U.S. Navy Administrative Separation Board: Petty Officer Exonerated of Misconduct and Retained
A Petty Officer in the U.S. Navy was suspected of multiple counts of violating a lawful general order and making false official statements. The Petty Officer served as a laboratory technician at Naval Station Newport, Rhode Island. He worked in a medical clinic testing biological specimens such as urine and other samples for purposes of medical treatment and diagnosis. Some discrepancies arose regarding some urine samples he allegedly tested.
The test results he reported were inconsistent with patient symptoms as observed by the physician who ordered the urine testing. The physician ordered that his patients’ urine samples be retested. Another laboratory technician conducted these particular tests and discovered the discrepancies with the Petty Officer’s findings. While the Petty Officer reported normal findings, the other technician had negative findings consistent with the patients’ symptoms. This occurred for a total of five urine samples and corresponding test results.
Based on the Petty Officer’s testing, the Command recommended that he undergo a Captain’s Mast or nonjudicial punishment. The Captain’s Mast alleged various counts of dereliction of duty and false official statements. Specifically, it contained one specification for each of two offenses for all five of the tests he allegedly performed or reported incorrectly for a total of ten specifications.
The Petty Officer retained Military Defense Attorney John L. Calcagni III to provide him legal advice and guidance regarding the proposed Captain’s Mast. He and the Petty Officer met with the Command Legal Officer for the purpose of reviewing the Captain’s Mast packet, which consisted of the listed charges and supporting documentation.
Attorney Calcagni analyzed the packet and noted a number of evidentiary deficiencies. He advised the Petty Officer that if he accepted nonjudicial punishment, he would most certainly be found guilty at the proceeding and then be referred for administrative separation. Though a risky proposition, Attorney Calcagni advised the Petty Officer to demand trial by court-martial.
With 16 years in the Navy and two disabled children and a wife at home, the Petty Officer could not lose his Navy career. Accordingly, he took Attorney Calcagni’s advice, declined the Captain’s Mast and demanded his right to trial by court-martial.
The Command did not send the case to court-martial, as the Petty Officer and Attorney Calcagni had hoped. Instead, it simply referred the Sailor for administrative separation. Attorney Calcagni felt this was a tactical move by the Command. At trial by court-martial, the Command would be bound by high evidentiary standards and burden of proof, all of which weighed in the Petty Officer’s favor. At an administrative separation board, the Command benefitted from virtually no evidentiary rules and a low, preponderance of the evidence standard.
Attorney Calcagni and his client prepared tirelessly for this event. This included documenting the laboratory testing process and procedure. If the Petty Officer stood a chance of success at the board, the Defense needed to educate the three board members on the urine testing process. This included the steps necessary for urinalysis testing, as well as the laboratory’s operating procedures.
The Defense, at the same time, assembled materials to document the Petty Officer’s otherwise very successful career. The Defense also sought to educate the board members of why the Petty Officer was arguably being targeted by the Command. At best, the Petty Officer was negligent in his laboratory testing, in the above instances. This was a product of lack of recent practice and the need for retraining – two facts well known to the Command.
However, some weeks after the Petty Officer joined the unit, he was arrested in the civilian community for allegedly propositioning a prostitute. The Petty Officer was with a civilian friend at the time of the arrest after having just been invited to a party. Police were conducting a prostitution sting and arrested nearly a dozen people that day, the Petty Officer among them. After some time, the case and charge against him were dismissed and sealed from public record.
Notwithstanding, the Command and others in the unit, to include lower enlisted Sailors working in the lab, learned of the arrest. The Defense believed and argued that this tainted the Petty Officer’s reputation, which motivated the separation action and perspective of his lab testing as intentional and misleading, opposed to simple negligence.
The case proceeded to a board. The government called several witnesses, all of whom Attorney Calcagni cross-examined and used to teach the board members about the lab testing process and procedures. These witnesses also admitted under questioning that the Petty Officer always meant well, was well-liked by patients, and had no issues other than the five test results at issue. The witnesses also admitted themselves that they too, on prior occasions, tested urine results leading to inaccurate findings.
In fact, this was not uncommon within the lab. Attorney Calcagni also completely undermined the lab testing reporting procedures and called into question whose results were factually and scientifically accurate: the Petty Officer or his supervisor who actually retested the results. Because the samples had since been destroyed, there was no way to verify anyone’s findings.
The Defense did not call the Petty Officer as a witness. Though tempted to do so, especially in light of the administrative nature of the proceedings, tactually it was decided to forego his testimony. Instead, the Defense relied upon a number of statements of support of character letters and the Petty Officer’s service record, to include his most recent evaluation which supported future and continued military service.
When the government raised the civilian arrest and a related newspaper article, the Defense provided proof the matter was sealed and a most recently updated news article that reported the dismissal and sealing.
Based on these counter measures, Attorney Calcagni argued that the prior arrest should be disregarded and considered for the limited purpose of showing the bias toward the Petty Officer in the Command. In closing argument, Attorney Calcagni argued his client committed negligence, not misconduct. While misconduct warranted adverse administrative action or punishment, negligence required more training, guidance and direction.
He also emphasized how the Command continued to employ the Petty Officer as a laboratory technician, often times alone and in charge of the facility, since the mishaps that gave rise to the separation action. As a result of this collective information, the Board voted to vindicate the Petty Officer of any misconduct and to retain him for continued military service.