunleavy, CDR Ramsey explained
that they did not appear to be together. She believed she
was near the NSWC suite (room 305) at the time she
observed ADM Kelso, and she recognized him because of his
distinctive eyebrows. She also stated she spoke to VADM
Dunleavy, exchanging pleasantries. See Appellate Exhibit
CXXXVI.
28. LCDR Richard Scudder, assigned to HS-3, NAS
Jacksonville, Florida, furnished an oral statement to DCIS
investigators on 28 September 1992. See Appellate Exhibit CX.
With the exception of several minor corrections, he confirmed
the accuracy of his 28 September statement during his in-
court testimony.
LCDR Scudder testified that he attended the Saturday
evening banquet, which ended between 2100 and 2115. Following
the banquet, he returned to his room to change into casual
clothing. He immediately departed his room and set out to
find his commanding officer, who was lodged at the hotel
``Circus Circus,'' to inform him of a time change for their
Sunday morning return flight to NAS Cecil Field, Florida. On
the way to the hotel, he decided to make a swing through the
third floor patio to determine if his commanding officer
might be in that area since he had been unable to reach him
earlier by telephone. He moved around the patio area and
through several of the suites but did not see his commanding
officer. As he was departing the patio area at approximately
2200, he observed Secretary Garrett, ADM Kelso, and VADM
Dunleavy. LCDR Scudder testified that they were all in a
group surrounded by what he described as ``well-wishers and
smoozers.'' He further stated that all three appeared to be
dressed in casual clothing, except that Secretary Garrett
looked at if he had only taken off his necktie. Transcript at
pp. 642-662.
29. Col. Raymond Powell, USMC (Ret), gave a statement to
DCIS investigators on 16 December 1992, which was
referenced earlier in Finding of Fact number 13. He was
requested by the defense as an in-court witness, but was
unable to appear due to physical incapacitation. However,
when questioned by both defense and government counsel, he
confirmed the accuracy of the ROI summarizing his prior
oral statement.
In describing his activities, Col Powell reported he was on
the patio for approximately forty-five minutes on Saturday
night, the only night he visited the patio. He further stated
that during that time, he spent about 20 minutes talking to
Secretary Garrett and a group of admirals, including ADM
Kelso. Col Powell also stated that they were standing about
20 feet from the leg shaving suite where women were lined up
to get their legs shaved. He stated that someone in the group
commented, ``the girls must like to have their legs shaved.''
Also, according to Col Powell, he observed ADM Kelso walk in
front of the window to the leg shaving suite. See Appellate
Exhibit LXXVI, Attachment X.
30. CDR John Hoefel, then assigned as VAQ-131 Executive
Officer, provided a statement to DCIS investigators on 30
October 1992. He reported observing ADM Kelso on the patio on
Saturday evening. See Appellate Exhibit CXI. With the
exception of several minor corrections, CDR Hoefel confirmed
his 30 October statement during his in-court testimony.
In describing his activities and observations, CDR Hoefel
testified that he was sure he observed ADM Keslo on the patio
on Saturday evening because he had retired to bed very early
on Friday night. He explained further that around 1900 on
Saturday evening he had dinner with two of his friends, CDRs
Lane and Waltman. The trio returned to the Hilton at
approximately 2100 and went directly to the third floor
patio. CDR Hoefel further stated that he staked out an area
in the vicinity of the VAQ-129 suite, room 302, near a large
planter with a ledge that was comfortable for sitting. He
stated he had a good view of the patio area from his
location, and of the individuals passing nearby. He stated
that while he was in that area someone in his group
exclaimed: ``There's Secretary Garrett!'' He stated he was
not familiar with Secretary Garrett, but when he looked to
his right, he observed ADM Keslo and VADM Dunleavy in company
with the individual identified as Secretary Garrett. He
stated that when he saw ADM Keslo and VADM Dunleavy the
thought came to him, ``here are some people who have a large
impact on your career.'' He further stated that the trio
appeared to be looking over the patio, and it was his
impression they had just entered the patio from the elevators
since he was aware the banquet had broken up some thirty
minutes earlier. He stated that he observed the trio for
about five minutes before they left the area. CDR Hoefel
explained to the best of his recollection ADM Keslo and VADM
Dunleavy were wearing blue blazers and gray slacks. When
asked how he was able to identify ADM Keslo, CDR Hoefel said,
``ADM Keslo's not the tallest man in the world and he has a
face that looks like it's got a lot written on it * * * a
heavily lined face.'' Transcript at pp. 663-683.
31. CDR David Cronk, VAQ-309 Executive Officer, gave
a statement to DCIS investigators on 09 November 1992. See
Appellate Exhibit CIII. At that time, CDR Cronk stated he
observed Secretary Garrett, ADM Kelso, and VADM Dunleavy
on the patio on Saturday evening. Except for several minor
corrections, he confirmed the accuracy of his 09 November
statement during his in-court testimony.
CDR Cronk testified that he arrived on the patio on
Saturday evening between 2030 and 2100. He stated that around
2200 that evening he observed ADM Kelso, VADM Dunleavy, and
someone who he believed to be Secretary Garrett. Although he
was not sure of the exact time, he remembered it was shortly
after the banquet ended. He mentioned that when he spotted
them he remembered saying: ``Hey, there's SECNAV and CNO and
Dunleavy.'' In describing the incident, he also stated that
one of his friends, CDR ``Kilo'' Parks, went over and talked
to someone in the group. When Parks returned from the group,
he was given ``some verbal abuse about sucking up to the
senior guys.'' CDR Cronk testified he was certain it was
Saturday evening. He stated that he stayed up very late on
Thursday night and actually watched the sun rise on Friday
morning. He explained that he did not recall going to the
third floor anytime on Friday night, and he was in bed by
around 2000 that evening. He also stated that a glass window
was broken that evening. (The window was broken on Saturday,
see Appellate Exhibit CXLIV.) He remembered glass falling and
thinking to himself, ``God, I'm glad nobody was standing
under that.'' Transcript at pp. 583-600.
The court notes that CDR Kenneth ``Kilo'' Parks provided an
oral statement to DCIS investigators on 03 November 1992. At
that time CDR Parks stated he was on the patio on Saturday
night; however, he did not state that he talked to Secretary
Garrett, ADM Kelso, or VADM Dunleavy. He stated he observed
VADM Dunleavy on the patio on both Friday and Saturday
nights. He further stated he had only heard that Secretary
Garrett and ADM Kelso were on the third floor on Saturday
night. However, this court finds CDR Cronk's account more
credible since he appeared as an in-court witness. Further,
CDR Parks' reference to the third floor could mean the
hallway, the suites, or the pool patio. See Appellate Exhibit
CLXXXII.
32. LCDR James Quinn, then assigned as the Operations
Officer, COMFITAEW WINGPAC, gave an oral statement to DCIS
investigators on 14 July 1992. LCDR Quinn stated that he
attended the awards banquet on Saturday evening, 07 September
1991. In describing the occasion, he stated that he sat
beside CAPT Jim Burin, a member of his group, who received
the Carrier Airlift Award, and J.A. Campbell, who received
the Tailhook of the Year Award for his work during
``Operation Desert Storm.'' He further stated that following
the banquet, he was on his way to the third floor and he
observed Secretary Garrett, ADM Kelso and VADM Dunleavy enter
an elevator. He entered the next elevator and arrived on the
third floor immediately following the elevator carrying
Secretary Garrett, ADM Kelso and VADM Dunleavy. He followed
the group to the patio. See Appellate Exhibit CXXVII.
In response to a message inquiry seeking to confirm his 14
July 1992 statement, LCDR Quinn does not mention the elevator
incident. However, his observation of ADM Kelso, Secretary
Garrett and VADM Dunleavy entering the elevator is
specifically recorded in notes taken by the investigator
during the interview. See Appellate Exhibit CLVIII.
33. CDR Richard Martin, then assigned to VAQ-132, gave an
oral statement to DCIS investigators on 23 October 1992. At
that time, CDR Martin stated that after visiting exhibits and
attending presentations, he went to the third floor
hospitality area. He arrived on the third floor at
approximately 2100 and departed at approximately 0200 the
next morning. He stated he visited some of the suites, but
spent most of his time on the patio. He further stated
sometime that evening he observed Secretary Garrett, VADM
Dunleavy, and ADM Kelso walking on the patio towards the
entrance to the elevator lobby. See Appellate Exhibit LXXVI,
Attachment R.
In response to a naval message inquiry seeking to confirm
the accuracy of his statement, CDR Martin stated he was on
the patio on both Friday and Saturday evenings. He further
stated that he observed ADM Kelso and VADM Dunleavy walking
towards the third floor main guest elevators with a person he
believed to be Secretary Garrett. He further stated to the
best of his recollection the sighting occurred on Saturday
night between 2100 and 2200. See Appellate Exhibit CXLV.
34. CAPT Robert Nordgen, USN (Ret), testified he attended
the Saturday evening banquet. He stated during the banquet he
talked with CAPT Howard, an old friend with whom he had
served on board USS Constellation. During the conversation,
he asked CAPT Howard how his job was going and what time he
would be heading back to Washington. CAPT Howard replied,
``we're going to be wheels in the well at midnight * * * the
CNO has a family meeting on Sunday afternoon and we need to
get back for that.'' CAPT Nordgen further stated ADM Kelso
sat at the head table at the banquet with Secretary Garrett.
He stated the banquet ended around 2130.
CAPT Nordgen testified that following the banquet he
returned to his room to change clothes. He stated that as he
was preparing to enter an elevator on the first floor, he
observed Secretary Garrett enter a separate elevator. He
revealed that after changing clothes, he returned to the
patio, exiting the elevator onto the patio near the VR-57
suite, room 357. He remained in that general area talking
with old shipmates. Sometime later, he observed Secretary
Garrett, VADM Dunleavy, and other senior officers standing in
a group. He also observed someone he believed to be ADM Kelso
walking alone towards the center bank of elevators. He
recalled at that moment he remarked to RADM Walker, ``Hey,
that's amazing * * * I know that the Admiral's got to catch a
midnight flight. * * * He's pushing it pretty close.'' He
further stated he believed it was about 2315 when he sighted
ADM Kelso. When asked how he would be able to recognize ADM
Kelso, CAPT Nordgen stated he met ADM Kelso when he visited
Naval Air Command Pacific Headquarters in San Diego, and he
had been briefed by ADM Kelso in Washington. Transcript at
pp. 702-717.
35. Capt Ronald Rives, USMCR (Inactive) gave a statement to
DCIS investigators on 21 October 1992. See Appellate Exhibit
LXXVI, Attachment BB. At that time he related he observed
three admirals on the patio on Saturday evening, ADM Kelso,
VADM Dunleavy, and VADM Fetterman. Except for minor
corrections, he confirmed the accuracy of his statement
during his in-court testimony.
Capt Rives testified that on Saturday afternoon he gambled
for a short time in the hotel ``Circus Circus'' casino. He
returned to the Hilton and went to the patio around 1900, and
he stayed in that area until about 0100, Sunday morning.
While on the patio, he stated he observed the three admirals
within a half-hour on either side of a time frame between
about 1930 and 2200. He stated the admirals were standing
about 20 feet apart, and he observed them as he was moving
across the patio from the VMFAT suite (room 355) to the Rhino
suite (room 308). He further stated he was able to recognize
ADM Kelso from the many official photographs of him he had
seen, and he had been embarked on ADM Kelso's Sixth Fleet
flagship as a Naval Academy midshipman. When asked how he was
sure that it was Saturday night, Capt Rives explained he
attended the Saturday afternoon ``Flag Panel,'' and during
the discussions there was heated dialog regarding a number of
topics including women and F-18's. He stated that he was
surprised at how open the discussion was between junior
officers and flag officers. He further stated when he
observed ADM Kelso on the patio that evening he wondered why
he had not been a member of the flag panel. See Transcript at
pp. 601-617.
36. CDR George Ghio, then assigned to CF-14, gave a
statement to DCIS investigators on 22 July 1992. CDR Ghio
stated that he was on the patio on Saturday evening, and he
spotted ADM Kelso and VADM Dunleavy on the pool deck;
however, he could not recall the approximate time. See
Appellate Exhibit CXXVI. CDR Ghio confirmed his earlier
statement to DCIS investigators by message from USS Kitty
Hawk. See Appellate Exhibit CLVII.
37. LT John Moriarty, then assigned to VFA-15, NAS Cecil
Field, Florida, supplied a statement to DCIS investigators on
25 September 1992. LT Moriarty revealed that on Saturday, 07
September 1991, he went to the third floor of the Hilton at
around 1100, and again between 2100 and 2130. When he arrived
that evening, he found the third floor area ``packed with
wall-to-wall people.'' He also stated the hallway ``stunk.''
LT Moriarty further stated that he exited the revolving doors
leading to the patio. Upon arriving on the patio, he observed
``a bunch of admirals'' talking to ``guys.'' Included in this
group were Secretary Garrett, ADM Kelso, and VADM Dunleavy.
He stated that he talked with VADM Dunleavy for a few
minutes. See Appellate Exhibit LXXVI, Attachment U. When
asked by defense counsel to confirm his account set forth in
the ROI, LT Moriarty stated he could not recall his
statement.
38. The court further finds that a number of the
witnesses who testified were ambivalent regarding their
prior statements to DCIS investigators. Some of these
witnesses admitted to being personally intimidated in
knowing that ADM Kelso denied ever being on the patio
during his in-court testimony. However, the majority of
these witnesses confirmed the accuracy of their prior
statements. These witnesses include: RADM Paul Parcells,
Deputy Commander, Naval Forces, Central Command; CAPT
Daniel Whalen, USN (Ret); Mrs. Margaret Handy, GS-9; and
LT Ellen Moore, VA-42.
