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BOARD OF INQUIRY in the case of LIEUTENANT TRACY by jcf58551

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									                          BOARD OF INQUIRY
                           in the case of
           LIEUTENANT TRACY W. THORNE, U.S. NAVAL RESERVE




Held on:
  11 - 14 July 1994
  Naval Legal Service Office
  National Capital
  Washington, DC
     The Board of Inquiry was called to order at 0925 hours,
11 July 1994 at Building 200, Washington Navy Yard, Washington, DC.

MBR [CAPT COOK]:    Good morning. The Board of Inquiry will come to
                    order. The reporter will record the time, date,
                    and place of hearing. The Board is convened by
                    order of the Commander, Naval Air Systems
                    Command, Vice Admiral William C. Bowes. That
                    order is dated 2 May 1994, as amended on 25 May
                    1994. A copy of each order has been furnished
                    each member of the Board, the recorder, the
                    respondent, counsel for the respondent, and the
                    legal advisor to the Board.
                    Additionally, the convening authority has
                    determined that the hearing shall be a closed
                    session. I ask that the recorder ascertain that
                    we do have the appropriate people here today.
REC:                Yes, sir, we do.
MBR [CAPT COOK]:    The following persons named in the appointing
                    order are present: The members: Captain Douglas
                    W. Cook, USN, senior member: Captain Robert W.
                    Smith, USN, member; and Captain Eben E. Barnett,
                    USNR, member. The recorder is Lieutenant Peter
                    A. Dutton, JAG Corps, United States Navy. The
                    assistant recorder is Major Edward J. Duffy,
                    U.S. Marine Corps. The respondent, Lieutenant
                    Tracy W. Thorne, United States Naval Reserve.
                    Counsel for the respondent: Lieutenant Larry M.
                    Burch, JAG Corps, United States Naval Reserve.
                    The legal advisor is Major R. J. Stutzel, U.S.
                    Marine Corps. Additionally, the following
                    civilian defense counsel is representing
                    Lieutenant Thorne, and would you state your
                    name, please?
CC [MR. ZIEGLER]:   Luther Ziegler.
CC [MR. LEE]:       Patrick Lee. I'm a member of the Bar of the
                    District of Columbia and a former JAG officer.
MBR [CAPT COOK]:    A reporter has been provided by the Naval Legal
                    Service Office. Will the recorder state his
                                 1
                    legal qualifications?
REC:                Sir, I am an attorney within the meaning of
                    paragraphs 42(a) and 27(b) of the Uniform Code
                    of Military Justice. I've been certified and
                    qualified under the same statutes.
MBR [CAPT COOK]:    Will the detailed counsel and civilian counsel
                    for the respondent state their legal
                    qualifications?
CR:                 Sir, I've been certified under Article 27(b) of
                    the UCMJ, and I've not acted in any
                    disqualifying capacity. I've been detailed to
                    represent the respondent, Lieutenant Thorne,
                    before this Board today.
CC [MR. LEE]:       Patrick Lee, and as I stated I'm a member of the
                    Bar of the District of Columbia in good
                    standing.
CC [MR. ZIEGLER]:   Captain Cook, I'm Luther Ziegler, and I'm also a
                    member of the Bar of the District of Columbia
                    and a member in good standing.
MBR [CAPT COOK]:    Will the legal advisor to the Board state his
                    legal qualifications?
LA:                 Sir, I'm likewise a lawyer within the meaning of
                    Article 27(b) of the Uniform Code of Military
                    Justice, and have been previously sworn.
MBR [CAPT COOK]:    This Board has been convened for the purpose of
                    considering the pertinent facts relating to the
                    case of Lieutenant Tracy W. Thorne, U.S. Naval
                    Reserve, and to make findings and
                    recommendations concerning his retention in the
                    Naval Service. At issue before the Board is
                    whether Lieutenant Thorne should be retained in
                    the Naval Service in light of his alleged
                    statements that he is a homosexual, or words to
                    that effect. The Board will make findings of
                    fact as to whether Lieutenant Thorne's
                    statements constitute homosexual conduct as
                    defined in paragraph three of NAVADMIN 033/94.
                    If the Board finds by a preponderance of the
                                 2
                    evidence that Lieutenant Thorne has made
                    statements that raise the presumption that he
                    engages in, intends to engage in, or has a
                    propensity to engage in, or intends to engage in
                    homosexual acts, then the Board shall find
                    further whether he has rebutted the presumption
                    raised by such statements. If the Board finds
                    that Lieutenant Thorne has failed to show cause
                    for retention in the Naval Service and that he
                    should be separated, it will further recommend a
                    characterization of service.
                    Lieutenant Thorne, I shall now have the legal
                    advisor review with you your rights in
                    connection with this hearing. If you have any
                    questions about these rights, do not hesitate to
                    ask or, if you wish, you may discuss your
                    question with your counsel.
CR:                 Sir, at this time, the respondent waives the
                    reading of his rights. He's previously been
                    informed of his rights before this Board.
LA:                 Sir, before we go on we were going to get to the
                    questions of voir dire of the members of the
                    Board, do you desire to bring up your motion at
                    this point in time or wait until after?
CC [MR. ZIEGLER]:   Captain Cook and members of the Board, one
                    preliminary matter that we have raised relates
                    to the convening authority's order closing this
                    hearing to the public, including to members of
                    Lieutenant' Thorne's family, his friends, and
                    members of the press who have expressed an
                    interest in attending this hearing. We have
                    submitted to Major Stutzel, and we have also
                    submitted to the convening authority, I believe
                    by way of fax this morning, a written motion
                    that briefly outlines the basis of our position.
                    In a nutshell, that position is that because
                    this hearing is a quasi-judicial hearing in
                    which Lieutenant Thorne's rights, his continued
                    service in the United States Navy, and other
                    benefits and rights he has attendant to that,
                    may be compromised as a result of any
                    determination that the Board may make, all of
                                 3
                    the due process guarantees that are afforded
                    under the Constitution to such quasi-judicial
                    hearings attend this proceeding. And we have
                    cited a number of cases, United States Supreme
                    Court decisions, as well as a decision of the
                    D.C. Circuit, which I would point the legal
                    advisor 'to specifically, which is the Fitzgerald
                    versus Hampton case, which is reported at 467
                    F.2d 755, which, we would submit, rather clearly
                    establishes that in hearings of this kind public
                    access, the access of the press, are
                    constitutional guarantees. And for that reason
                    we would object to the closing of the hearing.
                    We submitted this matter to the convening
                    authority earlier this morning. My
                    understanding was we were awaiting a
                    determination by the convening authority, and I,
                    frankly, don't know the status as of this time.
                    Thank you.
LA:                 First of all, before we even go further into
                    that, I received the original respondent's
                    motion with regard to,that, and I will give that
                    to the reporter for inclusion in the record. Go
                    ahead and mark that, I guess, as the first
                    defense exhibit.
[Document marked as Defense Exhibit 1A.]
LA:                 The SECNAV instruction provides that the legal
                    advisor rules finally on matters of evidence,
                    procedure and challenges to members of the
                    Board. We haven't even gotten to that point,
                    yet. I guess the first question, Lieutenant
                    Dutton, is do we know whether the convening
                    authority has nullified the issue by making some
                    response to the respondent's request?
REC:                At this point in time there has been no response
                    other than to say that the order remains in
                    effect until further notice. I would also point
                    out that this is purely an administrative
                    hearing and not a judicial or even quasi
                    judicial hearing, and, as such, the convening
                    authority was well within his right under the
                                 4
                    SECNAV--pertinent SECNAV Instruction 1920.6A to
                    close the Board in order to guarantee a fair and
                    impartial hearing.
LA:                 Let me ask you this, Lieutenant Dutton. First
                    of all, do we have a copy of the order from the
                    convening authority we can actually put in the
                    record-- a copy of his letter ordering the Board
                    be closed? If anybody's got an extra copy, we
                    can hand that to the reporter and let's mark
                    that as the next exhibit in order, please.
[Document marked as Government Exhidit 1. (NOTE: Exhibit
subsequently remarked as Government Exhibit 25 at the direction of
the recorder.)]
REC:                Let the record reflect that I'm handing what is
                    marked as Commander, Naval Air Systems Command
                    serial AIR-09J, 8 July 1994, Board of Inquiry in
                    the case of Lieutenant Tracy Thorne. It's
                    marked as the first exhibit.
LA:                 My first question, I   guess, Lieutenant Dutton,
                    is is there anything   that you would anticipate
                    in this hearing that   relates to matters of
                    national security or   classified material?
REC:                None that I'm aware of, sir.
LA:                 Is there anything that you're aware of in the
                    SECNAV instruction that mentions or otherwise
                    relates to public hearings or closed hearings
                    with regard to boards?
REC:                The SECNAV instruction in no way guarantees a
                    right to an open hearing, nor does it
                    specifically talk about whether the hearing
                    should be closed under any particular
                    circumstances.  It is, therefore, left to the
                    discretion of the convening authority to
                    interpret his responsibilities, and the first
                    exhibit has pointed out that he has, pursuant to
                    his responsibility to guarantee a fair and
                    impartial hearing under the paragraph of the
                    SECNAV instruction that is mentioned in the
                    reference, that he has acted on his discretion
                                 5
                    in his capacity as the convening authority.
                    I've received a note from the Staff Judge
                    Advocate of the convening authority, Commander
                    Ron Neubauer. He reports that the convening
                    authority's decision stands, that no friends or
                    family or press may be allowed in the hearing.
CC [MR. ZIEGLER]:   Major Stutzel, in light of the convening
                    authority's denial of our request, we would
                    respectfully request a continuance of these
                    proceedings. I think our present inclination is
                    to approach the federal district court here in
                    Washington in a matter that is currently
                    pending, Lieutenant Tracy Thorne versus The
                    United States Department of Defense, and apply
                    for a temporary restraining order seeking to
                    overturn the convening authority's order.
LA:                 That may be slightly premature in light of the
                    fact that I've not ruled yet on your motion.
CC [MR. ZIEGLER]:   I beg your pardon, Major Stutzel. I did not
                    mean to usurp your jurisdiction over the motion.
                    I was under the misimpression that the convening
                    authority's decision in this matter may be
                    binding upon you, and I didn't mean to undermine
                    that.
LA:                 I was going to ask the government counsel to
                    offer what the convening authority--if you can,
                    as an offer of proof, what concerns have been
                    relayed from the convening authority with regard
                    to the necessity for closing the hearing in
                    order to----
REC:                Sir, I was not privy to the decision.   I cannot
                    say, sir.
CC [MR. ZIEGLER]:   Major Stutzel, if I just might note for the
                    record a couple of other points. Tracy
                    Thorne's--Lieutenant Thorne's mother has
                    traveled from quite a distance, from Florida, I
                    believe, to attend the hearing, along with his
                    sister, and I think there may be other persons
                    who have made some out-of-town travel
                                 6
       arrangements in order to attend. Their
       particular situations, I think, are of concern
       to us.
       One other point that may be of assistance to
       you, Major, in resolving this motion, I have
       brought with me a copy of the Fitzgerald
       decision. Unfortunately I just have the case
       reporter since the copier is not functioning.
       And the reason I think that case is particularly
       instructive here is that it involved a
       separation proceeding. It was not a court
       proceeding, and the D.C. Circuit, nevertheless,
       felt that the rights to public access and the
       access-of the press were guaranteed under the
       Constitution. Thank you.
LA:    Lieutenant Dutton, as I indicated previously the
       SECNAV instruction indicates that if appointed
       legal advisor rules finally on matters of
       procedures, evidence, and challenges, so I will
       give you an opportunity to do two things. First
       of all, to present either by proffer,
       stipulation or some other matter, why the
       convening authority feels he has a legal basis
       for closing the hearing to both the public and
       representatives of the press. And, secondly,
       you would need to address the issue of whether
       or not in light of the instructions of the
       Secretary of the Navy I would not be able to
       overrule his order and open this hearing.
REC:   Well, I can say, first off, that I do have some
       significant doubt that under your powers listed
       in the SECNAV instruction that you would have
       authority to do that. As a matter of evidence
       or procedure within the confines of the Board
       itself, that would be clear. But this is a
       matter extraneous to the evidentiary issues
       before the Board, and, therefore, I would--it is
       the government's position that the legal advisor
       does not have the authority to make that
       particular ruling. However, in order to
       ascertain what you have asked, I would have to
       ask for a recess in order to get some
       information to give you a proffer. I am not
                     7
                    privy to the decision as to why the Board was
                    closed and what the reasons were behind it.
LA:                 Well, I think that would be in order. I'm not
                    at this point convinced that I would have the
                    authority to overrule the order of the convening
                    authority either. Nevertheless, I think in
                    light of the case law and just general knowledge
                    of constitutional due process I am extremely
                    concerned that, you know, barring some showing
                    by the convening authority that this Board would
                    be closed to not only members of the press and
                    members of the respondent's family, who--well,
                    it's not particularly relevant that they've come
                    long distances, but certainly creates an
                    inconvenience for people who have done so. Let
                    it go at that. Why don't we see if we can come
                    up with some--you know, some basis. It strikes
                    me that if the only basis for closing the
                    hearing is that this matter may be of some
                    embarrassment to the Department of the Navy,
                    that, by having done so, they have accomplished
                    their mission.
REC:                Sir, my understanding is that it is up to the
                    presiding officer to make the determination as
                    to what we should do at this point in time.
MBR [CAPT COOK]:    I would ask that we go into recess and allow you
                    to pursue the questions at hand raised by Major
                    Stutzel, and come back with a clear delineation
                    that may be more appropriate for him to rule on.
REC:                Yes, sir.
The Board recessed at 0945 hours, 11 July 1994.
                                *   *       *   *

The Board was called to order at 1306 hours, 11 July 1994. All
parties previously present were once again present.
MBR [CAPT COOK]:    The Board is back in session.            Major, over to
                    you.
LA:                 Thank you, sir.             Lieutenant Dutton, I understand
                                        8
                   you have a statement with regards to the issue
                   which was at hand when we recessed?
REC:               I do. I have conferred with the Staff Judge
                   Advocate for the convening authority. The Staff
                   Judge Advocate, Ron Neubauer, has conferred
                   directly with the convening authority, and it is
                   the convening authority's decision that the
                   Board shall be open, based on the request of the
                   respondent.
LA:                That then, Mr. Lee, I guess would moot the issue
                   raised, and the motion that we marked as, I
                   believe, Defense Exhibit 1A, which was the
                   motion to open the hearing.
CC [MR. LEE]:      It does, Major Stutzel.
LA:                In that case, Captain Cook, sir, and we're back
                   on the script.
MBR [CAPT COOK]:   Okay, as I understand it, we're at the point
                   where we revisit the issue of whether Lieutenant
                   Thorne has any questions concerning his rights
                   or the procedure before this Board.
CR:                Sir, it is Lieutenant Thorne's desire to waive
                   the reading of the rights before this Board.
                   He's been previously advised of those.
LA:                Before we proceed any further, there was one
                   administrative matter that I neglected to
                   mention before, and that is counsel for the
                   respondent have a reporter present in the
                   courtroom, and the record should reflect that
                   Pam Briggle is acting as the reporter for the
                   respondent, and is present in the Board hearing.
MBR [CAPT COCK]:   Does the recorder, counsel for the respondent,
                   or respondent wish to question any member of the
                   Board in relation to any matter which may
                   constitute a ground for challenge for cause?
REC:               The government does, sir. Gentlemen, I'd first
                   ask, I believe you're all aware that this Board
                   of Inquiry was convened by Commander, Naval Air
                                 9
                    Systems Command, to determine whether the
                    respondent in this case, Lieutenant Thorne, who
                    admits to being an homosexual, should be
                    retained in the Naval Service. Is that your
                    understanding, gentlemen?
MBR [CAPT COOK]:    I would have to refer directly to the convening
                    order and quote it verbatim, but that's my
                    general understanding.
MBR [CAPT SMITH]:   Yes.
MBR [CAPT BARNETT]: Yes.
REC:                Thank you, sir. Do any of you know Lieutenant
                    Thorne, the respondent at this Board, or have
                    any of you ever met him?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]: No.
REC:                Captain Barnett?
MBR [CAPT BARNETT]: No.
REC:                Negative responses. Now that you see Lieutenant
                    Thorne before you, do any of you recognize him?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]:    I've seen him around NAVAIR.
MBR [CAPT BARNETT]: I've seen him at NAVAIR.
REC:                Do any of you remember reading any newspaper
                    articles concerning Lieutenant Thorne?
MBR [CAPT SMITH]:   Not directly, but I remember something about
                    some case that occurred at Oceana. But no
                    specifics. I didn't recall the name until it
                    was pointed out to me.
MBR [CAPT COOK]:    I don't recall reading any newspaper articles on
                    it.

