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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. Steinmeyer, 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 Uniform 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 petitioned 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 complaints 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 interest 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 member 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 witnesses 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 superior 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 corroborating 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 formally accepted its recommendation; on August 25, 1994

Turner was discharged with an ‘‘other than honorable’’ classification. Turner petitioned the Secretary of the Navy, who

initially addresses such petitions through the Board for Correction 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, relying 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 decision he should make. After doing so (and adhering to the

Navy’s original position), the Assistant Secretary moved successfully 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 proceeding 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 appearance.

* * *

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 commanding officer is to ‘‘exercise personal discretion in evaluating 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 commanding officer’s discretion to choose Article 15 is nonreviewable. 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 officer. The Uniform Code supplies four levels of punishment

proceedings—Article 15, summary court-martial, special

court-martial, and general court-martial—gradually progressing upward in both procedural protections and possible punishments. 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 Congress 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 treatment 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 promote ‘‘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 discretion to determine whether a particular alleged offense is

sufficiently serious to warrant court-martial rather than nonjudicial punishment under Article 15.’’); Cochran, III v. United 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 violated four procedural requirements of a Captain’s Mast. Cappella, 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 relevant 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 penalty (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 courtmartial 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 courtmartial). The Manual expressly mentions ‘‘the nature of the

offense and the circumstances surrounding its commission;

the offender’s age, rank, duty assignment, record and experience; 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 culpable 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 documents 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 inflamed 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 proceeding 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 particularly 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, although 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 naturally 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 investigation 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 orientation.’’ See DoD Dir. No. 1332.14 (Encl. 4), ¶ D.3. Assuming

the question was a violation and the regulations are enforceable, 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 Maurer 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 circumstances 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 majority for some reason thought the presence of both the handmodified 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 regularity 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 presumption. The language itself seems primarily to create a requirement 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 supposed 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 deferential 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 Manual 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 amendments 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 necessitate 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 expansion in the procedural protections afforded service members

accused of nominally serious offenses. Turner’s case illustrates 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 recognized 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 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 preponderanceof-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 proceeding, 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 indicates 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 records 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.