Administrative Separation Action for Navy Petty Officer
The U.S. Navy’s Nuclear Prototype Training School located in Charleston, South Carolina recently uncovered a long-term cheating scandal with regard to an academic examination necessary to earn the coveted Engineer Watch Supervisor (ESW) qualification. A whistleblower learned of the cheating and revealed it to authorities. This triggered a wide scale investigation by Naval Criminal Investigative Service (NCIS). This high profile investigation caught the attention of Navy leadership at the highest ranks in both Washington, D.C. and at the Pentagon. The scandal was also the subject of national news. The NCIS investigation lasted for nearly one year and involved approximately 900 interviews. Ultimately, 35 Petty Officers who attended and instructed at the Nuclear Prototype School over a period of nearly 10 years were implicated in the cheating scandal. The Navy dealt with the alleged offenders in different ways, but mainly via Captain’s Mast proceedings (i.e. non-judicial punishment) presided over by an Admiral followed by involuntary administrative separation. One of the many Petty Officers implicated in this scandal smartly retained Attorney John L. Calcagni the moment he learned that he was under investigation.
The Petty Officer was underway aboard a nuclear powered submarine while NCIS conducted its cheating scandal investigation on land. The boat’s Captain summoned the Petty Officer to his quarters and advised him that he was suspected of cheating on the EWS exam while formerly assigned to instruct at Nuclear Prototype School. As a result, the Petty Officer was stripped of his duties and responsibilities as a Nuclear Engineer and restricted to quarters pending a land transfer from the boat. Once transferred, the Petty Officer was assigned shore duty while he remained under investigation. The Petty Officer retained Attorney Calcagni once on land. On his attorney’s advice, the Petty Officer refrained from making any statements to NICS or agreeing to undergo questioning. This pivotal decision made early on significantly contributed to his long-term success as the investigative, punitive and administrative separation processes eventually took place.
The Command ultimately referred the Petty Officer for non-judicial punishment via Captain’s Mast. The Petty Officer received 48 hours notice of this recommended action and was placed on temporary duty from his shore duty assignment at Groton, CT to the Washington Navy Yard. His attorney did not have advance warning of this event. Once in Washington, the Petty Officer was not afforded the chance to meaningfully consult with legal counsel to include both his own lawyer and a Navy Judge Advocate (JAG). The Petty Officer was only given about 30 minutes to review documentary evidence in support of his Captain’s Mast charges in order to make an important decision: accept non-judicial punishment or demand trial by court-martial. Absent any meaningful legal advice and armed only with limited, redacted portions of the NCIS investigative report of the cheating scandal, the Petty Officer elected to accept non-judicial punishment, but maintained his innocence. Moments later, he stood at attention before an Admiral, was read his charges, pleaded not guilty and was found guilty. The Admiral then imposed the maximum punishment allowable that included reduction in rank and forfeiture of pay and allowances.
The Petty Officer returned to his shore duty assignment in Groton, CT and consulted with Attorney Calcagni. They collective decided to appeal the Captain’s Mast result on the basis that the Petty Officer was forced into the proceeding with little notice and without counsel or a meaningful opportunity to review the alleged evidence. The appeal request was approved. This allowed Attorney Calcagni to review the alleged evidence against his client, which the Navy maintained was classified. The evidence solely consisted of statements by two former Petty Officers who directly implicated Attorney Calcagni’s client in the cheating scandal. Each witness gave NCIS a number of conflicting statements, first, denying any knowledge or involvement in the cheating; second, admitting to their own participation; third, implicating the Petty Officer; and fourth, invoking their own Article 31 rights to remain silent and against self-incrimination. Based on this limited, conflicting and non-credible evidence, Attorney Calcagni fashioned a written appeal to the adverse Captain’s Mast finding. In response, the Petty Officer was afforded some relief with regard to one of the charged offenses, but the remaining guilty findings were affirmed.
The Navy then initiated involuntary administrative separation against the Petty Officer on grounds of serious misconduct. The allegation in support of separation mirrored that for the Captain’s Mast – the Petty Officer’s alleged involvement in the cheating scandal as established by the NCIS investigation. The Petty Officer elected his right to a full administrative separation board. Attorney Calcagni directly represented him in connection with this event. The appointed board was comprised of three members: a Commander, a Lieutenant Junior Grade and a Master Chief. The government was represented by two able Judge Advocates. The Petty Officer was represented by Attorney Calcagni and an appointed Judge Advocate assigned to the Navy’s Regional Defense Office in Groton, CT.
The proceedings lasted the greater part of one day. The parties began with opening statements. The government emphasized the guilty finding of the Captain’s Mast and the testimony or statements of the two witnesses who implicated the Petty Officer. It also highlighted the alleged breach of trust by a Nuclear Engineer in a position of great trust such as access to a nuclear reactor aboard a nuclear powered submarine. On these facts, the government told the board members that involuntarily separation from military service with an Other Than Honorable (OTH) discharge or characterization of service was warranted. Attorney Calcagni responded in his opening that his client was implicated in the cheating scandal by mistake and caught in the government’s wide net an investigation. He reminded the board members of their independent duty to accept and analyze the evidence and indicated that there would be no credible evidence of any wrongdoing by his client to justify involuntary separation.