                                 10
MBR [CAPT BARNETT]: I have a vague recollection, like Captain Smith,
                    an incident in Oceana, but I couldn't have told
                    you the name before being appointed.
REC:                Do any of you remember seeing any television
                    programs in which Lieutenant Thorne was
                    interviewed or his case was discussed?
MBR [CAPT SMITH]:   I have not seen any.
MBR [CAPT COOK]:    I did not see the program directly, but I
                    believe I saw a play-back later of it.
REC:                Can you be more specific, sir? What do you
                    remember having seen?
MBR [CAPT COOK]:    Only that, I believe, it was Nightline with Ted
                    Kopple, that--I don't recall the particulars of
                    what was said but in a general sense that he was
                    a gay officer. That's the extent of it.
REC:                You said you remember seeing a play-back.    Could
                    you be more specific about that?
MBR [CAPT'CWK]:     Well, I think it was on the news again and not
                    the original show but at a subsequent time, but
                    I couldn't even tell you the time or place.
REC:                Sir, was that purely in your private capacity,
                    or was that in any official function?
MBR [CAPT COOK]:    That was strictly in my private capacity. I was
                    not even here at this time--in Washington.
REC:                Captain Barnett?
MBR [CAPT BARNETT]: No, I didn't see anything.
REC:                Is there anything any Board members have seen or
                    heard that you believe will make it more
                    difficult or impossible for you to render a fair
                    and impartial decision at this hearing? Captain
                    Smith?
MBR [CAPT SMITH]:   With regards to any media attention that was
                    paid to this particular case?
                                 11
REC:                Yes, sir.
MBR [CAPT SMITH]:   No.
MBR [CAPT COOK]:    No.
MBR [CAPT BARNETT]: No.
REC:                Other than the appointing letter which you've
                    all received, have any of you received any
                    information from any source about the
                    circumstances surrounding this case?
MBR [CAPT SMITH]:   I have not.
MBR [CAPT COOK]:    I have not.
MBR [CAPT BARNETT]: I have not.
REC:                I'm sure that you're all aware, gentlemen, that
                    the Navy's regulations concerning homosexual
                    have been in the news quite a bit lately. Do
                    any of you feel that the controversy surrounding
                    the revisions would prevent you from rendering a
                    fair and impartial decision in this case?
MBR [CAPT SMITH]:   No, I do not.
MBR [CAPT COOK]:    Absolutely not.
MBR [CAPT BARNETT]: No, I do not.
REC:                Were any of you, perhaps, stationed in the
                    Norfolk/Virginia Beach area during May/July 1992
                    time frame?
MBR [CAPT SMITH]:   I wasn't.
MBR [CAPT COOK]:    I was not.
MBR [CAPT BARNETT]: I was not.
REC:                Are any of you aware of a previous Board that
                    was convened in Lieutenant Thorne's case?
MBR [CAPT SMITH]:   No, I'm not.
                                    12
MBR [CAPT COOK]:    No, I'm not.
MBR [CAPT BARNETT]: No, I'm not.
REC:                Have any of you read articles in the newspaper
                    or come across any kind of media coverage
                    concerning the political process that led to the
                    changes in the regulations, and, if so, do any
                    of you feel that you're influenced to vote
                    either way by that political process and the
                    change that came about?
MBR [CAPT SMITH]:   I don't think I've been influenced by it, but
                    I've read most of the stuff that was in the
                    media that the policy was being changed shortly
                    after President Clinton took office.
REC:                And in your -- I take it, your reading was
                    somewhat in depth, sir?
MBR [CAPT SMITH]:   Just articles that would appear primarily in the
                    Washington Post.
REC:                And do you feel influenced either way by those
                    articles to vote today?
MBR [CAPT SMITH]:   No, I do not.
REC:                Captain Cook?
MBR [CAPT COOK]:    I've read articles and articles in the Early
                    Bird and what have you, but I certainly don't
                    feel influenced by much of what I read in the
                    paper.
REC:                Captain Barnett?
MBR [CAPT BARNETT]: My response would be the same.
REC:                There are, of course, other individuals being
                    processed for discharge by the military whose
                    cases have been reported in the media, or not.
                    Do any of you believe that you have been
                    influenced by any of these cases in any way to
                    vote one way or the other in this case?

                                    13
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]: No.
MBR [CAPT BARNETT]: No.
REC:                Evidently this Board may be the focus of media
                    attention itself as well. I'd ask if any member
                    feels that the media scrutiny would put any
                    pressure on you to vote one way or the other?
MBR [CAPT SMITH]:   No, it would not.
MBR [CAPT COOK]:    No, sir.
MBR [CAPT BARNETT]: No.
REC:                Has any member had an opportunity or occasion to
                    sit either before an Administrative Discharge
                    Board or as a member of a Board of Inquiry in
                    the past?
MBR [CAPT SMITH]:   No, I have not.
MBR [CAPT COOK]:    I've had one Administrative Discharge Board.
REC:                At which you were a member, sir?
MBR [CAPT COOK]:    Yes, but that was so long ago I couldn't give
                    you a particular on it.
MBR [CAPT BARNETT]: No, I haven't.
REC:                Have any members had occasion to convene either
                    a Board of Inquiry or an Admin Board?
MBR [CAPT SMITH]:   No, I have not.
MBR [CAPT COOK]:    I have.
REC:                In what capacity, sir?
MBR [CAPT COOK]:    As Commander, Naval Weapons Center, China Lake.
REC:                Can you give a rough idea of the circumstances
                    or were there many?
                                 14
MBR [CAPT COOK]:    To the best of my knowledge it was a drug case,
                    and routine processing.
REC:                During that time was there just one case or were
                    there several?
MBR [CAPT COOK]:    Well, there was one Admin case.   I had several
                    NJP cases and courts-martial.
REC:                And Captain Barnett?
MBR [CAPT BARNETT]: No.
REC:                Has any member had occasion to sit on a panel of
                    members at a court-martial?
MBR [CAPT SMITH]:   I've been on several courts-martial, both
                    summary and general courts.
REC:                What were the circumstances, if you could please
                    convey?
MBR [CAPT SMITH]:   There were several drug related cases that we
                    dealt with, and unauthorized absence, AWOL.
REC:                I believe you mentioned you were a summary
                    court-martial officer, is that correct?
MBR [CAPT SMITH]:   That's correct.
REC:                And a member on a jury?
MBR [CAPT SMITH]:   On a general court-martial.
REC:                Captain Cook?
MBR [CAPT COOK]:    No, I have not.
MBR [CAPT BARNETT]: I have two summary courts-martial, which were
                    drug related cases, and I was a member of a
                    general court-martial for murder.
REC:                And roughly when was that time?
MBR [CAPT BARNETT]: The general court-martial was in 1983, and the
                    summaries were prior to that, like '82.
                                    15
REC:                Have any of you had any prior discussions at all
                    with anyone about what the disposition in this
                    case should be today?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]:    Not the disposition, no.
REC:                Captain Cook, you mention the disposition, what
                    sorts of discussion have you had?
MBR [CAPT COOK]:    The only discussion I had was with Admiral
                    Bowes, the convening authority. Last Friday, in
                    my normal capacity of working the base
                    realignment and closure, I told him I'd be out
                    next week on the Board. He said they were
                    considering having it closed, and I responded "I
                    don't think I'd do that." And then he asked me
                    had I seen any or reviewed any other cases, and
                    my response was, "NO, I have not, nor do I deem
                    it appropriate to do so." He said, "Okay, I'll
                    see you next week", and that was the extent of
                    it. It was just a courtesy to let him know I'd
                    be out of touch.
REC:                Is there anything from that discussion that you
                    feel has influenced you to vote one way or the
                    other?
MBR [CAPT COOK]:    Absolutely not.
REC:                Captain Barnett, any prior discussions?
MBR [CAPT BARNETT]: None.
REC:                Have any of you been approached at any time from
                    anyone from either Naval District Washington,
                    our host command, or from the Bureau of Naval
                    Personnel concerning this case?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]: No.
MBR [CAPT BARNETT]: No.

                                 16
REC:                Do any members of the Board have any pressing
                    personal concerns or professional concerns, for
                    that matter, which could prevent you from giving
                    your full attention for the next few days
                    possibly?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]: No.
MBR [CAPT BARNETT]: No.
REC:                Do any of you-- do any of you know a homosexual
                    personally, either in your private or
                    professional life?
MBR [CAPT SMITH]:   No, I do not.
MBR [CAPT COOK]:    I do.
MBR [CAPT BARNETT]: Not that I know of.
REC :               In your acquaintance with a homosexual, Captain
                    Cook, is there anything from your acquaintance
                    with that person that would cause you to be more
                    inclined to vote one way or the other in this
                    case?
MBR [CAPT COOK]:    No, absolutely not.
REC :               Has any member been subject at any time to a
                    homosexual advance?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]:    No, sir.
MBR [CAPT BARNETT]: No.
REC:                Are any members aware of a bias, either for or
                    against, homosexuals that would prevent you from
                    rendering a fair decision in this Board?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]: No.
                                    17
MBR [CAPT BARNETT]: No.
REC:                Do any of you have a bias either for or against
                    homosexuals that would prevent you from applying
                    to this case the law and regulations as written?
MBR [CAPT SMITH]:   No.
MBR [CAPT COOK]:    No.
MBR [CAPT BARNETT]: No.
REC:                No further questions, thank you.
MBR [CAPT COOK]:    Next the counsel for the respondent may also
                    question the Board.
CC [MR LEE]:        Mr. President, members of the Board, good
                    afternoon. Patrick Lee, counsel for Lieutenant
                    Thorne. Sometimes in our questions we might
                    think that the question is antagonistic or
                    invasive or repetitive. I'm sure you won't feel
                    that way, but I want to assure you that it not
                    my intention to be antagonistic or invasive.
                    Captain Cook, based on the pre-hearing
                    information you've had with respect to the
                    Nightline show and Lieutenant Thorne, what
                    impression have you formed of Lieutenant Thorne?
MBR [CAPT COOK]:    I haven't really formed an impression of
                    Lieutenant Thorne. I don't know him.
CC [MR. LEE]:       You have no impression with respect to whether
                    he was performing as you'd expect a United
                    States Naval Officer to perform when he made his
                    appearance on Nightline?
MBR [CAPT COOK]:    Well, at that particular time--I don't have the
                    particulars, but I would question whether it was
                    appropriate or not, but I don't know the
                    circumstances.
CC [MR LEE]:        When you refer to "appropriateness", what do you
                    mean to convey, what standard or what level--
                    could you tell me what "appropriateness" means?

                                 18
MBR [CAPT COOK]:    Well, I think if an individual speaks out,
                    that's pretty much his own choice, but, if I
                    recall correctly I believe he was in uniform. I
                    can't swear to that. If that was the fact, then
                    I would question the appropriateness.
CC [MR. LEE]:       I think, if I understand the government's
                    tendered exhibits correctly, you'll probably get
                    a chance to see that Nightline performance, and
                    I think that it will demonstrate to you that he
                    did not, in fact, wear his uniform in that
                    appearance. Would that affect your view of
                    whether or not such an appearance is
                    appropriate?
MBR [CAPT COOK]:    I would have to see it in context and fully
                    understand the context of what occurred to make
                    a judgment.
CC [MR. LEE]:       So at this point, as I understand it, you don't
                    have a basis for judging whether it was
                    appropriate for him to appear or not?
MBR [CAPT COOK]:    I would say that I don't. I don't know all the
                    facts in the case. I was just very candid with
                    you that, you know, I was aware there was a case
                    and the name Thorne was familiar to me, and
                    that's the extent.
CC [MR. LEE]:       Captain Barnett, I think you had indicated some
                    level of awareness. I couldn't characterize it,
                    based on the pre-hearing information. What
                    impression have you formed with respect to
                    Lieutenant Thorne based on that pre-hearing
                    information?
MBR [CAPT BARNETT]: I don't think I really formed an impression of
                    him. There have been a number of events arising
                    since the election very relative to this, and it
                    just kind of fell in with all the rest of them.
CC [MR. LEE]:       The events are not events relating to Lieutenant
                    Thorne?
MBR [CAPT BARNETT]: No.

                                 19
CC [MR. LEE]:       They relate to the national debate on the
                    appropriateness of----
MBR [CAPT BARNETT]: Yes, he was just one of another of the myriad of
                    events that were going on, and I didn't assign
                    any significance to his over any other event.
CC [MR. LEE]:       And did this myriad of events relate to the
                    national debate on service by homosexuals?
MBR [CAPT BARNETTJ: Yes.
CC [MR. LEE]:       A question addressed to the members of the Board
                    generally,. are you willing to serve in the Navy
                    with a homosexual, a person sexually attracted
                    to members of the same sex? Captain Smith,
                    could I start with you?
MBR [CAPT SMITH]:   In the context that it is in compliance with
                    stated policy of DOD, no.
CC [MR. LEE]:       Your answer is "no"?
MBR [CAPT SMITH]:   I would have no problems with it if it's in the
                    context of the stated policy for the Department
                    of Defense.
CC [MR. LEE]:       And then you said "no".
MBR [CAPT SMITH]:   I said no, I would have no problems serving with
                    an individuals---
CC [MR. LEE]:       Thank you, I was not understanding your answer.
                    Thank you. And what do you understand to be
                    that policy?
MBR [CAPT SMITH]:   Well, this 13 page document we could go through,
                    if you like.
CC [MR. LEE]:       Are you referring to DOD 13322?
MBR [CAPT SMITH]:   That's correct.
CC [MR. LEE]:       Captain Cook?
MBR [CAPT COOK]:    I would not have a problem if it is in
                                    20
                   compliance with the policies of the Department
                   of Defense.
CC [MR. LEE]:      And do you have an understanding as to what that
                   policy is?
MBR [CAPT COOK]:   I've reviewed it.   I have a copy of it available
                   to me.
CC [MR. LEE]:       Can you state it for me briefly?
MBR [CAPT COOK]:    Can I state that policy to you?
CC [MR. LEE]:      Yes, sir.
MBR [CAPT COOK]:    No, I don't think I can.
CC [MR. LEE]:       Captain Barnett?
MBR [CAPT COOK]:    In its totality.
CC [MR. LEE]:       I'm sorry, I interrupted you. Can you
                    characterize it in a couple of sentences?
MBR [CAPT COOK]:    Well, I think the general--the general thrust is
                    "Don't ask and don't tell." If you violate that
                    special trust then er go to the next step----
CC [MR. LEE]:       The policy does not----
MBR [CAPT COOK]:    ----as a general statement.
CC [MR. LEE]:       Excuse me, I interrupted you again. People
                    finish my sentences, but that's because I talk
                    slow. The current policy would permit service
                    by a homosexual, would it not?
MBR [CAPT COOK]:    I believe the current policy would permit
                    service by a homosexual if it's in consonance
                    with the--with the existing instruction.
CC [MR. LEE]:       Captain Barnett, are you willing to serve with a
                    homosexual?
MBR [CAPT BARNETT]: Likewise, as long as it is within the confines
                    of the DOD policy.
                                 21
CC [MR. LEE]:       And you do understand that the policy would
                    permit service by homosexuals?
MBR [CAPT BARNETT]: As I understand it, if he was serving, I
                    wouldn't know it.
CC [MR. LEE]:       Would it make a difference to any of you if you
                    did know? Would you still be willing to serve
                    with that homosexual?
MBR [CAPT COOK]:    It would depend on the circumstances. When you
                    say, "if I did know it", it would depend on the
                    circumstances.
CC [MR. LEE]:       And that really was my next question. If you
                    found out from his Great Aunt, and not from him,
                    that he was a homosexual, would you be willing
                    to serve with that homosexual in the military?
MBR [CAPT COOK]:    If I found out from his Great Aunt it might be
                    my interpretation that he's still in compliance
                    with the policy.
CC [MR. LEE]:       And you'd be willing to serve with him?
MBR [CAPT COOK]:    Urn-hum, yes.
CC [MR. LEE]:       How about you, Captain Barnett? Same
                    circumstance?
MBR [CAPT BARNETT]: I think so, yes. His Great Aunt telling me
                    would be--that's no factor, and I'd be willing
                    to serve with him.
CC [MR. LEE]:       So it might depend on the source of your
                    information, is that correct?
MBR [CAPT BARNETT]: [Nodding affirmatively.]
CC [MR. LEE]:       I believe your answer is in the affirmative?
MBR [CAPT BARRETT]: Yes.
CC [MR. LEE]:       I repeated that--said that for the benefit of
                    the reporter. Captain Smith, same question?

