[Congressional Record Volume 140, Number 112 (Friday, August 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
    NOMINATION OF ADM. HENRY MAUZ, JR., U.S. NAVY TO RETIRE IN GRADE

  Mr. NUNN. Madam President, the Committee on Armed Services today 
reported the nomination of Adm. Henry Mauz, Jr., U.S. Navy, to retire 
in grade. In view of the media attention to certain allegations about 
this nomination, the committee has directed the chairman and ranking 
minority member to prepare a statement describing the committee's 
action. I ask unanimous consent that a joint statement prepared by 
myself and Senator Thurmond be included in the Record at this point, 
along with the documents referred to in the joint statement.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Joint Statement by Senator Sam Nunn, Chairman of the Senate Armed 
Services Committee and Senator Strom Thurmond, Ranking Minority Member, 
Concerning the Nomination of Adm. Henry Mauz, Jr., U.S. Navy To Retire 
                                in Grade

       Admiral Henry Mauz, Jr. is currently serving as the 
     Commander in Chief, U.S. Atlantic Fleet. On May 10, 1994, he 
     was nominated by President Clinton to retire in grade as a 
     four star admiral after more than 35 years of outstanding 
     service.
       The Committee was prepared to act on the Mauz nomination in 
     July, when we received a letter about the nomination from the 
     Government Accountability Project (GAP), a non-profit 
     organization, dated July 11, 1994. The letter contained 
     allegations of inappropriate action by Admiral Mauz with 
     respect to investigation and disposition of sexual harassment 
     incident. The letter also contained allegations that Admiral 
     Mauz had inappropriately used government assets and 
     retaliated against a whistleblower.
       The Committee followed its normal procedures and forwarded 
     the material to the Navy, directing the Navy to address the 
     issues set forth in the letter. The Committee subsequently 
     received an additional letter from GAP, dated August 5, 1994, 
     which also was forwarded to the Navy.
       Adm. J.M. Boorda, the Chief of Naval Operations, responded 
     to the first letter from GAP in a letter dated July 27, 1994. 
     Secretary of the Navy John Dalton responded to the second 
     letter on August 5, 1994. The Committee has carefully 
     considered the material provided by GAP and the responses 
     provided by the Navy, copies of which are attached. The 
     Committee has received a report on these and other matters. 
     Based on the material provided by the Navy, and Admiral 
     Mauz's record of service, the Committee has recommended that 
     the Senate confirm his nomination to retire in grade.
                                  ____