The parties next presented evidence in support of their competing positions: the government for separation with an OTH and the defense for retention. The government presented its evidence first. The government presented no live witnesses against the Petty Officer or in support of its position that he committed misconduct to warrant separation. The government presented its entire case on paper in the form of a three ring binder. The binder included the Captain’s Mast documentation including the appeal; portions of the NCIS investigative report regarding the cheating scandal, much of which was redacted and did not include any attachments or enclosures; and various Navy instructions or regulations. The government’s entire case hinged on the witness statements, upon which the Captain’s Mast Officer relied to adjudge the Petty Officer’s guilt.
The defense presentation of evidence managed, orchestrated and executed by Attorney Calcagni was more robust than that of the government. The defense submitted its own binder of documentation. It included more than 25 statements of support of others who attested to the Petty Officer’s character for honesty, integrity and trustworthiness. The authors of these letters consisted of Naval Officers, Noncommissioned Officers, government civilian employees and actual civilians such as the Petty Officer’s friends and family. The group members, most of whom were unknown to each other, provided consistent testimony about the Petty Officer’s character, commitment to Navy Core Values, and worthiness for retention on active duty. These individuals, by implication, also suggested that it was out of character for the Petty Officer to knowingly participate in or conceal the cheating scandal as alleged by NCIS and the Command. The defense binder also consisted of the Petty Officer’s otherwise unblemished and impeccable service record, to include awards, letters of commendation and high performance evaluations. The binder also included a number of photographs documenting the Petty Officer’s family and years of Navy service. Lastly, the binder included the various statements of each of two witnesses who implicated the Petty Officer in the scandal. The government chose to only present their incriminating statements, not those that were exculpatory, contradictory or whereby the witnesses chose to refrain from making statements by invoked their right to remain silent. Presenting all statements of each witness was necessary to place matters into context so that the board members could make a full determination of credibility or lack thereof as argued by the defense.
The defense also called the Petty Officer to testify on his own behalf. He opted to testify under oath among his options to provide an unsworn statement, a written statement, to have counsel speak for him or to provide no statement at all. The election to provide sworn testimony exposed him to cross-examination from government counsel and questioning from each of the three board members. The Petty Officer testified about this personal background to include family, education and work experience before the Navy. He also discussed his decision to enlist into the Navy after graduating from college and subsequent decisions to reenlist in pursuit of a Navy career and ultimately retirement. In terms of the alleged cheating, he maintained his innocence to not knowing about or participating in the scandal. He also explained the process by which he underwent to study for, take and pass the EWS examination. He also relayed how the Captain’s Mast was tossed into his lap on short notice, that he was provided little to no advance notice of this event and hardly offered a chance to either review the supporting evidence or to consult with counsel. This is one of the reasons he elected to appeal. He also discussed how the administrative separation board was his first chance to be heard and to give his side of the story with the assistance of an attorney. He asked the board members to credit his testimony and to discredit both the written testimony of his two accusers and the processes by which the Navy first secured the non-judicial punishment conviction against him and now sought his involuntary separation without even allowing him to confront his accusers all the while keeping the entire NCIS cheating scandal report shrouded in secrecy revealing only limited redacted portions and none of the supporting enclosures or attachments. The Petty Officer withstood cross-examination and answered the board members’ many questions with confidence and candor.
The parties concluded with closing statements. The government argued for involuntary separation with an OTH reminding the board of the Captain’s Mast findings and integrity violation it supported. Attorney Calcagni reminded the board members of their independent duty and promise to not rely solely on the Captain’s Mast, but to make their own determination of whether the Petty Officer committed the alleged integrity violation via his alleged involvement in the cheating scandal. He also told the members that the Petty Officer had been given very little due process in connection with either the Captain’s Mast where he was denied a chance to meaningfully review and challenge the supporting evidence or to consult with counsel and again at the board where he was not confronted with his accusers or given access to the entire NCIS investigation. Attorney Calcagni argued that the government should not benefit from or be rewarded for its decision to try this matter on paper by its choice to not call the actual accusers and then to proceed only with select portions of their statements that incriminated the Petty Officer. Similarly, Attorney Calcagni argued that the Petty Officer was fighting for his career with both of his hands tied behind his back for not being able to cross-examine his accusers and for not being afforded with the full investigative report. By most accounts, the Petty Officer was an honest and trustworthy Sailor with an overall strong military career. The only two people who alleged anything to the contrary were coincidentally not called as witnesses. One was no longer in the Navy and the other had since been promoted. Most importantly, both had lied to NCIS before implicating the Petty Officer and then invoking their own rights as revealed to the board by the defense. In light of these collective facts and circumstances, Attorney Calcagni asked the board members to credit the Petty Officer’s sworn testimony and the mountain of character evidence that he submitted. The board members voted unanimously that the government had failed to sustain its burden of proving the alleged misconduct and as a result, the Petty Officer was retained on active duty in the U.S. Navy.