                                    22
MBR [CAPT SMITH]:   Again, it goes back to the DOD policy. As long
                    as it is in compliance with that, I would have
                    no problems.
CC [MR. LEE]:       Captain Cook, you mentioned that you knew
                    someone who was a homosexual. Would you be
                    willing to serve in the Navy with that person?
MBR [CAPT COOK]:    In the Navy, on active duty, I wouldn't. He was
                    a subordinate of mine in my last command, and he
                    was a civilian. And in that particular case,
                    no. I wouldn't, but it had nothing to do with
                    his homosexuality. It had more to do with his
                    conduct.
CC [MR. LEE]:       His conduct unrelated to the fact that he was a
                    homosexual?
MBR [CAPT COOK]:    Well, yes and no. You have to go through the
                    case to understand the ramifications. It was an
                    individual who was very outspoken on the issue,
                    was involved with the Mixner campaign right
                    after the President came in, wanted to come to
                    the inauguration, and was making a--you know,
                    wanted to come back, wanted the Navy to support
                    him, wanted to be a spokesperson for the Navy
                    and what have you. And that was the
                    circumstance, and the way he conducted himself
                    at that time was clearly not appropriate and
                    wouldn't have been in consonance with the Navy's
                    policy either.
CC [MR. LEE]:       But it's the conduct or attitude that you're
                    describing would not be appropriate?
MBR [CAPT COOK]:    His attitude and how he was dealing with a
                    particular situation.
CC [MR. LEE]:       Well, let me ask a question, and I think it
                    follows off what you just said, are you willing
                    to serve with a homosexual who thinks that the
                    Department of Defense's policy on military
                    service by homosexuals should be changed and who
                    said so?
MBR [CAPT COOK]:    I would go back to what Captain Smith has said,
                                 23
                   if his conduct is in accordance with the
                   policies of the Department of Defense,
                   Department of the Navy, I will serve--it will be
                   an amicable situation. If the individual is not
                   in consonance with those stated polices, then
                   appropriate actions ought to be taken.
CC [MR. LEE]:      Is it consistent with policy, that is acceptable
                   under the current policy on service by
                   homosexuals, for a homosexual officer to hold
                   the view that the policy should be changed to
                   permit more open service by homosexuals and to
                   voice that view? Is that acceptable?
MRR [CAPT COOK]:   I'd have to study the policy and apply your
                   specific question to it. If the individual
                   announces that he is a homosexual, then I don't
                   think it is in accordance with that policy.
CC [MR. LEE]:      Let's assume the circumstance where there is not
                   an announcement by the individual, but you know
                   he's a homosexual because his Great Aunt has
                   told you, and he has expressed the view publicly
                   that the policy should be changed to permit open
                   service by homosexuals, do you think that is
                   acceptable under the policy, and would you serve
                   with such a person?
MBR [CAPT COOK]:   You're asking me to make a judgment on the
                   policy, and I-- I'm not about to do that.
CC [MR. LEE]:      Well, sir, I do not intend to ask you for your
                   views on the policy, and our case here will not
                   address the policy or whether it is good or bad.
MRR [CAPT COOK]:   If a particular individual is in accordance with
                   the policy, but yet states views on things or is
                   having a discussion or a debate, I'm comfortable
                   with people who have varying views on issues.
CC [MR. LEE]:      It is consistent with your notion that you hear
                   or say things in a private capacity?
MRR [CAPT COOK]:   Yeah.
CC [MR. LEE]:      I heard you refer to your private capacity
                                24
                   earlier.
MBR [CAPT COOK]:   To have a discussion on the issue is one thing,
                   but if the individual makes an announcement that
                   he is gay or she is gay and then feels that the
                   policy is --needs to be revisited, it is my
                   judgment that they have departed from that
                   policy, from compliance with that policy.
CC [MR. LEE]:      That is, if they had made a public statement?
MBR [CAPT COOK]:   If they'd made a public statement.
CC [MR LEE]:       Concerning their homosexual orientation?
MBR [CAPT COOK]:   Yes.
CC [MR. LEE]:      But the fact that they hold those views in and
                   of themselves, joined with the fact of
                   homosexuality, doesn't affect your willingness
                   to serve with that person?
REC:               Sir, I object to the continuing line of
                   questioning. The member's already stated that
                   his opinion on the issue and this particular
                   line of questioning--- Well, first of all, it's
                   already been answered, and, secondly, it's
                   trying to box the member into an issue of policy
                   that has not been brought before the Board.
CC [MR. LEE]:      I think the terms of the question does not ask
                   for a view with respect to the policy, and I
                   certainly don't intend that. Perhaps I could
                   rephrase the question. Perhaps I could ask it
                   in these terms: Are you willing to serve with a
                   homosexual who has not made a statement about
                   his orientation----
REC:               Again, sir, I would object. The line of
                   questioning has already been answered, that the
                   members have all indicated clearly that they
                   would be willing to serve with a homosexual who
                   is within the guidelines issued by the military,
                   by the Department of Defense. They've all
                   stated that several times on the record, and any
                   further continuing questioning just gets to that
                                25
                    same point.
LA:                 I didn't hear the whole question, so I'm not so
                    sure whether or not it was going to the same
                    point. I'll allow Mr. Lee to complete the
                    question and see whether or not--- Mr. Lee,
                    there is some valid point to what Lieutenant
                    Dutton is pointing out on the one hand. On the
                    other hand, of course, I want you to be able to
                    ask questions that keep moving.
CC [MR. LEE]:       I had intended to move beyond where we were.
                    They may sound repetitive. I'll try not to make
                    them repetitive. Let me ask Captain Smith the
                    question just so it sounds different. Are you
                    willing to serve with a homosexual who has not
                    made a statement about his orientation, but he
                    has made a public statement in support of
                    legislation which proposes to permit military
                    service by admitted homosexuals?
MBR [CAPT SMITH]:   Yes, I would.
CC [MR. LEE]:       Are you willing, Captain Barnett, to serve with
                    a homosexual who has told his Commanding Officer
                    that he is a homosexual, but that he agrees with
                    and will abide by military regulations
                    concerning his sexual conduct in areas under
                    military control?
REC:                Sir, again, all of the members have expressed,
                    each one individually expressed that they would
                    be willing to serve with a homosexual who is
                    within compliance with Department of Defense
                    regulations. This is the same question in just
                    a slightly different form. It calls for the
                    exact same answer.
CC [MR. LEE]:       This is a question that is--that is profoundly
                    different from the questions I've asked
                    previously, and it is based on and invokes the
                    circumstances of this case, a letter statement
                    by this individual to his Commanding Officer,
                    which you will hear about because it will be
                    offered in evidence by the government.

                                    26
REC:               Sir, it also asks them to draw a conclusion as
                   to whether or not an individual under that
                   hypothetical set of circumstances is within the
                   Department of Defense regulations. They've
                   already stated that if he is within the
                   regulations, they would be willing to serve with
                   him.
CC [MR. LEE]:      I'm not asking that question. I'm not asking
                   the legal question. I'm asking about their
                   individual willingness. I'm trying to elicit
                   their personal views, their personal feelings as
                   part of the voir dire.
LA:                Mr. Lee, I'll allow you ask the question.
                   Members of the Board, inasmuch as the voir dire
                   either consciously attempts to or subjectively
                   leads one to decide what the law is with regards
                   to this case, you're advised that at the end of
                   the evidence I will instruct you on what
                   Department of Navy policy is with regards to
                   service by those who have made homosexual
                   statements. I will allow you to question the
                   members with regard to their feelings in this
                   particular question.
CC [MR. LEE]:       In light of that instruction, which I don't
                    disagree with, are you willing to serve, Captain
                    Barnett, with a homosexual who has told his
                    Commanding Officer he's a homosexual, but that
                    he agrees with and will abide by military
                    regulations concerning his sexual conduct in
                    areas under military control?
MBR [CAPT BARRETT]: Only if he were still in compliance with the DOD
                    directive. I would seek counsel at the time.
CC [MR. LEE]:       What would your feeling be about a person like
                    that?
MBR [CAPT BARNETT]: I'd have to determine whether he was within DOD
                    policy before I establish my grounds.
CC [MR. LEE]:       Your feelings about it would be based upon
                    whether or not he was legally in compliance?

                                 27
MBR [CAPT BARNETT]: Yes.
CC [MR. LEE]:       Captain Cook, could you respond to that
                    question?
MBR [CAPT COOK]:    Would you repeat the question, please?
CC [MR. LEE]:       Yes, I will. Are you willing to serve--I'm
                    focused on feelings, not legal requirements, are
                    you willing to serve with a homosexual who has
                    gone to this commanding officer and said, "Look,
                    I'm a homosexual, but I want to get to work. I
                    want to assure you that my conduct is going to
                    be above board. I'm going to comply with
                    military regulations concerning sexual conduct
                    in areas under military control. What do you
                    want me to do?" What are your feelings about
                    that person? Would you be willing to serve?
MBR [CAPT COOK]:    Well, in the circumstance you've described, I
                    wouldn't know he's a homosexual because he went
                    to the commanding officer. It's up to the
                    commanding officer to take appropriate action.
                    If I were the commanding officer and he came to
                    me, I would take appropriate action in
                    accordance with the--- But I think my personal
                    feelings are secondary here, one way or the
                    other. The real issue is, you know, as a naval
                    officer I abide by what the regulations and the
                    guidance is and look within that context to make
                    decisions.
CC [MR. LEE]:       That is the issue. I was trying to elicit your
                    feelings. Would you share those with me?
MBR [CAPT COOK]:    I think I answered your question for you, sir.
CC [MR. LEE]:       Captain Smith, could you respond to that
                    question?
MBR [CAPT SMITH]:   In a very hypothetical question, I would say
                    that if an individual could put their sexuality
                    aside, I doubt if you could do that, but given
                    in the pure sense the individual could put their
                    sexuality aside and not engage in activities
                    covered under the DOD policy, yes, I could serve
                                 28
                    with that person.
CC [MR. LEE]:       Let me follow up on your observation about
                    ability to put sexuality aside. Make sure I
                    understand it. Is it your view that a
                    homosexual would not be able to control his
                    sexual urges and, in effect, not act upon a
                    sexual feeling?
MBR [CAPT SMITH]:   Not any more than a heterosexual could control
                    their desires and urges.
CC [MR. LEE]:       Do you think that heterosexuals in the Navy do
                    on a daily basis control their sexual urges?
MBR [CAPT SMITH]:   Certainly under situations they do.
CC [MR. LEE]:       Excuse me, sir, I couldn't hear you.
MBR [CAPT SMITH]:   Yes, they do, particularly aboard ship where
                    there's no one there of the opposite sex. In
                    the past there hasn't been anyone there of the
                    opposite sex for males, at least.
CC [MR LEE]:        But heterosexual members of the Naval Service
                    are, in circumstances, quite frequently now,
                    where they have to control their sexual urges
                    and reactions, isn't that true?
MBR [CAPT SMITH]:   That's true.
CC [MR. LEE]:       And they're able to do it?
MBR [CAPT SMITH:    Yes.
CC [MR. LEE]:       Do you agree that homosexually would similarly
                    be able to control their sexual urges?
MBR [CAPT SMITH]:   I don't know.
CC [MR. LEE]:       Your response, as I understand it, is you don't
                    know?
MBR [CAPT SMITH]:   That's correct.
CC [MR. LEE]:       Would you be willing to accept expert testimony
                                    29
                    to that effect, that is, that they can, in fact,
                    control their sexual urges to the same extent,
                    the same way that heterosexuals can?
MBR [CAPT SMITH]:   Yes, I would.
CC [MR. LEE]:       Captain Cook, would you be willing to accept
                    that testimony, expert testimony on that issue?
LA;                 I'm going to rephrase the question for you, Mr.
                    Lee. Members of the Board, including Captain
                    Smith who responded to the question a moment
                    agoI I'm going to advise you that if the
                    evidence is admitted you're required to consider
                    that evidence. And having considered it, you
                    can give it as much or as little weight as you
                    deem appropriate in light of all the other
                    evidence. You don't necessarily have to accept
                    it as a finding, and that's true of any kind of
                    evidence, including expert evidence on any
                    issue.
CC [MR. LEE]:       Including the government's evidence?
LA:                 Including the government's evidence.
CC [MR. LEE]:       Subject to that notion, would you be willing, if
                    you found it persuasive to accept expert
                    testimony to the effect that homosexual could
                    control their sexual urges to the same extent
                    and degree that heterosexuals can?
MBR [CAPT COOK]:    I would have to say that I certainly would
                    consider the evidence. To say carte blanche
                    that I will accept expert testimony on any of
                    the issues, I think is a bit premature.
CC [MR. LEE]:       Do you have a belief as you sit there whether
                    homosexuals are able to control their sexual
                    urges and feelings?
MBR [CAPT COOK]:    I have no first hand knowledge of homosexual
                    relationships. I do not know.
CC [MR. LEE]:       Captain Barnett, do you have any views on that
                    subject?
                                    30
MBR [CAPT BARNETT]: I don't have any experience to have any views on
                    it.
CC [MR. LEE]:       We heard some discussion, in response to my
                    question and in response to the recorders
                    questions, to the effect that military personnel
                    do have a private capacity in their lives. Do
                    you consider, Captain Smith, your sexual life to
                    be private--part of the private capacity you
                    have?
MBR [CAPT SMITH]:   If you mean the act of having sexual relations
                    with someone, certainly that's private.
CC [MR. LEE]:       Captain Cook, do you regard those as private?
MBR [CAPT COOK]:    Yes, I think my sexual conduct is, within
                    appropriate bounds is, certainly private.
CC [MR. LEE]:       Captain Barnett?
MBR [CAPT BARNETT]: I think it is a private matter.
CC [MR. LEE]:       I assume, based on your responses that you think
                    generally others in the Navy are entitled to
                    privacy in their sexual lives, is that true?
                    I take it from the absence of a response, that
                    you're responding affirmatively to my question,
                    is that correct? Captain Smith?
MBR [CAPT SMITH]:   It almost feels like we're trying to be drawn in
                    to answer the question whether or not did we
                    believe that homosexuality has a place within
                    the Navy, and .I don't know if I can respond to a
                    the question that general. I'll tell you that I
                    think people have rights to do, in a private
                    capacity, what is in accordance with the morals
                    of our society and within the laws of the state.
CC [MR. LEE]:       I didn't intend to ask the question that you
                    thought I was leading towards. Maybe I was, but
                    I wasn't asking the question, but thank you for
                    your response. Captain Cook, are you of the
                    view that others in the Navy are entitled to
                    privacy in their sexual lives?
                                 31
MBR [CAPT COOK]:    Say the question again, sir.
CC [RR. LEE]:       Are you of the view that others in the Navy are
                    entitled to privacy in their sexual lives?
MBR [CAPT COOK]:    I believe they are entitled to privacy in their
                    sexual lives as long as it is within the bounds
                    of society and regulations of the state and the
                    organization as set forth.
CC [MR. LEE]:       When you refer to society, what are you
                    referring to?
MBR [CAPT COOK]:    Well, the DOD policy that come down that
                    presently is the policy of our government within
                    the Department of Defense. If they're within
                    those bounds, then I think that they have a
                    right to privacy. If they depart from that,
                    then there's an accountability issue, and that's
                    true of heterosexuals also.
CC [MR. LEE]:       Does this policy that you've just referred to
                    recognize that right to privacy?
MBR [CAPT COOK]:    I think it recognizes some right of privacy. If
                    the individual maintains his privacy, the other
                    side maintains the privacy.
CC [MR. LEE]:       In fact, the basis of the policy or inherent in
                    the policy is if you don't know about it, it's a
                    private matter, it's not a concern of the Navy,
                    isn't that right?
MBR [CAPT COOK]:    I'll save my total interpretation of the policy
                    until I appropriately discuss it with counsel.
CC [MR. LEE]:       Do you think homosexual naval officers are
                    entitled to privacy in their sexual lives,
                    Captain Barnett?
MBR [CAPT BARNETT]: I assume you're referring to undeclared or---
                    As far as I know we don't have any homosexual
                    naval officers, except----
CC [MR. LEE]:       Let's assume that we're talking about undeclared
                    homosexuals, are they entitled to privacy in
                                 32
                    their sexual lives?
MBR [CAPT BARNETT]: I think that's a matter of DOD policy.
CC [MR. LEE]:       Your answer would be yes?
MBR [CAPT BARNETT]: Yes.
CC [MR. LEE]:       I think you may have been asked this question by
                    Lieutenant Dutton, but I'm going to ask it again
                    because I'm not sure. Have any of your had
                    homosexuals under your command?
MBR [CAPT SMITH]:   Not that I'm aware of.
MBR [CAPT COOK]:    Yes.
CC [MR LEE]:        Could you tell me about that?
MBR [CAPT COOK]:    Yes, I could.        It was a civilian.
CC [MR. LEE]:       It's the civilian that you referred to earlier?
MBR [CAPT COOK]:    It's the civilian I referred to earlier.
CC [MR. LEE]:       All right, fine.        I don't think we need more
                    detail.
MBR [CAPT COOK]:    It's a civilian, and there's a long history on
                    it, I think. I can discuss it, if you like.
CC [MR. LEE]:       No, I think I do understand.        Captain Barnett?
MBR [CAPT BARNETT]: No.
CC [MR. LEE]:       What materials have you read with respect to
                    military service by homosexuals? Captain Smith,
                    anything?
MBR [CAPT SMITH]:   Just the flurry of things that happened after
                    the inauguration when President Clinton was
                    changing policy. There were several examples
                    that came out. I remember there was a petty
                    officer out on the West coast--I don't recall
                    where it was, but somewhere on the West coast,
                    in California, that was discharged and he went
                                    33
                    to court and was returned to the service within
                    his squadron.
CC [MR. LEE]:       These news accounts?
MBR [CAPT SMITH]:   Right.
CC [MR. LEE]:       You've referred to the fact that a homosexual
                    was apparently returned to service----
MBR [CAPT SMITH]:   And I don't recall the details. It was a couple
                    of years ago now, a year and a half ago.
CC [MR. LEE]:       Does that bother you that a homosexual has been
                    returned to service?
MBR [CAPT SMITH]:   I guess it occurred at a time when the policy
                    was still in formulation. I don't know what the
                    current status is of that individual. I think
                    at the time he was brought back on active duty
                    he was not in compliance with the DOD stated
                    policy at that point in time with regard to
                    homosexuality within the service. And I do
                    disagree with that.
CC [MR. LEE]:       If he was not in compliance?
MBR [CAPT SMITH]:   That's correct.
CC [MR. LEE]:       Captain Cook, have you read anything about
                    military service by homosexuals?
MBR [CAPT COOK]:    I've read the general news media. No specific
                    cases--the Meinhold case, the same general
                    knowledge. The Cammermeyer case, which has been
                    in the Early Bird, things of that nature.
                    That's the only information that I have on the
                    issue.
CC [MR. LEE]:       How do you feel about the return of Cammermeyer
                    and Meinhold to active duty?
MBR [CAPT COOK]:    My particular view is that that's an issue for
                    the courts to resolve. It's in the legal
                    process and that's where it is going to have to
                    play out.
                                 34
CC [MR. LEE]:       Is it acceptable to you personally that those
                    individuals serve in the United States military?
MBR [CAPT COOK]:    Well, they're not in compliance with the policy
                    right now, as I understand it, so there's an
                    issue there. But, when you say "acceptable" to
                    me, there is certainly nothing that I'm going to
                    step forth to do about it. That's got to play
                    out. We have a job to do, and the rest of us
                    are getting on with our work, and those
                    particular cases will just have to play out.
CC [MR. LEE]:       Captain Barnett, have you read anything
                    concerning military service by homosexuals?
MBR [CAPT BARNETT]: Like Captain Smith, just a little bit of the
                    news. In general, after a few articles I just
                    started skipping those headlines when I'd see
                    them.
CC [MR. LEE]:       You mentioned a moment ago that as far as you
                    know there are no homosexuals in the Navy.
                    What's your basis for saying that?
MBR [CAPT BARNETT]: I haven't had anybody tell me they were, so I
                    treat them as if they aren't. I assume they
                    aren't, since there aren't supposed to be any.
CC [MR. LEE]:       But under the current policy homosexuals can
                    serve?
MBR [CAPT BARNETT]: But they can't tell me.
CC [MR. LEE]:       So they may well be there, you just don't know
                    about it?
MBR [CAPT BARNETT]: Yes, that's true.
cc [MR. LEE];       Major, I have some questions with respect to
                    the--the information--the exchange of
                    information, communications between Captain Cook
                    and the convening authority, and I wonder if it
                    would be appropriate to conduct that examination
                    of Captain Cook out of the presence of the other
                    two members of the Board. The--I doubt if this
                    will happen, but if I were to compare this to a
                                 35
                jury selection process, when we move into an
                area that has a potential for affecting the
                views of others, often the court will have the
                inquiry privately. As I say, I don't think this
                will be the case, but I want to make sure we
                don't have to start over with three new
                Captains.
LA:             Lieutenant Dutton, do you have any objection to
                that?
REC:            Well, I believe I do, only to protect the Board.
                I mean, there is no proceeding of the Board
                without the members of the Board, as far as I'm
                aware of. That's the only objection I have.
                Frankly, I would prefer to be able to do that,
                as well, but I don't think there is a Board
                convened on which we can make a record of its
                proceedings without the full members here.
CC [MR. LEE]:   There's a sense, Major, in which we haven't yet
                seated or accepted these Board members. They
                are still subject to challenge. It may be a
                problem after they are seated and no longer
                subject to challenge to have proceedings in
                which one or more of them is absent. But at
                this point, where we're just trying to assess
                whether or not they, individually, are subject
                to challenge, I think individual inquiry is
                permissible. Again, I'd use the jury selection
                process as a model.
REC:            I'd rely on your expertise, sir, as legal
                advisor, but I want very much to protect the
                integrity of this Board, and I would not like to
                step outside what would protect the integrity of
                the Board.
LA:             The SecNav instruction is not particularly--
                having said particularly I'm unable to come up
                with a word that goes with that. It's not
                specific with regards to the issue of whether or
                not voir dire of a member of a Board can be
                conducted in the absence of other members of the
                Board. I think--whereas I understand your
                concern, Lieutenant Dutton, that--that the Board
                             36
                   not be conducted in the absence of members of
                   the Board, and I would not allow that to occur.
                   I don't--I don't think that's applicable in the
                   sense of what we're dealing with here. I think
                   as a matter of procedure it would be appropriate
                   to protect the knowledge of the members of the
                   Board from other, you know, potentially
                   disqualifying matters that could be raised and
                   that we would not be stepping outside the
                   dictates of the instruction to do it that way.
                   Do you have a comment, Major Duffy, you were
                   starting to stand?
AREC:              Yes, sir. I believe since you are appointed as
                   legal advisor and you will decide on all
                   challenges other than yourself, it will be okay
                   at this time to have the other members step out.
                   Where a legal advisor isn't assigned to the
                   Board, the members themselves decide on the
                   challenges, but that's not necessary here, and I
                   think it is appropriate to excuse the other
                   members.
LA:                That's a good point. Since they don't need to
                   hear what might be a basis for challenge, we can
                   take care of the possibility that they may be
                   tainted. You desire to speak with Captain Cook?
CC [MR. LEE]:      Captain Cook, and it will be brief, 15 minutes
                   at most.
LA:                Sir, I think that would be the appropriate way
                   to do this. The record should reflect that
                   Captain Smith and Captain Barnett are exiting
                   the hearing room.
CC [MR. LEE]:      Thank you, Captain   Cook. I'd like to go over
                   the communication,   exchange with the convening
                   authority, Admiral   Bowes, I believe. Have you
                   ever heard Admiral   Bowes talk about gays?
MBR [CAPT COOK]:   No, sir, I have not.
CC [MR. LEE]:      Ever heard him talk about the issue of service--
                   military service by homosexuals?