                                    Chief of Naval Operations,

                                                    July 27, 1994.
     Hon. Sam Nunn,
     Chairman, Senate Armed Services Committee, U.S. Senate; 
         Washington, DC.
       Dear Mr. Chairman, I am responding to your letter of July 
     21, 1994 to the Secretary of the Navy which enclosed a letter 
     from the Government Accountability Project, concerning the 
     retirement confirmation of Admiral Henry Mauz, Jr., U.S. 
     Navy. I have reviewed the letter as well as the letters from 
     Lieutenant Darlene Simmons and Senior Chief George Taylor 
     that were included. It is my judgment that the allegations in 
     these letters are not correct. Admiral Mauz has served 
     faithfully and well in every assignment including this final 
     one as a four star officer and deserves to retire in grade.
       Before turning to these allegations, I want to state that 
     Admiral Mauz is completing a career that exceeds thirty-five 
     years of dedicated service to our Nation. He is scheduled to 
     retire and desires to do so. His relief has been confirmed 
     and is ready to assume the duties of Commander in Chief, U.S. 
     Atlantic Fleet. Admiral Mauz's plans to enter the next phase 
     of his personal and professional life are being delayed as is 
     the assumption of command by the relieving officer. Admiral 
     Mauz's performance has been outstanding throughout his career 
     including, especially including, this final tour as Commander 
     in Chief, U.S. Atlantic Fleet.
       With regard to LT Simmons, Admiral Mauz did not suppress 
     the evidence of any inquiry, did not fail to take corrective 
     action on behalf of LT Simmons, nor did he fail to follow 
     proper procedures in inquiring into allegations. Further, the 
     Inspector General of the Atlantic Fleet did not cover-up the 
     nature and extent of underlying problems nor prevent 
     appropriate remedial action in the case.
       The case of LT Simmons is an involved one with several 
     complaints, overlapping in time, and inquiries that took 
     place over nearly two years. It is clear that in 1992 LT 
     Simmons was sexually harassed while stationed aboard USS 
     CANOPUS (AS-34). While serving as Legal Officer in that ship 
     she received repeated requests for dates and comments about 
     her physical appearance from another officer who was one rank 
     senior to her and with whom she worked closely in the 
     performance of her duties.
       The case was initiated at the shipboard level on 1 June 
     1992, when LT Simmons reported to the ship's Executive 
     Officer that she was being sexually harassed by another 
     officer. The allegations involved repeated requests for dates 
     and comments about her physical appearance. On 5 June 1992, 
     the officer was counseled and administrative action was 
     taken. He requested retirement from the Navy as was his 
     prerogative.
       Unfortunately--and unacceptably--an atmosphere of 
     harassment and hostility persisted, particularly as the 
     retirement of the officer involved was not effective until 
     April 1993, and he remained on duty on the ship. On 9 October 
     1992, an anonymous DOD IG hot line call and a call by LT 
     Simmons to Congresswoman Schroeder and to the then Assistant 
     Secretary of the Navy, Barbara Pope, raised the visibility of 
     this case.
       Admiral Mauz responded promptly when informed of the matter 
     as a result of these calls. To assure fairness and high-level 
     attention, he directed his Special Assistant for Women's 
     Affairs, CDR Miller, to join an investigation by COMSUBGRU 
     10. Following a briefing by Commander Miller, the offending 
     officer was moved off the ship by the Commanding Officer in 
     October 1992. The CO assembled all officers and told them 
     that LT Simmons had been sexually harassed, condemned this 
     behavior, and emphasized that any harassment would not be 
     tolerated.
       LT Simmons states in her letter that Commander Miller 
     substantiated the sexual harassment. That is true. There is 
     no question that LT Simmons was sexually harassed. As the 
     Commander in Chief, U.S. Atlantic Fleet, Admiral Mauz acted 
     promptly and appropriately. He directed the necessary actions 
     to ensure a thorough and timely response to LT Simmons's 
     allegations. The expeditious assignment of Commander Miller 
     to examine the case and ensure that LT Simmons had a direct 
     conduit to him clearly substantiates his personal concern and 
     direct involvement in investigating LT Simons's allegations.
       Nor was this the end of Admiral Mauz's concern. In December 
     1992, Admiral Mauz returned to this matter. He personally 
     intervened with the Chief of Naval Personnel to extend LT 
     Simmons on active duty and assure her assignment to another 
     command.
       At this time also, LT Simmons complained that her transfer 
     fitness report was issued in reprisal. The Inspector General 
     investigation, completed in the spring of 1993, substantiated 
     LT Simmons's original allegations of sexual harassment and 
     also concluded the Commanding Officer of CANOPUS failed to 
     recognize the development of a hostile command climate. 
     Accordingly, the Commanding Officer was counseled by his 
     immediate superior. While the Inspector General concluded the 
     fitness report was not reprisal, the Secretary of the Navy 
     later concluded that he would review, through the Board for 
     Correction of Naval Records, any alleged injustice in her 
     military record and that LT Simmons would be given the option 
     of a new duty station with orders retaining her on active 
     duty until September 1996. The Secretary stated that his 
     decision was based on his recognition that ``. . . your [LT 
     Simmons] harassment, and the energy required on your part to 
     address issues springing from it, impaired your ability to 
     demonstrate fully what you can contribute to the Navy.'' 
     The Secretary's action in correcting the fitness report, 
     intended to provide LT Simmons with an opportunity to 
     continue her naval career, was a decision that only the 
     Secretary is empowered to make.
       On his own initiative, Admiral Mauz returned to this matter 
     for a third time in 1993. In a series of actions he 
     manifested his concern that improvements should be made in 
     handling cases of this kind. To effect change in this regard, 
     Admiral Mauz, in April of 1993, issued a policy statement for 
     the ``Prevention of Sexual Harassment'' to all Atlantic Fleet 
     activities. It addressed Department of the Navy policy and 
     the need for training in place. It asked every manager, 
     supervisor, and employee, military and civilian, within 
     Admiral Mauz's command with the responsibility for carrying 
     out the DON policy on prevention of sexual harassment.
       In June 1993, Admiral Mauz signed a combined LANT/
     PACFLTINST 5354.1 (Equal Opportunity) that revised the 
     Command Managed Equal Opportunity program and incorporated 
     sexual harassment requirements from a new SECNAVINST.
       In September 1993, Admiral Mauz issued a PERSONAL FOR to 
     ensure each commander was cognizant of the contents of the 
     combined LANT/PAC Equal Opportunity instruction. He directed 
     each commander to review the implementation of the program, 
     including sexual harassment, in his command to ensure 
     compliance. ISIC's were directed to include this as a special 
     interest item for command inspections, and were directed to 
     utilize Equal Opportunity Program Specialists in their 
     inspections to the maximum extent possible.
       Going well beyond normal bureaucratic requirements, in 
     April 1994, Admiral Mauz returned to this matter again. To 
     assure that fleet priorities and procedures would be as good 
     as they could be, he personally conducted a training session 
     for all flag officers assigned to the Atlantic Fleet. The 
     subject was a case study in sexual harassment, and on 
     addressing it, Admiral Mauz used both information obtained 
     from the inquiry about LT Simmons case and information 
     provided by LT Simmons herself. Finally, Admiral Mauz 
     recognized that additional training was needed beyond what 
     the initial curriculum in sexual harassment provided. 
     Accordingly, he directed the development and distribution of 
     a kit to assist commanders with the investigation and 
     disposition of sexual harassment complaints. This kit formed 
     the nucleus for the newly published Navy Sexual Harassment 
     Handbook.
       In January 1994, LT Simmons forwarded allegations of 
     criminal dereliction by Admiral Mauz in the handling of her 
     case. As the facts of the case did not, in fact, justify 
     criminal charges, they were determined to be more appropriate 
     for resolution under the provisions of Article 1150, U.S. 
     Navy Regulations, Redress of Wrong Committed by a Senior, 
     than under the Uniform Code of Military Justice (UCMJ). 
     The allegations were accordingly returned to LT Simmons by 
     the Vice Chief of Naval Operations, on advice of counsel, 
     for forwarding as a matter under Article 1150. In 
     response, LT Simmons indicated she did not desire to 
     pursue an Article 1150 complaint. Nevertheless, LT 
     Simmons's allegations were referred to the Naval Inspector 
     General. The Inspector General found the allegations 
     against Admiral Mauz to be without merit. Admiral Mauz did 
     not influence, or attempt to influence, the Inspector 
     General's decision in this matter.
       With regard to Senior Chief Taylor, the allegation that 
     Admiral Mauz influenced the charges against Senior Chief 
     Taylor after Senior Chief Taylor arrived at Port Hueneme, 
     California, is without basis.
       By way of background, there were charges brought against 
     Senior Chief Taylor after he began his tour of duty in 
     California. These charges addressed irregularities in the 
     manner in which Senior Chief Taylor performed his duties. 
     Senior Chief Taylor declined to have his case heard under 
     Article 15 of the UCMJ, as was his right. As a result, 
     charges were referred to a special court-martial. After 
     charges were referred, Senior Chief Taylor's chain of command 
     in the Pacific decided it was appropriate to move the case 
     out of the Port Hueneme area to ensure an independent review 
     of the case. Accordingly, the charges were considered by a 
     Flag Officer in commend in the San Diego area.
       Following a newspaper account which stated that the charges 
     against Senior Chief Taylor had been withdrawn in response to 
     allegations of retaliation for his whistle-blowing activity 
     in Bermuda, Admiral Mauz's Executive Assistant asked the 
     senior Staff Judge Advocate to call his counterpart at Port 
     Hueneme for additional information. A call was made and the 
     situation was clarified. The senior Staff Judge Advocate 
     verbally reported his findings to the Executive Assistant who 
     then briefed Admiral Mauz as to the action he had taken. 
     There was no influence on the case and, in fact, the charges 
     had already been withdrawn at the time of the call.
       Subsequently, unbeknownst to either the senior Staff judge 
     Advocate or Admiral Mauz, a junior Staff Judge Advocate 
     obtained a copy of the defense motion that was the basis for 
     withdrawal of the charges, as well as a copy of the charge 
     sheets, from a friend who was then Officer in Charge, Navy 
     Legal Service Office, Port Hueneme. The Officer in Charge 
     believed that in providing that documentation, he was 
     responding to an official request from Admiral Mauz's staff 
     and acting quite properly he informed Senior Chief Taylor's 
     military counsel of the actions he had taken to comply with 
     that request. While these documents were shared with the 
     senior Staff Judge Advocate, he did not speak of them to 
     any other staff member. Clearly, the junior Staff Judge 
     Advocate's inquiry and receipt of documents did not stem 
     from Admiral Mauz. In fact, Admiral Mauz did not become 
     aware of the documents until their existence was revealed 
     during my inquiry into Senior Chief Taylor's allegation 
     preparatory to making this letter response. In this vein, 
     Admiral Mauz's statement to Navy Times on July 21, 1994, 
     that ``I don't really recall this, but I think I said 
     ok,'' to an inquiry regarding the newspaper account was 
     not an accurate recollection. In fact, Admiral Mauz's 
     Executive Assistant states that he, independently and 
     without Admiral Mauz's knowledge, instituted the lawyer's 
     inquiry into the newspaper article. These matters, taking 
     place after the withdrawal of charges at Port Hueneme, 
     could not have had any impact in any event.
       The San Diego commander convened an Investigation under 
     Article 32 of the UCMJ to inquire into the matter and make 
     recommendations as to appropriate disposition. The senior 
     Judge Advocate assigned to conduct the Article 32 
     Investigation concluded there were reasonable grounds to 
     believe that four offenses should be charged, with a total of 
     seven specifications thereunder. The senior Judge Advocate 
     recommended that the charges be adjudicated under Article 15 
     of the UCMJ, but noted that should Senior Chief Taylor 
     decline Article 15, referral of the charges to special court-
     martial would be appropriate. The Commander in Chief of U.S. 
     Pacific Fleet, however, determined that the nature of charges 
     did not warrant referral to court-martial and directed 
     counseling as the appropriate remedy, thereby closing the 
     case.
       In summary, Admiral Mauz was not involved in Senior Chief 
     Taylor's case in California. He played no role in the charges 
     themselves or in the disposition of the charges.
       Senior Chief Taylor had accused Admiral Mauz of misconduct 
     with regard to Admiral Mauz's travel to Bermuda. As a result 
     of Senior Chief Taylor's allegations regarding Admiral Mauz's 
     travel to Bermuda, the Naval Inspector General conducted a 
     complete and thorough investigation. The investigation did 
     not disclose any misuse of government facilities. The 
     Inspector General determined that Admiral Mauz conducted 
     significant official business while in Bermuda, including an 
     inspection of the air station's facilities, addressing base 
     personnel at an ``All Hands'' meeting and making calls on the 
     U.S. Consul General and the Governor of Bermuda. Admiral Mauz 
     took two days of leave while in Bermuda, in compliance with 
     Navy guidelines for combining leave and official travel. The 
     Inspector General determined that the scheduling of the trip 
     created the perception of impropriety and that there was a 
     violation in the use of government drivers during the period 
     of time that Admiral Mauz was on leave, as a result of which 
     Admiral Mauz received informal written counseling.
       Admiral Mauz did not remove Senior Chief Taylor from his 
     duties or attempt to prosecute Senior Chief Taylor for 
     insubordination as a result of Senior Chief Taylor having 
     publicly accused Admiral Mauz of misconduct, as alleged by 
     Mr. Ruch of the Government Accountability Project. Senior 
     Chief Taylor originally alleged that his Commanding Officer 
     in Bermuda had taken those actions as reprisals for his 
     whistle-blowing activity in Bermuda. After a thorough 
     investigation of the facts surrounding those actions, 
     however, the DoD IG concluded that the actions were warranted 
     under the circumstances and did not constitute reprisal. In 
     fact, at the time the actions were taken, no one was aware of 
     Senior Chief Taylor's whistle-blowing activity. The 
     difficulties Senior Chief Taylor was experiencing in Bermuda 
     preceded any knowledge by naval personnel, including his 
     Commanding Officer and Admiral Mauz regarding his complaints.
       Admiral Mauz has served his Navy and Nation for over 
     thirty-five years. He has served in positions of great 
     responsibility and he has served his Nation well.
       I have discussed this letter with the Secretary of the Navy 
     and he and I are in complete agreement that Admiral Mauz 
     should be confirmed to retire in his four star grade and that 
     he should be permitted to depart his command in a timely 
     manner.
       I am, of course, prepared to provide you any additional 
     information that you or the other members of the Committee 
     may require. Thank you for your consideration. I have sent an 
     identical letter to Senator Thurmond.
           Very respectfully,
                                                      J.M. Boorda,
                                               Admiral, U.S. Navy.
                                  ____

