MEMBERS: Captain D. W. Ellerman, Jr., USN, Senior Member

Captain Mark A. Young, SC, USN Captain Claudia L. Bailey, USN

LEGAL ADVISOR: MAJ Richard Stutzel, USMC

RECORDER: LT Peter Dutton, JAGC, USN

ASSISTANT RECORDER: LCDR Russell L. Shaffer, JAGC, USN

COUNSEL FOR THE RESPONDENT: LT M. G. McAlevy, JAGC, USNR

CIVILIAN COUNSEL: Mr. Mark H. Lynch

Mr. Christopher A. Crain

Mr. Allan B. Moore

RESPONDENT: LT Paul Thomasson, USN

SM: The Board will come to order. The Reporter should record the time, date, and place of the hearing. The Board is convened by an order of the Commandant, Naval District Washington, dated 22 April 1994. A copy of this has been provided--furnished to each member of the Board, Recorder, Respondent, and Counsel for the Respondent. Members--Senior Member is Captain D. W. Ellerman, Jr., United States Navy. The other members, Captain Claudia L. Bailey and Captain Mark A. Young, Supply Corps, United States Navy.

REC: Sir, I'm Lieutenant Peter A. Dutton, Judge Advocate Generals Corps, United States Navy.

SM: Respondent?

CR: Sir, I'm Lieutenant Mary Grace McAlevy, Judge Advocate Generals Corps, United States Naval Reserve. I'm the detailed defense counsel in this case. There are also civilian counsel retained and that would be three attorneys from the firm of Covington and Burling, who will now identify themselves.

SM: okay -

CC (MR. LYNCH]: Sir, my name is Mark Lynch. I'm admitted to practice before the highest court of the District of Columbia, the United States Supreme Court, and several federal courts of appeal.

CC [MR. CRAIN]: Sir, I'm Christopher Crain, admitted to practice in the District of Columbia and several other jurisdictions.

CC (MR. MOORE]: Sir, my name is Allan Moore. I'm admitted to practice in federal and local courts of the District of Columbia, and several other courts of appeal.

AREC: Sir, I should point out as assistant recorder I'm Lieutenant Commander Russell L. Shaffer, Judge Advocate Generals Corps, United States Navy.

LA: Sir, the record should also reflect there is a legal advisor who has been appointed by the convening authority. My name is Major Richard Stutzel, United States Marine Corps. I am a Judge Advocate, certified in accordance with Article 27(b).

SM: The respondent--do I need to have him introduced?

LA: Counsel could introduce the respondent.

CR: Sir, the respondent is Lieutenant Paul Thomasson, United States Navy.

SM: Will counsel for the respondent state his or her legal qualifications, which we've done.

CR: Sir, once again, I am an attorney certified in accordance with Article 27(b), Uniform Code of Military Justice.

SM: Will the recorder state his or her qualifications?

REC: Sir, I'm certified and qualified under Article 27(b), Uniform Code of Military Justice, as is the assistant recorder.

SM: The Board has convened for the purpose of considering the pertinent facts relating to the case of Lieutenant Paul G. Thomasson, United States Navy, who is being processed for administrative separation by reasons from the convening authority's appointing letter. The Board will make findings of fact, will make a recommendation with respect to the final action of retention, separation, or suspension, and the characterization of the service or description of separation. A discharge--if discharge is recommended the reasons will be stated along with the type and characterization of the discharge recommended. Rights of the respondent ----

CR: Sir, the respondent will waive the reading of the rights at this time.

SM: Thank you. Where do I pick up on this sheet now?

LA: Sir, you want to flip over to page 36, a little more than half way down the left hand column, procedural rules in connection with the Board.

SM: Starting with (G)?

LA: No, sir, two paragraphs below that, where it says, "Now respondent there are some procedural rules...."

SM: Okay. Now, Lieutenant Thomasson, there are some procedural rules in connection with the board which I shall explain to you. First, the proceedings are administrative in nature and the Board is not bound by formal rules of evidence. Thus, the Board may consider information which might not be admissible at a court-martial. Also, you should be aware that the Board's decision will be based upon a preponderance of the evidence presented. Second, if you or your counsel have any objections to any matters introduced or to any proceedings of the Board, you or your counsel may state your objection and the reason for it. I shall rule finally on all matters----

LA: Sir, let me interrupt there. Because a legal advisor has been appointed, the legal advisor rules finally on all matters of procedures, evidence, and challenges to the Board. The last two sentences in that paragraph don't apply.

SM: All right. Lieutenant Thomasson, do you have any questions concerning your rights and procedures of this Board?

RESP: No, sir, I do not.

SM: Okay. Does the recorder, counsel for the respondent, or respondent wish to question any member of this Board in relation to any matter which may constitute a ground for challenge for cause?

REC: Yes, sir.

SM: Okay.

LA: Sir, before the recorder starts--after counsel have been given opportunity to voir dire the members of the Board, they also should be given an opportunity--it's not stated in here--given the opportunity to question me with regard to challenge for cause.

SM: Okay.

REC: Before I begin, I'd like to note for the record that this morning as I introduced myself to Captain Ellerman I realized that I was--he was the XO at a command that I was stationed at for several months in 1987, I believe it was. He was the XO of VA-42, if I'm not mistaken, when I was a student at the RAG Squadron there. The defense also would have the right to voir dire any member of this Board of Inquiry, myself included. I would state for the record that I have had no contact with Captain Ellerman since then and don't know him at all, nor was he ever my reporting senior.

Members of the Board, I believe you're all aware that this Board of Inquiry was convened by the Commandant, Naval District Washington, to determine whether the respondent in this case, Lieutenant Thomasson, who admits to being a homosexual, should be retained in the naval service. The first question I have concerning this is, do any of you know Lieutenant Thomasson, the respondent here today, or have any of you ever met him?

Let the record reflect negative responses.

Now that you see Lieutenant Thomasson before you, do any of you members recognize him?

MBR [CAPT YOUNG]: I do. I am attached to Naval Supply Systems Command and work in the Arlington Annex as the Officer Community Manager. I know that Lieutenant Thomasson works in the Bureau and have seen him in my working.

REC: I'd ask for the opportunity, if it becomes necessary, to individually voir dire the members at a later time.

LA: If it would be appropriate. Record should reflect that was Captain Young that responded.

REC: Thank you, sir. Other than the appointing letter , have any of you received any information from any source about the circumstances surrounding this case?

Negative responses.

I'm sure that you're all well aware of the Navy's regulations concerning homosexuals, that they have undergone some transition and revision recently. Do any of you feel that the controversy surrounding the revisions would prevent you from rendering a fair and impartial decision in this case?

Negative responses.

You may also have read articles in the newspaper or seen other media clips about the political process that led to the changes in the regulations. I'd ask, do any of you feel influenced to vote either way by anything that you've heard or read through the media concerning this issue?

(Negative responses from all members.]

REC: There are other individuals being processed for discharge by the military whose cases have been reported in the media. Do any of you believe you've been influenced to vote either way by any of the reporting in the other cases?

(Negative responses from all members.]

REC: Have any of you sat before either an administrative discharge board or as a member on a board of inquiry?

[Negative responses from all members.]

REC: Have any of you had occasion to convene either a board of inquiry or an administrative discharge board?

(Negative responses from all members.]

REC: Have any of you had occasion to sit as members at a court-martial?

SM: I sat on a general court-martial last year.

REC: That's a positive response from Captain Ellerman. Have any of you had any prior discussions with anyone concerning what disposition should take place in this case?

[Negative responses from all members.]

REC: Have any of you been approached by anyone from the Naval District Washington, the convening authority, or the Bureau of Naval Personnel, the respondent's command, concerning this case?

MBR (CAPT BAILEY]: Only administratively as to where to park the car.

MBR [CAPT YOUNG]: Yes, parking spot and when to be here, that's all.

REC: Thank you. Is there any member who has a pressing personal or professional concern that would prevent him or her from providing full attention to this Board for whatever period is required?

Negative responses.

Do any of you believe you have a bias either for or against homosexuals that would prevent you from rendering a fair and impartial decision here at the Board today?

Negative responses again.

And, finally, do any of the members have a bias either for or against homosexuals that would prevent you from applying to this case the law and the regulations as written?

Negative responses. Thank you.

CR: Good morning, members. My name, again, is Lieutenant McAlevy. I'm the detailed counsel for Lieutenant Thomasson. As I said before, also representing Lieutenant Thomasson today are three civilian attorneys that you see before you from the firm of Covington and Burling. They are: Attorney Mark Lynch, Attorney Christopher Crain, and Attorney Allan Moore. I'm going to be asking you a few questions and I'm going to ask you for a response as to each question. As you're already aware, the recorder in this case is Lieutenant Peter Dutton, and the convening authority is Admiral Moore, Commandant, Naval District Washington. Do any of you know the convening authority, the recorder, the assistant recorder, or any member of the defense team?

That's a negative response from all members.

Do any of you know each other?

Negative response from all members.

Do you all understand this is a non-criminal proceeding?

That's an affirmative response from all members.

Do you understand that administrative processing does not mean mandatory separation?

That's an affirmative response from all members.

Will any of you have a problem retaining this member if you feel his case merits such an action?

That's a negative response from all members.

Will the fact that this issue has been referred to an administrative hearing affect your judgment?

That's a negative response from all members.

I would now like to begin asking each of you a few questions about your background. Captain Young, I'd like to begin with you, sir. What's your current duty station and your duties?

MBR [CAPT YOUNG]: I'm attached to the Naval Supply Systems Command here in Washington, and I work in the Office of Personnel. I'm the Officer Community Manager for the Supply Corps.

CR: Captain Ellerman?

MBR [CAPT ELLERMAN]: I'm attached to the Office of Naval Research. I'm the Deputy of the ACNR, Assistant Chief of Naval Research.

CR: Thank you, sir. Ma'am?

MBR [CAPT BAILEY]: I'm attached to the command of Navy Recruiting Command, Special Assistant to the Admiral, getting us ready for an IG inspection.

CR: Thank you, Captain. How long have you each been in the

service? Captain Bailey?

MBR [CAPT BAILEY]: Twenty-two plus years.

MBR [CAPT ELLERMAN]: Twenty-four years.

MBR [CAPT YOUNG]: Twenty-one years.

CR: I believe Lieutenant Dutton asked you already, but I want to ask you again, have any of you ever served on an administrative board, either an enlisted or an officer board of inquiry? Captain Young?

MBR (CAPT YOUNG]: No.

MBR (CAPT ELLERMAN]: No.

MBR [CAPT BAILEY]: Yes.

CR: You have, ma'am? When was that?

MBR [CAPT BAILEY]: It was when I was stationed with Recruiting

District of Chicago, that would have been 1985, 1986.

CR: Do you recall what the basis of the processing was?

MBR [CAPT BAILEY]: There were five or six of them. They were all drug cases.

CR: Do you recall what the outcome was?

MBR [CAPT BAILEY]: I don't recall each individual. The majority were processed to no longer be on active duty.

CR: Were those enlisted?

MBR [CAPT BAILEY]: They were all enlisted.

CR: Okay. Do any of you have a legal background or legal education? Captain Ellerman, I'd like to start with you, sir.

MBR [CAPT ELLERMAN]: No.

MBR (CAPT BAILEY]: No.

MBR [CAPT YOUNG]: No.

CR: Thank you. Do any of you have experience as a legal officer, a discipline officer, or have you held a summary court?

Captain Ellerman?

MBR [CAPT ELLERMAN]: I was a legal officer in a squadron for 6 months. I did not attend legal school.

CR: Thank you, sir. Captain Young?

MBR [CAPT YOUNG]: No.

MBR (CAPT BAILEY]: No.

CR: Have any of you ever been a member for a Board--excuse me, of a court-martial--a member on a court-martial? Captain Bailey?

MBR (CAPT BAILEY]: No.

MBR [CAPT ELLERMAN]: I was a member on a general court-martial last year, April of last year.

CR: Do you recall what the charges were?

MBR [CAPT ELLERMAN]: The charges were falsifying government documents.

CR: Do you recall the outcome of that court-martial, sir?

MBR (CAPT ELLERMAN]: The individual was found to have committed the offense.

CR: Captain Young?

MBR [CAPT YOUNG]: I've never been on a court-martial.

CR: The following persons may be called as witnesses today: Rear Admiral Albert H. Konetzni, Commander George C. Hill, Lieutenant James Eisenzimmer, Petty Officer Jack Trumbull. Do any of you know these people that I've just mentioned?

That's a negative response from all members.

You're about to hear the evidence in the case of Lieutenant Paul G. Thomasson, USN. Do any of you know the respondent or his family?

Negative response from all members.

Do any of you have prior information about this case from any source whatsoever?

MBR [CAPT BAILEY): Nothing that's not in the convening letter.

CR: Would you explain that a little bit, Captain Bailey?

MBR [CAPT BAILEY]: Well, the letter dated April 22nd, paragraph 4(a).

CR: That's the only information you have?

MBR [CAPT BAILEY]: That's all.

CR: Thank you, ma'am.

MBR (CAPT ELLERMAN]: That's all I have also.

MBR (CAPT YOUNG]: That's all I have.

CR: Have any of you discussed this case--any of the facts of this case or considered any of the evidence in this case?

[Negative response from all members.]

CR: This hearing is to decide whether Lieutenant Paul Thomasson should be retained in the naval service or be separated on the basis of the Navy's policy on homosexuals. Now, I'd like to ask you a few questions about that policy. Will you please tell us what policy will decide your decision here today. Captain Young?

MBR [CAPT YOUNG]: The stated policy--we'll go over what the stated policy is and make a determination on this case. I don't know verbatim what that policy is.

MBR [CAPT ELLERMAN]: The references which are on top of the letter, I've reviewed those and those are the ones I'm going to have to use. That's the Navy's policy from what I understand.

CR: Did you say you've reviewed those?

MBR [CAPT ELLERMAN]: Yes.

CR: Did you review each of the ones that are listed on that letter, sir?

MBR [CAPT Ellerman]: We reviewed one of them. The other two that were required copies of them. We were given copies of ----

CR: Which one, if you will--which one ----

MBR (CAPT ELLERMAN]: The one that we reviewed was reference (c), which was CNO, Washington, DC 01030OZ March 94, Naval Administrative 033/94.

CR: Thank you. Captain Bailey?

MBR [CAPT BAILEY]: That's the one I read as well.

CR: Have you read the April 22 appointing letter to you from the Commandant, Naval District Washington?

That's an affirmative response from all members.

CR: Paragraph (3) of the appointing letter asks you to familiarize yourself with references (b) through (d). I'm going to ask you again, although I believe you've responded, have you read reference (c), the NAVADMIN message of 1 March? Captain Bailey?

MBR [CAPT BAILEY]: Yes.

MBR (CAPT ELLERMAN]: Yes.

MBR [CAPT YOUNG]: I have not yet read them--that.

CR: Thank you, sir. Did you gain any information from that NAVADMIN message that you had not gained before?

MBR [CAPT BAILEY]: In general, no.

CR: Captain Ellerman?

MBR [CAPT ELLERMAN]: No.

MBR [CAPT YOUNG]: I haven't read it, so I can't answer that.

CR: Do you know why the NAVADMIN message was not cited in the March 9th notification letter to Lieutenant Thomasson?

MBR (CAPT BAILEY]: I've never seen the March 9th letter before.

MBR [CAPT ELLERMAN]: Neither have I.

MBR (CAPT BAILEY]: It's listed as enclosure (3) here, but I have never seen it before 10 minutes ago.

CR: Have you read reference (b) of the appointing letter, which is the SECNAV Instruction 1920.6a?

MBR (CAPT BAILEY]: I skimmed it. I didn't read it in detail.

MBR [CAPT ELLERMAN]: I looked over it briefly. Briefly, I have not studied it.

MBR (CAPT YOUNG]: No, I have not read that.

CR: This question is directed at Captain Ellerman and Captain Bailey who have skimmed it. Did you read enclosure (3) of SECNAV Instruction 1920.6a governing discharges for reasons of homosexuality?

MBR (CAPT BAILEY]: Yes.

MBR (CAPT ELLERMAN]: No.

CR: Negative response from Captain Ellerman, and affirmative response from Captain Bailey.

Will you be applying the provisions of enclosure (3) to this proceeding, ma'am?

MBR (CAPT BAILEY]: I would have to find it and peruse it before I answer that question.

REC: I'm sorry, but I'm going to object to that question. At this point in time the question is asking the members to draw a conclusion about law that they don't have in front of them, nor has either side, the defense or the government, had an opportunity to address the law to the members. I'd object because it is vague and misleading to the members.

LA: Do you have your question written down there again? Would

you repeat it?

CR: Yes, sir. Will you be applying the provisions in enclosure (3) to this proceeding?

LA: Enclosure (3) was?

CR: Of SECNAV Instruction 1920.6a.

LA: The policy governing involuntary separation? Why don't we handle this matter in this manner, members of the board, after all the evidence has been presented I will advise you with regard to the law that you're required to follow in making your determination. You have been instructed with regard to that, that SECNAV Instruction 1920.6a, which is the SECNAV instruction regarding the administrative separation of officers applies in this case. Now, with regard to that, however, this is a 1983 instruction, and I'll advise you now at this point that with regard to any matters that may be contained in that instruction which conflict with the instructions of the Department of Defense which were issued in 1994 and the Chief of Naval Operations Naval Admin message which was issued in March 1994 which might relate to the processing of cases dealing with homosexual conduct that the later instructions will be law by which you will make your determinations with regard to the case.

REC: Sir.- I would also, and since this is an admin board, I would also ask that the legal advisor point out that the law will be explained to the members, that they will have an opportunity to review the law thoroughly themselves, and that the legal advisor can advise them as to any issues that they have.

LA: I thought I kind of did that, Lieutenant Dutton, but, okay, again, I will instruct that to you. You will find, and, of course, subject to objection from respondent's counsel at a later point, those instructions have been included in the package that you have been provided. The government will be offering those as exhibits for your consideration contingent upon rulings with regard to those matters. They will be presented to you formally, and you'll have those for your deliberations. Additionally, my responsibilities as the legal advisor to you is to advise you with regard to the legal meanings of what you find in those instructions.

CR: I would now like to ask you if you could each tell me what the Navy's policy on homosexuality means? Captain Ellerman?

REC: Again, I would object. At this point in time the members don't have the policy, they're not thoroughly familiarized with the regulations. That's their job here at the Board.

LA: Lieutenant McAlevy, it's not the Board's job to determine what the policy is. They'll be provided the law.

CR: Sir, at this time we're just inquiring into their understanding of the law.

LA: Well, again, what their understanding of the law is is not particularly significant. They're going to be told what the law is. They're not determining what the law is, and whether their opinions at this point in time are correct or incorrect is really irrelevant, because they are instructed to follow the instructions that they get from the legal advisor.

CR: Sir, at this time the counsel for the respondent and the respondent respectfully request an Article 39(a) session, if you will, with the legal advisor so we could voir dire you to find out what exactly the law is that is governing this body.

LA: At this point we're involved in challenges to the Board. You'll be given an opportunity on the record in opening hearing here to voir dire me, and, if appropriate, challenge--challenge me for cause. If you desire to do that prior to completing your voir dire of the Board, I don't know anything that would prevent us from doing that, if there's no objection from the senior member?

MBR [CAPT ELLERMAN]: I have no objection.

REC: Sir, I would object. Whether or not you are subject to challenge for cause is not relevant to whether or not the members are subject to challenge for cause at this time. For ease of the members, I would ask that we continue on with voir dire of the members, finish their voir dire, and then proceed on to voir diring anyone else in this Board.

LA: Well, since I'm the legal advisor, I guess I get to decide on those kinds of legal matters. I can see where the respondent's counsel is--wants to go and why they desire to voir dire me at this point, because they desire to ask the Board regarding legal standards that the Board will apply, and want to make sure they understand what those are, I guess, before those questions get asked of the Board. So, it seems to me that it would be appropriate at this point to allow them to question the legal advisor regarding that. They do have the right to make a legal challenge for cause of the legal advisor.

REC: Certainly, sir. I would simply suggest that it is not appropriate to be asking the members of the board their understanding of the law that applies today.

LA: Well, I've already said that.

REC: Clearly, they're not educated at this point to answer that.

LA: I'd already said that. Now, the question before us now is whether or not the respondent's counsel and yourself as well can voir dire the legal advisor prior to the voir diring the Board. I don't see that there's any problem doing that.

REC: Very well, sir.

CR: Major Stutzel, would you please inform us what policies you will advise the Board and what will be utilized in this proceeding today?

LA: Certainly. The policies that are applicable to making the determination with regards to this case are basically three-fold. First, there's the general policy contained in the SECNAV Instruction 1920.6a, which governs generally the administrative separation of officers in the naval service, and contains policy, as has been pointed out already, enclosure (3) which has some basic language regarding involuntary separations as opposed to other matters that are contained in the order. There's also the admin board procedures in enclosure (8) that detail the procedural procedures used in show cause authority, boards of inquiry and so on, and then it goes on to describe the process depending on the results of the administrative hearing that we're involved in today.

CR: Sir, in enclosure (8) of what?

LA: SECNAV Instruction, which is the--title is Administrative Board Procedures, which details, again, procedural steps that need to be followed. There are definitions of certain matters with regards to that also contained within SECNAV Instruction 1920.6a. In December 1993 the Secretary of Defense issued a directive regarding separation of commissioned officers which detailed the current policy in a number of areas, including homosexual conduct. That order of the Secretary of Defense was implemented in the Department of the Navy by the Chief of Naval Operations, and it was promulgated in Naval Admin message 33/94. So with regards to the specific standards as to what constitutes homosexual conduct and how the Board--potential findings of the Board, what presumptions can be arrived at based on the evidence they hear and how those presumptions can be rebutted and what the standard of proof is, specifically as it relates to homosexual conduct, which is the specific grounds of this Board, then the law governing the Board's determination will be found in the Chief of Naval Operations message. Does that ---- does that answer your question?

CR: Sir, I have one additional question. Is enclosure (3) still operative insofar as it still pertains to SECNAV Instruction 1920.6a?

LA: Enclosure (3) of the SECNAV instruction?

CR: That is correct, sir.

LA: Certainly with regard to some of the matters contained in enclosure (3), because they relate to all sorts of different grounds for separation, it would appear to me that they would. Again, as-as enclosure (3) might relate specifically to homosexual conduct and, in addition to relating to that, as it might conflict with the latest order issued by the Chief of Naval Operations, then that section of the order in the SECNAV instruction would not be applicable. Right off the top--thumbing through enclosure (3) I don't see a specific area in here now that--okay, there is--there is a section on page 2. And I have not read that in detail at this point in time, but it would appear to me that that portion of the order is not applicable to the degree that it might conflict with the current order. I'd have to sit down and read it line by line, you know. But the definitions of homosexual conduct as defined in this naval admin message will be the standard which will be applied, and, if it in any way conflicts with what's contained in the older SECNAV instruction, that SECNAV instruction will not apply.

CR: May I have a moment, sir?

LA: Sure.

[Counsels for the respondent confer.]

CR: Major Stutzel, I'd like to go back and ask you a question that I actually already asked the Board, and that is, do you know why the NAVADMIN message was not provided in the March 9th letter of notification to Lieutenant Thomasson?

LA: No, I don't. I received a copy of the appointing letter-- I'm guessing off the top of my head--maybe two or three weeks ago, and I had been called sometime prior to that and been asked would I be available to serve as a legal advisor. Actually, I didn't receive a phone call. I was asked by Captain Smith over in my office. He had received a phone call from someone, and, basically, they asked me would I be available, and I said, "Sure." Sometime after that, a week or two, I received a copy of the letter. But I have no idea who put the letter together or why, nor did I have any involvement in the initial processing for the Lieutenant's case.

[counsels for the respondent confer.]

CR: Major Stutzel, at present you're not sure whether you'll be applying the provisions of enclosure (3) to this proceeding, is that correct?

LA: I will be applying the provisions of enclosure (3) unless they conflict with the provisions in the DOD order and the CNO's order. My recollection of the standards used under the old policy are--and, again, I'm shooting off the top of my head here--that that policy was different to a degree which, I guess would be,, that those specific aspects dealing with this paragraph on homosexuality in the SECNAV instruction do not apply. I'll need to review it again completely to ensure that. My suspicion will be that none of the instructions to the board members will come out of enclosure (3) to SECNAV.

CR: Major, will you please tell me what the Navy's policy on homosexuals means?

LA: I'm not sure I understand the question, what it means.

CA: What is the policy--the Navy's policy on----

LA: It's stated in the CNO's message here. I can quote that to you. I'm not going to get into a game of trying to, you know, advise the law off the top of my head. So, the Navy's policy on homosexual conduct is contained in this order. If you'd like me to read it into the record now, I can do that.

[counsels for the respondent confer.]

CA: Major Stutzel, does the Navy consider homosexuality incompatible with military service?

REC: Sir, I'd object to that question. The question, again, is misleading. The Navy has regulations concerning homosexual conduct and service by homosexuals in the military, and those are the regulations that govern this Board. The policy behind the regulations is irrelevant to the Board, and it is irrelevant to the legal-advisor's qualifications.

LA: Again, Lieutenant McAlevy, I will instruct the members with regard to the DOD and Department of Navy policy. As your question was asked, my understanding that this order does not govern homosexuality. It governs homosexual conduct in the United States Navy. As I understand the appointing letter and the grounds for the Lieutenant's prospective separation, the grounds for this hearing, is that the government alleges and the Board will be required to make a showing--a finding of whether or not he committed homosexual conduct, and their grounds for that, I think from reading the letter apparently, is that there was a statement made and the instruction deals with how they define whether or not a statement of homosexuality is sufficient to establish conduct. The order is specific that--I want to make sure I use the correct term here--that conduct is the grounds for separation and not sexual orientation.

CR: Major, in what circumstances does the Navy, the regulations, permit the retention of homosexuals?

LA: Well, again, those are described in the order. In order to give you that fully I could read the order into--into the record.

CR: By the same token, in what circumstances do Navy Regs permit the retention of open homosexuals?

LA: I'm not sure I understand the phrase "open homosexuals."

CR: Ones who have declared their homosexuality.

LA: Well, again, declaration of homosexuality would fall under the definition of homosexual statement, and then that--if that statement is sufficient to lead a reasonable person to believe that it was intended to convey that the person engaged in, attempted to engage in, had a propensity to engage in, or an intent to engage in homosexual acts, then that could be a grounds for separation unless--unless that person demonstrates that they do not engage in or intend to engage in or have a propensity to engage in or intend to engage in homosexual acts.

CR: Major, have you ever supervised anyone who was a homosexual?

LA: Have I ever supervised anyone that was a homosexual? Are we talking about in a military context?

CR: That is correct, sir.

LA: Not that I can specifically recall.

CR: How about outside the military?

LA: I know homosexuals, people who are homosexuals, yes. I can't say that I've supervised them. One of my hobbies is theater, and there are people that I know who are openly homosexual that I have contact with in the theater. I can't say I've ever supervised them.

CR: Major, do you believe that a homosexual who keeps his or her orientation secret--a secret can function effectively within a command?

REC: Objection, sir. There's--again, there's no cause to consider for this Board what your feelings are concerning homosexuals, rather whether or not you, as the legal advisor, understand the law and would be willing to assist the Board in following it.

LA: Comments in reference to that?

CR: Sir, we believe that these questions are necessary and are relevant to the case at hand. We're trying to ascertain whether you have any prior conceived notions, any misconceptions. We certainly believe that it is relevant in order to determine your ability to sit here and render fair and impartial legal advice to this Board today.

LA: As pointed out by the recorder, my personal feelings are not directly relevant to my duties to the Board.' I intend to advise the Board with regard to the legal matters as instructed by the Navy instruction here that came out a few months ago, the policy as defined in that order, and, again, as I've mentioned several times, to what degree it might still apply, that SECNAV instruction from 10 years ago. In having thought that, I've actually forgotten' the essence of your question,, I'm sorry.

CR: My question is to ascertain your belief regarding homosexuals who keep their orientation secret, whether they can-whether you believe they can function effectively within a command.

REC: Again, my objection would stand that regulations and not your feelings, sir, are pertinent here.

LA: That question goes to the very heart of the President's decision to order the Department of Defense to change its policy, and to the degree that that may have some influence on the Department of Defense's change in policy, I have no problem living with that. However, again, it's generally not relevant because in any case in which a service member successfully hides their homosexuality, homosexual conduct, and homosexual statements from the Navy, then they're not going to be in front of a Board. The issue involved here, apparently, again, and other than having just thumbed through this package handed to me a few minutes ago, I have no knowledge of the evidence involved in the case. Other than that, you know, I guess I can presume that something that the Lieutenant did or said got him here.

CR: Major, do you believe that an openly homosexual service member can function effectively within a command?

REC: I'd object on the same grounds, sir. It simply is not relevant to the regulations that are to be applied here today.

LA: To the degree that someone who has a sexual orientation of homosexuality can comport himself to the instruction then, I guess, the answer to that is yes, that that person could do that. And the order, again, defines that as someone who has--does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts, which are defined as a form of conduct. So the order prohibits, in a general sense, prohibits not homosexuality, even open homosexuality. It prohibits conduct.

CR: Major, I'd like to go back to the first questions I asked the Board and ask . the same questions of you. Do you know either the recorder, the assistant recorder, myself, or civilian counsels in the case?

LA: I do not know any of the members of the Board, other than what contact I had with them here this morning. Captain Young called me earlier in the day to find out what time it was, and I told him I did not know he was a member of the Board because I had not received a copy of that letter. Then when I found out he was on the Board, I called him back by which time he knew what time the Board was. I've had minor contact with Lieutenant Dutton just to find out what time, again, the Board was. I have talked several times probably with Lieutenant Commander Shaffer. He works at OJAG Headquarters over at the Hoffman Building, but--I had contact with him in Code 34. Some of my Marine friends had worked there, and-kind of minor social contact, I guess, if it even raised to that level. You served at Appellate Government Division, which is across basically an open space from where my office is at the Navy-Marine Corps Appellate Review Activity, and I would say we've had plenty of social contact there ' I don't recall, because I'm not involved directly in the appellate process, that we ever had any work contact, other than possibly making sure your computer was working or things of the administrative nature. With regard to that, I remember your getting married and being pregnant, that kind of thing. I do not know the Lieutenant, although he looks kind of familiar. I don't know why. I don't know him, and I, likewise, do not know any of the counsel.

CR: How about Rear Admiral Moore, Commandant, Naval District?

LA: I know who he is, but I've never had any kind of personal contact with the Admiral.

CR: Will your prior dealings with myself or Lieutenant Dutton or Lieutenant Commander Shaffer, or even your run ins with Lieutenant Thomasson, will that have any impact on your ability to sit here today?

LA: No, it wouldn't, and I wouldn't--again, I wouldn't describe necessarily that I had run-ins with the Lieutenant. He just, for some reason, looks familiar, and I can't at all pinpoint why or where. Maybe I've seen him--I've been to BUPERS a couple of times. Maybe I've seen him walking around or something like that. He just looks familiar.

CR: Major Stutzel, would you please, for the record, state your current position, your current duties?

LA: Sure. I'm the Director of the Administrative Support Division at the Navy-Marine Corps Appellate Review Activity, which is a section of the Office of the Judge Advocate General of the Navy. I'm involved in the administrative handling of records of trial at the Navy-Marine Corps Court of Military Review. I supervise the people who do, you know, work with the computer. I'm in charge of the admin running of the building, making sure the computers run, there's paper for the Xerox machine, some of that kind of thing. I also do the review of non-discharge courts-martial and non-discharge general courts-martial. I've been a Judge Advocate for about 18 years. I've served as defense counsel, prosecutor, military judge, review officer, operational law officer, just about everything that a Marine Judge Advocate can do.

CR: Have you served as a legal advisor on a Board of Inquiry prior to today?

LA: No, this is the first time I've served as a legal advisor to a Board of Inquiry. I have been a legal advisor to an Administrative Separation Board of an enlisted Navy member, and that Board also dealt with homosexual conduct.

CR: May I have a moment, sir?

(Counsels for the Respondent confer.]

LA: More questions of me?

CR: Sir, at this time I'd like to return to voir diring the members.

LA: Maybe we could complete my aspect of it.

REC: Major, do you agree that the Department of Defense Directive 1332.30 governs the case today?

LA: That's the instruction issued last December?

REC: That's correct. Well, it's the DOD directive concerning separation of regular commissioned officers.

LA: I agree to the extent that it has been implemented by the Navy in that naval admin message, and from my review of them, they seemed to be consistent.

REC: Are you aware that Charge 1 was made to Department of Defense 1332.30 as of March 4, 1994 to implement' Congress'--the law passed by Congress and reported under the National Defense Authorization Act for fiscal year 1994 as an amendment to 10 U.S.C. 654?

LA: Yes -

REC: Do you also agree that insofar as it does not conflict with the DOD directive, SECNAV Instruction 1920.6A also governs here today?

LA: yes.

REC: Do you agree that the Chief of Naval Operations message number 01030OZ March 1994, otherwise known as NAVADMIN 033/94, which implements DOD Directive 1332.30 also governs this Board?

LA: Yes.

REC: Finally, sir, is there anything at all that would prevent you from maintaining a fair and impartial position as legal advisor to this Board?

LA: Not that I'm aware of.

REC: Thank you very much.

CR: Major Stutzel, I want to go back. You said that you served as a legal advisor previously to an enlisted admin board?

LA: Yes.

CR: Could you please tell us a little bit about that Board. What was the basis for processing?

LA: As I recall it was--and I can't remember the exact time frame of it, but it seems like it was last fall, and it would have been under the previous provisions, as I recall. Again, I don't specifically remember. The enlisted member was being processed for being a homosexual, and was retained.

CR: Can you give us the extent of your involvement in that?

LA: I was the legal advisor and instructed the Board with regard to whatever section it was of the MILPERS Manual that was applicable at the time, and, again, as I said I don't recall the exact time frame of it so I don't recall whether it was--I think it was the old regulation as opposed to the new regulation. I just don't remember the time frame. It seems like it was about 8 or 9 months ago.

CR: Thank you, sir.

REC: I've no further questions in light of the defenses.

CR: One additional, sir. Do you remember the name of that case?

LA: Not off the top of my head. I remember it being a rather unusual name, and if I heard the name I'd probably remember it. There was some press coverage of the young man, and the press was here for the Board. If I heard the name I'd remember that that was it, but I can't think of what it was.

