Nip This in the Bud Now

As repeal of the dreaded Don't Ask Don't Tell Don't Pursue (DADT) gets closer to reality so too are new tricks to force Lesbian Gay Bisexual (LGB) service members out:

"An attorney says the Navy is inventing grounds to fire a sailor in South Carolina who was found in bed with another male sailor. Navy Petty Officer Stephen C. Jones is contesting his discharge for unprofessional conduct. His lawyer, Gary Myers, says the Navy believes Jones is homosexual but has no proof and therefore charged him with something else. Myers says the case could help prevent the military from using excuses to oust gay members after a policy against them serving openly is repealed."

In the situation quoted above about two men found in the same bed; rest assured that numerous opposite gender couples have often been caught in barracks and nobody cared. So now the military is dredging up a seldom utilized (ancient) legal code from the UCMJ to rid themselves of a person who is perceived as gay.

A basic premise of an Equal Employment Opportunity (EEO) investigation is to determine if there is disparate treatment. That is if a person within a specific group is treated differently than others not in that group. Navy Petty Officer Stephen C. Jones is being treated differently, because he is perceived as gay. The mistreatment of LGBT does not come under EEO. It comes under the Office of Special Council (OSC) for civilians only. So what type of investigation recourse does Petty Officer Stephen C. Jones have? Not much at this point, but you can help him!

Keep in mind that if a woman was found with a man in this same instance even completely naked under the sheets; most likely it would be completely and totally ignored. Just look at all the sexual harassment of female service members that was completely ignored; including rape. Anybody charged with being unprofessional in those cases? Why did they (female victims) have to take the military to civilian court?

Those of us that are Department of Defense (DOD) civil servants and or contractors that are Lesbian Gay Bisexual Transgender (LGBT) are not even slightly surprised. Even though it is and has been for over a decade illegal to harass, harm, intimidate, and or fire DOD LGBT civil servants and or contractors just for being and or perceived as LGBT does not mean it is not going on. Sadly it’s been going on for a very long time. Of course they never admit that it goes on and they blame the victim. Its not completely their fault since the DOD has been extremely negligent in educating its workforce to treat LGBT employees equally.

Please call/ write your:

Ask them to stop the disparate treatment of Navy Petty Officer Stephen C. Jones.

Comment by Todd Burton on March 10, 2011 at 3:09pm: Careful about jumping to this conclusion...

First off, this is NOT a UCMJ action. The Sailor is facing administrative discharge as a trainee. He is not being charged with a crime under the UCMJ. According to the discussion over at OutServe: "The command separates anyone who refuses NJP. That command also has a very strict policy regarding professional conduct BEQ rooms (when I was there several male-female couples went to Captain's mast for even being in opposite sex rooms).

The second sailor who accepted mast will get to remain in the Navy."

If these facts are correct (Big IF), then there really is no good complaint about unfair/unequal treatment and the sailor probably should have just accepted the NJP. Instead he'll end up out of the Navy on an admin separation (not via a court martial.) It is especially hard to argue that the command is being anti-gay when the second sailor involved continues to serve.

Comment by DOD FED GLOBE on March 10, 2011 at 10:55pm: @ Todd years ago when I was once a young sailor I often spent the night in my opposite gendered Fiancée's room. His roommate knew we were in there and was patient. That was in the 1970s. Often when it comes to service members of the opposite sex sharing private moments with each other a blind eye is turned at these regulations.

Comment by Todd Burton on March 11, 2011 at 3:21am: So true, but not always, and not everywhere does the blind eye apply... This is a schoolhouse for trainees and not the fleet.

The command takes a very hard line about behavior in the barracks for male-female couples.

In this case we have two sailors who purportedly violated the rule. The first accepted the Non-Judicial Punishment and is continuing to serve. The other refused the NJP and will likely be administratively discharged - just like any other trainee who refuses NJP.

I'm finding it hard to call this anti-gay behavior or disparate treatment. In fact, not treating this Sailor in exactly the same way as they would treat a hetero- Sailor who violated the same rule would be special treatment.

If we want to be treated equally, then we must accept equal treatment.

Comment by DOD FED GLOBE on March 11, 2011 at 10:17am: @Todd let me give you examples of how they harass civilians perceived LGBT to put things in perspective.