39. RADM Parcells furnished a sworn statement to DCIS
investigators on 15 October 1992. See Appellate Exhibit CXXX.
At that time, he related that he observed Secretary Garrett
on the patio on Saturday evening in the company of ADM Kelso.
However, during his in-court testimony, RADM Parcells stated
although he believed his statement was true at the time he
gave it, he reanalyzed his statement after learning ADM Kelso
had testified he was not present on the patio on Saturday. In
addressing the impact of ADM Kelso's denial, he stated,
``What I've got to say is that I still feel that I saw him
there, but my degree of confidence in that feeling is very,
very low . . . .''
In describing his visit to the patio on Saturday evening,
RADM Parcells stated that he attended the Saturday evening
banquet. Following the banquet he returned to his room at the
Hilton to change clothes. Sometime later he visited the
patio. He explained that he exited the elevator entrance onto
the patio. After walking a short distance, he observed
Secretary Garrett and ADM Kelso in front of him dressed in
sport clothing. Transcript at pp. 973-996.
40. CAPT Whalen gave a statement to DCIS investigators on
09 December 1992. At that time, CAPT Whalen stated he
observed ADM Kelso, VADM Dunleavy, and CAPT Howard on the
patio on Saturday evening for a short time. See Appellate
Exhibit CII.
During his in-court testimony, CAPT Whalen revealed that he
visited the patio on Friday night and observed ADM Kelso
conversing with a crowd of individuals. He estimated he was
only on the patio that evening for 15 to 20 minutes. He
testified further that he visited the patio again on Saturday
evening and he observed CAPT Howard in a ``transient mode.''
He recalled the event because he wanted to speak with ADM
Kelso regarding being free for certain duties since having
been relieved of his TQL responsibilities. He explained that
when he approached CAPT Howard and indicated a desire to
speak with ADM Kelso, CAPT Howard replied, ``You aren't going
to get to the big guy tonight . . . we're out of here.'' When
questioned as to why stated that he observed ADM Kelso on the
patio that evening, CAPT Whalen stated ``it was his gait.''
He also stated he was in company with Ms. Margaret Handy and
other civilian OPNAV personnel on the patio for most of the
evening.
Following further intense questioning, CAPT Whalen stated
that he was no longer sure he observed ADM Kelso with CAPT
Howard. He specifically stated ``if Frank Kelso says that he
wasn't out there on Saturday, I take him at his word,
absolutely.'' Transcript at pp. 544-579.
41. Ms. Margaret Handy, GS-9 Secretary, OPNAV (N88), in an
oral statement to DCIS investigators on 07 December 1992
explained that after the banquet on Saturday evening, she
went to the third floor patio. While on the patio, she
observed Secretary Garrett, ADM Kelso, VADM Dunleavy and VADM
Fetterman. She stated the group walked by her and stopped to
say hello. They were all wearing civilian clothing. She was
unable to recall the time of the encounter. See Appellate
Exhibit CXIV.
During her in-court testimony, Ms. Handy denied she ever
stated on 07 December that she observed ADM Kelso on the
patio. She stated that she could not remember whether she
observed other members of the group on Friday or Saturday
evening. In short, Ms. Handy stated that due to the passage
of time, she was now unable to recall the events of Saturday
evening, or what she mentioned to the interviewing
investigators. She did acknowledge she was aware ADM Kelso
had denied being on the patio on Saturday night. She also
acknowledged she was in the process of moving to a new
position in OPNAV and she would be working closely with
personnel in the CNO's office. Transcript at pp. 721-746,
797-791.
42. LT Ellen Moore, then assigned to VA-42, gave an oral
statement to DCIS investigators on 15 September 1992. LT
Moore stated that she visited the patio on Saturday
afternoon, 07 September 1991. She stated that during this
time, she was shocked at observing a ``topless'' female being
carried on the shoulders of an unidentified male. She
mentioned how Tailhook literally ``takes over'' the pool and
the hotel, and ``the prevailing attitude displayed to the
general public is that you should not be here knowing how
drunk sailors can act.'' She further stated that she visited
the patio on Saturday evening, but avoided the hallway
because she did not want to subject herself to any abuse. LT
Moore said she observed ADM Kelso and VADM Dunleavy on the
patio early Saturday evening. She departed the patio around
0400 Sunday morning. See Appellate Exhibit CVIII.
LT Moore testified in court that many aspects of the ROI
reporting her oral statement were inaccurate. See Transcript
at pp. 617-641. For example, she noted that she did not state
she observed a ``topless'' female. In addition, she testified
she did not state she observed either ADM Kelso or VADM
Dunleavy on the patio on Saturday evening. However, she
testified that she was aware she was being called to testify
since the ROI summarizing her oral statement indicated she
had observed ADM Kelso on the patio on Saturday evening. She
further acknowledged that during a prior discussion with LCDR
Little, CDR Tritt's detailed defense counsel, she expressed
concerns about being the only one who would place ADM Kelso
on the patio on Saturday evening. Transcript at 631. This
court finds the tenor of LT Moore's testimony revealed she
was intimidated by the prospect of having to testify
regarding the accuracy of the ROI reflecting her 15 September
1992 oral statement. However, the statement given by her at
that time is specifically confirmed by the interviewer's
notes taken during the interview. See Appellate Exhibit
CIX.
43. This court further finds some of the witnesses stated
they observed ADM Kelso on the patio, but were unsure whether
the sighting occurred on Friday or Saturday night. These
witnesses include: RADM James Finney, USN; LCDR Lawrence
Rice, USN; and 1stLt Adam Tharp, USMC.
44. RADM Finney was questioned by DCIS investigators on 02
October 1992 in a taped interview which was later
transcribed. During the interview, RADM Finney was asked if
he observed ADM Kelso on the patio on Friday night. He
responded that he did not see ADM Kelso on Friday night, but
he did see him on the patio on Saturday night. Later in the
interview, the investigator returned to the subject of who
RADM Finney had seen on the patio on Saturday evening. During
this part of the interview, RADM Finney stated he arrived on
the patio that evening around 2200. He then stated to the
investigator, ``[Y]ou asked me before did I see the CNO
Friday night * * * I saw him Saturday night out there * * *
around 2300 * * * plus or minus a few [minutes].'' When
questioned as to how ADM Kelso was dressed, RADM Finney
stated, ``I don't remember * * * I'm not 100 percent sure,
but I think he may have still been in his suit.'' When
pressed further on his recollection of his observation of ADM
Kelso on Saturday night, the investigator stated, ``You sure
that's not Friday night?'' In response to RADM Finney's
response in the affirmative, the investigator stated, ``We
think he left before Saturday night.'' (The investigator was
wrong.) In making this comment, the investigator explained to
RADM Finney that he was not attempting to change his mind but
was trying to test the firmness of his recollection. At that
point, RADM Finney acquiesced by stating, ``Well, if you
think he left already, maybe I didn't see him * * * Maybe it
was Friday night.'' RADM Finney stated further that he was
aware CAPT Howard was a part of ADM Kelso's group, but he did
not see him on the patio that evening with ADM Kelso. See
Enclosure to Appellate Exhibit CXXXIV.
In a stipulation of expected testimony, Appellate Exhibit
CXXXIV, RADM Finney stated that when he made the statement to
the investigator that he observed ADM Kelso on the patio on
Saturday evening ``there was no question in his mind.'' He
was very firm about the time being Saturday. He questioned
his recollection only after the investigator stated to him
that ADM Kelso had left before Saturday night.
In describing his activities on Friday and Saturday
evenings, RADM Finney stated he attended the banquets on both
evenings; he went to his room and changed clothes following
each banquet; he visited the patio on both Friday and
Saturday evenings; and he visited the Strike Warfare suite
during each visit. He stated that he related his observation
of ADM Kelso to these activities. He stated he saw ADM Kelso
around 2200 on the patio outside of the planters straight out
from the Strike Warfare suite. ADM Kelso was approximately 10
to 20 feet from his position. He stated that he is sure he
observed ADM Kelso on the patio only one night. He did not
recall seeing Secretary Garrett except at the banquet on
Saturday. RADM Finney further stated that his recognition
of ADM Kelso was based on previous face-to-face meetings
and briefings given to him on several occasions.
45. In separate statement to DCIS investigators, both LCDR
Rice and 1stLt Tharp stated they observed ADM Kelso on the
patio on Saturday evening. LCDR Rice stated that while on the
patio that evening, he observed Secretary Garrett and ADM
Kelso ``glad-handing'' with a group of individuals, none of
whom he recognized. He estimated the time to be around 2000.
He recalled the sighting as occurring on Saturday because
that was the day of the ``Flag Panel.'' See Appellate Exhibit
LXXVI, Attachment Z. 1stLt Tharp stated sometime during that
evening he was introduced to ADM Kelso and VADM Fetterman.
See Appellate Exhibit LXXVI, Attachment EE.
In separate stipulations of expected testimony, LCDR Rice
and 1stLt Tharp stated they observed ADM Kelso on the patio,
but could not now recall whether the sighting occurred on
Friday or Saturday night. Both stated they had no reason to
lie to the investigators at the time of their statements.
Each also stated that no one influenced their respective
statements to counsel in arriving at the stipulations of
expected testimony. See Appellate Exhibits CXXXVII and CXXXV.
Finding that ADM Kelso visited the patio on Saturday evening
46. Based on the convincing nature of the testimonial
evidence and the many corroborating facts and circumstances
surrounding such evidence, this court finds ADM Kelso is in
error in his assertion that he did not visit the patio on
Saturday evening. This court specifically finds ADM Kelso
visited the third deck patio at some time during the evening
hours of 07 September 1991. This court further finds ADM
Kelso was exposed to incidents of inappropriate behavior
while on the patio on Saturday evening, including public
nudity and ``leg shaving activities.''
The finding by this court that ADM Kelso is in error as to
his movements and activities on Saturday evening is further
supported by the highly contradictory, and often implausible,
nature of the testimony presented by the government. More
specifically, this court further finds:
47. ADM Kelso gave a summary account of his movements and
activities on Saturday evening during his in-court testimony.
He testified that following the banquet he proceeded to the
casino which was located on the same floor; gambled with VADM
(then RADM) Spane for about an hour and a half; and he never
left the casino until he departed for Nellis Air Force Base
at approximately 2330. He also related he ``believed'' Maj
Edwards was with him in the casino. When questioned by the
trial counsel as to how sure he was that he did not visit the
patio on Saturday evening, ADM Kelso replied, ``I am positive
I was not.'' Transcript at pp. 352-354.
This court finds, however, the degree of certainty
expressed by ADM Kelso during his in-court testimony was much
more definite than it was during his sworn statement to Mr.
Suessman, DCIS, on 15 April 1993, some nine months earlier.
At that time, ADM Kelso stated he could have gone back to his
room following the Saturday banquet. He also stated to the
``best of his recollection'' he did not visit the third floor
that evening. See Appellate Exhibit LXXII.
48. VADM Spane testified in support of ADM Kelso's account
of his activities following the banquet. See Transcript at
pp. 519-543. VADM Spane testified that he was with ADM Kelso
in the casino following the banquet, and ADM Kelso never left
the casino prior to departing for Nellis Air Force Base.
VADM Spane, currently serving as Commander, Naval Air
Force, U.S. Pacific Fleet, testified he first met ADM Kelso
while ADM Kelso was serving as Commander, Sixth Fleet. In
1990, he served as ADM Kelso's Operations Officer on the
CINCLANTFLT Staff.
In describing the events of Saturday evening, VADM Spane
testified he attended the Saturday evening banquet, which
ended about 2130. He mentioned observing ADM Kelso sitting at
the head table but did not speak to him during the banquet.
He did not change clothes following the banquet, but went
straight to the casino and to the same crap table where he
had won the night before. He related that he left the banquet
room before ADM Kelso departed. About fifteen minutes later,
ADM Kelso arrived unexpectedly in the casino. Following a
brief discussion, they began playing craps. He described ADM
Kelso as wearing a doubled breasted suit and tie. He
acknowledged there was a structure between the banquet room
and the casino, so he was unable to determine the direction
of ADM Kelso's entry into the casino. He stated ADM Kelso
never left the casino, and they played craps and the slot
machines until ADM Kelso departed the Hilton, which he
estimated was around midnight. VADM Spane said his son
arrived while he and ADM Kelso were gambling, as did various
other individuals throughout the evening. He said he knew ADM
Kelso had two aides, CAPT Howard and a Marine, and they were
around him from time to time while they were in the casino,
stressing ADM Kelso is never alone. VADM Spane said the aides
entered the casino while they were playing the slot machines,
and informed ADM Kelso it was time to depart.
VADM Spane gave a sworn statement to DCIS investigators on
14 October 1992. During that interview, he never mentioned
being in the casino with ADM Kelso on Saturday night. When
questioned as to why he did not mention this event, VADM
Spane stated he did not consider it appropriate to use ADM
Kelso's presence at the dice tables to establish his location
that night. He acknowledged, however, he did name others he
was in company with at other times during Tailhook 91 in
explaining his activities. See Appellate Exhibit CI.
VADM Spane was interviewed a second time on 17 April
1993. See Appellate Exhibit CLXXXI. He acknowledged that
prior to this interview, he was informed by the
interviewing investigators that were trying to establish
ADM Kelso's movements and location on Saturday night.
During this interview, VADM Spane explained he was in the
casino with ADM Kelso following the banquet. He stated ADM
Kelso was walking around the casino talking with various
individuals and he just stopped at his table to talk. He
stated that he did not see CAPT Howard with ADM Kelso. He
also said that he could have been in the casino for as long
as thirty minutes before ADM Kelso arrived. When questioned
in court regarding the disparity in his testimony and his
statement to DCIS investigators concerning how long he had
been in the casino prior to ADM Kelso's arrival, VADM Spane
stated he was just trying to bracket the time.