                                           Department of the Navy,


                                      Office of the Secretary,

                                   Washington, DC, August 9, 1994.
     Hon. Sam Nunn,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman, I am responding to your letter of August 
     5, 1994, concerning the retirement confirmation of Admiral 
     Henry Mauz, Jr., U.S. Navy.
       The latest GAP letter alleges improper communications 
     between the members of Admiral Mauz staff and persons 
     assigned in the Port Hueneme area who had knowledge of the 
     court-martial case involving Senior Chief Taylor. In order to 
     be able to assure the Committee that we were providing all 
     information relevant to this matter, OPNAV staff spoke with 
     the persons concerned and confirmed the accuracy of those 
     parts of the Chief of Naval Operations' 27 July letter to you 
     that addressed this issue (pages 4 and 5).
       Senior Chief Taylor had charges brought against him arising 
     out of actions in November 1993 while serving at the Naval 
     Construction Battalion Center (NCBC), Port Hueneme, 
     California. He had previously requested in writing to be 
     transferred outside the Commander in Chief, U.S. Atlantic 
     Fleet (CINCLANTFLT) chain of command, and the Bureau of Naval 
     Personnel approved that request by assigning him to an 
     appropriate billet in his rating at Port Hueneme. He reported 
     to NCBC Port Hueneme for duty in December 1992.
       After referral to trial of the November 1993 charges, the 
     convening authority (NCBC Port Hueneme) decided it was 
     appropriate to move the case out of the Port Hueneme area to 
     ensure the fair and independent disposition of the case. To 
     this end, the convening authority withdrew the charges on 
     March 26, 1994. My inquiry revealed no communications between 
     Admiral Mauz or anyone on his staff and those involved with 
     bringing the charges, and ultimately withdrawing the charges, 
     against Senior Chief Taylor prior to the withdrawal of 
     charges in March 1994.
       The proceedings in Senior Chief Taylor's case were 
     mentioned in a short Orlando Sentinel article of March 29, 
     1994, which appeared in a Pentagon compilation of news 
     articles on 1 April. In describing the withdrawal of charges 
     relating to Senior Chief Taylor's alleged negligent and 
     improper arrest of a service member, the article stated that 
     his attorneys had filed documents ``contending the misconduct 
     charges were retaliation for Taylor's comments'' in the past 
     regarding Bermuda. Admiral Mauz' Executive Assistant saw 
     the article and asked the senior Staff Judge Advocate to 
     ascertain what, if any, connection there could have been 
     between Senior Chief Taylor's current situation in Port 
     Hueneme and Bermuda. Both officers were confident that 
     CINCLANTFLT had taken no action whatsoever in retaliation 
     against Senior Chief Taylor, and they were understandably 
     concerned that such a suggestion might have been made and 
     believed it important to ascertain the basis, if any, for 
     such an allegation.
       The CINCLANTFLT staff Judge Advocate called the NCBC Staff 
     Judge Advocate, who confirmed the news article was indeed 
     misleading and that there was no suggestion during the 
     proceedings of any involvement by CINCLANTFLT or his 
     subordinates in Senior Chief Taylor's case. The NCBC Staff 
     Judge Advocate explained the charges involved Senior Chief 
     Taylor's law enforcement activities while assigned to NCBC 
     Port Hueneme. The charges included an allegation that Senior 
     Chief Taylor engaged in unauthorized off-base law enforcement 
     activities, including carrying a government-issued firearm 
     off-base. The CINCLANTFLT Staff Judge Advocate recounted this 
     information to the Executive Assistant, who then spoke 
     briefly to Admiral Mauz about the matter. The request for 
     clarification of the short news article was appropriate in 
     order for CINCLANTFLT to ascertain whether there were grounds 
     for investigation into any alleged impermissible actions by 
     anyone under the command of CINCLANTFLT.
       Neither Admiral Mauz, nor any other CINCLANTFLT official, 
     was involved with the referral or withdrawal of the charges, 
     which arose solely from events centered in NCBC Port Hueneme 
     nearly a year after Senior Chief Taylor's transfer to that 
     command. On 23 March 1994, Senior Chief Taylor's defense 
     counsel in the pending case filed a ``motion to dismiss for 
     vindictive prosecution,'' alleging the Port Hueneme convening 
     authority had made an unlawful decision to prosecute Senior 
     Chief Taylor. The defense motion complained mainly about he 
     vigor with which the Port Hueneme command pursued the charges 
     against Senior Chief Taylor, alleging that members of that 
     command ``had distaste'' for his previous whistleblowing 
     activities and the charges were being pursued because Senior 
     Chief Taylor exercised his rights to remain silent and to 
     refuse nonjudicial punishment for his alleged improper law 
     enforcement activities. The defense pointed to alleged 
     statements by officials in Port Hueneme suggesting that they 
     had focused inordinate attention on his previous, well-
     publicized disclosures relating to Bermuda. The defense 
     motion did not allege ``personal interest'' or any actions or 
     involvement relating to this case by Admiral Mauz or anyone 
     subordinate to him.
       With regard to receipt of a copy of the defense motion by a 
     member of the office of the CINCLANTFLT Staff Judge Advocate, 
     the GAP letter is incorrect in stating that this occurred 
     prior to the call seeking clarification of the news article. 
     I have reconfirmed the office of the CINCLANTFLT Staff 
     Judge Advocate received the motion more than a week after 
     the charges were withdrawn. This occurred when a Navy 
     judge advocate assigned to an NCBC Port Hueneme tenant 
     command called some of his lawyer colleagues to offer to 
     send them copies of the document, which he found to be 
     unique and very interesting from a professional 
     perspective. One of these officers was an attorney in the 
     office of the CINCLANTFLT Staff Judge Advocate with whom 
     he had worked closely in the past. The two officers had 
     maintained a close professional association and 
     friendship, and spoke with each other and exchanged faxes 
     regularly on professional issues. The CINCLANTFLT 
     Lieutenant accepted the offer, but upon receipt noticed 
     that portions of it were illegible. In order to obtain a 
     better copy, she called the Officer in Charge, Naval Legal 
     Service Office Detachment, Port Hueneme, who was reluctant 
     to provide the document, despite the fact that it was one 
     of the papers in a public court proceeding, to people who 
     were merely curious about the case and had no official 
     reason to have it. The CINCLANTFLT Lieutenant replied that 
     when allegations relating to a command appear in the 
     press, the command has a valid interest in ascertaining 
     the basis, if any, of such allegations. The Officer in 
     Charge agreed that this was a valid reason and, believing 
     that he had received a reasonable request from the 
     CINCLANTFLT staff, he faxed her a copy. Since the Officer 
     in Charge viewed the call as a CINCLANTFLT request, he so 
     informed Senior Chief Taylor's defense counsel.
       The request for the document did not stem from Admiral 
     Mauz. During the further inquiry by OPNAV staff, the Officer 
     in Charge verified the CINCLANTFLT Lieutenant neither 
     demanded a copy of the motion, nor stated that her call was 
     at the personal request of Admiral Mauz. Moreover, the 
     document was not shared outside the CINCLANTFLT Staff Judge 
     Advocate's office. Since the document included no allegations 
     of impropriety by Admiral Mauz or anyone in CINCLANTFLT, and 
     had not been requested by Admiral Mauz or anyone else on his 
     staff, there was no reason for the Staff Judge Advocate to 
     provide the document to, or discuss it with others.
       There is simply no basis whatsoever for any claim that 
     Admiral Mauz took a personal interest in the case involving 
     Senior Chief Taylor. The facts as confirmed by thorough 
     inquiry show the accuracy of Admiral Mauz' public statement 
     categorically denying any such allegation. The communications 
     by members of his staff were permissible and in no way alter 
     this conclusion. There was no attempt or intent in any of 
     these communications to affect the case.
       I have sought to answer the GAP letter's claims candidly, 
     thoroughly and accurately in order to assist the Committee in 
     its deliberations on Admiral Mauz' confirmation to retire in 
     his four-star grade. I believe strongly that there is no 
     basis for the GAP claims and that Admiral Mauz' 
     confirmation--and the assumption of command by his 
     successor--should not be further delayed.
       I am available at any time to discuss this matter further 
     with you or to provide you any further information you 
     desire. Please do not hesitate to call on me. I have sent a 
     similar letter to Senator Thurmond.
           Sincerely,
                                                   John H. Dalton,
                                            Secretary of the Navy.
                                  ____

                              Government Accountability Project,  
                                    Washington, DC, July 11, 1994.
     Hon. Sam Nunn,
     Chairman, Senate Armed Services Committee, Russell Senate 
         Office Building, Washington, DC.
       Dear Senator Nunn. On behalf of the Government 
     Accountability Project (GAP) I am writing to bring 
     information to the attention of your committee bearing on the 
     merits of the retirement of Admiral Henry Mauz at the ``four 
     star'' level.
       GAP is a non-partisan, non-profit whistleblower protection 
     organization. GAP provides legal representation and other 
     support services to workers both within and outside federal 
     service. Two of our clients, Senior Chief Master-at-Arms 
     George R. Taylor and Lt. Darlene S. Simmons, JAGC, USNR, have 
     had direct, recent experiences with Admiral Mauz and their 
     letters are attached for your consideration (Attachments 1 
     and 2).
       As Senior Chief Taylor's letter indicates, Admiral Mauz 
     misused government facilities and property at the Bermuda 
     Naval Air Station for his and his family's personal use. When 
     these actions were brought to public attention, Admiral Mauz 
     and his staff retaliated against Taylor, stripping him of his 
     duties and attempting to prosecute him for insubordination. 
     Following his transfer to the base at Port Hueneme, 
     California, Taylor was faced with a 48-count court martial on 
     a supposedly unrelated matter. This incident was closely 
     monitored by Admiral Mauz's legal staff for the Atlantic 
     Fleet. All charges against Taylor were subsequently 
     dismissed.
       As Lt. Simmons's letter indicates, Admiral Mauz was aware 
     of sexual harassment against Lt. Simmons and the failure of 
     her command to take proper action. Admiral Mauz suppressed 
     the findings of his own command's inquiry into the issue. 
     Despite his personal involvement and knowledge of the 
     situation, Admiral Mauz failed to order any corrective action 
     be taken on behalf of Lt. Simmons. Finally, the Vice Chief of 
     Naval Operations, Admiral S.R. Arthur, refused to accept a 
     formal complaint from Lt. Simmons alleging dereliction of 
     duty in violation of the Uniform Code of Military Justice 
     against Admiral Mauz.
       While the Secretary of the Navy, John H. Dalton, recently 
     ordered corrective action on behalf of Lt. Simmons (an 
     apology, clearing her record, a new duty station and letters 
     of censure for three officers in her former chain of command 
     [see Attachment 3]), * * *


