Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2003 Decided April 15, 2003
No. 02-5067
JIM A. TURNER,
APPELLANT
v.
DEPARTMENT OF NAVY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01653)
Allan B. Moore argued the cause for appellant. With him
on the briefs were Christopher N. Sipes and Carlton F. W.
Larson.
E. Roy Hawkens, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, and Anthony J. Stein-
meyer, Assistant Director, U.S. Department of Justice.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: TATEL and GARLAND, Circuit Judges and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Concurring opinion filed by Circuit Judge TATEL.
WILLIAMS, Senior Circuit Judge. In 1994 Jim Turner, a
petty officer aboard the USS Antietam, was found guilty of
sexual misconduct in two shipboard proceedings. The first
was a ‘‘non-judicial’’ proceeding under Article 15 of the Uni-
form Code of Military Justice, 10 U.S.C. § 815, resulting in a
reduction in pay grade and a forfeiture of two months salary;
in the second, an Administrative Discharge Board, though
rejecting some of the charges, resolved that he should be
discharged from the Navy with an ‘‘other than honorable’’
discharge. Discharge followed in due course. Turner peti-
tioned the Secretary of the Navy to clear his record and
rescind his discharge. The Secretary ultimately rejected the
petition. Turner then brought an action in district court to
overturn the Secretary’s decision, but the court eventually
granted summary judgment for the Navy. Turner appeals
this judgment, arguing that the shipboard proceedings were
not supported by substantial evidence and that several other
errors require that the Secretary’s decision be reversed. We
reject these arguments and affirm the district court.
***
Turner served in the Navy for about seven years. In April
1994 his commanding officer, Captain Frank, learned of com-
plaints by two of Turner’s shipmates, Petty Officer John King
and Seaman Apprentice Lee Poore, that Turner solicited
homosexual acts and falsified records (apparently in the inter-
est of inducing sexual cooperation). Frank ordered Chief
Petty Officer Clanahan to conduct an investigation. At its
close, three sailors (the two original accusers and Seaman
Chad Maurer) signed sworn statements accusing Turner of
homosexual propositioning and assault. According to the
statements, Turner asked King and Maurer to engage in
sexual acts with him, improperly touched or pushed all three
witnesses, signed his approval on phony performance qualifi-
3
cations for King, and used ‘‘indecent’’ language (namely, blunt
descriptions of the proposed acts). Captain Frank convened
a proceeding under Article 15, known as a Captain’s Mast, to
determine if Turner had committed these offenses and to
impose non-judicial punishment if he had. Although a mem-
ber of the armed forces normally has a right to demand trial
by court-martial in lieu of non-judicial punishment, Turner—a
member of the Navy attached to a vessel—had no such
choice. 10 U.S.C. § 815(a) (2000). He was charged with four
counts of soliciting another to commit a homosexual act, four
counts of indecent language, two counts of indecent assault
(against Poore and Maurer), one count of assault with intent
to commit sodomy (against Poore), one count of making a
false official statement, and one count of conduct of a nature
to bring discredit upon the armed services.
At the Article 15 proceeding, Maurer, Poore, and King
testified to the truthfulness of their sworn statements, which
were offered into evidence. Turner presented character wit-
nesses but did not testify. He was found guilty of all
charges. Captain Frank imposed punishment consisting of
demotion of one pay grade and forfeiture of $644 pay per
month for two months. Turner appealed the punishment
claiming lack of substantial evidence but the authorized supe-
rior officer affirmed.
Almost immediately Captain Frank referred Turner to an
Administrative Discharge Board (‘‘ADB’’) to determine
whether he should be discharged from the Navy and whether
that discharge would be an honorable one. The underlying
acts being considered were the same. Maurer, Poore, and
King testified against Turner, as did two other sailors corrob-
orating their testimony. Turner testified on his own behalf,
denying all charges. He also presented character witnesses
and (through counsel) cross-examined the witnesses against
him. The ADB rejected all of the charges relating to King
and the charge of indecent assault relating to Maurer. It
also rejected the charges of assault with intent to commit
sodomy and indecent assault on Poore, finding that incident
instead to have been a proposition for sexual acts. They
found Turner guilty of the remaining charges that had been
4
brought under Article 15 and decided that he should be
separated from the Navy with an ‘‘other than honorable’’
discharge.