49. LTJG Robert Spane II, son of VADM Spane, was
interviewed by telephone on 18 April 1993, by Mr. Mike
Suessman, DCIS. The results of the telephone interview were
reduced to a written ROI by Mr. Suessman on 19 April 1993.
See Appellate Exhibit CLXXIX.
During the interview, LTJG Spane stated he attended
Tailhook 91. On Saturday night, he met his father, VADM
Spane, in the casino lobby next to the craps tables. He could
not recall whether ADM Kelso was with his father at the time
they met. He recalled playing craps and the slot machines
with his father and ADM Kelso sometime after he met his
father in the casino. He stated a Marine officer was with ADM
Kelso, but could not recall if a second aide was present. He
stated further that he stayed with ADM Kelso and his father
for some time. He stated he then left and visited the third
floor. He did not recall when ADM Kelso and his father
separated, and he presumed they left and went up to their
rooms for bed. He stated he did not recall going up the
elevator with either his father or ADM Kelso. He also said he
did not see either his father or ADM Kelso on the third floor
that evening.
50. Maj Edwards, currently assigned to the Marine Security
Force Battalion, Norfolk, Virginia, testified in-court on two
occasions. During his testimony, Maj Edwards testified he was
contacted by ADM Kelso in early September 1993. At that time,
ADM Kelso asked if Maj Edwards could confirm the Admiral was
not on the patio on Saturday night. He responded that he
would be glad to testify or make any statements necessary,
and agreed to the release of his name and telephone number.
Maj Edwards also stated he had been contacted by CAPT Donald
Guter, JAGC, USN, ADM Kelso's senior Staff Judge Advocate. He
testified it was his understanding that DODIG had
reinterviewed ADM Kelso, and that CAPT Guter wanted to inform
him that his name had been mentioned during the interview.
In describing ADM Kelso's movements and activities
following the Saturday evening banquet, Maj Edwards testified
he met ADM Kelso as he was exiting the banquet room in the
company of a ``group of individuals'' at approximately 2130.
Except for CAPT Howard, he could not recall the names of the
individuals. He mentioned that he walked with ADM Kelso
and CAPT Howard to the casino area near the front doors on
the first floor. He said ADM Kelso then asked him ``what
the plan was.'' Maj Edwards stated he replied, ``Sir,
you're out a little bit early. You've got about an hour
and a half before the transportation is here.'' He
explained to ADM Kelso the pre-flight of his aircraft
would take time, and the flight crew had not been informed
they might leave early. At about that time, according to
Maj Edwards, VADM Spane approached ADM Kelso and they
began a conversation. Shortly thereafter, ADM Kelso stated
to him that he and VADM Spane were going to the casino to
gamble. Maj Edwards testified he and CAPT Howard
accompanied ADM Kelso and VADM Spane into the casino area.
CAPT Howard remained with the group for a short while and
then went to the patio area to bid farewell to some of his
friends.
Maj Edwards testified further that he stayed in the casino
with ADM Kelso until their departure for Nellis Air Force
Base, except for several visits to the lobby area to check
with Master Chief Wise concerning baggage and ground
transportation to Nellis Air Force Base for the Master Chief
and Petty Officer Dubell. He also stated while in the casino,
ADM Kelso was wearing the suit and tie he wore to the banquet
and he never changed clothes prior to their departure for
Nellis Air Force Base. Maj Edwards also testified that he was
responsible for ensuring the timely provision of ground
transportation to Nellis Air Force Base. However, he was
unable to explain who, when, and how he was informed that ADM
Kelso's ground transportation to Nellis Air Force Base had
arrived at the Hilton. This court finds this lack of
explanation, at best, puzzling. Transcript at pp. 239-247,
1073-1130.
While this court finds Maj Edwards' testimony is generally
corroborative of ADM Kelso's account of his movements and
activities following the banquet, the court also finds
several material contradictions between his testimony and
that of Master Chief Wise. Maj Edwards stated that during the
time ADM Kelso was attending the banquet, he went to Master
Chief Wise's room to check with him on a plan to handle
baggage and to ask the Master Chief to call Nellis Air Force
Base and determine if the departure flight could be moved to
an earlier time. See Transcript at pp. 1081, 1084. However,
Master Chief Wise testified he collected ADM Kelso's baggage
from his room prior to ADM Kelso's departure for the banquet.
He also denied he was ever requested by Maj Edwards to
contact Nellis Air Force Base concerning moving ADM Kelso's
departure flight to an earlier time. Master Chief Wise
testified the flight was pre-scheduled to depart at 2400, and
to the best of his knowledge no attempt was ever made to
alter the schedule. Transcript at pp. 899-919.
In addition, the testimony of Col Bishop, Secretary
Garrett's EA, contradicts Maj Edwards' testimony that he was
with ADM Kelso the entire time ADM Kelso was in the casino.
Col Bishop testified he was on the patio on Saturday evening,
but departed the patio around 2200 and went to the casino on
the first floor. He stated while in the casino he observed
Maj Edwards, but he did not see ADM Kelso with Maj
Edwards. See Transcript at 1035. When Maj Edwards was
asked during his in-court testimony to explain why he
might have been seen by Col Bishop in the casino without
ADM Kelso, Maj Edwards responded that he was always within
view of ADM Kelso, but ADM Kelso might not have been aware
of his presence, describing his presence with ADM Kelso at
certain times as that of a ``shadow figure.'' Transcript
at 1083.
51. CAPT Howard testified he attended the Saturday evening
banquet with ADM Kelso. Following the banquet, in company
with ADM Kelso and Maj Edwards, he walked to the casino area
on the first floor. Shortly thereafter, ADM Kelso encountered
VADM Spane and VADM Spane's son. ``[T]hey started playing
craps together.'' CAPT Howard further stated that since he
didn't gamble, he asked Maj Edwards to remain with ADM Kelso.
He then went to the patio and third floor area. When he
returned to the casino area around 2330, he found Maj Edwards
in the lobby waiting for ADM Kelso. He asked Maj Edwards
about ADM Kelso's location since he was not at the crap
tables. Maj Edwards stated to him, ``He's about finished and
he's asked me if the plane was ready to return to
Washington.'' CAPT Howard testified he then stated to Maj
Edwards that the plane was ready, to which Maj Edwards
replied, ``Well, he may want to leave early, in about 5 or 10
minutes.'' CAPT Howard stated that about ten minutes later,
ADM Kelso walked up to him and said, ``When can we return to
Washington?'' He replied, ``We're ready to go now, sir, if
you're ready.'' The group then departed for Nellis Air Force
Base. CAPT Howard also testified he may have returned to his
room to change clothes before going to the patio; that Master
Chief Wise took care of his luggage; and he checked himself
out of the Hilton. He also stated to the best of his
knowledge, ADM Kelso did not visit the patio on Saturday
evening. Transcript at pp. 424-498.
This court further finds, unlike typical witness evidence
concerning events several years past, CAPT Howard's in-court
testimony is noticeably aligned with that of ADM Kelso and
Maj Edwards regarding their activities immediately following
the banquet. This court also finds, further, CAPT Howard's
in-court testimony is conspicuously different from his oral
statement originally reported by Special Agent Jack Kennedy,
Director of Criminal Investigative Policy, Oversight
Division, DODIG, on 08 December 1992. As recorded in the ROI
prepared by Special Agent Kennedy, CAPT Howard in explaining
his own movements was reported to have stated:
``[D]uring the evening [referring to Saturday, 07 September
1991] he attended the banquet, made a short visit to the Las
Vegas Hilton casino and went to the third floor, all with the
CNO. Again, [contrasting CAPT Howard's account of his Friday
evening visit to the patio with ADM Kelso] he estimated their
entire time on the third floor did not exceed 45 minutes. At
about 2330, CAPT Howard and the CNO departed the Las Vegas
Hilton to catch their return flight to Washington from
Nellis Air Force Base.'' (See ROI, Appellate Exhibit
LXXXIII.)
During the in-court testimony, CAPT Howard insisted Mr.
Kennedy was in error when he quoted him in the ROI as stating
that he visited the patio with ADM Kelso on Saturday evening.
He insisted further that his statement was that he (CAPT
Howard) went to the patio after the banquet. He acknowledged,
however, except for that one aspect of his statement, the ROI
reflected an accurate account of the interview. When asked to
explain the circumstances regarding his discovery of what he
believed to be an error on the part of Special Agent Kennedy,
CAPT Howard stated he was never provided a copy of the ROI
following the interview with Mr. Kennedy. He further stated
that on 14 April 1993, the day before ADM Kelso was scheduled
to be reinterviewed by Mr. Suessman, DODIG, he engaged in a
conversation with General Jumper, who was then serving as a
military assistant in the Office of the Secretary of Defense,
regarding the scheduling of forthcoming meetings. During the
conversation, he mentioned ADM Kelso was scheduled to be
interviewed the next day. He asked General Jumper if he had
any idea what the subject of the interview might be. General
Jumper informed him that a number of people had placed ADM
Kelso on the patio on Saturday night, and there were
``differences'' in CAPT Howard's statement to DCIS and that
of ADM Kelso. CAPT Howard testified he was not informed of
the disparity at that time, but later learned the following
day, 15 April 1993, from CAPT Guter, JAGC, USN, ADM Kelso's
senior legal advisor, that the ROI summarizing CAPT Howard's
statement to Special Agent Kennedy placed ADM Kelso on the
third floor on Saturday evening. CAPT Howard explained he
immediately went to the DODIG's office and discussed the
situation with Mr. Suessman. He arranged for a second
interview which occurred that same day. During the interview,
which was conducted by Special Agent Kennedy and his
supervisor, Special Agent Tom Bonnar, CAPT Howard clarified
his prior statement, denying ADM Kelso was ever with him on
the patio on Saturday evening. See Appellate Exhibit LXXXVII;
Transcript at pp. 435-441.
52. Special Agent Kennedy, who appeared as an in-court
witness on two occasions, testified that prior to conducting
the second interview of CAPT Howard on 15 April 1993, he was
informed by Special Agent Bonnar of the discrepancy claimed
by CAPT Howard in the ROI. He was specifically informed that
CAPT Howard denied ever stating to him that he visited the
patio on Saturday evening with ADM Kelso. Special Agent
Kennedy testified that upon review of his interview notes,
Appellate Exhibit LXXXIV, he concluded that at the time he
prepared the ROI, which occurred some two weeks following the
interview, he had made an error with respect to the entry in
his notes, which read, ``--w/ to 3rd FL Patio or VX-4 ste.''
He specifically explained while drafting the ROI
he misinterpreted the beginning symbol ``w/'' to mean
``with,'' and he should have interpreted the symbol to
mean ``witness.'' In short, Special Agent Kennedy
testified the entry should have been recorded in the ROI
as ``witness to third floor or VX-4 suite.'' He further
explained he had been careless in reading his notes at the
time he prepared the ROI. He said he concluded he had
misinterpreted the meaning of the symbol ``w'' since there
was nothing in his notes indicating ADM Kelso was with
CAPT Howard on Saturday night. He stated further he could
not recall CAPT Howard ever stating during the interview
that he had visited the third floor with ADM Kelso. He
acknowledged that in his some 19 years of experience as an
investigator, he could not recall another instance when he
had incorrectly interpreted his interview notes. When
questioned as to how such a mistake could have been made,
Agent Kennedy explained he frequently used the symbol ``w/
'' interchangeably to mean ``with'' or ``witness.''
However, Mr. Mancuso testified in his experience the
symbol ``w/'' is routinely used by investigators to mean
``with.'' See Transcript at pp. 297-329.
53. VADM Dunleavy testified that following the banquet, he
asked ADM Kelso if he would like to make one more swing on
the third deck ``to see the JO's [junior officers].''
According to VADM Dunleavy, ADM Kelso declined, stating he
was tired; that he had been at it all day; and he had an
early flight. VADM Dunleavy stated he returned to his room,
changed clothes, went down to the third deck, and he did not
see ADM Kelso on the third floor following the banquet.
However, VADM Dunleavy stated there was a very large crowd on
the patio on Saturday evening, and ADM Kelso could have been
there without being seen by him. Transcript at pp. 494-516.
54. Secretary Garrett testified he arrived at Tailhook 91
about 1400 on Saturday afternoon. Shortly thereafter he
attended the ``Flag Panel,'' and he was the guest speaker at
the Saturday evening banquet. Following the banquet, he asked
ADM Kelso if he was going to the third floor and ``mingle
with the troops.'' ADM Kelso declined stating he was not
going to do that since he had been on the third floor on
Friday night and had an early flight. According to Secretary
Garrett, ADM Kelso also stated ``he was going back to his
room, pack, and prepare to leave.'' Transcript at 388.
This court specifically finds the statement by ADM Kelso to
Secretary Garrett that ``he was going to his room and pack''
is wholly consistent with his statement to Mr. Suessman on 15
April 1993, when he said that he may have gone back to his
room to change clothes following the banquet. (See Finding of
Fact number 47).
55. In a stipulation of expected testimony, VADM John
Fetterman provided a summary account of his activities and
his association with ADM Kelso on Friday evening. He stated
following the Friday evening banquet, he and VADM Dunleavy
escorted ADM Kelso from his room to the patio. He further
stated that he remained on the patio with ADM Kelso for about
one hour and twenty minutes.
VADM Fetterman's account of events on Saturday evening is
equally abbreviated. In describing these events, he states
that he attended the Saturday evening banquet. Following the
banquet, he discussed plans for the remainder of the evening
with Secretary Garrett, who informed him that he was going to
the patio. He stated that he went to his room, changed
clothes, and went immediately to the patio. He then linked up
with Secretary Garrett and talked for a short time in an area
directly out from the glass doors leading to the elevators.