Our bosses in the beltway sent contractors on contract to make a training video of our work to our Command in the field. Now please take into consideration that there is a rarely enforced rule that you are supposed to get the okay from the skipper of your organization. The enforcement is pretty much non existent in fact in my 30+ years I've never seen it applied before. For well over a decade I've seen tons of cameras at various situations at this same Command pulled out and pictures taken without our Skipper's permission asked for and none of this was in support of the government etc... To mess with me they made me ask for permission to our Skipper for our bosses contractors to take pictures of our Command for a military training video. The Skipper was surprised that I was even asking. The folks in the beltway were shocked when their contractors were hit with a delay over this. I'm openly gay and they do stuff like this often to me. I am senior to the person who pushed this on me, but had to comply otherwise they would have turned this mole hill into a mountain.I also followed up with an email documenting this whole situation and why this was a case of disparate treatment. I cited many instances of non LGBT using cameras that were not even employees or contractors, but were relatives of employees that did not request permission. The folks in the beltway still laugh about "Cameragate."

Another LGBT civilian who was openly gay they intimidated him with all kinds of false and minor nonsense so intensely that he had a breakdown and left the AF. This is what they do. They take people that are high achievers and once they know or think they know you are LGBT they harass you in an extreme manner. They also take away work and spread false rumors. Sometimes they even put false things in your personnel paperwork to build a case for firing you. They of course do not tell you.They never ever say that they did what they did because you are LGBT. Although that is the reason. Only in a rare instance will they ever admit it.

They also try to sabotage the perceived and or out LGBT's clearances.This happens often all over the DOD spectrum. One Transwoman firefighter in a Firehouse was harassed by the wives of her male co-workers in an extreme manner. They called constantly and came to her work.This came under Title VII, but rest assured most EEO counselors are not aware that this was a case of "Gender stereotyping."

On this base since 1998 my cars have always been parked in my spot (assigned parking spaces are only for very senior folks on base and the list of who is assigned got specific spaces are published). All these years once every 12 - 16 months vandalism only on my car in our assigned parking area. I had always called base security and they gave me nonsensical answers. When there was a camera near my space they refused to get the video. Now the Mathew Sheppard Hate Crimes Act has passed. This time I contacted my Chain of Command and requested this be captured as a Hate Crime. I provided pictures the vandalism is a punched into my hood large sperm shape. They made me report it to base security so they could get a police report number. I did and there wasn't a camera near my space any more. Base security came over and gave me the same nonsense again. This time to make his point the police officer explained how a gay man on base had his Mercedes vandalized on base. What the perpetrator did was paint on the car a big version of the male genitalia. That this is just a misdemeanor and as such they could not get the base video associated. I explained to this police officer that this is no longer a misdemeanor, because the Mathew Sheppard Hate Crimes Act makes vandalism of personal property due to anti LGBT hate inclusive and as such it is a felony. That he needed to help the person who was hate crimed due to being gay. My car now is parked literally next to our building's door and within range of a camera. My co-workers now know what has been going on and are watching my car during their smoke breaks. The police officer gave me his card and told me if this ever happens again to call him direct and he will take all possible action. For now there is not a video, but my Command has it on file. They are tracking this now on.

Here on this base I often take my children to the movies and or the bowling ally. We often see straight enlisted couples doing PDA. Technically not professional. However, nobody says anything, because it is considered a societal norm for their age group. As couples age they tend to be more conservative about PDA.

When I worked in the beltway often civilian couples (often middle aged) would kiss in the lobby in an intimate manner while waiting for the elevator. Even for civilians this under Title VII is a no no due to sexual harassment. It is considered harassment, because it is so public that non participants could be offended and also if one is senior to the other within the couple and normally that is the case there is concern about it evolving into a problem later. Rest assured if this was 2 people of the same gender it would be reported in seconds and they would be pursued and then the rarely used Title VII for situations such as this would definitely be applied.

When an EEO investigation happens the investigator must examine if rarely used rules are only being used for a person(s) that are in a specific group. Already EEO counselors have requested wavers from cases about LGBT (all they refer to our entire spectrum as homosexuals). These people did this as a preemptive religious right tactic. Right now only Transgender are covered under Title IIV under sex (gender stereotyping). When asked what I thought about these waivers I said these counselors are in the wrong profession and they need to be moved to a different profession. One cannot as a government agent pick and choose which groups they will follow the laws on.

There are tons of stories about how they harass LGBT civil servants and contractors. It is unending. They will try these same horrific things on LGBT service members that they do on LGBT civil servants and contractors. This is why we need to get LGBT designated as an Affinity and Special Emphasis group so that other employees will be trained not to harass LGBT.

Comment by Todd Burton on March 11, 2011 at 10:45am: You don't have to convince me. I agree completely that we need to get LGBT designated as an Affinity and Special Emphasis group and that we need EEO protections.