                                              Ponte Vedra, FL,

                                                     July 8, 1994.
     Senator Sam Nunn,
     Chairman Armed Services Committee, Russell Senate Office 
         Building, Washington, DC.
       Dear Senator Nunn: I am writing this letter to express my 
     concern that Admiral Henry Mauz may retire at the Four Star 
     Level, a distinction indicative of extraordinary service. I 
     request that during the deliberation process of this issue 
     the information regarding Admiral Mauz's involvement in the 
     handling of my sexual harassment case be considered. I 
     believe Admiral Mauz was (1) Derelict in his Duty through his 
     culpable inefficient and negligent handling of my case of 
     sexual harassment. (2) Admiral Mauz failed to act on my 
     report of sexual harassment, retaliation and reprisal. I 
     specifically report to you that Admiral Mauz failed to follow 
     those procedures directed by the Department of Defense and 
     the Department of the Navy. (3) Admiral Mauz in his position 
     as Commander In Chief of the Atlantic Fleet Mauz 
     intentionally allowed sexual harassment, retaliation and 
     reprisal by senior officers in my chain of command to go 
     unchecked. Admiral Mauz used his official position to protect 
     those guilty of sexual harassment and then to cover up his 
     inefficient handling of the matter.
       Admiral Mauz had knowledge in October 1992 that I was 
     sexually harassed. This harassment was substantiated by a 
     member of his staff, Commander Cathleen Miller. Admiral Mauz 
     was also aware of the failure of my chain of command to 
     handle the matter from May 1992 until October 1992. A command 
     inquiry was conducted in October 1992. This command inquiry 
     substantiated the sexual harassment which I had reported in 
     May 1992. The command inquiry also substantiated the 
     existence of a hostile environment in which I worked from May 
     1992 until October 1992. Admiral Mauz was familiar with those 
     substantiated facts and took no action.
       On December 28, 1992 I suffered reprisal for my report of 
     sexual harassment when I received an adverse fitness report. 
     I reported this retaliation and reprisal directly to the aide 
     of Admiral Mauz. I was assured on that same day that Admiral 
     Mauz was personally involved and that proper corrective 
     action would follow. I relied in good faith on these 
     assurances. My good faith reliance was not justified. Instead 
     of taking corrective action the reprisal was covered up. 
     Admiral Mauz was personally involved in this negligent 
     handling of my report of reprisal. Admiral Mauz was the 
     highest level of leadership in my chain of command.
       I then reported the failure by my entire chain of command 
     to properly handle my report of sexual harassment and 
     reprisal to the Department of Defense, Inspector General's 
     office. This report was then referred to the Navy 
     Inspector General. I believe that Admiral Mauz used his 
     position to influence the report from the Navy Inspector 
     General's office in order to protect himself because he 
     knew that he and the chain of command had failed to take 
     appropriate action in my case of sexual harassment.
       I actually swore to these facts on a charge sheet for 
     violation of the Uniform Code of Military Justice Article 92 
     by Admiral Mauz. This charge sheet and supporting memorandum 
     was returned to me without any investigation whatsoever. This 
     was inappropriate and not in accordance with applicable 
     instructions and orders.
       I believe Admiral Mauz has perpetuated the discrimination 
     against women in the U.S. Navy with his failure to take swift 
     and tough action against sexual harassment. I believe his 
     failure to hold anyone accountable in my case of sexual 
     harassment was Dereliction of his duties. One who is derelict 
     in the performance of duty should not be rewarded for 
     extraordinary service.
           Sincerely,
                                               Darlene S. Simmons.
                                  ____

                                           Department of the Navy,


                                      Office of the Secretary,

                                     Washington, DC, May 12, 1994.
     Lt. Darlane S. Simmons, JAGC, USNR,
     Naval Legal Service Office, Mayport, FL.
       Dear Lieutenant Simmons: I am writing to discuss your 
     future in the U.S. Navy. Before doing so, however, I wish to 
     express my profound regret over the harassment that you 
     unfortunately experienced. No one in our Navy or Marine Corps 
     should be treated as you were. My goal is to send the message 
     to every Sailor, Marine, and civilian in our Department that 
     we are to treat others with the same respect and dignity we 
     expect ourselves.
       I believe we have made significant progress during the past 
     18 months to implement a comprehensive program aimed at 
     eliminating sexual harassment from the workforce. As you 
     know, we issued our revised policy guidance in January 1993 
     and also established an Advice and Counseling Line and an 
     Informal Resolution System. Our Department-wide Reporting and 
     Tracking System will provide us with information on formal 
     complaints, results of investigations and administrative and 
     judicial actions taken to resolve complaints. In March, we 
     released the ``Commander's Handbook,'' a single reference for 
     commanders that addresses investigation, resolution, and 
     prevention of sexual harassment. I thank you for your lessons 
     learned, which were integrated into the first edition. While 
     we have done much, I realize we still have far to go.
       After you testified, I directed my staff to thoroughly 
     review the circumstances of your case. Our review leads me to 
     conclude that: you were sexually harassed by a fellow 
     officer, aboard USS CANOPUS; he retaliated against you by 
     fostering a hostile work environment and polarizing the 
     wardroom against you; the shipboard chain of command did not 
     correct this environment; and your fitness report for the 
     period 9 February 1992 to 28 December 1992 was improperly 
     handled by the command.
       As a result of my review of your case, I am issuing a 
     Secretarial letter of censure to the officer who committed 
     the harassment. The Chief of Naval Operations is also taking 
     action with regard to two other officers in your former chain 
     of command who did not measure up to our standards.
       With regard to your specific situation, I recognize that 
     your harassment, and the energy required on your part to 
     address issues springing from it, impaired your ability to 
     demonstrate fully what you can contribute to the Navy. 
     Therefore, I have directed that the Navy make available to 
     you the option to transfer to a new duty station with orders 
     that you be retained on active duty until 1 September 
     1996. This represents an additional two years beyond the 
     date currently established for your departure from active 
     duty, and will afford you the opportunity to compete again 
     for augmentation to the Regular Navy.
       I have been informed that you have applied to the Board for 
     Correction of Naval Records (BCNR) in accordance with 10 
     U.S.C. 1552 to correct any injustice in your performance 
     records. I have final authority to review the BCNR's 
     recommendation and will direct action to correct your 
     military record as necessary.
       While my actions can never wipe the slate clean, they 
     reflect my genuine desire that you have the opportunity to 
     continue to serve, if you wish. Should you nevertheless 
     decide to leave active duty on 1 September 1994, however, I 
     want you to know that you have my respect and gratitude for 
     your Navy service.
       I have directed Rear Admiral H. E. Grant, the Judge 
     Advocate General of the Navy, to meet personally with you to 
     discuss your decision.
                                                   John H. Dalton,
                                            Secretary of the Navy.
                                  ____

                                                     July 8, 1994.
     Hon. Sam Nunn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Nunn, I would like to introduce myself. My 
     name is George R. Taylor. I am a Senior Chief Petty Officer 
     (E-8) currently on active duty with the U.S. Navy stationed 
     at the U.S. Naval Construction Battalion Center, Port 
     Hueneme, California. Additionally, I am a whistleblower.
       Sir, In December 1992, I blew the whistle on fraud, waste, 
     and abuse concerning mismanagement at the U.S. Naval Air 
     Station Bermuda. I would like to give you a very brief 
     rundown on some of the events that transpired and are 
     continuing to unfold in regards to Admiral Henry Mauz Jr., 
     USN, Commander in Chief, U.S. Atlantic Fleet.
       In November 1992, Admiral Mauz abused his power and 
     authority as CINCLANTFLT by traveling to NAS Bermuda along 
     with 12 other military and civilian personnel for a five day 
     vacation.
       Admiral Mauz was flown to Bermuda at government expense 
     along with the other personnel. During his time on the 
     island, his entire ``official'' visit consisted of playing 
     golf, dining in the best restaurants, and shopping. This was 
     in fact exposed on national television on ABC New's 
     ``Primetime Live'' program. I appeared on the show and 
     commented on the behavior of not only Admiral Mauz but 
     numerous flag officers within the Armed Forces who had 
     visited the beautiful island at taxpayer's expense. 
     Additionally, Senator McCain had visited the island with a 
     large group of family members and the nanny for his 
     grandchildren all at taxpayer's expense or at reduced rate.
       As you know, this was not a popular thing for me to do. I 
     was not politically correct. Needless to say, numerous high 
     ranking officers within the Department of Defense were 
     offended. Representative Schroeder made arrangements for me 
     to be transferred to NCBC Port Hueneme, CA. I was very naive. 
     I believe in the system. However, I have very little faith 
     left at this time. During the past 18 months numerous things 
     have occurred that in my opinion and the opinion of my 
     attorney have been nothing short of criminal.
       Admiral Mauz in my opinion has not only abused his power 
     but is a disgrace to the uniform of the Naval Service. He was 
     a key player in me being charged with over 48 offenses of 
     violating the Uniform Code of Military Justice in a supposed 
     ``unrelated to Bermuda situation.'' His attorney requested 
     and received all legal documents and a brief in regards to my 
     status. All charges were dismissed by Admiral Kelley, 
     CINCPACFLT, 8 months later. Admiral Mauz took a personal 
     interest in the prosecution of a case where nothing had been 
     done wrong.
       Senator, there is no doubt that if you or I committed some 
     of the things that Admiral Mauz has, we would have been ran 
     out of town.
       As you know, the Navy has gone through a lot. However, I do 
     believe with the current leadership in the Navy things will 
     improve, but in order to correct wrongs and to ensure that 
     senior, military officers do not continue to abuse their 
     power and authority, you should take the lead in retiring 
     Admiral Mauz at a two-star level.
       You sir, are in the position to send a message to the 
     entire Armed Forces announcing that misconduct at any level 
     will not be tolerated, also that everyone in the Armed Forces 
     from E1 to O-10 will be held accountable for their actions.
       Sir, if you or your staff needs additional information feel 
     free to call me at (805) 388-3915 or my attorney, Jeff Ruch 
     at (202) 408-0034.
           Very Respectfully,
                                                 George R. Taylor,
                                                    MACS(SW), USN.
                                  ____



