The Army broke its own rules in its punishment of an officer who, following military protocol, intervened to stop a public “make-out” session by two lesbian subordinate officers, contends an appeal to the U.S. Supreme Court.
Lt. Col. Christopher Downey was cited for assault for bumping a camera that inadvertently hit the nose of an Army staffer who was trying to capture the scene on video.
The Thomas More Law Center of Ann Arbor, Michigan, this week petitioned the high court to “correct the injustice done to Lt. Col. Christopher Downey after the United States violated its own regulations, effectively ending his stellar career.”
The problem, according to his legal defender, the Thomas More Society, is that when his complaint was working its way through the lower courts, he was required to prove his innocence using a “clear and convincing” standard of evidence, rather that the statutory “preponderance of evidence.”
The legal non-profit explained that in a footnote, the U. S. Fourth Circuit Court of Appeals “acknowledged that the Army applied the incorrect burden of proof to LTC Downey’s case, contrary to its own regulations. ”
However, it shrugged off this fundamental error, the complaint argues. Downey’s petition to the Supreme Court contends the error was “so manifest and so serious that nearly every other appellate court in the land would have required the Army’s final review board to rehear his case. ”
“The Fourth Circuit Court of Appeals threw away the exceptional career of Lt. Col. Downey in a footnote,” explained Jay Combs, a TMLC attorney and the main author of the petition.
“The issue that the Fourth Circuit so cavalierly disposed of in a footnote was so serious that nearly every other circuit in the United States, on this issue alone, would have reversed the entire Army Board process without the need to even address any of the other issues in the case. Most circuits recognize that the rule of law is dealt a crippling blow if an agency does not have to follow its own regulations,” he said.
TMLC said Downey was on his way to becoming a high-ranking officer in the Army, “as evidenced by the glowing remarks from his commanding officers.”
In 2012, his aviation battalion was recognized as the best in the U.S. Army. He was honored with three Bronze Stars and seven Air Medals, one with a “V” device for valor in combat.
That came after May 25, 2011, when, in “complete disregard for his own safety,” his actions were decisive in “saving the lives of soldiers on the ground.”
Former Secretary of the Army Louis Caldera wrote of Downey, “As former SecArmy I had the honor of working with strong officers daily, Chris Downey stands out among them. A clearly superior performance by a leader with phenomenal potential.”
And Marcy Steinke-Fike, then White House Military Office Operations Director, said: “He is clearly in the top 1 percent of the handpicked officers of the White House Military Office Operations Directorate and in all of the lieutenant colonels I have known in my 20 years of military service. Chris planned the most sensitive and complex missions in support of the president, vice president, first lady and other White House delegations. Absolutely unlimited potential – a future general officer!”
Said the petition: “The Code of Federal Regulations entitles a soldier to relief from an unjust or erroneous military decision when the soldier demonstrates the error by a preponderance of the evidence. The Army Board for the Correction of Military Records denied such relief to the petitioner, explicitly and illegitimately holding him to the far more onerous burden of clear and convincing evidence.”
The appeals court insisted on the more onerous test, even though the Second, Third, Sixth, Seventh, Ninth and Eleventh Circuits have held otherwise.
“In the decision below, the Fourth Circuit acknowledged that the Army violated its own regulation … nevertheless, the court of appeals applied a harmless error test, declining to remand the case for a rehearing by the administrative board.”
Downey has been trying to get the documentation regarding the incident with the lesbians removed from his personnel file.
He argues he was cleared of the “majority” of charges stemming from the incident, leaving only the “assault” count for pushing down a camera that inadvertently hit a soldier’s nose.
A ruling from a board of three senior Army officers “unanimously determined that the allegations against … Downey were not supported by a preponderance of the evidence.”
Despite that ruling, “the prior contrary findings of the Article 15 hearing remained a part of … Downey’s official record,” so he petitioned for relief.
Richard Thompson, president of TMLC, said: “There is no question in my mind that Lt. Col. Downey was a victim of the military’s efforts to appease homosexual advocacy groups. As a result of political correctness gone amuck, America lost an outstanding combat commander who had given his country over 24 years of loyal service.”
WND reported earlier that Downey had responded after reports that there were two lesbian subordinate officers engaged in a French-kissing “make-out” session described by a witness as “full-blown … grabbing each other on the butt, stuff like that.”
Mindful of regulations restricting public displays of affection, he told the two women to tone it down.
Not wanting such behavior posted online, he waved off several people making videos and pushed down a soldier’s camera, which bumped his nose.
The incident took place at a formal military ball when a female captain and a female lieutenant, both in uniform on the dance floor, “engaged in prolonged French kissing, taking off each other’s uniform jackets, and other intimate conduct.”
A witness described it this way: “It was a little more, like I said, a full-blown makeout, like, you know, they did not even realize w[h]at was going on around them; they were concentrating on each other. And it was creating a scene on the dance floor.”
Another witness said: “I mean, they were, like, full-blown, like, making out, grabbing each other on the butt, stuff like that.”
Regarding it as a violation of the military’s limits on public displays, TMLC said, Downey “took immediate action to stop the inappropriate behavior.”
“He also attempted to prevent other soldiers from photographing and videotaping the officers’ inappropriate conduct, which he believed would embarrass the officers and affect the good order and discipline of his unit. In the process of lowering the camera of an enlisted soldier, the camera accidentally made contact with the soldier’s nose,” the legal team reported.
Had the circumstances been ordinary, there might have been a review of the accident but little more, according to the claim.
But because of the pro-homosexual influence that pervaded the military’s decision-making process, Thomas More said, Downey “was ordered to face an Article 15 hearing for assault.”