Turner challenged the board’s findings, but the Navy for-
mally accepted its recommendation; on August 25, 1994
Turner was discharged with an ‘‘other than honorable’’ classi-
fication. Turner petitioned the Secretary of the Navy, who
initially addresses such petitions through the Board for Cor-
rection of Naval Records (‘‘BCNR’’), to reverse the Article 15
penalties and the discharge. Over a dissent, the BCNR
found error on several procedural points as well as a lack of
‘‘sufficient corroboration.’’ It recommended that his record
be cleared. A Deputy Assistant Secretary of the Navy
rejected the BCNR’s recommendation without comment, rely-
ing on the BCNR dissent. Cf. 32 C.F.R. § 723.7(a).
Turner then challenged the Secretary’s decision in district
court. Among other points, he argued that the Secretary had
acted arbitrarily and capriciously in denying his arguments
without explanation. The court agreed and, though retaining
jurisdiction, remanded to the Secretary to assess Turner’s
arguments and articulate a reasoned basis for whatever deci-
sion he should make. After doing so (and adhering to the
Navy’s original position), the Assistant Secretary moved suc-
cessfully for summary judgment in district court. Turner
appeals the grant of summary judgment on several grounds.
Turner raises a number of procedural points and also
argues that the outcomes of the Navy proceedings are not
supported by substantial evidence. The substantial evidence
issue is conventional, its particulars not justifying a published
opinion. Although the parties agree that we should review
for substantial evidence (a formula governing our scope of
review), neither mentions the burden of proof in the Article
15 proceeding, on which in fact there appears to be division
among the various services. Compare Manual of the Judge
Advocate General, Department of the Navy § 0110(b) (stating
that the standard is a ‘‘preponderance of the evidence’’); with
Air Force Instruction 51–202 § 3.4 (2002) (observing that ‘‘no
specific standard of proof applies to [Article 15] proceedings
5
TTT,’’ but noting that in a court martial, which a service
member is entitled to choose, the reasonable doubt standard
would apply); and with Department of the Army Form 2627
¶ 2 (1984) (‘‘beyond a reasonable doubt’’). As the Navy
applied a standard of preponderance of the evidence and
Turner has not objected, we apply that standard, without
deciding on its propriety. On this basis we find the evidence
sufficient. We now turn to the various procedural claims.
We review the district court’s grant of summary judgment
de novo. Teamsters Local Union No. 61 v. United Parcel
Serv., Inc., 272 F.3d 600, 603 (D.C. Cir. 2001). We review the
decisions of the Secretary under the arbitrary and capricious
standard of the APA. 5 U.S.C. § 706; Cone v. Caldera, 223
F.3d 789, 793 (D.C. Cir. 2000).
Of the procedural claims, the most difficult is Turner’s
argument that Captain Frank abused his discretion in pro-
ceeding against him under Article 15, which under the statute
is ‘‘for minor offenses,’’ 10 U.S.C. § 815(b), even though, he
says, the Navy itself regarded his conduct as extremely
serious. We take that issue first, and then turn to the other
procedural claims in the order of their chronological appear-
ance.
***
Were Turner’s Offenses ‘‘Minor’’ for Purposes of Article 15?
Under Article 15 (10 U.S.C. § 815) a commanding officer
may impose ‘‘disciplinary punishments for minor offenses
without the intervention of a court-martial.’’ 10 U.S.C.