He further stated he was within 15 to 20 feet of Secretary
Garrett for about one and a half hours, and he never observed
ADM Kelso on the patio. He further stated he had no interface
with ADM Kelso following the banquet. See Appellate Exhibit
CXCV.
While the court finds VADM Fetterman's testimony is
supportive of the government's position, his explanation of
ADM Kelso's movements and activities on the patio on Friday
evening is contrary to VADM Dunleavy's testimony that he and
VADM Fetterman escorted ADM Kelso through the various
squadron hospitality suites. Further, his statement that ADM
Kelso was on the patio on Friday evening for one hour and
twenty minutes far exceeds the 40 to 45 minute time frame
given by ADM Kelso, CAPT Howard and Maj Edwards.
Additional key evidence
This court further finds:
56. LCDR Charles Henry, CVWR-20, provided an oral statement
to DCIS investigators on 12 January 1993. At the time, LCDR
Henry stated that during Tailhook 91 he was in charge of the
Transportation Committee, a position he had held for several
years.
In describing his activities during Tailhook 91, LCDR Henry
stated his committee occupied a suite on the eighth floor of
the Hilton where he spent the majority of his time working
out transportation arrangements. He stated that he was
present on the third floor and the patio from approximately
2200 to 2400 on Friday evening during which time he visited
some of the suites. He stated further that he witnessed one
individual ``ball-walking'' on the patio. While in the
suites, he witnessed men cheering as some females voluntarily
removed their blouses. The women were rewarded with T-shirts.
He also witnessed ``zappers'' on some women. See Appellate
Exhibit CLXI.
LCDR Henry also stated while in the transportation suite on
Saturday night, he received a telephone call around midnight
reporting that things had gotten out of hand on the third
floor. He went immediately to the third floor. He met someone
who he identified as CDR Nagelin, VF-202, who informed him
that some females had gotten their clothes torn off. He was
also informed by a security guard that a naked female had
been thrown out into the hallway. He stated that he remained
in the area for about an hour. While in the area of the third
floor, he observed Secretary Garrett and VADM Dunleavy.
In a stipulation of expected testimony, LCDR Henry
clarified his 12 January 1993 statement to DCIS
investigators. In the stipulation, LCDR Henry stated while in
the transportation suite on Saturday night he received the
telephone call reporting the disturbance on the third floor
around 2300. He went immediately to the third floor. While on
the third floor, he observed Secretary Garrett and VADM
Dunleavy in the third floor passageway in front of a suite
located approximately two doors down from the Rhino suite. At
about that same time, he was informed ADM Kelso was on the
patio. He walked out onto the patio through the doors at the
center of the building near the main elevators. Upon entering
the patio, he observed ADM Kelso near the entrance to the
elevator exit. He stated ADM Kelso was wearing casual
clothing. He also stated that he had never met ADM Kelso or
seen him in person prior to seeing him on the patio that
evening. He stated that he recognized ADM Kelso that evening
from photographs and videotapes. See Appellate Exhibit
CLXI(A).
57. The court further finds that a 29 December 1993
statement given by LCDR Elizabeth Toedt to Special Agent
Brewer of the Naval Investigative Service further contradicts
the testimony of the key government witnesses. As noted
earlier, LCDR Toedt was one of the Tailhook 91 Navy protocol
officers who met ADM Kelso at Nellis Air Force Base upon his
arrival on Saturday, 06 September 1991. She was also in
charge of arranging ground transportation for ADM Kelso and
his official party on Saturday night, 07 September 1991.
In describing her involvement in arranging limousine
transportation for ADM Kelso on Saturday night, LCDR Toedt
related that following the banquet she walked to the head
tables in the banquet room. She spoke with someone she
believed to be Maj Edwards and asked him if there were any
changes in ADM Kelso's departure plans. He replied there was
no change in plans, and they would be leaving as soon as they
changed clothes. She recalled ADM Kelso was present, and he
was wearing a suit and tie. She departed the banquet room to
ensure the Hilton limousines and drivers were out in front of
the lobby area of the Hilton. She also contacted Air Force
protocol officers at Nellis Air Force Base to ensure ADM
Kelso's party would not encounter any problems getting
through the main gate.
After making these arrangements, she returned to the lobby
and waited for ADM Kelso and his party. She estimated that
she did not wait for more than fifteen minutes before CAPT
Howard entered the lobby. CAPT Howard was the first to
arrive, followed by Maj Edwards and the two enlisted
personnel in ADM Kelso's party. She stated ADM Kelso arrived
last, but she could not recall the direction from which he
entered. She stated all members of the party had changed into
casual clothing. ADM Kelso was wearing slacks and an open-
collar casual shirt. She stated that she asked Maj Edwards if
they would need an escort to Nellis Air Force Base. He
replied an escort would not be necessary. ADM Kelso and his
party then departed for Nellis Air Force Base. See Appellate
Exhibits CLXX and CLXXXVIII.
LCDR Toedt stated the banquet ended between 2215 and 2230.
She further estimated the time between the end of the banquet
and ADM Kelso's departure for Nellis Air Force Base was
approximately forty minutes. This court finds LCDR Toedt,
like all witnesses who testified or provided statements, gave
only their best estimates of time in relation to descriptions
of events. Nonetheless, this court finds LCDR Toedt's account
to be consistent with the convincing weight of evidence
showing ADM Kelso changed clothes following the banquet, and
he visited the patio prior to his departure for Nellis Air
Force Base. In particular, this court finds LCDR Toedt's
account is remarkably consistent with CAPT Howard's account
of events as set forth in his first statement to DCIS special
agent Kennedy on 08 December 1992. See Finding of Fact Number
52.
58. This court notes, finally, a revealing declaration in
the sworn statement of Ms. Barbara Pope to DCIS investigators
on 30 June 1992. Ms. Pope, then Assistant Secretary of the
Navy for Manpower and Reserve Affairs, stated she discussed
the events at Tailhook 91 with Secretary Garrett on several
occasions. During the discussion of an early conversation
with Secretary Garrett regarding his visit to Tailhook 91,
she stated: ``I mean, right when all that came public about
Paula Coughlin having been assaulted and her letter. We
talked about his being there. We talked about he and the CNO
going up, you know, after the banquet and having a drink on
the patio.'' (Appellate Exhibit CXLVI, at 61.).
Evidence related to the occurrence of misconduct
This court further finds the defense claim that while on
the patio on Saturday evening ADM Kelso may have witnessed
the same or similar conduct to that alleged in the charges
against CDRs Miller and Tritt, is supported by the evidence.
More specifically this court finds:
59. In findings of fact set forth earlier, this court found
incidents of inappropriate and sexually offensive behavior
occurred in the third floor hallway, in the various
hospitality suites, and on the patio on Friday evening, 06
September 1991. These findings were supported by the
testimony of eyewitnesses and photographs taken by various
individuals during Tailhook 91. The evidence reveals the same
or similar incidents of improper decorum and inappropriate
behavior also occurred in these same areas during the evening
hours of Saturday, 07 September 1991. None of the evidence
presented is more convincing of this fact than an eyewitness
account given by VADM Dunleavy.
In a statement to DCIS Special Agent Eckert on 05 August
1992, VADM Dunleavy remarked that while present on the third
floor of the Hilton on Saturday evening, he became aware that
a ``gauntlet'' was operating in the third floor hallway. In
describing this activity, VADM Dunleavy stated while in that
area he heard ``guys'' yelling, ``show us your tits.'' He
then walked into the third floor hallway and observed it
was crowded with people. He stated that he further
observed a commotion in the hallway as many in the crowd
``hooted and hollered.'' He stated that he did not attempt
to stop the commotion because he knew that he would not be
heard above the noise. He stated it appeared to him the
``gauntlet'' activities were in fun, rather than
molestation. He specifically stated: ``It was my
impression, from what I saw, that no one was upset, and I
felt that they [referring to females] wouldn't have gone
down the hall if they didn't like it.''
In describing other activities, VADM Dunleavy stated there
were incidents of ``mooning'' the crowd on the patio by young
men and women from hotel windows. He also acknowledged that
he observed some women who were ``bearing (sic) their
clothing'' and allowing aviators to stick squadron stickers
on their breasts and buttocks. He also stated that he heard
``strippers'' had been hired by some of the groups to perform
in the suites. However, he denied ever observing such
activity. See Appellate Exhibit CXCII.
This court finds VADM Dunleavy's reference to the hiring of
``strippers'' is corroborated by the oral statement of LT
Kenneth Carel, VF-124, to DCIS investigators on 21 July 1992.
At that time, LT Carel stated that he arrived on the third
floor at approximately 1800. He stated that he and several of
his fellow aviators sought out ``strippers'' to perform in
the suites. He further stated a disc jockey working in the
VF-124 suite helped negotiate the hiring of ``strippers'' to
perform later that evening in the VF-124 suite. He stated at
approximately 2300, the ``strippers'' arrived in company with
the disc jockey for their scheduled performance in the VF-124
suite. LT Carel stated that he did not stay for the entire
performance since he had an early flight the next morning. LT
Carel's oral statement is recorded in the investigator's
interview notes. See Appellate Exhibits CXC and CXC(A).
iv. key events following tailhook 91
The evidence reveals the following chain of key events
following Tailhook 91 related to the claim by the defense
that ADM Kelso attempted to shield his personal involvement
at Tailhook 91, and he possessed a ``personal interest''
rather than an ``official interest'' in the prosecution of
the cases at bar at the time he appointed VADM Reason as the
CDA.
ADM Kelso's initial involvement in the investigative process
This court finds:
60. Shortly following Tailhoook 91, LT Paula Coughlin
complained to her immediate superior, RADM John Synder, then
serving as Commander, Naval Air Test Center, Patuxent,
Maryland, that she had been assaulted in the third floor
hallway of the Hilton during the Saturday evening hours of 07
September 1991. When RADM Synder failed to act on her
complaint, LT Coughlin sent a letter of complaint to VADM
Dunleavy in early October 1991. VADM Dunleavy met with LT
Coughlin on 10 October 1991. Following this meeting, he
informed ADM Jerome Johnson, then Vice Chief of Naval
Operations (VCNO), of his meeting with LT Coughlin and of
her written complaint. ADM Kelso was also advised of LT
Coughlin's complaint and of RADM Synder's failure to act
on her complaint. This marked the beginning of ADM Kelso's
active involvement in the aftermath of Tailhook 91. See
Appellate Exhibit LXXII at 27.
61. In mid-October 1991, amid escalating public and
Congressional concern, RADM Duvall Williams, JAGC, UNS, then
Commander, NIS, and in ADM Kelso's direct chain of command,
was ordered by the VCNO to open a criminal investigation into
the alleged criminal assault on LT Coughlin at Tailhook 91
and on the additional reported incidents of assault on other
female attendees. Simultaneously, the Navy Inspector General
(Navy IG), RADM George Davis, was ordered by Secretary
Garrett to open an investigation into Tailhook 91 to examine
matters relating to alleged non-criminal violations of the
Standards of Conduct such as the improper use of government
material assets, like air transportation, in support of
Tailhook 91. During the course of the ensuing NIS and Navy IG
investigations, numerous meetings and briefings were
conducted among representatives of the Offices of SECNAV,
CNO, the Navy Judge Advocate General, NIS, and the Navy IG.
This included Mr. Daniel Howard, Under Secretary of the Navy,
who was tasked by Secretary Garrett to oversee the overall
conduct of the investigations; Ms. Barbara Pope, Assistant
Secretary of the Navy for Manpower and Reserve Affairs; RADM
John E. Gordon, Judge Advocate General of the Navy; RADM
Davis; RADM Williams; and other representatives from offices
of SECNAV and CNO. In addition, Secretary Garrett and ADM
Kelso were briefed at least weekly on the progress of the
investigations.
The limited scope of the NIS and Navy IG investigations
62. An NIS ``Tailhook Task Force'' was established by RADM
Williams to deal with the voluminous number of anticipated
interviews among the thousands of attendees at Tailhook 91.
This included the appointment of LCDR Henry F. Sonday, JAGC,
USN, as a special counsel responsible for marshalling
evidence for use in any resulting criminal prosecutions.
63. The scope of the NIS investigation was strictly limited
to allegations of criminal assault on LT Coughlin and other
female attendees. The investigation did not include an
inquiry into the personal involvement of any of the numerous
flag officers and senior civilian DON officials in attendance
at Tailhook 91, nor were any of these attendees ever
interviewed by NIS special agents during the course of the
investigation.
The exclusion of flag officers and senior DON officials
from the focus of the NIS investigation led to conflict
between RADM Williams and RADM Davis. One reason for the
conflict was the number of personnel assigned to the Navy
IG's staff was diminutive in comparison to the large world-
wide cadre of NIS special agents available to RADM
Williams. Thus, RADM Davis looked to NIS for assistance in
interviewing flag and other senior officers concerning
possible violations of the Standards of Conduct. Another
reason for conflict stemmed from RADM Williams' apparent
desire to dominate the interview process to ensure full
compliance with required investigative procedures and thus
protect future prosecutions. Secretary Garrett and ADM
Kelso were aware of the disparity in investigative
manpower and the fact that flag officers and senior DON
officials were not being interviewed. However, despite
warnings by LCDR Sonday that both the NIS and Navy IG
investigations should address the accountability of flag
officers and senior DON officials, the evidence does not
reveal that any action was ever taken by either Secretary
Garrett or ADM Kelso to expand the scope of the NIS or
Navy IG investigations to include flag officer
accountability, or to remedy the disparity in
investigative manpower. This court specifically finds this
inaction was part of a calculated effort to minimize the
exposure of the involvement and personal conduct of flag
officers and senior DON officials who were present at
Tailhook 91. See Transcript at pp. 747-786; ADM Kelso's
Statement of 23 July 1992, Appellate Exhibit LXXII at pp.
49-50.