                                37
MBR [CAPT COOK]:   No, sir, I have not.
CC [MR. LEE]:      Are you aware of any of his reactions to the
                   policy debate that occurred over the last couple
                   of years that you and other members have
                   referred to?
MBR [CAPT COOK]:   None whatsoever.
CC [MR. LEE]:      What other contacts have you had with Admiral
                   Bowes, other than the one you described?
MBR [CAPT COOK]:   You mean relative to this particular case?
                   Well, I've known him for many years, you have to
                   have a bound on the question, please.
CC [MR. LEE]:      Have you been in a command relationship to him,
                   that is was he in your chain of command at any
                   point in your career?
MBR [CAPT COOK]:   Yes, sir, when I was the Commander of the Naval
                   Weapons Center he was the Commander of NAVAIR,
                   and for a short period he was my reporting
                   senior.
CC [MR. LEE]:      He was your what, sir?
MBR [CAPT COOK]:   Reporting senior, as he is today.
CC [MR. LEE]:      What other contacts have you had with Admiral
                   Bowes concerning this proceeding?
MBR [CAPT COOK]:   The only contact I have had with him on this
                   particular proceeding was Friday when I took in
                   the base realignment and closure data calls,
                   which I do on a weekly basis to get signed and
                   submitted, I made the statement, "I will not be
                   in touch next week because I'll be at the Board
                   of Inquiry." And he said, "Fine. We are right
                   now looking at whether it will be an open or
                   closed hearing." And I said, "I don't think it
                   should be closed." And then after that he
                   asked--he said, "Have you looked at any other
                   cases? n And I said, "No, I have not, nor do I
                   deem it appropriate." And that is the sum total
                   of any conversation that I have had with him
                                38
                   relative to this particular case or any case.
CC [MR. LEE]:      Did he express why he was contemplating closing
                   it?
MBR [CAPT COOK]:   No, sir, he did not discuss that at all.
CC [MR. LEE]:      And did he express any concerns about it being
                   open?
MBR [CAPT COOK]:   No, sir.
CC [MR. LEE]:      Was Admiral Bowes the person who selected you to
                   sit on this Board?
MBR [CAPT COOK]:   He is the convening authority, and the
                   appointing letter had me. I don't know of the
                   dialogue or the process that took place to come
                   up with members of the Board.
CC [MR. LEE]:      Do you know why you were selected for this
                   Board?
MBR [CAPT COOK]:   No, sir. I don't know why I was selected for
                   this Board.
CC [MR. LEE]:      Had you heard anything about that?
MBR [CAPT COOK]:   No, sir.
CC [MR. LEE]:      Have you had discussions about this proceeding,
                   any aspect of this proceeding with anyone else
                   up your chain of command?
MBR [CAPT COOK]:   Only to the Vice Commander that I had been
                   assigned to this Board. I work with him on
                   almost a daily basis, so that he was aware of
                   it, but that's the extent within the chain of
                   command--there's been any discussion.
CC [MR. LEE]:      Did the Vice Commander express any views with
                   respect to gays in the military?
MBR [CAPT COOK]:   No, sir; no, sir; none whatsoever.
CC [MR. LEE]:      I have no further inquiry along this line.
                                39
LA:                 Lieutenant Dutton, any questions while the
                    Captain is on his own? Any need, Mr. Lee, to
                    question any other members individually at this
                    point?
CC [MR. LEE]:       No there's not.
REC:                I have no questions for him at this time. I do
                    have questions for the members in general,
                    though.
CC [MR. LEE]:       And that concludes my voir dire.
LA:                 Why don't we recall the other two members?
                    Unless, Captain Cook, you desire to take a break
                    at this point before we proceed on?
MBR [CAPT COOK]:    I don't desire to take a break, but it seems
                    like a logical point should any of the members
                    feel a break is necessary.
REC:                I have just a couple more questions on voir dire
                    for all members, and perhaps that would be----
MBR [CAPT COOK]:    If no one has an urgent need for a break right
                    now, why don't we bring in the other members and
                    proceed through this phase.
[Captains Smith and Barnett returned to the hearing room.]
LA:                 The record should reflect that Captain Smith and
                    Captain Barnett have reentered the hearing room.
MBR [CAPT COOK]:    Proceed, Major.
LA:                Lieutenant Dutton, you indicated you had more
                   questions?
REC:               Yes, just a couple. Gentlemen, you discussed
                   with respondent's counsel that sexual relations
                   are generally part of ones private life, but I
                   think you'd all agree that there are certain
                   circumstances under which sexual relations do
                   become the Navy's business. Adultery, for
                   instance, is punishable under the UCMJ, isn't
                   that correct?
                                 40
                         [Affirmative responses from all members.]
      REC:               Affirmative responses from all the members. And
                         there are other circumstances in which otherwise
                         private matters would become the Navy's business
                         under other circumstances, financial matters, so
                         to speak?
                         [Affirmative responses from all members.]
      REC:               And if it is subject to Navy regulations then
                         otherwise private matters do become the Navy's
                         business, isn't that right?
                         [Affirmative responses from all members.]
      REC:               You also mentioned that homosexual naval
                         officers, as a general matter, are entitled to
                         sexual privacy, but wouldn't you all agree that
                         that's only if they're within compliance with
                         the stated policy?
                         [Affirmative responses from all members.]
      REC:               Again, positive responses from all members. No
                         further questions.
      CC [MR. LEE]:      With respect to the areas of adultery, areas of
                         financial stress there are no--to your knowledge
                         there are no rebuttable presumptions created by
                         Navy policy, are there?
      MBR [CAPT COOK]:   Could you put that--phrase a different way?
      CC [MR. LEE]:      Are you aware of any rebuttable presumptions
                         relating to the Navy's address of what might
                         otherwise be a private area relating to adultery
                         or relating to issues of financial distress?
      MBR [CAPT COOK]: By "rebuttable presumption" do you mean things
                       that mitigate the circumstance?
      CC [RR. LEE]:      No, I'm referring to the rebuttal presumption of
                         the sort that created in the current policy on
                         service by homosexuals.

                                      41




- -
MBR [CART COOK]:    I'm not sure I understand your question, sir.
REC:                Actually I'm going to object to the question,
                    I'm sorry. It is really rather vague and all
                    encompassing, and asks the members to draw on
                    legal knowledge that they seem not to have,
                    number one, and could not be expected to have.
                    And it asks them also to draw a legal conclusion
                    as to what a rebuttable presumption is, and they
                    may not even be prepared to do that.
CC [MR. LEE]:       Let me recast the question. Are you all aware
                    that there is a rebuttable presumption created
                    in the military policy on service by
                    homosexuals, a rebuttable presumption concerning
                    conduct when a statement of homosexual
                    orientation is made?
MBR [CAPT SMITH]:   Yes, I'm aware of that having read the policy.
CC [MR. LEE]:       Captain Cook?
MBR [CAPT COOK]:    Yes, I'm aware.
CC [MR. LEE]:       Captain Barnett, are you aware?
MBR [CART BARRETT]: I'd have to review the policy to be sure exactly
                    what's stated.
CC [MR. LEE]:       No rebuttable presumption of adulterous conduct
                    arises from ones status in the military as a
                    married man, does it?
MBR [CAPT COOK]:    Phase your question again. You're asking, is
                    there a rebuttable presumption created when an
                    individual is married?
CC [MR. LEE]:       Naval officer--male naval officer walks up to
                    you and says, "I want you to meet my wife,
                    Ruth", that doesn't raise a rebuttable
                    presumption that he will engage in adultery,
                    does it?
MBR [CAPT COOK]:    It doesn't to me, if I understand your question
                    in context.

                                 42
MBR [CAPT SMITH]:   Nor do I, the way you put the question.
CC [MR. LEE]:       Are you shaking your head you don't understand
                    my question, Captain Smith, or it does not make
                    it-----
MBR [CAPT SMITH]:   The way I understand your question, it does not
                    raise a rebuttable question.
CC [MR. LEE]:       All right.   Captain Barnett, how about you?
MBR [CAPT BARNETT]: No, it doesn't to me.
CC [MR. LEE]:       I didn't understand you.
MBR [CAPT BARNETT]: It does not raise a rebuttable presumption.
CC [MR. LEE]:       That concludes my questions.
REC:                Nothing further, sir.
MBR [CAPT COOK]:    The respondent, Lieutenant Thorne, you may
                    question the Board if you choose to do so.
RESP:               No, sir, I do not choose to do so.
MBR [CAPT COOK]:    Does either side have a challenge for cause
                    against any voting member of the Board?
REC:                The government does not, sir.
CC [MR. LEE]:       No.
MBR [CAPT COOK]:    Okay, I understand that there are no challenges
                    against any member of the Board. Does the
                    recorder, counsel for the respondent or the
                    respondent wish to question the legal advisor in
                    relation to any matter which may constitute a
                    ground for challenge for cause?
REC:                The government does not.
CC [MR. LEE]:       No.
MBR [CAPT COOK] :   Does the recorder care to make an opening
                    statement?
                                  43
REC:                I do, sir. I'd open it up to the Board. It is
                    likely to be a few minutes in length, and if
                    this is a good time for you to call a recess,
                    perhaps now would be a good time.
MBR [CAPT COOK]:    Let's have the Board stand in recess until 1430,
                    and we'll reconvene at that time.
[The Board recessed at 1415 hours, 11 July 1994.]
                                *   *   *   *

[The Board was called to order at 1440 hours, 11 July 1994. All
parties previously present were once again present.]
MBR [CAPT COOK]:    Okay, I think we're at the point where the
                    recorder, Mr. Dutton, desires to make an opening
                    statement.
REC:                Yes, sir.
CC [MR. ZIEGLER]:   Captain Cook, if I may, there's one preliminary
                    motion that the respondent would like to make,
                    and I raise it at this point because it may
                    affect the recorder in his opening statement.
                    As Major Stutzel knows, we, prior to the
                    commencement of the hearing, provided the legal
                    advisor with a motion in limine regarding
                    evidence of statements or conduct made prior to
                    the enactment of the revised regulations, and we
                    believe that any such statements or alleged
                    conduct cannot properly be the basis of these
                    discharge proceedings. And we have cited two
                    Supreme Court precedences, which are set forth
                    in our papers, for that proposition. And the
                    proposition is essentially that the revised
                    regulations which went into effect on February
                    28th, 1994, may not, as a matter of law, be
                    retroactively applied to statements made or
                    conduct that allegedly happened prior to that
                    date. I raise the issue now because I suspect
                    that Lieutenant Dutton may, in his opening
                    statement, make reference to the evidence that
                    he hopes to prove in this proceeding, and to the
                    extent that that evidence is not properly
                    admissible it may be appropriate to raise and
                                    44
                    resolve this issue now.
REC:                Well, you bet I will, and as such I would like
                    very much to have the motion heard at this
                    point. If there is a motion before the Board I
                    would very much like to have it litigated now.
                    I had a discussion with counsel earlier in which
                    I was told that it would not be raised until
                    after the government's case. If the objection
                    is to be made now or the motion is to be raised
                    now, very well, let's have at it.
CC [MR. ZIEGLER]:   We didn't mean to communicate inconsistent
                    messages to you, Lieutenant Dutton. I just, on
                    reflection, thought that given your presentation
                    of an opening statement it may make logical
                    sense to raise this issue before hand rather
                    than afterwards.
REC:                If there's a motion before the Board, I intend
                    to argue it. If there's no motion that you
                    intend to bring then----
CC [MR. ZIEGLER]:   We have presented our motion, and would like it
                    resolved now.
REC:                Very well.
LA:                 I have received respondent's motion in limine.
                    I have the original. I'll give it to the
                    reporter here and ask her to make it as the next
                    defense exhibit, and I'll need that back.
CC [MR. LEE]:       Major Stutzel, we've presented two motions that
                    you've had marked as exhibits. In view of the
                    fact that we're pre-marked other exhibits, could
                    we have these marked as 1A and lB, Defense 1A
                    would be the first motion. Is that a problem?
                    And this would be 1B.
[Document marked as Defense Exhibit 1B.]
LA:                 Okay, I'll make sure this gets back into the
                    record. Did you desire to present other matters
                    in relationship to the motion, Mr. Ziegler?