§ 815(b). Turner argues that his offenses were not minor
within the meaning of this provision, and that therefore he
was subject to prosecution only by court-martial. A com-
manding officer is to ‘‘exercise personal discretion in evaluat-
ing each case TTT as to whether nonjudicial punishment is
appropriate,’’ see Manual for Courts–Martial (the ‘‘Manual’’),
Part 5, V–1, at § 1(d)(2), so the claim is effectively for abuse
of discretion, see United States v. Gammons, 51 M.J. 169, 182
(C.A.A.F. 1999) (citing the Manual), as Turner appears to
acknowledge. See Appellant’s Opening Brief at 38.
6
The government notes that § 815(f) makes clear that an
Article 15 proceeding is not a bar to court-martial for ‘‘a
serious crime or offense growing out of the same act or
omission’’; to prevent double punishment, it provides that the
punishment in the Article 15 will be taken into account in the
later court-martial. 10 U.S.C. § 815(f). Because § 815(f)
appears to assume that Article 15 will sometimes be applied
to serious crimes, the government suggests that the com-
manding officer’s discretion to choose Article 15 is non-
reviewable. But § 815(f) makes clear that the ‘‘serious
crime’’ it refers to is one ‘‘not properly punishable under this
article,’’ id., and by using the phrase ‘‘growing out of the
same act or omission’’ the statute may merely anticipate
smaller charges being pursued through Article 15 without
precluding prosecution by court-martial of more serious
charges arising out of the same act. Thus the text does little
to advance a claim of unlimited discretion.
The structure of military punishment procedures, however,
counsels extremely broad discretion for the commanding offi-
cer. The Uniform Code supplies four levels of punishment
proceedings—Article 15, summary court-martial, special
court-martial, and general court-martial—gradually progress-
ing upward in both procedural protections and possible pun-
ishments. See 10 U.S.C. §§ 815, 816, 818, 819, 820. No
matter how serious the offense may be, punishments imposed
under Article 15 will be relatively minor. Thus the system
tends to regulate itself. A major offense will normally be
prosecuted by court-martial because that is the only way a
serious penalty may be given. In adopting Article 15 Con-
gress saw it as a device for protecting the service member
from the stigma of a court-martial, with consequent likely loss
of later civilian job opportunities, and also protecting the
military from the effect of a court-martial on the member’s
efficiency and morale. See S. Rep. No. 1911, 87th Cong., 2d
Sess., (1962), reprinted in 1962 U.S.C.C.A.N. 2379, 2381–82;
see also Gammons, 51 M.J. at 178. Especially when the
objection is posed for the first time after the court-martial
option has effectively lapsed, close review of the commanding
officer’s choice of Article 15 would hardly advance these
7
interests; a commanding officer’s choice of Article 15 might
be clouded by fear of the choice being upset because the
offense was too serious.
It is thus unsurprising that courts, though reviewing these
choices, have given great deference to a commander’s treat-
ment of an offense as minor. Gammons, for example, after
quoting the Senate Report mentioned above, found that the
statute vested discretion in the commander in order to pro-
mote ‘‘the policy of disposing of allegations at the lowest
possible level based upon individual circumstances.’’ 51 M.J.
at 182; see also Cappella v. United States, 624 F.2d 976, 978
(Ct. Cl. 1980) (‘‘[T]he commanding officer has broad discre-
tion to determine whether a particular alleged offense is
sufficiently serious to warrant court-martial rather than non-
judicial punishment under Article 15.’’); Cochran, III v. Unit-
ed States, 1 Cl. Ct. 759, 766 (Cl. Ct. 1983). So far as appears,
there is only one case in which the commanding officer was
found to have abused his discretion, Hagarty v. United
States, 449 F.2d 352, 358–59 (Ct. Cl. 1971), and later cases
have noted that Hagarty involved extreme circumstances.
As the Cappella court said, ‘‘the captain engaged in ‘angry,
profane and abusive conduct toward the accused’ ’’ and violat-
ed four procedural requirements of a Captain’s Mast. Cap-
pella, 624 F.2d at 979 (quoting Hagarty, 449 F.2d at 360, and
citing Hagarty, id. at 361); see also Cochran, 1 Cl. Ct. at 765.
