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SPECIAL TO THE NATIONAL LAW JOURNAL The U.S. Navy did not violate a sailor’s rights when it subjected him to a shipboard disciplinary proceeding known as a “captain’s mast” in lieu of a full court-martial, the D.C. Circuit Court of Appeals said on April 15. Turner v. Department of the Navy, No. 02-5067. Three shipmates aboard the U.S.S. Antietam in 1994 accused Petty Officer Jim A. Turner of making unwanted homosexual advances and, in one instance, of sexual assault. He was also accused of falsifying a document and using indecent language. After the captain’s mast, Turner was found guilty on all charges. A Navy Administrative Discharge Board later threw out the advance and assault charges, but gave Turner an “other than honorable” discharge because of the others. Ordinarily, serious accusations such as sexual misconduct would be adjudicated by court-martial and decided by applying a reasonable-doubt standard. Turner’s captain, however, elected to proceed with the mast, which is provided for under Article 15 of the Uniform Code of Military Justice and requires only proof by a preponderance of the evidence. After his discharge, Turner petitioned for review of the findings, and the Navy’s Board for Correction of Naval Records reversed. Citing procedural errors and a lack of “sufficient corroboration,” the board recommended that Turner’s record be cleared. But, a Navy undersecretary rejected the board’s recommendation without comment, prompting Turner to file suit in D.C.’s federal district court. When the district court granted summary judgment to the Navy, Turner appealed, maintaining that the Navy had violated his rights. At the mast, Turner had been found guilty of the sexual assault of a shipmate who had reportedly consumed about a dozen alcoholic drinks, had no recollection of the incident and knew only that he woke up nude in a hotel room he was sharing with Turner. The shipmate claimed that because he did not normally sleep in the nude, Turner must have sexually assaulted him. “This was a classic witch-hunt situation,” said one of Turner’s lawyers, Allan Moore, a partner at Washington’s Covington & Burling. Emphasizing that this was a legal rights case, not a gay rights case, Moore said, “I don’t know Mr. Turner’s sexual orientation-he denies vehemently that any of this ever happened.” Before the D.C. Circuit, the Navy argued that because Turner was on a ship, he did not have the right to demand a court-martial. Justice Department attorney E. Roy Hawkens, who represented the Navy, could not be reached for comment. Moore maintained that, given the seriousness of the charges, a court-martial, with its procedural safeguards, was mandatory. “If it’s a serious charge, the Navy has no choice. It must be a court-martial,” Moore said. Nonetheless, the circuit court held that the captain did not abuse his discretion in proceeding with the mast, noting that courts “have given great deference to a commander’s treatment of an offense as minor” for purposes of proceeding with a captain’s mast. The three-judge panel noted that there had only been one case, in 1971, where a captain was found to have abused that discretion. Despite concurring, U.S. Circuit Judge David S. Tatel called the mast “a summary 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.” Horrigan’s e-mail address is [email protected]

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