CR: Was it here at Naval District Washington?

LA: It was right here in this room. This young man, part of the evidence against him was ----

REC: Sir, I would object to further response at this point for two reasons. First of all, in front of the members--not to the response itself but to giving the response in front of the members since it was a different case decided under a different policy.

LA: I wasn't going to go into the grounds of the evidence. And we have three Navy Captains on the Board who, I'm sure, understand that we're talking about a different case and it has no relationship whatsoever to the Lieutenant's case.

REC: As long as the legal advisor doesn't intend to go into the facts or the law that applied at that time, then the government doesn't have an objection.

LA: As I said, I'm not even sure which law applied. I don't remember the exact time frame. This young man had his picture taken at the Gay Rights parade which was last spring, as I recall, and his picture had been in the newspaper, and that was some of the evidence against him, that he participated in the parade. I can't think of his name. He was a Hospitalman at one of the sub-units of the Medical Center. That was not the convening authority. It was some kind of sub-laboratory or something.

CR: But the member was retained in that case?

LA: The member was retained.

CR: I have no further questions of you, sir. I'd like to continue with the members.

LA: Does either side desire to exercise a challenge for cause at this point in time?

REC: The government does not, sir.

CR: Counsel for the Respondent does not either, sir.

LA: Of course, at any point in time if you feel a cause for relief of the legal advisor or any board member raise that objection at the appropriate time.

CR: Sir, if I can return. I'd like to ask the members here if you could please tell me what the Navy's policy on homosexuality means?

REC: I'd object to that question. Again, it is the duty of the Board to ascertain the regulations and apply the regulations, and their personal feelings as to policy have no bearing whatsoever on their decision.

CR: Sir, we believe that these questions are necessarily relevant to understand their prior conceptions or misconceptions, their prior prejudices or biases in evaluating their ability to sit here and render a fair and impartial decision today.

REC: May I respond to that, sir? I would say that if they were to ask the members whether they would agree to follow the policy regardless of their personal feelings either way, that's a different matter and a different question. But as to delving into their personal opinions concerning homosexuality, I would object to that, sir.

LA: I agree with you half way through what you were saying, Lieutenant Dutton, but I'm not sure that I agree with the tail end of it. With regards to the board members' feelings regarding the policy, they're going to be instructed that the Chief of Naval Operations has established a policy and that is the policy they will apply. So with regard to that, I'm not going to allow a large leeway in questioning the members as to what they may feel about the policy. On the other hand any bias that the members might have against homosexuals as a group could conceivably be relevant regarding----

REC: If the legal advisor is instructing the question may be asked, "Does the member have any bias against homosexuals as a group," then the government has no objection to that.

CR: Sir, to go back, the way that I'm phrasing the question is not to ascertain their feelings regarding the policy. I'm ascertaining their understanding regarding the policy-understanding of the policy at this point in time.

LA: Well, I don't think we need to go a long way down that road, Lieutenant McAlevy, because their understanding of the policy is going to be what I tell them that policy is at the close of the evidence. They also have the policy in front of them at this stage. So with regard to that, it is no different than a person going in as a member of a court-martial. They may or may not know what the law is, and whether they do or don't isn't particularly relevant because they're going to be told what the law is. You can voir dire them regarding, again, potential areas for bias, as I'm sure you plan on doing. But, as it applies to, you know, what they think the law is or don't think the law is isn't particularly relevant. They're going to be told what the law is.

CR: Members of the Board, have you ever supervised anyone who was a homosexual? Captain Young?

MBR [CAPT YOUNG]: I have not.

CR: Captain Ellerman?

MBR (CAPT ELLERMAN]: Not to my knowledge.

CR: Captain Bailey?

MBR [CAPT BAILEY]: In the military?

CR: Yes, ma'am.

MBR [CAPT BAILEY]: Not to my knowledge.

CR: Outside of the military, ma'am?

MBR (CAPT BAILEY]: I worked as a bartender back when I was 20 years old, and I supervised a couple of waiters and waitresses. One of them was homosexual.

CR: Have you ever suspected that anyone under your supervision was a homosexual? Captain Bailey?

MBR [CAPT BAILEY]: I don't recall any need to.

MBR (CAPT ELLERMAN]: No.

MBR (CAPT YOUNG]: No.

CR: Would you, under any circumstances, be able to serve under and be able to take orders from a homosexual service member?

Captain Ellerman?

MBR (CAPT ELLERMAN]: I don't--under the current policy, I wouldn't know if my senior was a homosexual or not, as far as I know.

CR: If you did know that that person was a homosexual, would you be able to serve under them, take orders from them?

MBR (CAPT ELLERMAN]: I think so, yes.

MBR [CAPT YOUNG]: Yes.

MBR [CAPT BAILEY]: Yes.

CR: Have any of you had any negative experience with homosexuals? Captain Young?

MBR [CAPT YOUNG]: No.

MBR (CAPT ELLERMAN]: No.

MBR (CAPT BAILEY]: No.

CR: A negative response from all members. Do you feel any animosity or prejudice toward homosexuals? Negative response from all members. Is there anything else not touched upon in any of the prior questions that I've asked or Lieutenant Dutton has asked which would prevent you from sitting in this proceeding and rendering a fair and impartial decision? That's a negative response from all members. I'd like to ask, Captain Young, I'd like to go back. You stated initially that you had some knowledge of Lieutenant Thomasson, could you please explain that?

MBR (CAPT YOUNG]: Yeah. I work in the Navy Annex, Bureau of Naval Personnel, and Lieutenant--I know that he works in the Admiral's office. In walking by the office I've seen him. I've never had to work with him, but I'm just aware that he was working in the building.

CR: As a result of your prior contact with him, would that impact on your ability ----

MBR [CAPT YOUNG]: Well, I've have had no personal contact with him, just in passing.

CR: As a result of that contact with him, would that impact on your ability to sit here today and render a fair and impartial decision?

MBR [CAPT YOUNG]: No.

CR: Thank you. Captain Young, have you heard anything about Lieutenant Thomasson over at the Navy Annex?

MBR [CAPT YOUNG]: No.

CR: I've nothing further, sir.

REC: Just one question in light of counsel for the respondent's, I would ask you individually, Captain Young, would you agree to abide by--to ascertain and abide by the regulations that the legal advisor determines governs this proceedings?

MBR [CAPT YOUNG]: Yes.

REC: Same question for Captain Ellerman?

MBR [CAPT ELLERMAN]: Yes.

REC: Captain Bailey?

MBR (CAPT BAILEY]: Yes.

REC: Thank you very much.

LA: There was some indication toward the beginning of the questioning that somebody desired individual questioning?

REC: We've covered it, sir.

LA: I would note for the record at this time that the government has no challenges?

CR: The respondent has no challenges, sir.

MBR [CAPT ELLERMAN]: Continue with the script here now?

LA: Yes, sir.

MBR [CAPT ELLERMAN]:Does either the recorder or the respondent desire to make an opening statement?

REC: The government does, yes. Sir, I'd ask before we begin opening, would the Board care for a brief recess before we get into this portion?

MBR (CAPT ELLERMAN]: Yes, we'd like to take a recess.

[The Board recessed at 1050 hours, 23 May 1994.]

(The Board was called to order at 1120 hours, 23 May 1994.]

REC: Do I understand we've reconvened, sir?

MBR [CAPT ELLERMAN]: Yes.

REC: Well, good morning, again, members. As members of the board here today your job comes in five parts. First, you're going to be asked to listen to and ascertain the laws and regulations that apply to this Board. The legal advisor will give you all the help you need on that. Second, you'll be asked to listen to the evidence concerning Lieutenant Thomasson's conduct, and I use that word on purpose. Third, you'll be asked to apply the evidence concerning his conduct to the regulations that you're given. Fourth, you're going to be asked to determine whether Lieutenant Thomasson has shown, in light of the law and the evidence here, whether he's shown cause to be retained in the naval service. And, finally, if you vote to separate him, the final step is to characterize the respondent's discharge based on the quality of his service in the United States Navy.

The first step, as I mentioned, is ascertaining the applicable law. Now, you might think at first blush that that's kind of a dry job, but I suspect that you've already seen that that's going to be a little bit more interesting than you may have anticipated. But I suggest that, despite what you've heard about policy, despite what you've heard about regulations and directives, that the law is clear. There is no confusion about what the law is you are to apply here at the Board of Inquiry. You've been provided with the government exhibits that contain the sum total of the law that governs naval members, and discharges, and board of inquiries based on homosexual conduct. You've been provided with a copy of Section 10, United States Code--Chapter 10, United States Code, Section 654. Those are the findings and the law as passed by Congress. It does not directly govern what is provided for you here today. That's Government Exhibit 16. That's the basis that the DOD directives and the Secretary of the Navy and CNO instructions are founded on. You've also been given a copy of the Department of Defense Directive 1332.30. That's entitled "Separation of Regular Commissioned officers from Military Service." The government has provided you the full text of that instruction, but what you're going to be asked to look particularly at is the instruction language dealing with homosexual conduct in the military, and you're going to be asked to apply the evidence and the facts that you are presented with to that direct statement of law, and you'll see that it reflects directly verbatim what was handed down from Congress.

You'll also be given the SECNAV Instruction 1920.6A, that's also in your package of government exhibits, and that's entitled "Administrative Separation of Officers." You may have gathered during the discussions that were held earlier that there is some confusion because that Secretariat of the Navy's instruction was not updated to reflect the DOD policy which is implemented in the directive 1332--I believe it is, .30, and you have a copy of that. So, inasmuch as that Secretary of the Navy instruction does not conflict with the policy specifically enacted in the regulations by the Department of the Defense, that Secretary of the Navy instruction still governs.

You've also been given a copy of the CNO message date/time group 01030OZ March 94. That is directly the implementation of the DOD policy on homosexual conduct. In fact, that's its title. That is the specific homosexual instruction that governs the Navy, and the regulations that govern the Navy in separation of homosexuals from military service.

And I emphasize there is no confusion as to what the law is that you will be asked to apply. It is specifically stated out in those four different regulations. The Congress passed 10 U.S.C. 654. DOD implemented that in its instruction. The Secretary of the Navy instruction governs boards of inquiry, and, finally, the CNO policy implemented the DOD regulations, as well. So, particularly, down at the bottom of that funnel is the Chief of Naval Operations instruction. You'll see that the language is virtually, again, verbatim, from what was passed by Congress in the CNO instruction. The CNO instruction gives you the definitions that will apply, and it gives you the basis for the law.

You'll learn that the law requires, first, that you as a Board, find homosexual conduct, which, again, it states in the law homosexual conduct is grounds for separation from the naval service. Second, it states that there are three forms of homosexual conduct:

A homosexual act, that is defined in the CNO message; a statement that demonstrates a propensity or intent to engage in homosexual acts - again, a statement and propensity are both defined in the CNO message; and, third, a homosexual marriage or attempted marriage. Those are the three forms of conduct that lead to separation from military service.

You'll learn, also, third, that a statement by a service member that he is homosexual, or words to that effect, creates a rebuttal presumption that the member engages in homosexual acts or has a propensity to engage in homosexual acts. Remember, those are prongs one and two of the conduct. Engaging in a homosexual act or a propensity or intent to engage in homosexual acts are two forms of conduct. And a statement by a military member that he is a homosexual, or words to that effect, raises a rebuttal presumption that he carries out prongs one and two of that kind of conduct. it is presumed to exist without more, and the member can be separated based on that statement alone unless the member shows, to the satisfaction of the Board of Inquiry, that prongs one or two of that conduct, in fact, do not exist nor will exist.

Fourth, you'll also learn that a service member who openly proclaims his homosexuality then bears the burden of proving throughout the proceedings by a preponderance of the evidence that retention is warranted. Once the members are satisfied that the respondent has made a statement of homosexual orientation, the member bears the burden of showing to your satisfaction that he will not or does not or does not intend to commit homosexual acts or has a propensity or intent to commit homosexual acts. That specific burden is stated in language in DOD Instruction 1332.30, and it directly implements 10 U.S.C. 654.

That's the law in a nutshell. You'll find, as I mentioned, the words almost exactly verbatim from Government Exhibit 16, which shows the words passed by Congress, down through the DOD, SECNAV, and OPNAV instructions.

Then your second duty is going to be to listen to the evidence of the respondent's conduct. You'll hear evidence that he has made statements, both written and oral, direct and implied, that he, Lieutenant Thomasson, is a homosexual, and these statements are conduct under the instructions and regulations that you've been given. You will then find that the presumption of--the presumption will then exist that Lieutenant Thomasson engages in homosexual acts or has a propensity to engage in homosexual acts. And the government's going to ask you to listen to the statements and the circumstances that surround them, because they are Lieutenant

Thomasson's conduct and they raise the presumption of other conduct.

I would note that it is only Lieutenant Thomasson's actions that are relevant here today. It is not relevant as we kind of got into earlier what anyone thinks about homosexuals in the military. It's not relevant what other services have experienced or what other individuals have experienced or what anyone else has experienced inside of or outside of the Navy. Rather what's relevant is the regulations and the conduct that Lieutenant Thomasson has exhibited and how that is applied to the regulations. Anything else simply has no bearing on the questions which you have been tasked to answer. It is clear conduct that raises the presumption of other conduct, and, if so, is that conduct--or is that presumption rebutted? If it is not rebutted, the instructions require you to vote to separate Lieutenant Thomasson, and your duty then will be to characterize his service based on his performance. And you'll see that he has an--I can only describe it as an enviable service record. Some very good performance.

You've already been provided with almost an entire copy of his service record. There are some very good evaluations in there. There are some very strong statements about what a good performance Lieutenant Thomasson has given to the Navy. But he's also a homosexual, and you'll be asked to apply the policy, and then to characterize his service, not to characterize his service as a basis for applying the policy.

What is Lieutenant Thomasson's conduct? You'll see that he wrote a letter addressed to four different Admirals stating, "I am gay." And going on to explain that the military's policy, in his opinion, towards homosexuals is unfair. That's already before you as one of the government's exhibits. You'll see that he has openly discussed his homosexuality in the office place. He has made other statements of homosexuality, and he's told co-workers and supervisors that he associates with others who are homosexual. These are clear statements of homosexual conduct which raise that presumption.

Once you've heard all the evidence, then you'll have the opportunity to enter into that closed session and there you will apply that evidence to the regulations and the statements of the law, and make findings first, whether or not Lieutenant Thomasson has shown cause to be retained, that is, has he rebutted the presumption he raised himself by making those public statements to the Admirals and others, and if he's not successfully rebutted that presumption, you have the duty to separate him.

The government is confident that today you will apply the law as given, and the facts as presented to you, and see that the respondent is unable to rebut that presumption, and vote to separate. And that you'll also see that he has an outstanding service record, and that the characterization of that service should be honorable, but that separation is warranted. Thank you.

CC [MR. LYNCH]: Members of the Board, the respondent will reserve his opening statement until the government completes its case. Thank you.

REC: I'd like to go through the exhibits for the record ----

MBR [CAPT ELLERMAN]: Before we start, one of the members would like to amend one of the statements they made earlier. Should we do this now, this correction?

LA: Is this with regard to questioning from the counsel on challenge for cause?

MBR (CAPT ELLERMAN]: Yes.

LA: Yes, sir, that would be appropriate at this point.

MBR [CAPT BAILEY]: Counsel had asked if I had ever sat on admin discharge boards for enlisted members, and I stated that I had and all the cases were drug related. On thinking further, one of them was a murder case.

CR: Yes, ma'am. That was an admin board or was that a court-martial?

MBR [CAPT BAILEY]: No, it was admin discharge. He'd already been convicted by the civil court.

CR: By a civilian court, ma'am?

MBR (CAPT BAILEY]: Yes.

CR: Do you recall the outcome of that case?

MBR [CAPT BAILEY]: He was discharged, administratively discharged.

CR: And the characterization, do you recall that?

MBR [CAPT BAILEY]: No.

CR: Thank you.

LA: Any challenges based on that?

CR: No, sir, the counsel for the respondent does not.

REC: I have no questions or challenge either. At this point in the government's case I'd like to go through the government's exhibits and state on the record what each one is. You've each been provided with a package. They should all be identical. The top page of which is a list of government exhibits. It is not a government exhibit in itself. It's just an index to make it easier for everyone.

Government Exhibit 1 is the appointment of administrative board of inquiry from the Commandant, Naval District Washington, to Captain James Whittaker. Captain Whittaker was excused from the Board and replaced by Captain Young. It is dated April 22, 1994.

Government Exhibit 2 is the amendment to the administrative board of inquiry from Commandant, Naval District Washington, to the presiding officer, Captain Ellerman, dated May 19, 1994, and it appoints Captain Young.

Government Exhibit 3 is dated 9 March 1994. It is from the Chief of Naval Personnel to Lieutenant Paul Thomasson, and it is entitled "Notification of Administrative Show Cause Proceedings."

Government Exhibit 5 is a findings worksheet for the Board which sets out the separate findings and recommendations which may be made by the Board.

Government Exhibit 6 is a Privacy Act statement. I have--you do not have signed copies of the Privacy Act statement. I have the original. It is signed by the respondent, and, if, Legal Advisor, if I may approach the court reporter I'd like to insert that in the official record?

LA: Fine.

REC: Let the record reflect I'm handing the Privacy Act statement to the court reporter.

Government Exhibit 7 is the letter that was written by Lieutenant Thomasson, and it is addressed "Dear Admirals," and on the second page you will see distribution to Vice Admiral Zlatoper, Rear Admirals Gunn, Ryan and Konetzni.

Government Exhibit 8 is the Department of Defense directive I have referred, and to which legal advisor has also referred to. It's DOD Directive 1332.30. It includes Change 1 dated March 4, 1994.

Government Exhibit 9 is the SECNAV Instruction 1920.6A. It is entitled "Administrative Separation of Officers." It includes both Change 1 and Change 2. Change 2 was entered 11/5/93.

Government Exhibit 10 is the CNO message date/time group 01030OZ March 94. It is entitled "Implementation of DOD Policy on Homosexual Conduct." This is the instruction I referred to. You will find on the first page, about half way down, it sets out the different portions--on the left hand side the different portions of the instruction itself. You will find that paragraph 8 applies to officer separation processing procedures. Paragraph 8 will apply to this Board today. And definitions in paragraph 3 may also help to clear up some of the confusion if any exists.

Government Exhibit 11 is service record copies of the reports of fitness of Lieutenant Thomasson.

Government Exhibit 12 is copies of his personal decorations. I apologize that the first page of Government Exhibit 12 is poor. It is a citation for a Naval Achievement Medal and this is the best I could get out of BUPERS. If Lieutenant Thomasson desires to enter a better copy, he may, of course, do so. If the Board desires me to attempt to obtain a better copy, I will, of course, try that as well.

Government Exhibit 13 is Lieutenant Thomasson's designation as a naval aviator from his service record.

Government Exhibit 14 is the delivery of appointment in regular Navy.

Government Exhibit 15 is the personal history of Lieutenant Thomasson from his service record.

And, finally, Government Exhibit 16 is the conference report I mentioned from the National Defense Authorization Act for Fiscal Year 1994. It is the language passed by Congress that established requirements for the Department of Defense to revise instructions concerning homosexuality in the armed forces. You'll find that the language in Exhibit 16 is reflected directly and verbatim in both the DOD and CNO instructions.

LA: Does the defense--respondent, rather, have objections to any of the proposed government exhibits?

CC (MR. LYNCH]: Yes, I have some comments to make, sir. First of all, with respect to Government Exhibit 1, the appointment letter, Lieutenant McAlevy did not receive that until last week on 18 May despite the fact that it was dated April 22nd. Secondly, the content of the letter, we believe, is objectionable in that it instructs the members of the board how they should proceed. As we understand it, that's your province and not the province of the convening authority. By implication, the same problem also affects Government Exhibit 2.

A further problem we have with the exhibits is that as Lieutenant Dutton stated in his opening, we have a funnel here that begins with the law that Congress passed, and then moves down to the directives issued by the Secretary of Defense, and then comes down to the Naval Regulations, and then comes down to the Chief of Naval operations message to the fleet, and in the appointment letter that you all received the CNO's message, NAVADMIN 33/94, is referenced, but when you look at the notification that was provided to Lieutenant Thomasson that message is not referenced. He only gets the first two levels of the Executive Branch's funnel, which is to say the Secretary of Defense's directive and the Secretary of the Navy's instruction, but he doesn't get any notice that the--that the CNO's message is going to be applied in this case. And that, in combination with the fact that we didn't get the appointment letter until last week, in our view renders an irregularity that we want to note for the record.

LA: Does the respondent, in light of the late notification of the appointment of this Board, desire more time to prepare their case?

CC (MR. LYNCH]: We've had ample time to do that, but we wanted to note the irregularity for the record. Thank you.

LA: Likewise, with regard to that aspect of the notification of the show cause proceedings, which the government has introduced, Government Exhibit 3, is there--has the respondent in any way been misled with regard to the policy applicable at the initial show cause proceeding or at this Board by the lack of notification that CNO, Naval Admin message?

CC (MR. LYNCH]: Major, as I've indicated, once we got the appointment authority last week, I don't want to suggest that w haven't had time to figure out how that fits into the picture between then and now, but we think we-should have had earlier notification, and that it should have been included in the notice that was provided initially to Lieutenant Thomasson.

LA: I'm sorry, you're Mr. Lynch, is that right?

CC (MR. LYNCH]: Yes, that's right.

LA: With regard to-the objection regarding Government Exhibit as it purports to instruct the members of the Board as to the applicable law, I'll remind you again that after we've heard all the evidence I will instruct you as to what regulations are applicable, and to the extent, if any, that this letter conflicts with those instructions that I give you at that time, theft you should disregard that aspect of the letter. Are there objections to any of the of the documents?

CC (MR. LYNCH]: With respect to the fitness reports, Major, we would note that they are incomplete in some material respects. However, in the exhibits which we will be submitting, we have a more complete set. But I don't think I need to object as long as we have the opportunity to put in the appropriate materials as part of our case.

LA: Certainly. No objections to consideration of any of the other exhibits?

CC (MR. LYNCH]: No, other than to make clear, as was indicated during the voir dire, that there is a great deal of confusion about what the policy is. This funnel that Lieutenant Dutton described certainly does not have the clarity of a Grecian urn, and we think that's an important point to make for the record. Thank you.

LA: Thank you, Mr. Lynch. Again, I just remind you, as these instructions purport--or as these exhibits purport to instruct you on the law, which, of course, a number of them do, some of them are factual. Obviously, those are for your use in determining the facts involved in the case. As those exhibits pertain to what the law is in this case, then we will be discussing that at the end of the evidence. That's the purpose for me being here, for any questions that you have with regard to the applicability of these instructions or legal exhibits, to how they're applied, and to what they mean, that may be brought up by you with me here in the open hearing.

REC: The government would call Admiral Konetzni to the stand, please.

REAR ADMIRAL ALBERT KONETZNI, JR., USN, was called as a witness by the government, was duly sworn, and testified as follows:

DIRECT EXAMINATION

(Questions by the Recorder:]

Q. Admiral, would you please state your full name, and spell your last name for the record, sir?

A. Yes, Albert Henry Konetzni, Jr., K-0-N-E-T-Z-N-1.

0. Sir, what is your rank and your branch of service?

A. I'm a Rear Admiral, United States Navy.

Q. And how long, sir, have you been in the Navy?

A. Twenty-eight years on June 8th.

Q. Sir, where are you currently assigned?

A. Right now, I am PERS-5, which is the total manpower programming official, as well as the PERS-2, which is the Assistant Chief of Naval Personnel for Policies and Plans.

Q. Sir, how long have you been at PERS-2? You say you wear two hats, how long have you been at ----

A. I relieved Rear Admiral Gunn about a week ago, and I reported to the Bureau on February 1st, after having duty in the Pentagon in N-87, which was the Submarine Directive.

Q. When you reported in February you were assigned as PERS-5?

A. PERS-5 only, right.

Q. What are your duties now as PERS-2?

A. Well, I am really responsible for all personnel, management, plans, and policies, that includes everything from compensation to the right-sizing, downsizing, of the Navy, and some other smaller things like--I say smaller not because of their importance but smaller programs like the education regarding career counseling and the like.

Q. Sir, as PERS-5, what was your duties there?

A. Well, PERS-5 is more than anything else the total end-strength planer and ensuring that the billet file--ensures the billet file is up-to-date for the entire Navy.

Q. Sir, do you know Lieutenant Paul Thomasson, the respondent in this case?

A. I do.

Q. And how do you know him?

A. Well, when I reported over here in February 1994 Lieutenant Thomasson was assigned in PERS-5. The PERS-5 officer had left, the person in charge, and Lieutenant Thomasson was the Admin Assistant.

Q. How long did he work for you there?

A. Well, he continues to work for me right now. I'm still PERS-5, so up until this day.

Q. Since February, I guess?

A. That's correct.

Q. What were his general responsibilities for you?

A. Well, he was my Admin Assistant, and the Admin Assistant for the entire PERS-5 organization. He ran the front office. Kept me out of trouble, quite frankly. Did most of the work regarding our tickler file to make sure the correspondence opened, and so forth, and he really did an awful lot on his own to make sure that I stayed out of trouble.

Q. Sir, I'd ask you to recall then back to about the 2nd of March. I guess you'd been on the job about a month. What was your schedule that afternoon, do you remember?

A. Well, I had a couple of meetings. I was running back and forth. I had to do something that evening, and I got back into the office, as best as I can remember and I, please, ask you don't hold me to this, but this is the best time I can remember, sometime later in the afternoon.

Q. And when you got into the office was Lieutenant Thomasson there?

A. Yes.

Q. What happened?

A. Lieutenant Thomasson often times worked after I left. I always told people to, please, get him out of there, but he stayed there. When I walked in--again, on the 2nd, when I walked into the office later in the afternoon the Lieutenant told me that he had to talk to me. It was interesting because I had two thoughts. I wanted to get out of there. I can't even remember why. I had to do something, but I've always--basically always made it my business if somebody needs to talk to me, I should talk to them.

Q. Did you talk to him then?

A. Yes. I went into my office and we talked. He had something that was fairly important.

Q. What happened then?

A. Well, he gave me--he had a series of folders, 6 or 7 I suspect. I just remember that the folders were red in color. And he sat down on the couch in my office and told me that he wanted to let me know that he was a homosexual, and he wanted to make sure that I knew and that I was one of the first to know that. He told me also he felt an obligation to let the Chief of the Bureau, Admiral Gunn, and several other officers know that.

Q. You said he handed you--or did he hand you one of those red folders?

A. Yeah, he gave me one of the folders.

REC: may I approach, sir.

LA: [Nodding affirmatively.]

Q. Admiral, I'd ask you to take a look at that letter and see if you can identify that [handing document to witness].

A. [Examining document.] Yeah, this is the letter he gave me, and, of course, these are the other officers, Vice Admiral Zlatoper, Gunn, Ryan, and then myself.

Q. This is marked as Government Exhibit 7, and this is the letter that Lieutenant Thomasson handed to you--or a copy of this letter?

A. Yes, sir.

Q. Now, you said he stated to you that he, at the time, was a homosexual, and he handed you the red folder and that letter was in it. Did you read the letter that night?

A. I did.

Q. What was the substance of the conversation you had the evening?

A. I think, again as best as I can remember, I think my first thought was "Why me?" That was my first thought. My second thought, and then comment to Lieutenant Thomasson, was that it was a matter of your conscience and your mind, and I think you do a pretty good job here. I told him that I felt, as his boss, that I had an obligation to as soon as I could to let the other folks in the business to know, even though he had letters. There were all original letters to give to Admiral Zlatoper and Gunn and Ryan, but I felt an obligation to go up there, and he understood that. And then I think my final comment--and we talked for some time--was that certainly we'll make sure that processing occurs in a timely manner-I'll do everything I can to make sure that happens. He understood the processing as well.

Q. Was there anything in that--the substance of your conversation that led you to believe that he was anything but homosexual?

A. No, I believe he was a homosexual. I mean, I could tell at the time that it was a relief for him to get this statement out in the public, off his mind.

Q. Prior to that time did you have any indication that Lieutenant Thomasson was a homosexual?

A. None whatsoever.

Q. The day after he delivered his letter to you, that would be March 3rd, were you again in the office on that day?

A. Right. I was in and out, whole bunch of meetings. I had to go to a meeting over in Washington to talk to some consultants who were futurist, with Admiral McKinney and Admiral Ryan later in the afternoon.

Q. Sir, when you got back in the office was Lieutenant Thomasson also there?

A. Yeah, he was. I walked in the office and I was--obviously I was a little upset I had to go talk to these futurist because it was a waste of my time, and they were looking for business, and it was a rainy day, but, whatever. But when I got back in the office and I tend to be rather gregarious you know--there was kind of a mostly eaten cake from Price Club. I know that because the young guys go over to the Price Club a lot. And I said in my New York way something like, "What's the story on the cake? Whose birthday was it? Why didn't you invite me?", something like that.

Q. And what happened at that time?

A. Well, the Lieutenant said that was his coming out cake. I didn't have any of it.

Q. When you heard him say it was his coming out cake, what did you think he meant by that?

A. Oh, I knew that meant coming out of the closet cake.

Q. As a homosexual?

A. Yeah.

Q. Where exactly was this cake--where did you find it?

A. Oh, it was on the table. It was no big deal. I think, as I remember, the Lieutenant was in there. There were two Yeomen in the office. I don't remember if they were there at the time. I think that one of them may have still been there, I think the Third Class Yeoman, but I'm not sure. The Lieutenant was really always good about waiting for me to get back from these meetings, and, frankly, I always felt a little bit guilty because I couldn't get in the door if he wasn't.

Q. Was this in the admin spaces outside of your office?

A. Yeah, that's right.

Q. You mentioned to me earlier, sir, that Lieutenant Thomasson has discussed with you membership in a local music group, and I wonder if you could tell the members what Lieutenant Thomasson has talked to you about in this regard?

A. Well, we're pretty open with one another. He had discussed-- in fact, it is interesting how it all worked because my first month there I asked him, "What do you do?", again, just in discussions, in off-time and so forth, and he told me he belonged to a glee club or a singing group and so forth. And I said, although I probably didn't mean it completely because I don't go to many shows and that sort of thing, but I wanted to show some support and I would have gone, but he said he belonged to a men's glee club in Washington. I didn't think anything of it. After he came out of the closet he mentioned that it was--and, again, I don't know the exact title--but the Washington Men's Gay Glee Club. I remember making the comment, "Well, I'm kind of glad I didn't go then." That was about it.

Q. I'm sorry, what, again, was the name of that?

A. It was the Washington Men's Gay Glee Club. I might have the words interposed.

Q. Did he tell you he performed with them?

A. Yes, he was part of the group.

Q. Sir, I'd like to shift focus a little bit and ask you about Lieutenant Thomasson's performance while he was working for you.

Can you characterize it generally?

A. He is--Lieutenant Paul Thomasson was a 4.0 performer. He was before he admitted his homosexuality, and he certainly was afterwards. I have teased him at times in a way that I think would just make him relax, what I would do the same for anyone regardless of their orientation being a bit nervous, I think he's a little uptight, but that had nothing to do with his homosexuality, nothing at all.

Q. Did you change any of his duties after he made an announcement of homosexuality?

A. No, no, I didn't at all. He asked me whether or not I'd let him go, and I did not. I left him right there working for me.

Q. Why didn't you change his duties?

A. I guess there were several reasons. First of all, I had read--in the job before this one I had read the entire RAND report on homosexuality. I was not concerned about security clearances. We don't really have anything in my mind that is of a secure nature in the office. I mean, there's classified material, that sort of thing, and I guess that view depends on where you are. Some of it you might not want to get in the press as far as funding, and that sort of thing, but I didn't see it as that. And he had come out of the closet, so to speak, admitted his own homosexuality, so I couldn't see how anybody could blackmail him. And, honestly, I couldn't see putting him over here in a closet, I don't mean it the way it came across, but over here in the Washington Navy Yard where you couldn't get anything out of him. I mean, he was a real fine worker, and it was an office routine. So I left him, and he did a fine job.

Q. Did you, in your contact with him during that time frame, was there anything that he did or said that gave you reason to disbelieve the statements that he was a homosexual?

A. No, I believe that he is a homosexual. I believe that from the bottom of my heart.

Q. Were there any other statements of conduct or was there any other conduct that you observed?

A. Well, the Lieutenant knows this. I was a little upset with him only for his own protection regarding the comment of his coming out of the closet cake. I was just--and I say "upset," there are degrees of upset. I don't get upset at many things, but I had a feeling that that would be rubbing folk's nose into it, and nobody likes that. I felt uncomfortable about the gay rights pink triangles on the car because the car is parked in our parking lot.

This is Lieutenant Thomasson's car--in our parking lot. I accepted rides from him to different places I had to be. I would be lying if I didn't say I was a little embarrassed. I kind of looked out the back window to see who was going to see me getting into this 'car and I'd have to explain myself. Then, again, he worked for me, and as long as he was in the Navy I'm going to treat him just like anybody else in the Navy. At one time he made a comment to me when I was getting changed. I like to wear civilian clothes to and from work, probably two reasons. I just don't like anybody to know who I am, that comes from whatever, from my history, my background. Secondly, I normally burn holes in my clothing smoking cigars. So, one time after he came out of the closet, he just made a comment to me, he said, "Gees, you're going to change in there with me around here." I said, "I don't see it as a problem."

REC: Thank you very much, Admiral.

CROSS-EXAMINATION

[Questions by CC [MR. LYNCH]:]

Q. Good morning, Admiral.

A. Good morning.

Q. You said you were a little upset over the cake incident, isn't that right?

A. I was a little upset because I thought this was probably a decent case for a young man who was speaking from the heart,, and once you rub people's nose into something you generally get a reaction that probably you don't want. So I was a little upset that that wasn't going to work for him. And I will tell you, after that, you call it counseling or comment--I made the comment the next day, actually, because I wanted to calm down and get my thoughts together - I believe it was the next day - I think the Lieutenant did everything that I expected him to do. In other words, don't get off--you know, don't get off the mark on this thing here because you're going--- In fact, I'll tell you, I told him I thought his case was rather pristine compared to others that I've known or read about.

Q. That cake incident, did that occur the same day as the announcement or the day after?

A. I think it--it had to be the day after, because I was given the letter fairly late in the evening. I think it was--I know it was. As best as I can remember it was the next day, because he gave me the letter fairly late.