Nonetheless, the maximum penalty is obviously very rele-
vant to a commanding officer’s decision whether to use Article
15. The Manual for Courts–Martial says that ‘‘[o]rdinarily’’
minor offenses don’t include ones carrying a maximum penal-
ty (if pursued by court-martial) of dishonorable discharge or
more than a year’s confinement. Manual, Part V, V–2, at
§ 1(e) (2000). Had Turner been prosecuted by general court-
martial for indecent assault and assault with attempt to
commit homosexual sodomy, his maximum sentences for each
crime would have been five and ten years respectively, as well
as dishonorable discharge (not the same as the ‘‘other than
honorable’’ administrative discharge that Turner received).
See id., Part II, II–127, at § 1003(b)(8)(B); Part IV, IV–97, at
8
§§ 63(e), 64(e)(2). If this were the sole criterion, the offenses
could hardly be considered minor.
But commanding officers, with court approval, consider
other factors as well, and courts have affirmed use of Article
15 for offenses carrying sentences as long as Turner’s. See,
e.g., United States v. Rivera, 45 C.M.R. 582, 584 n.3
(A.C.M.R. 1972) (where a drug offense posed a maximum of
ten years imprisonment if prosecuted by general court-
martial). The Manual expressly mentions ‘‘the nature of the
offense and the circumstances surrounding its commission;
the offender’s age, rank, duty assignment, record and experi-
ence; and the maximum sentence imposable for the offense if
tried by general court-martial.’’ Manual, Part 5, V–1, at
§ 1(e). In this case, Turner had a respectable record of
seven years of military service and the exact circumstances
surrounding the charges placed his conduct at the less culpa-
ble end of their technical elements.
For example, in one charge of indecent assault the witness
(Maurer) said that while sharing a hotel room with Turner, he
had gotten drunk, and woke up naked; he had no recollection
of how his clothes were removed or any other circumstance.
There was no evidence whatever that any sexual act ever
happened. And the other charge of indecent assault and the
charge of assault with intent to commit sodomy both arose
from a single incident in which Turner had pushed Poore onto
the bed with expressions of intent to commit a sexual act.
Not only did no such act occur, but circumstances were such
that Poore initially thought Turner was ‘‘horseplaying,’’ and
the force used was nothing to what the formal name of the
charge conjures up.
Turner argues that various Navy communications and doc-
uments suggest that the Navy itself understood Turner’s
offenses to be very serious. The notice advising Turner of
his ADB proceedings referred to his Article 15 offenses as
‘‘Serious Offense[s]’’; an e-mail message from the Antietam
to Navy authorities mentioned the ‘‘extreme sensitivity of
case and seriousness of charges’’ and the potential for an
‘‘international incident’’; and Captain Frank wrote in a report
9
that he ‘‘view[ed] [Turner’s] conduct as sexual harassment of
the most egregious nature.’’ But none of these rather in-
flamed remarks was expressed in the context of deciding
whether he should be tried at an Article 15 proceeding. The
meaning of a term often varies with context; one might
reasonably view allegations as serious as a general matter—
or, as in this case, for purposes of seeking the service
member’s administrative separation for ‘‘commission of a
serious offense,’’ see Naval Military Personnel Manual
§ 1910–142—but ‘‘minor’’ for purposes of Article 15.