                            Government Accountability Project,

                                   Washington, DC, August 3, 1994.
     Hon. Sam Nunn,
     Chairman, Senate Armed Services Committee, Russell Senate 
         Office Building, Washington, DC.
       Dear Senator Nunn, last month my client, Senior Chief 
     Master-at-Arms George R. Taylor (USN) wrote to you concerning 
     the pending four-star retirement of Admiral Henry Mauz. In 
     his letter, Senior Chief Taylor wrote that Admiral Mauz had 
     taken ``a personal interest'' in the prosecution, that was 
     later dismissed, against Senior Chief Taylor and the members 
     of his security detachment. This personal interest raised 
     questions concerning retaliatory motive since the attempted 
     prosecution took place within the Pacific Command at a time 
     when Admiral Mauz served as Commander of the Atlantic Fleet.
       In the August 1, 1994 edition of Navy Times, Admiral Mauz 
     told reporter Patrick Pexton that Taylor's allegation was 
     ``without foundation'' and ``nonsense.'' Mauz told the 
     reporter that his staff contacted Port Hueneme authorities 
     only once and then only for the purposes of learning the 
     status of the case. In fact, Captain Joseph Baggett, the 
     legal advisor to Admiral Mauz, did contact the legal advisor 
     for the base at Port Hueneme after the withdrawal of the 48-
     count court martial against Taylor and his detachment on 
     April 9, 1994.
       Prior to Captain Baggett's call to Port Hueneme, however, 
     Lt. Noreen Hagerty-Ford, a JAG attorney on Admiral Mauz's 
     staff, contacted Lt. John Tamboer, the supervisor of Taylor's 
     military defense counsel, Lt. Carter Brod., Lt. Hagerty-Ford 
     asked Lt. Tamboer to provide her with a copy of a motion 
     filed by Lt. Brod seeking dismissal of all charges against 
     Taylor on the grounds of ``vindictive prosecution'' 
     [attached]. Lt. Tamboer refused her request, on the grounds 
     that the Atlantic Fleet had no legitimate reason to obtain 
     defense filings. Lt. Hagerty-Ford called Lt. Tamboer later 
     that same day and demanded a copy of the motion stating that 
     her call was at the personal request of Admiral Mauz. Lt. 
     Tamboer acceded to this direct request from a flag officer 
     and provided a copy of the motion to Lt. Hagerty-Ford.
       Admiral Mauz's public statements with respect to his role 
     and the role of his personal staff in the Taylor prosecution 
     do not square with the facts. The lack of candor displayed 
     here is consistent with the ``damage control'' approach to 
     high profile personnel cases Admiral Mauz has exhibited. More 
     disturbingly, these repeated contacts represent an attempt to 
     influence the prosecution of Taylor and to intimidate his 
     military defense counsel.
       As always, if you or your staff desire any further 
     information from my clients, please do not hesitate to 
     contact me.
           Sincerely,

                                              Jeffrey P. Ruch,

                                                  Policy Director,
                                Government Accountability Project.
                                  ____


 [Navy-Marine Corps Trial Judiciary, Southwest Judicial Circuit, Port 
                  Hueneme, CA, Special Court-Martial]

  Motion To Dismiss for Vindictive Prosecution Pursuant to the Fifth 
                               Amendment

 United States v. Taylor, George R., MACS, E-8 000-00-000, U.S. Navy, 
                         Date: March 23, 1994.

                          1. Nature of motion

       This is a Motion to Dismiss for Vindictive Prosecution 
     filed pursuant to the Fifth Amendment of the U.S. 
     Constitution. This motion is filed as a direct result of an 
     unlawful decision by Commander, Naval Construction Battalion 
     Center, Port Hueneme, to prosecute MACS George R. Taylor, 
     USN, the accused in this case.

                          2. Summary of facts


                prior to macs taylor's reporting at ncbc

       a. In 1992, MACS George R. Taylor, USN, held the position 
     of Chief of Military Police at Naval Air Station Bermuda. 
     While serving at NAS Bermuda, MACS Taylor produced evidence 
     that the air station existed as a resort for top military 
     officials at the expense of taxpayers. MACS Taylor and 
     another ``whistleblower'' were featured on the 10 December 
     1992 episode of ABC's ``Primetime Live'' (tape of which will 
     be hereinafter referred to as ``the Bermuda tape''), which 
     prompted Defense and Inspector General Investigations. As a 
     result of MACS Taylor's activities, Congress voted to close 
     the Bermuda base in 1995.
       b. MACS Taylor was transferred to Naval Construction 
     Battalion Center, Port Hueneme, (hereinafter ``NCBC''), in 
     January 1993, under the protection of the Military 
     Whistleblowers Protection Act.
       c. Before MACS Taylor arrived at NCBC members of the base 
     security department posted an article about MACS Taylor's 
     activities in Bermuda on the security department bulletin 
     board. In addition, members of the security department 
     gathered in a conference room to view the Bermuda tape.
       d. Before MACS Taylor arrived, a file was sent to NCBC from 
     Bermuda which included a non-punitive letter of caution and 
     materials related to MACS Taylor's activities at Bermuda.
       e. Prior to MACS Taylor's arrival at NCBC, RADM David Nash, 
     USN, Commanding Officer of NCBC, requested a copy of the 
     Bermuda tape from Kari Lee Patterson, a civilian employee at 
     NCBC. Ms. Patterson delivered the tape to Mr. W.E. Hudson, 
     NCBC Security Officer, who delivered the tape to RADM 
     Nash.


                        after reporting at ncbc

       f. Upon MACS Taylor's arrival, RADM Nash held a meeting 
     with top base officials to discuss the arrival of MACS 
     Taylor.
       g. Upon reporting on board NCBC, MACS Taylor was taken to 
     Executive Officer's Inquiry for activities in Bermuda. At the 
     XOI, Taylor was awarded the Nonpunitive Letter of Caution 
     sent from Bermuda. The charge was for disrespect to a 
     commissioned officer at Bermuda.
       h. Immediately upon arriving at NCBC, MACS Taylor was 
     directed to meet with LCDR Cole in his office. At that 
     meeting, which was attended by BMCS Kossman, LCDR Cole told 
     MACS Taylor that ``this isn't Bermuda'' and ``You aren't 
     going to get away with that s--t here'', or words to that 
     effect.
       i. In January 1993, LCDR Cole was called by Jeff Ruch, an 
     attorney with the Government Accountability Project, a public 
     interest organization which was involved with the incident in 
     Bermuda. Mr. Ruch called LCDR Cole to discuss the pending 
     Captain's Mast for Disrespect in Bermuda. After the phone 
     conversation, LCDR Cole confronted MACS Taylor, saying he had 
     just gotten a call from his ``liberal lawyers'' and ``this is 
     bull----'', or words to that effect. LCDR Cole told MACS 
     Taylor that ``they're not gonna get you out of this. . . . 
     This package was sent here. We're going to adjudicate this 
     here'', or words to that effect.
       j. Approximately one month after MACS Taylor reported 
     aboard, MACS Taylor suggested to LCDR Cole that one of his 
     practices was improper. LCDR Cole had, on several occasions, 
     sent sailors to the Long Beach Brig with full knowledge that 
     there would never be a court-martial. This was typically done 
     on a Friday afternoon, where the magistrate would be unable 
     to release the sailor until the following Monday. When MACS 
     Taylor suggested to LCDR Cole that this practice was 
     improper, LCDR Cole became incensed, telling MACS Taylor 
     ``I'm the f---ing lawyer on this base; who made you the base 
     lawyer?'', or words to that effect.
       k. A meeting to discuss Workman's Compensation issues was 
     held in September 1993 and was attended by LCDR Cole, MACS 
     Taylor, NCBC Executive Officer, NCBC Command Master Chief, 
     and other officials. At the meeting, LCDR Cole confronted 
     MACS Taylor due to rumors he had heard about members of the 
     Special Investigations Unit, of which Taylor was a member, 
     being deputized by the federal government. MACS Taylor denied 
     ever spreading the rumor. LCDR Cole responded by admonishing 
     MACS Taylor for not addressing him as ``Sir'' when making a 
     statement.
       1. In a Memorandum dated 5 September 1993, LCDR Cole 
     requested to the Commanding Officer, NCBC, that MACS Taylor 
     be relieved of his duties. RADM Nash, however, declined to 
     carry out LCDR Cole's request.
       m. MACS Taylor has also had numerous personal 
     confrontations with Mr. W.E. Hudson, NCBC Security Officer, 
     since reporting aboard. Mr. Hudson is MACS Taylor's direct 
     superior in the Security Department.
       n. On 30 September 1993, MACS Taylor received a performance 
     evaluation which covered the period since MACS Taylor's 
     arrival on board NCBC and was signed by RADM Nash. Taylor 
     received straight 4.0 evaluations on this evaluation. There 
     was no mention whatsoever of any problems with MACS Taylor's 
     performance. MACS Taylor was described as having ``great 
     depth of professional knowledge'' and a ``keen sense of 
     responsibility''. He was praised for ``drafting and immediate 
     implementation of the department's quality-focused Standard 
     Operating Procedures.'' He was also praised for conducting a 
     special task force to curtail the flow of drugs onto the base 
     and for assisting civilian police in drug operations.


