[Congressional Record Volume 140, Number 126 (Monday, September 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: September 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE NOMINATION OF ADM. HENRY H. MAUZ, JR.
Mr. NUNN. Mr. President, sometime this afternoon or tomorrow it would
be my hope that the Senate go into executive session to take up the
Mauz nomination. The leader has already indicated that would be his
intent.
I do not intend to call it up now because I know we are not going to
be able to vote on it now, and there will be others coming in I hope
this afternoon to debate the defense bill which is the pending
business. But in an effort to use the Senate's time in a meaningful way
this afternoon, while we are waiting for people who have indicated they
want to speak on the DOD bill to come to the floor, I would like to
discuss the Mauz nomination because all of my colleagues may be
required to vote on or in relation to this nomination as early as
tomorrow afternoon.
Mr. President, I urge the Senate to confirm the nomination of Adm.
Henry Mauz, Jr., U.S. Navy, to retire in grade. This nomination was
received in the Senate on May 10, 1994--4 months ago--and has been
thoroughly reviewed by the Committee on Armed Services.
The nomination was reported to the Senate over a month ago by the
Armed Services Committee, on August 12, 1994, following a unanimous,
22-0 vote in committee in favor of the nomination.
Mr. President, the committee thoroughly reviewed all issues,
including allegations associated with this nomination, in accordance
with the committee's standard procedures prior to the unanimous vote on
August 12. I will describe in detail the committee's proceedings on
this nomination and the results of our review of the issues.
admiral mauz' military record
Before doing so, I would like to set forth the details of Admiral
Mauz' 35-year career in the Navy. That career--his record of service in
uniform to our Nation, I believe, must be considered by the Senate in
reaching its decision on Admiral Mauz' retirement.
Admiral Mauz has served on active duty continuously since 1959, with
numerous shipboard assignments involving lengthy deployments and family
separations.
During the war in Vietnam, he served with distinction over a 4-year
period in the Western Pacific and in Southeast Asia. His direct combat
experience included 13 months of duty as the officer in charge of River
Section 543, patrolling the rivers of Vietnam and supporting operations
by Navy SEAL's and attack helicopters. His patrols frequently involved
firefights and skirmishes with the Viet Cong, who controlled the river
banks. For his Vietnam era service, he as awarded the Bronze Star with
Combat ``V'' and the Navy Achievement Medal.
Subsequent to his tours of duty in Vietnam, he served in a series of
command and staff positions in which he demonstrated outstanding
performance and leadership. His operational actions included emergency
deployments to the Mediterranean in the early seventies in response to
the Middle East crisis and deployment to the North Arabian Sea in the
early eighties in response to the Iranian crisis.
In 1986, he commanded the two carrier Battle Force consisting of the
U.S.S. America and the U.S.S. Coral Sea, which conducted successful
strikes against terrorist related targets in Libya. He was awarded the
Distinguished Service Medal for these operations.
In 1990, while serving both as the Commander of the Seventh Fleet and
Commander of U.S. Naval Forces in the Central Command, he worked with
General Schwarzkopf to establish the maritime embargo against Iraq
after Iraq invaded Kuwait, and developed the plans for naval
involvement in the Persian Gulf war. His performance earned him a
second Distinguished Service Medal.
In addition to the decorations previously mentioned, Admiral Mauz's
awards include the Defense Superior Service Medal, the Legion of Merit,
and the Meritorious Service Medal.
Since July 1992, he has served as the commander in chief, U.S.
Atlantic Fleet. He has under his command 224 ships, 1,480 aircraft, 27
bases, 12,000 military officers, 125,000 enlisted personnel, and 10,000
DOD civilians.
Mr. President, I hope that these numbers do not just go over people's
heads as they are making their own conclusions about this debate and
this vote that we will have on this nomination. Every complaint needs
to be checked, and every allegation in this case has been checked. I
think the scope of this has to be put in the context of the complaints.
We have had two people complain in terms of the allegations we are
dealing with, and I will detail these issues in a few moments. Out of
the 125,000 enlisted personnel, 10,000 civilians, and 12,000 military
officers who served under Admiral Mauz for 2 years in his most recent
assignment--this does not count the previous assignments over his
entire 35-year career--we have had two complaints. These complaints
need to be seriously examined, and they will be. They will be seriously
considered by the Senate. This does not diminish the seriousness of the
complaints, but it does put them in context. The military nominations
we consider involve Navy officers, Air Force officers, Marine officers,
and Army officers, who have under their command tens of thousands of
people. Thousands of things happen every day in personnel matters--not
one or two, but thousands of them. I think this has to be put in that
context.
The Atlantic Fleet, which has an annual operations and maintenance
budget of $4.6 billion, has been involved in operations ranging from
the Arctic North to South America, including supporting the Haiti
embargo, the war on drugs, and Cuban migration operations; providing
forces for possible Haitian contingency operations; and providing
forces for regular deployments to the Mediterranean and Central Command
areas.
In short, he is serving, and has served, with distinction in one of
the most senior and responsible positions in the Armed Forces of the
United States.