I just am not sure that this particular case is the right one for us to pressure the department on. It appears that they are, in fact, treating the Sailors in exactly the same manner as they treat straight Sailors doing the same thing.

I am certain that there will be many opportunities (as you well point out) to demonstrate that the Department has a long way to go before equality is achieved. We need to pick our battles carefully because we can easily lose our credibility if we go to war over the wrong set of circumstances.

Comment by DOD FED GLOBE on March 11, 2011 at 10:55am: @Todd I know many enlisted sailors and they are treating this perceived gay couple harshly. They want to throw them out over this non-sex just lying on the same bed. This sort of thing happens all the time of people falling asleep watching TV and its platonic. Nobody gets turned in. The Joint Chiefs claimed that being gay is so rare 2-3% when in fact the 2000 census that barely counted us came up with 4%. However if let us say we go with the Joint Chiefs numbers then percentage wise how many opposite gender couples not having sex that fell asleep or were watching TV in the same bed did they throw out that they caught? As compared to the same-gender people in the same bed? Metrics in legal situations do count. If the percentages are identical then yes, but if it is rare for the opposite gender to either be reported and or thrown out when reported, but that it is always the case for same gender to be thrown out then there is inequality.

Comment by DOD FED GLOBE on March 16, 2011 at 11:25pm: Update article/ commentary provided:

The Curious Case of Petty Officer Stephen Jones

March 16, 2011 by John Yori

On the evening that Navy Petty Officer Stephen Jones fell asleep while watching a video on his lap top with a friend, little could he have imagined that his name and the set of circumstances surrounding that evening would be a topic for national debate and launch inquiries into naval leadership’s equitable distribution of justice based on the military’s code of conduct and directives.

According to naval investigation documents, the evening of February 5, 2010, began when 21 year old Petty Officer Jones invited a friend, Petty Officer Brian McGee to his quarters at the Naval Nuclear Power Training Command – on the Naval Weapons Station located near Charleston, S.C. – to watch a movie. The Washington Post reports: “The trouble started shortly after midnight on Feb. 6 when Jones’s roommate, Tyler Berube, returned from an out-of-town trip. As he opened the door, Berube saw Jones “asleep in bed with another male sailor,” according to a statement that Berube gave to investigators.

Berube stated that both were wearing only boxer shorts, but that they got dressed and left after he woke them up. Jones said in his account to investigators that he was wearing pajamas but that neither he nor his friend, Brian McGee, had intended to fall asleep or spend the night together, insisting “the encounter was platonic.” Jones’s civilian attorney, Gary Myers, also stated that the events of that evening as relayed by Jones were such that Jones was wearing pajamas and McGee was wearing a tee shirt and boxers.

Given the fact that McGee was permitted to visit and that visiting hours ended at 2 am on that Saturday, the point of contention seemingly falls on the accusation levied against Jones and McGee by Berube, Jones’s roommate. Myers (the civilian attorney for Jones) notes that in all there are three versions of how the men were dressed, but “in no version is either totally undressed.” He said Jones was on top of the covers and the other sailor under the covers.

Jones stated that neither he nor McGee had intended to fall asleep while watching the movie, and that McGee often stopped by his room to watch movies. As CNN reported: “The play-by-play given by Jones is substantiated by the Naval investigating documents, although a different account on the amount of clothing worn was given by Jones’ roommate… Jones’ roommate, who was uncomfortable by what he saw, according to Myers, Jones’s attorney, moved out of the room a day later and reported the incident to command officials.”

Since Jones joined the Navy last summer, he has maintained a spotless service record. But now Jones has been charged with committing the crime of “willful failure to exhibit professional conduct.” McGee was also charged in the case.

Thomas Dougan, a spokesman for the Naval Nuclear Power Training Command said, “”It is a violation of the Command Instruction for sailors to act unprofessionally in the barracks. It is considered unprofessional conduct to share the same bed in Navy barracks,” Dougan acknowledged that no regulation specifically prohibits sailors from falling asleep in the same bed. But, he said rules do require them to “behave professionally in the barracks” and that Capt. Thomas Bailey, the commanding officer, concluded that Jones and McGee had not done so. “The determination was that two sailors sharing the same rack was unprofessional,” concluded Dougan.

The investigative summary and charging documents do not specify how Jones’s actions constituted unprofessional conduct. Despite repeated requests for clarification, military officials declined to comment on Jones’s case, citing privacy rules. But if a vague transgression based on a “catch all” regulation can result in a service member’s dismissal, then a visit to YouTube will most certainly overload military leadership with literally hundreds of cases of blatant displays of serious, offensive, sexually explicit and specific violations of “willful failure to exhibit professional conduct.” By entering ‘marines having fun’ into the search window, an array of in-the-barracks as well as other on-base displays of questionable behavior will appear.

