On the evening that Navy Petty Officer Stephen Jones fell asleep while watching a video on his lap top with a friend, little could he have imagined that his name and the set of circumstances surrounding that evening would be a topic for national debate and launch inquiries into naval leadership’s equitable distribution of justice based on the military’s code of conduct and directives.
According to naval investigation documents, the evening of February 5, 2010, began when 21 year old Petty Officer Jones invited a friend, Petty Officer Brian McGee to his quarters at the Naval Nuclear Power Training Command – on the Naval Weapons Station located near Charleston, S.C. – to watch a movie. The Washington Post reports: “The trouble started shortly after midnight on Feb. 6 when Jones’s roommate, Tyler Berube, returned from an out-of-town trip. As he opened the door, Berube saw Jones “asleep in bed with another male sailor,” according to a statement that Berube gave to investigators.
Berube stated that both were wearing only boxer shorts, but that they got dressed and left after he woke them up. Jones said in his account to investigators that he was wearing pajamas but that neither he nor his friend, Brian McGee, had intended to fall asleep or spend the night together, insisting “the encounter was platonic.” Jones’s civilian attorney, Gary Myers, also stated that the events of that evening as relayed by Jones were such that Jones was wearing pajamas and McGee was wearing a tee shirt and boxers.
Given the fact that McGee was permitted to visit and that visiting hours ended at 2 am on that Saturday, the point of contention seemingly falls on the accusation levied against Jones and McGee by Berube, Jones’s roommate. Myers (the civilian attorney for Jones) notes that in all there are three versions of how the men were dressed, but “in no version is either totally undressed.” He said Jones was on top of the covers and the other sailor under the covers.
Jones stated that neither he nor McGee had intended to fall asleep while watching the movie, and that McGee often stopped by his room to watch movies. As CNN reported: “The play-by-play given by Jones is substantiated by the Naval investigating documents, although a different account on the amount of clothing worn was given by Jones’ roommate… Jones’ roommate, who was uncomfortable by what he saw, according to Myers, Jones’s attorney, moved out of the room a day later and reported the incident to command officials.”
Since Jones joined the Navy last summer, he has maintained a spotless service record. But now Jones has been charged with committing the crime of “willful failure to exhibit professional conduct.” McGee was also charged in the case.
Thomas Dougan, a spokesman for the Naval Nuclear Power Training Command said, “”It is a violation of the Command Instruction for sailors to act unprofessionally in the barracks. It is considered unprofessional conduct to share the same bed in Navy barracks,” Dougan acknowledged that no regulation specifically prohibits sailors from falling asleep in the same bed. But, he said rules do require them to “behave professionally in the barracks” and that Capt. Thomas Bailey, the commanding officer, concluded that Jones and McGee had not done so. “The determination was that two sailors sharing the same rack was unprofessional,” concluded Dougan.
The investigative summary and charging documents do not specify how Jones’s actions constituted unprofessional conduct. Despite repeated requests for clarification, military officials declined to comment on Jones’s case, citing privacy rules. But if a vague transgression based on a “catch all” regulation can result in a service member’s dismissal, then a visit to YouTube will most certainly overload military leadership with literally hundreds of cases of blatant displays of serious, offensive, sexually explicit and specific violations of “willful failure to exhibit professional conduct.” By entering ‘marines having fun’ into the search window, an array of in-the-barracks as well as other on-base displays of questionable behavior will appear.
As for Jones and McGee, neither was officially charged with being gay or with sexual misconduct, although Jones did say that McGee told him that Captain Bailey “asked him if being a homosexual was going to be an issue” if he stayed in the Navy. However, Dougan denied that officials were discharging anyone based on sexual orientation. In an e-mailed statement, Dougan noted that it is the Defense Department’s policy “not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline.”
Dougan’s statement on existing Defense Department policy is in direct contrast and conflict to Captain Bailey’s statement to McGee. Unlike Jones, McGee agreed to accept a Captain’s Mast, which resulted in docked pay but allowed him to stay in the Navy. A Captain’s Mast is a non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) that is designed to permit a commanding officer to summarily dispose of minor disciplinary infractions. Since both Jones and McGee were not assigned to a sea-going mission, they had the right to refuse Mast.
McCormack and McCormack, a law practice in Virginia Beach, offers the following on a sailor’s decision to accept or decline a Captain’s Mast: “consideration must first be given to the fact that non-judicial punishment does not result in a federal conviction and in essentially most respects, it does not follow a person out of the military. The punishment that can be imposed at Captain’s Mast is relatively minor and unquestionably many service members have gone on to a long and successful career after being subjected to NJP. Generally speaking, if a person did commit the subject misconduct, accepting Mast may be the best way to go. Again, generally speaking, if the person did not commit the subject misconduct, then I suggest he may want to refuse Mast and demand trial by Courts-Martial… However, the decision to refuse NJP is one that must be made with great caution.”
Jones was also offered a Captain’s Mast but refused since he “had done nothing wrong.” Because Jones has been in the service for less than six years, he is not entitled to a formal hearing on his dismissal, but can have the decision of dismissal reviewed by filing documents with officials farther up the chain of command. Jones’s attorney calls the attempted dismissal of Jones from the Navy “bigotry disguised as the rule of law.” He writes in his response to the pending decision that while Jones’s commanders suspect he is homosexual, they “cannot invoke ‘Don’t Ask, Don’t Tell,’ because there was no admission of homosexuality or homosexual conduct.” Jones stated that his sexual orientation is his business and his business alone. Myers told the Washington Post, “The subterfuge is, they believe this kid is a homosexual, but they have no proof of it, so what they’ve done here is to trump this thing up as a crime. This is not a crime.”
Jones’s father, Jeffrey Jones of Beulah, Florida and an army veteran, said he doesn’t know if his son is gay or not. “And it doesn’t matter,” he added. “It’s his business and no one else’s.” The elder Jones said that his son’s master chief pulled him aside and told him that he might have committed a violation but would not specify the violation.
Jones has been in the Navy for just under a year. He previously worked at a few Tom Thumb stores in Escambia County, Florida.”He grew up here,” said his father. “We have four boys, and he is the oldest of the four. His mother is disabled, and this is just very, very stressful. It’s mentally taxing.” Jones has been pulled from his classes and is in a holding unit for those awaiting discharge.”So what has he done wrong?” his father asked. “He’s fighting this on principle.”
In December of 2010, President Obama signed a law that allowed for the repeal of “Don’t Ask, Don’t Tell” and spoke about principles. “Members of the military will no longer be asked to lie,” preached Obama. The President went on, “I say to all Americans, gay or straight, who want nothing more than to defend this country in uniform, your country needs you, your country wants you, and we will be honored to welcome you into the ranks of the finest military the world has ever known.”
The President’s remarks concerning the repeal of DADT and what it will mean for the military in general, do not fall into the category of ambiguous or vague language. President Obama, Secretary Gates and Chairmen Mullen firmly advocated for changing the law to ensure gay members of the military would be able to serve openly. The spirit as well as the letter of the law, including ongoing Defense Department training and new directives, are clear and concise with regards to the repeal of DADT. This begs the question – Has the pentagon truly begun to address the practical consequences for the repeal of DADT? Consequences such as commanders finding round-about ways to now punish and discharge service members suspected of being gay?
The ongoing Jones case is the first to receive such national attention and publicity. The true test will be in how effectively the Pentagon conducts ongoing education to prepare the military leadership for the repeal of DADT. Given human agency, the Jones case may not be an aberration. In fact, it may just be getting its sea legs, as it is indisputable that there continues to be resistance among military leaders who remain adverse to repealing DADT .