The Allen Report of Interview
64. The effort to shield high ranking Tailhook 91
attendees, including ADM Kelso, from the investigative
process is further evidenced by RADM Williams' handling of an
ROI placing Secretary Garrett in one of the suites on
Saturday night. During an oral interview with NIS special
agents on 19 February 1992, Capt Raymond Allen, USMC, stated
he recalled that Secretary Garrett visited one of the suites
(later identified by LCDR Sonday as the Rhino suite). See
Enclosure (7) to Appellate Exhibit CXCIX. However, the Allen
ROI was not included in the original NIS Report of
Investigation by RADM Williams. A later discovery of this
omission forced RADM Williams to issue a fifty-five page
supplemental report containing the Allen ROI and other
revealing statements obtained during the investigation. See
Appellate Exhibit CXCIX. The omission of the Allen ROI
ultimately lead to RADM Williams being relieved as Commander,
NIS, and it was a contributing factor to the later
resignation of Secretary Garrett. It would also eventually
result in the Tailhook 91 investigation being removed from
the jurisdiction of the Navy and assigned to the office of
the DODIG. From that point the investigation finally focused
on the involvement and personal accountability of senior
officials in attendance at Tailhook 91, including ADM Kelso.
In describing the handling of the Allen ROI, LCDR Sonday
testified that the ROI was received by NIS Headquarters in
Washington on 20 February 1992. He then informed special
agents Beth Iorio and Tim Danehy, who were working with him
full-time on the investigation, on the content of the Allen
ROI. He testified that he also informed Mr. Charles Lanham,
RADM Williams' Deputy Director, and John Devanzo, NIS
Director, Capital Region. He later briefed RADM Williams
and RADM Gordon.
LCDR Sonday testified further he was not concerned at that
stage of the investigation with the issue of ADM Kelso's
activities or whereabouts during Tailhook 91. He assumed all
along that ADM Kelso was present on the third floor on
Saturday night based on the ROI of CDR Kathleen Ramsey who
stated she observed Secretary Garrett, ADM Kelso, and VADM
Dunleavy together on the pool patio that evening. See Find of
Fact Number 27.
In explaining his interest in the Allen ROI, LCDR Sonday
testified that LT Coughlin had earlier identified Capt Greg
Bonham, USMC, as her assailant. In an effort to establish a
case against Capt Bonham, he requested NIS special agents
interview Capt Allen, who had been Capt Bonham's roommate
during Tailhook 91. He stated that he had developed
information that Capt Bonham may have been present in the
Rhino suite that night. When he learned Secretary Garrett may
have been present in the Rhino suite on Saturday night, he
concluded Secretary Garrett might be able to provide
information to establish Capt Bonham's presence in the suite.
He stated that Mr. Lanham agreed to arrange an interview with
Secretary Garrett to inquire about his visit to the Rhino
suite on Saturday night. He stated the interview with
Secretary Garrett never occurred because he obtained other
credible information which he believed linked Capt Bonham to
the alleged assault on LT Coughlin. He stated, however, that
he instructed special agents Iorio and Danehy to include the
Allen ROI in the final NIS report of investigation.
LCDR Sonday stated that following completion of the NIS
investigation in late March 1992, he returned to Norfolk and
resumed his regularly assigned duties. He stated that in
early June, he was informed during a conference call from CDR
Ronald Swanson, SJA to VADM Johnson, and CAPT Guter, SJA to
ADM Kelso, that Secretary Garrett has made a formal statement
reporting he did not visit any of the suites on Saturday
night. CDR Swanson and CAPT Guter related they had received a
report that the NIS investigation had developed information
placing Secretary Garrett in the Rhino suite on Saturday
night. LCDR Sonday stated he was informed by CDR Swanson that
RADM Williams had briefed VADM Johnson on the Allen ROI, but
never mentioned the reference in the ROI to Secretary Garrett
visiting one of the suites. CAPT Guter indicated that RADM
Williams had also personally briefed ADM Kelso on the results
of the NIS investigation. During that briefing, according of
CAPT Guter, ADM Kelso had asked RADM Williams point blank,
``Is there anything in your investigation that's going to
place the Secretary on the third floor at Tailhook?'' or
words to that effect. RADM Williams responded to the effect,
``I've taken the pulse of all the agents in the field and
there's nothing out there that's going to implicate the
Secretary.'' This court finds while this statement expressed
a direct interest in any information linking Secretary
Garrett to misconduct that occurred in the third floor, it
also signaled ADM Kelso's personal concern for any
information that might link him to such conduct. It also
discloses an early appreciation for the potential
embarrassment should it become known that a senior Navy
official was present on the third floor of the Hilton when
the assaults took place. See Transcript at pp. 747-786.
LCDR Sonday's account of the NIS investigation and the
missing Allen ROI is corroborated by ADM Kelso in his sworn
statement of 23 July 1992. ADM Kelso stated that after being
informed of the Allen ROI, he telephoned RADM Williams and
demanded an explanation as to why the ROI had been left out
of the investigation. He stated that RADM Williams explained
that the ROI was not relevant to the investigation. ADM Kelso
stated he expressed outrage that anyone would consider the
ROI irrelevant. He was concerned that the original report had
already been forwarded to Congress, and someone might get the
idea that something was being hidden. He stated that he then
discussed the ROI with Secretary Garrett and suggested the
DODIG be requested to review the results of the NIS
investigation. He also recommended RADM Williams be relieved.
See Appellate Exhibit LXXII at pp. 50-57.
The preparation of ADM Kelso's itinerary
This court further finds:
65. A concerted effort to minimize ADM Kelso's personal
involvement at Tailhook 91 is further evidenced by the
circumstances surrounding the response of ADM Kelso and
members of his staff to a press inquiry regarding his
movements and activities while at Tailhook 91. In late May
1992, and almost simultaneously with similar press inquiries
to Secretary Garrett, ADM Kelso's office received a press
inquiry from Mr. David Evans of the Chicago Tribune
requesting ADM Kelso's itinerary during Tailhook 91. A
similar request was also made by Mr. Eric Schmidt of the New
York Times. See Appellate Exhibit CXXIX.
In describing the handling of Mr. Evans' inquiry, LCDR
Debra Burnett, ADM Kelso's Public Affairs Officer (PAO),
testified she was informed by Secretary Garrett's PAO that
Mr. Evans had made a request for Secretary Garrett's schedule
and he would be calling and making the same request
concerning ADM Kelso's schedule. She testified that shortly
thereafter Mr. Evans called her and requested a minute-by-
minute, detailed account of ADM Kelso's movements and
activities during his visit to Tailhook 91. She stated Mr.
Evans desired a detailed account to determine if ADM Kelso
had visited any of the squadron hospitality suites. She also
stated that she was aware the question of whether Secretary
Garrett had visited any of the suites was also at issue at
that time.
LCDR Burnett testified she drafted a response to Mr. Evans
based on ADM Kelso's planned itinerary, which had been
prepared by Maj Edwards prior to ADM Kelso's visit to
Tailhook 91. The planned itinerary contained only general
entries such as, ``2000, CNO Keynote Speaker.'' It did not
contain a detailed account of events such as a visit to the
casino. She stated that the planned itinerary did contain the
entry, ``2300, Checkout,'' referring to ADM Kelso's
departure from the Hilton on Saturday night.
LCDR Burnett further stated that after drafting her
proposed response, she asked Maj Edwards for verification.
She stated Maj Edwards added detailed entries regarding ADM
Kelso's activities following the Friday and Saturday evening
banquets. These entries included ADM Kelso's visit to the
pool patio on Friday evening and his visit to the casino on
Saturday night. She then discussed the proposed itinerary
with CAPT Howard, who agreed with the entries added by Maj
Edwards. They then discussed the final draft, Appellate
Exhibit XC, with ADM Kelso. ADM Kelso approved the itinerary.
She stated that during the discussion of the itinerary with
ADM Kelso, he only asked why Mr. Evans was interested in the
information, and if she had cleared the account of events
with Maj Edwards. Transcript at 951-956.
LCDR Burnett further testified she never discussed the
issue of whether ADM Kelso visited the patio on Saturday with
ADM Kelso, CAPT Howard, or Maj Edwards. However, when asked
to explain the entry, ``CNO did visit the pool/patio area of
the third floor, where he spent about 40 minutes visiting
with naval aviators,'' on Appellate Exhibit XC following the
07 September 1991 entries, she stated the thrust of Mr.
Evans' question was not whether ADM Kelso had visited the
patio, but whether he had visited any of the suites. She
stated that Mr. Evans called her after she released the
itinerary to him and asked if that entry pertained to
Saturday night. She responded that ADM Kelso visited the
patio on Friday evening, not on Saturday, evening. She
further explained that she corrected the original itinerary
to state ADM Kelso visited the patio on Friday evening prior
to a second, later release in response to an inquiry from Mr.
Greg Vista of the San Diego Union Tribune.
LCDR Burnett was then asked to explain the next entry, ``He
did not visit any of the squadron suites.'' She stated this
entry pertained to both Friday and Saturday nights. She
acknowledged that she discussed this entry with both Maj
Edwards and ADM Kelso. She explained that she concluded the
entry, ``where he spent about 40 minutes visiting with naval
aviators'' pertained to Friday night since it matched the
time (40 minutes) between the two entries listed under 06
September events, ``2200--Depart Dinner; arrive pool/patio
area, Hilton,'' and ``2240--Depart pool/patio area; arrive
hotel room.'' She again denied, however, that she ever asked
ADM Kelso if he visited the patio on Saturday evening. She
stated that she only received an acknowledgement from ADM
Kelso when she showed him the original draft stating he was
on the patio only on Friday night. She also denied anyone
ever stated during any of the discussions pertaining to the
preparation of the itinerary that, ``We were not on the third
floor on Saturday evening.'' She stated that she did not
recall that ever being an issue. The only issues were whether
ADM Kelso ever visited any of the suites, and whether he
observed any inappropriate conduct.
LCDR Burnett testified further she could not explain why
the copy of the planned itinerary she used to prepare her
response to the press inquiries was now missing. She stated
that she obtained the copy she used from Maj Edwards' files,
and to the best of her recollection she returned the copy to
his files. She explained that when she went to retrieve the
copy at a later time, the itinerary and ADM Kelso's travel
file were missing. She stated, however, ADM Kelso's planned
itineraries are normally maintained on file for only about
one year. Thereafter, responses to inquiries concerning his
past travel schedule are taken from a master calendar which
did not reflect details of his activities. Transcript at pp.
948-970.
Maj Edwards testified he prepared a planned itinerary for
ADM Kelso prior to their departure for Tailhook 91. He stated
copies were given to everyone in the official party,
including CAPT Howard and Master Chief Wise. He stated that
he would not be surprised that a copy of the planned
itinerary could not be found. In explaining the disposition
of ADM Kelso's itineraries following an official trip, he
stated: ``[I]t's not required to maintain it. It's solely an
information paper that I put together. In fact, if you ask
them do they have other information papers from other trips,
the answer is `No.' There's no requirement to keep it.
Usually they're discarded once a trip is complete other than
trips outside the continental United States. Those are kept
and maintained.'' (Transcript at 1073.)
In explaining his role in assisting LCDR Burnett, Maj
Edwards stated he recalled she was trying to reconstruct the
events that actually occurred during ADM Kelso's visit to
Tailhook 91, in response to some kind of news release. He
stated that he provided LCDR Burnett with the facts
surrounding ADM Kelso's movements and activities that were
not on the planned itinerary. This included entries regarding
arrival and departure times from the patio and the casino,
and the time regarding check out. He acknowledged, however,
the check out time of 2300 was incorrect. He stated he
checked ADM Kelso out of the Hilton during the time ADM Kelso
was attending the Saturday evening banquet. He stated the
2300 entry might have referred to the time CAPT Howard
checked out of the Hilton. See Transcript at pp. 1073-1075,
1107-1108.
CAPT Howard testified that no written itinerary was ever
prepared prior to ADM Kelso's visit to Tailhook 91. He stated
there was a schedule, but it was not in writing. He explained
ADM Kelso's activities were a part of the schedule of events
listed in a schedule prepared by CAPT Ludwig, President of
the Tailhook Association. He stated further that during the
visit to Tailhook 91, everyone in the official party made
entries in a 3" x 5" booklet maintained by Maj Edwards. The
purpose of the booklet was to provide a means of keeping
each member of the party informed as to the whereabouts of
other members. He further stated that an itinerary
depicting ADM Kelso's movements and activities was
prepared some months following Tailhook 91 in preparation
for ADM Kelso's initial interview with the DODIG.
In explaining his role in reconstructing ADM Kelso's
itinerary, CAPT Howard stated the itinerary was reconstructed
from the booklet maintained by Maj Edwards. He stated that he
had discussions with LCDR Burnett and CAPT Guter during
morning staff meetings concerning the reconstruction process.
He stated that he also had a discussion with ADM Kelso
concerning his activities on Saturday evening prior to
finalizing the itinerary.
In response to a question by defense counsel concerning
whether ADM Kelso asked him if he had been on the third floor
on Saturday evening, CAPT Howard responded that he could not
recall ADM Kelso's exact words, but he stated words to the
effect, ``There's no way I could have gone on the third floor
on Saturday night, right?'' When asked why ADM Kelso would
ask that question, CAPT Howard stated ADM Kelso depended on
him and others with him at Tailhook 91 to be able to account
for his whereabouts, and to ensure he was at the right place
at the right time. He added, however, ADM Kelso was not
unsure about whether he ever visited the patio on Saturday
night. He stated that was never an issue during his
discussions with ADM Kelso concerning his activities during
Tailhook 91. Transcript at pp. 453-461.
ADM Kelso testified he approved the itinerary after it was
presented to him by CAPT Howard, Maj Edwards and LCDR
Burnett. He also testified the itinerary was an accurate
account of his activities and movements during Tailhook 91.