As for Jones and McGee, neither was officially charged with being gay or with sexual misconduct, although Jones did say that McGee told him that Captain Bailey “asked him if being a homosexual was going to be an issue” if he stayed in the Navy. However, Dougan denied that officials were discharging anyone based on sexual orientation. In an e-mailed statement, Dougan noted that it is the Defense Department’s policy “not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline.”

Dougan’s statement on existing Defense Department policy is in direct contrast and conflict to Captain Bailey’s statement to McGee. Unlike Jones, McGee agreed to accept a Captain’s Mast, which resulted in docked pay but allowed him to stay in the Navy. A Captain’s Mast is a non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) that is designed to permit a commanding officer to summarily dispose of minor disciplinary infractions. Since both Jones and McGee were not assigned to a sea-going mission, they had the right to refuse Mast.

McCormack and McCormack, a law practice in Virginia Beach, offers the following on a sailor’s decision to accept or decline a Captain’s Mast: “consideration must first be given to the fact that non-judicial punishment does not result in a federal conviction and in essentially most respects, it does not follow a person out of the military. The punishment that can be imposed at Captain’s Mast is relatively minor and unquestionably many service members have gone on to a long and successful career after being subjected to NJP. Generally speaking, if a person did commit the subject misconduct, accepting Mast may be the best way to go. Again, generally speaking, if the person did not commit the subject misconduct, then I suggest he may want to refuse Mast and demand trial by Courts-Martial… However, the decision to refuse NJP is one that must be made with great caution.”

Jones was also offered a Captain’s Mast but refused since he “had done nothing wrong.” Because Jones has been in the service for less than six years, he is not entitled to a formal hearing on his dismissal, but can have the decision of dismissal reviewed by filing documents with officials farther up the chain of command. Jones’s attorney calls the attempted dismissal of Jones from the Navy “bigotry disguised as the rule of law.” He writes in his response to the pending decision that while Jones’s commanders suspect he is homosexual, they “cannot invoke ‘Don’t Ask, Don’t Tell,’ because there was no admission of homosexuality or homosexual conduct.” Jones stated that his sexual orientation is his business and his business alone. Myers told the Washington Post, “The subterfuge is, they believe this kid is a homosexual, but they have no proof of it, so what they’ve done here is to trump this thing up as a crime. This is not a crime.”

Jones’s father, Jeffrey Jones of Beulah, Florida and an army veteran, said he doesn’t know if his son is gay or not. “And it doesn’t matter,” he added. “It’s his business and no one else’s.” The elder Jones said that his son’s master chief pulled him aside and told him that he might have committed a violation but would not specify the violation.

Jones has been in the Navy for just under a year. He previously worked at a few Tom Thumb stores in Escambia County, Florida.”He grew up here,” said his father. “We have four boys, and he is the oldest of the four. His mother is disabled, and this is just very, very stressful. It’s mentally taxing.” Jones has been pulled from his classes and is in a holding unit for those awaiting discharge.”So what has he done wrong?” his father asked. “He’s fighting this on principle.”

In December of 2010, President Obama signed a law that allowed for the repeal of “Don’t Ask, Don’t Tell” and spoke about principles. “Members of the military will no longer be asked to lie,” preached Obama. The President went on, “I say to all Americans, gay or straight, who want nothing more than to defend this country in uniform, your country needs you, your country wants you, and we will be honored to welcome you into the ranks of the finest military the world has ever known.”

The President’s remarks concerning the repeal of DADT and what it will mean for the military in general, do not fall into the category of ambiguous or vague language. President Obama, Secretary Gates and Chairmen Mullen firmly advocated for changing the law to ensure gay members of the military would be able to serve openly. The spirit as well as the letter of the law, including ongoing Defense Department training and new directives, are clear and concise with regards to the repeal of DADT. This begs the question – Has the pentagon truly begun to address the practical consequences for the repeal of DADT? Consequences such as commanders finding round-about ways to now punish and discharge service members suspected of being gay?

The ongoing Jones case is the first to receive such national attention and publicity. The true test will be in how effectively the Pentagon conducts ongoing education to prepare the military leadership for the repeal of DADT. Given human agency, the Jones case may not be an aberration. In fact, it may just be getting its sea legs, as it is indisputable that there continues to be resistance among military leaders who remain adverse to repealing DADT .