Q. Do you recall going up to Newport, Rhode Island around the time that Lieutenant Thomasson gave you the letter?

A. Yes, sir.

Q. And you were in--how long were you in Newport after you went up there?

A. I don't remember.

Q. So the cake incident would have happened, then, the day you got the letter, wouldn't it?

A. Sir, I don't remember. I really don't remember. I mean, its an incident that occurred ----

Q. I don't mean to pressure you, but the point is the cake incident happened very closely to the initial announcement, isn't that right?

A. I believe so--oh, yes, sir, because it was all part of a flurry, because I know the Lieutenant was really relieved that he got this off his head.

Q. And you counseled him about the cake incident, correct?

A. It was very shortly thereafter we were walking outside the hall, and I said, "Be careful, you're going to rub people the wrong way." And he did a very nice job after that.

Q. And he has been careful and he hasn't rubbed people the wrong way, isn't that right?

A. Without a doubt, no doubt about it.

Q. Now, you've mentioned how you've had some discussions with Lieutenant Thomasson and his reasons. I gather you have some understanding of his reasons for writing the letter, isn't that right?

A. I think so, yes, sir.

Q. Could you tell us what those reasons are as far as you understand them?

A. I think he's a very honest young man, and I've already stated it. I think that he's a real professional. I've not seen his record. It's not for me to see, and I've not written a fitness report on him, but he's one of the finest young Lieutenants I've seen. I think that, as best as I could put it together, that he had this dilemma, and that was that he wanted to let the world know what he was, what he was. And I think that weighed upon him. It's not lost on me that the timing was not too long after the government--I should state, I guess, Navy policy came out regarding homosexuals.

I think it was a day or two after that. It was somewhere in that time frame. But more than anything else, I think it was a need on his part to come out into the open regarding his, whatever you want to call it, orientation, the way he comes across, he's a homosexual.

Q. Did you regard that statement as an act of conscience?

A. I think it was an act of conscience, yes.

0. Did you regard it as a moral thing for him to do?

A. I think for him it was a moral thing to do.

Q. Now, since Lieutenant Thomasson made that change--excuse me. Since Lieutenant Thomasson made that announcement have you seen any change in the performance of your branch?

A. No, I have not.

CC (MR. LYNCH]: I have no further questions. Thank you, Admiral.

REC: Sir, I'd ask for just one moment.

LA: Pardon?

REC: I'd ask for just one moment to confer with counsel.

[Recorder and Assistant Recorder confer.]

REC: The government has no further questions at this point.

[The witness, Admiral Konetzni, withdrew from the hearing room.]

REC: Sir, the government--I believe that's the government's case at this point. I would like to ask, given the hour, that we break for lunch, and when we come back I will state affirmatively whether, in fact, that is the government's case, whether we will present any additional evidence, if that's acceptable.

MBR (CAPT ELLERMAN]: Okay, what is the normal time for lunch. What do you usually take, 45 minutes, an hour?

LA: It's up to you, sir. Possibly--usually counsel and all kind of get together and just basically pick an estimate how long the case is going to be in the afternoon, when we think we're going to break for the day, and how long we'll go tomorrow, those kinds of things. Usually about 45 minutes to an hour.

MBR [CAPT ELLERMAN]: Let's take--we'll go ahead and dismiss the court [sic] to 1300.

REC: Very good, sir.

[The Board recessed at 1210 hours, 23 May 1994.]

(The Board was called to order at 1305 hours, 23 May 1994.]

MBR [CAPT ELLERMAN]: Can I ask just one question? Who are the two civilian gentleman sitting in the back? Just so--for my information?

CC [MR. CRAIN]: Sir, they're counsel from--one from the Department of Justice and one from the Department of Defense.

MBR [CAPT Ellerman: Okay. Thank you.

REC: Sir, the government rests at this time.

LA: Okay.

CC (MR. LYNCH]: Members of the Board, thank you for the opportunity to appear before you today. As has been indicated earlier, my name is Mark Lynch and I'm appearing on behalf of the Respondent, Lieutenant Thomasson. I'm not going to take very long with an opening statement. The real guts of our case rests with what the witnesses will have to say and what the record shows about Lieutenant Thomasson. But I do want to say a little bit as a preliminary matter about the law and the various directives and regulations of statutes that will guide your decision in this matter. Lieutenant Dutton touched on these and I'd like to say a little bit about them as well.

I think everyone agrees, it became clear during the voir dire that there is--it is confusing to figure out precisely what the various regulations mean. But whenever there is confusion over what a regulation means, it's a good idea to step back and try to figure out what is the policy here, what is the regulation trying to accomplish. And let me say at this point for the purposes of this Board, we have absolutely no quarrel or dispute with the proposition. that it is your job to carry out the regulations. We understand that completely. That is your duty and we would have you do nothing else but perform your duty. But following these regulations is not easy. Lieutenant Dutton has said that himself. And what I would like to suggest here is that when there is confusion over regulations, it makes sense to step back and look at the policy surrounding those regulations. And here, in fact, we have--we find some guidance within the statues and within the policies themselves.

If you look at the government's exhibit 16, which is the relevant statue passed by congress, congress makes a number of findings before it sets out what the policy is. And finding 14 is that, "The armed forces must maintain personnel policy that excludes persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline and unit cohesion that are the essence of military capabilities." That I would suggest is one of the guiding principles that you should keep in mind here. Risk to the high standards, morale, good order and discipline and unit cohesion. Finding 15 in the statue says that, "The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

Now,, the government has rested its case. And its case consists of one thing, a statement. A statement that Paul Thomasson is a homosexual. That statement doesn't say he did anything, it doesn't go to conduct at all. It is merely a statement of his sexual orientation. The government has produced no other evidence, and there is no other evidence before you about conduct.

Now there has been great emphasis in all of these documents and what you have heard today, that you are here to assess conduct. And we agree with that. And there is no evidence of conduct. What you are going to hear about conduct is the performance of an extremely fine young officer, very highly rated, very highly regarded. You've heard some of that already from Admiral Konetzni.

Now also, the Department of Defense regulation issued by the secretary of Defense gives some guidance to the context of what this is all about. On page 2 of that document" which is Government Exhibit 8, it says that, "It is DOD policy to promote the readiness of the Military Services by maintaining high standards of conduct and performance." Again the emphasis on conduct and performance. It goes on to say that an officer, a commissioned officer in the military services is a pri--I'm paraphrasing here to some extent, is a person in whom the President and the nation have placed special trust and confidence in their patriotism, valor, fidelity, and competence. Those, too, I would submit are very important things to keep in mind here, as well as good order and discipline, morale and unit cohesion. Patriotism, valor, fidelity, competence. Does Paul Thomasson's statement reflect adversely on those very important values? That's a very important thing that the tribune will keep in mind.

The statement, the DOD directive goes on to say that the policy is to "Judge the suitability of persons to service in the Armed Forces on the basis of their conduct and their ability to meet required standards of duty performance and discipline." We will present a great deal of evidence about Paul Thomasson's ability to meet required standards of duty, performance and discipline and about his outstanding conduct. The government has presented nothing about homosexual conduct.

The policy goes on to say that it is the policy of the Department of Defense to "Separate from Military Service those commissioned officers who will not or cannot exercise the responsibility, fidelity, integrity, or competence required of them." One of the things I think the board has to keep in mind as it deliberates in this case is, is there evidence--does the evidence show whether Paul Thomasson is sort of officer who can exercise responsibility, fidelity, integrity and competence? The record will overwhelmingly demonstrate that he has done that to date and there is no reason to think that it will be any different in the future. It is also the policy of the Department of the Defense to separate those officers who are unable to "Maintain those high standards of performance and conduct through appropriate actions." Again, the emphasis on performance and conduct. And what you will hear today about Paul Thomasson's performance and conduct, I hope will lead you to believe that he is a sort of officer who should be retained in the service.

Now we haven't begun our case yet, but you've already heard from Admiral Konetzni that Lieutenant Thomasson is one of the finest lieutenants Admiral Konetzni has known in the Navy and that he is a 4.0 performer and he was a 4.0 performer before the announcement and Admiral Konetzni said he was a 4.0 performer after his announcement. You've also heard Admiral Konetzni say that Lieutenant Thomasson, after initial incident that the Admiral didn't like very much, elected some counseling, after that counseling Lieutenant Thomasson did a fine job of handling the announcement and in dealing with others in the unit. Admiral Konetzni further said that since the announcement he has seen no change in the performance of his branch. You also heard Admiral Konetzni say that Paul Thomasson case is a pristine one. Now in our case you will hear more of the same that you've heard from Admiral Konetzni, and you will hear it used in stronger terms and in greater detail. I'm not going to give much of a preview of what our witnesses will say, what the record will say because I want to let them speak for themselves.

At this point I only want to outline our evidence and give you a road map of where were going. First my colleague, Mr. Moore, will introduce our documentary evidence. Our exhibits include a full presentation of Lieutenant Thomasson's service record. The government's submission omits some of the things that we think should be before you. And our documentary evidence will also include 12 declarations from individuals who served with Lieutenant Thomasson attesting to the fact that they want to continue serving with him despite his statement that he is a homosexual. Then we will present three live witnesses, Commander George Hill, Lieutenant James Eisenzimmer and Petty Officer Jack Trumbull. These live witnesses will present further evidence to you of Lieutenant Thomasson's capabilities, his performance and his ability to continue to serve in the United States Navy. Finally Lieutenant Thomasson will present a statement.

Members of the Board, the Respondent, Lieutenant Thomasson, respectfully requests only two things from this board. First, your close attention to the evidence which I know we will get. And second, your honest judgment, under the appropriate directives and regulations whether this man can continue to serve as an effective and professional officer in the United States Navy. Thank you.

CC (MR. MOORE]: Mr. President, members of the board at this point we would like to present documentary evidence that supports our case for retention of Lieutenant Thomasson. Much as Lieutenant Dutton did, with your indulgence, I'd like to briefly explain each exhibit and the reason for the submission. I'll try to be very efficient in this process but I think that you will find that the guidance that goes along with the introduction of these exhibits will help you as you consider these exhibits later on. We have divided our exhibits into three binders. We have a set of originals, which we've provided to the court reporter for the record and to the recorder.

REC: Excuse me, but I have to interrupt to object at this point. I just don't want the members to be given the exhibits and to consider them before they have been reviewed by the government and the government has had an opportunity to enter any objections that the government might have. At this point since we are also receiving them today for the first time we don't know whether we have any objections and in order to preserve the integrity of the board I would rather that they didn't see them at this time.

CC [MR. MOORE]: I think we can grasp--handle that if Lieutenant Dutton is willing. The first exhibit that I would offer for introduction is the table of contents for the entire set and with Lieutenant's permission and if the recorder finds that appropriate, perhaps the board could have just the table of contents in front of them. The recorder could have the entire original set

and we could proceed along those lines ----

LA: Just to correct the term, I'm not the recorder, he's the recorder [pointing towards Lieutenant Dutton]. I'm the legal advisor. Do you have an extra set?

CC [MR. MOORE]: We have the original set for you, sir. This should be the original set for the recorder [retrieving set from court-reporter and hands to legal advisor]. This is volume one and this will be two. There is a full table of contents in front of each binder.

LA: Okay. I see. I think I see where the government is coming from in regards to their objection in serving the package on the board at this point in time. Your proposal was to ----

CC [MR. MOORE]: My proposal is to use the table of contents, sir as by way of proffer and then to describe each item before its actually presented into evidence.

REC: I think I have to object to that, actually. I think in order to preserve the integrity of the board, I think we need to go through each document without the presence of the members. It is the legal advisors job to make the recommendations--I should say to make the rulings--as to the evidentiary matters and in order to, as I said, to protect the integrity of the board and the information that it considers. I would suggest that we go through, I guess I'm anticipating a little bit about what Mr. Moore wants to do, go through the list of documents not in the presence of the members so that we can consider the information and the evidence without their presence.

CC (MR. LYNCH]: I'm sorry sir, was it Mr. Moore or Mr. Morris?

LA: Yes, Mr. Moore.

CC (MR. LYNCH]: Mr. Moore.

LA: Did you have a comment or something----

CC (MR. MOORE]: Well, I would just suggest that it could be just like any other administrative or judicial proceeding, we make a proffer of the evidence, if that particular exhibit is not accepted, the board knows nothing other than essentially the name of the exhibit and obviously wouldn't be able to consider it. But we would just proceed in that fashion.

REC: The proffers, typically in the military courts, are outside of the members' hearing. I would prefer to do it that way in order to protect the integrity of the ----

LA: I understand your point, although I'm not sure that in an ADMIN board of this nature we have ----

REC: Certainly.

LA: The lee-way to handle it in this manner. I don't know that we have any kind of authority to conduct a hearing on the record outside the presence of the Board.

REC: Well ----

LA: Educate me on that. And if so then--cause I understand your concern.

REC: Well first my concern is that we present proper evidence in front of the members. For all I know, it may all be proper. But I don't know that at this point.

LA: Perhaps it would be better if we gave you a few minutes to look through the evidence and then go back on the record. Barring some provision that would allow me as Legal Advisor to hold hearing of the Board in the absence of the members and I would not do that.

REC: Well I have two comments. First, the hearing need not be on the record, if we're just simply going to look at the evidence and determine what would be objectionable to the government and what would not, it need not be on the record. Secondly, if that is unacceptable then I would suggest that we take a recess and allow the government to review the evidence for a reasonable period of time and then to reconvene the Board.

CC (MR. MOORE]: Major, just two quick responses. The first is that obviously it's important to us that if any particular item of evidence would be excluded that the proffer of it and the reasons for its exclusion be on the record. If the Board thinks that it would be appropriate and the Legal Advisor thinks its appropriate at this time, perhaps we can just proceed with the testimonial portion of our case and come back to this issue so as not to delay the proceedings.

LA: That might be a good idea. Regardless of whether we argue out of the hearing of the Board members as to what's going to be admitted and what's not going to be admitted off the record, and I tell you, obviously I'm going to make a decision at some point or another and I'm going to tell you what that is and I can tell you that on the record and off the record and it's not going to change. In any case if there is anything in these three binders that's not going to go in front of the members, then I would have to say that on the record and give at least a preliminary explanation of why on the record that that was not going to go into, or go in front of the members. So perhaps maybe that might give you some time to look over these--briefly some of the documents----

CC (MR. MOORE]: Can we ask in that regard so that we don't waste the time of the Board or of the witnesses that the government conduct whatever review is necessary while we proceed with our witnesses or--what we're being asked for in effect is a continuance of some sort?

LA: Well why don't we--I think for the sake of the people that are waiting to come in, allow you to go ahead and do that. I don't think we can necessarily hold the government to having to review the three binders completely and also pay attention to witnesses. I presume from what you were saying that they're going to be primarily character in nature, character witnesses.

REC: I do anticipate that if we call the witnesses and hear that evidence that there will be a sufficient length of time doing that. Then afterwards we would want to take a break anyway, and that would be acceptable to the government for us to take probably an hour break at that time to review the evidence and then come back.

LA: Why don't we wait and see how long it's going to take, but ----

CC (MR. MOORE]: If we could just note for the record, we do believe that obviously the proffer and the evidence is important to set the context, we're willing to accommodate the government on this position but we would just note our objection to that point for the record.

LA: Well the alternative to that would be to take a break now and to allow them to look over the material and then ----

CC (MR. MOORE]: Given the option between break now or break later we would prefer to take a break later, sir.

LA: Petty Officer, can you retrieve the books from the Board please.

(Bailiff retrieved books from the Board and handed to Legal Advisor.)

REC: Thank you, sir.

CC (MR. CRAIN]: Sir, we call Commander Hill. While Commander Hill is enroute I'll tell you that I am Christopher Crain and I am an attorney from Covington and Burling.

LA: Mr. Crain, do you per chance just have an extra copy of the respondent's exhibit list and I'll start writing as we are listening and possibly make check marks and so on. I don't want to do that on the original. [Mr. Crain hands books to Legal Advisor.]

Commander George C. Hill, U.S. Navy, was called as a witness for the defense, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by the Recorder:

Q. Sir will you state for the record your full name and spell your last name?

A. My name is George Curtis Hill, H-I-L-L.

Q. And your branch of service and rank, sir?

A. Commander, United States Navy.

Q. And where are you stationed?

A. I'm the Director of Force Warfare Aircraft Test Directorate at NAS Patuxent River, Maryland.

REC: Thank you.

Questions by CC (MR. CRAIN]:

Q. Afternoon, Commander. Let me start off by asking whether you know the respondent in this case, Lieutenant Thomasson?

A. I do.

Q. Can you describe how you know Lieutenant Thomasson?

A. In 1987 I was serving as the Assistant Maintenance Officer at Patrol Squadron NINE at NAS Moffett Field, California. LT Thomasson reported to the squadron at that time.

Q. And could you briefly describe your career in the Navy going through each of your duty stations and giving approximate dates?

A. Okay. I enlisted in the Navy in 1968, in May of that year. Then through the delayed entry I went on active duty in September of 1968. My first tour--my first enlisted tour was with VX-4, Point Mugu, California. While there I was selected for the Navy Enlisted Scientific Education Program and was sent to the University of Kansas, where I graduated with distinction in Aerospace Engineering. From there I went to flight school. From there to Patrol Squadron Twenty-Two, NAS Barbers Point, Hawaii. From there to Test Pilot School, where I was a student. I graduated from Test Pilot School in June of 1981. Then I spent a year at what was called the ASW test directorate. I spent a year there as a working level test pilot. At the end of that year I went back to the Test Pilot School where I served for about two years as a instructor in the fixed wing, flight mechanic, and airborne systems curriculum. Following my tour at the test pilot school, I served onboard USS ENTERPRISE as the Communications Officer. From there I went to Patrol Squadron Nine as the--for a department head tour, first as Assistant Maintenance Officer, then as Maintenance Officer, and finally as Executive--Acting Executive Officer for about six months. From there Y@ went to the staff of Patrol Wings Pacific for about three or four months where I served as the Tactics Officer. While I was there I screened for command and I went from there to Patrol Squadron Forty where I served as Executive Officer in the command of VP-40 from May of 1990 to June of 1991. In May of 1991, I transferred from Patrol Squadron Forty-Two to Force Warfare Aircraft Test Directorate where I served for one year as the Chief Test Pilot and then assumed the position I currently hold.

Q. As I understand your testimony, it was while you were with VP-9 that you had interactions with the respondent?

A. That is correct.

Q. Could you describe in a little more detail the occasion which--the time period in which Lieutenant Thomasson was under your supervision?

A. When Lieutenant Thomasson reported, he was assigned as the Airframes Branch Officer, a branch within the maintenance department. As the Assistant Maintenance Officer at that time I was responsible for administrative functions of the department and for training, development, things like that. And in that position I interacted with Lieutenant Thomasson probably at least weekly, sometimes daily in trying to teach him and coach him about the workings of a squadron and his duties and responsibilities as a Branch Officer.

Q. Did you have cause to be employed overseas at the same time with Lieutenant Thomasson?

A. I did.

Q. Can you describe that occasion, as well?

A. I'm not sure exactly where these overlap but my deployments in Patrol Squadron 9 from November of 1986 until May of 1987, so I guess the next one--the time period that overlapped when Lieutenant Thomasson was in the squadron, that was in--from July of 1988 until January of 1989 and during that deployment cycle the squadron was deployed to Diego Garcia, the British Indian Ocean territory.

MBR [CAPT ELLERMAN]: Commander, we're having a little trouble hearing. Is there something that we can do with the mike?

LA: Those mikes are recording mikes, sir, and not amplification mikes. Commander, if we can just ask you to speak up a little louder.

WIT: Yes, sir. I'll speak up.

Q. Then during the time you were overseas in Diego Garcia, can you describe the mission that this squadron was in during that time?

A. The first--well the entire six months of that deployment we had detachments in several places. There was one detachment in Dhahran, Saudi Arabia, another detachment in Okinawa, Japan and the third part of the squadron was physically located in Diego Garcia, and those parts of the detachments--of the two detachments and the main part of the squadron were sort of equal size.

Q. And do you know which detachment Lieutenant Thomasson was involved with?

A. The cycle would be set up so that he would rotate probably through all of those sites.

Q. And do you know what his duties were during the detachment where he was in Dhahran?

A. Specifically?

Q. Generally, the mission that his detachment was under. Was it not under the operation "Earnest Will"?

A. Yes, yes.

Q. Can you describe that for me?

A. I misinterpreted your question. I really wasn't certain as to whether you meant his flying responsibilities or his ground job?

Q. Right -

A. I'm not positive if I remember what his ground job was, probably the Personnel Officer at that time, but I'm not positive that's right. But he--primarily, during the six month deployment the squadron flew a lot and his primary responsibility would be as a flight crew member during that time frame. And his squadron was deployed in operation desert--I mean "Earnest Will." For the majority of that six month deployment we had airplanes airborne over the Persian Gulf 24 hours a day.

Q. And during the time when you were at Moffett and the time when you were at Diego Garcia, did you have an occasion to play a supervisory role, not just on Lieutenant Thomasson's ground job, but also on his flight responsibility?

A. Yes. I served as an instructor pilot within the squadron and I had an occasion, several occasions to fly with Lieutenant Thomasson and to instruct him in that regime.

Q. Can you give us any estimation of the number of times or the amount of hours you logged with Lieutenant Thomasson as his instructor pilot?

A. Just a rough estimate and I would say it was probably more than 5 times but less than 20.

Q. And, I believe you testified that you had been a test pilot instructor and also currently in a leadership position in the squadron that test new aircraft for the Navy. In these roles have you logged a significant amount to time in overseeing young naval aviators?

A. One correction.

Q. Sure.

A. Where I work now is not a squadron. It is a flight test organization, the rest of what you said is correct. It is not a command and therefore I'm not a commanding officer but I am a director of that flight test organization and it is part of my responsibilities to oversee junior officers and their role as test pilots.

Q. Can you give us an estimation over the years how many hours you've logged with young naval aviators as their instructor pilot?

A. Well with my experience I have 4,000, about 4,300 hours and I've flown between 45 and 50 different kinds of airplanes.

0. In basing your experience as a instructor pilot, what level of confidence did you have in Lieutenant Thomasson's ability as a pilot?

A. He's a good pilot. I have every confidence that he can do whatever he is required to do as a pilot.

Q. And during the time period we've talked about when you had-when you were at VP-9, the same time as Lieutenant Thomasson, did you play any role in the preparation of his fitness report?

A. Yes, I did. As the Assistant Maintenance Officer I would have had at least a primary responsibility in the first draft of his fitness reports in that time frame. It would have been reviewed at least two levels before signature, but I was in the initial stages.

Q. The Board has copies of the fitness reports in this time period through the government's exhibits. Rather than just belabor those, let me ask you to, if you could, briefly characterize your view of Lieutenant Thomasson's performance during the time period you played a role as his supervisor?

A. Lieutenant Thomasson is probably one of the--if you ask me to characterize his performance as a lieutenant amongst all the lieutenants that I've known in the Navy, I would rank him amongst the top five, purely in performance of all the lieutenants I've known.

Q. Do you mean top five percentage or top five numerically?

A. I mean top five numerically.

Q. Can you give us an estimation of how many lieutenants you've had a supervisory role over in your career?

A. If you're asking how many have I known well enough that I would have been involved in the qualification process and in the fitness report writing process, hundreds, perhaps thousands.

Q. And that's the set you have in mind when you made the comparison of Lieutenant Thomasson being the top five?

A. It is.

Q. How many men and women were under Lieutenant Thomasson's supervision during the time period you supervised him.

A. As a branch officer he would have been responsible for approximately 20 men and women.

Q. And was Lieutenant Thomasson effective in this position?

A. Very much so.

Q. Can you elaborate?

A. As the Assistant Maintenance Officer I had the opportunity to observe branch officers for all the maintenance departments. I would say that Lieutenant Thomasson was easily the best branch officer of all of them.

Q. Was he capable of commanding the respect of the subordinates who worked underneath him?

A. Yes he was.

Q. Would you describe the manner in which he did that?

A. He had an ability to engender a cohesiveness of the unit and to get the people to feel that he cared about their well being, their professional development, and to focus them on the goals of the squadron.

Q. What was your opinion during this period about Lieutenant Thomasson's potential in the Navy?

A. I thought his potential in the Navy was absolutely unlimited. He struck me as a man who had very diverse interests, extremely strong capabilities across a broad spectrum of things.

Q. Since 1989 what interaction, if any, did you have with Lieutenant Thomasson?

A. We have remained in contact and I talk to him on a regular basis, I would say monthly or so, when I come to town to visit the Naval Air Systems Command, or BUPERS, or one of those kinds of things. If I have some time I stop by to say hello.

0. Have you been able to watch his career since he left VP-9?

A. Yes I have.

Q. Can you tell us when and how you first learned Lieutenant Thomasson is a homosexual?

A. He called me to notify me because we had been friends and he wanted me to know that--he didn't say this specifically, but I assumed that he wanted me to know this kind of proceeding would probably happen.

Q. Do you recall when that took place?

A. Not precisely, but between--within a few days after the letter--he told me about the letter that he had submitted to the admirals and so I know it was right after that had happened.

Q. Can you tell us what your reaction to that revelation was?

A. I was surprised.

Q. Before that time did you have any indication Lieutenant Thomasson was a homosexual?

A. No I did not.

Q. Did your knowledge that Lieutenant Thomasson is a homosexual change your opinion of him as a individual?

A. Not at all.

Q. What's your opinion about his decision to be open about being a homosexual?

A. I'm not sure I understand the question.

Q. Do you have an opinion about his decision to serve openly as a homosexual, about that decision that he made'.

A. It's a very personal decision. I would not choose this for him because I know of the difficulties it will cause. But it is his decision.

Q. Do you think it would have been easier for him to remain quiet in the Navy?

A. Of course.

Q. Do you think his decision to be more open reflected anything about his character?

A. I think that Lieutenant Thomasson is a very principled individual. The interaction with him that I have had throughout my entire acquaintance has led me to understand perhaps in some cases admire the high principles to which he holds himself. I admire his integrity and the way he goes about doing his job. I am not positive that I have answered your question.

Q. I think you have. Let me ask you more generally, during the course of your career in the Navy and your supervisory roles, has it been your responsibility to take any sort of special interest in the development of junior officers?

A. Yes. I think that any commanding officer has a responsibility--he has to take that--part of the job is the professional development of the officers within his command.

Q. Are there specific qualities you look for in a young naval officer?

A. Yes. When I commanded a squadron, a new junior officer checked onboard, I had what I call a welcome aboard interview with that officer and I usually said that--I felt that an officer could go a long way in the Navy if he had four qualities and that he had pretty much equal quantities of those. And those are honesty, integrity, loyalty, and enthusiasm.

Q. In your opinion does Lieutenant Thomasson posses these qualities?

A. In great measure.

Q. Does Lieutenant Thomasson's decision to serve as an openly homosexual service member affect your opinion about whether he holds those qualities?

A. No, it does not.

Q. You've mentioned that there is a large number of Lieutenants that come into your supervision in the course of your naval career. Is there anything special about these lieutenants that separates them from all the lieutenants in the Navy and their background?

A. Well, because of the nature of being an instructor, test pilot school for instance, I think my perspective might be somewhat skewed. The lieutenants that come there in general are the number one or number two lieutenants from their squadron. Very skilled pilots, many have gone on to become astronauts, things like that. So my perspective of aviator skills is, I think, skewed out of the normal regime.

Q. Keeping in mind the qualities of naval officers you described earlier, is it your testimony that you would rank Lieutenant Thomasson high among these large number of lieutenants in terms of possessing those qualities?

A. Yes, I would.

Q. Did you have those----

WIT: Can I elaborate just for a second? I testified that Lieutenant Thomasson is a good pilot and that is true. He is a good pilot. But he is not consumed by the idea of being an aviator first and a naval officer second. Okay. And there is a big difference in my opinion. A truly fine naval officer is a naval officer first and an aviator as a consequence of doing that, not that he hasn't--he has to get his priorities correct and that is why I would say that Lieutenant Thomasson would rank amongst the top five of all those I've known.

Q. Earlier I asked you about Lieutenant Thomasson's ability to serve in a leadership position effectively and you said that he had been, in that correct?

A. I did.

0. In your opinion, does his decision to serve as an open homosexual officer effect his ability to command effectively?

A. I think it affects his ability, but not his capability.

Q. Could you describe what you mean?

A. Yes. I think it affects his ability because his open admission of his sexual orientation will be viewed by those people he must interact with on a daily basis in a prejudicial manner. For instance, I think that there are prejudices amongst all military personnel that set a standard of what an image that they think must be in a naval officer. And in today's Navy I think that will impact his ability, not his capability, but the ability.

Q. In your opinion, can Lieutenant Thomasson overcome these prejudices?

A. I believe that he can, but I will say that I think that that ability that I just described is a problem of the individual, not of Lieutenant Thomasson. If that individual is so ingrained in those prejudices it makes it much more difficult.

Q. Do you think that by coming to know Lieutenant Thomasson as an individual officer rather than the repository of stereotypes, that they are more likely to--he's more likely to overcome their prejudices?

REC: I object to that question. It's speculation. It's just too much to ask for him to ask to testify on behalf of every one Lieutenant Thomasson can come across without being approached.

LA: Well, I'll allow the question because I think inherent in the question itself, it is an opinion on the part of the commander.

WIT: Can I hear the question again?

Q. Sure. I asked whether you think through the course of coming to know Lieutenant Thomasson as an individual officer that will assist him in his ability to overcome the prejudices?

A. Well, I think that it doesn't matter whether it is Lieutenant Thomasson and his sexual orientation or it's any other group that is prejudiced against, that if we in general try to evaluate and assist people based upon the individual and not on some group stereotype, it can not help but to be to the betterment of the Navy.

Q. Commander Hill, during your career have you been faced with the task of choosing officers to go into combat?

A. Yes.

Q. Can you tell us when and where you have done so?

A. In February of 1991 I commanded VP-40 and in the days of Desert Storm, in the early days, we were getting ready to deploy. The squadron was going to deploy to Misawa, Japan but certain elements of the squadron would be detached from the main deployment site in Misawa. And in fact one crew and one airplane left strait from Moffett Field and went to Misawa, Japan where they conducted operations in support of Desert Storm.

Q. And do you know how the crew you selected performed?

A. Yes, sir. I know exactly how they performed. They did extremely well.

Q. Based on that decision making process and your knowledge of Lieutenant Thomasson and knowing that he is now an open homosexual, would you choose Lieutenant Thomasson to go into combat?

A. I would choose Lieutenant Thomasson to do whatever mission I tasked him to do.

0. And that would include going into combat?

A. It would.

0. Could you tell us why?

A. Because my interaction with Lieutenant Thomasson tells me that he understands and appreciates military orders, he understands the requirements and if I told him that he had to do that, he would accept those orders and he would carry out my orders to the best of his ability.

Q. And is your level of trust in Lieutenant Thomasson's ability undermined by your knowledge that he is a homosexual or that he is serving as a open homosexual?

A. No it is not.

Q. Let me ask you a question about the Navy's policy toward homosexuals as it applies to Lieutenant Thomasson. If you were Lieutenant Thomasson's commanding officer and you received a letter wherein he stated "I'm gay," would you have processed him for a Board of Inquiry?

REC: Objection. It's calling for the witness to, first of all, make statements about the Navy's policy that the witness is not qualified to make. He's not an expert on the Navy's policy and in addition the regulations require him to do that as a commanding officer. The underlying, the basis of the objection is relevancy.

LA: Mr. Moore what is the relevance of ----

CC (MR. CRAIN]: Mr. Crain.

LA: I'm sorry. Mr. Crain what is the relevance of what the commander might think the lieutenant might have done in these circumstances?

CC (MR. CRAIN]: I'm really setting--asking him whether he would have interpreted the letter Lieutenant Thomasson sent or a statement Lieutenant Thomasson is gay is necessarily requiring processing. I'm happy to move on if you think ----

LA: Yes, I think we should. The fact of the matter is that the letter was not presented to the commander and those who received the letter did process the lieutenant.

Q. Let me ask you Commander, have you always felt that an openly homosexual service member like Lieutenant Thomasson could serve effectively in the Navy?

REC: Objection again. Relevance to the findings of the Board. His opinion as to whether or not someone could serve in the Navy openly as a homosexual is not relevant to the findings that this Board has to make. Particularly, that Lieutenant Thomasson, in light of his statements must be considered in light of the law.

CC [MR. CRAIN]: I'm not asking him to apply the policy. He said that he believes Lieutenant Thomasson can service effectively, I'm asking if he has always felt this way.

REC: Actually that wasn't the question. But I would again object to relevance as to any determination that the Board needs to make of it.

LA: The question was whether he has always felt that those who openly admit to being homosexuals could serve effectively.

CC (MR. CRAIN]: He stated that in this case he believes Lieutenant Thomasson can, wondering whether he is broadly of that viewpoint for a long time.

REC: And my objection is that it is not relevant.

LA: I have trouble with the relevancy of the background of that. It's for this Board to determine the appropriateness of further service for this respondent.

CC (MR. CRAIN]: If I rephrase the question, "Would he have always felt Lieutenant Thomasson could serve effectively in the Navy as a homosexual service member." Would you allow the question?

-

REC: Sir, he's testified as to the glowing performance and conduct of Lieutenant Thomasson, I think the point is made. Any further stretches into the realm of his opinions and policies and changes of his opinions in light of the policies, is not relevant to determine ----

CC (MR. CRAIN]: Sir, the rules of evidence ----

REC: relevancy.

CC (MR. CRAIN]: Sir, the rules of evidence are relaxed here

and I don't think that ----

LA: They are indeed and

REC: Except sir, relevance and competent, those are not. The

information presented to the Board must be relevant.

LA: That's true. But I think we're giving some leeway and I suspect if the respondent's counsel does not already know it, we're not going to try the policies of the Department of Defense and Department of the Navy here. But as a question that relates directly to the respondent, I'll allow some leeway with that.

CC (MR. CRAIN]: Thank you. Do you recall the question?

A. I think so. I tried, perhaps I'll try to avoid this a

little bit, but I'll try to get to the point. Always avoid, always.

Never say never. You asked, have I always felt--have I always held

the same feelings that I do now. And the answer to that is, no.