                                 45
CC [MR. ZIEGLER]:   Major Stutzel, I think that our arguments are
                    fairly set forth in our paper. Just to
                    summarize them, recently, and I believe it was
                    April 26th, 1994, the Supreme Court of the
                    United States had occasion to consider the
                    retroactive application of the federal civil
                    rights laws, and in a case captioned Rivers and
                    Davidson Roadway Express, held that law
                    may not be retroactively applied unless there is
                    an expressed congressional directive in the
                    statute so indicating that it be retroactively
                    applied. That follows upon a case that was
                    decided by the Supreme Court in 1988 by the name
                    of Bowen versus Georgetown University Hospital,
                    which specifically addressed the issue of
                    whether regulations, in an administrative
                    context, may be retroactively applied. And the
                    Court in that case reached the same conclusion,
                    that there must be an expressed statutory
                    directive indicating retroactive application for
                    the regulations to be applied to conduct or
                    statements made prior to the enactment of the
                    regulations.
                    Here I think the facts are undisputed that the
                    regulation pursuant to which this Board has
                    convened, Defense Department Directive 1332.30,
                    was issued on February 28th, 1994. The
                    Government's Exhibits 8 through 17, that's 8, 9,
                    10, 11, 12, 13, 14, 15, 16, and 17, to which we
                    would all object on this basis, all concern
                    statements that were allegedly made by the
                    respondent prior to February 28th, 1994. And in
                    view of the Supreme Court's decisions we think
                    that they cannot properly be considered as the
                    basis for separation in this proceeding. Thank
                    you.
LA:                 So based on that you're objecting to Exhibit 8
                    through 17?
CC [MR. ZIEGLER]:   That is correct.
LA:                 Not 7, also?
CC [MR. ZIEGLER]:   I beg your pardon, I believe 7 as well.
                                   46
LA:                 Seven through seventeen. Lieutenant Dutton,
                    evidence or argument, brief, anything?
REC:                Well, no brief, since I just I just got the
                    motion this morning, but I have--first I have
                    three documents I'd like to offer. I ask that
                    they be marked as government exhibits next in
                    order.
[Documents marked as Governmen t Exhibits 26 through 28.]
REC:                The exhibits I've just provided to the Board
                    relate to the agreement actually, the
                    stipulation among the parties, the United States
                    and the respondent, Lieutenant Thorne. That he
                    agreed and stipulated at the time he left
                    litigation in federal court and came back on
                    active duty that he would submit, in fact, to a
                    second Board of Inquiry based on the statements
                    that he made prior to that time. He would--he
                    made the agreement to be reprocessed under the
                    current policy based on those prior statements.
                    The government documents which I provided are a
                    stipulation of agreement between the government
                    and Lieutenant Thorne to that effect. Also a
                    statement by the Department of Defense and the
                    Department of the Navy implementing agreements
                    of this sort to allow individuals to be
                    reprocessed before Boards of Inquiry if they so
                    chose. And that is an important aspect here,
                    because what, essentially--what essentially was
                    done was the respondent was given the option of
                    either accepting the results of the initial
                    Board or, at his option, coming back on active
                    duty and submitting himself before a Board under
                    the new regulations, the new policy.
                    Second I would note that the purpose of the
                    regulation is still the same as it originally
                    was, and that is to exclude from service those
                    who demonstrate homosexual propensity or intent
                    to engage in homosexual acts, or who, in fact,
                    do engage in those acts. That is the same
                    before and after. The regulatory scheme has not
                    changed to Lieutenant Thorne's detriment in any
                    way.
                                 47
Really what the motion alleges is that there is
essentially a notice problem. Well, that's just
not correct. Lieutenant Thorne has been on
notice of the Navy's policy, which is
essentially unchanged since his first decision
to announce his homosexuality and the Board that
ensued. All that has changed, essentially, is
the instruction now specifically implements the
Congress' will, and that's essentially the same
policy. A shift in focus which arguably is what
took place is not new law. It's essentially the
same. A discharge from the military can still
occur for homosexuals--for a homosexual. This
is not a surprise.
The respondent, also, himself has essentially
the same status, either under the previous
regulations or under the current regulations.
Therefore, from the standpoint of the respondent
there's been no new change to the law that
creates a detriment to him, nor is there any
change in his status. Therefore, there's no due
process concern based on lack of notice. The
retroactivity issues that the respondent alleges
simply do not apply.
I'd like to also look at the cases, briefly,
that are cited by the respondent's counsel.
Bowen, the Supreme Court case, is clearly
distinguishable from the facts of the case
before this Board. The removal--Bowen involved
the removal of a benefit which had already been
paid. Under Bowen a benefit was paid to
Georgetown University Hospital, a government
benefit had been paid. The law subsequently
changed a few years later and the government
sought to recoup the benefit that was paid. The
Thorne case is clearly different. Here the
individual has not been given something that he
was later found not to have a right to. In
fact, it is the exact opposite set of
circumstances. The government is applying or
allowing a second bite at the apple, is allowing
the respondent, at his choice, to attempt to
obtain a government benefit a second time. And
since he's given a second opportunity to accrue
             48
                    the government benefit, that is continued
                    service, it is clearly distinguishable from the
                    Bowen case. And it is, in fact, the exact
                    opposite set of circumstances.
                    Likewise, the Rivers case involved a civil
                    rights act which changed the applicable law
                    entirely, and changed the positions of both
                    parties respective to the rights that were at
                    issue under the contract. And in that case you
                    have the same set of circumstances where the
                    parties were not on notice previous to the Civil
                    Rights Act of 1991, I believe it was, of certain
                    benefits or a certain position under the
                    contract that had to be fulfilled in order for
                    the benefit to accrue. So there was a direct
                    change in the law, a flip in the law, that
                    changed the status of the parties under the
                    contract. Well, as I've already argued, that's
                    simply is not applicable in this particular
                    case. The respondent has been allowed a second
                    opportunity at his option and by his stipulation
                    with the government to come before a Board of
                    Inquiry to see if he could fit his case within
                    the current policy. And, therefore, there's
                    been no lack of notice. There's been no change
                    to him that has worked to his detriment. The
                    law or the circumstances are not harsher to him
                    in any way than they were in the past. In fact,
                    the opposite is true.
                    The government's position is that the defense's
                    motion is groundless, sir.
CC [MR. ZIEGLER]:   If I could respond briefly, Major Stutzel. I
                    think it would frankly come as a shock to people
                    within the administration who framed this policy
                    and to those who opposed it to say that the new
                    policy is not different in important respects
                    from the old policy. I think it was the subject
                    of intense national debate, and that what came
                    out of the Congress and what came out of the
                    military branches in terms of implementing
                    regulations was significantly different than
                    what was before. So I think that the notion
                    that we're dealing with two polices that are
                                 49
essentially the same is disingenuous.
As to the contention that the stipulation in
Federal District Court was an agreement to be
reprocessed for prior statements, that's just
not true. The stipulation, which you have in
front of you, certainly is an agreement to be
reprocessed on the basis of the revised
regulations and it refers to a statement that
Lieutenant Thorne has a homosexual orientation,
but it does not refer to past statements, future
statements, or statements that may have occurred
contemporaneously.  In fact, it was contemplated
by the parties that Lieutenant Thorne would make
a future statement, a statement that he, in
fact, made after the January 17th stipulation,
which I believe is Government's Exhibit 17, that
would be the basis of any new discharge
proceeding. But the fact of the matter is that
subsequent to all of this happening, the Supreme
Court decided its case in the Rivers' decision,
and decided that regulations and statutes may
not, absent explicit Congressional directives,
be retroactively applied. And I have not heard
the government to argue here today that there's
anything in the statute that authorizes these
implementing regulations that says it may be
retroactively applied.
I think it is incorrect to suggest that the
issue before the Board is one of notice. The
issue is not one of notice. The retroactive
application of federal statutes and regulations
is grounded in constitutional concerns that are
far greater than mere notice. They're grounded
in concerns rooted in the ex post facto clause
of the United States Constitution where we don't
want people who act on day one thinking that the
law is such and such to find out later, on day
two when a law is passed, that their conduct or
their statements or their actions were somehow
inappropriate under legal standards that they
could not possibly have imagined would come into
effect. That's--that's the fundamental concern
of fairness that is at the core of retroactivity
case law. And all that we're asking here is
             50
       that, to the extent that the government has a
       case against Lieutenant Thorne, that that case
       be presented based on evidence that was garnered
       or was obtained after the effective date of the
       regulations pursuant to which he is being
       administrative processed. We think that that
       result is mandated by the Supreme Court's
       decision.
REC:   In response to counsel's argument, I would note
       that there are some changes really that are more
       procedural, not substantive. The changes to the
       law revolve primarily around the rebuttable
       presumption which existed under the old
       circumstances, the old policy, but is not
       specifically codified. That really is a change
       without a distinction.
       Secondly, I'd note that the stipulation, I
       think, on its face is evidence of a clear
       understanding that the government was expecting,
       as was Lieutenant Thorne, I suspect at the time,
       that the government would go forward with a new
       Board based on the same set of facts and
       circumstances as existed prior to--prior to the
       original Board.
       Again, I would note that there is no notice
       problem here particularly since the changes that
       did accrue under the new policy accrued to
       Lieutenant Thorne's benefit. Everything here
       has accrued to Lieutenant Thorne's benefit.
       He's been given, as I said, a second bite at the
       apple. He's been given a chance to offer his
       case before a Board under a clear--under a more
       clear and concise statement of the policy. And
       I'd also note that retroactivity applies only
       where there's some new right or benefit or
       detriment that accrues to the individuals
       involved because of the due process notice
       concerns. Well, that simply is not the case
       here. No new rights or detriments have been
       specifically accrued to the respondent except
       through the agreement that he has made with the
       government to submit himself before a Board of
       Inquiry based on his statements.
                    51
                    Since these changes accrue to the benefit of
                    Lieutenant Thorne, and since they are procedural
                    more than substantive, and since he has agreed
                    in advance to submit himself before this Board,
                    what is disingenuous about the argument today is
                    the respondent's argument that his agreement no
                    longer applies and that the statements that he
                    made should not be considered before this Board
                    since it was at the decision of the respondent
                    and at his machinations of the government's
                    opportunities to him that he's, in fact, before
                    this Board at all.
CC [MR. ZIEGLER]:   Very briefly, Major Stutzel. I've argued that
                    the stipulation does not mean what the recorder
                    says it means, that it did not contemplate that
                    this proceeding would be based o prior
                    statements. However, even if he were correct on
                    that point, the parties cannot agree, cannot
                    stipulate to the retroactive application of a
                    federal statute or a federal regulation.
                    Parties to litigation or parties to
                    administrative proceedings simply cannot agree
                    that federal statutes and regulations are going
                    to have retroactive effect the Constitution says
                    they can't have. And the reason for that is
                    well founded. There's a concern about
                    retroactivity because we want people to be able
                    to conform their conduct and what they do to
                    what the law currently is. There is no
                    opportunity to do that when you hold the person
                    accountable for his conduct under a legal
                    standard that comes later than when the
                    statements or the conduct occurred. And for
                    that reason I think it is both fundamentally
                    unfair and unconstitutional to permit the
                    proceedings to proceed based on those prior
                    statements and conduct.
LA:                 Lieutenant Dutton, anything else?
REC:                Well, there's no unfairness where the respondent
                    agreed to put himself to this--to this test.
                    And, additionally, the--lost my train of
                    thought, sorry, sir. But there's no unfairness
                    where the respondent is the one who has agreed
                                 52
                    to put himself in this position.
LA:                 Sir, it's going to take me a few minutes to read
                    through the exhibits and look over the cases.
                    Once again, I think we're at a point where we've
                    reached a roadblock in going forward.
MBR [CAPT COOK]:    Fifteen minutes adequate?
LA:                 You said 15, sir? I believe that probably would
                    be.
MBR [CAPT COOK]:    Okay, the Board will stand in recess.   And I'd
                    like to reconvene at 1515.
[The Board recessed at 1500 hours, 11 July 1994.]
                              * * * *

[The Board was called to order at 1540 hours, 11 July 1994. All
parties previously present were once again present.]
MBR [CAPT COOK]:    Please be seated.   Major Stutzel?
LA:                 Sir, prior to ruling, Mr. Ziegler, you had an
                    amendment to your motion?
CC [MR. ZIEGLER]:   Thank you, Major Stutzel. Mr. President,
                    Members of the Board, during the recess we've
                    had the opportunity to confer both with Navy
                    counsel and Justice Department counsel about our
                    motion and about the prior stipulation that we
                    entered into in Federal District Court. Based
                    on those discussions and having considered the
                    best interests of our client, we're amenable
                    with withdrawing the motion as to Government
                    Exhibit 17 only, that is the letter that
                    Lieutenant Thorne wrote to his Commander on
                    January 31st, 1994, after the stipulation had
                    been entered. We would ask that the motion be
                    considered as to the remaining exhibits, that is
                    Government Exhibits 7 through 16.
LA:                 Any further comments from either side before I
                    rule?