Now the Senate is deciding whether his long and distinguished career
of naval service warrants retirement in grade as a four-star Admiral;
or whether--based on allegations which have not been substantiated--he
should receive a two-grade reduction to rear Admiral. Such a reduction
would not only constitute a penalty of almost $17,000 per year for the
rest of his life, it would also constitute a repudiation of his 35
years of distinguished service. At least that is the way it is
perceived by me.
consideration of military nominations by the armed services committee
Mr. President, to put this nomination in context, I would like to
describe the procedures used by the Armed Services Committee to
consider general and flag officer nominations--including nominations
for three- and four-star officers to retire in grade.
Pursuant to the constitutional responsibility of the Senate to
provide advice and consent on the nomination of officers of the United
States, the Senate Armed Services Committee considers the promotion of
virtually all military officers, as well as the appointment,
reassignment, and retirement of all three- and four-star officers. The
consideration of military nominations is one of the major activities of
the Armed Services Committee. This year alone, we have considered over
600 general and flag officer nominations and over 18,000 other military
nominations.
Our review of military nominations is in addition to our action this
year on 26 civilian nominations--each of which required hearings. We
have discharged this responsibility while also acting on major
legislation, including the annual National Defense Authorization Act
and the Federal Acquisition Streamlining of 1994.
The committee gives particular attention to general and flag officer
nominations. Each such nomination is scrutinized to ensure compliance
with the joint service and educational requirements of the Goldwater-
Nichols Department of Defense Reorganization Act. In addition, the
committee requires the Department of Defense to provide a letter on
each general and flag officer nominee, advising the committee as to any
substantiated adverse information.
The committee also takes seriously its responsibility to consider
allegations submitted by individuals. When the committee receives an
allegation which contains information that could provide a basis for
rejecting the nomination, the committee forwards the information to the
Department of Defense for its review and report back to the committee.
The committee reviews carefully the Department's adverse information
letter and the information provided by the Department in response to
allegations submitted by individuals. We do not simply defer to the
judgment of the Department of Defense. We determine whether the
Department's submission provides a sufficient basis for action on the
nomination, or whether additional information is needed. When the
committee determines that the information provided by the Department is
not sufficient to provide a factual basis for considering the
nomination, we require additional information.
When there is substantiated adverse information, it is considered by
the committee in the course of determining whether to recommend to the
Senate that the nomination be confirmed. I want to make it clear that
we do not simply defer to the executive branch. In recent years, we
have rejected nominees for senior military positions in each of the
military departments that we were strongly supported by the Department
of Defense.
proceedings on the mauz nomination
On May 10, 1994, President Clinton nominated Admiral Mauz to retire
in grade as a four-star admiral, and the nomination was referred to the
Armed Services Committee.
On May 17, 1994, Under Secretary of Defense Edwin Dorn submitted the
required information letter to the committee. This letter informed the
committee that Admiral Mauz was counseled in writing for circumstances
involving an official trip to the Naval Air Station Bermuda in November
1992, a well-publicized incident that had been featured on the ABC-TV's
``Prime Time Live'' program on December 10, 1992.
The letter noted that although the matter involved legitimate
official travel by Admiral Mauz, ``circumstances that evolved during
the planning of the trip created the appearance that the travel was
planned and executed as much for the personal recreation of some of the
staff and their spouses as it was for the performance of official
duties by Admiral Mauz.''
The letter also noted that Admiral Mauz and members of his party and
spouses were inappropriately provided with ground transportation, and
the use of a military driver, while in leave status.
As a result, he was counseled in writing that he should exercise
greater care to avoid the appearance of impropriety when scheduling of
official travel and use of Government aircraft are combined with leave.
He was further counseled that he should exercised greater scrutiny in
his use of military personnel while in a leave status.
The DOD letter concluded:
We have carefully considered this information; it should
not preclude favorable consideration of the nomination. When
considered in light of Admiral Mauz's performance spanning 35
years of service, proceeding with the nomination is clearly
in the best interests of the Department of the Navy and the
Department of Defense.
Mr. President, pursuant to the committee's standard procedures, the
nomination remained on the committee's calendar pending an opportunity
to brief committee members and to discuss the adverse information that
had been submitted by DOD. During June, the committee devoted almost
all of our attention to markup and Senate floor debate on the National
Defense Authorization Act for fiscal year 1995. We simply had no time
for the kind of deliberate discussion that was required for this
nomination.
The committee was prepared to act on the Mauz nomination in early
July, when we received a letter on the nomination from the Government
Accountability Project, a nonprofit organization, dated July 11, 1994.
In addition to discussing the trip to Naval Air Station Bermuda, the
letter raised two additional matters.
First, the letter alleged that Admiral Mauz retaliated against Senior
Chief Master-at-Arms George R. Taylor, one of the individuals who had
spoken to ABC-TV about travel of senior officers to Naval Air Station
Bermuda. The letter alleged that Admiral Mauz and his staff removed
Chief Taylor from his duties and attempted to prosecute him for
insubordination. The letter implied that Admiral Mauz was also involved
in court-martial charges against Chief Taylor at a subsequent duty
station, Port Hueneme, which were later dismissed.