                           16 november arrest

       o. On 16 November 1993, MACS Taylor participated in the 
     arrest of CE3 Richard Miller, USN, a deserter who had escaped 
     from the Long Beach Brig. There were three other NCBC police 
     officers at the scene. The arrest took place in the City of 
     Oxnard with the participation of the Oxnard Police. No 
     complaints were made by any persons involved in the arrest. 
     Officers Ernie Eglin and L.E. Robertson of Oxnard Police 
     executed the arrest and believe that MACS Taylor acted 
     entirely properly.
       p. On 17 November 1993, Mr. Hudson called MACS Taylor into 
     his office and accused him of acting improperly during the 
     previous night's arrest. Mr. Hudson then discussed with MACS 
     Taylor the possibility of an early retirement for MACS 
     Taylor.
       q. On 18 November 1993, Mr. Hudson met with LCDR Cole to 
     discuss this situation. At this meeting, the two men agreed 
     to have Naval Investigative Service investigate MACS Taylor's 
     activities on the night of the arrest.
       r. On 22 November 1993, Mr. Hudson informed MACS Taylor 
     that he planned to have NIS investigate the arrest.
       s. Pursuant to advice from military defense attorneys, MACS 
     Taylor and each of the other three officers consistently 
     invoked his right to remain silent during the investigation.
       t. On 3 January 1994, MACS Taylor was given a Report Chit 
     citing one specification of violation of Article 92 related 
     to the arrest of CE3 Miller. LCDR Cole's signature appears on 
     the Chit for ``person submitting report''. Along with the 
     Report Chit, MACS Taylor received formal notification of 
     contemplated Nonjudicial Punishment.
       u. On numerous occasions after the Report Chit was drafted, 
     LCDR Cole attempted to persuade MACS Taylor and the other 
     three NCBC officers involved to answer questions about the 
     arrest. On or about 3 January 1994, LCDR Cole informed MACS 
     Taylor that the Incident Complaint Report for the incident in 
     question had never been received, and he gave MACS Taylor a 
     direct order to write a report describing what happened on 
     the night in question. MACS Taylor has consistently 
     maintained that he submitted the report immediately after the 
     arrest. Pursuant to advice from LT Carter F. Brod, JAGC, 
     USNR, Defense Counsel, MACS Taylor nevertheless prepared a 
     new report to avoid violating a direct order.
       v. When discussing with MACS Taylor his potential Captain's 
     Mast, LCDR Cole ordered MACS Taylor to sit locked at 
     attention. LCDR Cole told MACS Taylor that he would ``add 
     twenty more ------ charges'' if Taylor refused Captain's 
     Mast.
       w. On or about 6 January 1994, LCDR Cole called LT Brod and 
     asked LT Brod to give MACS Taylor pre-Mast Advice. LCDR Cole 
     told LT Brod that MACS Taylor was being really stupid in his 
     attitude and that if he did not accept Mast then they were 
     going to ``throw the book at him''. LCDR Cole told LT Brod 
     that, if MACS Taylor refused Mast, ``we have lots of other 
     stuff on him to use which we will throw on there'', or words 
     to that effect.
       x. On 10 January 1994, MACS Taylor refused Nonjudicial 
     Punishment.
       y. LCDR Cole has made numerous attempts to persuade the 
     other three NCBC officers to discuss the details of the 
     arrest. On 6 January 1994, LCDR Cole told LT Brod in a 
     telephone conversation that ``the command is unlikely to 
     dismiss the charges against Senior Chief Taylor but would 
     probably dismiss on the others if they opened up.''
       z. In a telephone conversation with civilian police 
     Lieutenant Byron Frank, which lasted over one hour, LCDR Cole 
     told Lt. Frank that ``if you all had just cooperated with the 
     NIS investigation, then you would have just gotten a slap on 
     the wrist'', or words to that effect. LCDR Cole stated that 
     ``Senior Chief Taylor is manipulating the other three 
     officers. I feel really sorry for them'', or words to that 
     effect. LCDR Cole stated that ``ABC bailed his ass out in 
     Bermuda. They won't come to his rescue now'', or words to 
     that effect. LCDR Cole asked Lt. Frank, who was also an 
     African-American, ``why won't you just tell me what happened? 
     I'm the smartest black attorney in the JAG Corps. Let's just 
     talk brother to brother'', or words to that effect.
       aa. On 21 January 1994, 48 specifications of UCMJ 
     violations were preferred against MACS Taylor. Many of the 
     specifications related to the 16 November arrest, but 16 of 
     the 47 new specifications related to incidents in April, May 
     and June of 1993.
       bb. Naval Criminal Investigative Service conducted an 
     extensive investigation of the charges against MACS Taylor. 
     Included as part of the NCIS investigation were interviews of 
     over twenty-one witnesses. Many of the witnesses, including 
     Petty Officer Pringle, Detective Wunsch and Lieutenant Frank, 
     were asked questions about MACS Taylor's activities in 
     Bermuda.
       cc. LT Robert P. Morean, JAGC, USNR, Trial Counsel, 
     conducted several witness interviews at NCBC on or about 15 
     February 1994. LCDR Cole was present for many of these 
     interviews and occasionally participated in questioning. In 
     the interview with BMCS Kossman, USN, LCDR Cole corrected 
     BMCS Kossman for giving an answer LCDR Cole believed was 
     incorrect. When MS3(SS) Doyle was interviewed, LCDR Cole was 
     ``right there, only two feet away from me.'' When MS3 Doyle 
     told LT Morean that he felt MACS Taylor was an excellent cop 
     and excellent leader, LCDR Cole stormed out of the meeting 
     and slammed the door. LCDR Cole also assisted LT Morean in 
     the questioning of Dan Gordon, Security Department Training 
     Officer.
       dd. On 9 February 1994, LCDR Cole approached DT3 Fredia 
     Wright, USN, who had a son living on base who had been barred 
     from the base for juvenile delinquency. LCDR Cole offered DT3 
     Wright that her son could continue to live on the base if he 
     would testify in the court-martial of MACS Taylor. LCDR Cole 
     told her that she could disregard the barring notice if her 
     son would cooperate.
       ee. On or about 18 February 1994, LCDR Cole discussed the 
     16 November arrest while teaching a class to new NCBC 
     security officers. While teaching this class, LCDR Cole 
     referred to the four officers who made the 16 November arrest 
     as ``the four'', and used their arrest as an example of 
     illegal police activities.


                   other similar ncbc security cases

       ff. In the past, there have been several other arrests by 
     NCBC Police with the same characteristics as the 16 November 
     arrest. No prosecution or disciplinary action was taken in 
     any of the other arrests. There have also been egregious 
     cases of clear dereliction of duty by NCBC Military Police 
     where no prosecution was undertaken.
       gg. On 23 September 1992, NCBC Detective A. Carpenter, MA1 
     Woods, USN, and NCBC Detective P. Wunsch arrested EOCN Jason 
     S. Tyree, USN, a deserter from NMCB-40, off-base in the City 
     of Oxnard. The facts of that arrest were effectively 
     identical to those in the case at bar. There was no 
     disciplinary action of any kind taken against any of the 
     officers.
       hh. In December 1993, a complaint was filed alleging that 
     GSM2 E.J. Beman used unlawful force in an arrest of a female 
     suspect. The investigation of the incident was handled 
     internally; NCIS was never asked to investigate. Beman was 
     not court-martialed for his actions.
       ii. In mid-1992, evidence existed that civilian NCBC police 
     officer Carlos Tengonan used unnecessary force by hitting a 
     suspect in the mouth with a baton. No investigation of any 
     kind was undertaken, and no disciplinary action followed.
       jj. On 21 January 1992, F.D. Forbes, a civilian NCBC police 
     officer arrested a suspect in the City of Port Hueneme by 
     pursuing him on an off-base street, drawing his service 
     revolver and ordering the suspect to freeze. The suspect was 
     unarmed and seen climbing over the base fence from on-base to 
     off-base, which is not an offense under any criminal code. 
     The ``suspect'' was not charged with any crime. Forbes was 
     not disciplined in any way for making this off-base arrest.
       kk. Many members of the NCBC Security Department believe 
     that, based on their knowledge of the facts, the 16 November 
     arrest was entirely legal and consistent with NCBC police 
     practices.


                              recent facts

       ll. On 22 February 1994, LCDR Cole offered LT Brod that 
     MACS Taylor could still go to Captain's Mast if he wanted. 
     LCDR Cole told LT Brod that, if MACS Taylor accepted Mast, 
     the charges would include only two specifications of 
     dereliction of duty.
       mm. On 9 March 1994, LCDR Cole ordered an administrative 
     questioning of Byron Frank regarding the arrest of 16 
     November 1993. LT Morean told LT Caroline Goldner, JAGC, 
     USNR, that this was done as a ``discovery tool'' for the 
     court-martial of MACS Taylor.
       nn. On 17 March 1994, LT Morean told LT Brod in a telephone 
     conversation, that ``it is my understanding that if everyone 
     had been forthcoming, there would have been no charges. The 
     Admiral just got ticked when everyone clammed up.''