Because I've recognized that my upbringing and--about a great number of things, not only sexual orientation and homosexuals in the military. Those things have changed with my maturation I guess I would say. There was a time in my past that I would say, I felt like that the image of the naval officer was totally at odds with what the image of my mind of what a homosexual would be. Part of that maturation process of me personally I think has come to accept that those images may have been stereotypes and that I should be more open in my thought process.

Q. Finally, Commander, let me ask you is there anything about Lieutenant Thomasson that you would like to tell the Board that I haven't already told them?

A. I don't think so.

CC [MR. CRAIN]: Thank you for your time. That's all I have.

CROSS-EXAMINATION

Questions by the Recorder:

Q. Sir, I would like you to describe if you would the conditions of billeting under which individuals in VP squadrons that you and Lieutenant Thomasson served in while deployed oversees, if you would?

A. Billeting at Diego Garcia is a BOQ, a Bachelor Officer Quarters.

Q. What about in Kadena?

A. Kadena is the same.

Q. And ----

A. I'm not sure I understand what depth you want the answer.

Q. Initially you've gotten it right. Is there any way you can give a general description of the BOQ set-up?

A. Sure. For senior officers or probably lieutenant commanders it would be one man to a room, possibly with a shared head facility. For junior officers, more than likely it would be two men to a room, possible with a shared head facility.

Q. You mentioned among the line of duty stations that you had been assigned to, that one of them was the ENTERPRISE. You did a sea tour on the ENTERPRISE as the Communications Officer I believe you said. Can you describe the billeting conditions on the ENTERPRISE for similar officers?

A. I served as a department head. Department heads had a one man state room, but junior officers were, in many cases, six or eight in a bunk room with a common head.

Q. You mentioned that Lieutenant Thomasson was number five numerically of all of the people that you--of all of the lieutenants that you've had the occasion to evaluate. And I wonder if you could say exactly what period of time you were looking at for that evaluation and how long a period of time?

A. First of all, can I make a correction here?

Q. Sure.

A. You said number five, I don't think, if I said that I

didn't mean to say that ----

Q. I think what you said was top five.

A. In the top five. I haven't really thought about that hard enough to say he's the best or number five, but he's in there, in the top five and I consider that from the time I was a Lieutenant until now.

Q. The time I mean that you were able to observe Lieutenant Thomasson, was that recently or in the past, what are we talking about?

A. Well, I observed closely his performance only in the time frame he and I both served in VP-9 together, which would be from November of 87 until when I left the squadron in January of 89.

Q. So a little over five years ago I take it?

A. Yes.

Q. That's the last that you were able to observe him and then you said that you maintained regular contact with him, how frequently?

A. When I was the XO and then CO of VP-40, both squadrons were in the same hangar. I would say I saw him weekly or monthly because of that.

Q. And you still maintain that relationship, friendship?

A. Yes. I saw him socially.

Q. You mentioned that you, when asked whether or not you would have advised Lieutenant Thomasson to make these statements of his homosexuality that he did, you said, if I got it correct, that you would not have advised him to take this course. Why not?

A. I don't think I said that. If I did I didn't mean to.

Q. Perhaps you can clarify?

A. I think what I said was I would not choose for him to be gay -

Q. Why not.

A. By the same reasons that I would not choose for my wife to be left-handed. That may seem a little bit candid, but ----

Q. I really like just whatever your answer is, I'd like to know.

A. Okay. It's a right-handed world in general, it's harder for a person who is left-handed. In general I would say that it's an acknowledged fact that there are homosexuals in the--in society, but it is difficult, more difficult for them than it is for people who do not openly confess to be homosexual. Because of that increase and degree of difficulty if you will, I would not choose for Lieutenant Thomasson to be gay. But I accept the fact that he says he is.

Q. You mentioned at the time that you got to know Lieutenant Thomasson, the time that you observed him as a pilot, you got the impression that he had other aspirations, am I correct or he was not simply focused on piloting but had aspirations. What other sorts of ambition was it that you saw in him?

A. Your characterization is correct. Not that he had other aspirations but that he was not solely focused on being a pilot. He also was interested in music, he was interested in computers, he was interested in being a professional naval officer, not just in the idea of being a pilot to polish his professional skills as an aviator.

Q. You mentioned that he was a strong branch officer, that he had a real ability to bring people together but you stated also that as a homosexual you felt that he would have a difficult time bringing people together. Is that your understanding of Lieutenant Thomasson as he stands before you now in the Navy?

A. I think he would have more difficulty in bringing the cohesiveness that I described now that he has admitted--that he has openly admitted being a homosexual.

Q. Because of the prejudices of others?

A. That's what I said.

Q. Because that would case disruption?

A. Yes.

REC: Nothing else, sir.

REDIRECT EXAMINATION

Questions by CC [MR. CRAIN]:

Q. Just a couple of questions commander. First, Lieutenant Dutton asked you to describe some living conditions. Can you say generally whether you have personally had objections living in those quarters with Lieutenant Thomasson?

A. Personally?

Q. Yes.

A. No I wouldn't.

Q. And secondly, you said that there would be some unit cohesiveness problems because Lieutenant Thomasson has been open about being gay. Is that correct?

A. I think it would be harder for Lieutenant Thomasson to

foster unit cohesiveness. I don't say that there absolutely would be unit cohesiveness problems.

Q. Do you think he would be successful in over coming such cohesion problems?

A. I think so. I say that because my interaction with Lieutenant Thomasson and his personality and his ability, his personal capability to get people to understand him as a person not as any particular type thing.

CC [MR. CRAIN]: That's all I have. Thank You.

CC [MR. MOORE]: Mr. President, at this point we would like to call Lieutenant James Eisenzimmer.

LA: Wait a minute. Hold on. Does any members of the Board have a question?

MBR (CAPT ELLERMAN]: No questions.

LA: That's it. Thank you very much.

WIT: Thank you.

(The witness withdrew from the courtroom.]

MBR (CAPT ELLERMAN]: The board would like to take a 10 minute recess. We will be back at a quarter after.

The Board recessed at 1410 hours, 23 May 1994.

The Board was called to order at 1422 hours, 23 May 1994.

CC [MR. MOORE]: At this point, for the present, I would like

to call Lieutenant James Eisenzimmer.

Lieutenant James C. Eisenzimmer, U.S. Navy, was called as a witness for the defense, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by the Recorder:

Q. Could you state for the record your full name, please and spell your last name?

A. It's James Cleveland Eisenzimmer, E-I-S-E-N-Z-I-M-M-E-R.

Q. What is your rank and branch of service?

A. Lieutenant, United States Navy.

Q. What is your duty station, please?

A. It's BUPERS, Washington, D.C.

Q. And your code?

LA: Lieutenant, I need you to speak up considerably louder.

A. I'm sorry. BUPERS, PERS 5-1.

REC: Thank you.

Questions by CC [MR. MOORE]:

Q. Good Afternoon Lieutenant Eisenzimmer. Thank you for being patient. I know you've had a long wait. I was just going to reemphasize what the Major said, we've had a little trouble hearing some things today so if you could speak up clearly. Can you begin Lieutenant by just explaining briefly, especially for those of us who are less familiar with these terms than we should be, what exactly PERS 5 is?

A. The Bureau of Naval Personnel.

Q. And what role does PERS 5 play in the overall United States Navy?

A. Manpower analyst and billet writers.

Q. And what are your duties and responsibilities?

A. Well I'm the ADMIN Officer for PERS 5-1, which is a subdivision for Lieutenant Thomasson's office.

Q. And what do your responsibilities there entail?

A. As the ADMIN officer, also I do a little bit of managing billets through you know our billet file, but mostly I'm just basic ADMIN Officer to make sure FITREPS, EVALS are done on time, doing memorandums for my boss which is fed up to Lieutenant Thomasson's boss.

Q. And, sir, when did you first join the United states Navy?

A. January 1978.

Q. And have you served continuously since then?

A. Yes, sir.

Q. So it's been approximately 16 years.

A. Right.

Q. And at the time that you joined in 1978, was that in the enlisted ranks?

A. Correct.

Q. And sir, when were you commissioned as an officer?

A. April of 1988.

Q. Can you briefly describe for us your career in the Navy, touching upon each of your duty stations along the way?

A. Okay. I enlisted in the delayed entry program in January '78. I eventually went to boot camp in San Diego, September 178. After there, I went to AW "A" school in Memphis, Tennessee, November of 178. Left there around March of 179, went to Pensacola, Florida for aircrew training, left there May of 179. Went to SERE School in survival, evasions and escape, stayed there for a couple of weeks and then eventually went to VP-31, Moffett Field, California. In June of 179, reported to Patrol Squadron Forty right there in Moffett Field September of 179. Did a little over three years--3 1/2 years in that outfit, then I left VP-40, which is Patrol Squadron Forty, in February of 183 and reported to the ASW Operation Center in Rota, Spain. I actually had a school in between there, so I reported there in July of 183 and left there in July of 186.

LA: Could you speak up, just a little louder, I'm sorry.

A. I was in Spain from '83 to '86, three years, July of '83 to July 186, and reported to the USS CARL VINCENT in Alameda, California in July of 186, and departed there for navigation Officer Candidate School in January of '88. After I got my commission I started flight training right there in Pensacola, departing there for intermediate navigation training in October of 188, which was in Sacramento, California and left Sacramento California in March of 189 back to Moffett Field for a tour of VP-31 for additional training, and finally reported to VP-40 in November of 189. Left VP-40 in October of 192 and reported here to BUPERS. That's where I've been every since.

Q. That's where you've been ever since? Do you know Lieutenant Paul Thomasson, the respondent?

A. Yes, I do.

Q. And can you take us back in time to when you first heard about Lieutenant Thomasson before you actually met him?

A. I first knew of him or heard of him in his work probably early 199.0, maybe April, somewhere in that time frame.

Q. And where were you at that time?

A. I was at Patrol Squadron Forty. I was an ensign there.

Q. So this is at Moffett Field?

A. Correct.

Q. And what were the circumstances under which you first heard of Lieutenant Thomasson?

A. Well, at the time I was working my squadron's tactics department. I believe at the time Lieutenant Thomasson was working-either working with his tactics department or working in his tactics department. At that time we were working on an annual competition, it is called the Tactics Bowl.

Q. I'm sorry, the tac... ?

A. The Tactics Bowl. It's a--kind of like a tactics round table kind of thing, where you put in a submission in the wing. He grades them and he deems a winner out of this competition.

Q. So you were in VP-40 at this time?

A. Correct.

Q. And Lieutenant Thomasson was in----

A. VP-9.

Q. VP-9.

A. Right -

Q. And were your--was VP-9 and VP-40--were they competitors in the Tactics Bowl?

A. Correct

Q. So did you come into contact with at least Lieutenant Thomasson's name ----

A. My boss in the tactics office came in contact with Lieutenant Thomasson during the Tactics Bowl competition. That's how I heard his name, you know, through my boss.

Q. And what did you hear, if you can give us a little more detail. What did you hear about Lieutenant Thomasson when you first heard of him?

A. Well, just from what I hear, evidently he had made an impression on my boss of what a sharp guy he was and how he had all these--I know distinctively they had a better computer system than we did. I think that was in large part due to Lieutenant Thomasson and I think we asked if we could use their printer and stuff to print out our Tactics Bowl and my boss' impression of Lieutenant Thomasson was he was pretty much the honcho for the whole thing, you know. And he was running this Tactics Bowl input. And--so--and also I knew Lieutenant Thomasson worked with the wing during post deployment presentations and stuff like that, giving the rest of the wing run downs on how their squadron did on deployment and stuff like that so he pretty much established himself as a tactics guru or tactics professional at Moffett Field.

Q. So did you understand Lieutenant Thomasson to play a lead role with his group, with his squadron in the past?

A. Yes.

O. Is it fair to say from your standing that Mr. Thomasson had a reputation in Moffett Field.

A. Yes.

Q. And what was that reputation?

A. Well, he was definitely the front-runner in his squadron, because the wing commander, I mean knew Lieutenant Thomasson's work. Matter of fact, he was--at that time it was Commodore Hefkin, he used to call Lieutenant Thomasson "Spuds." And you don't get that kind of rapport with a wing commander unless you're a professional,

I mean unless you've done some great things for the wing. As a matter of fact his squadron won the Tactics Bowl that year.

Q. How did your squadron do?

A. Had them in a close second.

Q. Did you have a similar-role of responsibility for your squadron as Lieutenant Thomasson had for his?

A. I would like to think I did. If I was that good then that's good enough for me.

Q. After the Tactics Bowl, after your service at Moffett, and your at least hearing of Lieutenant Thomasson, when was the first time that you met Lieutenant Thomasson?

A. I mean I had seen him at these presentations he would give to the wing. I mean the whole squadron--all squadrons would get together and send over a group and he would give a post deployment presentation on how their deployment went and significant things they'd done, so I didn't actually meet him. I just saw him. I didn't actually get to meet him until I came here, October of 1992 when I checked into BUPERS.

Q. Okay. Before asking you about that I just want to ask you one more question about while you were at Moffett. Was it common for a lieutenant in Lieutenant Thomasson's position to have a reputation of the sort that he had in Moffett.

A. No. No usually lieutenant commanders and commanders had that kind of rapport. I mean, for a lieutenant to get that kind of recognition is, it's rare.

Q. So when you came to Washington and first had personal contact with Lieutenant Thomasson, when was that?

A. October of 92.

Q. And what was the circumstances, you actually met him then?

A. Well it was during my check in, when all new officers--when anybody checks into BUPERS, PERS 5, they have to go through the flag officer, the flag lieutenant for check in. Make sure you get your security clearance stuff, your badge and all that and Lieutenant Thomasson was in charge of all that stuff, so, my check in.

Q. And from what you heard about Lieutenant Thomasson in Moffett, when you first actually met him, what was your assertion of what he would be like?

A. I didn't know his personality or any characteristics about his personality, I just knew--I just expected a professional which is what I was confronted with. He is very professional, know everything that there is to know about what he is doing. I didn't get any misconceptions upon first meeting him. It was exactly what I had expected.

Q. So he filled your expectations----

A. Exactly.

Q. How would you describe Lieutenant Thomasson's position at PERS 5 when you first arrived there? What was the nature of his position?

A. He being the flag lieutenant for PERS 5 and the admiral, he's basically pretty responsible for taking care of the admiral, whatever the admiral needs. Usually it's a lot, from drafting up any kind of correspondence that the admiral wishes or even the deputy for that matter, the deputy being the captain that works directly with the admiral. Taking in all correspondence that comes in from outside of PERS 5, determining where that goes, what kind of action that is required of PERS 5. For the most part initiating the correspondence for those actions items.

Q. You use the terms "Flag Lieutenant," what is a flag lieutenant?

A. Works directly for an admiral. Kind of like an aide but more ADMIN stuff than aide stuff, administrative responsibilities.

Q. Is that a coveted position then?

A. Yes it is.

Q. Very much so?

A. Very much so. Very--it's a tedious screening process to get a position like that.

Q. So your understanding of his position when you arrived was that he had a fair degree of responsibility and was highly regarded to have that position?

A. That's right.

Q. And over time as you've been here have, his duties changed in retrospect?

A. No. Nothing--no I don't think so.

Q. He still a flag lieutenant?

A. He's still the flag lieutenant.

Q. Is there only one flag lieutenant?

A. That's correct.

Q. And it's Lieutenant Thomasson?

A. That's right.

Q. How frequent is your contact with Lieutenant Thomasson now in the ordinary course of your duties?

A. Every day.

Q. Daily?

A. Daily.

Q. And how would you describe the nature of his performance as you've had the daily opportunity to view it?

A. It's top notch. He's always doing the greatest job, I mean there's--I mean I work with or see the work of a lot of good officers and I would rate Paul up there among the best. I mean top half percent of all officers in the Navy. I mean you don't do the things that he does and get the position he has and the thing is Paul and I have worked with a lot of the same people, and--I'm talking like commodores and former CO's and stuff like that and you know they all regard Lieutenant Thomasson as the best.

Q. Lieutenant, are there any particular qualities that just sort of go along with your comments that you had Used in describing Lieutenant Thomasson and his performance?

A. Very intelligent, kind, he always has an analytical demeanor, tedious you might say, things that he thinks about, I don't know he gives that--he finds little extra things that just means a world of difference later on that you would never think about when you're trying to do the same thing. I think that's why he is remembered by some of his peers and superiors, is the things that he thinks about. It's very hard to describe, but--yeah you can go along a be a flag lieutenant and keep the admiral happy and the admiral, if he had any--put it this way, you'd be a flag lieutenant and do the things that made the admiral happy but if you never had a flag lieutenant like Lieutenant Thomasson, the average flag lieutenant wouldn't fair as well. I mean it's the little things that he does. What I'm impressed with the most about Lieutenant Thomasson is we have all this correspondence that comes in every day, you know action items, things that have to get done. He could take that stuff and just address it to the action officer that's in charge of it and forget about it. Where Lieutenant Thomasson would take it and he'd read it and held start with the subject matter, see who's involved with it, see which commands have worked with it and he'll put that in his mind and he'll be very knowledgeable about that and then he will give it to the action officer and he'll brief the action officer as to what's going on with it. I mean, and in that way, later on if the action gets overdue or somebody calls up to the front office asking about that Lieutenant Thomasson will be able to answer every question intelligently just as if he was dealing with the action himself. And that's something that you don't have to do but that's-- I think he takes great pride in being able to do that, being the question and answer man for PERS 5. And that's something way out of his job description.

Q. You used the term so generically in response to some of your questions, "The Admiral," is their one particular admiral that he was the flag lieutenant for, that you mean to refer to?

A. Well, I think Admiral Gunn, which was PERS 5 has probably the most time spent with Lieutenant Thomasson of the admirals that have been there. Since then we've gone through two more admirals.

Q. So has Lieutenant Thomasson been the flag lieutenant for more than one admiral?

A. Yes.

Q. And how many admirals has he been flag lieutenant for?

A. Let's see, well three that I know of, but I think that there may have been one prior to Admiral Gunn. I'm not sure, but it's three since I've been there.

Q. Well now, if you're an admiral wouldn't it be common to bring your own person with you if you know-- as your aide to be flag lieutenant?

REC: Objection. The form of questioning is the basis.

Q. Do you know whether--have you had any prior experience working in or around admirals prior to this?

A. No, sir.

Q. Do you know whether admirals commonly have the ability to select their own flag lieutenant?

A. I don't really know about that.

Q. But your understanding is that he has served with three, at least three admirals.

A. Correct.

Q. And your prior testimony about his performance and his qualities were before those--well you said the admiral, did that apply equally to all three of those admirals?

A. That's correct.

Q. Do you believe that your views of his performance are views that are generally shared throughout PERS 5?

REC: Objection. Speculation and no foundation to show that he has information to provide.

CC (MR. MOORE]: Major, clearly Lieutenant Eisenzimmer works in that setting, it would be ----

LA: Why don't you just lay a little bit more foundation in regards to that.

Q. Okay. Have you had occasion to come into contact with other people in PERS 5 who have had similar contact with Lieutenant Thomasson?

A. On a daily basis.

Q. Sure, on a daily basis.

A. Probably my division director is probably----

Q. You have the most contact with him, do you think?

A. From my division I do.

Q. Okay. But among other people in PERS 5, have you ever heard anybody say anything about Lieutenant Thomasson's general reputation in PERS 5?

A. Not that I recall. I mean--I don't think that I'm sure what ----

Q. Well I'm just trying to find out whether you believe that your views of his performance are unusual within PERS 5 or whether--

A. Absolutely not.

Q. Okay. So you think your views are generally shared at PERS-5?

A. Yes ----

REC: Objection again, leading.

LA: Well, we'll allow that. I don't think we are arguing much about the facts that we got with regards to ----

A. In other words I have not heard anybody say anything derogatory about Lieutenant Thomasson.

Q. Okay. And it's your understanding that all three of these admirals, to the extent that you would have exposure to what their views are, were pleased with his performance?

A. Correct.

Q. When did you first learn that Lieutenant Thomasson was homosexual?

A. I don't have the exact date, but it was the same date that he released his information to all of his coworkers and superiors through a letter. I think probably back in the middle of March this year.

Q. And did Lieutenant Thomasson show you that letter?

A. Yes he did.

Q. And did you know prior to that letter that Lieutenant Thomasson was homosexual?

A. No, sir.

Q. What was your reaction?

A. I was kind of, you know, somewhat surprised. But I don't get excited about too many things. I'm pretty low key. I was surprised, but I had no great reaction to it, or--I really didn't think about it that much after that.

Q. Did you read his letter?

A. Yes I did.

Q. Did it change your view of his abilities?

A. No, sir.

Q. Your views of his performance?

A. No, sir.

Q. Your views of what it would be like or is like to work with him?

A. No, sir.

Q. Do you think his coming out is making a statement and this letter has affected his performance in any way?

A. No, sir.

Q. How would you describe Lieutenant Thomasson's general deportment subsequent to his statement, through the letter?

A. His general character or ----

Q. Well his general demeanor?

A. Well, I'd say Paul, he was always to me very analytical. He never--always felt like maybe he was carrying a great burden or something because he never smiled much, he was always very serious and you know, but it could have been just that it is a big responsibility down there working for a flag like that, so I just thought it was beating the pressure of every day job he was doing.

Q. And that was his demeanor prior to this?

A. Right.

Q. And did that demeanor change in any way after the statement?

A. Not very much, I mean he smiled a little bit more but I still think just because of the letter that it didn't change his outlook on what he was supposed to be doing down there. Nothing really changed that much. I think he released some burden by releasing the information but other than that it didn't change his professionalism at all.

Q. It didn't change his professionalism, did it change his mood, is that ----

A. Yeah, I mean it changed slightly, he got a little bit more light hearted but still that was just during quiet moments when their wasn't that hard--wasn't that much work to be done but still he--still --to me he is still analytical and tedious no matter what.

Q. But the extent that you saw a change in his mood, would you characterize that change as improvement in his mood?

A. Oh yeah. Like I said he was--I think he was able to smile a little bit more, able to, kind of like, take it easy and enjoy a conversation, you know. There was a few more light hearted moments after that than there were before. But like I said it didn't change him as far as his professionalism or his work ability at all.

Q. Do you have a view about his decision to make this statement or write this letter?

A. Not really. Whatever Lieutenant Thomasson does is- to me he will always be a friend and I'll always admire his work, so whatever makes him happy that's fine with me. I don't have any outlook on how it affects the Navy or anything like that.

Q. I've asked you a bunch of questions about your reaction, about his reaction, do you have any sense about reaction of other people in PERS 5?

A. You know it hasn't--surprisingly, it hasn't really been that big of an issue in my perception. It wasn't like a tabloid headline or anything like that. It was just, "Oh gee, Paul's come out." And it was a issue for a couple of days but it wasn't--I don't know. It was kind of surprising how quiet it was actually.

0. People don't act differently around the office?

A. You mean around Lieutenant Thomasson?

Q. Well just in the office in general?

A. Well I can't say there wasn't a few snickers here and there. But like I said, I mean after a day or two it just-you couldn't tell. There was no--it wasn't drug out or anything.

Q. And what about around Lieutenant Thomasson, any change in how people acted around Lieutenant Thomasson?

A. Well, I mean not that I could tell. Lieutenant Thomasson had told me that he thought people were treating him a little bit nicer because of it. But I couldn't tell just from my daily dealings.

Q. Did you ever hear anybody say anything about the fact that Lieutenant Thomasson made this statement, behind his back?

A. What about the statement.

Q. Did--I'm saying did you ever hear any comments behind Lieutenant Thomasson's back about the fact that he made the statement?

A. I think I heard a couple of comments. Nothing really derogatory. I think they were making comments on why he did and stuff like that.

Q. If, as I understand, in your testimony you haven't received a significant difference at PERS 5, I guess my question is, why is that? Why do you think that there hasn't been a significant change in the way things are done and how people feel at PERS 5?

REC: I have to object to the question as speculation. He's asking if he was to get into the minds of other people and that's just not appropriate.

CC (MR. MOORE]: I guess the relaxed rules of evidence, sir, are considerably less relax than we think they are. But I----

LA: I'll allow the question that the witness hasn't answered.

REC: Sir, again I point out that relevance and competence are the two that do specifically apply. The competence of this witness to make--to answer the question is questionable, and certainly hasn't been shown on foundation. But even if the foundation is attempted to be laid, he's calling for speculation and that's an issue of competency.

CC [MR. MOORE]: Sir, the entire basis for this policy as set forth in the new guidelines is unit cohesion. That's relevance. And as for competence, Lieutenant Eisenzimmer has already testified that perhaps no one has more regular daily contact with Lieutenant Thomasson than he does ----

LA: Like I said I'll allow the question.

Q. Do you recall the question or shall I----

A. Yeah--see Lieutenant Thomasson is from my viewpoint he is the hub of activity for PERS 5. And even though people don't go up there on a daily basis, whenever they need something or whenever they--being in the nature and position he's in--a lot of times people need things. They need charts. They need this, they need that, and they always go to Lieutenant Thomasson and they can get that stuff from maybe what they don't envision. Because they know Lieutenant Thomasson does, you know quality work with that kind of stuff and that has not changed. They still go to him for everything for stuff like that, presentations; his expertise on correspondence; his expertise on manpower for that matters. They still go to him, they don't have to, but they do, because they know that he's going to do--give them the quality product and that hasn't changed.

Q. Delayed foundation for my next question. Is it fair to say that you have served in variety of capacities since you've first joined the Navy?

A. Yes.

Q. On the basis of your experience in a variety of capacities that you've served in and the different places you've served in, do you think that Lieutenant Thomasson, if allowed to continue to serve, will encounter some sailors--some service members who are uncomfortable serving along side him or taking orders from him?

A. I'm sure there are going to be some.

Q. What do you think that he can expect from both his juniors and his seniors in that regard?

A. Well, I mean if you got a junior that can see past--you know other than just pure prejudice, if you got juniors who can see just--past your own prejudices, it will not be hard for Lieutenant Thomasson to earn their respect as a leader.

Q. In your experience, are there juniors like that in the United States Navy?

A. Yes. Yes, there are.

Q. A lot of juniors like that in the United States Navy?

A. No, not today's Navy. I think--when I first came in, you know late 70's early 80's, there was probably a lot of juniors like that. But just from my own personal observations, things have changed quite a bit since then. So, there is probably, there is still going to be a few.

Q. Okay. And so, just so that I'm straight, there were more people earlier on who were what, more or less tolerant?

A. Less tolerant.

Q. Less tolerant earlier on and it's changing over time in favor of him?

A. Yes.

Q. So you--do you think that--in connection with that trend, do you see that trend continuing?

A. Well, it's hard to say. The Navy policy right now doesn't-I mean--the Navy has not done anything to--I don't know where they're going to stand on their policy in years to come. But I think with their policies on equal rights and women in the Navy and stuff, who's to say? I'd rather not get into that, as far as policy and stuff.

Q. Well, I don't want to ask you about the policy as much as just your experience with fellow service members.

A. Well, can I say this. Lieutenant Thomasson will never do anything to disrespect the Navy uniform. I don't--you know as far as homosexuals in general, I just know Lieutenant Thomasson would never do anything to bring disrespect on himself and therefor would never give a junior an opportunity to dislike him because of his status. He would never do that. So you know, in his case, I have no doubt that he would gain respect in the juniors.

Q. So viewing it from the standpoint of the qualities of Lieutenant Thomasson, do you believe that he could overcome.

A. Right.

Q. Lieutenant, you're prior enlisted, are you not, sir?

A. Right.

Q. Would you have any reservations serving with Lieutenant Thomasson as an enlisted today?

A. No.

Q. Is that because you know him?

A. Well that's--well, yeah, in great part, it's because I know him. But when I was an enlisted guy I mean--as long as I could get whoever I was working for--you know--I--even though then there was you know--I didn't really confront any situations like this. All I required was supervisor or leader was to be fair and show us, lead us to the right way and give us things to do in all this stuff and that's all I required of a supervisor. As long as he was a good leader and could judge me fairly in my work performance, that was all I required. Really.

Q. My next question for you sir, is there anything else that you think the Board should know about Lieutenant Thomasson or his qualities as an officer?

A. No. I just--I don't see how--if you aren't a great officer, you couldn't get to Lieutenant Thomasson's position. There's just no way. You don't--the guy demanded respect at Moffett Field, you know, and to make a little stab at pilots, pilots don't usually--I mean, yeah, they fly a plane, but usually when it comes to thinking about tactics and doing all other things in the squadron they usually don't care if it ain't flying a plane. And Lieutenant Thomasson went beyond that. I mean he was well respected for his tactics, he would probably beat a lot of my naval flight officer contemporaries in tactics and other things like that, so he's a very rare guy. I just think that it would be an injustice to see him depart the Navy because of something like this.

CC [MR. MOORE]: That's all I have.

CROSS-EXAMINATION

Questions by the Recorder:

Q. Lieutenant Eisenzimmer, you talked about being stationed together out at Moffett Field, have you ever deployed with Lieutenant Thomasson?

A. No, I haven't.

Q. Have you ever been in the same squadron as Lieutenant Thomasson?

A. No, I haven't.

Q. You said that you're friends and you spend a fair amount of time together at work, does that include work functions, outside of the office?

A. Yeah, a few.

Q. Do you spend any other time with Lieutenant Thomasson other than at the office or at work functions.

A. There was a couple of occasions; where we were doing projects--what were they--I think one was a retirement ceremony. The other one was--I can't--we--every now and then we have retirements, and hail and fair wells, and stuff like that ----

Q. So you've know Lieutenant Thomasson for about four years I think you said, a little over four years.

A. Personally I've know him since October 92.

Q. I see. I think you said you've known of him since maybe it was----

A. Well yeah, I've know of him, but I didn't get to know him until ----

Q. Until about two and a half years, I guess it would be, is that right?

A. Actually, it would probably be about a year and a half.

Q. Year and a half, there you go. So during that time you've pretty much got to know him as a friend at work?

A. Yeah.

Q. Is that about it?

A. Well, I've been to his residence and stuff, you know-just not a lot of great social activities. I'm a married man with a child. I don't get out too much.

Q. You said that Lieutenant Thomasson would never do anything to disrespect the Navy uniform, I think is how you put it.

A. Right.

Q. Have you seen the pink triangle stickers on his car?

A. Yes.

Q. What are they about?

A. It's a homosexual--I mean that's his--I guess he's showing his sexuality on his car.

Q. Where is the car parked normally?

A. On the base.

0. Where?

A. Well--I mean--right there inside the compound in the parking lot.

Q. Inside the gate?

A. Right.

Q. Are you aware that he gives rides to the admirals various places in that car?

A. Yes, I think so.

Q. In uniform?

A. Yes.

Q. Okay. You mentioned that he had released a great burden when he talked about or came out as--I guess you could call it, as a homosexual, but that you also consider him a very professional officer. I'd ask you do you consider yourself to be a professional officer?

A. Yes.

Q. Do you also find that you mentioned that you are married and have a child--do you also find that you have some burdens as an officer?

A. Oh yeah, certainly.

0. When you feel the need to release those burdens, do you

write a letter addressed and forwarded to an admiral?

A. No.

REC: Okay. I have no further questions.

REDIRECT EXAMINATION

Questions by CC [MR. MOORE]:

Q. Lieutenant, I just have one question for you. Do you think that you have burdens that are comparable to the burden that you feel Lieutenant Thomasson has relieved through his statement?

A. No.

CC [MR. MOORE]: That's all I have.

REC: No questions. No, thank you, sir.

LA: Members of the Board?

EXAMINATION BY THE BOARD

Questions by MBR (CAPT Ellerman):

Q. You talked about THE Lieutenant and how he released his information to his co-workers. Could you go into that, how you found out what process he put the information out to his co-workers?

A. Well ----

Q. How did you find out?

A. well--he called me in and said "Here, have a seat, I want you to read this," and even though I didn't witness it, I assumed that he released the same information to some of my co-workers the same way.

Q. Okay. And you don't physically work in the same office as Lieutenant Thomasson?

A. No, I'm not there ----

Q. You're just one of the other--how many codes- 50 departments are there? Your 51.

A. I'm 51, there's 52 and 5G and then 120 sir. It's four.

Q. It's four.

A. But the other three do not have ADMIN officers.

Q. Okay.

LA: Either side?

REC: No, sir. Thank you.

LA: Lieutenant, thank you very much.

[The witness withdrew from the courtroom.]

CC [MR. CRAIN]: I'd like to call Petty Officer Jack Trumbull.

Yeoman Third Class Jack Trumbull, III, U. S. Navy, was called as a witness for the defense, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by the Recorder:

Q. Would you state your full name for the record and spell your last name?

A. Jack Desales Trumbull the third, Trumbull is T-R-U-M-B-U-L-L.

Q. And what is your rank, rate and branch of service?

A. Petty Officer Third Class, Yeoman in the United States Navy.

Q. And where are you stationed?

A. Bureau of Naval Personnel

Q. What code?

A. PERS 5, Assistant Chief of Naval Personnel for Total Force Programming and Manpower.

REC: Thank you.

Questions by CC (MR. CRAIN]:

Q. Afternoon, Petty Officer. We'll start out by asking whether you know the respondent in this case, Lieutenant Thomasson?

A. Yes, sir.

Q. Okay, before we get into your interaction with Lieutenant Thomasson, why don't you briefly describe to the Board your career in the Navy, touching on each of your duty stations.

A. Well I came into the Navy September of 191. I went to boot camp. After boot camp I went to "A" school and I came back to DC. I'm from D.C. and I came back to the Bureau. This is my first duty station.

Q. We've had some problems before with the witness not speaking loud enough so ----

A. Okay.

Q. And what is--where--what part in the Bureau of Naval Personnel do you work in?

A. The Assistant Chief of Naval Personnel for Total Force Programming and Manpower, PERS 5.

Q. And how do you know Lieutenant Thomasson?

A. He is ----

LA: Petty Officer, you need to speak very loudly and maybe a little bit slower.

WIT: Yes, sir.

A. He has been in my--he's worked in my office for the last two years, at PERS 5.

Q. And what are your duties at PERS-5?

A. I'm the flag yeoman. I do the mail, sort messages, take schedules, appointments. I pass out the admiral's schedule on a daily basis and collect the other admirals in BUPERS and distribute them among our code.

Q. What's your chain of command in PERS 5?

A. Well at the moment it's me, a YN1 flag writer and then Lieutenant Thomasson, Captain Mitchell which is a deputy to the admiral. Or for the better part of the last two years, it's just been me and Lieutenant in the front office and then the captain.