                                 53
REC:            No, sir, I have none, thank you.
CC [MR. LEE]:   No, Major.
LA:             The respondent's motion in limine regarding
                Government Exhibits 7 through 16 is denied. My
                reading of the cited cases, Rivers and Davidson
                versus Roadway Express, and Bowen versus
                Georgetown University Hospital, both refer to
                the retroactive application of regulations and
                statutes to matters under circumstances without
                an express indication on their face regarding
                retroactivity. In a review of the DOD
                instruction, 1332.30, it is my opinion that on
                the face of this instruction there are
                indications of such an intent with regards to
                the initial order signed by Secretary Aspen. In
                December of 1993 it was indicated that the
                directive would apply to administrative
                separation processes initiated on or after the
                5th of February 1994 unless the Secretary of the
                service concerned determined that it should be
                applied in a particular case in which
                proceedings were initiated before that date.
                Understanding that the particular change to the
                instruction specifically relating to homosexual
                conduct is Change One of that order which came
                subsequent to that particular order.
                Nevertheless, it is my ruling that there was an
                indication on its face that there was an intent
                for a retroactive applicability.
                In addition, as supporting evidence or
                supporting matter with regards to my finding
                that there was such an intent on the part of the
                Secretary of Defense, government Exhibits 27 and
                28 relating to the future processing of cases
                which were then--which had been previously
                processed under either the old policy or the--
                what they refer to as the temporary policy which
                resulted in standby reserve status for those
                processed. Both are indications that it was the
                intent of the Secretary of Defense that those
                cases would be further renewed and reviewed
                under the applicable sections of the new policy
                once implemented with full rights for new
                             54
                    hearings and so on with regards to that. It
                    appears from Government Exhibit 26, the
                    stipulation entered into by the respondent with
                    the United States, that at the time the
                    stipulation was entered on the 7th of January
                    1994 that he was at least aware that the
                    government could contemplate a further
                    processing of the respondent under the
                    regulations once implemented.
                    Questions regarding my ruling?
CC [MR. ZIEGLER]:   No, Major.
REC:                No, sir.
LA:                 Are we then prepared for opening statement?
REC:                The government is, yes, sir. Gentlemen, Members
                    of the Board, the evidence will show that on
                    November 30th, 1993, after long debate in the
                    public, through the press and the halls of
                    Congress, Congress passed Public Law 103-160,
                    and settled the matter of the policy of
                    homosexuals in the military. Pursuant to the
                    law, Congress made several findings which are
                    intrinsic to the law and which are written
                    directly into the statute.
                    Specifically, Congress found, the evidence will
                    show, that the Constitution of the United States
                    commits exclusively to the Congress the powers
                    to raise and support armies, provide and
                    maintain a Navy, and make rules for the
                    government and regulations for land and naval
                    forces. That there is no constitutional right
                    to serve in the armed forces. That pursuant to
                    the powers conferred by the Constitution it lies
                    within the discretion of Congress to establish
                    qualifications for conditions of service in the
                    armed forces. That the primary purpose of the
                    armed forces is to prepare for and to prevail in
                    combat if the need arises. That success in
                    combat requires military units that are
                    characterized by high morale, good order and
                    discipline, and unit cohesion. And that one of
                                 55
the most critical elements in combat capability
is unit cohesion, that bond of trust among
individual service members that makes the combat
effectiveness of the military unit greater than
the sum of the combat effectiveness of the
individual unit members.
Also, that the standards of conduct for members
of the armed forces regulate a member's life 24
hours each day, beginning at the moment the
military member enters military status. That
those standards of conduct apply to a member of
the armed forces at all times, as long as that
member is a member of the military, whether on
base or off base, whether on duty or off duty.
The pervasive application of those standards of
conduct is necessary, they further found,
because members of the armed forces must be
ready at all times for world-wide deployment to
a combat environment. That world-wide
deployment of United States military forces,
Congress found, makes it necessary for members
of the armed forces involuntarily to accept
living conditions and working conditions that
are often spartan, primitive, and characterized
by forced intimacy with little or no privacy.
Finally, that the presence in the armed forces
of persons who demonstrate a propensity or
intent to engage in homosexual acts would create
an unacceptable risk to the high standards of
moral, good order and discipline, and unit
cohesion that are the essence of military
capability.
Those are the findings of Congress as announced
in Public Law 103-160, which codifies the policy
for the United States Navy, and for, indeed, the
entire military. This policy was implemented by
the Department of the Navy by CNO message
010300Z, March 1994, otherwise known as NAVADMIN
033/94, copies of which will be introduced into
evidence by the government.
Under the CNO implementing instruction it will
show under Section 8, which details officer
separation procedures, that homosexual conduct
             56
is grounds for separation from the Naval
Service. That homosexual conduct comes in three
ways. First, a homosexual act. That's fairly
self-evident. Second, that a statement
demonstrating a propensity or intent to engage
in homosexual acts is also homosexual conduct.
And, finally, a homosexual marriage.
However, there's an additional way that a
statement is evidence of conduct, you'll under
the instruction. That is when a member makes a
statement that he or she is a homosexual. That
statement that he or she is a homosexual creates
the rebuttal presumption that the officer
engages in homosexual acts or has the propensity
or intent to do so. What the instructions lay
out for you then is homosexual conduct, which
may be evidenced by those statements
demonstrating an intent or propensity to engage
in homosexual acts, or simply a statement by the
member that he or she is a homosexual which
raises the rebuttable presumption that those
acts do exist.
The issues before the Board, therefore, are
framed for the Board by the law as follows: Has
Lieutenant Thorne made a statement or statements
which indicate a propensity or intent to engage
in homosexual acts, that is to say, has he made
a statement which would give the Board reason to
believe he has the propensity to engage or
intent to engage in homosexual conduct? Second,
has Lieutenant Thorne made a statement that he
is a homosexual, thereby raising the presumption
that he engages in homosexual acts or has the
propensity or intent to do so? And if the
answer to that question is yes, has Lieutenant
Thorne rebutted that presumption? It is to
these three issues that the government's
evidence will be directed.
The government's evidence is based in virtually
its entirety on the statements of Lieutenant
Thorne, because that's how the law frames the
issues. The government will provide evidence
that on the 18th of May 1992 Lieutenant Thorne
             57
wrote to his commanding officer, the CO of VA-
65, Attack Squadron SIXTY-FIVE, Oceana; that he
had accepted an invitation to appear on the
Nightline news program to discuss the issue of
homosexuals in the military; and in that letter
to his commanding officer he stated that he was
a homosexual. The government will also provide
evidence that Lieutenant Thorne did, indeed, go
on Nightline and acknowledge his homosexuality
and his military status on national television
the very next day.
The government's evidence will include
statements by two squadron mates that Lieutenant
Thorne disclosed to them his homosexuality
around that same time frame. The first is the
statement of Lieutenant Eric Anderson. He said
that while Lieutenant Thorne was in high school
--Lieutenant Thorne told Anderson that while he
was in high school he had been unsure of his
sexual orientation. Through college he'd been
pretty sure that he was gay, and that for a year
and a half prior to his announcement he had been
positive of his homosexuality. To Lieutenant
John Potter, who was Lieutenant Thorne's pilot
at the time, he said--Lieutenant Thorne said on
Sunday, the 17th of May 1992, “We won't be able
to fly anymore. On Tuesday I will make it
publicly known that I am gay.” The four
statements there, the letter that he wrote to
the commanding officer, the Nightline
statements, Lieutenant-- the conversation he had
with Lieutenant Anderson, the conversation he
had with Lieutenant Potter, the evidence will
all show are statements of orientation that
raise the presumption of the propensity or
intent to engage in homosexual acts.
The government will further provide evidence of
statements that more directly indicate in and of
themselves a propensity or intent to commit
homosexual acts. Remember, the law that the
evidence will show is that there are two ways
that a statement can lead to discharge. The
first is if it is evidence of conduct, or if it
is described as conduct, that is a statement
             58
that raises the evidence that he has the
propensity to engage in homosexual acts or if it
is a statement that he is a homosexual that
raises a rebuttal presumption. The government
will also provide evidence that more directly
indicate in and of themselves that propensity or
intent to commit homosexual acts. For instance,
on the CNN news program of January 29th, 1993,
Lieutenant Thorne told Bernard Shaw, "We
homosexuals are just like everyone else. We
just happen to love a different sex." On May
20th, 1993, he told ABC's Good Morning, America
host, Charles Gibson, "You cannot separate
public and private life completely. The new
policy leaves me out in the cold because I have
already declared my sexuality. If Senator Sam
NUnn comes to work and he has a picture of his
family on his desk..." he told Charles Gibson,
" ...then if I do something like that I'm going
to get kicked out of the military."
The evidence will show that on February 27th,
1993, he told reporter John Hagen of the
Cleveland Plain Dealer, "I'm not a predator. I
am not out to recruit you. I just want to do my
job, and I'll keep my private life to myself."
Then on August the lst, 1993, he told reporter
John Pope of the New Orleans Times-Picayune he
isn't very happy about the new--he wasn't very
happy about the new public policy proposals,
which were out at the time, and said, "I'm
really disappointed in them. Do I want to come
in and talk about my sex life? No, I really
don't want to have to lie."
Additionally, there's the letter he wrote
January 31st of this year to Commander, Naval
Air Systems Command, which is important enough
for what it does say, but also important for
what it does not say. I'll leave that for
further argument.
I ask you to look at all the statements
together, and the other evidence that will be
provided to the Board, as evidence of statements
of orientation that raise that presumption of
             59
                   propensity or intent to engage in homosexual
                   conduct. And also the evidence that, indeed,
                   raises the reasonable conclusion that Lieutenant
                   Thorne does commit conduct under the
                   instruction, that is to say that he has the
                   propensity or intent to engage in homosexual
                   acts. At the end of the Board, the government
                   will ask that the members separate Lieutenant
                   Thorne, or recommend separation of Lieutenant
                   Thorne, based on his conduct. Thank you,
                   gentlemen.
MBR [CAPT COOK]:   Thank you. Does the counsel for the respondent
                   desire to make an opening statement?
CC [MR. LEE]:      Yes, Captain. In 1992, Lieutenant Thorne was a
                   bombardier navigator in the Navy's A-6 Intruder.
                   He had finished first in his class in every
                   phase of flight training. His performance in
                   his training command was characterized by his
                   Commanding Officer as superlative, and he
                   received his Commanding Officer's highest
                   recommendation for accelerated promotion. And
                   I've been told that everybody in the Navy is in
                   the top one percent, but I don't think that
                   recommendation and language like this is used
                   without meaning. I think that the Navy
                   understood that it was dealing with an exemplary
                   officer, an officer that should be groomed for
                   command.
                   In this first operational squadron, the VA-65
                   Fighting Tigers down at Oceana, Lieutenant
                   Thorne was recognized by his Commanding Officer
                   both for his leadership--specifically for his
                   leadership and for his aviation skills. He was
                   selected by his Commanding Officer as one of two
                   squadron representatives to introduce the new
                   management philosophy that was being introduced
                   by the Navy at that time on Total Quality
                   Leadership. And he and his pilot, another
                   junior officer, were the only crew of junior
                   officers from VA-65 to be selected to
                   participate in the low-country bombing survey
                   that year - the only two junior officers.