Turner, though having some access to counsel, did not raise
this argument either when told that he would be subjected to
Article 15, nor on appeal from its outcome. In this case,
acquiescence at the time may have little weight, as Turner
had a chance only for one conversation by satellite phone with
a lawyer in the brief time before the start of the Article 15
proceeding. And at the appeal stage, his counsel may have
shared the idea voiced by the court in Hagarty that such
appeals may not raise jurisdictional issues, see 449 F.2d at
356; we doubt that conclusion, as 10 U.S.C. § 815(e) allows
appeals claiming the punishment is ‘‘unjust’’ and Hagarty
offers no reason why a reviewing officer could not so classify
punishment from a jurisdictionally defective proceeding. In
any event, had Turner raised his objection at the time, the
Navy would have been able to bring a court-martial proceed-
ing without much difficulty. With him out of the Navy, it no
longer can. See United States ex rel. Toth v. Quarles, 350
U.S. 11, 13–18 (1955). Whether or not Turner at the time
actually preferred Article 15 (as he well might in view of its
lower punishments and lesser stigma), surely others in his
position would not want their commanding officer’s judgment
distorted by undue fear of reversal on this ground. See also
Gammons, 51 M.J. at 182 (noting a service member’s failure
to assert claim of non-minor offense at his Article 15 appeal
or later court-martial proceeding).
In light of the facts and the highly deferential scope of
review, we reject the argument that the character of Turner’s
10
offenses barred use of Article 15. We now turn to his
narrower procedural objections.
Credible Evidence to Begin an Investigation
Turner argues that Captain Frank violated the Defense
Department’s ‘‘don’t ask, don’t tell’’ regulations by initiating
an investigation of homosexual misconduct without ‘‘credible
evidence’’ that there was a basis for discharge; he particular-
ly invokes the requirement that there be information from a
‘‘reliable person.’’ See DoD Dir. No. 1332.14 (Encl. 4),
¶ ¶ A.1, F. We assume the regulations’ enforceability, al-
though Enclosure 4 states that its procedures ‘‘create no
substantive or procedural rights,’’ id. ¶ G, and the Navy
staunchly denies enforceability. Turner asserts that Petty
Officer King could not be considered a ‘‘reliable person’’ in
view of several blotches on his military record and the ADB’s
wholesale rejection of his testimony. But we can put King
aside, as Frank also relied on Seaman Apprentice Poore,
against whose reliability Turner presents a much weaker
challenge.
For Poore, the worst that Turner can say is that he was a
friend of King and waited seven months—until after King
complained—to report Turner’s conduct. But Poore made
his statements under oath and had a reason for his delay. He
alleged that Turner had pushed him onto a bed at a hotel
room and said he was going to commit a sexual act with
Poore. While Poore was frightened by the incident and left
the room, he thought it was possible that Turner was joking.
When Poore discovered that King had experienced sexual
solicitations by Turner and improper touching, Poore natural-
ly further discounted the more benign interpretation. While
a short delay and friendship with another complainant are
elements a commanding officer should take into account, they
are not enough to discredit an otherwise reliable witness.
Investigating Officer’s Question of Witness’s Homosexuality
Chief Petty Officer Clanahan, who conducted the investiga-
tion at Captain Frank’s request, at one point asked Seaman
Maurer whether he was homosexual. Turner says that this—
and the coercive conditions of the interview—violated that
11
portion of the ‘‘don’t ask, don’t tell’’ regulations that precludes
asking members of the armed forces ‘‘their sexual orienta-
tion.’’ See DoD Dir. No. 1332.14 (Encl. 4), ¶ D.3. Assuming
the question was a violation and the regulations are enforce-
able, Turner’s claim still fails. There is little reason to
believe that the error (if such it was) affected the ADB or
Article 15 proceedings.
Turner argues that Maurer was especially vulnerable to his
higher-ups because he was seeking early separation, which
could be granted or denied at the discretion of the Antietam’s
command. He also notes that in the interview Maurer
changed his earlier position. When first questioned about
Turner, he evidently told the Executive Officer, ‘‘[T]here’s
nothing strange about Turner.’’ Then Clanahan interviewed
him. He turned off the main lights and turned on one single
light, and took off his (Clanahan’s) shirt. Maurer said later
that he felt as if he were being interrogated or were a
suspect. In the course of this, Clanahan asked Maurer if he
was a homosexual.