Q. Does Lieutenant Thomasson in your--in that chain of command play a role in the preparation of your evaluation?

A. Yes, sir. Captain Mitchell signs them, but Lieutenant Thomasson does put input into it.

Q. Can you tell us if you feel any pressure to testify today because of the role Lieutenant Thomasson plays in the preparation of your evaluations?

A. No, sir. Not at all.

Q. Do you have any concerns that if Lieutenant Thomasson is unhappy with your testimony today that he might somehow retaliate against you in the preparation of your evaluations?

A. No, sir. I don't believe that my full chain of command would let that happen. When I say full chain of command I mean Captain Mitchell or the admiral, if there was an adverse statement I believe it would have to be explained through them, not just Lieutenant. He doesn't sign, he just puts input.

Q. You mentioned that you worked with Lieutenant Thomasson for about two years. Tell us how frequent your interaction is with him during that time period?

A. On a daily basis, almost all day long. For every day of the last two years.

Q. Are you physically located near him?

A. In the office, yes, sir. Our desks are probably about 20 feet apart, if that, 10 feet probably.

Q. During the two years that you've worked directly with Lieutenant Thomasson, what's your view of his performance in the division?

A. Superb. As soon as he came to our office you could notice the impact right away. He's been a professional. He's done his job to what I think he's done a great job, comparing him to the one ADMIN assistant that I worked for and the other lieutenants that I work with in PERS 5.

Q. Can you tell us why you think he's done a great job?

A. Well, Lieutenant has a pretty good handle on computer stuff and since he has came, our schedule for the admiral has been put on a computer which just makes it much easier for changes rather than going to a book and erasing it. We have implemented a data base in our computer that lets us know everything about all of our PERS 5 individuals which is much easier when it comes time to making a watch bill or supplying people for boards or anything of that matter and also he puts a lot into his job. Never has a lack of energy. He is always ready to do what he's able you know, what he needs to do to get that job done. Whether if he stay late or whatever the case. Whether he helps me out on minimal tasks you know, that officers wouldn't normally do, he's willing to help me out if that what it takes to get that job done.

Q. Do you witness Lieutenant Thomasson in the physical location of the offices dealing with subordinates, peers and seniors?

A. Yes, sir.

Q. Has it been your experience that he effectively commands respect from subordinates?

A. Yes, sir.

Q. Tell us how he accomplishes this.

A. I believe you command respect in the way that you present yourself, your knowledge of your job, and the way that you talk to people and speak to people. And he handles all that well.

Everybody that works with him knows he's intelligent and that's a-everybody knows that, you know, that's a given. He--and he talks to everybody with respect, you know, all the way from the admiral to the most junior guy which happens to be me, an E-4.

Q. Do you have interaction with other officers besides Lieutenant Thomasson?

A. Every one in PERS 5, sir.

Q. And do you have any sense of their reputations in PERS 5, these other officers, within PERS 5?

A. Their reputation, you mean ----

Q. What people think about their performance?

A. Well I--you mean as far as other officers in PERS 5? When they think about their own, I mean ----

Q. Do you have a since of what the general reputation of other officers in PERS 5 is?

A. Yes, sir.

Q. And how do you think Lieutenant Thomasson's reputation would compare to theirs?

A. Definitely one of the better, sir.

Q. Can you tell us how and when you discovered that Lieutenant Thomasson is a homosexual?

A. The same day, I think it was March 2, earlier in the morning, after he spoke to Admiral Konetzni which was our boss at the time, he presented me with I think was the same letter and the flag writer at the time, which was YN2 Petroski, and That's when I became aware of it.

Q. What was your reaction?

A. I was shocked. I mean after you work with a person for two years you get a pretty good--you know--what you think they are, but then again that was just in the office. His personal life and our office life are two different things. They never have intertwined. So, therefore, I really didn't know anything about his home life, but I was still shocked. I didn't think that he would jeopardize his career to say that.

Q. Did you have any indication that he was homosexual before he handed you that letter?

A. Not at all, sir.

Q. I think you mentioned that you are a native of the Washington area?

A. Yes, sir.

Q. Growing up in D.C. and--solely on your military career, what was your opinion about homosexuals generally and about their position in the military?

A. Well, sir, to be honest with you I really didn't think that there was a place for homosexuals in the Navy, because I didn't know a homosexual. I fell a victim to the stereotypes I guess you could say, just like certain races have stereotypes. And I didn't know any better, so I fell a victim. I say a victim because when you limit yourself to knowing somebody then you become a victim. And now that I know Lieutenant Thomasson, once he's told me that he was homosexual, then my opinion of the homosexual label automatically changed. If he can--if he as a homosexual can perform the way he has in the past two years, I don't see any reason any other homosexual couldn't do the same.

Q. When you say you had stereotypes about homosexuals, what kind of stereotypes are you talking about?

A. Well like I say, since I never knew any homosexuals or been around them, I would--you'd hear people saying that they are not honest, that they're only after certain things and that you can't trust their integrity and all that kind of stuff. Which what I have found with Lieutenant Thomasson is that that's not true. Some homosexuals may be like that, but I can't stereotype that--their sexual orientation now, because I know better.

Q. When you say your opinions changed, is that because you've had long discussion with Lieutenant Thomasson about homosexuality ---

A. My opinion--me personally I don't understand homosexuality, I love females. I don't, I have never had any discussion about homosexuality outside of work. As far as his ability to do his job, that's all that concerns me. And his ability to do his job is not hampered because he's a homosexual.

Q. Did you see any change in his performance since he announced that he was homosexual?

A. only that he seems much happier. That's it, his performance has maintained to be top line.

Q. How can you tell that he--he seems happier?

A. He just has an never ending smile it seems.

Q. And has the performance of your office of the division changed at all since he made the announcement?

A. Not really. I think that our performance has always been top notch, so.

0. No changes positive or negative?

A. No, sir.

Q. Any change in the morale of the division?

A. Just in Lieutenant Thomasson. Everything is pretty much going on as usual.

Q. Have you heard any negative discussion about Lieutenant Thomasson when he's not around?

A. No, sir.

Q. Your experience as an enlisted service member in the Navy, do you think--relying on that experience, do you think Lieutenant Thomasson might encounter problems in any respect from a subordinates now that he has announced that he is homosexual?

A. At first maybe, it's always going to be an uphill battle. Once you get to know how Lieutenant Thomasson is and you see how smart he is and how he does his job it should be no problem afterwards. It is always going to be an uphill battle like when blacks first came in and women first came in. The first--the pioneers of it--you know it's always an uphill battle, until they establish themselves.

Q. Anything you would like to tell the Board about Lieutenant Thomasson that you haven't already told them.

A. Just that Lieutenant is a professional, I've learned a lot from him in my two years working with him, I think the Navy has a lot to gain by keeping Lieutenant in--it would be bad--I wouldn't like to see him go. I would like to see the next--he is about to leave PERS 5 no matter what. His PRD is coming up no matter what the outcome of this Board, he's leaving PERS 5. I would like to see Lieutenant Thomasson get the next junior enlisted person like me a chance to learn and excel like I have.

CC [MR. CRAIN]: Alright. Thank you very much.

LA: Lieutenant Dutton, ask the questions?

CROSS-EXAMINATION

Questions by the Recorder:

Q. Well the first question I have for you is what is the general office hours at PERS 5?

A. I get in about 6:30 or a quarter to 7, sir, and depending on workload I usually leave around to 1600.

Q. Is that a typical schedule for most folks there, or is that PERS--BUPERS, or does it vary?

A. Most people put in eight to nine hours, some people come in a little earlier, some a little later.

0. How long exactly have you been in the Navy?

A. Since September of 91, so I guess about 2 1/2 years.

Q. Other than BUPERS, you must have gone to YN "A" school, is that right?

A. Yes, sir.

0. Okay, other than BUPERS and YN "A" school and boot camp?

A. Yes, sir.

Q. Where else did you serve?

A. That's it, sir.

Q. Every been deployed at sea?

A. No, sir.

REC: No further questions.

CC (MR. CRAIN]: I have no further questions.

LA: Members of the Board.

[Negative response from Board members.]

LA: Petty officer, thank you very much.

[The witness withdrew from the courtroom.]

CC (MR. MOORE]: I take it at this point Major, that completes the testimonial portion of our case and we are back to the issue of the documents and if I could just clarify for a moment exactly what our view is on that, I think I said before, that we had presented the originals to the reporter is what I meant, with a "p." The copy of these documents has been provided to the recorder and was , provided this morning. The recorder asked us for a list of our evidence last week and we provided that and what we seek here is essentially the exact same thing that the government has done with it's evidence, which is to walk through each exhibit, present them to the board and then we are given an opportunity at the end to object and we made a few statements and that was that. So, I'm not sure how much time you believe the Board or the--the proceeding without the Board will need to consider the evidence, but our view would be that we ought to be able to just proceed with the regular proffer and move through it efficiently.

REC: Sir, if I may address that, I think that we can address pretty much everything we need to in a half hour or 40 minutes or so if we could take a break at this point. I guess that is up to the Senior Member. If we could take a break at this point, the government I believe can reconvene in a half hour or so and then we won't have to do it--either off the record or, I think we can adequately address any of the questions that they would have at that point.

CC [MR. MOORE]: Let me just say in response to that Lieutenant--Major, that we weren't asked to provide copies of the exhibits last week, we weren't even asked this morning and yet we provided them, so I don't think we have a problem with taking a break. But it's been a long day and I'm not sure that we need an excessive break.

LA: Captain ----

MBR [CAPT ELLERMAN]: I think if we take a break of more than 30 minutes what we are probably going to do is recess until tomorrow.

LA: Well, sir, what I was going to propose is there are several options and how long we stay tonight is for yourself and the panel members ultimately to decide. You can stay here as late, as I understand it everybody has at least contemplated the possibility of being here tomorrow so I suspect we all have that possibility. One way of handling that would be to allow the government right now to take as long as, including overnight to view those matters. I am as I expressed before not comfortable with the idea of having the session with the counsel to rule or argue on admissibility of the evidence. I believe that should be done in the presence of--on the record. On the other hand of course if the government had not had an opportunity to review what you can see is a rather lengthy material, it's not fair to ask them to object or not object until they've had an opportunity to review that.

REC: Major, I think as a compromise we might be able to do this, if we were able to recess for about half an hour, sir, I think the government can adequately prepare whatever objections we intend to bring. I think it would then be possible for us to have at the end of the day, today, all of the evidence in front of the Board, both from the government and from the defense. The Members therefore would have the evening and however much time you'd like to take tomorrow before the Board reconvenes for closing to review the evidence.

LA: That ----

REC: That's what I would propose instead.

MBR [CAPT ELLERMAN]: Let me confer with the other members.

[Captain Ellerman confers with other members.]

MBR [CAPT ELLERMAN]: I think what the Board would like to do is go ahead and let them recess and reconvene in the morning. So now the question is, this morning it convened at 9:00 o'clock. Do we want it to convene earlier tomorrow? Is there any problem convening earlier?

REC: The government stands ready to convene at your convenience, sir.

CC [MR. MOORE]: Can we have a moment?

MBR [CAPT ELLERMAN]: Okay we would like to recess and reconvene tomorrow at 8:30.

LA: Any problem?

CC [MR. MOORE]: If that's the Board's wish.

REC: Very well, sir.

MBR (CAPT ELLERMAN]: One other question, our folders, do we need to take these with us into the deliberation room or leave them here? How do we ----

REC: The courtroom will be secure, sir. You can leave them there if you like.

CR: Major, would you please warn the members to not discuss the case overnight?

[LA warned members and they withdrew from the courtroom.]

The Board recessed at 1520 hours, 23 May 1994.

[The Board was called to order at 0833 hours, 24 May 1994. All persons previously present were once again present. The court reporter was now Ms. Carol Ross, previously sworn.)

MBR [CAPT ELLERMAN]: The Board's back in session.

LA: I believe we were at that stage yesterday where the defense was continuing to offer evidence, and was prepared to offer--I'm not sure how they've been marked. Are they separate exhibits or ----

CC (MR. MOORE]: Major, what we'd like to do is introduce at this point the documentary evidence which we had put off yesterday. What we have is three binders of original exhibits which we would submit to the Recorder, and through the Recorder to the court reporter--excuse me, through the Legal Advisor to the court reporter. And then we have, as I mentioned yesterday, an individual set for each member of the Board to review.

What we would propose to do is submit at this point as our first exhibit the table of contents for the entire set, and use that by way of proffer, and then, much as Lieutenant Dutton did yesterday, go through each item, briefly explain what it is, why it's being submitted, how it relates to the case as a whole, and, if, as we proceed, Lieutenant Dutton has objections, then it would be perfectly appropriate for him to present them at that time.

AREC: Good morning, Major. We don't object to that process. In fact, I think that would probably be the clearest way to handle it. If we could just focus on the table of contents for now, in all fairness, since we had an opportunity to go through our table of contents I suppose certainly the respondent should have that opportunity as well. We would, at that point be interested in registering various objections based on the table of contents alone. We would be amenable to that method of proceeding.

LA: Okay, let's do it that way, then.

CC [MR. MOORE]: Okay, I think what I'd like to do then is introduce as Exhibit TO. If I may, all of our exhibits have been pre-numbered. So as Exhibit TO, we would submit the table of contents for the documentary exhibits on behalf of the respondent. Major, you'll find your version of Exhibit TO in the front of each one of the binders. You may want to just look at the one in the front of the first binder.

LA: Actually, I even have an extra copy.

CC (MR. MOORE]: Let me start by just explaining, if I may, the organization of the binders and of the table of contents, and the numbering system that we've used for our exhibits. First, to distinguish our evidence from the government's evidence, we have used the prefix "T" for Thomasson. So the letter "T" precedes each of the respondent's exhibits.

Next, you'll see from the table of contents that we are presenting five categories of materials. The first category is Navy documents and correspondence. The second category of materials are fact witness declarations. The third category of materials are expert witness declarations. The fourth category of materials are government commissioned reports and studies. And the fifth and final category are the relevant statutes, directives, some of the Navy regulations and related documents.

Each exhibit is numbered in accordance with the category that it fits into. So, for example, just to take an exhibit, Exhibit TlD, would be the fourth exhibit in the first category; T4C would be the third in the fourth category.

Let me begin with the first category and the first exhibit. Exhibit TlA is a set of the complete fitness reports and commendations for Lieutenant Paul Thomasson. We've asked in this case, and are continuing to ask that you judge Lieutenant Thomasson on his professionalism, his record, and his integrity, and there's no better evidence of it than this exhibit. In fact, Lieutenant Dutton, himself, characterized, I think, yesterday Lieutenant Thomasson's record as an enviable service record, and we believe this exhibit shows that. We would submit this for the Board's consideration. I would point out there are several omissions, we believe, from the government's version of Lieutenant Thomasson's record book. Most notably there are letters from General Colin Powell, Chairman of the Joint Chiefs of Staff at the time, and the most recent fitness report for Lieutenant Thomasson, the final fitness report that he received from Admiral Ryan, that is dated February 6, 1994.

Exhibit TlB, the second exhibit that we offer, is the statement that this proceeding is about. It is Lieutenant Thomasson's letter of March 2, 1994, to the four Admirals for whom it has been his honor to serve. This is the single precipitating act for which this proceeding was noticed. Lieutenant Thomasson has not been charged with a membership in a glee club or eating chocolate cake. He's charged with making this statement. It's what this proceeding is focused on, and it's really the key first piece of evidence in addition to the fitness reports that the Board needs to consider.

Before I go on it is important to explain how the rest of our evidence relates to, I think, Lieutenant Thomasson's statement, because there is an immediate critical disagreement between what Exhibit TlB, this letter, is between the parties. All of the rest of our evidence relates to that disagreement and tried to address it and explain it. We maintain, as Mr. Lynch explained in his opening, that this letter is a statement. It is a statement solely about status and not about conduct. It is a statement about personal identity, about who Lieutenant Thomasson is. The Recorder, from his evidence and his opening, is asking you to consider this letter to be conduct in and of itself, presumably because in putting pen to paper or in making the statement "I am gay", Lieutenant Thomasson engaged in some act in some manner. We believe that that argument ignores the common sensible distinction between statements and conduct. And our remaining exhibits, all the rest of them that we will now present, explain why we think that you cannot make the inference of propensity or the inference of conduct that the Recorder is asking you to make. So, first, the Recorder's argument is that the letter itself is conduct----

AREC: Excuse me, I apologize for the interruption, but I think at this point since we're just walking through the exhibits, if we could continue with that and then when we get to a discussion of why any of them may or may not be relevant, I can state now that the government will contend are not relevant, perhaps we can then address the argument. I could probably make it easier, the government will register no objection to the remainder of the Tl documents, aside from the fact that it is cumulative and that we've already presented those documents to the Board. However, we certainly have no objection to presenting the board with an additional copy if the respondent chooses to do that.

Furthermore, we would register no objection to those items listed under T2--well, in fact, all of T2. So those appear to be a variety of declarations by service members for the most part, the occasional civilian, and the government would register no objections to those documents. I don't believe it is necessary to discuss those at this point.

However, once we get to--to the declarations of expert witnesses, etc., we would register objections to those. Perhaps, I may suggest, that we just do that at this point, and that way if the respondent's counsel chooses to discuss why they believe it should be considered, he would be free to do that rather than just identify what they are.

CC (MR. MOORE]: Major, I appreciate the clarification of the government's position, and will try, as much as possible, to go straight to the evidence. I think it is important in moving through some of these to explain the way in which they are relevant to the question of whether we are meeting our burden of rebutting the presumption. And to that extent I will not, certainly, make full characterizations or description of each item, but I think for purposes of a proffer it is necessary to put them in context. There is a considerable amount of paper here. I think the Board might want to make their own notations for those exhibits that are admitted so it can know where it fits into the broader picture of the respondent's case.

LA: I think we can allow you to split the difference. The government was allowed to go through page--well, not page-by-page, but item-by-item in theirs, describing and giving a brief synopsis of relevance. I don't think we need a lengthy relevance argument with regard to each exhibit. The Board, ultimately, will determine how much weight, if any, to give those matters which are, you know, are admitted, especially in light of the government's concession to the first two sections here. I think you can be relatively brief with those, and, obviously, we'll allow a little more discussion for those--those areas where there's a debate.

AREC: I think we'll also, hopefully, help streamline the process a bit by actually registering objections so then the respondent can then respond. At this point, of course, we have made no formal objections. So to argue relevance of a document that hasn't been argued as to irrelevant probably is--takes up a little additional time. We would propose if you'd just identify the documents at this point for the benefit of the members, and then we can get into what the government may think about them.

LA: Well, again ----

CC [MR. MOORE]: I would just ask, I think we can proceed more or less in that fashion. I would just ask that, obviously, we have the same opportunity to the extent that we need to flag items in the record much as the government did yesterday.

LA: That's fine. Go on and carry on, and let's see where we get to.

CC [MR. MOORE]: Moving just--the rest of the documents in category one are the documents that brought us here today and yesterday, in a procedural sense. The only item missing from this is the letter that substituted Captain Young for Captain Whittaker. That we did not receive until yesterday.

The declarations of the fact witnesses, I believe during a colloquy yesterday, the Major characterized these as character witnesses. To some extent that is true, and that's what those declarations are, but I think they're really fact witnesses. These are people who have served with Lieutenant Thomasson and are proud to serve with him, so they do go directly to the facts of the case. They're not just pure character evidence.

LA: Mr. Moore, one more question, the original copy I got did not have statement T2A, the Lieutenant's statement. Is that correct? It's not in here yet?

CC [MR. MOORE]: That was what I was next going to explain. At the end of this proffer and the introduction of our documentary evidence, there will be a statement from Lieutenant Thomasson, which we will then submit in written form into that slot. So at the moment you have the eleven other declaration of fact witnesses. Including, I might point out, the declaration of Rear Admiral Gunn, one of the three Admirals for whom it has been Lieutenant Thomasson's privilege to serve, and I would particularly highlight that one for the Board's consideration.

Moving next to the declarations of the expert witnesses, let me just--I'll just take them one at a time, and perhaps the government, if it feels it necessary to raise its objections as we proceed through them. Dr. Gregory M. Herek is an expert in the field of sexuality and has studied it in great length and testified to it. He has a Ph.D. and is an Associate Research Psychologist at the University of California at Davis. His declaration explains that human sexuality, as far as the research indicates, can be divided into at least four categories, sexual behavior, psychological attraction, psychological identity, and social role or identity. The point of his declaration, what he explains, is that you cannot equate any of these four items, simply by knowing one of them, you cannot infer the rest. That's directly relevant to this case. For example, the fact that an individual identifies himself as homosexual or heterosexual, and I emphasize that----

AREC: Major, again, I apologize for the interruption, but I

think if we can just identify the documents at this point. Clearly the government has comments to make about these documents. We can certainly engage in a discussion of individual documents, raise our objections one at a time, if you choose to do that. But if at this point all we're doing is walking through the table of contents, I would object strenuously to this idea that we're going to argue each document as we go through. We would like to have the opportunity to register our objections to those documents and point out that we don't, in appropriate cases, believe that they are relevant, to not only save time for the members but also to get to the business at hand, which is to consider the facts which have been presented for determination. I appreciate what counsel is trying to do, but on the other hand, we would very much like to object to any argument of these documents prior to our opportunity to discuss whether or not they're admissible.

CC (MR. MOORE]: Major, I think that's a fair point that the Lieutenant Commander makes, and my question, that I would suggest, that the Major might want to ask of the Lieutenant Commander is whether the government intends to object to Exhibit T3A, the declaration of Dr. Herek. If not, I can proceed to the next, and, if so, we can know the nature of the objection, if any. We can then address that objection, perhaps receive a ruling, and move to the next one.

LA: Let's solve what the apparent problem is here. Do we want to argue--do we want to object and argue the documents as we go down -the list or do we want to go completely through the list and then argue objections? I'll leave it up to you. I mean, there's not any set ----

CC (MR. MOORE]: Clearly, our preference would be to go document by document. I think it is much easier for the Board and the Legal Advisor, as well as the parties, to understand what the document means, how it relates to the case, as the objections, if there are any, are being made. I think the Lieutenant Commander's point is a fair one, and really is in a sense our point. We're at a disadvantage here in that we're trying to present our case and the government is telling us that it has objections but not sort of articulating them at this point. And I would, again, suggest that it may be appropriate for the Board or the Legal Advisor to ask Lieutenant Commander if he has an objection to Exhibit T3A, we can deal with that, and then proceed in that fashion.

LA: Maybe we should--yeah, let me just take charge of that-this aspect already. The exhibits marked TlA through F, and T2A through L are admitted for consideration of the Board. And we are now discussing the admissibility of T2A [sic], and we will take objections as we go through ----

CC (MR. MOORE]: T3A, sir?

LA: I'm sorry, what did I say, T2A? T3A, yes, the declaration of Dr. Herek. Let's do it that way.

AREC: And I can do it all in one shot if you'd like. I'm prepared to register objections that we have to all of them, and I can do that by your designations, exhibit designations, if you prefer, and maybe you can just make a note as to what we have in way of objections. The government would register objections to T3A on the grounds of relevance, T3B on the grounds of relevance, T3C, T4A, T4B, T4C, and T4D, the government would register objections to those documents as being irrelevant to the matters before the Board. Picking up with T4E, T4F, and T4G, the government would register objections to those documents as being irrelevant to any matter properly before the Board. Turning to Section 5 here, T5A is already before the Board. We wouldn't object to that aside from the fact that they already have it. They can certainly have it again. T5B is breakout of a section of Defense Authorization Act which was passed by Congress. I suppose we object to the form of it in that it is kind of an argumentary document, but in light of the fact that this is an administrative hearing, we won't press on that. T5C has already been presented to the members, but certainly if the respondent would like to give them another copy, we have no objection to that. T5D we have no specific objection. T5E, again, has been presented to them, but they're free to get another copy. T5F, no specific objection. We would object to T5G, T5H and T5I as essentially irrelevant, but no real specific objection there, aside from the fact that they're not technically relevant to an issue before the Board. And then with regard to T5J, that's the CNO message,, 1 March message, and we have no specific objection to that.

Now, as far as you prefer to proceed or how we can agree to proceed, we'd like to go at them one at a time. I can probably begin by saying, in order to help respondent's counsel better define their response to our objections, that it's the government's position in making these objections that this Board has been convened for a fairly specific purpose. And I think we've all seen the appointment letter which was signed out by Admiral Moore, Commandant, Naval District Washington, in which he convened the Board and charged the Board with a number of tasks. The government's position is that that defines what the Board has been convened to do, defines the parameters and sets the requirements.

Essentially the Board's been convened to find whether a homosexual statement has been made, whether that raises the issue of homosexual conduct, whether homosexual conduct by definition of the regulations has been committed, and then the next step would be, if so, has the respondent rebutted the presumption that comes along with homosexual conduct as defined in the regulations. If he's not managed to rebut that presumption to the satisfaction of the members of the Board, then a finding on retention certainly becomes--or a recommendation on retention or separation becomes the responsibility of the Board.

So with that as kind of a frame work, the appointment letter, which identifies why the Board was brought together, it's the government's argument that these documents largely, if not entirely, address the DOD homosexual conduct policy and its appropriateness, legality, constitutionality, etc. In that regard, that is a matter which is--has been addressed and resolved by Congress with the legislation, by DOD with the directive and implemented by Secretary of the Navy and the Chief of Naval Personnel with the implementing message, the attendant 1920 instruction. So, in short, it's the government's position that these documents which discuss the homosexual conduct policy or any homosexual exclusion policy are, while in some cases, interesting reading, not relevant to any determination that has been put properly before the Board by the Commandant, Naval District Washington. So, in a nutshell that's the government's objection to these voluminous documents, and I think that should help respondent's counsel respond a little bit better to what the government's concerns are.

LA: Let me just ask you a question, in case I missed one. Did you not object to T3D, declaration of Lawrence Korb?

AREC: We do and thank you for pointing that out. I actually had it sorted differently. Yes, we do. We register an objection on the same grounds as the others.

LA: So, starting with section three, you're objecting to everything in three and four, and then with the selected T5G, H, and I?

AREC: That's correct.

LA: Mr. Moore, do you know where we're at?

CC [MR. MOORE]: Yes, absolutely, sir. Just to clarify, though, all of--I understand the objections and I will only address the objections, but are all for relevance and all on--everything in three, everything in four, and as for five just T5G, T5H, and T5I?

AREC: That's correct.

CC (MR. MOORE]: It was my intent to address only the government's objections, and hence I was attempting to explain the relevance of Dr. Herek's declaration. It is relevant because--and for all of the objections that the government has made, let me just clarify that we agree on what the issue is before this Board, and the United States Constitution has nothing to do with this specific hearing and was not mentioned until just now. That has not been our argument. We are arguing how this Board should apply this evidence to this regulation. And Dr. Herek's declaration, to begin with, is particularly specific in its focus on the issue before the Board because he explains, for example, the fact that an individual identifies himself as homosexual and heterosexual does not mean and cannot be inferred to mean that the individual engages in sexual behavior that is consistent with that identity or that statement. Similarly, someone may have psychological attractions to a particular sex and not identify themselves as heterosexual or homosexual and not act on it. It's a much more complicated process than that. And the statement that is contained in the letter that the respondent has made, when viewed with the understanding that Dr. Herek provides as context, cannot be fairly be inferred to suggest a propensity. That is why it is relevant. In fact,, Dr. Herek uses the term propensity in his declaration. It specifically says, and I would direct were the declaration before you, the Board's attention to paragraphs 5 and 6 of that declaration where he specifically says that you cannot infer from a statement anything in the understanding of all the research that is available about the behavior of that individual. There's just not an equation between the statement and the conduct necessarily. That's why we would believe it is relevant and why we believe it helps to rebut the presumption in this case.

With respect to--at this point, we move for its introduction.

LA: Let me ask you, briefly, one question before we--before you argue. Attached to the declaration obviously is a number of documents. What precisely are those?

CC [MR. MOORE]: This is the evidence that he relies on--part of the evidence that he relies on in support of--in support of his declaration. They're standard exhibits in support of a declaration. And I would refer you, sir, again, paragraphs 5 and 6 are perhaps the most obviously relevant conclusions that he makes. There are others in his declaration, obviously, as well. But I think that your ruling can rely on paragraphs 5 and 6.

AREC: Major, if I may, and counsel certainly makes, I think, an interesting point. However, I suppose I should start by suggesting that we withhold any determination on that particular document. Counsel has fairly represented portions of the document. However, it would seem to the government that until there is some evidence that this particular respondent falls into this big category that this Dr. Herek talks about, this document is not relevant. In other words, heretofore we have not seen evidence that suggest that what Dr. Herek has to say is specifically relevant to this respondent. He doesn't speak to Lieutenant Thomasson at all. He speaks in general and generic terms. At this point in the hearing there has been no evidence presented that would make the general assertions of Dr. Herek relevant to what the Board has before them. However, if, at the conclusion of the evidence, there is evidence which would otherwise suggest that Dr. Herek's information may be helpful to the members, perhaps at that point we could impose upon you to help us decide whether that would be something that the Board should consider.

I would also point out that that is a portion only of what Dr. Herek has to say. He goes on at length in his document discussing the policy, his opinions about the policy, etc., and we would say that, again, that matter is not properly before the Board as it has been convened.

I guess, in short, we would recommend that we hold off consideration of the admissibility of this particular document until close of evidence to find out whether or not truly it would be relevant to the issues.

LA: With regards to that, I'm going to disagree with you, Lieutenant Commander Shaffer. I'm going to admit Dr. Herek's declaration to the Board with the following instructions. An expert witness is in one sense no different than any other witness. It's a witness that's presented to assist a court or a board in making a determination, and that witness through educational background and experience purports to have a special expertise in certain areas with regard--that might be relevant to the board's determinations. In this particular case, Dr. Herek is purporting to be an expert psychologist in the area of sexuality. One of the determinations that this Board is going to make is whether or not the Lieutenant's statement, if in fact he made that statement, amounts to conduct. Now, you can give as much or as little weight to this expert in the same sense that you can give as much or as little weight to any other witness that you would hear at this Board or any other written statements or documents based upon your analysis of all the evidence that you end up hearing. Now, with that in mind it is the duty of this Board to determine whether or not the Lieutenant has shown cause to remain on active duty in light of the statement that he allegedly presented to the Admiral, whether--and make those following factual determinations of whether or not that was conduct, and if it was conduct does he rebut the presumption that he engages actually in homosexual acts or has the propensity and all of those things that I'll instruct you more fully on later. The purpose of this Board is not to determine the appropriateness of the Department of the Defense's homosexual policy or the constitutionality of that policy or its--or the manner in which its been implemented by the Department of the Navy.

So with regard to those aspects of Dr. Herek's declaration and any further declarations that we're going to be receiving later on that you might receive, they are relevant only to the extent as they are--they give you assistance in determining whether or not the actions purportedly alleged to have occurred by the Lieutenant here in fact fit within the confines of the order, and those aspects of the declaration that go to policy and the generalizations of whether or not that policy is appropriate are not relevant to your considerations. Any questions from the Board with regards to that?

[Negative responses from the members.]

CC [MR. MOORE]: Respondent's Exhibit T3B is the declaration of Dr. Robert Rankin. He is a former medical officer, former Captain in the United States Navy Reserve. He served as a medical officer, with duty in Vietnam, and he is currently Chief of Psychiatry at the Oakland Veterans Administration Medical Center. Dr. Rankin approaches this issue from the experience of a medical officer who has served in combat and in the United States Navy. He takes an approach different from Dr. Herek. Dr. Herek focused on the available study in the population of the United States at large. Dr. Rankin focuses specifically on the United States Navy. He has counseled, as his declaration states, approximately 300 homosexual service members, and many, many more heterosexual service members. His conclusions, as stated in his declaration, are that sexual orientation was known commonly, both heterosexual and homosexual, during his term of service of 21 years in the United States Navy, and that it cannot be equated with conduct. That there were no incidents, as far as he was aware, during his term of service that any of the 300 homosexual service members that he counseled had engaged in conduct, and that the inference cannot be made that their statements or the knowledge of the fact they were homosexual in any way lead to the conclusion that they engaged in any kind of conduct, let alone disruptive conduct. We would submit Exhibit T3B for the Board's consideration.

AREC: Major" different than Dr. Herek, Dr. Rankin, who served in the Navy for two years back in the 160's, relates a lot of his experiences and his general views. He doesn't specifically get into a discussion of sexual orientation, statements, etc. We would argue that this document really gives--has very little, if any, utility for the members. Furthermore, I suppose a point to clarify, the question of statement and whether a statement is conduct is one that's defined by the regulations. I think we're kind of running into--in Dr. Rankin, I think runs into it as well--conduct sometimes can be read as acts, but the way the instruction discusses it, conduct also includes a statement. That's the definition in the regulations. So I think Dr. Rankin's document really adds nothing to the equation and is largely just a discussion of his views and what the policy should be in view of his experience on active duty back in the mid-60's. We would say that this document is not relevant.

CC [MR. MOORE]: Just quickly in response to that, Major. The question is not whether--the question before the Board is whether this particular statement, which is the letter that Lieutenant Thomasson wrote to his four Admirals, constitutes a statement from which the Board can fairly infer the intent to engage in conduct, propensity to engage in conduct, that he did engage in conduct, or has the specific intent to do that. And what Dr. Rankin's declaration explains, and if I may--well, perhaps it would be inappropriate to quote from it, but there is a direct statement to the effect that based on his experience there is absolutely no doubt that homosexual service members can and do conform their conduct to what is required by the military situation, by military requirements. But we would argue that this is one of those statements that fits within that rubric of statements. We would submit, again, Respondent's Exhibit T3B for that purpose.

LA: You're referring to paragraph (n) on page 5?

CC [MR. MOORE]: That's correct, sir.

AREC: Major, if I may, it has been my experience when there's a debate over what a term means, it is best to go right to the source. Paragraph 8(b)(2) of the CNO message, NAVADMIN 3394, I think, gives us quite a bit of assistance in this regard. It states that the officer--well, one or more of the following approved findings is made the officer has made a statement that he or she is a homosexual or bisexuals or words to that effect, unless there is a further approved finding that the officer has demonstrated that she is not a person who engages in that type--- So in other words, the statement is what raises the presumption. The question then of whether the conduct is--the presumption of the acts is rebutted is something that we get to after the fact with more evidence. So I think the statement that's been presented is by definition now--raises that presumption and now it is a question of whether or not that presumption can be rebutted. So this question of conduct and confusing it with acts, I believe, is a point that we need to clarify at this point. And, again, I think the NAVADMIN message is instructive, as is the DOD directive in that regard.

