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Court Nails Violation of Administrative Procedure Act |
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Compiled By GayToday
Washington, D.C.-- Former Navy Petty Officer
Jim Turner received a Christmas present two days early this year: a
decision from the United States District Court for the District of
Columbia that the Navy's decision to uphold his discharge under "Don't
Ask, Don't Tell, Don't Pursue" was "arbitrary and capricious" in violation
of the Administrative Procedure Act.
The decision marks the first time that a court has held that a military service branch has violated administrative law in its review of a "Don't Ask, Don't Tell, Don't Pursue" case. Along with the case of Master Chief Petty Officer Timothy McVeigh, the decision also marks the second time this year that a federal court has ruled against the Navy for its handling of "Don't Ask, Don't Tell, Don't Pursue" cases. District Judge Paul L. Friedman ruled Wednesday, December 23, 1998, that the Navy erred when a Deputy Assistant Secretary gave "absolutely no indication of the grounds" on which she refused to accept a majority finding by the civilian Board for Correction of Naval Records.
The court noted "recent indications that [the Navy's lead witness] might wish to recant his testimony" as well as other concerns with the record.
"I feel vindicated," said Turner, now living in Connecticut. "I was railroaded out of the Navy after an exemplary seven-year career. Because of the rampant fear of homosexuality in my command, no one in the Navy wanted to look seriously at the allegations against me or the known unreliability of the people making the charges. I am grateful that the court has held he Navy accountable." "This is a big victory," said Allan Moore, Turner's lawyer and a leading expert on the military's policy at Covington & Burling, a Washington, D.C. based law firm. "It is extremely difficult to show that the military acted in an 'arbitrary and capricious' manner, and the fact that we won under this tough legal standard underscores the seriousness of what the Navy has done wrong here. "This court, like most courts, gave extreme deference to the Navy's right to govern its own internal affairs, but I think it acknowledged that the record in this case stinks, to put it mildly, and in the most respectful way possible, it has ordered the Secretary to re-examine the matter. The test will be whether the Navy fulfills that command in the 'second chance' that the court has now given it or risks the court's ire and further litigation by trying to dress up and rubber stamp the same result in more palatable clothing." The decision by the district court culminates a four-year battle by Turner to clear his name. A 1988 sailor of the year, Turner's fortunes changed while serving on the USS Antietam in the Persian Gulf. In April 1994, three men accused Turner of soliciting homosexual conduct. Turner denied the allegations. Two weeks later, however, an administrative discharge board recommended that Turner receive an other than honorable discharge, even while acknowledging that one of Turner's accusers was not credible and that there was no evidence for several of the charges. Turner petitioned to the Board for Correction of Naval Records which ruled 2-1 that Turner's discharge was "based on suspicion and rumor and not on credible evidence" in violation of "Don't Ask, Don't Tell, Don't Pursue." The board also found it "extremely disturbing that an individual can be found guilty…without a modicum of corroborative evidence." The Board recommended to the Secretary of the Navy that Turner's discharge be voided and that his record be corrected to show that he served until the expiration of his enlistment and then was honorably discharged. Principal Deputy Secretary of the Navy Karen S. Heath, having been designated to review the matter by the Secretary of the Navy, rejected the majority's findings without explanation. |
Timothy McVeigh 
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