Second, the letter alleged that Admiral Mauz was aware of sexual
harassment against Lt. Darlene Simmons, a female officer in a
subordinate command within the Atlantic Fleet, that he suppressed
findings of his own command's inquiry into the matter, and that he
failed to order any corrective action on behalf of Lieutenant Simmons.
Mr. President, at the time we received this letter, the nomination
had been pending in the committee for over 2 months. Admiral Mauz was
not the only one affected. His replacement--and all replacements down
the line--were held in abeyance pending action on the nomination. The
management of the Navy, the careers of individuals, and the personal
plans of families--all were placed on hold pending the confirmation
proceedings.
With due regard for the burdens on the Navy, the officers concerned,
and their families, the committee recognized its obligation to the
Senate to ensure appropriate review of these allegations. The committee
followed its normal procedure and directed the Navy to address the
issues set forth in the letter.
On July 27, 1994, Adm. Jeremy M. Boorda, the Chief of Naval
Operations, responded on behalf of the Navy. The letter from Admiral
Boorda contains detailed, factual responses to the allegations against
Admiral Mauz. And for any colleagues who would like to look at the
letter--it will be placed in the Record today--they will have a chance
to examine that.
The Navy reported that the allegations of reprisal against Senior
Chief Taylor by Admiral Mauz were not substantiated. According to the
Navy, there is no substantiated evidence that Admiral Mauz had any role
in the proceedings against Senior Chief Taylor in Bermuda or at Port
Hueneme. Moreover, the DOD inspector general reviewed the proceedings
in Bermuda and determined that they did not constitute a reprisal. In
addition, the charges against Senior Chief Taylor in connection with
his duties at Port Hueneme ultimately were dismissed by the Navy.
The Navy also determined that the allegations that Admiral Mauz had
failed to address the sexual harassment of Lieutenant Simmons were not
substantiated. The Navy confirmed that Lieutenant Simmons had been the
victim of sexual harassment on board the U.S.S. Canopus--there is no
question she had been sexually harassed; that is not at issue here--a
ship under a subordinate chain of command--but that Admiral Mauz had
acted promptly when he was advised of the problem.
The Navy reported that Admiral Mauz's intervention through
appointment of Comdr. Cathleen Miller to monitor the case led to
removal of the offending officer from the Canopus and a meeting of
ship's officers in which the CO, the commanding officer, expressly
condemned the offending behavior. In addition, when Lieutenant Simmons,
a reserve officer, faced termination of her active duty service,
Admiral Mauz personally intervened with the Chief of Naval Personnel to
have her service extended.
The Navy reported that Lieutenant Simmons allegations against Admiral
Mauz had been referred to the Navy inspector general and that the
allegations were not substantiated.
At this point, the committee was again ready to consider the
nomination. On July 29, the committee received a telephone call from
the Government Accountability Project, indicating that they would be
providing additional information on the Taylor matter during the week
of August 1. The committee met on August 1 and decided to defer action
on the nomination in view of the promised imminent receipt of
additional information.
The committee received a letter from the Government Accountability
Project, dated August 3, 1994, alleging that inquiries by Admiral Mauz'
staff concerning the Port Hueneme case represented an attempt to
influence the prosecution of Senior Chief Taylor and to intimidate his
military defense counsel.
The committee once again deferred action on the nomination so that
the allegations could be reviewed.
On August 9, Navy Secretary Dalton responded to the second letter
from the Government Accountability Project. The Secretary reported that
the allegations were not substantiated. Chargess against Senior Chief
Taylor were initiated, processed and dismissed by naval authorities in
California without influence or intervention from Admiral Mauz or his
staff.
On August 10, during a public hearing on civilian nominations, I
outlined a number of items on the committee's agenda, including the
likelihood of a vote on the retirement of the nomination of Admiral
Mauz. I noted that the committee had been briefed on the nomination
during the previous week, and that additional information had been
reviewed since that time. I added that I would be recommending, as
chairman of the committee, that the nomination be approved.
On August 12, the committee reported the nomination to the Senate. At
this point, the nomination had been in the Senate for 3 months, action
by the committee had been deferred two times, and all matters had been
thoroughly reviewed by the Department of Defense and the committee.
The vote was unanimous, with all the 22 members of the committee
voting in favor of the nomination. In reviewing the nomination we had
discussed both of these matters, the allegations in both cases, that I
have referred to.
In view of the media attention to nomination, the committee directed
Senator Thurmond and me to issue a joint statement, summarizing the
committee's proceedings and including the relevant correspondence from
the Government Accountability Project and the Navy. That statement
appeared in the Record of August 12, beginning on page S 11434.
I might add the Government Accountability Project is a nonprofit
organization. It has no connection with the U.S. Government. That is
the name of it--the Government Accountability Project. But there is no
governmental connection that I know of.