However one may characterize these investigative tactics,
we can find no adverse affect on Turner (assuming he may
rely on a violation of Maurer’s rights at all). The sole
question that Turner addresses was Clanahan’s asking Maur-
er whether he was a homosexual. Maurer answered no. In
both his sworn statement, which he reaffirmed at the Article
15 proceeding and in his testimony under oath before the
ADB, Maurer said that his charges were voluntary, true, and
uncoerced. Interestingly, it was Maurer himself who testified
that he felt a little pressured in his interview with Clanahan;
yet if he had really changed his testimony in response to
pressure, he would probably have wanted to hide the circum-
stances creating the pressure. Finally, while a long line of
questioning about a person’s homosexuality might influence
him to cooperate, there is no evidence here of multiple
questions or otherwise aggressive questioning on that topic.
Charges Added to Charging Sheet
Turner argues that the command violated Navy regulations
by adding charges to the charging sheet during Turner’s
12
Article 15 proceeding. Pointing to a typewritten list of
charges on which some have been crossed out and others
added in handwriting, and to a final comprehensive typed
version, he asserts that the handwritten changes must have
been added after the proceeding started. Nothing supports
this claim other than Turner’s assertion. The BCNR majori-
ty for some reason thought the presence of both the hand-
modified and the final version suggested something fishy and
thus supported the claim, but we can see neither fishiness nor
support.
Presumption of Regularity
Turner appears to argue that even if individual problems—
such as the arguably improper question to Maurer and the
handwritten additions to the charging sheet—are not enough
to overturn the judgment, they overcome the presumption of
regularity upon which the Assistant Secretary in part relied.
The Secretary’s regulations state:
The Board may deny an application in executive session
if it determines that the evidence of record fails to
demonstrate the existence of probable material error or
injustice. The Board relies on a presumption of regular-
ity to support the official actions of public officers and, in
the absence of substantial evidence to the contrary, will
presume that they have properly discharged their official
duties.
32 C.F.R. § 723.3(e)(2) (emphasis added). Turner argues
that his claims of procedural irregularity ‘‘not only eviscerate
any reasonable reliance on a presumption of regularity [but]
also call into question the integrity of the underlying case
against Turner.’’ Thus he sees the presumption of regularity
as a protective seal that surrounds a judgment; once the seal
is broken, the judgment is more vulnerable to attack.
We have serious questions about this view of the presump-
tion. The language itself seems primarily to create a require-
ment that the challenging party offer sufficient evidence to
show that a procedure was not followed or that an officer
hadn’t adequately carried out a particular duty. A sailor who
13
overcame the presumption on a specific issue would not
thereby get a boost on matters unrelated to the error.
But in any event Turner hasn’t overcome the presumption
of regularity either on any specific issue or by some general
chipping away at the proceeding’s integrity; thus his theory
cannot come into play. In fact the Assistant Secretary relied
on the presumption of regularity on only two issues—use of
Article 15 for a supposedly non-minor offense and the sup-
posed manipulation of charging sheets. We have rejected
both claims without reliance on the presumption.
***
The district court’s grant of summary judgment is
Affirmed.
1
TATEL, Circuit Judge, concurring: Given our highly defer-
ential standard of review, I concur. I write separately to
point out that the Navy’s refusal to correct Turner’s record
with respect to the very serious charges of which he was
adjudged guilty at his Article 15 proceeding—but of which he
was later acquitted at his discharge proceedings—undermines
the very purpose of Article 15, namely, to help service
members avoid the stigma of court-martial convictions while
allowing military commanders to act quickly to preserve
order and morale.