Transcript at 350. ADM Kelso also used the itinerary during
his interview with DODIG on 23 July 1992. See Appellate
Exhibit LXXII at pp. 6,8.
Based on the above explanations, this court further finds
the itinerary as submitted by the government lacks
credibility for the following reasons:
a. It was prepared well after the events at issue.
b. It was prepared at a time when official concern and
press interest had been raised concerning ADM Kelso's
proximity to the third-floor improprieties which occurred on
07 September 1991.
c. The rationale for its creation as an assist during the
DCIS interview is obviously incorrect and misleading. In
fact, ADM Kelso's initial interview occurred some two months
later.
d. Whether such an itinerary was ever prepared, and how and
why it can no longer be located, are glaring omissions in the
evidence presented. CAPT Howard testified no written
itinerary was ever prepared prior to ADM Kelso's visit to
Tailhook 91. Maj Edwards testified he prepared a planned
itinerary for ADM Kelso and copies were given to everyone in
the official party, including CAPT Howard.
For the above reasons, the document carries little weight
in the resolution of the issues presented by the motion.
ADM Kelso's status as a suspect
This court further finds:
66. In late June 1992, Secretary Garrett requested that the
DODIG review the NIS and NAVY IG investigations to ensure a
thorough review of Tailhook 91 activities and events. Shortly
thereafter, the DODIG assumed full responsibility for
Tailhook 91 investigation and requested the Navy suspend all
investigative activities and disciplinary actions.
67. The DODIG investigation continued through December
1992. During the approximate six months of investigation,
DCIS investigators obtained hundreds of statements from
Tailhook 91 attendees at numerous geographical locations. One
of the main goals of the DODIG investigation was to determine
the involvement of senior DON civilian officials and high
ranking Navy and Marine Corps officers at Tailhook 91.
68. ADM Kelso was initially interviewed by DODIG
investigators on 23 July 1992. As noted earlier, ADM Kelso
denied he ever visited any of the squadron hospitality suites
during his two-day visit to Tailhook 91. He also denied ever
witnessing any inappropriate behavior, or that he ever
visited the patio on Saturday evening.
69. During the ensuing months of investigation following
the 23 July 1992 interview with ADM Kelso, DCIS investigators
interviewed a number of Tailhook 91 attendees who stated ADM
Kelso was present on the patio on Saturday evening, an issue
which has already been addressed by this court in previous
findings of fact. Based on these statements, Mr. Mike
Suessman, DODIG's office, interviewed ADM Kelso a second time
on 15 April 1993. Prior to the interview, ADM Kelso was
advised of his rights as a suspect pursuant to Article 31(b),
UCMJ. ADM Kelso was specifically advised that many of the
attendees interviewed by DCIS investigators had stated that
he was present on the third floor of the Hilton on Saturday
evening. He was advised these statements were in conflict
with his sworn statement of 23 July 1992 in which he denied
ever visiting the third floor that evening. ADM Kelso was
then advised that he was suspected of committing violations
of Articles 107, UCMJ, Making False Official Statements, and
Article 134, UCMJ, False Swearing, all stemming from his
denial. During that interview, ADM Kelso again denied he was
ever on the third floor of the Hilton on Saturday evening; or
he ever visited any of the suites; or he ever witnessed any
inappropriate behavior during Tailhook 91. See Appellate
Exhibit LXXVII.
ADM Kelso's appointment of VADM reason as the CDA
This court further finds:
70. ADM Kelso served as the Acting Secretary of the Navy
from 20 January 1993 to August 1993. During that time, he
also continued to serve as the Chief of Naval Operations.
71. On about 30 January 1993, VADM Paul Reason, USN,
Commander, Surface Force, U.S. Atlantic Fleet, received
a telephone call from ADM Kelso informing him that he
would be designated as the Navy CDA on 01 February 1993.
ADM Kelso officially appointed VADM Paul Reason, USN, as
the Navy CDA to handle all allegations of misconduct
against Navy personnel stemming from Tailhook 91.
The CDA designation was formalized by CNO letter dated 01
February 1993. Appellate Exhibit LXVII. By this letter, the
VCNO, acting on behalf of ADM Kelso, made it clear to VADM
Reason that he was to exercise his authority as CDA
``independently'' and with ``sole discretion'' in deciding
the appropriate disposition of all cases considered by him.
Paragraph 2. states: ``In exercising this authority, you, in
your sole discretion, may take such administrative or
disciplinary action you deem appropriate, within the
guidelines of R.C.M. 306(c).* * * This includes, but is not
limited to: no action, counseling, non-judicial punishment,
or referral to trial by court-martial.'' In a subsequent
letter dated 23 April 1993, Appellate Exhibit LXVII(A), the
VCNO reemphasized to VADM Reason that he was to act as CDA
with ``sole and unfettered discretion.''
72. By appointing VADM Reason as the CDA, ADM Kelso
withheld convening authority power from all other subordinate
officers in command with the authority to dispose of alleged
violations of the UCMJ stemming from Tailhook 91.
73. At the time ADM Kelso appointed VADM Reason as the CDA,
VADM Reason was junior in rank and command to ADM Kelso.
Withholding of the Flag files from VADM Reason
This court further finds:
74. During the DODIG investigation, information was
obtained regarding the personal involvement of some thirty-
three flag officers, including ADM Kelso, who attended
Tailhook 91. The information on flag officers was cataloged
in separate ``flag files'' and delivered to ADM Kelso as
Acting Secretary of the Navy. The ``flag files'' were sealed
for delivery to the newly appointed Secretary of the Navy,
the Honorable John Dalton. Following a review of the ``flag
files'' by Secretary Dalton, ADM Kelso was issued a Letter of
Caution citing his failure of leadership during his visit to
Tailhook 91.
75. Information contained in the ``flag files,'' including
information on the involvement of ADM Kelso during Tailhook
91, was never provided to VADM Reason prior to his action in
referring the cases at bar for trial. The release of
information contained in the ``flag files'' was released only
after this court issued an order permitting defense discovery
of the information.
v. legal analysis
The court now turns to the task of applying the findings of
fact to the requirements of the law. This first
involves determining whether ADM Kelso is an ``accuser''
as claimed by the defense, and, if so, the effect of such
a status on VADM Reason, the convening authority.
Secondly, the court must determine if any unlawful command
influence has been brought to bear upon VADM Reason by virtue
of ADM Kelso's involvement in Tailhook 91, and ADM Kelso's
subsequent actions surrounding his appointment of VADM Reason
as the CDA.
Since the charges at issue against CDRs Miller and Tritt
are different from the single charge alleged against LT
Samples, the application of the law regarding the ``accuser''
concept and unlawful command influence will be first analyzed
as to its application to CDRs Miller and Tritt, followed by
an analysis of its application to LT Samples.
The Accuser Concept
An ``accuser'' is defined in Article 1(9), UCMJ, as any
person who: (1) signs and swears to charges; (2) directs that
charges nominally be signed and sworn by another; or (3) has
an interest other than an official interest in the
prosecution of the accused. The evidence presented primarily
involves the third type of ``accuser.''
One prong of the government's argument is that even if the
court were to find that ADM Kelso was exposed to untoward
behavior during Tailhook 91, or that he even witnessed such
behavior, no credible evidence has been presented showing
that ADM Kelso has any personal interest in the prosecution
of either CDR Miller, CDR Tritt, or LT Samples. More
specifically, the government contends that the defense has
failed to show a relevant nexus between ADM Kelso's
involvement at Tailhook 91 and the actions of VADM Reason in
referring the cases at bar to trial by general court-martial.
The government is correct in its assertion that no evidence
has been presented showing that ADM Kelso possessed a direct
or specific interest in any of the cases at bar when applying
a literal interpretation of the wording of Article 1(9), that
is, ``an interest other than official in the prosecution of
the accused.'' However, the government's interpretation of
Article 1(9), UCMJ, falls short of the interpretation given
this Article by the U.S. Court of Military Appeals, which has
consistently applied a much broader interpretation of the
``type-three accuser'' than the bare reading of the Article
1(9) would indicate.
In United States v. Gordon, 2 C.M.R. 161, (1952), the U.S.
Court of Military Appeals rejected an argument by government
counsel that an accused should be required to show that the
convening authority had an actual and personal interest in
his prosecution. The court states that: ``We do not believe
the true test is the animus of the convening authority. This
undoubtedly was the early rule but, as we view it, the test
should be whether the appointing authority was so closely
connected to the offense that a reasonable person
would conclude that he has a personal interest in the
matter.'' (Gordon at 167 (emphasis added).)
During the past 41 years, the United States Court of
Military Appeals has refused to narrow the expansive
protection provided by its interpretation in Gordon of
Article 1(9). In United States v. Crossley, 10 M.J. 376, 378
(CMA 1981), the court states that:
``We do not attempt here to psychologize the mind of the
convening authority nor should this opinion be read as a
criticism of this convening authority's animus or decision-
making. We only perceive a reasonable probability that his
review of the matter reflected personal interest. Cf. United
States v. Conn [6 M.J. 351 (CMA 1979)]. We reiterate merely
that ``[c]onvening [authorities] should remember that there
are easy and adequate means to have'' reviewing functions
performed by an authority with no personal feeling in the
outcome of the litigation. United States v. Gordon''
(citation omitted) (emphasis added).
In this case, Chief Judge Everett, in a concurring opinion,
summarizes the reason the court has chosen to maintain a
broad interpretation of the ``type-three accuser:''
``Among the most vehement complaints against military
justice are those which concern the role of the military
commander, who has the responsibility for maintaining
discipline and yet appoints the court-martial members and
reviews the findings and sentence. Congress has made the
determination that in this situation a commander may ``carry
water on both shoulders.'' At the same time, however, by
providing that an ``accuser'' may not convene a special or
general court-martial [references omitted], Congress revealed
its intention that, in a case where observers might
reasonably conclude that a commander had more than a purely
official involvement, he should turn over his
responsibilities to a superior commander.''
Crossley at 379. Chief Judge Everett also states that,
``the Court remains aware that to give a narrow
interpretation to `accuser' would fan the criticism of the
broad responsibilities Congress has assigned to military
commanders.'' Id.
In its most recent decision involving a ``type-three
accuser,'' the U.S. Court of Military Appeals restates its
prior interpretation of Article 1(9), UCMJ, and provides an
objective test setting forth the criteria to be applied in
determining whether a convening authority is an ``accuser''
within the meaning of Article 1(9), UCMJ:
``The test of a convening authority's status as an accuser
is ``whether, under the particular facts and circumstances *
* * a reasonable person would impute to him a personal
feeling or interest in the outcome of the litigation.''
United States v. Gordon, 1 USCMA 255, 260, 2 CMR 161, 166
(1952).'' (United States v. Jeter, 35 M.J. 442, 445 (CMA
1992) (emphasis in original).)
In Jeter\9\, the court found the reviewing authority to be
a ``type-three accuser'' even though his only possible bias
was in favor of the accused and ``even though [the court had]
no doubt that, at all times involved, the general's motives
were good.'' Jeter at 446. Thus, it is not some level of
enmity or hostility against an accused that defines an
``accuser,'' but rather any level of personal interest in the
litigation.
Although Article 1(9), UCMJ, is silent on the subject,
appellate court decisions, upon which R.C.M. 504(b)(2) is
based, clearly provide that a military commander who is
subordinate to an ``accuser'' will also be disqualified as a
convening authority. It is for this reason that Articles
22(b) and 23(b), UCMJ, require, in instances where the
convening authority is an ``accuser,'' that the charges shall
be forwarded to another convening authority who is both
superior in grade and position in the chain of command. This
procedure is mandated in both special and general courts-
martial.
The disqualification of a military commander who is
subordinate to an ``accuser'' is referred to as the ``junior
accuser'' concept. The disqualification of the junior
commander may occur when he or she stands in one of the
following positions in relation to the superior ``accuser:''
1. Subordinate in the chain of command. See United States
v. Grow, 11 C.M.R. 77 (1953); United States v. Haygood, 31
C.M.R. 67 (1961). But see United States v. Avery, 30 C.M.R.
885 (A.C.M.R. 1960); United States v. Garcia, 16 C.M.R.
674 (A.C.M.R. 1954).
2. Junior in rank and outside the chain of command. See
United States v. LaGrange, 3 C.M.R. 76 (1952); United States
v. Burnette, 5 C.M.R. 522 (A.B.R. 1952); United States v.
Navarro, 20 C.M.R. 778 (A.B.R. 1955); United States v.
Chaves, 23 C.M.R. 701 (C.G.B.R. 1957).
3. Successor in command, at least where junior in rank. See
United States v. Cocoran, 17 M.J. 137 (C.M.A. 1984); United
States v. Kostes, 38 C.M.R. 512 (A.B.R. 1967).
Further, the ``junior accuser'' concept is applicable
whether or not the superior ``accuser'' ordinarily would act
as convening authority. See, e.g., United States v. Grow, 11
C.M.R. at 77. Also, the application of the accuser law is
primarily a question of ``fact and must be resolved in light
of each case.'' United States v. Gilfilen, 35 M.J. 699, 701
(NMCMR 1978). Finally, when a determination is made that the
convening authority is an ``accuser,'' or the convening
authority is a ``junior accuser,'' the law requires the
dismissal of charges. United States v. Crossley, 10 M.J. 376,
379 (CMA 1981).
Having reviewed the body of law in the area, the court must
now apply the Gordon standard to determine whether ADM Kelso
is so closely connected to the three cases at bar that a
reasonable person would impute to him a level of personal
feeling or interest in the outcome of the litigation.
The court first notes that no military appellate court has
ever addressed the ``accuser'' concept in a factual situation
where either the convening authority, or the immediate
superior appointing the convening authority, has been
allegedly involved in the same or similar misconduct as that
alleged against the accused. However, in United States v.
