Is the recommendation of an Article 32 investigating officer final?
Air Force Lt. Joshua Seefried, founder of the gay service member advocacy group OutServe, was charged last year with sexually assaulting a male U.S. Marine lieutenant in a hotel room in New York City in 2012. In December 2014, a military judge ruled that a pre-court martial proceeding (an Article 32 hearing) should be reopened.
The alleged victim claims Seefried, who became known as an advocate for the rights of gays in the military, performed sexual acts on him while he was too intoxicated to give consent. In the hearing in August, the investigating officer questioned the Marine’s credibility and recommended against a court-martial. The officer stated there were insufficient grounds to obtain a conviction.
Despite the recommendation of the Article 32 investigating officer, the commanding Air Force General, overruled the recommendation that the case not go forward and ordered that Seefried go to trial in a full court martial.
Upon review, however, the presiding military judge ordered that the Article 32 investigation be re-opened. This action is considered a victory for Seefried because re-opening the Article 32 investigation indefinitely postpones the court martial, which was scheduled for late January in Maryland.
Perkins ordered prosecutors to reopen the hearing for the “limited purpose” of calling one witness, a U.S. Coast Guard lieutenant commander who had also been charged with sexually assaulting the Marine in the same hotel room. Those charges were dropped.
One of Seefried’s attorneys stated the defense was denied an opportunity to cross examine the Coast Guard lieutenant commander during the first Article 32 hearing in 2014. The goal of the cross exam was to challenge the credibility of the Marine, Seefried’s sole accuser.
This could lead the way to different outcomes, including: the charges being dismissed; a plea bargain arrangement in which prosecutors offer a defendant the chance to plead guilty to a less serious charge; or, an offer by prosecutors to drop the charge or charges in exchange for a defendant’s agreement to leave the military under a general discharge.
The allegations against Seefried and the Coast Guard officer arose from a May 2012 gathering of seven gay officers from different branches of the military in New York City. They were reportedly celebrating both Fleet Week, an annual event in which Navy and Coast Guard ships dock in a major U.S. city, and the repeal of the “Don’t Ask, Don’t Tell” law. The Marine said he became intoxicated, blacked out and woke up naked and disoriented in Seefried’s hotel room. Seefried and the Coast Guard officer were with him when he woke up.
This case shows the court martial process can take a very long time and take many twists and turns along the way. If you or a loved one is in Denver, Colorado Springs, or stationed somewhere else across the globe, and is facing a possible court martial, the court martial defense attorneys at Elkus, Sisson & Rosenstein are available at (303)567-7981. Call for a free consultation today.