On August 16, Senior Chief Taylor wrote to Senator Shelby stating
that the letters from the Navy were inaccurate and misleading. Senator
Shelby forwarded the letter to the committee. In response to a follow-
up call from the committee, the Government Accountability Project
submitted a letter from the Senior Chief Taylor on August 9. According
to Senior Chief Taylor, Admiral Mauz' alleged improper role in the case
I referred to was substantiated because Admiral Mauz' staff had
obtained a copy of a motion in that case at the direction of Admiral
Mauz, and Admiral Mauz' staff judge advocate had called the prosecutor
to tell him that he was upset that the charges had been withdrawn
against Taylor.
The committee forwarded this letter to the Navy for review.
Admiral Boorda responded on August 22, 1994, stating that the parties
to the conversation do not support Senior Chief Taylor's assertion that
the request for the motion was made at Admiral Mauz' personal
direction, or that anyone regarded the request as improper.
Mr. President, this is a complicated series of conversations back and
forth. It is all detailed in the Navy's response to the committee. It
would take 3 or 4 pages of explanation, but the bottom line is there is
no evidence that Admiral Mauz had any knowledge of the request.
Instead, the evidence is that the material was forwarded at the
initiative of Navy attorneys in California, not at the initiative of
Admiral Mauz or his staff.
With respect to the allegation that Admiral Mauz's staff judge
advocate stated that he was upset that the charges were withdrawn, the
Navy reported that the staff judge advocate denies making such a
statement. Senior Chief Taylor did not allege in the court proceedings
that the staff judge advocate had made such a statement, and the record
of proceedings does not contain evidence of such a statement.
But, in any event, relating to the allegations Senior Chief Taylor
made to the committee, the staff judge advocate denies making such a
statement.
Mr. President, I assume we will have most of the debate on this
matter tomorrow. But there are several reasons that I think our
colleagues ought to keep in mind why the Senate should act on this
nomination now without further delay.
The committee adhered to our well-established procedures to ensure
appropriate review of the allegations concerning Admiral Mauz by both
the Department of Defense and the committee. The Navy provided detailed
responses to the allegations concerning Admiral Mauz. With respect to
the allegations concerning Lieutenant Simmons, the Navy concluded:
Admiral Mauz did not suppress the evidence of any inquiry,
did not fail to take corrective action on behalf of
Lieutenant Simmons, nor did he fail to follow proper
procedures in inquiring into allegations.
With respect to the allegations concerning Senior Chief Taylor, the
Navy concluded:
There is simply no basis whatsoever for any claim that
Admiral Mauz took a personal interest in the case involving
Senior Chief Taylor.
The committee has relied on these procedures in the past, both with
respect to nominations that have been recommended for approval and
nominations that have been rejected. There has been no showing that the
circumstances of the Mauz nomination require the use of different
procedures.
Mr. President, Admiral Mauz has served his country faithfully and
with distinction for over 35 years, including combat service in
Vietnam, as well as in key operational roles in the Mediterranean and
in the Persian Gulf. He continues to serve as commander of the Atlantic
Fleet. He was there when America needed him, and he continues to be
there at this very moment. His service has not been perfect--and I
doubt if there are many, if any, people who have gone through a perfect
career--and that was demonstrated by the counseling he received in
connection with travel to Bermuda Naval Air Station. No doubt he made a
mistake there, a mistake of judgment. In my judgment, however, that
lapse in judgment pales in significance when compared to his 35 years
of outstanding service.
Finally, I would note that Admiral Mauz' replacement, Adm. Bud
Flanagan--who many people in the Senate know; he was formerly Navy
liaison--was confirmed by the Senate in June, but he cannot assume his
new position until Admiral Mauz retires. The delay in moving Admiral
Flanagan has in turn delayed appointment of Admiral Flanagan's
successor, which in turn has delayed appointments all the way down the
line.
This is most disruptive on Navy's management and very difficult on
the officers and families concerned.
Mr. President, this disruption does not mean that serious allegations
do not have to be taken seriously. And we have done that. This
nomination has been delayed on three different occasions while we
checked into each and every allegation. It does mean, however, that we
cannot take allegations that do not have substance to them, based on
all of our examinations, and make those the focal point of public
hearings. If we do that, we go on and on and on with the process. There
are times when hearings are required, but that is when we have
substantial evidence to back up allegations.
An allegation is not a fact. An allegation is not proof. And we need
to keep that in mind. There are too many of these cases now coming
before the Senate where allegations are being taken as tantamount to
fact. That is simply not the way that any deliberative body adjudicates
important matters.
Mr. President, I understand the concern about the allegations made
against Admiral Mauz. There are Senators who are legitimately
concerned. They have legitimate questions. We have continued to work
with those Senators. We are continuing to work with them now. We are
getting to any other questions that concern this. I will be glad to
send them over and make sure the Navy, Admiral Mauz, or Admiral Boorda,
the Secretary of the Navy, or other appropriate people focus on them
and give honest and thorough answers to those questions.
So we are not saying there is not room for questions here. There is.