CC (MR. MOORE]: Major, as long as we are reading the NAVADMIN message, I would direct the Board's attention, and the Legal Advisor's attention, to paragraph 8(b)(2)(E) of that same ADMIN message, which reads that the Board should consider any other evidence relevant to whether the officer is likely to engage in homosexual acts. This declaration, as the Herek declaration is, is directly relevant to that question. In addition, we would note that, of course, Lieutenant Commander stopped reading the key language that he chose to read right where he got to the portion of the regulation that is now relevant to the Board's consideration, and that is whether we are successfully rebutting the presumption. Should the Board determine that the statement made by Lieutenant Thomasson is not a statement that can fairly be said to show the four criterion, intent, the actual engaging in conduct, attempt, or propensity, then we have successfully rebutted our presumption. And that is the reason for which this exhibit is submitted.

AREC: The question is whether this officer can rebut the presumption. It is not so much in generic terms there is a person out there that can rebut the presumption. The question is whether this individual does, and that is the essence of-the government's objection. The Herek document, the first portion of it, anything that Dr. Rankin would have to say as to what there is a possibility of in the world. That's why we say, the question of whether or not it is possible to rebut this presumption, I think, is one which we could agree on. That it is possible. But the question of whether or not this officer that is being processed for separation can is what's at issue before this Board, not generically whether or not it is possible. So we would say the language of the CNO message states that the statement that he is a homosexual, or words to that effect, creates this rebuttal presumption. So the presumption that conduct is engaged in is made when the statement is made is then the question of whether this individual can rebut that presumption. So that's why we argue the irrelevance of this document, and is a follow-on to our argument to at least holding off on the Herek document until we can see if the general discussion that Dr. Herek had to offer is relevant to what the facts will be before the Board.

LA: There are two basic means of determining something, and here we're arguing about evidence that may be relevant to rebut a presumption. In other words, that the burden is on the defense here--excuse me, the respondent to--by a preponderance of the evidence, establish a lack of an intent, a lack of a propensity, you know, a lack of actual acts or attempts to commit acts. So, you know, the burden is on him to establish a negative, in a sense. Now, that's a difficult thing to establish through direct evidence. It's, frankly, a difficult thing to establish through circumstantial evidence. Nevertheless, you know, I believe that's an appropriate manner to attempt to establish such a lack of an intent for what weight it can be given. Again, this is expert-testimony, and is an opinion of an expert based on the details that he describes in here. I think the Board can be trusted to give what weight they might feel is appropriate to--to that, because--- I believe it is relevant in the sense that it sets off the circumstances of the argument that is clearly relevant here, which is whether or not--you know, at least based on what evidence we've seen so far, as to whether or not the Lieutenant is going to rebut the presumption based on the statement, and what weight, if any, opinions of experts of this nature can give the Board in determining whether or not that presumption has been rebutted assists them in making that decision, which, by definition, makes it relevant. Therefore, it goes in front of the Board and they give it as much or as little weight as they determine to be appropriate. I think questions of this nature allow the argument of the issues, and are relevant. So I'll allow the Doctor's statement to be admitted.

CC [MR. MOORE]: Dr. Lois Shawver, Ph.D., is-adjunct professor of psychology, California School of Professional Psychology. Her declaration, Exhibit T3C, we submit for similar purposes as declarations T3A and T3B. Dr. Shawver's declaration is of a like kind with Dr. Herek, and she is of a like mind as Dr. Herek in her conclusions. The conclusions are the same. The research data that supports the conclusions are different. Her conclusion is that many individuals who identify themselves as homosexual have little or no desire to engage in homosexual conduct, and often do not engage in homosexual conduct. The difference between Dr. Shawver and Dr. Herek, as I say, is the research that supports that conclusion. And her research is based on observations of people in compromising positions in terms of what she calls concerns of bodily modesty or privacy. And so we would submit Dr. Shawver's declaration, Exhibit T3C, for the Board's consideration along those lines.

AREC: Major, I think I know where we're going with this. We'll register the same objection that we have, and that is at this point there is nothing that's been presented that makes any of this information relevant. However, I can't disagree with counsel's characterization of what's contained in the document.

LA: okay, I'll allow that document to be admitted.

CC (MR. MOORE]: The last of the expert declarations that we submit for the Board's consideration is perhaps the most important. It is the declaration of Dr. Lawrence Korb, form Assistant Secretary of Defense for Manpower, Installations, and Logistics during the Reagan Administration. Dr. Korb authored the DOD directives that codified the policy that was in place until the 1994 Defense Authorization Act was passed. He authored the policy. His declaration explains that it was never the intent and is not the purpose of that policy to exclude, discharge, separate, or otherwise hold against an officer of the United States Navy or any other service branch, a statement about sexual orientation. He explains that the purpose of the policy he wrote is to focus on conduct and conduct alone. Now, I'm aware that we are dealing here with a new policy, as is Dr. Korb, and Dr. Korb addresses the new policy in hi-s declaration. And what he explains is that if that was the purpose of the policy he wrote, it certainly cannot be the purpose of the policy that we are now dealing with to be more exclusionary and more strict in light of the President's obviously stated purpose in adopting the policy, the Congressional findings and purpose in enacting the new policy. In other words, if this Board were to find that somehow a statement, which is not encompassed under the old policy that Dr. Korb himself wrote, is encompassed by this policy, the Board would, in effect, be suggesting that the new policy is more restrictive in focusing on statements than the old policy. Perhaps no single expert witness could have more relevance and more bearing, and have a more important statement to say to this Board, and I would highly commend should this exhibit be admitted that the Board consider it. At this point we would move for the admission of Exhibit T4C--excuse me, T3D.

AREC: We object on relevance, as we did earlier. I think that the most telling point is that Mr. Korb is, indeed, a policy maker. He was involved with the policy that is no longer in effect. What

he has to offer to the equation is his feelings on what policy should be. I think as the Legal Advisor has pointed out already it is not a question which has been contemplated in the convening order of this Board. He offers nothing more than a discussion of policy, and I don't know that Mr. Korb would necessarily agree with the notion that a statement alone is not sufficient under the old-although he might not have intended the outcome, I don't know that he would suggest that that was the actual outcome of the old policy. In any event, he has nothing to do with the new policy. His opinions as to what it should be are certainly things the members of the Board can do on their own, assuming that's within their charter. It's not. It's beyond what this Board's been called to do.

CC (MR. MOORE]: Major, two quick points in response to that. First, Dr. Korb does address the new policy in his declaration directly, and suggests how the new policy must be interpreted to be meaningful. More importantly, as we'll get to later, some of the exhibits that we hope to introduce here today are statements from the Department of Defense about the new policy which clarify and explain and emphasize that the purpose of the new policy is itself to clarify the old policy. It is not the Department of Defense's position or the Department of the Justice's position that he new policy is a departure from the old policy. Virtually every public statement on this issue has explained, and some of those we hope to introduce today, that the policy that this Board is being asked to implement is--is consistent with that policy in that it is a clarification of what would have to be Dr. Korb's own personal intents since he authored the old policy.

LA: I'm going to withhold ruling on this one until we see--we discuss later matters. I am at this point less convinced that what Dr. Korb has to say is relevant to the issues here in front of this Board, which is to apply the facts to the current policy. Unlike the other three documents already admitted, which deal with evidence of whether or not statements establish propensity, this document is--is essentially for the rationale of a policy in an argument with regards to that matter, which is not a relevant matter for this Board to determine. However, I will not make a final ruling on this particular document until we've discussed some of those other ones that sort of interrelate.

CC [MR. MOORE]: Okay, Major, we'll return to it then at the end. I will just note, sir, that the purpose of his declaration is to explain how the new policy must be interpreted in context. So I do believe that he offers a view that's directly related to interpretation of this policy and not a statement purely about

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policy considerations. It's a question of how to interpret the policy to a specific circumstance to make it make sense. But we will return to that one, and at this point move to category four.

All of the exhibits in category four, of which there are seven, are government commissioned reports on this issue. All of them deal with what can and cannot be inferred in some measure from statements. The first report, which is Government Exhibit--excuse me, Respondent's Exhibit T4A, is the RAND report. If, for no other reason, this exhibit is admissible by virtue of testimony of Rear Admiral Konetzni, who relied on it in his testimony, and explained that he had read it and is something on which he based his own views relevant to this specific case. On that basis, alone, we would argue that this is admissible.

In addition, we would explain that the RAND report is one of only two reports commissioned by the Department of Defense, specifically Secretary Aspen, to assist him in carrying out the Presidential order he received to investigate what could be done about the situation and what policy would be appropriate for the President to adopt. So it is directly relevant in the sense that this is the raw material that the Secretary of Defense considered in determining what the new policy would be. It would be, therefore, equivalent to legislative history, if we were dealing with a statute. The RAND report is widely regarded as perhaps the most comprehensive report ever conducted on this issue, and it concludes that a focus on sexual orientation by itself is "not germane to determining--should not be germane to determining who may serve in the military."

LA: Mr. Moore, let me interrupt you. That's precisely what the Secretary of the Navy said, Chief of Naval Operations said, that orientation is not germane, that conduct is germane. How is this relevant in assisting the members of the Board in making their factual determinations in this case? Obviously there's a lot of material in this, and it touches on everything from sodomy to HIV to policy kinds of questions, privacy rights that are not directly related. How does this document assist the Board in what I think we can characterize as the narrow mandate that it has? It has the statement in front of it, and it has to decide, one, whether that constitutes conduct, and, two, has that conduct been rebutted.

CC (MR. MOORE]: First, and most importantly, Major, I think it directly addresses that issue because Admiral Konetzni, who testified in this case, believes it directly addressed that issue. Admiral Konetzni understands Lieutenant Thomasson's statement in part by virtue of him having read this document, so it provides that context. And, second, I think that it is important in the same way, as I said before, that legislative history is important. it explains--the fact that it deals with some subjects that are not before this Board is helpful in the sense that the subjects that it focuses on make sense in implementation of the policy proving an understanding of where it doesn't make sense. So, I think taken as a whole it proves that legislative history assistance, and it also provides context as any exhibit that would be relied upon by a fact witness who sits in a proceeding and testifies about a document would under normal, even less relaxed rules of evidence, be admissible.

AREC: Major, if I may, we'd certainly agree that this is a comprehensive document. It covers many, many things, and we object to its introduction--object to its admission. It's nothing more than a statement to the extent it was used. It was figured into what's the policy now, which is before the Board. I think we've made that objection a number of times in the past. But I would like to mention, with regard to Rear Admiral Konetzni, I believe what he said, he acknowledged that he read it, but it was in the context of whether or not or why he did not reassign Lieutenant Thomasson when Lieutenant Thomasson made the statement that he did. I think he talked about things that he read, and didn't feel like it would be a problem to have Lieutenant Thomasson in his spaces and on his staff. So I think the context of what Rear Admiral Konetzni had to say, he was not suggesting that somehow this RAND report has led him to some conclusions which the Board would be otherwise interested in. I think he mentioned it kind of in passing, to give us an idea of why he didn't reassign the Lieutenant. But, in any event, we would object to this document being admitted at all, as being nothing more than a very, very lengthy discussion on what policy may be.

CC [MR. MOORE]: Let me just touch on that briefly, Major. I would ask rhetorically what could be more relevant than a question of why a Rear Admiral in the United States Navy who is the direct supervisor of the respondent elected not to reassign that respondent on the basis of this statement that we're here discussing today. I would also point out for the Board's consideration that there is a provision of the Navy Regulations that is directly at issue here, which says that notwithstanding the findings with respect to this statement, the Board has the discretion to retain a service member if discharge would not be in the best interests of the United States Navy. And----

AREC: I don't think that's a fair characterization of what the rules are. The Board makes recommendations. The Secretary of the Navy may, at some point, determine to retain a member in the best interests of the Navy. I think the findings that the Board are faced with are really what's at issue here.

CC [MR. MOORE]: If I may have the Board's indulgence for a moment. I'm just flipping through my papers here to find the specific ----

MBR [CAPT ELLERMAN]: Major, we'd like to take a 10 minute recess to make a head call, if we could, while he's doing this. Also, Lieutenant Commander Shaffer, when you finish your statements you're kind of drifting off a little bit. We're having trouble hearing the last part of your sentence, when you get finished your remarks. So if you would speak up a little bit for us, we'd appreciate it.

AREC: Yes, sir.

[The Board recessed at 0934 hours, 24 May 1994.]

(The Board was called to order at 1010 hours, 24 May 1994. All persons previously present were once again present.]

CC [MR. MOORE]: Commander, during the break I found two things that I was hoping to refer to on this issue of whether the RAND report should be admitted. The first is the DOD Directive 1332.30, the current version, the one that is to be applied today, provides in paragraph (c)(B)(3), and I quote: "Nothing in this directive or the service implementing regulations requires that an officer be processed for separation when a determination is made in accordance with regulations prescribed by the Secretary concerned that separation of the officer would not be in the best interests of the armed forces." That is a direct quotation from the DOD directive at issue here, the DOD directive at the top of the funnel, as we've discussed.

LA: What paragraph was that, again?

CC [MR. MOORE]: That is paragraph (c)(B).

LA: What page number is that on?

CC [MR. MOORE]: It is enclosure 2--I'm sorry, I may have left that part out, enclosure 2 to DOD Directive 1332.30.

LA: That was (c)--paragraph (3)....

CC (MR. MOORE]: (3)(c)(B), sir.

LA: Does not that refer to persons who are acting with an attempt to avoid military service?

CC [MR. MOORE]: Sir, I just take the directive at its value. This is in the DOD directive that is promulgated specifically to deal with this issue, and it is under the section that deals with homosexual conduct, which is paragraph (c). If we then turn to page 2-3, we see that subparagraph (3)(B) says as I've quoted, sir.

LA: All that's true, but, of course, we have to read it in context, and the context of the entire paragraph indicates that it connects with paragraph (a) above, which is, in my reading, an indication that you're not required to separate an officer that engages in acts, makes statements,. marries or attempts to marry persons of the same sex for the purpose of avoiding military service, and would not be in the best interests of the armed services. So it seems to me there is a ----

CC [MR. MOORE]: A cumulative requirement.

LA: ---- a cumulative requirement.

CC (MR. MOORE]: Even that being so, sir, in no way does our argument rely on that provision with respect to the RAND report. Our point is that it is an important document from what Admiral Konetzni has told the Board, and it is an important document for the legislative history purpose. And I would also add, which I don't believe I have up to this point, there is a whole section in the RAND report that deals with the issue of--it's headed, "The relationship between status and conduct." It goes on to make conclusions that a person who does identify himself or herself as a homosexual may refrain from engaging in homosexual acts. So it directly deals with this issue, and what we're trying to do is prove the negative, a difficult task. Fortunately, we have relaxed Rules of Evidence to help us deal with this difficult task, and what we would submit to the Board is that this evidence, again, helps to support the only fair inference from the evidence--from all the evidence that we are presenting to you, and that is that this statement cannot be taken to indicate any of the four verbs or four factors in the regulations.

LA: Where is that section that you were referring to?

CC [MR. MOORE]: In the RAND report, sir?

LA: Um-hum.

CC [MR. MOORE]: Well, there's a whole huge portion that deals with this, but most specifically beginning on page 50. Then it goes on for several pages, based on extensive research in the general population, and there are also references to conduct and status in the military context. "The prevalence of homosexual behavior in the United States population." The RAND report goes into foreign military service, their experience with these issues. Again, it lends some background, some context for the entire debate. I mean, the case that the government has put on here is you have a statement, you take it at face value, and the statement is what it is and depicts. Fortunately, the regulations aren't quite that draconian. They allow us to attempt to rebut this presumption. The RAND report directly assists in the rebuttal of the presumption. I would also add, sir, even under formal Rules of Evidence when a witness relies on a document in the testimony, to put that witness' understanding and testimony in context, it would be common for the document to come in under that fact alone.

AREC: Major, I could, I suppose, expound on what I've said, but the government's position is that this is a document that went into developing the policy as it stands. That all has been done. The report, dated 1993, predated all the regulations that are before the Board, and it is just not relevant. To the extent that there is any information throughout this 490 page or 479 page document, which may be in any way, however slightly, germane to the issue of rebutting the presumption, I would suggest that's--the respondent has put in a lot of that information now, which is before the Board. But, as a whole, this document adds nothing to the---- It is nothing more than a discussion of what an appropriate policy would be. And, again, this idea that Admiral Konetzni somehow relied on it in drawing conclusions, he really didn't draw any conclusions based on this report aside from deciding not to transfer the Lieutenant to a different assignment. That was the net result of his reviewing the document. We, again, object on the grounds of relevance.

LA: In reviewing that section of the document that Mr. Moore pointed out, that section does appear to have relevance with regards to the issue of the rebuttable presumption as to whether or not a declaration of homosexuality, if one wanted to characterize that declaration as a declaration of status as opposed to a declaration of conduct--it appears relevant to that issue. I'll allow the members to consider the RAND report. It is an extremely lengthy document, and I think you all will note by looking at it, page 50 and the area surround that, is the area specifically pointed out by the defenses case, and appears to be directly relevant. There may well be other sections of it that are, and I'm not attempting to preclude you from looking at the entire document. In thumbing through it, there are clearly sections of it that are very obviously not at all relevant to the issues in front of us here today, and I certainly trust your ability to give those areas what weight, if any, necessary.

CC [MR. MOORE]: The next three exhibits, Respondents Exhibits T4B, T4C, and T4D, are collectively, the AG reports. That's, for .the reporter, P-E-R-S-E-R-E-C. And, again, for context, all of the reports, if I haven't said it already, in category four are government commissioned reports and studies. These are the reports and studies that the United States Government has undertaken, and in this case the Department of Defense, has undertaken to assist in understanding this issue, which I think the Board already appreciates is a difficult one. These three AG reports all touch essentially on the same issues, are similar to the RAND report, earlier versions, and--and reach similar conclusions. The reports stand for the proposition that homosexuals resemble the population at large that is able to successfully adjust to military life, more so than the population-at large that is not able to successfully adjudge to military life, including the requirements. So in other words, the idea was to try to take the homosexual population aside from the general population and try to make comparisons on whether you can make a group characterization, and they conclude that, first, you can't. You need to engage in a case-by-case analysis, and you can't rely on group characteristics as a whole. But, even putting that aside, if you were to do that and rely on group characteristics as a whole, you would find that as a general matter the attributes of the homosexual population, as a whole, in terms of discipline, in terms of ability to conform to the requirements of military service, is not somehow inherently flawed, but that people who do identify themselves as homosexuals are able to adjust to military requirements, and, in fact, can do so as a general matter at least as well as the general population. So, again, these reports, we submit, for the proposition that the experts, the government's own experts, believe the issue must be reviewed on a case-by-case basis, and that there's nothing inherent in homosexual identity that necessitates the conclusion that one would not be able to rebut the presumption of engaging in homosexual conduct, which is our task here today. So we would submit those three reports for that purpose.

ABC: And the government would, again, object to all three of them on the ground of relevance.

LA: With the understanding of the Board members that your job is to do precisely as respondent's counsel pointed, with one additional matter. He pointed out that you have to look at cases individually, that's precisely what you're required to do in-this case. I will add to his remarks that you are required to do that in the context of the Navy's order with regards to homosexual conduct, which you've heard ample discussion of already and you'll hear more of when I instruct you on what that order says. In light of that, I will allow you to consider these documents for what relevance they may have to the respondent's case.

CC (MR. MOORE]: At this point, Mr. President, I'd like to skip one because I believe that the Crittenden Report, which is Respondent's Exhibit T4F, is more similar to the AG reports than it is anything else. The Crittenden Report--the significance, primarily, of the Crittenden Report is that it reached this conclusion in 1957, the same conclusion that is reached in the AG reports in the late 180's. The Crittenden report concludes that generalities about the homosexual population, in terms of lifestyle, characteristics, conduct, are just not supported by empirical evidence. It's just--it is an enormously diverse population, much as the population at large is, and that such generalities are difficult to make. The implicit focus, therefore, should be on conduct and things that are specific to conduct. And, therefore, it assists us, again, in meeting out burden for the same reasons that the AG reports do. We would submit, at this point, for the Board's consideration Respondent's Exhibit T4F.

ABC: Again, the government objects. This has absolutely nothing to do with any issue before the Board. A study that is dated 1957. Again, this may be some interesting historical reading for another time, but this Board--the issues before this Board are clearly defined in the appointing letter. Nothing in this report adds to anything properly before the Board.

LA: Mr. Moore, you're going to need to be a little more specific with regards to this one. I didn't check the respondent's birthday, but I question whether he was alive in 1957. I don't think he's that old. Certainly this report--you're going to have to show me something specific in here that relates to the issues as we've discussed them already before I'll allow a 35 year old report in. At the very least, I can't imagine that it is not in some way cumulative with more recent material, and I say that without having read the entire contents.

CC [MR. MOORE]: I appreciate the concern, and, again, what we're dealing with is the difficult task of proving the negative. The primary value of this is to indicate that it's the government's own understanding, as far back as 1957, that generalities cannot be made. So to the extent that the Board might have been disposed, although it certainly wouldn't be my expectation that they had been, but to the extent that the Board might have been disposed or predisposed to think or infer that the statement "I am gay" means the same thing in all contexts, and necessarily means propensity to engage in homosexual conduct, this report is directly relevant for the same reasons the others are. That generalization is not fair from any statements, and, so, we would suggest, again, that this particular statement that's at issue in this case is one of those about which that kind of inference would not be fair. To specifically respond to where, at least for the legal advisor who has the report before him, he might find some support for the relevance I would direct the legal advisor's attention to page 11 of the report and paragraph 6, which summarizes the conclusions of the report, and indicates that--for example, paragraph 6(b), "Many exclusively homosexual persons have served honorably in all branches of military service without detection, and homosexual behavior cannot be correlated with any other characteristics or group characteristics of the personality." There are others--you'll see on the following page any number of other conclusions that may be relevant to the issue.

LA: Those are --- Again, I think, because of the age of the report, those conclusions are rather similar to more recent conclusions in reports that have been admitted. I'm not going to allow this one to come in.

CC [MR. MOORE]: If I may, sir, understanding that the report has not been allowed, this being the Crittenden Report, Exhibit T4F, it is our understanding from the convening letter that an exhibit that is stricken or not allowed should nonetheless be appended to the record, and we would request a ruling that would allow that. Perhaps the easiest thing to do would be to have a designation in the Table of Contents in the official version that this document has been excluded from the official administrative record, but pursuant to the convening authority's suggestion would be attached as a related document.

LA: Okay. Any problem with handling it that way?

AREC: No, sir.

LA: We'll do it that way, and we can just ensure that this particular section of--I guess it is the third volume, in the copies that go to the Board, are removed. I think so far this is the only document I've denied admission of. This one, plus, if there ends up being any more, just make sure those copies come out of the copies that go to the Board.

CC (MR. MOORE]: And for the Board's consideration and the Major's consideration, if it is appropriate, we would suggest that perhaps you make the notation on your own copies for your consideration as you take the exhibits and all the evidence into consideration later on.

Moving back one then to what is known as the GAO Report, this is Respondent's Exhibit T4E. The GAO Report also reemphasizes, and, again, this one is more recent so perhaps we'll have better luck with it. It emphasizes, again, that the focus must be on conduct and being able to fairly infer conduct. Again, it is our contention in this case that one cannot do that from the Lieutenant's letter, and, therefore, in support of that we would submit the GAO Report, Respondent's Exhibit T4E.

LA: Again, Mr. Moore, get specific with me as to what here is going to assist the members in this particular case. I understand that the GAO Report was instrumental in establishing the policy. One, in a different forum, might argue whether the policy is appropriate, but is there anything in here in the nature of some of the earlier documents that are relevant to the issue of rebuttal presumption and that type of thing?

CC (MR. MOORE]: With the Board's indulgence, I'm--in response to that question I'm looking at the conclusion section of the report.

LA: With regard to the other--I guess there's just one more similar document. If co-counsel could look through that, that will be the question with regard to that one, too.

CC (MR. MOORE]: The GAO Report focuses primarily on the cost of the policy, and it discusses these other issues in the course of reaching its conclusions on cost. So it is a little more difficult to find the nuggets that we rely on, that much I will concede, but they are in here. One in particular is an explanation of the Canadian force's policy and the difficulty in focusing on propensity and the need to focus on homosexual activity. Our policy, I fully understand, focuses on propensity, and, therefore, you know, we need to address that question. But I think it provides context in explaining the difficulty that, perhaps, other nations have reached with the idea of trying to assume that any statement necessarily means propensity. Now, their conclusion, obviously, is to move away from even trying to do that, recognizing the difficulty of it. And there may be some--some of the statements in here to help understand why they reached that. I haven't gone through sort of line by line to--I'm just looking at the conclusions section on other nations policy, which is page 40 of the report, but I have not gone line by line to look through what specific sentences or factual discussions along the way yielded that conclusion.

LA: In looking through the document I don't see anything that appears to be relevant to those issues. I'll withhold ruling on this particular document to allow you and co-counsel a little more time to point out something that might change my mind.

CC [MR. MOORE]: The final document in category four is the Summary Report of the Military Working Group. It's dated 1 July 93. This is the report--the second of the two reports commissioned by the Secretary of Defense, at the time Secretary Aspen, to assist him in reviewing and understanding the military policy and what it should be, as opposed to what it was. We would offer it for similar purposes that--purposes similar to the reason that we offered the RAND report.

AREC: With a clear distinction, I think, the legal advisor found that the RAND report contained that section that issued statistics on homosexuality and who engages in what. I'd like to reemphasize with regards to this document, and to just add comment to the record on the GAO document which is still open, and, again, we render objection to those on the ground of relevance. These documents, the GAO document, the military working group document, these things talk about what a policy might be. There is a policy. It's been signed out and it is in effect. Under that policy, although respondent's counsel contends that it is not fair to have a presumption which the policy has, that's not an issue before the Board. The reality is that under the regulations as they stand, the statement raises a presumption of conduct, and in this case the statement is, "I am gay." And that is what is before the Board.

How that policy was arrived at, why Congress issued or wrote that into law is what these things may address, but that's not an issue that's before the Board. Again, the government argues that those-all those discussions and all those ideas are not relevant because the regulations state that the statement raises the presumption which then must be rebutted with other evidence. So with regard to the GAO report, the Military Working Group study, the government objects to those on the ground of relevance.

LA: Given that the Military Working Group report goes toward the establishment of a policy, is this not the preface to the policy that's now in effect? Was this not a preliminary step last summer with regard to President Clinton's directive?

AREC: There's no question that that's why a military working group was put together, but I don't think anyone in this room is qualified to say what part of that report is now part of the policy, what part was not adopted in the regulations which we're currently bound by today. But, again, the government contends that that is neither here nor there for purposes of what the Board is charged with determining and what aspects of that report may have been adopted and what may not have been adopted. The long and short of it is, the regulations are here, and we're simply applying them to the facts.

LA: Given that, I've certainly told the members that often enough, why is this any less relevant than the--the conference report on the House resolution which established why Congress passed the Act which resulted in the policy?

AREC: Well, to the degree that Congress made those findings, it certainly goes towards what the rules are and the regulations are before the Board, to help them understand how those regulations work. Those are items that Congress found. Here, the military Working Group, to the extent they found anything, it's not law, it's not regulation, and it's not even policy. It was a group of individuals commissioned to--to generate some ideas, and it has nothing to do with what's binding the Board in this case.

LA: Well, nevertheless, I'll allow it to go to the members. You're certainly free to argue that, and Lord knows I've told them often enough, they're going to hear what the policy, in fact, is, and that's what they're going to use. This may be relevant for what background and additional definitions it might give in interpreting the facts of the policy. We still have, I think, 5G, H, and I?

CC (MR. MOORE]: Yes, sir, that's my understanding. I don't believe category five will require much time. These are the legal documents that the Board is being asked to apply today. T5A--let me just briefly address a couple points that the Lieutenant Commander touched on when he mentioned ones to which he doesn't object, because I think it is important. T5A is the statute. Government Exhibit 16 is not. Government Exhibit 16, as the Major just pointed out, is the House conference report, and we all know what one House says is perhaps to that House's frustration not always what the law becomes. Now, I haven't done a line-by-line comparison of the House Conference Report, that is Government Exhibit 16, with the actual statute, that is Respondent's Exhibit T5A, but T5A is, in fact, the statute. T5B--well, let me skip to T5C, if I may. T5C is the directive. We've discussed that T5E is the Navy Instruction 1920.6A, and then after each of those three regulations or statutes, if you will, we have the key language highlighted as a summary exhibit, and, again, I would submit that those may assist the Board in viewing that evidence. So, again, we haven't looked line-by-line at what the government has submitted to say is the law here. I think we have established in voir dire that there is some lack of clarity on that point. This is our understanding of the specific statutes that are before you. And I would add to that T5j, at the end, the NAVADMIN message to which the Lieutenant Commander has also not objected.

With respect to the three things to which the Lieutenant Commander has objected, these are the official news releases and T5G is the official new release on the day that Secretary Aspin released the new policy or announced it; T5H is his official memorandum that explained the policy and what it was intended to do. It is the document that I was referring to when I mentioned that Dr. Korb's declaration explains the importance of the new policy or the function of the new policy being to clarify the old policy. So, there we have it from Secretary Aspin himself as to what your job is in this proceeding, and that is to apply the policy as clarified, that is the core policy, as clarified by the new-language. And the clarification is, as that exhibits explains, the making explicit of the rebuttal presumption point, that is, as Secretary Aspin would have it. We may have some disagreements with that, which aren't really relevant to this proceeding, but as that exhibit explains it is the Secretary of Defense's position that this policy at issue in this case is a clarification of the old policy. So that's what we would submit T5G and T5H for. T5I is just the logical sort of appendage to that, which is a transcript of the news briefing that was held on December 22nd in connection with the dissemination of the news release and of the actual policy itself. So, again, if you look at the RAND Report, if you look at the Military Working Group Report, and then you look at the news releases, all of that is--is, in effect, the legislative history that explains what the idea is, what the point is of this clarified new policy, that is articulated in the Act, the Defense Authorization Act of 1994, and the DOD Directive 1332.30.

These things are important, I might add, because the Navy, as we established on voir dire, if nothing else, has not yet promulgated a specific revised regulation. So, perhaps, if they had, it might be easier not to have this stuff. But because they haven't and because you're being asked to interpret the DOD directive itself, which I take it to be somewhat unusual, other than the specific Navy Reg that will be promulgated pursuant to that directive, I think these will add the important context that you need to understand what the point is and what the emphasis is. And we would submit those three exhibits for that purpose.

AREC: The Navy has issued guidance regarding implementation of the DOD policy, and that's what the NAVADMIN message is. So that has been issued. The fact that they haven't managed to get the 1920 instruction, Change 3 in it yet, I suppose is a matter of time. But in any event the regulations from-the Department of the Navy have been promulgated.

With regard to the press releases and the press conference and all of the public policy and the public relations effort that went into the issuance of the new policy, again, the government argues that that is just not relevant to whether or not Lieutenant Thomasson has made a statement that he's a homosexual, indicating a propensity to engage in acts and whether or not he's rebutted the presumption, and that is what is before this Board. The regulations have been issued. The Board has been convened, and the government argues that those matters are not relevant to any issue before the Board.

CC (MR. MOORE]: As I think, anybody who has had any familiarity with this issue will appreciate and anybody who has watched how this issue has evolved will appreciate in the last few months, it is a very difficult issue. It has not at all been clear what the intention has been of the President, of the Congress, or of the various military departments or service branches. Now, there have been a lot of efforts to try to clarify that. There have been some conflicts in that. And, I believe that the very well attended event that happened on December 22, 1993, when Secretary Aspin attempted to clarify the resolution of this issue is extremely important.

These are substantive explanations of what this policy is meant to be. This is not Secretary Aspin holding a news conference to discuss the appointment of some assistant secretary of defense. This is his attempt to explain to the American people what this policy is designed to try to do. Again, my familiarity, of course, is with civilian courts, but courts commonly find it important in that context to be able to consider legislative history, style, materials, materials that go to the intent behind the policy. We all know how difficult it can be to interpret the rather sometimes incomplete--seemingly incomplete language of a regulation. There are gaps that individual cases need to fill. We believe that this case presents one of those very difficult questions. And I think that the Board would find it useful to have these things in the record to be able to guide its decision.

LA: I'll admit those three documents. We still have T3D to discuss. Was there anything else?

CC (MR. MOORE]: My understanding is that that is the only exhibit that ----

LA: And that's Dr. Korb's ----

AREC: And the GAO Report, also.

LA: And the GAO Report, yes.

AREC: Pending.

CC (MR. MOORE]: If I may address the Korb declaration first. The legal advisor, I believe, has a copy of the declaration?

LA: Um-hum.

CC (MR. MOORE]: I would particularly point the legal advisor's attention to paragraphs 7 through 10 of that declaration, and if you would like, sir, I would suggest that we take a moment for you to have an opportunity to read those paragraphs. They deal directly with the issue of propensity, directly to whether an individual statement, as in this case, may be found to invariably lead to the conclusion of propensity, and we would suggest, once again, that there is no better expert on this issue than the man who wrote the policy that this Board is being asked to apply, policy as clarified by the new policy.

LA: Which paragraphs again?

CC [MR. MOORE]: Paragraphs 7 through 10, sir.

LA: This statement is executed by Dr. Korb ----

CC [MR. MOORE]: Yesterday, sir.

LA: Yesterday. So when he's talking about current policy, he's talking about the present current policy not current policy when he was in charge of policy, correct?

CC (MR. MOORE]: That's correct, sir.

LA: I'm not convinced that what Dr. Korb says here is necessarily anything more than a restatement of what, in fact, the policy is, which is that a statement of status is not sufficient. Nevertheless, I'll allow it to go to the Board with the same caveat that have applied to the other documents. Next is the RAND Report?

AREC: The GAO Reports, sir.

LA: GAO Report.

CC (MR. MOORE]: Can we have a moment, sir.

