Navy Administrative Officer Separation Board
A Navy Commander underwent trial by general court-martial for a number of alleged offenses including rape and sexual assault of his wife and daughter, indecent acts, assault consummated by battery and making false official statements to Navy investigators. A panel of officers found him not guilty of all charges and specifications except three incidents of making a false official statement to investigators. The panel sentenced him to pay a fine and receive a written reprimand. The panel did not order his dismissal from the service or any other available form of punishment. One year later, Navy personnel authorities initiated administrative separation of the Officer. Though he had 29 years of active duty service and was retirement eligible, the Commander elected his right to an administrative separation board in an effort to remain in the Navy. He retained Attorney John L. Calcagni III to represent him at the board, and specifically, to fight for this retention on active duty. Attorney Calcagni similarly represented the Commander at court-martial where he successfully achieved the favorable and historical verdict.
At the board, the government called no witnesses, but submitted a packet of information for the board members’ consideration. It included, among other things, many references to the charged sexual misconduct for which the Officer was found not guilty after trial. Attorney Calcagni quickly responded with motions to exclude any and all references to the more egregious conduct for which the Officer was found not guilty after trial (rape, sexual assault and indecent acts). The government sought to tell the members the entire story, while the Defense sought to limit its presentation solely to the basis for the separation action – the false official statement convictions. This issue was taken up with the Board’s legal advisor outside the members’ presence. The motions were successful. The legal advisor granted Attorney Calcagni’s motions by limiting the government’s presentation of evidence. The Defense then presented its own packet of information which contained evidence of the Commander’s otherwise illustrious service record. The Defense also called a number of character witnesses, including two Admirals, one Captain and one Retired Command Master Chief. Each witness testified to the Commander’s commitment to and embodiment of the Core Navy Values, his exemplary duty performance, the inexplicable nature of the court-martial case_results, and value the Commander would add to the Navy if retained for further service. Each witness unequivocally recommended the Commander for retention. Lastly, the Commander testified under oath on his own behalf about the impact the court-martial process had on him, his duty assignment and performance throughout the process, and his continued commitment to the Navy. He also explained why he elected not to apply for retirement and instead sought retention on active duty.
Following the presentation of evidence, counsel for the parties presented closing arguments. The government argued for the Commander’s involuntary separation from service and advocated for a characterization of under Other Than Honorable conditions. As grounds for this request, government counsel argued that the Commander, via his court-martial convictions for false official statements, failed to demonstrate honor and integrity expected of a Naval Officer, especially one with his rank, experience and time in service. The Defense retorted that the Commander had an excellent service record of 29 years. But for the court-martial convictions, which were legally inconsistent and under appellate review, the Commander had given the Navy his entire adult life of otherwise Honorable service. The Defense also emphasized the dozens of character witnesses who endorsed the Commander’s retention both in writing and in person. This included the Admiral for whom the Commander currently worked. Attorney Calcagni boldly argued that to separate the Commander would be equivalent to slapping his Admiral in the face after he testified in support and favor of retention. He also told the Board Members that they could not ignore the Commander’s decision to provide sworn testimony, commitment and cooperation in both the court-martial and administrative separation processes, exemplary career and overwhelming support for retention, including that from the court-martial panel comprised of several Officers who did not dismiss him from military service, an available option at the time of sentencing. Ultimately, the Board Members agreed with Attorney Calcagni’s arguments. After nearly three hours of deliberations, the members voted unanimously for the Commander’s retention.