                                60
Lieutenant Thorne's fellow officer from that
same wing will appear here to testify, Todd
Suko. Todd Suko will testify about the kind of
officer, kind of person that Lieutenant Thorne
was. And the evidence will be that he was, in
fact, an exemplary officer, the fact that he was
being groomed for command. And the evidence
will be that he was a homosexual.
As you know the Department of Defense asks
exemplary officers-- this is the new policy--asks
exemplary officers who are homosexuals to hide
the fact, pretend that they are not homosexual.
Lieutenant Thorne felt, in conscience, he could
not pretend, and he felt that the Navy should
not, in conscience, ask him to pretend. And
that's why we're here today, and that's what
this case is about.
In the Spring of 1992, after a period of honest
and difficult self-examination that extended
over a many years, very difficult years,
Lieutenant Thorne came to terms with his sexual
orientation, and he acknowledged to himself that
he was, in fact, a homosexual. It wasn't
something that he chose. As Dr. Carrera, who
will testify here in a written declaration--Dr.
Carrera is an expert in human sexuality--it is
absurd to think that someone chooses to be
homosexual in this world that regularly
persecutes them. Tracy, himself, early on in
our relationship, said to me, "Who the hell
would choose to be a homosexual?" There's a lot
of negatives that come with that. He didn't
choose it, but it was something that he did
finally admit to himself because he is honest.
And you will come to know his honesty. His
sister, who is here, has thought most of her
life that Tracy's honesty is a great defect.
"Mom, why doesn't Tracy lie once in a while?"
Well, he doesn't do that. And he felt that
honesty required that he acknowledge his
homosexuality at some point to his squadron.
He did consider, as we would all consider,
accepting Navy policy and hiding his homosexual
             61
orientation to protect his career in the Navy,
because he knew what was going to happen to him.
As I've indicated, he rejected--he rejected that
course of action.
When I have discussed this case with friends of
mine who are in the military or retired from the
military, many of them have acknowledged that
homosexuals have served in their commands and
have done so with the knowledge of their peers
and have done so without problem. And most of
them ask me, with respect to Tracy Thorne, why
didn't he just keep his mouth shut and do his
job? Nothing would have happened. And the
answer, of course, and it is an easy one for me
but a much more personal one and difficult one
for Tracy Thorne, is that he felt the policy was
not fair, and that by speaking out publicly,
acknowledging his own homosexuality, he could
contribute to the process of reforming
government policy in this area.
You may recall, and keep in mind that this
happened in 1992, you may recall that in the
Spring of 1992 members of the United States
Congress had introduced a bill to prohibit
discrimination in the Armed Forces based upon
sexual orientation. The television show,
Nightline, with Ted Koppel, focused one of its
broadcast on that legislation. It didn't focus
it on Tracy Thorne. It focused on that
legislation. And Tracy Thorne, who had
discussed this legislation with others who felt
that it should be adopted, supported its
enactment, Tracy was extended an invitation by
the show to appear on their broadcast. And he
thought about that, and he decided to accept
that invitation. And in support of changing the
policy, getting the legislation adopted, he
decided that he would disclose that he was a
homosexual serving honorably in the Navy. He
thought that would help the cause, help the
process. And before appearing on Nightline he
wrote his Commanding Officer, as the recorder
has indicated, telling him that he intended to
do that. And his appearance on Nightline and
             62
his discussion of service by homosexuals in the
military lead to, as you might imagine, further
appearances. He's an articulate young man.
This is--and he's an exemplary Naval officer.
It lead to further appearances, public
appearances, and further acknowledgements that
he was a homosexual. But all in the contest of
growing out of support for legislation. Not
legislation that he had proposed, but
legislation that had been proposed by members of
the United States Congress.
The statements, as you may expect, maybe even
specifically understand, these statements
acknowledging his homosexual orientation lead to
his discharge from the Navy under its old policy
concerning service by homosexuals in the
military. These events, as I say, all occurred
during the on-going national debate in 1992 and
1993 that you are, indeed, aware of concerning
military service by homosexuals. And while that
debate went on, and it went on for an extended
period of time, Lieutenant Thorne's discharge
was suspended and he was removed from active
duty and placed in a category, perhaps invented
for the occasion, placed in stand-by reserve.
And while he was in stand-by reserve Lieutenant
Thorne went to court and asked to be returned to
active duty. And at that point, you've heard
this agreement referred to already - it was the
subject of our motion - the Navy agreed to
return Lieutenant Thorne to active duty because
the policy had changed. And pursuant to that
agreement a United States District Court entered
an order directing the Navy to put Lieutenant
Thorne back on active duty. So that suspended
discharge from the Navy, because acknowledging
that he was a homosexual in the course of a
national debate, that discharge is now a
nullity.
Pursuant to that agreement, pursuant to that
court order, Tracy Thorne went back on active
duty in January of this year with the Naval Air
Systems Command. Upon reporting to duty in
January of this year, he acknowledged in a
             63
                    letter that will be admitted in evidence here -
                    it's government Exhibit 17, I believe - he
                    acknowledged to his Commanding Officer what
                    everyone, including that Commanding Officer
                    already knew, his homosexual orientation. And
                    he did this in this letter as part of an
                    assurance to his new command that his homosexual
                    orientation was in no way going to interfere
                    with the job that he was there to do. And he
                    was assuring the command of his loyalty, that he
                    was going to keep his nose clean, that he was
                    going to do the job, let's get to work. He was
                    offering his assistance to his command.
                    So since January of this year, Lieutenant
                    Thorne, has, in fact, served in the United
                    States Navy as a known homosexual. And the
                    evidence you will hear will be that, once again,
                    his service has been exemplary. You'll hear
                    that directly from his CO who will appear here
                    and testify, Commander Craig Luigart. Craig
                    Luigart wants him to continue working for him in
                    that command, and he knows he's a homosexual and
                    he's been a homosexual all this time.
                    He was, thus, an exemplary Naval Officer when no
                    one knew he was a homosexual. He’s been an
                    exemplary Naval Officer when everyone knew he
                    was a homosexual. And now comes the Department
                    of Defense, once again, to discharge Lieutenant
                    Thorne from the Navy, this time under the new
                    policy on military service by homosexuals set
                    forth in regulations that have been adopted
                    pursuant to a new statute. And you've heard
                    about that new statute. A new statute
                    reflecting the resolution ironically of the
                    national debate on that subject that caused
                    Lieutenant Thorne to speak out about his
                    homosexuality in the first place.
                    If you'll indulge me for just a moment?
                    [Pause.]
Counsel points to poster and reads from it.
                    The law that you will be asked to apply in this
                                 64
case is this: homosexual conduct--homosexual
conduct is grounds for separation. DOD
Directive 1332.30, homosexual conduct is grounds
for separation - point one. Point two,
homosexual orientation is not grounds for
separation. It is not a bar to service, the
[Pointing to poster again.] part that's
highlighted down here. Sexual orientation is
considered a personal and private matter. And
homosexual orientation is not a bar to continued
service unless manifested by homosexual conduct.
That's the second point.
And the third point is this, the only statement
that may warrant a discharge is a statement that
demonstrates a propensity to commit homosexual
acts - it must demonstrate a propensity or
intent to engage in homosexual acts. By this
means, Congress and the Department of Defense
have sought to ground the basis for discharges
for homosexuality in conduct as opposed to
orientation. Despite the government's
assertions, this case is not--not about conduct.
This is a case about orientation. The only
evidence that will be presented, the only
evidence you will hear as a basis for the
Department of Defense's discharge of Lieutenant
Thorne that they're asking for here is his
statement of who he is. And they say that
statement of who he is, made in the context of a
national debate on policy, they say that's
homosexual conduct. They say the statement is
conduct.
Lieutenant Thorne wouldn't pretend, so they
asked us to pretend. They asked us to pretend
that a statement acknowledging who you are is
homosexual conduct. The Department of Defense
in these regulations asks you to pretend that a
statement acknowledging homosexual orientation
made in the context of a national debate, a
debate not initiated by Lieutenant Thorne but by
Members of Congress, on the propriety of
military discrimination, shows a propensity to
commit sexual acts. A statement about who he
is, made in the context of a policy debate,
             65
indicates, according to the Department of
Defense, that he's gong to commit sexual acts or
a propensity to commit sexual acts. That's what
they ask you to pretend. And they ask you to
pretend that an acknowledgement of his
homosexual orientation, "I am a homosexual",
that's who he is, he didn't choose it,
acknowledgement of that in a letter to his new
commander, telling him who he is, assuring him
of his cooperation and dutiful attention to his
job and offering his assistance in making that
transition smooth, telling him, "I'm ready to go
to work for you," they ask you to pretend such
statements show a propensity or intent to commit
sexual acts. He's reporting to duty, saying
“Here’s who I am. You know who I am, but I
don't want you to worry about this. I want to
assure you that I'm going to abide by the
regulations that govern you, that govern me, I
want to go to work and I will do a good job for
you." And the Department of Defense further
asks you to pretend that a person making such a
statement, a person full of this much integrity,
this honest, is not capable of serving honorably
and effectively in the United States Navy.
I'm not going to ask you to pretend anything.
Rather we're going to prove, going to prove that
Lieutenant Thorne told the truth and that his
sexual orientation is homosexual. We're going
to prove that his statements validating that
orientation are not homosexual conduct. I don't
know really what to prove about propensity, and
the regulation's use of the word propensity,
because I really don't know what propensity in
this context means. You'll be told that it
means a likelihood that a person engages or will
engage in homosexual acts. We will, of course,
prove that a statement identifying who you are
and made in the course of and part of a national
debate on discrimination in the military service
does not show the likelihood of committing
sexual acts. And we will, of course, prove that
acknowledgement to your Commanding Officer of
your homosexual orientation, already known to
him and probably 20 million other people, made
             66
as part of an assurance of loyalty and
cooperation and assistance to him, does not show
the likelihood that he's going to commit sexual
acts. That's not the intent of those
statements.
And Lawrence Korb, the former Assistant
Secretary of Defense for Manpower,
Installations, and Logistics, who authored the
original regulations relating to service in the
military by homosexuals, will testify. He will
appear here and testify that such statements, in
fact, do not show a propensity to engage in
homosexual acts within the meaning of this
regulation. And we will prove that the person
who made these statements, an acknowledged
homosexual, can and has and does now serve
honorably as an officer of the United States
Navy. And we will prove that what he does and
does not do in the privacy of his own life, his
homosexual life, and ask of our lives, that each
of us, you, me, all of us, properly maintain the
utmost privacy, we'll prove that those aspects
of his life don't have anything to do with
service in the United States Navy. These aren't
the things that Commander Luigart observed and
rated and judged and evaluated this young man
about. And they're not the things that his CO
at VA-65, the Fighting Tigers, praised him for.
And not the things that were observed and
evaluated and resulted in the superlative
recommendations he received in flight training.
Like most young men, Lieutenant Thorne is
optimistic about life. But he's mature. He's
not naive. He knows that these statements that
he's made have severely limited his
opportunities in the Navy, and no evaluation
would ever pass without the past two years
coming to somebody's attention and being made
comment. The aircraft he's been trained in is
becoming obsolete. It's not going to be around
much longer. His squadron has been
decommissioned. The Navy is reducing its air
wings, and on top of this he is a homosexual.
So he doesn't have much of a career in the Navy,
             67
                    and he recognizes that. He's not naive. And,
                    yet, he doesn't want to leave the Navy. He
                    truly loves the Navy, and he's committed to the
                    Navy. And because he is and he's committed to
                    the challenge that he's undertaken, the
                    challenge of this unfair policy, and because
                    he's not naive, Lieutenant Thorne plans to enter
                    the active drilling reserve and to prepare for
                    and be available to his country in the future
                    should the country call for him. He's entitled
                    to do that, and we will prove it.
                    I think I've said to you that this case, and our
                    proof, is not about the new policy and whether
                    it is good or bad. That issue will be addressed
                    in other forums. Our proof is about Lieutenant
                    Thorne, the content of his character and his
                    qualities as a Naval Officer. It is not about
                    rebuttal. There's nothing here to rebut. There
                    is no proof of prohibited conduct, and you will
                    hear none.
                    We will ask you, when we come back at the close
                    of the case to discuss the evidence that you
                    have heard, to recommend to the Secretary of the
                    Navy that this young man, this Naval Officer,
                    this homosexual, be retained in the United
                    States Navy so that he can go on serving as a
                    naval aviator, like you. Thank you. That
                    concludes my remarks.
MBR [CAPT COOK]:    Okay, is the government ready to proceed with
                    their presentation of the case?
REC:                Yes, sir.
cc [MR. ZIEGLER]:   Could I raise an issue? We have a problem with
                    one of our witnesses, who is Lieutenant Thorne's
                    current Commanding Officer, Commander Craig
                    Luigart, who had expected to testify this
                    afternoon, and I'm told won't be available
                    tomorrow or the next day. While I haven't
                    approached Lieutenant Dutton about this specific
                    issue, I felt compelled to raise it, because I
                    was just handed the note that reminded me that
                    he has these prior obligations. And we would
                                 68
                    ask if the government may accommodate us by
                    permitting Commander Luigart to appear out of
                    turn to give testimony this afternoon so that he
                    might meet his other obligations?
REC:                I think, since the government actually has no
                    witnesses to present, our case will be fairly
                    brief. We have 24 documents which we intend to
                    offer to the Board, and at the close of the
                    documentary case, then I would have no objection
                    to hearing the defense's witness. We do have a
                    video tape of the Nightline, which can wait
                    until after the witness. But I would like to do
                    the documentary portion first, get the
                    government's evidence here, and then we can go
                    ahead and continue, if that's all right with
                    you?
CC [MR. ZIEGLER]:   I guess that will simply depend upon how long
                    the Board is willing to proceed today. We're
                    certainly willing to stay here as long as it
                    takes. I have been advised that Commander
                    Luigart has a car pool that he regularly uses to
                    get home. I just bring that to the Board's
                    attention, because I feel obliged to mention
                    that, because we don't want to disrupt his
                    schedule if we don't have to.
LA:                 There's no requirement that we go in any kind of
                    special order, sir. There's no reason why we
                    couldn't accommodate the witness in terms of
                    procedural rules or anything of that nature.
                    How late--when does he need to take off?
REC:                Let me make this easy for everybody. I just
                    don't think this is a problem for the
                    government. If you really have that pressing of
                    a concern, then I have no objection to bringing
                    him on.
CC [MR. ZIEGLER]:   Thank you, Lieutenant.
MBR [CAPT COOK]:    Proceed with Commander Luigart then.
LA:                 Mr. Lee, just for planning purposes, I know we
                    have a number of documents from the defense.
                                 69
                    Could you divulge to us at this point how many
                    witnesses you plan on calling?
CC [MR. LEE]:       Yes, let me make a brief count. It is three
                    live witnesses. The rest will be documentary.
LA:                 But one of those is not available tomorrow?
CC [MR. LEE]:       Dr. Korb is not available until Wednesday
                    morning. What we might suggest is recessing
                    through Tuesday, not having proceedings on
                    Tuesday and hear the rest of the case Wednesday.
                    You can do whatever you like, but that might
                    make sense because Korb can't be here on any day
                    except Wednesday.
REC:                The government would actually be bringing an
                    objection to Dr. Korb's testimony. If counsel
                    for the respondent want at some time, after the
                    government's case is over, want to bring a
                    proffer of Dr. Korb's testimony, we can approach
                    the objection at that time. We might not even
                    need to go through Wednesday.
LA:                 In light of that, why don't we go ahead and get
                    the Commander out of the way and on the road,
                    and see how long it takes, the remainder of the
                    government's case, and then we might want to
                    address those procedural matters until we,
                    obviously, can finish today and decide on when
                    we're coming back.
   [Commander Craig Luigart, U.S. Navy, was called as a witness by
the defense, was duly sworn, and testified as follows:]
[Questions by the recorder:]
Q.        Please state your full name and spell your last name?
A.        Commander Craig Lang Luigart, L-U-I-G-A-R-T.
Q.        And what is your rank and duty station?
A.        I'm a Commander, United States Navy, at the Naval Air
          Systems Command, Washington, DC.
Q.        And what is your position there, sir?
A.        I'm the Director of Information Systems and Chief
                                 70
         Information Officer for the Naval Air Systems Command.
                         DIRECT-EXAMINATION
[Questions by counsel for the respondent (LT Burch):]
Q.       Commander, how long have you been in the Navy?
A.       A little over 18 years at this time.
Q.       Could you please tell the Board about some of the
         positions that you've held prior to becoming Chief
         Information Officer at NAVAIRSYSCOM?
A.       Graduated from the University of Louisville as a
         scholarship ROTC student in 1976. Completed flight
         training and was initially assigned to Patrol Squadron
         Eleven in Brunswick, Maine. Completed that tour. Went to
         Corpus Christi, Texas as the Student Control and
         Standardization Officer at the wing. I followed that as
         the Admiral's Aide to the Chief of Naval Air Training. At
         the completion of that tour I was assigned to the NIMITZ
         as a Combat Systems Direction Officer and then later as a
         member of the Combat Systems Direction Officer Team, then
         as the Assistant Combat Systems Direction Center Officer.
         After that tour I was at the Naval Post-Graduate School
         for graduate and post-graduate training, and for the last
         six years--little over six years I've been assigned to the
         Naval Air Systems Command, Washington, first as the Deputy
         Program Manager, and for the last almost three years as
         the CIO.
Q.       In your position as Chief Information Officer, how many
         people are you responsible for?
A.       I'm directly responsible for approximately 150 government
         contractor and military personnel.
Q.       You said directly responsible, are there others that you
         are indirectly responsible for?
A.       As the policy and budgetary lead for information systems
         for the command, I also have indirect responsibility, and
         under the new COMSEA alignment, organizational and
         developmental responsibility for about 1,500 other
         government and military personnel across the entire Naval
         Air Systems.
Q.       And to whom to you report?
A.       Directly to the Vice Admiral for operational and policy
                                71
           decisions, and through--administratively through the Air-
           07 command which is an SES.
Q.         How long have you known Lieutenant Thorne, sir?
A.         Lieutenant Thorne was assigned I believe shortly after
           Christmas, so about-- I guess that makes it 7 months, going
           on 8 months.
Q.         When he was assigned to you, sir, were you aware that he
           was openly homosexual?
A.         Yes, the military manpower director for the command and
           Rear Admiral Becker, the Vice Commander, both called me in
           to make me aware of the situation and the reinstatement,
           and gave me a full briefing as to Lieutenant Thorne's
           background, and asked at that time if I had any concerns
           with him being assigned to the division.
Q.         Now, as his new Commanding Officer, did you do a
           background check of your own to see what kind of officer
           you were getting, sir?
A.         Yes, I asked Captain Murphy, Military Manpower Director,
           if I could take a look at his history, take a look at what
           kind of officer I was getting, the same as I do for any
           military personnel who is coming aboard. I requested that
           and got essentially-it's a high level look at both his
           performance and his background.
Q.         What did that background check reveal?
A.         A hard charging young Lieutenant who had done very well in
           his first fitness report. Had exemplary comments
           concerning his airmanship. He had been assigned probably
           one of the harder jobs in the squadron as the First
           Lieutenant. It's a young officer's billet, typically,
           that's----
REPORTER: One moment, please.
[NOTE:   Reporter changes tapes.]
Q.        Sir, before the tape stopped, you were discussing your
          investigation into Lieutenant Thorne's service prior to
          coming to you, and you said that he had been assigned to
          one of the harder tasks at his squadron, that is First
          Lieutenant's Division. Could you please explain what the
          First Lieutenant's Division is and why that's more
          difficult?
                                    72
A.   Sure. That's a group of enlisted folks that include
     everything from folks awaiting admin discharge to folks
     who are responsible for cleaning and maintaining the
     spaces of the squadron. It is typically a group of fairly
     disgruntled individuals who are not necessarily happy with
     where they're at or what they're doing. As I remember,
     having done a quick look, Lieutenant Thorne had done that
     job in a better than exemplary manner. I was pretty
     impressed, as I remember looking back at some of the
     comments that I saw and the marks.




                            73
Q.   During your check of his prior service, were there any
     signs that he was or was not a team player in his
     background?
A.   No. In fact, some of the things, as I remember, and the
     perception was that he'd done well in flight training, he
     did well in the RAG. The comments that were there tended
     to indicate that he was a strong performer and, no, while,
     in fact, I may have had some reservations given the
     briefing I'd gotten considering the manner in which I had
     Tracy assigned to me, I was actually fairly impressed with
     the background that I saw.
Q.   What responsibilities were you looking to give Lieutenant
     Thorne when he reported?
A.   For about six months I'd been pursuing a military--a
     request to fill a military billet for, essentially, our
     customer service area. It's an area within the command
     that supports the 3,000 plus folks that are on the
     information systems that supports the command. It's the
     help desk, the trouble call center, the focus of most of
     the pain of what's going wrong with the systems vice
     what's going right. More uniquely to that branch, it's a
     mix of government, of contractor--various different
     contractors, and they tend to fairly prima dona-ish in the
     way they approach their technical knowledge. And we'd had
     a very large degree of in-fighting up there, who knew what
     and who was going to handle what executive or what
     problem. Things had not gone very well up there. We'd
     felt like we needed somebody in there to really take
     charge and put them all in traces and get them working
     well. We'd had two or three different other senior
     managers to GM-13--a couple different GM-13's, which are
     essentially the equivalent of senior Lieutenant,
     Lieutenant Commander type from the civilian side, who had
     not done well in that role. And so I was hunting to
     inject someone in there who could take charge. That's
     where I dropped Tracy.
Q.   So when you got the background from the Admiral--Vice
     Admiral, you did your own background investigation. How
     did Lieutenant Thorne handle himself upon reporting aboard
     in January of '94?
A.   I, obviously, because of the Meinhold publicity and my
     need to get a job done, was a little concerned about
     Lieutenant Thorne being assigned. We're almost at a
     constant fever pace over there anyway, so when Lieutenant
                            74
     Thorne came aboard I was concerned about did we have an
     agenda here or did we want to do a job. And Lieutenant
     Thorne said, "I want to be treated like a Navy Lieutenant
     and I want to do my job." I explained the sensitiveness
     of the problem I intended to drop him into, and he said,
     "I'll be glad to give it a shot, sir," and we dumped him
     in the job.
Q.   Do you have a chop on Lieutenant Thorne's fitness reports?
A.   Yes, I will be the officer who will prepare his fitness
     report and then forward it. Typically the way the
     military personnel are handled at this level within the
     organization, it will go to Rear Admiral Boecker for
     signature.
Q.   Do you have the opportunity to observe Lieutenant Thorne's
     performance directly?
A.   I observe Tracy probably two to four times a week, say two
     to three, two to four times a week up in his office spaces
     where the support team is. That's about the frequency
     that I get up there. I typically scream, "Where's Thorne,
     and DeVoy and a few of the other? DIVO?", and they'll all
     come in and we'll discuss a problem. And then I'll
     probably see him one to four more times a week down in my
     own office on different issues and problems. So I see him
     enough to know what's going on, yes.
Q.   When you see him relating to a problem or issue that
     you're having, how does he respond to the problem that you
     give him?
A.   Absolutely exemplary. He takes a problem aboard
     immediately. He either has a couple of options of
     solutions set to what the issue is, or he says, "I'll go
     research it and get back to you", or if he says, "I think
     I can handle that one straight up," he does so. He's
     really an exemplary Lieutenant as far as his professional
     ability to do a job.
Q.   You partially answered my next question, sir. More
     specifically, what, sir, are your opinions of Lieutenant
     Thorne's military performance?
A.   He is, in my mind, certainly a 1% Lieutenant, and I don't
     mean that in the terms of 1% fitness report. I've dealt
     with a lot of Lieutenants over my career either by
     management or association or as a standardization and
     instructional pilot, as well as on the carrier, and few
                            75
     have the self-empowerment, the strength and fortitude, and
     resourcefulness that I've seen Tracy exhibit.
Q.   Now, within the command, sir, how does Lieutenant Thorne
     get along with others?
A.   Exemplary. We've had--he's a team builder. His team
     works very well for him. He is responsive to seniors. He
     regularly calls down for assets and resources, and I have
     never received anything but the highest praise for his
     work.
Q.   Are you aware of Lieutenant Thorne's performance
     reputation with other supervisors--with his other
     supervisors?
A.   Because of the uniqueness of his situation, yes, I have,
     in fact, talked to a few of both his peers and some of his
     supervisors. And his reputation, both as a flight student
     and in the squadron was extremely strong. Within my own
     division, there's one supervisory level essentially
     between myself and Tracy, and having discussed Lieutenant
     Thorne's performance with Richard Lynch, his direct
     supervisor Richard has said that he has had nothing but
     exemplary things to say about him.
Q.   When you see Lieutenant Thorne working with the civilian
     contractors and others, do you have any reservations about
     Lieutenant Thorne representing you and representing the
     United States Navy?
A.   No. In fact, if I did he wouldn't be in the job today,
     because he's pretty much independently in charge of a
     major section that is not geographically located with the
     main administrative branch. So not only is he essentially
     point-man regularly to contractors and members of the
     NAVAIR team, but he's--we not only did that
     organizationally, but he tends to be out there
     geographically. So, no, he's an exemplary model.
Q.   I'm going to change gears and ask you a couple of
     hypothetical questions. When a young officer in flight
     school is courted by a squadron, invited to Christmas
     parties and the like, what does that tend to indicate,
     sir?
A.   That he's being sought out after to--typically, I guess,
     if we're saying like during--during flight school so we're
     really probably at the RAG, if it's squadrons talking to
     you. The squadrons are looking to pick the best guys they
                            76
          can to get in to strengthen their own cubby of pilots, and
          it is typically indicative of a CO hunting for strong
          players.
Q.        And if a young pilot finishes number one in his flight
          school and is placed in charge of the more demanding
          divisions and receives commendation for his performance,
          what would that say about his future potential?
A.        The perception would certainly be that he's got only the
          best and brightest potential ahead of him.
Q.       Based on your knowledge of Lieutenant Thorne's record,
         both past and present, what would be his potential as a
         Navy officer?
A.       Based on performance, it would be excellent.
Q.       Would you like to have Lieutenant Thorne continue working
         for you?
A.       Absolutely. Probably my biggest administrative nightmare
         right now is trying to figure out how to replace him in
         about 6 weeks, 7 weeks, depending on how proceedings and
         everything else goes. My chances of randomly being
         assigned a Lieutenant of his strength is essentially nil.
CR:      No further questions.
                         CROSS-EXAMINATION
[Questions by government counsel:]
Q.       How many military personnel does Lieutenant Thorne work
         directly with?
A.       None. Work directly as in supervise or work with?
Q.       Both.
A.       He supervises no military personnel. He works within the
         division with a couple, myself and another Lieutenant
         Commander. In his relationship as Director of Customer
         Services he essentially, at one time or another interacts
         with up to the three or four hundred that are in NAVAIR.
Q.       But directly, on a day-by-day, hour-by-hour basis, it is
         pretty much you and a Lieutenant Commander, I think you
         mentioned, and then the civilians that he supervises?
A.       Correct.

