[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.

                          ____________________