                          3. Statement of law

       a. R.C.M. 907, MCM 1984. Motions to Dismiss.
       b. Fifth Amendment, United States Constitution. ``No person 
     shall be . . . compelled in any case to be a witness against 
     himself, nor be deprived of life, liberty, or property, 
     without due process of law.''
       c. Bordenkircher v. Hayes, 434 U.S.C. 357 (1978). ``To 
     punish a person because he has done what the law plainly 
     allows him to do is a due process violation of the most basic 
     sort.''
       d. Chaffin v. Stynchcombe, 412 U.S.C. 17 (1973). For an 
     agent of the state to pursue a course of action whose object 
     is to penalize a person's reliance on his constitutional 
     rights is ``patently unconstitutional.''
       e. U.S. v. Davis, 18 MJ 820 (AFCMR 1984). For a claim of 
     prosecutorial vindictiveness to succeed, it must be 
     established that the decision to prosecute was based on 
     impermissible considerations such as race, religion, or the 
     desire to prevent the exercise of a legal right. ``In the 
     classic prosecutorial vindictiveness case the subsequent 
     charges are harsher variations of the same decision to 
     prosecute.'' See also U.S. v. Spence, 719 F.2d 358 (11th Cir. 
     1983), Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977).
       f. U.S. v. Spence, 719 F.2d 358 (11th Cir. 1983). ``To help 
     simplify prosecutorial vindictiveness claims, the Supreme 
     Court developed a `presumption of vindictiveness'.'' 719 F.2d 
     at 361. ``Courts in this circuit construing post-Blackledge 
     decisions have held that whenever a prosecutor brings more 
     serious charges following the exercise of procedural rights, 
     `vindictiveness' is presumed, provided that the circumstances 
     demonstrate either actual vindictiveness or a realistic fear 
     of vindictiveness.'' 719 F.2d at 361.
       g. U.S. v. Krezdorn, 718 F.2d 1360 (5th Cir. 1983). If the 
     defendant challenges as vindictive a prosecutorial decision 
     to increase the number of severity of charges following the 
     exercise of a legal right, the court must examine the 
     prosecutor's actions in the context of the entire 
     proceedings. If ``the course of events provides no objective 
     indication that would allay a reasonable apprehension by the 
     defendant that the more serious charge was vindictive, i.e. 
     inspired by a determination to `punish a pesky defendant for 
     exercising his legal rights,' a presumption of vindictiveness 
     applies which cannot be overcome unless the government proves 
     by a preponderance of the evidence occurring since the time 
     of the original charge decision altered that initial exercise 
     of the prosecutor's discretion.'' 718 F.2d at 1365.
       h. U.S. v. Blanchette, 17 M.J. 512 (AFCMR 1983). ``The test 
     for prosecutorial vindictiveness is whether, in a particular 
     factual situation, there is a realistic likelihood of 
     vindictiveness for the preferral of charges against the 
     accused.'' 17 M.J. at 514.
       i. U.S. v. Hagen, 25 M.J. 78 (CMA 1987). Once a prima facie 
     case of vindictiveness is made out, the burden shifts to the 
     prosecution to disprove the misconduct. See also U.S. v. 
     Garwood, 20 M.J. at 154 (CMA 1985).
       j. U.S. v. Falk, 479 F.2d 616, 620 (7th Cir. 1973). If a 
     defendant alleges intentional or purposeful discrimination 
     and presents facts to raise a reasonable doubt about the 
     prosecutor's purpose, then the prosecutor can be called to 
     the stand to testify.
       k. U.S. v. Green, 37 M.J. at 384 (CMA 1993). ``This Court 
     has previously stated that `in referring a case to trial, a 
     convening authority is functioning in a prosecutorial 
     role'''. See also U.S. v. Fernandez, 24 M.J. at 78 (CMA 
     1987), Cooke v. Orser, 12 MJ 335 (CMA 1982), U.S. v. 
     Hardin, 7 M.J. at 404 (CMA 1979).
       l. In assessing a claim of prosecutorial vindictiveness, 
     the Supreme Court focusses on practices which tend to chill 
     the assertion of defendant's rights Blackledge v. Perry, 417 
     U.S. 21 (1974), NC v. Pearce, 395 U.S. 711 (1969), 
     Bordenkircher v. Hayes,  434 U.S. 357 (1978).

                             4. Discussion

       a. There are essentially three independent bases upon which 
     the prosecution of MACS Taylor is vindictive. The first basis 
     is due to retaliation for MACS Taylor's whistleblowing in 
     Bermuda and his personal relationship with the convening 
     authority's attorney, LCDR Cole. These two issues have been 
     grouped together because they support the premise that MACS 
     Taylor is being prosecuted for who he is, not what he had 
     done. Second, MACS Taylor is being prosecuted for exercising 
     his Constitutional right to remain silent, Third, MACS Taylor 
     is being prosecuted for exercising his right to refuse 
     Captain's Mast.
       b. In light of the nature of these charges, the fact that 
     forty-eight total specifications were preferred in this case, 
     in itself, is strong evidence of the government's 
     vindictiveness. An inference can be drawn that by charging 
     MACS Taylor with such a large number of charges, the 
     government intended to intimidate him, ``show'' him, or 
     otherwise ``retaliate'' against him for any one of the three 
     bases supporting this motion. The context of these charges, 
     including the content and tone of statements made by the 
     convening authority's attorney, further clarifies that this 
     prosecution was undertaken with a vindictive purpose.


               BASIS 1: BERMUDA AND PERSONAL RELATIONSHIP

       c. Under this basis, this motion seeks dismissal of all 
     charges pending against MACS Taylor. None of these charges 
     would have been brought but for MACS Taylor's whistleblowing 
     in Bermuda and his personal relationship with LCDR Cole. 
     Pursuant to U.S. v. Davis and Blackledge v. Perry, these are 
     both impermissible bases for undertaking a prosecution.
       d. There is substantial evidence that the convening 
     authority knew about MACS Taylor's activities in Bermuda and 
     had distaste for those activities. RADM Nash requested a copy 
     of the Bermuda tape before MACS Taylor arrived. Articles were 
     posted and the tape was watched at the security department 
     prior to MACS Taylor's arrival. LCDR Cole's statements to 
     MACS Taylor when he arrived at NCBC show his distaste for 
     MACS Taylor's whistleblowing. MACS Taylor was taken to XOI by 
     the convening authority for activities in Bermuda. The 
     convening authority awarded him a letter of caution at this 
     XOI for activities in Bermuda. NCIS, in conducting the 
     investigation of these charges for the convening authority, 
     asked numerous witnesses if they knew anything about the 
     Bermuda incident. Furthermore, LCDR Cole's statement that 
     ``ABC bailed him out of Bermuda, they won't come to his 
     rescue here'', shows the vindictive tone of LCDR Cole 
     based on MACS Taylor's activities in Bermuda.
       e. There is also substantial evidence that LCDR Cole had a 
     personal animosity for MACS Taylor. The statements by LCDR 
     Cole at the meeting upon MACS Taylor's arrival is evidence of 
     that animosity. MACS Taylor questioned LCDR Cole's 
     professionalism by challenging his practice with regard to 
     pretrial confinees. LCDR Cole was incensed at MACS Taylor's 
     complaint. The 5 September 1993 memorandum shows that prior 
     to this arrest, LCDR Cole sought to have MACS Taylor fired 
     from his job. Ever since the first meeting when MACS Taylor 
     reported at NCBC, there have been continual confrontations 
     between the two men.
       f. In addition to the evidence of vindictiveness, there is 
     considerable evidence of fact situations similar to those in 
     the case at bar that were not prosecuted. The off-base 
     arrests involving detectives Forbes and Wunsch were very 
     similar to this arrest, and no disciplinary action followed. 
     There was evidence of dereliction by GSM2 Beman, but no 
     disciplinary action was initiated. There was evidence of 
     dereliction by Officer Tangonan, and no investigation was 
     initiated. An examination of these other situations 
     demonstrates that the government would not have ordinarily 
     prosecuted this case but for MACS Taylor's activities in 
     Bermuda and his personal relationship with LCDR Cole.
       g. The vigor with which the command initiated this 
     prosecution is further evidence of the other-than-official 
     interest in seeing MACS Taylor prosecuted. For example, NCIS 
     was called in to investigate and devoted a great deal of 
     resources to this investigation. NCIS jurisdiction, however, 
     is normally over major offenses only. LCDR Cole used his 
     influence as base SJA over other legal matters to affect the 
     investigation in this court-martial. LCDR, Cole used the 
     pressure of a barring order to enlist the support of an 
     unwilling witness, Doug Lively. He used his administrative 
     power to order a civilian, Bryon Frank, to give, against his 
     will, information to use against MACS Taylor. LCDR Cole also 
     actively participated in interviewing witnesses with the 
     Trial Counsel.
       h. In sum, there is substantial evidence that this 
     prosecution would not have normally been initiated but for 
     the fact that MACS Taylor was the subject. Dislike of a 
     sailor based on his past legal activities (Bermuda) and his 
     personality is not a permissible basis upon which to initiate 
     a prosecution. For the foregoing reasons, all funding charges 
     against MACS Taylor should be dismissed.