Although Article 15 does not define what constitutes a
‘‘minor’’ offense, legislative history indicates that Congress
understood the distinction to follow the then-prevailing Manu-
al for Courts–Martial, see S. REP. NO. 486, 81st Cong., 1st
Sess. (1949), reprinted in 1950 U.S.C.C.S. 2222, 2235, which
provided that ‘‘[a]n offense for which the Articles of War
prescribe a mandatory punishment or authorize the death
penalty or penitentiary confinement is not a minor offense,’’
adding that ‘‘[o]ffenses such as larceny, fraudulently making
and uttering bad checks, and the like, involve moral turpitude
and are not to be treated as minor.’’ Hagarty v. United
States, 449 F.2d 352, 357 (Ct. Cl. 1971) (quoting MANUAL FOR
COURTS MARTIAL ¶ 118 (1949)). The 1951 Manual for Courts–
Martial, in effect when Congress passed the 1962 amend-
ments expanding Article 15, essentially echoed this definition:
‘‘An offense for which TTT confinement for one year or more
is authorized is not a minor offense.’’ MANUAL FOR COURTS–
MARTIAL ¶ 128(b) (1951).
The current version of the Manual for Courts–Martial
removes this absolute bar to the use of Article 15 proceedings
for those offenses for which one year’s imprisonment is
authorized. It instead provides that a ‘‘minor offense’’ is only
‘‘[o]rdinarily’’ an offense not punishable by ‘‘a dishonorable
discharge or confinement for longer than 1 year if tried by
general court-martial.’’ MANUAL FOR COURTS–MARTIAL, Part V,
§ 1(e) (2000). That definition, on which we now rely, has
been regularly interpreted as permitting commanders to use
the nonjudicial punishment procedure for any number of
2
nominally serious offenses—that is, offenses punishable by
dishonorable discharge or lengthy terms of confinement—so
long as the impact of the service member’s offense ‘‘upon
military order and discipline [is] not so serious as to necessi-
tate a court-martial.’’ Cappella v. United States, 624 F.2d
976, 979 (Ct. Cl. 1980).
This executive expansion of Article 15 (which Turner does
not challenge), however, has come with no concomitant expan-
sion in the procedural protections afforded service members
accused of nominally serious offenses. Turner’s case illus-
trates just how important those procedural protections are.
At the Article 15 proceeding, Turner was charged with
(among other things) indecent assault and indecent assault
with intent to commit sodomy—i.e., attempted homosexual
rape—among the most serious of the military crimes recog-
nized by Article 134 of the Uniform Code of Military Justice.
These serious charges, moreover, rested on nothing more
than allegations that one of his shipmates woke up naked in a
hotel room he shared with Turner and that Turner threw
another shipmate down on a hotel bed and expressed some
intent to perform oral sex on him, an incident that the alleged
victim said he initially viewed as ‘‘horseplay.’’ After a sum-
mary proceeding at which Turner had no right to counsel, at
which Captain Frank served simultaneously as prosecutor,
judge, and jury, and which was governed by a preponderance-
of-the-evidence standard––rather than the reasonable-doubt
standard that would govern at a court-martial—Turner was
adjudged guilty of both offenses. Yet at the Administrative
Discharge proceeding—where, unlike the Article 15 proceed-
ing, Turner was represented by counsel, and his accusers
both testified and were cross-examined––the three-member
Discharge Board unanimously acquitted him of both charges,
finding that the Navy had not shown by a preponderance of
the evidence that Turner had committed either indecent
assault or indecent assault with intent to commit sodomy.
Despite Turner’s exoneration, his military record still indi-
cates that he was found guilty of what amounts to the
3
attempted rape of his shipmates, a fact that could have had
serious consequences for his military career, and that may
still have serious consequences in his civilian life. See, e.g., 32
C.F.R. § 310.41(i) (the Department of Defense may, without
the service member’s consent, release military personnel rec-
ords to law enforcement agencies, unless the disclosure is
barred by federal statute). In view of the fact that Congress
enacted Article 15 precisely to avoid creating a ‘‘permanent
blot on the record of the individual punished,’’ which would
follow him ‘‘not only throughout his service career but [would]
follow[ ] him into civilian life,’’ and which ‘‘may adversely
reflect on him if he is involved in difficulty with a civilian law
enforcement agency,’’ H.R. REP. NO. 87–1612, at 3 (1962), I
cannot imagine why the Secretary has not corrected Turner’s
record to delete the Article 15 convictions for indecent assault
and indecent assault with intent to commit sodomy.