Allen, 31 M.J. 578 (NMCMR 1990), aff'd 33 M.J. 209 (CMA
1991), the Navy-Marine Corps Court of Military Review
discusses the ``accuser'' concept in a situation where there
existed the potential for the Secretary of the Navy to be
designated an ``accuser,'' and thus the disqualification of
all of his subordinate convening authorities. The facts in
Allen are worthy of discussion here in order to bring into
perspective the circumstances surrounding ADM Kelso's
interest in the cases before this court. Further, a
comparison of some of the key aspects of the Navy Secretary's
involvement in Allen to those involving ADM Kelso at Tailhook
91 is helpful to the determination of whether ADM Kelso's
interest in the cases of CDRs Miller and Tritt is purely
official or personal in nature.
The Allen case involved charges of espionage on behalf of
the Philippine government and violations of security
regulations. Prior to the Allen case, the Walker spy ring had
been discovered and prosecuted. The ringleader, a retired
Navy officer, Walker, had been convicted in a Federal
District Court pursuant to his pleas. The Secretary of the
Navy strongly and publicly criticized the handling and the
sentence of the Walker case.
Although without jurisdiction in the Department of
Justice arena, the Secretary took action within his naval
sphere of control. He issued directives restricting both
convening authority referral discretion and military judge
assignment to cases involving national security issues.
Subsequently, claims were made that the Secretary's vocal
disapproval of the handling of the Walker spy case gave
him a personal interest in all later courts-martial
involving violations of law protecting national security.
It was further claimed that his personal interest branded
him a ``type-three accuser'' and disqualified both him and
all subordinate convening authorities from referring any
case involving national security violations, and in
particular, Senior Chief Radioman Allen.
In addressing this issue, the Navy-Marine Corps Court of
Military Review first agreed that if the Secretary of the
Navy had any personal interest in the prosecution of Senior
Chief Allen he would be an ``accuser'' within the meaning of
Article 1(9), UCMJ. Further, that his status as an
``accuser'' would serve to disqualify all subordinate
commanders under his command from convening these types of
courts-martial. The Court then made two factual
determinations. First, all national security directives were
promulgated by the Secretary with legitimate statutory and
regulatory authority. Second, in holding that the Secretary's
interest was official only, the Court found no reasonable
probability existed that the Secretary's displeasure with the
Walker case so closely connected him to the Allen prosecution
that it could be deemed to amount to a personal interest in
the outcome of that litigation.
As noted in the above factual summation, the Secretary was,
at best, displeased with the outcome of the Walker case, and
equally embarrassed by the indignation suffered by the Navy,
as well as the more critical matter of the immeasurable
damage to the national security of the United States. In a
similar vein, the revelation of inappropriate behavior and
assaultive conduct at Tailhook 91 has led to an unprecedented
level of public embarrassment and a corresponding loss of
confidence in the leadership of the Navy. These unfortunate
circumstances were clearly at the heart of many of ADM
Kelso's comments to DCIS investigators during his 23 July
1992 interview. During the interview ADM Kelso decried the
misconduct of junior aviators at Tailhook 91 and reflected on
actions that should have been taken to prevent such conduct.
Thus, as was asked of the Secretary's involvement in Allen,
did ADM Kelso's obvious indignation and embarrassment amount
to a personal interest in the ensuing investigations of
Tailhook 91, and the litigation that followed? This court
reasons that, standing alone, ADM Kelso's vehement
disapproval would not amount to a personal interest. As in
Allen, official indignation, no matter how strong, is not
disqualifying when it is espoused in a purely official
capacity.
However, unlike the Secretary's involvement in Allen, ADM
Kelso was actually present and personally involved in the
events at Tailhook 91. This court has determined that, as
is alleged against CDRs Miller and Tritt, ADM Kelso
actually observed sexually oriented misconduct on the
patio and in the various squadron hospitality suites on
Friday night, and on Saturday evening as well, and he
failed to take action to stop such conduct.
Applying the objective ``reasonable person'' standard of
the Gordon case to these circumstances, the critical issue is
whether ADM Kelso's own presence and personal knowledge of
some of the inappropriate conduct on the patio and in the
hospitality suites, and his apparent failure to act to stop
such conduct, would lead a reasonable person to conclude that
he must therefore be so closely connected to these cases that
his interest in the outcome of the instant cases is more than
purely official. Based on the totality of evidence presented
and this court's related findings of fact, the answer can
only be yes. A reasonable person would have to conclude that
ADM Kelso would have more than a purely official interest.
Thus, under the Gordon standard, ADM Kelso is an ``accuser''
within the meaning of Article 1(9), UCMJ.
ADM Kelso's personal interest is further demonstrated by
other aspects of his involvement as set forth in this court's
findings of fact. First, this court found that the NIS
investigation was limited only to the complaints of criminal
assault against female attendees. The subsequent DODIG
investigation was expanded to focus on the presence and
behavior of flag and general officers, including ADM Kelso.
During the course of the this DODIG investigation, Admiral
Kelso was interviewed by DCIS investigators at which time he
stated that he did not recall ever being present on the third
floor of the Hilton on Saturday, 07 September 1991. During
the ensuing months of investigation, large number of
eyewitnesses stated to DCIS investigators that they observed
ADM Kelso on the patio on Saturday evening.
Based on the inconsistencies between ADM Kelso account and
the accounts given by the eyewitnesses, DODIG investigators
interviewed ADM Kelso a second time. This interview was
preceded by advisement pursuant to Article 31(b), UCMJ, that
ADM KElso was suspected of making a false statement to
investigators regarding his presence on the third floor of
the Hilton on Saturday. A number of eyewitnesses had
contradicted his account of his activities and movements on
Saturday evening by reporting their observations of him on
the patio and near the area where known assaultive conduct
had allegedly occurred. Under these circumstances, a
reasonable person would conclude that ADM Kelso's status as a
suspect would make him personally interested in the
investigation of his activities at Tailhook 91, and in the
litigation of any case that might focus on this involvement
as claimed by the eyewitnesses.
Secondly, in examining the trial itself, where numerous,
credible witnesses came forward to testify that they saw ADM
Kelso on the third floor pool patio area of the Hilton on
Saturday evening in obvious contradiction to ADM Kelso's
sworn denial before this court, a reasonable person would be
forced to conclude that ADM Kelso had a personal interest in
this litigation. The motive for ADM Kelso's denial that he
ever witnessed any inappropriate conduct at any time
during Tailhook 91, and his denial that he was ever
present on the patio on Saturday evening, clearly define
ADM Kelso's personal stake and interest in these cases.
Considering the totality of ADM Kelso's personal
involvement in Tailhook 91, this court harbors no doubt that
at the time ADM Kelso appointed VADM Reason as the CDA, he
was so closely connected to the events surrounding the
charges of omission against CDRs Miller and Tritt that his
interest was primarily personal.
While it may be that ADM Kelso's took no direct action
related specifically to the Miller and Tritt cases based
solely upon his personal interest, the law makes no
exception. Having a personal interest in the litigation, ADM
Kelso is an ``accuser'' within the meaning of Article 1(9),
UCMJ.
Finally, this court must analyze whether the ``accuser''
concept extends to LT Samples. The nexus that exists between
ADM Kelso's actions and the charges against LT Samples is
much less than that which exists in the cases of CDRs Miller
and Tritt. LT Samples is not charged with failure to prevent
misconduct. He is charged with actual, assaultive behavior.
This misconduct allegedly occurred on the evening of 07
September 1991. Moreover, there is no convincing evidence
(and the court does not believe) ADM Kelso personally
witnessed any of the criminal assaults that allegedly
occurred in the third floor hallway of the Hilton on Saturday
evening.
It is apparent, however, from the charges in the Miller and
Tritt cases that the government alleges a failure of
leadership on the part of senior officers in attendance at
Tailhook 91. The defense claims that this failure of
leadership was displayed from the highest ranking officer to
the lowest, and to lodge criminal charges of omission against
two commanders, from a group of what admittedly is a large
number of officers, is patently unfair and unjust.
Given what reasonable citizens would perceive to be a naval
officer duty to intervene when faced with obvious
improprieties by his subordinates, a failure to intervene
would constitute abandonment of the leadership
responsibilities entrusted to them by their station and rank.
As noted earlier in the background discussion, if senior
officers had intervened weeks, days, hours, or even minutes
prior to these criminal assaults, a high probability exists
that both the assaults and much of the Navy's embarrassment
could have been avoided. The greatest responsibility must lie
with the most senior officers, and ADM Kelso was the most
senior military officer present.
This court has found that ADM Kelso was present on the
third floor patio on both Friday and Saturday evenings, near
the location where alleged assaults on female attendees
occurred. This court has also found that ADM Kelso witnessed
improper conduct being committed by junior officers. Many
other senior naval officers witnessed similar activity. It is
clear from the record that no one attempted to intervene
to end the lewd and improper sexually oriented behavior.
Conduct which began as being merely in bad taste quickly
escalated and finally ended in physical assaults. If
proper leadership had been shown, the subsequent assaults
and other inappropriate conduct might have been prevented.
All commanders who observed improprieties in officer
conduct at Tailhook 91 and failed to act are consequently
disqualified as convening authorities. All commanders who
personally witnessed improper conduct at prior Tailhook
symposiums and consequently knew personally of the history of
these symposiums as opportunities for excessive alcohol
consumption, rowdy behavior and immoral, sexually-oriented
activities, and who voiced no protests, are similarly
disqualified. This court harbors no doubt that their personal
inaction in failing to intervene to prevent inappropriate
conduct would be viewed by reasonable people as being a
significant contributing factor in the unrestrained
atmosphere which escalated to the sexual assaults on female
attendees that ensued on the evening of 07 September 1991.
The circumstances can only be viewed as a personal
embarrassment for all senior naval officers who could have
acted, but did not. The opportunity to spare the Navy and the
Marine Corps the chagrin and humiliation that has been heaped
upon it was lost. Given the intense media interest,
Presidential and Congressional condemnation, and the general
lost of public confidence in the Navy, no senior officer who
was personally involved in the Tailhook 91 can exercise that
high degree of impartiality required as a convening authority
in this situation.
For these reasons, although less direct, ADM Kelso has a
personal interest in the outcome of the litigation involving
LT Samples as well.
Irrespective of the rationale stated above for the
denomination of ADM Kelso as a ``accuser'' in either of the
cases at bar, this court strongly views the necessity to
follow the spirit of Article 1(9), UCMJ, as an equally
justifiable basis for disqualifying ADM Kelso as an
``accuser'' in all three cases at bar. Clearly, the
protective spirit of this Article dictates that any military
commander convening a court-martial calling a subordinate to
account for an act of misconduct in violation of the UCMJ,
must be free from any suspicion of involvement, directly or
indirectly, in the same or any related act of misconduct.
This is matter of fundamental fairness. Whenever even the
appearance of personal involvement on the part of the
military commander cannot be dispelled with reasonable
certainly, that commander must be deemed to possess an
interest ``other than official'' in the prosecution of his or
her subordinate and must be disqualified as an ``accuser''
from acting as the convening authority.
Likewise, under such circumstances, any junior commander in
the direct chain of command of a superior ``accuser'' must be
disqualified. A junior commander in the chain of command
simply cannot act with the degree of impartially demanded by
the UCMJ under the ``chilling'' effect of his or her
senior's actual or suspected personal involvement.
This court's ultimate finding on this issue is that ADM
Kelso is an ``accuser'' in all three cases joined for the
purpose of this motion. Considering all the circumstances
related above, one can ask the question Judge Cox proposes in
the Jeter case to determine personal interest, ``[s]hould I
have removed myself as the judge in the case?'' Jeter, 35
M.J. at 447. While this standard is too strict, there is no
doubt that ADM Kelso could not under any circumstances judge
either CDR Miller, CDR Tritt, or LT Samples, with the degree
of impartiality mandated by the UCMJ.
As far as the cases of CDR Miller, CDR Tritt and LT Samples
are concerned, this court has carefully reviewed the
circumstances of ADM Kelso's activities relating to Tailhook
91. The court's inevitable conclusion is that the current
convening authority, VADM Reason, as with all commanders
subordinate to ADM Kelso, cannot function as the convening
authority in the manner envisioned by Congress. Although VADM
Reason's conduct has been above reproach, as an officer
subordinate to ADM Kelso, he is a ``junior accuser.''
Therefore, VADM Reason must be disqualified as a matter of
law.
Command influence
To protect those responsible for administering the military
justice systems from unlawful command influence in the
exercise of their official Codal responsibilities, the
Congress enacted Article 37, UCMJ, as a part of the 1951
Code. This Article states that:
``No person subject to this chapter may attempt to coerce
or, by any unauthorized means, influence the action of a
court-martial or any other military tribunal or any member
thereof, in reaching the findings or sentence in any case, or
the action of any convening, approving, or reviewing
authority with respect to his judicial acts.''
One of the principal purposes of Article 37, UCMJ, is to
ensure the impartiality of the military judicial process by
protecting the convening authority from undue command
influence in the exercise of his or her independent judgment
in disposing of alleged violations of the UCMJ. In addition
to ensuring the impartially of the military justice process,
it is also intended to convey a sense of confidence in the
integrity of the military justice process in the public eye.
Military appellate courts have recognized two types of
unlawful command influence, actual and apparent.
First, actual unlawful command influence occurs when there
is an intentional or unintentional influence exerted by
higher authority which works to undermine the impartiality of
the military justice system. This may be an intentional
effort to assist the prosecution or it may be an innocent
action, such as a call to action to get tough on drug use,
which inadvertently serves to bias members of the court.
This is true for influence directed at the convening
authority, for example, it is unlawful for a superior
commander by personal persuasion to adversely interfere
with the independent decision-making process of a
subordinate commander.