But the committee has taken each allegation and we have gone through
it. We have treated them as worthy of review. We did not act on the
nomination until there was sufficient time for development of key facts
and consideration of that information by the committee. We made that
information available to the Senate. Every Senator can reach his or her
own conclusion on the merits of the nomination.
In the opinion of the Armed Services Committee, by unanimous vote,
after looking at these allegations, the 35 years of dedicated service
to the Nation by Admiral Mauz warrants retirement in grade. I urge my
colleagues, when we vote on this nomination or in relation to this
nomination tomorrow afternoon--I hope we will vote tomorrow afternoon--
to vote for his nomination.
Mr. President, I ask unanimous consent that the correspondence to the
committee from the Government Accountability Project and responses to
these allegations from the Department of Navy be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
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
to 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]), no action was taken against any flag
commander who was responsible for the ongoing development of
this situation over several months.
Besides reprisal for the reporting of wrongdoing, there is
one additional common element in these two cases--the role
played by the Inspector General of the Atlantic Fleet to
cover up the nature and extent of the underlying problems and
prevent any further remedial actions.
These two cases, in our minds, bear directly on the merits
of the decision before your committee with respect to the
appropriate level of retirement grade for Admiral Mauz.
Regardless of how this particular question is resolved, it
is clear that the system of accountability within the
military and the Military Whistleblower Protection Act, in
particular, are broken and in dire need of repair. GAP
strongly urges that a comprehensive review of these issues be
undertaken by the Armed Services Committee as soon as it is
practicable.
Cordially,
Jeffrey P. Ruch,
Policy Director.
____
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
too 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. Darlene S. Simmons, JAGC, USNR,
Naval Legal Service Office, Naval Station, 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 a 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 Schroder made arrangements for me to
be transferred to NCBC Port Hueneme, CA. I was very naive, I
believed 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.
____
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 his clearly substantiates his personal concern and
direct involvement in investigating LT Simmons'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 tasked 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
Simmon'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 command 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 back briefed Admiral Mauz as to the action he had taken.
There was no influence on the case and, in fact, the charged
has 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 that lawyer's
inquiry into the newspaper article. These matters taking
place after the withdrawal of charges at Fort 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 the 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.
____
Attachment 3
Gap Government Accountability Project,
August 3, 1994.
Hon. Sam Nunn,
Chairman, Senate Armed Services Committee, 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.
____
Navy-Marine Corps Trial Judiciary, Southwest Judicial Circuit, Port
Hueneme, CA
United States versus Taylor, George R., MACS/E-8, 000-00-
0000, U.S. Navy.
Special Court-Martial: Motion to Dismiss for Vindictive
Prosecution Pursuant to the Fifth Amendment.
Date: 23 March 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
bulls--t,'' 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 f--king 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 a-- 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 Tangonan 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 policy
practices.
recent facts
ll. On 11 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. 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. 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 M.J. 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 or 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, 6 M.J. at 404 (CMA 1979).
1. 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 has
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 shows his distaste for
MACS Taylor's prior 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 is 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, Byron 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 pending 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 but for MACS Taylor's invocation of
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-material 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 Brod and * * * appeals to MACS
Taylor. LCDR Cole further told MACS Taylor that if he didn't
``open up'' there would be ``twenty more f---ing 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, the 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
demonstrate 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 decisions 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 prosecutional 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 charges 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 Elgin, 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 Taylor 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 rests that all charges other than the one
specification charged at Mast be dismissed.
7. Oral Argument. The defense desires to make oral argument
of this motion.
Carter F. Brod,
LT, JAGC, USNR,
Defense Counsel.
Date: 23 Mar 94
certificate of service
I, Lieutenant Carter F. Brod, JAGC, USNR, certify that on
this 23rd day of March 1944, I personally served upon
government trial counsel a true and correct copy of this
Motion.
____
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 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 Nueneme) 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 an unlawful decision to prosecute Senior Chief
Taylor. The defense motion complained mainly about the 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 the 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 in 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.
____
Camarillo, CA.
Senator Sam Nunn,
Chairman, Senate Armed Services Committee, Washington, DC.
Dear Senator Nunn and Members of the Committee: I am
writing to address the inaccurate and misleading information
provided to the committee concerning my case as it pertains
to the retirement status of Admiral Henry Mauz. My primary
concerns focus on the involvement of Admiral Mauz and his
staff in charges (since dropped) that were brought against me
while at Port Hueneme. I believe this involvement, and the
Navy's obfuscation of the facts, provide more than enough
reason why the committee should hold a full investigation
into this matter, before bringing the matter to a vote.
Below is an outline of the most serious errors in the
Navy's communications with the committee. It is by no means
comprehensive, and full committee investigation would flush
out the full details.
I. Manner by which Mauz's staff acquired defense proceedings
Not only do the Navy responses differ from the actual chain
of events, the accounts from Admiral Boorda and Secretary
Dalton differ from each other concerning the same events.
Statement from Boarda letter:
``Subsequently, unbeknownst to either the senior Staff
Judge Advocate of 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
the request. While these documents were shared with the
senior Staff Judge Advocate he did not speak of them to any
other staff member.''
