Sexual Harassment Part II

man placing his hand over woman's hand

Sailors, Marines Convicted of Sexual Harassment, Adsepped, May Be Entitled to Backpay

Part II: How We Discovered That The Secretary of the Navy Self-Cancelled His Instructions

In Part I of this post, we discussed how the Secretary of the Navy created an instruction in 2014 that cancelled his standing order against sexual harassment, hazing and many other general orders, meaning if you were convicted of violating these instructions or separated under them, you may be entitled to your career and benefits back. You might be asking how this was eventually discovered.

Fast forward to 2017, when I was an active duty JAG serving as the Senior Defense Counsel of U.S. Navy Defense Service Office Southeast, representing a Navy SEAL in Norfolk, Virginia, falsely accused of serious sexual assault, rape and aggravated assault crimes, among others. The Government tacked on sexual harassment as a less serious charge. After a hard-fought trial at general court-martial, which included the introduction of crucial evidence our investigation uncovered that the accuser had gone forward with this allegation because she was jealous my client would not commit to a relationship with her, my client was exonerated of all serious charges. He was only convicted of sexual harassment (as an Art. 92, UCMJ, violation of SECNAVINST 5300.26D) and simple battery.

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Timeline of Events

In working on my clemency petition after that trial ended, SECNAVINST 5215.1E came to my attention, and I realized that SECNAVINST 5300.26D (sexual harassment) did not exist at the time my client was accused of violating it. Simultaneously, I was also representing a Marine non-commissioned officer (NCO) also accused of violating SECNAVINST 5300.26D (sexual harassment) after it had self-cancelled. Initially, it seemed crazy that the Secretary of the Navy had inadvertently cancelled hundreds of his instructions, but after researching the issue further, my staff and I decided we were on to something. When Navy trial counsel from Norfolk asked SECNAV’s office to provide an explanation, thinking it would easily resolve the issue in their favor, instead full panic mode seemed to set in.

First, we got an affidavit from a civilian employee in SECNAV’s office who was obviously not a lawyer explaining that they never meant to cancel the sexual harassment instruction and that we should ignore the plain language of SECNAVINST 5215.1E and just take their word that they meant something else.

Then we got another affidavit from a different employee saying essentially the same thing. Then SECNAV’s office appeared to hunker down to the point that even the prosecutor’s office could not get anyone from SECNAV’s office to return their calls. Finally, in a move that could have been scripted by Monty Python, the new Secretary of the Navy, Richard V. Spencer, who had been in office for just over a month, signed an order officially in late September 2017 cancelling the self-cancelling instruction, SECNAVINST 5215.1E, and claiming that all the instructions it canceled were back in effect. Of course, in doing so, he not only admitted that his office had caused these instructions to automatically cancel through his subsequent remedial measure, but he also failed to correct the problem. Once the instructions cancelled, they cannot be resurrected. He has to promulgate them anew. So there is a good argument that sexual harassment, hazing and the like are not illegal to this day under any SECNAV Instruction.

Ultimately, we were the first to raise this issue in court, and the first to be granted relief on it. In the SEAL’s case, we persuaded the Navy Admiral in command of U.S. Navy Region Mid-Atlantic, and his JAG, to overturn his sexual harassment conviction as part of his final post-trial Convening Authority’s Action, something that almost never happens. Today that conviction no longer exists. And in the case of the Marine, the Government actually agreed to withdraw all of their Art. 92, UCMJ, charges based on SECNAV Instructions, and they stopped charging any future defendants with violating any SECNAV Instructions, and were forced to find other ways to charge sexual harassment.

Today, there is ongoing litigation at the Navy-Marine Corps Court of Criminal Appeals (NMCCA) in Washington DC to decide this issue once and for all. In U.S. v. Shields, NMCCA No. 201600133, a case my Assistant Senior Defense Counsel in Norfolk defended, NMCCA has been asked to decide whether a Sailor’s 2015 sexual harassment special court-martial conviction can stand in light of SECNAVINST 5215.1E. If the Court decides in favor of the appellant, that should signal anyone with such a conviction during this time frame to find a lawyer specializing in military law to help them get their conviction overturned.

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What Can You Do?

There are a couple of things you can do if you fall into one of these categories. If you had, say, 18 years of service or more but did not have a retirement vested because you had not yet reached 20 years of service at the time you were separated for sexual harassment, then you lost millions of dollars in retirement benefits that you may be entitled to. In that case, you may be able to ask NMCCA to hear your case to challenge the conviction. If you were administratively separated, you may also need to appeal to the Board of Corrections for Naval Record, or the BCNR, to have your separation reversed. You might also have the option of fighting for your rights at the Federal Court of Claims. With so much riding on it, it is important to speak to an attorney about your rights. Unfortunately, after separation, you are no longer eligible for free legal advice from a JAG Defense office, so you will need to speak to a civilian attorney to make sure your rights are enforced.

Even if you do not have millions of dollars of retirement money invested in this issue, you still can benefit from challenging your sexual harassment court-martial conviction, administrative separation or BOI. It can lead to a restoration of your benefits, getting your military career back, getting a new DD-214 with more favorable language, expungement of your conviction, and backpay for forfeitures from your paycheck that you should not have had to make, etc.

At the end of the day, no one should suffer the effects of having their military career tainted for violating an order that did not exist. Nor should any Sailor, Marine, Coastguardsman, Soldier or Airman lose their career if the rules were not followed. If this has happened to you, you should seek help from an expert to correct it.

Secretary of the Navy Ray Mabus, whose office was responsible for self-cancelling perhaps hundreds of instructions, including the instructions criminalizing sexual harassment and hazing

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