Unlawful command influence can also occur by regulation,
memorandum, or briefing, initiated or made by the convening
authority, the staff judge advocate, trial counsel, or higher
authority. For policy directives see United States v. Brice,
19 M.J. 170 (C.M.A. 1985) and United States v. Treakle, 18
M.J. 646 (A.C.M.R. 1984), where policy directives were
interpreted by many as mandating a policy not to give
character evidence for an accused at court-martial. The
appearance of unlawful command influence that existed in that
case mandated reversal as to sentence.
The test for actual unlawful command influence is
``figuratively'' described by the Navy-Marine Corps Court of
Military Review as being ``whether the convening authority
has been brought into the deliberation room.'' See Allen at
509 (quoting U.S. v. Grady, 15 M.J. 275 (C.M.A 1983)).
Apparent unlawful command influence, on the other hand, is
premised on the external perception of fairness in the
military justice system. This form of unlawful command
influence centers on the loss of confidence in the integrity
of the process in the public eye as discussed above. The
Navy-Marine Corps Court of Military Review provides a
standard for this type of unlawful command influence. As
formulated by that court, ``the test for apparent unlawful
command influence is whether a reasonable member of the
public, if aware of all the facts, would have a loss of
confidence in the military justice system and believe it to
be unfair.'' Allen at 509 (citing both U.S. v. Rosser, 6 M.J.
267 (C.M.A. 1979); U.S. v. Cruz, 20 M.J. 873, 890 (ACMR
1985)).
Turning now to the application of the law to this court's
findings of fact, the first issue is whether ADM Kelso's
action in appointing VADM Reason as CDA amounted to unlawful
command influence in any of the cases at bar.
Although tied more directly to the issue of ADM Kelso's
status as an ``accuser,'' the defense claims that ADM Kelso
exerted actual unlawful command influence by appointing VADM
Reason as the CDA, thereby withholding authority to convene
courts-martial from all other commanders, including those in
CDR Miller, CDR Tritt, and LT Samples chain of command who
would ordinarily be responsible under the UCMJ for convening
their respective cases.
The withholding of convening authority power from the
immediate superior of an accused is rare. However, as
acknowledged by the defense, such a withholding is not
proscribed by the UCMJ. Further, it does not infer any
unlawful infringement on the discretionary authority vested
in the commanders from which the convening authority power is
withheld. For example, in Allen at 591-592, the Navy-Marine
Corps Court of Military Review held that it was proper to
limit the discretion of Commander Naval Forces Pacific in
the disposition of national security cases so long as the
Secretary did not interfere with the exercise of that
discretion once a case was in his hands. Thus, the issue
is not whether it was unlawful for ADM Kelso to appoint
VADM Reason as the CDA, the issue is whether VADM Reason
was allowed to exercise his independent discretion
following the CDA appointment.
Case law holds the existence of improper command influence
must be determined on a case-by-case basis and is a factual
decision to be made by the court. See See v. Accodino, 20
M.J. 870 (AFCMR 1985).
This court has found that ADM Kelso was cognizant of the
narrow focus of the NIS investigation, i.e., excluded any
inquiry into the personal involvement of flag officers at
Tailhook 91, including his own personal involvement. The
court has also found that following the DODIG investigation,
ADM Kelso received the separately maintained files containing
information describing the alleged failure of leadership and
other personal involvement of a number of flag officers,
including his own file. This court further found that none of
these files were ever delivered to VADM Reason for
consideration in his referral decision process. This court
also found that ADM Kelso attempted to shield his personal
involvement at Tailhook 91 by denying that he ever observed
any inappropriate behavior on the part of junior aviators
during his visit to Tailhook 91. The court further found that
ADM Kelso, despite his denial, was, in fact, present on the
patio on Saturday evening at about the same time that the
alleged acts of omission occurred supporting the allegations
of dereliction of duty and conduct unbecoming that of an
officer charged against CDRs Miller and Tritt.
During the course of the litigation of the motion at bar,
this court determined that all of this information was
withheld from VADM Reason prior to his decision to refer CDRs
Miller and Tritt's cases to trial by court-martial. It was
only after extensive litigation and numerous orders by this
court that this information was finally disclosed and made
available to VADM Reason.
Based on these circumstances, and despite ADM Kelso's 01
February 1993 written direction to VADM Reason that he
utilize his independent discretion in disposing of Tailhook
cases, this court finds that ADM Kelso manipulated the
initial investigative process and the subsequent CDA process
in a manner designed to shield his personal involvement in
Tailhook 91. This manipulation of the process by ADM Kelso
and others was for their own personal ends and not directed
at these accused. However, this court further finds that ADM
Kelso's actions, although not intentionally directed at
either the prosecution of CDRs Miller or Tritt, had a
significant influence on VADM Reason's decision to bring
charges against them. In this respect, this court can only
speculate as to what VADM Reason's referral decision may have
been as to the charges alleged against CDRs Miller and
Tritt had be known of the extent of ADM Kelso's personal
involvement, and that of other senior flag officers, at
Tailhook 91. This is particularly true in light of the
fact that the evidence strongly suggests that ADM Kelso
was present on the patio at the same time the alleged acts
of misconduct took place which CDRs Miller and Tritt are
charged with failing to stop.
The government suggests that the decision by VADM Reason to
prosecute CDRs Miller and Tritt may have been the same even
if he was aware of ADM Kelso's involvement. This may be true,
but it is a matter of speculation at best. In any case it
does not serve to cure the adverse impact on the referral
process. Thus, this court finds that the totality of ADM
Kelso's actions not only served to denominate him an
``accuser,'' his actions also amounted to actual unlawful
command influence.
Even if it could be determined that ADM Kelso's actions
also did not amount to actual unlawful command influence, it
could not be denied that the totality of his actions amounted
to at least apparent unlawful command influence.
The Court of Military Appeals held in U.S. v. Karlson, 16
M.J. 469 (C.M.A. 1983), that the public's confidence in a
fair and impartial military justice system must be
maintained, and the appearance of manipulation by superiors
cannot be permitted to exist. The Court has also held:
``Nothing erodes public confidence in the military justice
system as quickly as the perception that the outcome of a
trial, be it findings or sentence, is preordained by the
improper exercise of command position. One of the basic
objectives of the Uniform Code of Military Justice is to
eradicate the misuse of command power.'' U.S. v. Tucker, 20
M.J. 863, 865 (AFCMR 1985) (citing U.S. v. Cole, 17
U.S.C.M.A. 296, 36 C.M.R. 94 (C.M.A. 1967)).)
This public confidence would certainly be lost if this
court were to allow ADM Kelso's obvious manipulation of the
Tailhook 91 investigative process and the subsequent CDA
appointment process to stand. This court has no doubt that
any reasonable member of the public would view the military
justice system as being unfair if he or she knew of the
circumstances surrounding ADM Kelso's involvement at Tailhook
91, and his subsequent involvement in the investigative and
CDA processes. The appearance of shielding senor officers
while permitting the courts-martial of the more junior
officers under the convening authority of VADM Reason cannot
be denied. While this may not rise to the level of selective
prosecution, the public would likely view it as such. At the
very least, the public would perceive the military justice
process as promoting an unfair double standard. Under the
mandate of the court's holding in Karlson, such an appearance
must be avoided, and cannot be allowed by this court to stand
without providing a corrective remedy.
The Court of Military Appeals has held that where any doubt
exist as to the presence of unlawful command influence, the
doubt must be resolved in favor of the accused. See U.S. v.
Kitchens, 12 U.S.C.M.A. 589, 31 C.M.R. 175 (1961).
Moreover, the government must prove beyond a reasonable
doubt that the existence of unlawful command influence
will not adversely impact the right of CDR Miller and CDR
Tritt to a fair trial on the merits. See U.S. v. Dykes, 38
M.J. 270 (CMA 1993). This court finds that in the cases of
CDR Miller and CDR Tritt the government has not met that
burden.
The issue of how ADM Kelso's actions impacted on VADM
Reason's decision to refer LT Samples' case to trial is not
as easy to discern as in the cases of CDRs Miller and Tritt.
As previously stated, the charge against LT Samples involves
only assaultive conduct, allegedly occurring in the third
floor hallway of the Hilton on Saturday evening.
No direct evidence exists supporting that ADM Kelso was
actually present in the hallway that evening, or that he
witnessed any assaultive behavior in the third floor hallway
at any time during Tailhook 91. Therefore, the nexus between
ADM Kelso's actions as discussed above and the single offense
charged against LT Samples, and any potential adverse impact
on VADM Reason's deliberative referral process, is much less
evident than in the cases of CDRs Miller and Tritt.
Had VADM Reason known of ADM Kelso's involvement in
Tailhook 91, would the referral of charges against LT Samples
been any different? This court cannot determine with
reasonable certainty the extent of potential impact on the
CDA's referral decision. This uncertainty must be resolved in
favor of LT Samples. See Kitchens.
In light of all of the facts and circumstances which have
been established during the five weeks of litigation on the
motion at bar, many of which were unknown to VADM Reason at
the time he referred LT Samples case to trial, this court
finds that LT Samples' case should be reviewed de novo by a
convening authority superior in rank and command to ADM Kelso
to ensure that he has been given fair and impartial treatment
in the critical referral process.
It Is Hereby Ordered, based upon the findings of this court
(1) that ADM Kelso is an ``accuser'' within the meaning of
Article 1(9), UCMJ, with regard to each accused and (2) that
there has been both actual and apparent unlawful command
influence in each case, the charges against CDR Thomas R.
Miller, U.S. Navy, CDR Gregory E. Tritt, U.S. Navy, and LT
David Samples, U.S. Navy are hereby DISMISSED WITHOUT
PREJUDICE to the government's right to reinstate court-
martial proceedings against the accused for the same offenses
at a later date.
It Is Further Ordered that VADM Reason is disqualified as
convening authority pursuant to R.C.M. 504. In light of this
order, VADM Reason may proceed with the following actions
only:
(1) Make a decision to take no further adverse actions
against any or all of the three accused, effectively ending
the proceedings;
(2) Take administrative or non-judicial disciplinary action
in any or all of the cases in lieu of further judicial
proceedings;
(3) Forward the charges to an authority senior in rank and
command to ADM Kelso pursuant to R.C.M. 401(c) and section
0129 of the JAG Manual for disposition by superior competent
authority, which may include the reinstatement of charges
against these accused.
William T. Vest, Jr.,
Captain, JAGC, USN,
Circuit Military Judge.
footnotes
\1\CDR Gregory E. Tritt, U.S. Navy, an accused before a
separate general court-martial, requested leave of court to
join in this motion with CDR Miller on grounds that a similar
motion had been filed with the court in his case. CDR Tritt
and his counsel were present for each hearing on this motion.
After the presentation of evidence on the motion, LT David
Samples, U.S. Navy, likewise an accused before a separate
general court-martial, requested to join in the motion.
Although coming in later, LT Samples claimed similar issues
of law and fact on the motion and waived presentation of
further evidence. The government had no objection. This court
granted both the request of CDR Tritt and LT Samples to join
the motion in the interest of judicial economy.
\2\Article 1(9), UCMJ, reads in pertinent part: ```Accuser'
means * * * any other person who has an interest other than
an official interest in the prosecution of the accused.''
\3\Article 37, UCMJ reads in part: ``No person subject to
this chapter may attempt to * * * by any unauthorized means,
influence * * * the action of any convening, approving, or
reviewing authority with respect to his judicial acts.''
\4\The Defense Criminal Investigative Service (DCIS) is a
part of the Department of Defense Inspector General's Office
(DODIG) and throughout this hearing witnesses have referred
to them interchangeably.
\5\The female leg shaving exhibition was positioned directly
behind the full-length window in one of the hospitality
suites. Those on the patio outside the window and those in
the suite were encouraged to watch an elaborate shaving
process that included having the woman sit in a barber chair
and expose her legs as much as she would permit, then two
Navy officers would massage oil on her legs, apply the
shaving cream, and then shave the legs. Although less
offensive, it was intended to draw people to the suite in the
same way as professional strippers and other lewd exhibitions
were employed by other hospitality suites.
\6\These courts-martial have been consolidated for this
motion only. All references to the transcript page numbers
are to the unauthenticated record of United States v. Miller.
If and when the record is fully reviewed and authenticated,
the page numbers may be slightly different as a result of
normal editing.
\7\These Reports of Interview proved to be problematic
throughout this hearing. The methodology for the DCIS
investigators was to interview a witness and take handwritten
notes, no audio or video recording was ever done, and then to
prepare the ROI from the notes some days or even weeks later.
The ROI was never shown to the witness and the witness was
never asked to acknowledge the accuracy of the ROI, much less
swear to the truth of the contents. This novice approach to
criminal investigation resulted in the wholesale repudiation
of the reports by many of the witnesses. This court has given
minimal weight to the ROIs unless they have been subsequently
verified through stipulation, in-court testimony, or some
other reliable means, such as clear and specific references
in the handwritten notes of the investigator.
\8\It is important to note that not only has the U.S. Court
of Military Appeals maintained a consistent interpretation of
``accuser'' for over 40 years, but given this long-standing
interpretation, Congress has made no changes to the law.
\9\Judge Gierke, concurring in result, takes issue with the
expansive interpretation of a type-three accuser. ``I believe
that the correct definition of `accuser' is limited to anyone
who has a personal interest in ensuring that the accused is
prosecuted.'' Jeter at 448. Judge Cox, also in a concurring
opinion, takes the opposite approach and would require the
convening authority to have the highest level of judicial
impartiality. ``I ask only the question, `Should I have
removed myself as the judge in the case?''' Jeter at 447.
Although this court did not employ either of these outermost
standards, I will note that given the facts of this case, the
current finding of this court would be the same.
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