Statement from Dalton letter:
``With regard to receipt of a copy of the defense motion by
a member of the office of the CINCLANFLT 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 CINCLANFLT
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
CINCLANFLT 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 CINCLANFLT 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 CINCLANFLT 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, he faxed her a copy.''
The actual chain of events occurred as follows:
The junior Staff Judge Advocate contacted a friend of hers
at Port Hueneme, a Lieutenant Wilson. Lieutenant Wilson
approached Taylor's defense counsel supervisor, Lieutenant
Tamboer, and asked for a copy of the defense proceedings.
Lieutenant Tamboer refused the request. The junior Staff
Judge Advocate contacted Lieutenant Tamboer directly and said
it was a direct request from ADM Mauz. Lieutenant Tamboer
then complied with the request.
II. Admiral Mauz's Involvement in the Charges against Taylor
Statement from Boorda letter:
``There was no influence on the case and, in fact, the
charges had already been withdrawn at the time of the call.''
Facts:
This statement is highly misleading. Although the
extraordinarily high number of charges (48 total) were
withdrawn at the time of the call, approximately two weeks
later, Taylor was sent to an Article 32 hearing where he was
re-charged.
In fact, the CINCLANTFLT Staff Judge Advocate called the
Staff Judge Advocate for the Port Hueneme base, Lt. Cdr.
Derrick Cole, to tell him that he was upset that the charges
had been withdrawn against Taylor. Lt. Cdr. Cole assured the
CINCLANTFLT Staff Judge Advocate that Taylor would be re-
charged. This information is in the record of trial. The Navy
withdrew charges, in all likelihood, because they were
rightly concerned that if the case was brought before a
judge, that judge would promptly dismiss the case.
Many of the key people involved in my case, who dispute the
Navy's account of the chain of events, would be happy to
provide the committee with statements or testify. Please
contact me if I can be of any assistance. My work phone is:
(805) 982-2007. My home phone is (805) 388-3915. My beeper
number is: 1-800-482-3366, ext. 10397. I am at your service.
Very Respectfully,
George R. Taylor,
MACS (SW) USN.
____
Chief Of Naval Operations,
August 22, 1994.
Hon. Sam Nunn,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This letter responds to a recent undated
letter from Senior Chief George R. Taylor, USN, to ``Senator
Nunn and Members of the Committee.'' Senior Chief Taylor's
letter was passed from the Armed Services Committee Staff to
the Navy Chief of Legislative Affairs on 19 August asking for
``. . . the Navy's review of the letter and information
therein.''
This is the third in a series of letters concerning Senior
Chief Taylor and the pending retirement confirmation of
Admiral Henry Mauz, Jr., U.S. Navy. This most recent letter
provides no new allegations or information that have not
already been addressed in the prior two letters.
Nevertheless, the following paragraphs will address in
additional detail each of Senior Chief Taylor's allegations.
With respect to Part I of his letter, Senior Chief Taylor
states that the accounts in my 27 July letter and the
Secretary of the Navy's 9 August letter ``. . . differ from
each other concerning the same events.'' That is not correct.
The Secretary's letter simply provided a more detailed
description of the interactions between LT Hagerty-Ford (a
junior staff judge advocate at CINCLANTFLT), LT Wilson (a
legal officer at a Port Hueneme tenant command), and LT
Tamboer (OIC Naval Legal Service Office Detachment, Port
Hueneme).
The actual chain of events as stated in my 27 July letter
and amplified in Secretary Dalton's letter is accurate. LT
Wilson, a friend of LT Hagerty-Ford and a judge advocate
assigned to a tenant command in Port Hueneme, called LT
Hagerty-Ford to offer her a copy of the defense motion. When
she received the copy with some illegible parts, LT Hagerty-
Ford asked LT Wilson to send a better copy. LT Wilson asked
the OIC, LT Tamboer, for a better copy for this purpose, but
LT Tamboer was reluctant to provide it for the reasons stated
in Secretary Dalton's 9 August letter. LT Wilson so informed
LT Hagerty-Ford, who then phoned LT Tamboer to explain her
reason for requesting a copy. As stated in attachments 1 and
2, LT Tamboer and LT Hagerty-Ford agree that my previous
letter and Secretary Dalton's letter accurately describe
their phone conversation. Specifically, LT Hagerty-Ford did
not say she was making a direct request from Admiral Mauz. In
addition, her statement indicates she never met Admiral Mauz
or ever discussed this or any other case with him.
The foregoing reaffirms that Admiral Mauz played no role in
a staff member's request for a copy of the defense motion to
dismiss Senior Chief Taylor's case.
With respect to Part II of Senior Chief Taylor's letter, my
27 July letter stating that there was no influence exerted on
the case and, in fact, that the charges had already been
withdrawn at the time of the call, is absolutely accurate and
not misleading. CAPT Baggett (Staff Judge Advocate at
CINCLANTFLT) called LCDR Cole after the case had been
forwarded to COMNAVBASE San Diego for disposition. At the
time of the call, LCDR Cole no longer had any influence on
the outcome because of the withdrawal of the charges and the
case's transfer to a new convening authority. CAPT Baggett
states in Attachment 3 that he never called the new convening
authority, who later recharged Senior Chief Taylor.
