Officer Separation Action for Sexual Assault
A junior Officer assigned to the Air National Guard was accused of sexual assault while attending a military school. After a criminal investigation, he was dismissed from the school and sent back to his unit. The Command initiated a separation action based on allegations of Sexual Assault and Conduct Unbecoming an Officer. The Officer maintained his innocence and elected his right to proceed to a full separation board or hearing. Following an adversarial hearing, a Board of Officers concluded that the Officer did not commit any misconduct, as alleged. The Officer was retained for further military service and has been fully restored to duty.
The Officer in question was a direct commissionee. After graduating college, the gentleman voluntarily decided to enlist into the Air National Guard. He took his enlistment oath and successfully went off to Basic Training, which he completed as the designated honor graduate. From there, he returned to his unit to work in intelligence. Several months after returning, he was presented with the opportunity to apply for a direct commission to become an Officer. His application was approved out of a high number of applicants. As a result, he was sent off to Officer Basic School followed by Officer Intelligence School. While attending Intelligence School, he resided off campus in a private apartment with two female classmates. The three roommates shared a three- bedroom apartment not far from post. During Intelligence School, the Officer made a number of friends. He also performed exceptionally well academically, and was among the top of his class.
The Officer and a group of his classmates made plans to all go out one Saturday evening. Socializing with fellow classmates was common among students at Officer Intelligence School. The group was comprised of six people: two women and four men. The evening began at a sushi restaurant. From there, the group traveled first to a wine bar, and second to a sports bar. Most members of the group consumed alcohol all throughout the night starting with dinner up and including the two bars. They had one designated driver who did not consume any alcohol. As the bars reached closing time, the group returned back to the Officer’s apartment. They continued to socialize there and consume additional alcohol. As time passed, it was early in the morning when members of the group expressed their desire to conclude the evening. Two of the males and one female left the apartment. The Officer and one of his male classmates remained behind. The second female, the alleged victim in the case, also remained behind. Her female friend who had invited her out that evening asked if she wanted to leave. However, the alleged victim expressed that she was still having a good time and wanted to stay with her classmates at the Officer’s apartment. As the group of three departed, a group of three remained: the Officer, another male classmate and the alleged victim.
The remaining three were seated at the Officer’s kitchen table talking. One of the Officer’s female roommates was out of town. His second female roommate was present in the apartment, but in her room sleeping. As the three in the kitchen continued to talk, the sleeping roommate was awoken. She came out of her room and asked the group to quiet down. Some time later, the alleged victim expressed that she was tired and asked if she could lay down. The Officer offered the bedroom of his absent roommate. This was the intended sleeping plan that everyone had agreed to earlier when the other three classmates departed and the alleged victim expressed a desire to stay at the Officer’s apartment. The alleged victim got up from the kitchen table and went into the bedroom. Once she left the kitchen area, the Officer and his male classmate continued to converse at the kitchen table. While they were talking, the alleged victim repeatedly chimed in to the discussion from the bedroom down the hall. To avoid waking the sleeping roommate again, the Officer and male classmate went into the bedroom where the alleged victim was lying down on top of the bed fully clothed. The Officer sat and then laid down next to her on her right side. The other classmate sat down and then laid down next to her on her left side. All three were lying down on top of the bed and sheets fully clothed with the bedroom lights on. At some point, the alleged victim rolled over facing the Officer and kissed him. The Officer rolled towards her and kissed her back for a few brief moments. The kissing occurred while the two were lying on their sides facing one another. The Officer’s hand touched the alleged victim’s side on top of her clothing during the kissing. After a few seconds, the Officer pulled away and told the alleged victim that they should not be kissing each other because they both had significant others back home. He then got up from the bed, went to his bedroom and closed the door. Moments later, the alleged victim expressed a desire to leave the Officer’s apartment. Because she was intoxicated and arguably too drunk to drive, the other male classmate offered to drive her home.
In the following days, the Officer received word from other classmates that the female had accused him of sexually assaulting her, and specifically, fondling her breast and nipple. The Officer denied the allegation. However, in an effort to repair his friendship with the female classmate, he apologized to her for anything he did to offend her. They both agreed that the events of what transpired in the bedroom were the product of their mutual bad decisions and poor judgment. They both agreed to treat the experience as a learning lesson and move forward from it. Some months later, a criminal investigation initiated against the Officer for alleged sexual assault stemming from his night with the classmate. The Officer maintained his innocence and invoked his rights to counsel and to remain silent when approached by investigators. He was ultimately dismissed from the Officer Intelligence School nearly one week before graduation and returned home to his National Guard unit.
The Command initiated an administrative separation action against the Officer. The bases were alleged Sexual Assault and Conduct Unbecoming an Officer. The Officer elected his right to an administrative separation board and retained Attorney John L. Calcagni III to represent him.
More than two years passed from the alleged misconduct and when the Officer’s board convened. At the Board, the government presented the testimony of a number of witnesses to include alleged victim, two of her former classmates, a criminal investigator, and the Officer’s current Commander. It also presented the recording of a pretext phone call between the Officer and alleged victim wherein the Officer allegedly admits to assaulting the victim and acknowledging that she was too intoxicated to consent to any sexual contact.