                    basis 2: right to remain silent

       i. Ever since initially being accused of dereliction, MACS 
     Taylor has exercised his Constitutional right to remain 
     silent. There is substantial evidence that all forty-eight 
     charges in this court-martial are a result of vindictiveness 
     due to MACS Taylor's invoking this constitutional right. 
     Under this basis, this motion seeks dismissal of all charges.
       j. On 17 March 1994, the Trial Counsel told the Defense 
     Counsel that it was his understanding, based on his 
     discussions with the Convening Authority, that no charges 
     would have been brought for MACS Taylor's invocation on this 
     right. The Trial Counsel further stated that it was his 
     understanding that the Admiral ``got ticked'' when MACS 
     Taylor invoked this right. The Trial Counsel's statement is 
     clear evidence that the government's decision to prosecute 
     was based on MACS Taylor's decision to remain silent.
       k. In discussing Taylor's court-martial charges with Byron 
     Frank, LCDR Cole stated that ``if they had just cooperated 
     with NIS, then it would've been a slap on the wrist'', 
     implying that the charges would not have been brought at all 
     but for MACS Taylor's invocation of his right to remain 
     silent.
       l. LCDR Cole has made numerous attempts at pressuring MACS 
     Taylor to give up his right to remain silent, including 
     attempts to persuade LT Brad * * * MACS Taylor. LCDR Cole 
     further told MACS Taylor that if he didn't ``open up'' there 
     would be ``twenty more charges.''
                                 ______

       m. The convening authority has taken several other actions 
     which demonstrate the vigor with which it has attempted to 
     get MACS Taylor to give up his right to remain silent. First, 
     LCDR Cole gave MACS Taylor a direct order to write a new 
     Incident Complaint Report, alleging that the original had 
     been lost. Second, LCDR Cole administratively ordered 
     civilian police lieutenant Byron J. Frank, who participated 
     in the arrest, to give details of the arrest. LT Morean 
     described this administrative order as a ``discovery tool''.
       n. In sum, there is considerable evidence that the 
     convening authority was angered by MACS Taylor's silence, and 
     was in fact motivated to prosecute in retaliation for MACS 
     Taylor's silence. In fact, the convening authority expressly 
     told the Trial Counsel that there would have been a 
     prosecution at all had Taylor not ``clammed up''. It is 
     evident that all forty-eight charges are in direct 
     retaliation for MACS Taylor's exercise of a constitutional 
     right, the right to remain silent.
       o. To allow the government to prosecute as retaliation for 
     exercising the right to remain silent would be to chill the 
     exercise of this important constitutional right. Based on the 
     foregoing, all charges now pending should be dismissed.


                basis 3: right to refuse captain's mast

       p. After MACS Taylor refused Captain's Mast, the charges 
     against him rose from one specification of dereliction of 
     duty to 48 specifications in total at special court-martial. 
     There is substantial evidence that the additional 47 
     specifications were preferred in retaliation for MACS 
     Taylor's refusal to accept Mast. Under this basis, this 
     motion seeks dismissal of all charges added after the refusal 
     of Captain's Mast. The charges sought to be dismissed include 
     all additional specifications related to the 16 November 
     arrest (beyond the one specification from Mast) as well as 
     all specifications related to previous incidents.
       q. LCDR Cole explicitly told MACS Taylor and LT Brod that 
     if Taylor refused Mast ``there would be twenty more charges'' 
     and that he would ``throw the book at him''. These statements 
     demonstrated LCDR Cole's intentions to retaliate if MACS 
     Taylor refused Mast.
       r. Supreme Court and Military decisions support that a 
     large increase in charges after the invocation of a legal 
     right is a strong sign of prosecutorial vindictiveness. Here, 
     the charges jumped from one to forty-eight after MACS Taylor 
     exercised his right to a court-martial. In U.S. v. Davis, the 
     court states that the classic prosecutorial vindictiveness 
     case involves a harsher variation of the same decision to 
     prosecute. Clearly, if the first decision to prosecute was 
     for only one specification, then a second decision for 48 
     specifications is a harsher variation.
       s. In U.S. v. Martino, 18 M.J. 526 (AFCMR 1984), the 
     government raised the number of charges after the accused 
     refused NJP. The court held such prosecution to be proper. 
     Martino can be distinguished on several bases. First, the 
     court emphasized that the defense counsel asserted 
     prosecutorial vindictiveness with no evidence whatsoever of a 
     vindictive motivation. Further, the government showed 
     evidence of a valid motivation for the difference in number 
     of charges. In the case at bar, however, there is 
     considerable evidence of vindictiveness and there is no 
     evidence of valid government motive for increasing the 
     charges from 1 to 48.
       t. In Bordenkircher v. Hayes, the Supreme Court held that 
     in the normal give and take of plea bargaining, a prosecutor 
     has valid discretion to increase and decrease the number of 
     charges in order to secure a guilty plea. Bordenkircher is 
     distinguishable on several grounds. First, in Bordenkircher, 
     the only evident motive on the part of the prosecutor was the 
     non-vindictive motive to receive a guilty plea. In the case 
     at bar, there is considerable evidence of vindictiveness 
     unrelated to the desire to secure a Mast conviction. Second, 
     in Bordenkircher, it was not disputed that the defendant was 
     properly chargeable for the additional charges. In the case 
     at bar, however, there is considerable evidence that there 
     was no valid basis for the additional charges. MACS Taylor's 
     performance evaluation of September 1993 shows the convening 
     authority's acknowledgement that there was no case of 
     dereliction for any prior incidents. Third, the additional 
     charges in the case at bar were not part of the course of 
     normal plea bargaining. MACS Taylor was ordered to attention 
     and threatened with more charges if he did not accept 
     Mast. Further, the military relationship between a 
     Lieutenant Commander and a Senior Chief Petty Officer is 
     one of unequal bargaining power.
       u. In U.S. v. Davis, a claim of prosecutorial 
     vindictiveness was rejected. In Davis, however, there were no 
     additional charges brought in the move from Mast to court-
     martial. In the case at bar, the charges rose from one to 
     forty-eight. Justifying its rejection of the prosecutorial 
     vindictiveness claim, the Davis court stated that the classic 
     case of prosecutorial vindictiveness occurs when the number 
     of charges is raised.
       v. U.S. v. Blanchette also involved a rejected 
     prosecutorial vindictiveness claim. That case can be 
     distinguished in that the reason for not charging the accused 
     initially was due to insufficiency of evidence. The court 
     found that the additional charges were justified due to the 
     availability of new evidence. No such evidentiary 
     justifications exist for the government in the case at bar.
       w. In sum, because MACS Taylor refused Mast on one 
     specification of dereliction of duty, the convening authority 
     retaliated by preferring forty-seven additional charges 
     against him at a court-martial. The possibility of 
     retaliation is clearly ``realistic'', and the impression made 
     on the accused is clearly one of intimidation. The statements 
     by LCDR Cole are evidence that the convening authority was in 
     fact motivated by vindictiveness. Dismissing the additional 
     charges would be consistent with Supreme Court and Military 
     case law. To allow vindictive charging as occurred here would 
     be to chill the exercise of a sailor's legal right to refuse 
     Captain's Mast. For the foregoing reasons, all charged beyond 
     the initial specification of dereliction of duty should be 
     dismissed.

                              5. Evidence

       a. Witnesses. The defense offers the testimony of the 
     following witnesses in support of this motion: Detective 
     Wunsch, Sergeant Forbes, LCDR Cole, MACS Taylor, Lieutenant 
     Frank, Officer Eglin, Officer Robertson, MACS Kossman, Kari 
     Lee Patterson, DT3 Wright, MS3 Doyle, Mr. Hudson, Mr. Flynt, 
     R.J. Bryan, Petty Officer Bassett, Petty Officer Pringle, 
     Andrew Stewart, LT Morean, Petty Officer Beman, Officer 
     Tangonan.
       b. Documents. The following documents will be presented as 
     evidence in support of this motion: Incident Complaint Report 
     (ICR) for Wunsch arrest, ICR for Forbes incident, report of 
     Beman incident, 5 September 1993 Memorandum from LCDR Cole, 
     Bermuda file, MACS Tayor evaluation, Mast charges, Report 
     chit, NJP Refusal Form, Court-martial charges, letter of 
     caution, Bermuda tape, new ICR for 16 November arrest, 
     Barring notice for Doug Lively.

                          6. Relief requested

       Pursuant to Basis 1, the defense respectfully requests that 
     all charges be dismissed. Pursuant to Basis 2, the defense 
     respectfully requests that all charges be dismissed. Pursuant 
     to Basis 3, the defense respectfully requests that all 
     charges other than the one specification charged at Mast be 
     dismissed.

                            7. Oral argument

       The defense desires to make oral argument on this motion.
       Date: March 23, 1994.

                                               Carter F. Brod,

                                                   Lt, JAGC, USNR,
                                                  Defense Counsel.


                         certificate of service

       I, Lieutenant Carter F. Brod, JAGC, USNR, certify that on 
     this 23rd day of March 1994, I personally served upon 
     government trial counsel a true and correct copy of this 
     Motion.

                          ____________________