On the final page of his letter, under the section entitled
``Facts'', Senior Chief Taylor notes that approximately two
weeks after the charges against him were withdrawn, new
charges were preferred and sent to an Article 32 hearing. He
fails to note, however, that this action was taken by a
different convening authority, COMNAVBASE San Diego, after a
review of Senior Chief Taylor's alleged misconduct and
redrafting of charges against him based on his actions in
November 1993 as a member of the Naval Construction Battalion
Center, Port Hueneme, Security Force.
In his next to last paragraph, Senior Chief Taylor says
that CAPT Baggett was ``upset'' that the charges had been
withdrawn and that LCDR Cole assured CAPT Baggett that Senior
Chief Taylor would be recharged. CAPT Baggett rejects this in
Attachment 3. Moreover, there is no evidence in the record of
the Article 32 investigation that supports Senior Chief
Taylor's assertions. Secretary Dalton's letter accurately
states that the purpose of Captain Baggett's call to LCDR
Cole was to clarify information contained in a newspaper
article.
The foregoing demonstrates again that Admiral Mauz played
no role whatever in Senior Chief Taylor's case in California.
In summary, as stated in the Secretary's and my prior
letters, Senior Chief Taylor's accusations are inaccurate and
should not be allowed to further delay the confirmation of
Admiral Mauz for retirement in the grade of Admiral, which he
so deservedly has earned.
I am sending a similar letter to Senator Thurmond.
Very respectfully,
J.M. Boorda.
____
Grand Rapids, MI,
August 20, 1994.
To Whom It May Concern: Regarding the call I received from
Lieutenant Noreen Hagerty-Ford of the CINCLANTFLT Staff Judge
Advocate office in mid-April, the letters from the Chief of
Naval Operations and the Secretary of the Navy to the Senate
Armed Services Committee of July 27, 1994 and August 9, 1994,
respectively, fairly and accurately describe my part in
responding to her request. In April 1994, I was serving as
Officer in Charge, Navy Legal Service Office, Port Huename. I
have since left the Navy. My April discussion with Lieutenant
Hagerty-Ford was about the purpose of her request for a copy
of the notice filed by the defense in the Senior Chief Taylor
case. She explained that Admiral Maus was CINCLANTFLT. I knew
the motion included allegations about the CINCLANTFLT/Bermuda
matter and therefore understood the command (CINCLANTFLT)
would want to know about the allegations made in this motion.
I recall being very busy when she called and that it did not
take long at all for me to make the judgment that it would be
appropriate to send her a copy of the motion. I agreed she
had provided a valid reason and, believing I had received a
reasonable request from the CINCLANTFLT staff, I faxed her a
copy and so informed Senior Chief Taylor's defense counsel.
John Tamboer.
____
Norfolk, VA,
August 22, 1994.
To Whom It May Concern: The letter of 27 July 1994 and
Secretary of the Navy's letter of 9 August 1994 are correct
in describing my actions in April 1994 in obtaining a copy of
the defense motion in Senior Chief Taylor's case. I was first
afforded the document by my friend, LT Wilson, whom I know
from a previous duty station. The copy I got had some
illegible parts, so I called LT Wilson to ask him to send me
a better copy. LT Wilson said he would ask LT Tamboar for
one. Later that day LT Wilson called me to say LT Tamboar was
reluctant to send out copies of the document unless there was
a reason for the person to have it. I told him I would call
LT Tamboar and ask him for it myself. Just as Secretary
Dalton's letter states, I told LT Tamboar that I was on the
CINCLANTFLT staff and explained that when allegations are
made about a command, as apparently had been made in this
case, the command has a valid reason to know about those
allegations. LT Tamboar said he was satisfied I had provided
a valid reason and agreed to send me a copy. I did not demand
the document. I had no reason to do that and I simply do not
work that way. It was a short and business-like conversation.
I did not say the request was from Admiral Mauz because it
most certainly was not. In fact, I am a relatively junior
member on a large fleet staff and have never actually met
Admiral Mauz or discussed this or any other case with him. No
one else asked me to get it either. I did not provide it to
anyone outside my office.
------ ------,
LT. JAGC, USNR.
____
Norfolk, VA,
August 20, 1994.
