Military Commander Sues after being Fired for Violating Post-DADT Repeal

In a scandal surprisingly little-reported by the mainstream press, a US Army aviator and commander was fired, reprimanded, forced to meet a retention board, and now faces a forced retirement — because he intervened when two uniformed officers participated in a “full blown make out session” on the dance floor during a unit formal ball.

The two officers were homosexual.

He has now filed a lawsuit saying but for that fact, the commander would not be facing the end of his career.

Two years ago, LtCol Christopher Downey intervened when he was notified that two female officers on the dance floor were acting inappropriately — and they were becoming the focus of an increasing number of cameras and cell phones.  (The behavior was described several ways, including “French kissing,” “grabbing each other’s butts,” and a “full-blown make out session.”)  Having just returned from commanding the unit in Afghanistan, where it had undergone an internal scandal involving women being videotaped while showering, LtCol Downey intended to put an end to the display of PDA and mitigate the potential damage of another sexual video scandal.

LtCol Downey approached the women, asked them to alter their behavior, and considered the matter resolved.  He also directed those around them to stop filming them, and he physically lowered the cameras of other troops who were taking pictures of the “display.”

One of the two women involved filed a complaint about the incident unrelated to LtCol Downey.  Allegedly, LtCol Downey left the dance floor after the confrontation to speak to someone who had been filming the two women. While he was gone, a Command Sergeant Major allegedly berated and then shoved one of the officers. That incident was (anonymously) public within days.  Reportedly, the investigator assigned to look into the woman’s complaint against the CSM discovered LtCol Downey had physically pushed a Soldier’s camera down and, in an allegedly false statement by the investigator, broke the Soldier’s nose.

The investigator also concluded that the two women’s conduct was not any different than anyone else’s — so LtCol Downey violated military policy by discriminating against them on the basis of their sexuality.

As a result, LtCol Downey was recommended for non-judicial punishment.  LtCol Downey opted for a court-martial instead, but was told he would have to hire and pay for a civilian lawyer. He acceded to the Article 15.

Interestingly, LtCol Downey’s interaction between the two homosexual officers wasn’t one of the charges in the Article 15 hearing, yet that was the topic of an “inordinate amount of time” of the meeting, according to his lawsuit. For example, he was required to review a binder of photographs from the evening and judge them for relative appropriateness — and apparently explain why he didn’t intervene in them.

Ultimately, LtCol Downey was reportedly found guilty of assault, based on him physically lowering the camera held by one of the people photographing the “make out session.” Oddly, the alleged victim of the assault was reportedly prepared to testify that he had not been assaulted, and medical evidence proved no one had broken anyone’s nose (or anything remotely similar).

LtCol Downey was removed from command, given a referral performance evaluation, and removed from consideration for attending the National War College.  He received two reprimands — one for the assault, and one for violating Army Directive 2011-01 — which is the Army’s promulgation of the repeal of the policy known as Don’t Ask, Don’t Tell.  In totality, the outcome effectively ended his career.

As a result of the referral OER, LtCol Downey was forced to face a “show cause” board to justify his retention in the Army. According to LtCol Downey’s lawsuit, the board found the alleged assault — the root incident of the entire situation — “was not supported by a preponderance of the evidence.”

Though he appealed to have the Article 15 and negative documents removed from his records, they were retained.  With these administrative black marks on his record, LtCol Downey has now been passed over for Colonel twice, and he is facing a forced retirement board.

Since his attempts to have the (allegedly false) derogatory information removed from his record have failed, he has exhausted the Army’s internal remedies. With the assistance of the Thomas More Law Center, LtCol Downey filed a lawsuit (PDF) seeking to have the negative information removed from his files and his promotion status re-evaluated based on his prior record.

The lawsuit alleges LtCol Downey’s leadership was more concerned with a scandal involving homosexuals at a military ball than giving LtCol Downey a fair hearing.  According to the lawsuit, recent statements by then-Secretary of Defense Leon Panetta making clear that the repeal of DADT was a “non-event” inspired LtCol Downey’s leadership to ensure it remained a “non-event” in their unit, even if it meant an unwarranted targeting of LtCol Downey.

For its part, the Thomas More Law Center explicitly said LtCol Downey was convicted with regard to a post-DADT discrimination issue:

Mr. [Richard] Thompson [of the TMLC] said Col. Downey’s commanding officer also convicted him of violating the directive that ended the ban on gays openly serving in the military.

“It’s political correctness run wild,” Mr. Thompson said. “Military rules do not apply to lesbian officers because of political correctness.”

The lawsuit says that early on in the incident — before any formal investigation was even complete — LtCol Downey was told he would be reprimanded for post-DADT repeal discrimination. Combined with the tone and content of questioning during his Article 15, LtCol Downey’s lawyers appear to be making the case that the charges were not only “false” but “politically-motivated.”

It’s a fascinating chapter to the open service of homosexuals in the US military.  Even as the DoD maintained there were no issues with repeal and it was a “non-event,” the Army had fired a commander for discrimination under those very policies — and he was not fired for the culture he oversaw as commander (which even the homosexuals under his command defended), but for a single — and disputable — incident.

It is also noteworthy that religious beliefs are irrelevant to the case.  Within the details is the accusation that LtCol Downey was faithfully, and equally, applying Army policy while the Army itself was participating in “special treatment” to avoid “media attention, offending homosexual advocacy groups, and contradicting the Department of Defense’s position that repeal of DADT was being successfully implemented.”  Equal treatment with regard to sexuality is certainly at issue, but religious beliefs are not.

If the events occurred as described in LtCol Downey’s filing (and there are always at least two sides to a story), he may very well have a strong case.  The assault charge certainly appears dubious, based on his account and the report that the “victim” is prepared to testify he wasn’t assaulted.

The charge that LtCol Downey discriminated against homosexuals by singling them out and ignoring the conduct of heterosexuals is similarly disputable.  First, multiple witnesses in the Army’s own investigation described their conduct as both inappropriate and different in degree than that by others that night.  Second, the “scene” they were creating was different than that created by heterosexuals.  Heterosexuals “making out” on the dance floor didn’t attract the peer-paparazzi — or media attention — that homosexuals did.  As the commander, LtCol Downey acted for the good of his unit in direct response to the inputs of his subordinates.

The Army placed LtCol Downey in command, and gave him latitude to act as the commander.  Traditionally, the courts are averse to interfering with the command relationship within the US military.  It will be interesting to see how the courts view both LtCol Downey’s actions as the commander — and the Army’s application of its oversight of his command.

Also at the Christian Examiner, the Stars and Stripes, the Patriot Post, BizPac Review, the NY Daily News, and OneNewsNow,