[Civilian counsels confer.]

CC [MR. MOORE]: I think we'll stand, sir, on the argument that we've previously presented, that the context provided, most particularly the example that we felt was most particularly helpful is the discussion in the GAO report about foreign military wrestling with this issue and finding the difficulty that statements do not invariable indicate propensity, and, therefore, their conclusion being that one must abandon that approach. But, it's more the preliminary conclusion rather than the final conclusion. This country, we understand, doesn't share the final conclusion, but it's the preliminary conclusion that is directly relevant here. Perhaps the report could be admitted with the advice to the Board that obviously any subsidiary conclusions or final conclusions made by other militaries or any reporting on that is obviously not relevant to their consideration to the extent that such conclusions conflict with whatever the direct policy is here that they must apply.

LA: I'm not going to allow the GAO Report to go to the members. There isn't anything in there that I can find that's directly relevant or particularly helpful. There is plenty of evidence already in front of the Board from a number of the other documents that go to Mr. Moore's, last point with regards to the inability to jump from a conclusion of status to a conclusion of conduct. This is not anymore particularly helpful in that. There's also a number of matters in there that I think are extremely--I don't want to say remotely irrelevant, that's not the term I'm looking for--there-that are not relevant, specific case studies, the actions of other armed services. So I'll grant the government's objection to the GAO Report.

As I understand it then, of the three volumes that we have to go before--from the respondent, I've sustained objections to the GAO Report and the Crittenden Report, which is T4F and T4E.

CC [MR. MOORE]: Sir, at this point I think, perhaps not to waste the Board's time or your time,, sir, we could extract the ones that are not--well, I guess--they'll both be attached, is that right?

LA: Yes, I think the plan was that we would make a notation on the--both in the record, obviously, and in the Table of Contents of the original document that those two particular exhibits were not admitted, and we'll just leave them in the original document in their place, and then remove them from the copies that the Board is going to have for consideration. Does the Board ----

AREC: Major, I would like, if I could, just address one additional matter before we pass, and I'd like to thank counsel for pointing out to us that we didn't have the actual law. We did have the House conference report, and we'd like to withdraw or at least point out to the members that Government Exhibit 16, although it is essentially what was adopted, is not the law. The law is what the respondent's counsel has offered. So when you consider what the law is from Congress, it would be the respondent's exhibit and not the government's exhibit. I appreciate them pointing that out.

LA: Thank you. While you're preparing that, are there other matters to present or do you desire ----

CC (MR. MOORE]: Yes, sir, at this point we'd like to present the unsworn statement of Lieutenant Thomasson, the respondent.

LA: Before we do that then, I'm required by the order to instruct the respondent with regard to Article 31--his rights under Article 31.

CC [MR. MOORE]: Before you do that, sir, if we may just clarify, our understanding is that Lieutenant Thomasson is presenting a statement and not taking the stand, as it were, as a normal witness.

LA: That's correct. He's not--and I was going to instruct the members that a respondent at an admin board has the right to make either a sworn testimony or unsworn testimony. The respondent has elected to make an unsworn statement, which means that he will not be subject to either cross examination from the recorders, myself, or you, the Board. You cannot hold that against him with regard to that matter. Nevertheless ----

REC: Sir, I understand that this is not a criminal proceeding in which ' the silence of a member cannot be held against him, but this is an administrative hearing in which the members can judge as they see fit the determination of the respondent.

LA: What is your basis for ----

REC: The point you made was they cannot hold it against him, is, I believe, what you used. And I just wanted to point out this is an administrative hearing. We're not asking that they hold it against him. We're simply pointing out it is not a criminal proceeding in which the individual has a right to silence.

LA: I think quite clearly administratively he has an absolute right to silence and can't be compelled to testify or make a statement. What is your basis for saying that they're allowed to draw some adverse inference from the fact that he's chosen to make an unsworn statement opposed to a sworn one.

REC: It is an unsworn statement. All I'm pointing out to the legal advisor is that as opposed to a sworn statement, an unsworn statement at an administrative hearing is different from the testimony given at trial in which an individual has a right to refrain from giving testimony at trial. Now, he-has chosen to exercise his right in the administrative hearing to make an unsworn statement, all well and good. But you have asked the members to-not to "hold it against him, that he's elected to make an unsworn as opposed to a sworn statement," and I just want to make sure that the mischaracterization is not brought to the Board that the individual has a right to be silent at an administrative hearing. We're not---

LA: Okay, that's--that's -----

REC: ---- calling him, we're not asking him -----

LA: I will agree and disagree with what the Lieutenant has said. The respondent has an absolute right to remain silent, as he has everywhere else. That's why I'm reading him his Article 31 rights. He has an absolute right to remain silent, and you're not allowed to draw inferences from that. You can consider the fact, what evidence, if any, he raises in his statement. You can consider the fact that you may or may not get answers, you know, to some questions that may be raised by what he has said. You can consider the fact that he's not subject to cross examination, however, you cannot adversely hold against him his exercise of his right at the administrative board to not subject himself to cross examination.

REC: The government would concur with that.

LA: Excuse me for just a minute While I find my sheet, where I had that. Lieutenant Thomasson?

RESP: Yes, sir.

LA: Your counsel have indicated that you desire to make a statement to this Board. Under Article 31 of the Uniform Code of Military Justice I have to advise you--go ahead, sit down--have to advise you that, of course, you have been suspected of homosexual conduct, which is the basis for this administrative board. In light of that you cannot be compelled to make any statement with regard to that subject.

RESP: I understand that, sir.

LA: You have the right to consult with your counsel, which obviously, you know ----

RESP: I have.

LA: ---- you have done prior to this, but, nevertheless, I have to advise you of that before you make statements. You cannot be cross examined here at this admin board or questioned by anyone with regard to that statement unless you elect to do that. Nevertheless, any statement you make here in this opening hearing can be used both by this admin board and were it appropriate at some other type hearing, such as a disciplinary hearing ----

RESP: Yes, sir.

LA: ---- should your statement provide evidence that was appropriate for that. Do you understand that?

RESP: Yes, sir.

LA: And you understand that you have the right to make no statement?

RESP: I do understand. Good morning. In this statement to provide the members of the Board with some understanding as to how and why it is that I came to stand before you this morning.

In the summer before I started college, my father and I took a tour of a Navy ship during "Sea-Fair", an event held in Seattle each summer. The Petty officer who was conducting that tour used a phrase that stuck in my mind. The words were "while America sleeps." I remember a sudden awareness that there were all sorts of people all around the world in the military on patrol, at sea,, in planes, and on borders who were keeping the world safe from what, at that time, seemed a very real threat, the Soviet Union.

I decided that for at least some part of my life, I ought to be one of those people. I joined the Navy ROTC program at the beginning of my freshman year at Washington State University. I chose the Navy because it offered the most diverse jobs among the services, and I hadn't decided yet what I wanted to do.

Along the way I chose aviation, mostly because my friends did, but I had the aptitude ratings and the vision. After graduating and commissioning, I attended flight school in Pensacola and Corpus Christi before starting my first operational tour in Patrol Squadron NINE at Moffett Field, California.

I enjoyed my tour in VP-9 very much. I got the chance to see a lot of the world with my crew, flying low over the edge of the polar ice cap, buzzing camels at the end of the runway in Saudi Arabia, riding mopeds on the wrong side of the toad in formation in Bermuda, and witnesses the seediness and squalor of Olongapo in the Philippines.

I have many great memories of VP-9, not only the places that I visited or the professional satisfaction of knowing that my crew or my department had done well, but more importantly, the people. I made some really great friendships there. I've only just recently realized how great some of them really were.

After my tour in VP-9, I was selected for a Joint Chiefs of Staff Internship. I came to Washington to work in the Strategy Division of the Strategic Plans and Policy Directorate on the Joint Staff. My tour there was by far the most demanding of my career. Eleven-hour days were the norm. I became a creator of visual aids used by senior leaders for briefings, congressional testimony, and press conferences. The pressure was intense, both to meet the deadline and to get the substance right, but I loved it. Important people seemed willing to listen to my ideas, and in some small way, I really felt that I was contributing to major policy decisions. It was a rewarding experience, and I'd like to serve there again.

After the Joint Staff, I came to work in the front office of PERS-5/Nl2, the Total Force Programming and Manpower Division. In my two years there, I've worked directly for four different Admirals as they rotated through my office. I've learned a lot from them. They've all been good to me and I appreciate it.

I am a good officer and I've done well in the Navy. I'm proud of my service. I am not proud, however, that during my career I've had to pretend to be someone who I am not, creating nonexistent girlfriends, feigning interest in women that I didn't really feel, smiling knowingly when shipmates asked me whether I had gotten lucky, and allowing them to believe that I had. But being forced to pretend about who you are takes an emotional toll.

In the Spring of 1992 I had the privilege of accompanying General Powell and Secretary Cheney during various appearances before Congress. My job was to coordinate with the committee staffs and to assist the General with the visual aids which I had created for his testimony. At one such hearing before the House Budget Committee, General Powell was questioned rather harshly by Representative Barney Frank about his views about homosexuals in the military. As General Powell spoke about the negative effect gay servicemembers would have, as though there weren't any in the military, while I sat right behind him. I was deeply ashamed for not having the courage to stand up and say, "I'm, right here, General, and that's not true."

When President Clinton announced his intention to lift the ban shortly after taking office, I was elated, believing that I would finally be able to stop pretending and serve openly. But I watched with despair as his initiative produced a political circus, and I was amazed and offended by the outrageous stereotypes of gays relied upon by some policymakers. I went through a period where I thought seriously about resigning from the Navy, wondering whether I could stay in until retirement, having to keep up the facade.

When the "don't ask, don't tell" compromise became the law of the land, I decided that I had to act. Because I had done well in the Navy, and because I was known personally by the very Admirals who would be charged with implementing this policy, I knew that there could be few in a better position than I to help change the stereotypes and ignorance that had created it. In addition, I felt that everything the Navy itself had taught me, honesty, courage, and personal integrity, demanded that I stand up and in my own small way set the record straight.

Last December, while at home on leave I did the single most-trying to decide whether to come out to the Navy, I did the single most difficult thing I have ever done. I told my parents that I'm gay. I did so not knowing what their reaction would be or whether that would be the last day that I would ever see them. I didn't even take my luggage out of the car before I told them, fearing that I might have to go straight back to the airport. Their reaction, happily for me, was one of unconditional love and support. Then I told them that I intended to come out to the Navy. Though they were concerned about how I would be treated, and the legal ramifications of my coming out, they pledged their total and unconditional support.

After that very positive experience, I proceeded to tell the rest of my extended family. I cannot tell you how cathartic it was to be finally open about who I am and to find that they all still loved me. It was definitely the best Christmas, ever.

On Wednesday the 2nd of March, after reading the NAVADMIN message to the fleet announcing implementation of the new policy, I presented a letter announcing my orientation to my reporting senior, Rear Admiral Konetzni. His reaction was one of calm understanding and respect for the convictions that had led to my announcement. Though he said he would act in accordance with the requirements of the new policy, he said that he saw no reason for me to be moved from my current position.

After notifying Admiral Konetzni, I provided copies of my letter to the other Admirals for whom I have worked, and to some of the people with whom I work now, and those who work for me. Their reactions were wonderful. Rear Admiral Ryan told me that it didn't change his opinion of me. When I told Rear Admiral Gunn, who was then the Admiral most directly responsible for implementing the new policy, that I hoped he would not be embarrassed by the great fitness reports that he had given me, he told me that he didn't regret a word of them.

My peers and subordinates were similarly accepting, and in the ensuing days, as more people learned of my announcement, many approached me and offered their support. A common theme in these conversations was that I had changed their impressions of homosexuals. One Commander, for example, told me that I had precipitated a lot of soul-searching about stereotypes among himself and the other officers in his division.

With regard to the morale and productivity of my office, I'm sure that all involved would support me in saying that my announcement has had absolutely no negative impact. My ability to do my job, work effectively with peers and seniors, and to command respect and obedience from my subordinates has not suffered, and, indeed, has improved as a tremendous burden has been lifted from my conscience.

To this day, though hundreds of people with whom I work know that I'm gay, I have not found a single person who has said anything remotely negative to me, or altered in any negative way the manner in which they relate to me. Surprisingly, many of the people with whom I interact daily have been far nicer to me since my announcement than they ever were before. This general acceptance leads me to believe that the vast majority of the servicemembers would have no problem accepting my orientation.

Although initially, as with my parents, I really didn't know what to expect, the whole experience of my coming out and the reception from my shipmates over the last three months has convinced me that, in future assignments, I will be able to overcome any prejudice or discontent with my presence, once people come to know me as a person and as an officer, rather than as a stereotype.

My loyalty and dedication to this country and to the Navy has not and cannot be questioned. My performance and my record are also not in doubt. So what is this about?

We are here today because of my declaration, words, a statement of who I am and what I am, not an admission of a crime. I am gay, and I'm not ashamed of it.

Based solely upon that declaration, and without any accusation or evidence of misconduct, I am now told that in order to continue my naval career, I must defend myself against a presumption of guilt. That's just not right. No other proceeding imposes such an unfair burden on an individual.

If this proceeding is about me, then I hope that you will conclude that I should be retained, based upon my performance and contribution to the Navy. With each passing day, the positive reactions of my shipmates give me more and more reason to believe that I can serve effectively as an openly gay officer. Given that opportunity, I believe my shipmates are capable of judging me for my abilities and individual worth to my unit, rather than on the basis of preconceived notions, stereotypes about homosexuals. I only ask that you do the same.

If, after all you've heard today, the members of this Board wonder why I have not done more to rebut the presumption that I engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. I will try to explain.

Preparing for this Board has been the most degrading experience of my life. The process of asking people with whom I've served, and do serve, to appear as witnesses or for statements on my behalf has been truly humiliating. Many have voiced concerns about possible retaliation by the Navy, and the support of those who have appeared and submitted statements is truly courageous. I am honored by their willingness to stand up for me and what they've said about me. I owe them a great debt, but I shouldn't have had to ask them, and they shouldn't have had to risk their careers.'

I will not go further in degrading myself by disproving a charge about sexual conduct that no one has made. I rest on my record and the testimony that you heard yesterday, that I am and can continue to be an effective and professional officer in the United States Navy. I thank the Board for their attention.

LA: Mr. Lynch, does the respondent have any further evidence?

CC [MR. LYNCH]: That concludes the presentation of our evidence, thank you.

LA: Does the recorder or ----

CC [MR. LYNCH]: We would like to have the written statement ---LA: Appending to the record, certainly.

CC (MR. LYNCH]: Thank you.

LA: Does the respondent--excuse me, does the recorder anticipate further or rebuttal evidence?

REC: I'd like to take a recess at this time to confer and determine whether or not we will present a case in rebuttal.

LA: Okay.

REC: If that's acceptable.

MBR [CAPT ELLERMAN]: How long--how long are we talking about? How long do you need?

REC: Ten minutes, sir.

MBR [CAPT ELLERMAN]: Okay. We've got one question.

MBR [CAPT BAILEY]: Is what we just heard the same as Exhibit T2A?

LA: Yes. It would be inserted into your notebooks as ----

MBR [CAPT BAILEY]: He said held like it added, and I thought it was already there.

LA: Yes. Administratively, we will insert it into the record in that position in the notebooks If your folks could deliver that to the Board and they could start looking through the exhibits during the recess, you may desire to do so. I would suspect that if we have rebuttal evidence it probably would not be lengthy, in any case, anyway.

REC: It would not be.

MBR [CAPT ELLERMAN]: 11:10?

LA: Fine, sir.

[The Board recessed at 1100 hours, 24 May 1994.]

(The Board was called to order at 1115 hours, 24 May 1994. All persons previously present were once again present.]

LA: The Board's back in session. Does the recorder have evidence in rebuttal?

REC: Yes, we do. We have what is marked as--well, actually it's not marked yet. I'd like it to be marked as Government Exhibit 17, which is the National Defense Authorization Act for Fiscal Year 1994 Report. It is the Senate report, which we would ask to accompany the House report, which gives the findings of both houses of Congress as to their decisions as to the law and policy.

LA: Why don't we wait and see if we have an objection from the respondent before we publish it.

CR: The respondent has no objection to this exhibit.

[Document marked as Government Exhibit 17.1]

LA: Other matters?

REC: Give me one moment, sir. (Pause.] No, sir, no additional evidence. I want to make sure one thing is correct. When the assistant recorder clarified that government Exhibit 16 is not the actual bill that was passed. It is the House version, and you now have in Exhibit 17 the Senate version. I want to make sure that the understanding is correct, that it was not withdrawn, that it was just explained what that exhibit is. I want to make sure that it had not been withdrawn, because if it had been withdrawn then I want to reoffer it as Government Exhibit 16 in rebuttal.

LA: I didn't take your remarks that he intended to withdraw it.

REC: Very well, I just wanted to make sure.

LA: Did the respondent or the Board draw that conclusion? Negative response. In any case, it is in evidence as Exhibit 16. Does the respondent have sur-rebuttal?

CC [MR. LYNCH]: No, we don't. I'm just constrained to point out, though, that there is a great deal of confusion now about Exhibit 16. It's a conference report, and, although its caption is "House of Representatives," a conference report is the product of the conference committee of both houses. Typically a conference report contains the language of the statute that then goes to the President for signature. I haven't done a line-by-line comparison of the statutes that we presented with this conference committee report. Sometimes there are clerical changes, but, as I say, I'm just constrained to point out that my understanding of legislative materials is that when you've got a conference report it represents the report of a joint House/Senate conference, even though it may, at the top of the document, say "House of Representatives" or in some circumstances say "The Senate."

REC: I would respond by saying that the government's understanding is that the documents are the same. If there's any question feel free to clarify that on your own, and I have no objection to the defenses characterization of what that report is.

LA: Sur-rebuttal from the respondent?

CC (MR. LYNCH]: Not evidence, no, sir.

LA: Captain Ellerman, at this point counsel for both sides have an opportunity to argue to you. After that I intended to give you a final instruction on the applicable law to be applied in your deliberations. It's now 11:20, and, of course, what hours we keep and when and if we break is a determination for you and the Board to make. I make that comment with regard to the fact that basically we have a couple choices. One would be to proceed now with the arguments and the instructions, and then either close for deliberations or go to lunch, or we could do lunch now and then do all of that after lunch, or, of course, if you don't want to, we don't have to take any break at all.

MBR [CAPT ELLERMAN]: Okay, we'd like to continue on at this time.

LA: To continue through?

MBR [CAPT ELLERMAN]: Yes.

CR: Major Stutzel, I have a point that I want noted for the record regarding instructions and regarding the prior objection of the recorder in this case, Lieutenant Dutton. This is regarding his objection to my client's unsworn statement. Contained in the MILPERSMAN at 3640350, regarding the conduct of a hearing. Now, granted that is an enlisted administrative separation proceeding, and this is an officer's administrative proceeding, but we believe that the conduct of the policies that are set forth there are equally applicable to this proceeding today. And contained at number four, conduct of the hearing, at subparagraph (a)(3), where it talks about submission of an oral or written statement, sworn or unsworn statement. It does say that, "If the respondent elects not to testify under oath, or if the respondent decides not to make any statement at all, the fact will not be considered against him or her in any way." We wanted to make that perfectly clear to the members, and have you instruct the members regarding that policy, sir.

LA: I thought I had done that. Maybe you didn't interpret that as strongly as it was intended, but that was what I was intending to say, was that, in fact, he had every right to make the statement that he made and that it could not be held against him that he elected to do it in that manner as opposed to some other manner or not at all. You've heard it right out of the MILPERS Manual, and I have no reason to argue with the Lieutenant that that doesn't equally apply here. Does the recorder desire to make an argument?

REC: No further qualification is needed, thank you.

LA: I knew you weren't going to argue about that. I mean, closing argument on the case.

REC: Yes, sir. Thank you, members, for your attention in I'm sure what, at times, could have been a very tedious presentation of evidence and arguments about the law. But I'd like to go through the elements and the law one more time, and discuss it with you in light of our understanding.

First of all you'll find in the CNO message that homosexual conduct is grounds for separation from Naval service. That's a verbatim quote from paragraph 8. The very first sentence, in fact, of paragraph 8 of the CNO's message says that under officer separation procedures. And then it goes on to say that homosexual conduct includes three prongs. First of all, the homosexual acts, and that's easy enough to understand, as defined in paragraph 3 of the CNO message. Second, a statement by a member that demonstrates a propensity or an intent to engage in homosexual act. Or, third, homosexual marriage or attempted marriage. Easy enough. Conduct equals an act, a statement, or marriage.

But paragraph (b)(2) of section 8 of the CNO's message goes on to say that an officer shall be recommended for separation if the officer has made a statement that he is a homosexual or words to that effect. Why? Because that is a statement of conduct included under the three prongs of conduct because, and I quote here, again, "A statement by an officer that he is a homosexual or bi-sexual or words to that effect creates a rebuttal presumption that the officer engages in homosexual acts or has a propensity or intent to do so."

Then I would note that once that presumption is raised the burden is on the respondent to show that no homosexual conduct exists, and that no propensity to commit homosexual conduct exists or intent to commit homosexual conduct exists. It's really that clear.

Much has been made by the four counsel for the respondent that this is all some muddy picture in the murky depths of an enigma wrapped in some sort of confusion and it's just not possible to conclude what the actual regulations and policies are. I submit that that's just not correct, and it is an attempt to confuse you into thinking that your job is something other than what it is. The regulations are very clear. A statement by a member that he is a homosexual raises a presumption, a rebuttal presumption, that he commits homosexual conduct, homosexual acts. And it is the duty of the Board to make the determination based on those regulations, as quoted out of the CNO message.

So a statement by a military officer that he is homosexual creates that rebuttal presumption. In one of those two ways, either the acts themselves, or the propensity or intent to engage in those acts, and remember that homosexual conduct on or off duty is grounds for separation.

Let's take a look at the evidence. Lieutenant Thomasson started the ball rolling himself with a letter to four Admirals broadcasting his homosexuality pretty clearly throughout the top echelons of one of the most significant commands in the Navy. That's about the mother of all statements of homosexuality. He said he had a burden and something he needed to get off his chest. Did he go tell a good friend over a beer? No. Did he disclose just to his immediate superior to get that burden off his chest and then let come what may? No, he did not do that. He wrote a letter, in fact, four original copies as Admiral Konetzni testified, to four Admirals all of whom were involved at some level in developing personnel policy for the Department of the Navy, put them in red-flagged folders, and handed them to them in their offices. That's the mother of all homosexual disclosures. It is guaranteed to draw maximum attention to yourself and your cause.

All right, even so, he could have stopped there, but he didn't. Soon after that Lieutenant Thomasson had a little gathering in his office, a cake cutting party in the anteroom to the Admiral's office. What kind of party was this? This was, when he was asked, it a coming out party." In the anteroom outside the door of the Admiral in charge of the Navy's manpower, this man cut a coming out cake to proclaim to all around him, those he was working with, "I'm a homosexual, now what are you going to do about it?"

So now we've disclosed to our superiors in a big way, in a red-flagged envelope, and we've dragged everyone that we work with into this little lifting of the burden from ourselves. So who's left? Well, the rest of the world, of course. So what do we do? We put a pink triangle on the back and front bumpers of our car; the international symbol of homosexuality. What does he do with that car? He parks that car next to BUPERS inside the gate so the pink triangles are clearly seen by anyone coming and going from the Navy's headquarters for personnel issues, on and off Navy property, in uniform, driving Admirals around town as part of his job as the Admiral's aide, to, as he testified, his embarrassment. This was not just one more statement of Lieutenant Thomasson's homosexuality. It was a statement to the world. Three clear statements--well, a multiple statement to the Admiral, several Admirals; statements made to all those around him - he was very open, the testimony was - all those around him in his office; and statements to the world on the bumper of his car. "I'm Lieutenant Thomasson. I'm a Naval officer. I work at the Headquarters, Bureau of Naval Personnel, and I'm a homosexual. What are you going to do about it?"

Okay, so how do these disclosures fit into the regulations? Well, let's quote the regulations again. "An officer shall be recommended for separation." That's the CNO's message. "An officer shall be recommended for separation if the officer has made a statement that he's a homosexual or words to that effect, because the statements creates the rebuttable presumption that homosexual conduct exists, either in the form of homosexual acts or propensity or intent to commit them." Do we have statements of homosexual orientation? Oh yes, we certainly do. Three clear statements by Lieutenant Thomasson that he's a homosexual.

So under the law, now what? What is it that we are required to do? Lieutenant Thomasson then has the burden to rebut that presumption. That is, he has the burden to prove to you under the law that he has neither committed a homosexual act nor has an intent or propensity to do so. He has, by his own conduct, and by his own choosing, brought this burden upon himself. No one asked him to create girlfriends. No one asked him to lie about whether or not he got lucky on a cruise. He did not have to shoulder the burden that he's here shouldering today.

He was serving perfectly well before he picked up the bullhorn, so to speak, and pronounced his homosexuality. The question now is has the evidence presented in court convinced you that Lieutenant Thomasson has not committed homosexual acts, nor has the intent to do so, nor has the propensity to do so? So, what do we know about that question?

He's provided evidence that his performance as an officer in the Navy has been very good. I described it earlier as enviable, his service record, and it is. You have it before you. Very good. But that's only part of the story. All right, we've got statements from defense--or the respondent's own co-workers, people that he's worked with. Now, I'd note, first of all, those are all co-workers, all people who deal with him during work hours. And the same thing is true of all the exhibits that you have. All--every single one of them of the statements by people are exhibits from co-workers. I would note particularly the three witnesses that came here today have little experience--they came here yesterday--have little experience in ship board life of the board--of the broad amount of experience of some of the first two witnesses that came, there was only a sum total of two sea tours. And, even at that, there was testimony of admitted prejudice to good order and discipline, and problems with Lieutenant Thomasson's command despite the fact they work with him in a staff position and found that to be quite acceptable to them.

And also the defense exhibits--there's a lot of them, and I will comment briefly on each. The time it will take you to labor your way through them, I think speaks enough about them. But I want to comment brief y. First, let me say that the government didn't submit volumes of reports, volumes of different people's points of view simply because we don't believe it is relevant. We don't believe any of them are relevant. Obviously, you heard us arguing that. What is relevant is the regulation. It is the simmering out of all these policy issues and of all of the--all of the discussions and points of view that went into it. And Congress found, certain findings that you have in front of you in Government Exhibits 16 and 17, and Congress passed a law. That's what relevant to us, and Lieutenant Thomasson and his conduct.

Nonetheless, we've got the policy in front of us, but I would note that the policy decision that was made was based on the sum total of the information presented to these people, and you don't have that, unfortunately. You've only got a small slice of it. I'd ask you not to rely on that small slice for your decision, rather to rely on the policy itself, the regulations themselves.

Dr. Herek, the first expert's statement, again, that's a question. Does a statement amount to conduct? Well, the regulations say it does. The evidence may suggest that it does, as well, and we will talk about that in a minute, but more importantly the regulations say it does.

Then Dr. Rankin's expert statement. He disagrees with the policy. So what. This is the United States Navy. We have a duty to obey the law, not to decide whether we agree or disagree with the policy that someone else comes up with.

Dr. Shawver, the same idea. She doesn't agree. So what. No desire to commit homosexual conduct is something that some gay service members may feel, but they're still subject to the same policy as everyone else, the same regulations. And if you stop and think about that, it is not necessarily a logical conclusion either, that a person has no logical impulse to act upon his orientation, otherwise, how does it become his orientation?

Again, Dr. Korb's information, one person's spin on current policy. Dr. Korb is a man who once held a DOD post, seems to have some ax to grind, and, again, his spin on the policy is irrelevant. He says that it was never the intent of the policy to exclude a member on the basis of statements alone. Well, what we have before you is the regulations that say, "statements that I am homosexual brings a rebuttal presumption." The presumption is that conduct goes hand and hand with that., Whether that was what Dr. Korb ever intended or what he believed anyone else ever intended is just not relevant.

I won't belabor this anymore, but the point, I think is clear, that what someone else's version of the policy ought to be or what someone else thinks about homosexuals is irrelevant given the regulations that we have and we're here to abide by and follow in light of the actions taken by Lieutenant Thomasson.

The last question, I guess, becomes "What does Lieutenant Thomasson have an intent or propensity to do, or what has he done?" Has he, to the satisfaction of your minds, rebutted the presumption that he coincidental with his statement has in the past committed homosexual conduct or intends in the future to commit homosexual conduct? Has he provided evidence that his conduct, in the sum total of its existence, has he provided evidence to you that makes you believe that there is no propensity, no intent, no acts? Well, I'd start by pointing out that in a Congressional finding to 10 U.S.C. 654 they noted that the standards of conduct for members of the armed forces regulate a member's life 24 hours a day, beginning at the moment the member enters military status and not ending until that person is discharged. Well, all the evidence presented by the respondent concerns specifically what took place within the office confines. I'd point that out, that there is no specific evidence offered by the respondent at all what happens the rest of the 16 hours a day. It is conspicuously absent, any information about his off-duty conduct, except--well, I'd note conspicuous absence seems to be to draw the implication that, "Hey, as long as I do really well at work, what does it really matter or whose business is it what I do on my own time?" That's just not so. We know that the standards of conduct apply 24 hours a day. Congress found it, and we know it as military members. Military life--and I'm quoting the Congressional findings again--"is fundamentally different from civilian life, and the military must exist as a specialized society." I urge you to carefully read Government Exhibits 16 and 17 as it is most enlightening in this regard.

What do we know about the respondent's behavior outside the antiseptic office environment? Not a whole lot, really. But what we do know, for instance, is one fact in particular brought out by Admiral Konetzni that Lieutenant Thomasson had a discussion with Admiral Konetzni about his membership in the Washington Gay Men's Chorus. Well, at least that clearly points out that he seeks the company of homosexuals outside the day-to-day work grind. I mean, if you think about it, how many other choirs are there in the Washington, DC area? I won't even begin to guess. But Lieutenant Thomasson sought out a gay men's choir and performs with it. He must spend some time--some significant amount of time in rehearsing and preparation. This is clearly some evidence that Lieutenant Thomasson does have a propensity or intent to commit homosexual conduct.

The presumption, therefore, that he raised by forcing the issue of his homosexuality upon his supervisors, upon the United States Navy, upon the public and upon this Board; that presumption is unrebutted. And the government, therefore, asks you to separate Lieutenant Thomasson. But as to characterization of service, it is undoubtedly honorable. There is just--from the minute we walked into this courtroom there has been no question that it is undoubtedly honorable. That's never been an issue here, but the regulations are laid out before you and so is the evidence. The government asks you to apply the regulations to the evidence you've seen and to separate Lieutenant Thomasson from the naval service with a honorable discharge. Thank you.

CC [MR. LYNCH]: Members of the Board, thank you. In my opening statement I ask for your patient attention and by everything I have observed we have received that and we are very grateful for it.

My closing statement, like Lieutenant Dutton's closing statement, will touch in some part on the law, the regulations that are involved here, and in large part the evidence. There is a great deal of evidence before you, and I think that it is unlikely that I would complete my review of the evidence by 12:00 or so. I understand if, at some point, you want to break for lunch, feel free to interrupt me. I can easily suspended my comments at some point, if that's your pleasure. On the other hand, if you want to go all the way through, I can do it either way.

Let me say a couple of things preliminary about the regulation, then I'm going to talk about the evidence at some length, and then I'm going to come back to the regulation to see how the evidence fits into the regulation. But for my preliminary comments about the regulation I just want to say a couple of things. As Lieutenant Dutton pointed out, under this regulation conduct-excuse me, under this regulation a statement is conduct. That's a strange concept. Something peculiar about that, that a statement can equal conduct. It's in the regulations. It is your duty to apply it. We have no quarrel with that. But you should keep in mind there is something unusual here, and you have to be very careful about applying something as unusual as the proposition that a statement equals conduct.

There is another strange thing about these regulations that I think you need to keep in mind. The government comes in and they establish, and it is undisputed, that the respondent made a statement that he was homosexual. There's no contest on that. Then something very peculiar happens. That's the end of the government's case. The burden shifts to the respondent. The respondent then has to come back and, as the legal advisor has pointed out, prove a negative. He has to prove that he hasn't done something. That's very peculiar, too, in American legal proceedings. It's in the regulations, you've got to apply it, that's your duty, we don't quarrel with it, but we do ask you to keep in mind that there are two very strange things about this regulation and you should be very careful in applying this regulation. And you are not stripped of discretion by this regulation. You are senior officers in the United States Navy, and I don't have to tell you--I hesitate to tell you, but I need to on behalf of my client, that whenever you apply regulations it involves the exercise of some discretion, particularly when officers get to the levels that the members of this Board have achieved, it is not simply a matter of applying regulations like robots, but exercising some discretion. I'm suggesting to you that in the application of this regulation you need to apply some discretion, some care, some caution, because there are two very strange things about this regulation.

All right, let me turn to the evidence now. I'm going to do this basically in three parts. First, I'm going to talk about Lieutenant Thomasson's record, then I'm going to talk about the declarations that have been submitted, and then I'm going to summarize some of the key points that the live witnesses yesterday made.

Now, Lieutenant Dutton has done something that any good lawyer does in the way he has addressed Lieutenant Thomasson's record. He comes right off the bat, says it's a good record, it's an enviable record, let's move on. He wants to get it out of the way quickly. We're going to submit to you that in determining whether Lieutenant Thomasson has rebutted the presumption, you should take very serious consideration of this record. I'm going to go through it in some detail, so that I'm sure that you're aware of it. And one of the reasons you should pay careful attention to this record is that the regulation, the CNO message, provides that we can rebut the regulation with any evidence that's relevant to whether it is likely that Lieutenant Thomasson has engaged in, intends to engage in, is likely to engage in, or has the propensity to engage in homosexual conduct, homosexual acts. So we can bring all these things in to bring to bear on that question, and as I've suggested his record is the first thing that we should begin with.

Lieutenant Thomasson was in ROTC in college. He went to flight school after college. He got his wings. He was then detailed to VP-9 at Moffett Air Force--the Moffett base. It's not an Air Force Bass, excuse me. In his first evaluation report he was characterized as a hard charging officer with absolutely unlimited potential. This is a theme that keeps coming back over and over again. This was an evaluation written by Commander Stromquist. As the fitness reports progress and the signing officers get higher and higher, this theme of absolutely unbounded potential keeps being repeated over and over again.