The alleged victim failed to appear at the hearing. Due to her absence, the government offered and the Board Members accepted her sworn statement into evidence. Because of her absence, the Officer was deprived of his rights to confront and cross-examine his accuser, a point that Attorney Calcagni hammered home during his closing remarks. The government presented the pretext call recording and a transcript of it in conjunction with her sworn statement. The Officer’s and alleged former victim’s classmates each testified to their respective observations. One classmate relayed a conversation she had with the Officer where she informed him of the victim’s allegation and encouraged him to apologize. She confirmed that he did render an apology, which was accepted by the victim. She also confirmed that the victim and Officer mutually attributed their conduct to alcohol, characterized it as a learning lesson and agreed to move forward. This female classmate also confirmed that she told the alleged victim, at the time of her allegation, that she didn’t believe the Officer would ever intentionally do anything to hurt anyone. The second classmate testified to being present when the Officer received a phone call from the alleged victim, which unbeknownst to anyone, was being recorded by law enforcement. He described the Officer’s demeanor as apologetic and contrite during the call. He also said that others present when the call was coming in encouraged the Officer to ignore the call, but he insisted on speaking with the alleged victim to make things right. The criminal investigator provided the Board Members with an overview of the investigation, details of the allegations received and background circumstances of the pretext call between the Officer and alleged victim. Attorney Calcagni elicited from the investigator that nearly 50 people were interviewed for the investigation and that no one corroborated the victim’s allegation. He also conceded there were no other forms of evidence that corroborated her allegation and that the case, overall, was a classic “he said she said” claim of sexual assault. The Officer’s Commander testified about his opinion that the Officer should be separated under other than honorable conditions. His bias was clear in that his opinion was formed solely from reading the investigative reports developed by law enforcement personnel. He had absolutely no personal knowledge of the case and only positive experiences with the Officer. Notwithstanding, he failed to surrender his strong opinion for separation. After his testimony, the government rested.
Attorney Calcagni developed a strong defense. It consisted of submission of dozens of character witness statements that uniformly endorsed the Officer’s retention. These witnesses also testified to the Officer’s sound character and commitment to morals, ethics and values, which are expected of military leadership. Attorney Calcagni also called as a witness the Officer’s former Commander who served with him at the time he attended Intelligence School, was sent home and initially accused of misconduct. This Commander fully supported the Officer’s retention, testified to his commitment to military service notwithstanding adverse conditions since his accusation. The Commander also opined on a rehabilitative plan, including a transfer and promotion if the Officer were to be retained. The Commander’s testimony was well received. Lastly, the Officer took the stand to testify in his own defense. He told the full story about the events of the Saturday night out on the town, which culminated with his brief romantic contact with the alleged victim. He denied touching her in an unwanted, aggressive or assault like manner. Any contact that did occur he claimed was fully consensual. The Officer withstood very aggressive cross-examination questioned posed to him by government counsel. He never lost composure or respect, and despite invitations to do so, never once called the alleged victim a liar. However, he disputed her version of events, apologized to her out of a sense of friendship and respect, and claimed that was the motivation behind his comments on the pretext call. Overall, the Officer presented extremely well and was not shaken by cross-examination.
The board summed up with closing remarks. The government went both first and last with rebuttal. The government focused on the details of the victim’s allegations and appealed to the passions of the Board Members by contending that Officers who commit sexual misconduct have no place in the military. The government repeatedly stated that the administrative separation was an employment decision, not a criminal trial, and asked that the Officer be fired based on the alleged misconduct. Attorney Calcagni told the Board Members he preferred that the case be an actual criminal trial where his client would have had a full chance to question, confront and cross-examine the alleged victim. At a board, however, the government benefitted from her absence and the board’s ability to consider her unchallenged handwritten sworn statement. Attorney Calcagni boldly stated that if this case was presented in court, any judge in the country would toss it in the trash based on the government’s failure to produce live witnesses, and most importantly, the Officer’s accuser. He also impressed upon the Board Members the immeasurable power of a sexual assault allegation, which he compared to a less damaging gunshot wound sustained from a bullet. Attorney Calcagni also told the Board Members that this case was a product of the out-of-control military environment as it pertains to sexual assault. While an important problem in both society and the military as a whole, he argued that fundamental rights should not yield to alleged victims who willfully absented themselves from the process. Attorney Calcagni also reminded that Board Members that his client, unlike many others in his position, did not need the National Guard. He was educated, gainfully employed, handsomely compensated, married, a father of two, enjoyed an extraordinary reputation working for a Fortune 500 company and did not owe the military anything, to include educational benefits. Instead, he volunteered to serve, first by enlisting and later by commissioning as an Officer. Since being sent home from Intelligence School and returning to his unit, he was shunned by his fellow service members based solely on unproven allegations. Rather than quit and move on with all of the many other positive aspects of his life, he willfully remained in the Guard waiting patiently for the day to prove his innocence. That day was today, his administrative separation board, where the government failed to prove that he did anything that warranted his separation from military service. The Board agreed. After a couple of hours deliberating, the Board returned its decision concluding that the Officer did not commit any misconduct. As a result, the Officer was retained for further service.