To Whom It May Concern: I became the Staff Judge for
Commander in Chief, U.S. Atlantic Fleet, in mid-February
1994. The purpose of my phone conversation on 4 April 1994
with the Staff Judge Advocate at Port Hueneme was exactly as
stated in Secretary Dalton's letter of 9 August 1994 to the
Senate Armed Services Committee. At no time during the
conversation did I indicate the LCDR Cole in any way that I
was upset that charges against Senior Chief Taylor stemming
from occurrences at Port Hueneme had been withdrawn. LCDR
Cole explained that, contrary to an Orlando Sentinel
newspaper article, the charges had not been dropped because
of retaliation for being a whistleblower at Bermuda. He
stated that the charges had been withdrawn and the case had
been sent to another convening authority solely due to events
at Port Hueneme which had prompted Senior Chief Taylor's
defense counsel to raise a motion for dismissal based on
vindictive prosecution. Upon being told the real reason for
the withdrawal of the charges and transfer of materials
pertaining to the case, I believed that the processing of the
case had no connection with anything that had happened at
Bermuda. The disposition of the investigation of Senior Chief
Taylor had already been passed to a command in San Diego to
determine independently at the time I talked with LCDR Cole.
I had no further conversations with LCDR Cole and I never
talked to anyone at San Diego about the case.
Joseph E. Baggett,
Capt. JAGC, USN.
Mr. NUNN. Mr. President, I know Senator Thurmond has been thoroughly
involved in this nomination and I will yield for whatever remarks he
would like to make.
I again urge our colleagues--I understand there are hours and hours
being requested on this DOD bill. I do not mind that at all. But it is
a little frustrating to come back and be told that there were going to
be a lot of people wanting to speak on the bill today and there were a
number of people who wanted to speak anywhere from 2 hours, 3 hours,
and so forth, and have nobody here to speak on the bill.
That is our job and we will be here to do the job. I hope we can
conclude this defense authorization before tomorrow afternoon. If there
are several hours being requested for people to speak on it and we are
here for hours this afternoon with no one speaking, the question is, Is
it going to cause us to delay tomorrow and not be able to take up other
important matters of the Senate?
So I hope anyone who does want to make remarks on the DOD
authorization bill would be able to come over and discuss that at this
time.
In the meantime, I know Senator Thurmond has already made his
statement on the DOD bill, but if he has any comments on the Mauz
nomination, even though we are not officially on that nomination, it
would probably be an efficient use of time if those could be made now.
Mr. THURMOND addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. THURMOND. Mr. President, I rise to support the nomination of Adm.
Henry Mauz to retire in grade. Admiral Mauz has had a long and
distinguished career spanning over 35 years of service during some of
the most turbulent times in our Nation's history. He has commanded
river boats in Vietnam, mighty ships of war, the U.S. 7th Fleet and is
currently serving as Commander in Chief, U.S. Atlantic Fleet.
Senator Nunn, the distinguished chairman of the Armed Services
Committee, has provided a detailed history of this nomination, so I
will not repeat those details, except to reiterate that the Armed
Services Committee received this nomination on the 10th of May and has
been actively pursuing it ever since.
Mr. President, three allegations have clouded this nomination. The
first concerns a trip Admiral Mauz took to Bermuda in November 1992.
That incident was the subject of a television news show aired
nationally and was thoroughly investigated. Although Admiral Mauz
admitted to an error of judgment in this incident, Admiral Mauz was
censured by the Vice Chief of Naval Operations for the appearance of
impropriety as a result of this incident.
The second issue concerns allegations by Lt. Darlene Simmons that
Admiral Mauz had not sufficiently protected her from reprisal in a
verbal sexual harassment case.
Mr. President, Lieutenant Simmons concedes that Admiral Mauz was not
involved in the incident and that he directed his Special Assistant for
Women's Affairs, Commander Miller, to investigate the incident. The
investigation led to the offending officer's removal from the ship.
Also, Admiral Mauz intervened on behalf of Lieutenant Simmons to extend
her tour of duty and her reassignment.
Lieutenant Simmons also believes the admiral let her down by not
being more active in protecting her from what she felt to be reprisal
in her fitness report.
Mr. President, after extensive review of the allegations, the Armed
Services Committee found that Admiral Mauz responded correctly and
positively to the incident and did not suppress evidence, cover up
allegations, or fail to take corrective action. He intervened with the
Chief of Naval Personnel on behalf of Lieutenant Simmons and ensured
that she was provided appropriate action in her case.
The third issue involves an allegation from Senior Master Chief
Taylor that Admiral Mauz used command influence to punish him for
blowing the whistle on the admiral's trip to Bermuda. Master Chief
Taylor was the individual who reported Admiral Mauz' trip to NAS
Bermuda. Later, Master Chief Taylor had charges brought against him
arising from actions while he was serving in California almost a year
after leaving Bermuda. The charges were investigated and subsequently
dismissed, however, Master Chief Taylor alleged that Admiral Mauz
exercised undue command influence in the case in reprisal for the
whistle blowing. The Department of the Navy investigated Master Chief
Taylor's allegations and determined that there were no communications
between Admiral Mauz, or anyone on his staff, with those who brought
the charges against Taylor.
Mr. President, I join Chairman Nunn in urging my colleagues to vote
in favor of retiring Admiral Mauz in the grade of admiral. He is a fine
officer who deserves to retire as an admiral.
Mr. NUNN. Mr. President, again, I urge any of our colleagues who
would like to speak on the DOD authorization bill to come over and
speak now. We have time this afternoon and we may run into other
matters tomorrow, so I hope they will come over and speak.
____________________