When he was just an Ensign he was characterized as someone with unsurpassed leadership skills. After being frocked as a Lieutenant, Lieutenant Thomasson was deployed overseas in July 1988, served in Saudi Arabia in connection with Operation Earnest Will when the United States forces were escorting reflagged forces through the Gulf. His Commander there had described Lieutenant Thomasson as "hands down by best branch or division officer. He was an officer who was able to evoke the best from his personnel through active involvement, genuine concern, honesty, and forthright communication. He is destined for great things."

After that assignment, Lieutenant Thomasson returned to Moffett Field and in his next evaluation he was characterized as a superb aviator. It was noted that he had unmatched determination to take care of his people. The Commander who signed that evaluation said that he was the best personnel officer and division officer in the world.

There is something interesting here I want to emphasize, that I think has come through, and I want to make sure that we focus on it. There are two things about Lieutenant Thomasson. He's not only a superb aviator, a superb technician, in other words an outstanding operational officer, he's also an outstanding staff officer. He has unique--a unique attribute in that regard, to combine both sides of what the Navy is looking for in its future leadership.

After another six months at Moffett, another Commander, Commander Feeks, did his next evaluation report. And, again, said that Lieutenant Thomasson is an officer with absolute unlimited command potential. Strongest possible recommendation for accelerated promotion. His performance has been brilliant. Nothing is beyond his capabilities. An exceptional leader. Possesses uncommon dedication to duty.

In 1990 Lieutenant Thomasson was deployed to Japan where he flew operational missions, tracking the movements of soviet submarines. There he earned recognition in his fitness report as an excellent tactical pilot, exceptionally cool under pressure and exhibits the maturity of a much more senior officer. Commander Feeks wrote, "Lieutenant Thomasson continues to amaze, there is literally nothing he cannot do," literally nothing he cannot do.

In his last six months at Moffett before being assigned to duty with the Joint Chiefs of Staff, Lieutenant Thomasson won a particularly coveted award. He was named the Navy's League's 1990 Junior Officer of the Year for Moffett Field. In his fitness .report, his Commander identified him as the squadron's preeminent tactical pilot, without a doubt the most talented junior officer I have ever known.

This is another theme that comes through. People, many people you've heard from in the course of this proceeding, identify him as the best. Either the best or the top four or five, top half percent. The superlatives attached to this man are unbelievable.

As has been noted, Lieutenant Thomasson, on the basis of his abilities and his record, won a highly coveted internship with the Joint Chiefs of Staff as his next assignment. In that capacity, he continued to win rave reviews. His signing senior, Admiral Krekich, wrote that Admiral Thomasson--or that Lieutenant Thomasson was a true super star, clearly ahead of his peers, one of the Navy's future leaders, without a doubt the top intern among a group of superlative junior officers assigned to the Joint Chiefs. In a handwritten note, Admiral Krekich wrote, "Outstanding flag Lieutenant with 3 or 4 star potential." Here is a Lieutenant being identified by an Admiral as someone with future 3 or 4 star potential.

During his assignment with the Joint Chiefs he won the notice of not only his Admirals, but of officers in the other services as well. The Chairman of the Joint Chiefs of Staff at that time, General Colin Powell, wrote a letter at the conclusion of his service with the Joint Chiefs thanking him, "for contributing immeasurable to the success of the Joint Chiefs of Staff during a critical period in the Navy's history." General Powell further wrote, "As a result of your efforts, the Chiefs and I were better able to carry out our responsibility of providing military advice to the President and the Secretary of Defense."

Following his tour at the Joint Chiefs of Staff, Lieutenant Thomasson, as you heard, went to the Bureau of Naval Personnel. His fitness--his first fitness report there was written by Admiral Gunn, who was Assistant Chief of Naval Personnel for Total Force Programming and Manpower. Admiral Gunn wrote that Lieutenant Thomasson is a winner who will continue to be a front runner in the Navy's future. One of the two best Lieutenants I have ever seen. My top pick--with top pick underlined. My top pick for early selection for Lieutenant Commander.

Lieutenant Thomasson spent another number of months under Admiral Gunn's command, and in the next fitness report Admiral Gunn wrote--again he wrote, "Lieutenant Thomasson is a true front runner who should be groomed for the most senior leadership for tomorrow's Navy. In the meantime," Admiral Gunn wrote, "if you are in your right mind," and he highlighted that, "if you are in your right mind you want Paul Thomasson working for you, whether the environment is staff or operational. He should be the very first, the very first among his peers to be selected for promotion to Lieutenant Commander. Has genuine flag potential."

Members of the Board, I would submit that this is a truly remarkable record, and one that should not lightly be disregarded in the determination that you must make as to whether this man can continue to serve in the Navy or whether he must be separated.

Now, let me turn to the declarations that have been submitted. You haven't had a chance to read these yet, so I will briefly summarize what they say, and, in some instances paraphrase, and in some instances directly quote.

One of the first declarations comes from Admiral Gunn. As weave heard, Admiral Gunn signed two of Lieutenant Thomasson's fitness reports. He executed a declaration on May 13 in which he points out that Lieutenant Thomasson has not worked for him directly since September 1993, but he says that Admiral Gunn has had many opportunities to observe Lieutenant Thomasson's work, and many of Lieutenant Thomasson's projects were closely tied to Admiral Gunn's work through May 13, 1994.

Admiral Gunn goes on to say in his declaration, which was signed on May 13, and this is two and a half months after--nearly two and a half months after Lieutenant Thomasson's announcement, that the level and quality of his performance remained high and he continued to do a superb job. Here we have Admiral Gunn stating that even after the announcement, Lieutenant Thomasson's quality of performance remained high and he continued to do a superb job.

There is a declaration from Dr. Parrino, a Naval doctor. He was the flight surgeon at VP-9, and he says that while on that assignment "Paul Thomasson distinguished himself from his peers in many ways, uncommon initiative, maturity, professionalism, and the rare ability to earn and maintain the respect of the enlisted personnel, his peers, and the senior officers." ;Dr. Parrino says, judged solely on the basis of behavior and performance Lieutenant Thomasson distinguished himself beyond all measure.

Lieutenant Commander Bristow, who has interacted with Lieutenant Thomasson daily since 1992 at the Bureau of Naval Personnel, says that there has been no change in the work environment since his announcement. She has detected no change in morale, and his announcement has not affected his ability to command respect from the two petty officers who work for him.

Chief Petty Officer Stephens, another declarant, who has had substantial sea duty, says that based on his 11 years in the Navy and his experience in the Bureau of Personnel with Paul Thomasson, the Navy can operate professionally and competently with business as usual and allow Lieutenant Thomasson to serve within the ranks. Chief Stephens, who, himself, has handled over a dozen homosexual cases as a personnel officer at sea says that Lieutenant Thomasson-excuse me, says that professionalism will be maintained by applying the United States Code of Military Justice. That's an important point to remember here. If Lieutenant Thomasson remains in the military, if we successfully rebut the presumption that his statement has imposed on him and you decide that he can stay in the Navy, Lieutenant Thomasson is going to be held to a clear code of conduct. If he violates that code by engaging in conduct that is prescribed by the Uniform Code of Military Justice or by other regulations, he can be separated on that ground. There are laws, there are regulations, that will be in place to ensure that he does not engage in any conduct that is inappropriate or disruptive to the military. That's a very important point to keep in mind. You're not going to be turning loose a rampant homosexual if you conclude in his favor at this point. He is going to be constrained by a very strict code which he will have to observe or he'll end up in another disciplinary hearing where the issue will be acts and not statements.

Another declarant, one Pamela Piasecki, who is a civilian employee at the Bureau of Naval Personnel, attests that she has seen no difference since Paul Thomasson's announcement--no difference in his capabilities or his performance as a fine officer. She said that for him to have openly admitted his homosexuality must have taken great courage. Indeed, she says, that throughout her division and the entire building the one word that stands out from everything she has heard about Paul Thomasson in reaction to his announcement is courage. This is another important theme that you'll hear over and over again in the declarations, and which you heard yesterday in the testimony. This man's announcement, as Admiral Konetzni said, was a moral act. It was an act of courage. I'll get to other people here who describe it as display of intestinal fortitude. This man, by his statement--by his statement--has impressed people with his level of courage, a quality which the Navy, I'm sure, holds high among all others.

Commander Kirk, who has worked with Lieutenant Thomasson at the Joint Chiefs and at the Bureau of Personnel, has found his work to be exemplary thorough out, and he says he has noticed no adverse affect on office morale or daily routine. Commander Kirk, who has commanded a ship, says that there will be subordinates and seniors who will react negatively towards Lieutenant Thomasson. But Commander Kirk puts these problems in the same category as racial discrimination, which, as we know, the Navy has done a remarkable job of overcoming. Indeed, a job that probably exceeds the performance of those in the--those of us in the civilian world. This is testimony from a ship commander that the prejudices that Paul Thomasson may encounter are ones that he can overcome.

There's another declaration from Rich Mazur. He's a GS-13 civilian in the Bureau of Personnel who has worked for the Navy for 13 years, and prior to that served in the Navy for 4 years. He says that his high opinion of Paul Thomasson has not been changed one bit since the announcement. Mr. Mazur reports that he did not see any change in the way people interacted with Lieutenant Thomasson or any lessening of respect towards him by junior personnel. In fact, Mr. Mazur observed the situation in the front office of Pers-5 has improved from very good to almost perfect. Mr. Mazur says that in regard to military manners and professionalism Lieutenant Thomasson has no equal in Pers-5. He says that if you want an example of a superb junior officer, you need look no further than Lieutenant Thomasson. As someone who served as an enlisted man in the Navy for 4 years, Mr. Mazur says that he would have been proud to serve with Lieutenant Thomasson.

There is a declaration from Petty Officer O'Meara. He regards Lieutenant Thomasson as an excellent officer, and an excellent leader. He says he hasn't changed his opinion since the announcement. He says that there are no jokes told about Lieutenant Thomasson behind his back, and there is never any reluctance on the part of the crew to assist Lieutenant Thomasson with anything. Petty Officer O'Meara says that the intestinal fortitude Lieutenant Thomasson is displaying is to be admired and respected. Because of what Lieutenant Thomasson is willing to put himself through, says Mr. O'Meara, indicates to me the Navy is fortunate to have him and would be even more fortunate to keep him.

There's a declaration from Petty Officer Goins. He's the leading petty officer in the Secretariat to the Chief of Naval Personnel. He says that his dealings with Lieutenant Thomasson since the announcement have continued on the same highly professional basis as before. He announcement has had no effect on Lieutenant Thomasson's ability to perform his duties regarding the Secretariat. Petty Officer Goins says that although the announcement was a shock to him and his crew, he was able to work with Lieutenant Thomasson with no problems or hesitation, and his crew has not expressed any displeasure or discomfort in working with Lieutenant Thomasson. Petty Officer Goins say that he gives Lieutenant Thomasson the same respect and loyalty that he gives to all superior officers, and that he would have no problem or hesitation in working with Lieutenant Thomasson in any capacity.

The two final declarations are particularly significant, I believe. They certainly struck me that way. They are from Senior Chief Petty Officer Anderson and Lieutenant Brandt. Let me describe the one from Senior Chief Petty Officer Anderson first. He's assigned to Pers-51, and he knows Lieutenant Thomasson in that connection. With 23 years of active duty as an enlisted man, he has this to say in his declaration. He respects Lieutenant Thomasson as a very professional officer. He also says that he, Petty Officer Anderson, is a very religious person. He personally believes that homosexuality is abnormal and immoral. Nonetheless, Chief Petty Officer Anderson says that Lieutenant Thomasson's announcement did not have any impact whatsoever on his ability to work with Lieutenant Thomasson and that he hasn't seen any difference in the way anyone else treats Lieutenant Thomasson. Lieutenant Thomasson, says Chief Petty Officer Anderson, is just as professional and militarily correct as ever.

Then the Chief Petty officer says something that I think is very important and goes to the heart of this proceeding. He says, and I'm quoting directly here, "If someone is caught in an abnormal or immoral sex act, or implicated by someone else as a participant in an immoral or abnormal sex act, then it is public and they should be subject to prosecution under whatever the current law prescribes, bearing in mind, of course, that the accused is innocent until proven guilty, not the other way around." This gets back to the point that I made earlier about something being a little strange about this regulation. And here, I think, reflected is the accumulation of 23 years as an enlisted man, someone who got to be a Chief Petty Officer, and he points out that the accused is innocent until proven guilty, not the other way round.

Finally, there is the declaration of Lieutenant Brandt. Lieutenant Brandt is a graduate of the Naval Academy whose career path has been nearly identical to Lieutenant Thomasson. They served together at VP-9 at Moffett. They came to Washington roughly the same time as interns on the Joint Chief--on the Joint staff, and, thereafter, they were both assigned to the Bureau of Naval Personnel. Lieutenant Brandt says that at times he has had a mild professional jealousy of Lieutenant Thomasson. He seemed to be an expert in everything. He was recognized as a levelheaded officer who cared for his troops, and he garnered greater respect from the enlisted ranks than any other officer in the squadron. Greater respect from the enlisted ranks than any other officer in the squadron.

Lieutenant Brandt also says that Lieutenant Thomasson consistently displays the integrity and demeanor of a gentleman. Now, let me point out here, too, that Lieutenant Brandt points out that he does socialize with Lieutenant Thomasson. They do go out to social events together. Lieutenant Dutton has attempted to make something of the fact that most of our declarations come from people concerned with the work environment, which only makes sense because, after all, it is disruption to the work environment that if there's any reason for this policy it would seem to be at the foundation. But there is evidence in the record from people who go out with Lieutenant Thomasson. That in all circumstances he displays the integrity and demeanor of a gentleman.

Lieutenant Brandt then says that his ability to work with Lieutenant Thomasson in the cockpit of an aircraft under any conditions remains unimpaired by the statement that Lieutenant Thomasson is homosexual. Lieutenant Brandt says that as a patrol plane commander and mission commander he wants a man like Lieutenant Thomasson flying with him. Lieutenant Thomasson's sexual orientation is a non-issue in the operational environment. Lieutenant Brandt goes on to say that moral courage is one of the hallmarks of the Naval profession that was dwelled on continuously during his four years at the Naval Academy. And that ironically Paul Thomasson, who didn't attend the Academy, displays the greatest level of moral courage that Lieutenant Brandt has ever seen - the greatest level of moral courage this Lieutenant has ever seen.

Lieutenant Brandt says that Lieutenant Thomasson has given consistently superlative service to sailors, operational commanders, and admirals. To dismiss this model officer, who has never displayed an ounce of dishonorable or even questionable conduct, would seem a great disservice to Lieutenant Thomasson and to the Navy.

Those are the declarations. Finally, let me summarize the live testimony that you heard yesterday. First, Admiral Konetzni, echoing all the fitness reports that you have before you, testified that Lieutenant Thomasson is one of the finest lieutenants he has known in the Navy and that he's a 4.0 performer. He was a 4.0 performer before his announcement, and continued to be a 4.0 performer after the announcement, said Admiral Konetzni. You also heard Admiral Konetzni say that Lieutenant Thomasson has done a fine job of handling the announcement, and that since the announcement, with the possible exception of the cake incident which occurred either the day of the announcement or the next day, as to which the Admiral immediately counseled Lieutenant Thomasson, but since then he has done a fine job in handling the announcement.

Admiral Konetzni further said that he has seen no change in the performance of his branch since the announcement. He also said that Lieutenant Thomasson's case is a pristine one and that he wrote the letter as an act of conscience.

Then there was Commander Hill, and as you recall Commander Hill was followed by Lieutenant Eisenzimmer. Lieutenant Dutton seemed to suggest that our witnesses don't have any experience in the operational environment. I'm hard pressed to understand how he can say that. Commander Hill enlisted in the United States Navy in 1968 and worked himself up through the ranks to his current position, which I believe is quite a distinguished one. Lieutenant Eisenzimmer was also an enlisted man. He got his wings as a naval air crewman even before he went to Air Officer Candidate School. As I've indicated, we've had the--the declarations have statements from a number of people with broad operational experience. As I just pointed out Lieutenant Brandt says that Lieutenant Thomasson is the kind of man he wants to fly with. I think we have ample evidence in the record from people with experience in the operational environment that Lieutenant Thomasson could serve there.

Let me go specifically, though, to what Commander Hill said. He testified that Lieutenant Thomasson is among the five lieutenants, among the hundreds and perhaps thousands that he has known, and that in making this judgment he is comparing Lieutenant Thomasson to a select group of pilots. He said that Lieutenant Thomasson has the drive not just to be a good pilot, but a good officer in every respect. In VP-9 Commander Hill said that Lieutenant Thomasson was the best branch officer of all. He engendered cohesiveness. Commander Hill said that Lieutenant Thomasson's potential in the Navy was absolutely unlimited. You've heard that from other evaluators as well.

When asked if Lieutenant Thomasson's announcement of his homosexuality changed his opinion of Lieutenant Thomason, Commander Hill answered "Not at all." Commander Hill also noted that it would have been easier for Lieutenant Thomasson to remain quiet, which Lieutenant Dutton would have preferred him to have done. But that he is a very principled man, and this is one of the things that Commander Hill admires most about Lieutenant Thomasson, his integrity. Here we have courage, integrity, precisely the qualities you want in a naval officer.

Commander Hill told us that he gives young officers a welcome aboard talk in which he tells them to be successful in the Navy they must have four qualities in roughly equal amounts: honesty, integrity, loyalty, and enthusiasm. Commander Hill said Lieutenant Thomasson has all four in great measure. Commander Hill testified that he would chose Lieutenant Thomasson for any mission, including combat missions, and his trust in Lieutenant Thomasson is not undermined at all by his homosexuality.

In the cross-examination of Commander Hill Lieutenant Dutton raised the question of the close quarters in which junior officers sometimes have to live on deployment to places like Diego Garcia, two men to a room with a common head, or on board ships, 6 to 8 junior officers to a bunk room with a common head. Commander Hill, who has experienced these conditions, said that he would have no objection to living with Lieutenant Thomasson in these circumstances.

Commander Hill acknowledged that Lieutenant Thomasson will encounter prejudice among those with whom he will interact. But Commander Hill also said Lieutenant Thomasson can overcome those prejudices, which are the problems of those who hold them rather than those against whom the prejudices are directed. Commander Hill said that because of Lieutenant Thomasson's unusual attributes he will be judged as an individual and not on the basis of a group stereotype, and that will be to the betterment of the Navy.

Lieutenant Eisenzimmer, his career path, too, has tracked Lieutenant Thomasson in many respects. He knew him at VP-9 where he was known to be a front runner. Lieutenant Eisenzimmer says he's continued that performance at PERS-5. Commander Eisenzimmer said that Lieutenant Thomasson is a real professional, and knows everything there is to know about everything that he is doing. Thomasson is among the top half percent of all the officers in the Navy, according to Lieutenant Eisenzimmer. He's the sort of person who finds things he wouldn't think about that make all the difference in the world.

Lieutenant Eisenzimmer testified that the letter didn't change his view of Lieutenant Thomasson's performance, or what it is like to work with him. It hasn't been an issue at PERS-5, Lieutenant Eisenzimmer told us. He said that he can't tell any difference in the attitude of others and that there have been no derogatory statements about Lieutenant Thomasson. Lieutenant Eisenzimmer testified that there will be some who will be uncomfortable serving with Lieutenant Thomasson, but if they can see past their prejudices, he said, they won't have a hard time.

Lieutenant Eisenzimmer also said that Lieutenant Thomasson will never do anything to disrespect the Navy uniform or himself, and, therefore, will never give a junior a reason to disrespect him.

Lieutenant Eisenzimmer, who I pointed out, spent 9 years in the enlisted ranks before going to AOCS, testified that he would have no reservations serving under Lieutenant Thomasson as an enlisted man. He said that all he required when he was an enlisted man of an officer was fairness and leadership. If Lieutenant Thomasson were not a great officer with those qualities he would not have gotten to where he is. Lieutenant Eisenzimmer testified that Lieutenant Thomasson is a very rare guy and that it would be an injustice to see him leave the Navy.

Finally, you heard from Petty Officer Trumbull, a true representative of the ranks. A very straight-forward--very straight-forward fellow, with a good native Washington tang in the way he talks. Petty Officer Trumbull testified that Lieutenant Thomasson is definitely one of the better officers in PERS-5. He testified that prior to Lieutenant Thomasson's announcement, Petty Officer Trumbull didn't think there was a place for homosexuals in the military, that he held all the usual stereotypes. But Petty Officer Trumbull said that once Lieutenant Thomasson told him that he was a homosexual, Petty Officer Trumbull automatically changed his opinion. His ability--Thomasson's ability to do his job is all that matters, and he has shown that he can do his job and be a homosexual. There has been no change in Lieutenant Thomasson's performance since the announcement, according to Petty Officer Trumbull, and everything is going on as usual.

Petty Officer Trumbull said that as for blacks and women, it will always be difficult for the pioneers, and it is going to be an uphill battle for Lieutenant Thomasson. But, reflecting on his own experience, Petty officer Trumbull said that once you know Lieutenant Thomasson and how smart he is, and how well he does his job, his homosexuality is just not a problem. Strong testimony; strong testimony that Lieutenant Thomasson can continue to serve in the Navy without any disruption.

Listening to all of these declarations and listening to the live testimony, I couldn't be help but be struck, perhaps the members were struck, if they're baseball fans, that this is somewhat, if not a lot, like the story of Jackie Robinson. Jackie Robinson was selected to be the first black in major league baseball because he was an extraordinary athlete, and extraordinary person. He overcame enormous prejudice and succeeded. He changed stereotypes. He changed the way people in this country think about blacks. I can't help but be struck that if you'll give Paul Thomasson that opportunity, he'll do for the Navy what Jackie Robinson did for baseball and for this country.

Now, let me get back to the law. You've got this presumption to apply. Now, there can be strong presumptions, and there can be weak presumptions. And I think you have to take that into account. What creates the presumption here is a simple statement, "I am a homosexual." There is absolutely no suggestion, the government has offered no evidence whatsoever of acts. Now, you could imagine some statements that create a very strong presumption that the speaker is likely to engage in homosexual conduct. Someone could say, for example, "I have suppressed my sexual identity for years and years. I have a seething and uncontrollable desire to give vent to that sexual orientation. I'm terribly attracted to people of the same sex, and I haven't been able to give vent that. I haven't been able to give expression to that for years, and, by gosh, I want to do it now." If someone made a statement like that, I would agree that creates a strong presumption that the speaker may engage or has the propensity to engage in homosexual conduct. But here, all we have is a statement, "I am a homosexual."

We've got expert testimony in the record now that says a statement of orientation does not indicate a propensity to engage in the conduct. You can take that and read it for what it is worth. But mostly what you've got in the record is that this Lieutenant is one of the most remarkable people to ever come through the United States Navy. You've got this weak presumption, and this tremendously strong amount of evidence that this is a phenomenal officer who has given tremendous service to the Navy, who has absolutely unlimited potential in his career, and all of that evidence, balanced against that puny presumption weighs in favor of a decision on his behalf in keeping him in the Navy. Thank you, members.

LA: Members of the Board, you've heard the evidence and the argument of counsel for both sides. Do you desire to take a break before I instruct you? Captain Bailey, you're shaking your head yes.

MBR [CAPT BAILEY]:, I need to ask a question. (Captain Bailey and Captain Ellerman confer.]

MBR [CAPT BAILEY]: I'm ready.

LA: The law to be applied in this case is the Department of the Navy's implementation of the DOD policy on homosexual conduct. You have copies of this instruction in your--I believe, in fact, it's in both sets of exhibits. It's the NAVADMIN Message 033-94 of the 1st of March. The specific provisions that set out the standards in the case are contained in paragraph B. I am just going to highlight those parts of that instruction which are appropriate to this case, which is an allegation of homosexual statement. So I will not be going into the details on those other sections of the instruction.

Homosexual conduct is grounds for separation from the Naval service, and homosexual conduct means homosexual acts, a statement by a member that demonstrates a propensity or an intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates the propensity or an intent to engage in homosexual acts is grounds for separation, not because it reflects the member's sexual orientation but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter and is not a bar to continued service unless manifest--excused me, unless manifested by homosexual conduct.

The definitions of those terms appear in paragraph 3 of the Naval Admin message. A "homosexual" is a person regardless of sex who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A "homosexual act" is bodily contact actively undertaken or passively permitted between members of the same sex for the purpose of satisfying sexual desires, and any body contact a reasonable person would understand to demonstrate a propensity or intent to engage in such an act. "Homosexual conduct" I have already defined for you as also a homosexual statement.

"Propensity" means to engage--propensity to an homosexual act--to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts. It indicates a likelihood that a person engages in or will engage in homosexual acts.

A Board of Inquiry shall recommend separation of an officer if that Board makes findings that the officer involved has made a statement that he or she is a homosexual or bisexuals or words to that effect, unless there is a further approved finding that the officer has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A statement by an officer that he or she is a homosexual, or words to that effect, creates a rebuttal presumption that that officer engages in homosexual acts or has a propensity or intent to do so.

I've already defined "propensity" for you.

In determining whether an officer has successfully rebutted the presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, you may consider some or all of the following--and this list-this list is not an exclusive list or an exhaustive list. You may consider whether the officer has, in fact, engaged in homosexual acts. You may consider that officer's credibility, testimony from others about the officer's past conduct, character, and credibility, the nature and circumstances of the officer's statement, and any other evidence relevant to whether the officer is likely to engage in homosexual acts. As I said, that is not an exhaustive list. Any other relevant evidence that you have received may be considered for that purpose.

The burden of proof at this Board is upon the respondent. He bears the burden of proof throughout this proceeding by a preponderance of the evidence that his retention is warranted under the limited circumstances which we have just discussed.

In preparing your findings for the case, I would refer you to government Exhibit 5, which is a findings worksheet. The only thing I see on here--I noticed you--within the meaning of paragraph 2. Is that intended to be paragraph 3 in the definitions there?

Essentially, in making your findings you have a multi-level decision process that you have to go through. First of all, you have to decide factually whether or not the respondent made-factually made statements. Your first legal findings is that it has to be a determination that the statements made by the respondent as to whether or not those constitute conduct, and you'll--I'll refer you back, again, to that definition of homosexual conduct in paragraph 3 of the order. Should you decide that his statement, if he made the statement, is not conduct, then by definition you have not--you have found that there is not evidence to support a separation. On the other hand, you might find that his statement-that he did make the statement and that statement does, in fact, constitute homosexual conduct.

If you do make that finding then, again, you have a decision to make, and that is whether the respondent has rebutted the presumption of homosexual conduct raised by his statement or has failed to rebut the presumption of homosexual conduct raised by his statement. If you find that he has rebutted that presumption, then, again, by definition you would find that there is not grounds for separation for cause under the recommendations. If, on the other hand, you determine that he, in fact, made a statement, that that statement constitutes homosexual conduct, and that he has not successfully rebutted the presumption that that statement indicates that there would be homosexual conduct, then you must by definition of the order recommend separation. And upon recommending--or determine that he has failed to show cause for retention, I should state. If he has, in fact, failed to show cause for retention in the Naval service then you must determine the appropriate conditions of and characterization of his service, and essentially that would be either honorable discharge or general under honorable conditions discharge. Characterization of service is not specifically defined any further than that in the order, but it doesn't seem like if it gets to that level that that was too much of an argument on that in any case. If you desire some further instructions on the distinction between honorable discharge and general under honorable conditions discharge, I have a manual with which I can provide you that instruction should you desire it.

Your--your deliberations are in closed session and there is a room that has been set aside for that purpose. or, should you desire, if you need more room, you could commandeer this space here and move us out. No one, needless to say, should be present but the three members of the Board during your deliberations. Should you need--this is not a court-martial, so you don't have to come back in open hearing to, you know, take head breaks like you would at a court-martial or anything of that nature, but if you desire to either determine that you need more evidence or you desire legal advice, then we should go back on the record in order to accomplish those types of matters.

MBR (CAPT ELLERMAN]: Your directions, do we get those in print?

LA: These specific ----

MBR [CAPT ELLERMAN]: Yes, the instructions that you just gave to the court.

LA: I read those right out of the Naval Admin message.

MBR (CAPT ELLERMAN]: The definitions, I know those ----

LA: Yes, sir, they are contained in paragraph 3 of the Naval

Admin messages, and then paragraph 8 is the officer separation processing procedures, and that findings worksheet was provided by the government as Government Exhibit 5 in your folder of government exhibits.

Are there any objections from either side to the instructions or requests for additional instructions?

REC: No,, sir.

CC (MR. LYNCH]: No, sir.

LA: Any questions about any of those instructions by the Board?

MBR (CAPT ELLERMAN]: Okay, we're fine. Okay, now, I guess the question is--I know about deliberations, but can we go to lunch before we come back and start deliberating, or how can we do that?

LA: Your choice, sir. Anyway you want to do it.

MBR [CAPT ELLERMAN]: Okay.

REC: Sir, before you leave, I would just note that the only purpose, as the legal advisor mentioned, that you have to come back on the record is if you want further legal advice or to announce the findings. I will make myself available if you want to come back on the record. I'll be here in an office two doors down the passageway.

MBR [CAPT ELLERMAN]: The only other question I have is there some type of worksheet that we fill out when we're done with deliberations?

REC: The findings worksheet, Government Exhibit 5, is what is typically used, sir.

LA: You can use that. If you'll take a look at that you'll see that basically by that elimination process ----

163

0 16 7

MBR (CAPT ELLERMAN]: I've looked at it, but ----

LA: Yeah, by the elimination process, as you go through it and determine which, you know, which of those steps you make your findings at ----if there

MBR [CAPT ELLERMAN]: All right, I just wanted to know was something besides that.

LA: ---- you cross-off the non-applicable portions of that and read your findings basically one in the paragraph at the top and one in the paragraph from the bottom. Did you all decide that you were going to lunch?

MBR (CAPT ELLERMAN]: Yes, we're going to go to lunch. We'll be back at 1315.

REC: Sir, where would you care to deliberate, here in this room or ----

MBR (CAPT ELLERMAN]: We'll use the deliberation room.

REC: Very well.

(The Board recessed at 1240 hours, 24 May 1994.]

[The Board was called to order at 1430 hours, 24 May 1994.]

MBR [CAPT ELLERMAN]: Before we read our results, I have two questions. First, I want to clarify, on Government Exhibit 5, the paragraph in the findings, we had a question whether that should be paragraph 2 or 3.

LA: Sir, that is incorrect on the finding sheet. It should be paragraph 2. It is a reference to the definitions.

MBR (CAPT ELLERMAN]: Paragraph 2 or paragraph 3?

LA: I'm sorry, here we go again. Paragraph 3 of the NAVADMIN message, which contains the definitions.

MBR (CAPT ELLERMAN]: It is also paragraph 2 on Government Exhibit 1.

LA: That's correct, sir. That's also referenced on their ---

MBR (CAPT ELLERMAN]: Okay, so that's incorrect, also?

LA: That is also incorrect.

MBR [CAPT ELLERMAN]: Okay, I just wanted to make sure.

LA: That's also a reference to definitions.

MBR [CAPT ELLERMAN]: The second question we have is when we read our findings, by looking at the guide, there's a statement on here that reads "By the vote of." Is that required that we give the vote?

LA: The guide that we use there, kind of a script, sir, is a guide for enlisted admin boards, so there are some differences between the procedures set up in that--under that order, and the provisions set up in the SECNAV instruction for administrative separation of officers. Now, having said that, there is nothing specifically in this SECNAV instruction that says you do or you do not list the votes at the time you announce them here in the Board. However, the instruction requires that all three members of the Board sign the report of the Board, which includes a verbatim record of the trial--or record of the hearing, rather, and that nonconcurring members sign the report and submit separate minority reports which would include the extent of non-concurrence with respect to whatever matter it was that that member did not concur in. So, I guess by implication you're not required if you don't feel comfortable with announcing the vote at this time, but if somebody does disagree then that person is required to put a minority report, and if there is no minority report, by inference, then the vote was three to nothing.

MBR (CAPT ELLERMAN]: I have no problem with reading the vote. Do the other members have a problem with that?

(Negative response from other members.]

MBR (CAPT ELLERMAN]: At this time shall I go ahead and read the findings and recommendations?

LA: Yes, sir.

MBR (CAPT ELLERMAN]: This Board of Inquiry has concluded in its deliberations the follows:

By a vote to three to zero, the Board finds:

The statements of Lieutenant Thomasson are statements within the meaning of paragraph 3 of CNO message 0103000 MAR 94, NAVADMIN 033-94, and the presumption of homosexual conduct thereby raised is not rebutted.

Recommendations: By a vote of three to zero, Lieutenant Thomasson has failed to show cause for retention in the Naval service, and he should be separated with an honorable discharge.

LA: Are there any other matters that the Board should consider before closing?

REC: The government has nothing, sir.

LA: Captain Ellerman, and the other Board members, thank you very much, obviously, for your hard work.

CC (MR. LYNCH]: Excuse me, Major, we just would request that the vote form be included in the record.

LA: That's--the findings worksheet that you used, that can be inserted back in the record as Exhibit 5, where it originally was. A verbatim record of the Board will be prepared by the court reporter, and you will be contacted by the Recorder at an appropriate time when that's been prepared. As I indicated, all three of you will need to sign. There will be a letter in there with a signature block.

MBR [CAPT ELLERMAN]: Okay, how long will that be?

LA: That I don't know.

REC: It is a little difficult to say, and if we could discuss it after we adjourn.

LA: I know they've started working on it already, but I have no idea.

MBR (CAPT ELLERMAN]: I'm sure that--of course, we're going to have to read through it in detail to make sure we know what we're signing, so that's going to take some time.

LA: I believe so, sir. In fact, I believe before it is referred to you all it's provided to respondent and counsel for examination prior to your signatures, sir, in accordance with the instruction.

MBR (CAPT ELLERMAN]: Okay.

LA: And they include in the record a statement that they've reviewed the record and note any deficiencies with regards to that, and append it as an enclosure to your report.

MBR [CAPT ELLERMAN]: This Government Exhibit 5 that we used, do we need to sign that? We don't need to sign this now, right?

LA: No, not at this point. It just needs to be included in the record and then--I believe that letter that you sign at the end, in fact, restates the findings.

MBR [CAPT ELLERMAN]: Okay.

[The Board adjourned at 1434 hours, 24 May 1994.]