                                 77
Q.   Then he doesn't supervise any military members?
A.   No, not in his current role. Which is not unusual for
     NAVAIR.
Q.   Thank you. Is there 24 hour duty at NAVAIR?
A.   Yes, there is.
Q.   And is there 24 hour duty for Lieutenant Thorne?
A.   As I remember, because I'm beyond that duty point, upon
     signing in you are put on--you mean, 24 hour duty as in a
     duty officer?
Q.   Yeah, you bet, stay there overnight.
A.   Yes. When you arrive at the command, to the best of my
     recollection, it takes about 9 months to a year before you
     roll onto that rotation. You have then about 6 to 9
     overnight duties over a 6 to 9 month period, and that's
     the completion of your duty officer tour. So, to the best
     of my knowledge, if that policy has not changed, he would
     not even be up on the roster for rolling into an ACDO duty
     position. He would----
Q.   Has he ever been-- let me stop you there and ask you some
     questions. Have you ever been to sea with Lieutenant
     Thorne?
A.   No, I have not.
Q.   Now your opinion is based on--or your opinions of his
     performance is just based since what, the 31st of January
     to the present, is that correct?
A.   About 7 months of performance.
Q.   And contact with Lieutenant Thorne prior to that point?
A.   None.
Q.   But you knew what his history was prior to that point? He
     was coming on active duty at that point, correct?
A.   I had about a 20 minute brief as to--that he was a
     bombardier navigator, A-6, who had openly declared himself
     homosexual.
Q.   He was coming back kind of under the gun, essentially to
     face another board of inquiry at that time, isn't that
     right?
A.   I was not aware of that at that time, no. I knew he was
     reinstated. It had not been mentioned to me that he would
                            78
       be facing another board.
Q.     So you were not aware of the fact that that's what he was
       here, in fact, on active duty for?
CR:    Objection, sir. What he's asking--the witness has
       answered the question, one, and he's asking the witness to
       speculate as to what he was coming back on duty for, and
       finally he's asking the witness to put something before
       the members that is really the ultimate--within the
       ultimate decision of the members as to--and of the
       Commanding Officer. Whether he goes before a Board, what
       the Board decides is within the province of both the
       Commanding Officer and the members today. Whether the
       Commander knows or not is, one, not relevant, and, two,
       not within his purview.
REC:   May I respond, sir? First, it's already before the Board.
       It came up during the motion. Secondly, I'm just asking
       if he's aware of it, that's all.
LA:    I believe he responded that he was not.   Why don't we move
       on?
REC:   Ready to go, sir.
Q.     You mentioned that you see Lieutenant Thorne 2 to 4 times
       per week, is that correct?
A.     Correct.
Q.     And what are the normal working hours for Lieutenant
       Thorne?
A.     I believe Lieutenant Thorne is in around 7:30 to 8:00 in
       the morning. We have a flexible time at NAVAIR, and he's
       usually there at-- to 5:00 in the afternoon
Q.     So 0730 to 1700 would be pretty much the most that you'd
       see of him in any given day, and then only occasionally,
       right?
A.     Correct, 15 to 20 minutes at a time.
Q.     Did you ever see him on weekends?
A.     No.
Q.     Did you ever socialize with him?
A.     No, I have not, except for parties we'd had with inside
                              79
     the division.
Q.   Working kinds of parties?
A.   Yes.
Q.   Did you ever have lunch with Lieutenant Thorne?
A.   I don't know if I have. I don't think so.
Q.   Has he ever discussed his social life with you?
A.   No.
Q.   Do you know where he lives?
A.   I know he lives in Washington, DC, yes.
Q.   Do you know his address?
A.   I have it on record on my alpha file.     I don't have it off
     the top of my head, no.
Q.   Do you know whether he has a roommate?
A.   It has been made aware to me that he has a roommate, yes.
Q.   Do you know what the gender of his roommate is?
A.   Yes, I do.
Q.   What is that?
A.   Male.
Q.   Do you know who Michael Hegland is?
A.   I believe I've met him, but I'm not--no.
Q.   Do you know the kinds of things Lieutenant Thorne
     typically would do in his spare time?
A.   No, I've only dealt with him professionally. With the
     exception that I know he also--that he flies.
Q.   Your opinion of Lieutenant Thorne is based on 6, maybe 7
     months of observation, maybe 8 hours a day, maybe 5 days a
     week at the maximum, is that correct?
A.   In a very demanding position, yes.
Q.   In which he doesn't supervise any military members?
A.   That's correct.
Q.   And you don't really know much about him at all once he
     leave the doors of Jefferson Plaza, is that right?
A.   That's correct.
                            80
Q.        You testified that he's a good military performer, but
          wouldn't you say it is the duty of an officer to obey
          lawful orders?
A.        Correct.
Q.        Wouldn't you say that it is the duty of an officer to obey
          lawful orders even if he disagrees with them?
A.        Yes.
Q.       Wouldn't you say it is the duty of a Naval Officer to obey
         the orders of his CO?
CR:      Objection, sir. What the recorder is doing is implying
         some uncharged misconduct here. We'd suggest that that
         line of questioning be brought to an end. He’s implying
         that he's violated some form of lawful, general or direct
         order, and there's no evidence of that and he's not
         charged with anything like that, sir. We ask that that
         not be brought before the members.
REC:     This is not a court-martial. The Rules of Evidence do not
         apply. I'm asking pretty general questions here, and I'm
         also getting to something that is part of his military
         record. But because we're taking this witness out of
         order, it is not admitted as evidence.
LA:      I'm out in the dark on this one, too. I'm not sure where
         this is going, and it may or may be admissible depending
         on where it's going. Is there some exhibit that you can
         refer me to that I can look at?
REC:     Yes, sir.
LA:      Is it something that is already in the file here?
REC:     Do you have a complete copy?
LA:      I have up through number 17.
[NOTE: REC hands document to Mr. Lee.   Upon his examination, the
document was handed to LA.]
REC:     The government would assert that it is proper cross-
         examination based on the evidence brought before it by the
         defense.

                                81
CR:      Major, we renew the objection. What he's doing is seeking
         to bring in misconduct that is, one, minor, and, two, not
         a part of this Board. What the government's proof is to
         show that somehow Lieutenant Thorne has a propensity to
         engage in homosexual conduct based on his statement. The
         fact that Lieutenant Thorne may have worn his uniform in
         violation of the Navy Uniform Regulations bears little or
         no relevance into that inquiry. We'd ask that it not be
         brought before the witness, and not be brought before the
         Board, because it essentially doesn't matter to what the
         point of this Board is.
LA:      The objection is overruled.
[Continued cross-examination by the government counsel:]
Q.       Well, I'd renew the question then. Isn't it the duty of a
         Naval Officer to obey the lawful order of his Commanding
         Officer or his Executive Officer?
A.       Yes.
Q.       So if an officer violated the uniform regulations and the
         direct orders of his Commanding Officer and his Executive
         Officer, specifically to refrain from wearing a Navy
         uniform on national television to advocate a personal
         political agenda, that would not be good military
         performance, would it?
A.       Correct.
Q.       And if an individual asserts himself as the focus of his
         public criticism of a policy, or a military policy and his
         public statements that reflect upon the military, that's
         not good military character either, is it?
A.       Would you restate that question?
Q.       Publicly attacking the military, particularly in uniform,
         is not good military----
CR:      Objection, sir. There's no evidence that he publicly
         attacked the military. That's an issue of disrespect. To
         criticize policy or a potential policy is an extremely
         different matter than attacking the military, which reeks
         of treason in the way Lieutenant Dutton has phrased it.
LA:      Well, treason may be going a little bit far, Lieutenant
         Burch. I'll sustain your objection with regards to the--
                                 82
          and allow you to rephrase your question, Lieutenant
          Dutton.
REC:      Very well, sir.
Q.       Focusing attention on yourself in uniform in an attempt to
         publicly criticize the military is not good military
         character, is it?
CR:      Again, sir, he's not criticizing the military, and there's
         no showing that he was. What he was doing was engaging in
         his First Amendment right of free speech while he was in
         uniform, and we'd ask that it be characterized as
         criticizing the policy, not criticizing the uniform or the
         military.
REC:     That's how the statement was asked actually. In uniform,
         publicly criticizing the Navy and its policies.
LA:       I think we understand the point at this point.       You may
          answer the question.
A.        I do not consider that good judgment.
REC:      I don't have any further questions.     Thank you.
LA:       Lieutenant Burch?
CR:      One moment, Major.
                        REDIRECT-EXAMINATION
[Question by counsel for the respondent (LT Burch)]:
Q.       Commander Luigart, the incidents just mentioned by the
         recorder, do those, in any way, change your opinion of
         performance that Lieutenant Thorne has given both you and
         to his prior Commanding Officers while in the Navy?
A.       No. Lieutenant Thorne's professional performance has been
         exemplary. He may have made bad judgment calls. I can
         say the same about becoming a lawyer, sometimes.
         Especially when one that's got the right wings on to start
         with. But professionally he has done his job in an
         exemplary manner.
CR:      Thank you, sir.
                                 83
REC:       I have no further questions.
LA:        Members of the Board, questions for the Commander?
                       EXAMINATION BY THE BOARD
[Questions by member, Captain Cook]:
Q.         I have a question. Commander, would you please comment on
           your assessment of the officer's credibility?
A.         Within the Navy, sir?
Q.        Relative to any discussion you had or any dialogue you
          had. Was he totally credible?
A.        Lieutenant Thorne has shown himself professionally to be
          within the work space totally credible. He is a hard
          charging Lieutenant, sir. As we ask out of any
          Lieutenant, follows the--asks forgiveness instead of
          permission. He keeps me informed. He has built a
          technical credibility with people within his branch
          through very hard and industrious study right off the bat.
          He’s done a very good job, sir.
Q.        I would assume from what you said, not knowing anything of
          Lieutenant Thorne's social life, you have no knowledge
          whether he has or has not engaged in a homosexual act.
          Would you comment on that, please?
A.        I have no knowledge as to whether he has or has not
          engaged in a homosexual act in the period of my
          association with him, sir, nor do I know any historical
          background.
MBR [CAPT COOK] :   Captain Smith, any questions?
MBR [CAPT SMITH]:   No questions.
MBR [CAPT COOK] :   Captain Barnett?
MBR [CAPT BARNETT]: None.
MBR [CAPT COOK] :   Proceed.
LA:                 Any side have further questions?
REC:                No, sir.

                                    84
CR:                 Nothing, sir.
LA:                 Commander, thank you very much, sir.
[The witness withdrew from the hearing room.]
MBR [CAPT COOK]:    Okay, we're ready to proceed with the
                    government's case.
REC:                I'd ask for an understanding of what the Board's
                    intent is with regard to time frame goes?
MBR [CAPT COOK]:    Our intent is to proceed.   How long will it take
                    you?
REC:                The government's exhibits--well, that depends, I
                    suppose, on what the objections, if any, are.
                    The government would just intend to offer the
                    exhibits, and if you wanted to proceed late, we
                    could even offer the tape as well.
MBR [CAPT COOK]:    Well, I'd like to go for at least another hour.
REC:                Very well.
CC [MR. ZIEGLER]:   Do I understand the government to have offered
                    into evidence its exhibits at this time?
REC:                Yes, actually the script calls for me to
                    identify, if I'm not mistaken, each of the
                    items.
LA:                 I don't know if there's any necessity to go
                    through the list separately. Both sides having
                    seen a copy of the list----
CC [MR. ZIEGLER]:   We certainly see no reason for that, Major.
LA:                 I think they're all identified specifically
                    enough that respondent's counsel can object
                    individually to any of those they desire to.
                    I'd state for the record, obviously, that your
                    objection to those exhibits based on the motion
                    stands in the record. There's no reason to
                    repeat that.

                                    85
CC [MR. ZIEGLER]:   That was my only concern.   Thank you, Major.
REC:                Very well, then, at this time I'd offer
                    Government Exhibits 1 through 24 for
                    consideration by the Board. I'd also offer a
                    list of government exhibits. I neglected to
                    give that a number. I suppose we should give
                    that the next in order. Court reporter, is that
                    Exhibit 29 for the government?
REPORTER:           Yes, sir.
REC:                May I offer Government Exhibits 1 through 24 and
                    Exhibit 29 for the Board's consideration. The
                    government's exhibits are listed on Exhibit 29.
[Documents handed to LA.]
LA:                 Mr. Lee or Mr. Ziegler, who is handling this
                    aspect of the case.
CC [MR. ZIEGLER]:   We have no objections to the government's
                    exhibits other than those we previously made in
                    our motion in limine, which would be to Exhibits
                    7 through 16.
LA:                 In that case, having already ruled on that
                    motion, Lieutenant Dutton, you may publish your
                    exhibits. The exhibits are admitted into
                    evidence.
REC:                Very well, sir, I'll publish them to the
                    members. I have at this point in time a single
                    copy to publish to the members. I will provide
                    a copy for each member. We have had technical
                    problems in the command, and getting copies has
                    proven to be difficult, to say the least. When
                    we do have copy facilities available, I'll
                    provide a copy for each member. That is
                    Government Exhibits 1 through 24. I should
                    point out that Government Exhibit 9 is actually
                    the video tape, and I have the original here.
                    Do I understand there's no objection to the
                    video tape?
CC [MR. ZIEGLER]:   We have no objection to it, providing its the
                                 86
                    same video tape that was introduced in the prior
                    proceeding.
REC:                It is.
CC [MR. ZIEGLER):   Other than the objection previously noted and
                    preserved.
REC:                At this time, in order to publish it to the
                    members, I would request leave to play the video
                    tape.
LA:                 Any objection to that?
CC [MR. ZIEGLER]:   We have no objection to that.
LA:                 I think I would just note, or maybe I should
                    ask, as I understand it, just possibly for the
                    members sake and potential clarity, I don't know
                    how clear this tape is and easy to understand.
                    Government Exhibit 8 is a transcript of what
                    we're going to be watching?
REC:                That's correct.
LA:                 If they desire to follow along.
REC:                The tape should be reasonably clear.
LA:                 Before you do that, Lieutenant Dutton, this will
                    be the end of your case?
REC:                Yes, sir.
LA:                 The President of the Board indicated a
                    willingness to remain until approximately 1800
                    or so. Do you all have matters to--I presume
                    this is a standard 20, 30 minutes, the tape?
REC:                No, sir, the tape is actually only--I don't
                    believe it is more than 5 minutes.
LA:                 Oh, 5 minutes, okay. Do you all have anything
                    to present at that point, or do we just have
                    another 5 or 10 minutes of stuff?

                                 87
CC [MR. ZIEGLER]:   We have some exhibits that we could offer into
                    evidence and one witness that we'd like to call
                    today, if time permits.
REC:                What the government intends to offer into
                    evidence is not the entire program. There's
                    other statements, not by Lieutenant Thorne, but
                    simply the statements of Lieutenant Thorne.
                    That's what the government intends to offer of
                    the program.
CR:                 Major, may I ask that Mr. Ziegler and I move to
                    a position to see the tape?
LA:                 Certainly.
REC:                Let the record reflect that I'm about to play
                    the Nightline tape of May 18th, 19---I beg your
                    pardon, May 19th, 1992. The statements--the
                    portion of the Nightline program are the
                    statements of Lieutenant Thorne.
[The video, Government Exhibit 9, was played for the Board.]
REC:                With the understanding that Government Exhibits
                    1 through 29 have been admitted, that concludes
                    the government's case.
CC [MR. ZIEGLER]:   Mr. President, to open the respondent's case, we
                    would like to offer into evidence the first----
REC:                I'm sorry to interrupt at this point. May I ask
                    for a brief recess, simply a comfort recess.
MBR [CAPT COOK]:    We'll take a brief recess.   I'd like to
                    reconvene at 1720, please.
[The Board recessed at 1710 hours, 11 July 1994.]
                                 * * * *

[The Board was called to order at 1725 hours, 11 July 1994. All
parties previously present were once again present.]
MBR [CAPT COOK]:    Be seated, please. The Board is back in
                    session. I'd ask, in the future, that we try to
                                   88
                    tighten up a little bit on getting back on time,
                    if you would. Proceed, Mr. Ziegler.
cc [MR. ZIEGLER]:   At this time, Mr. President, the respondent
                    would offer into evidence Respondent's Exhibits
                    1 through 13. Exhibit 1 is a biographical
                    statement from Lieutenant Thorne. Exhibit 2,
                    which we actually don't have at this point in
                    time, but would offer later when Lieutenant
                    Thorne makes an unsworn statement, will be an
                    unsworn declaration of Lieutenant Thorne.
                    Exhibits 3, 4, 5 and 6, are fitness reports for
                    Lieutenant Thorne. Exhibit 7 is a memorandum
                    from his Commanding Officer dated September
                    1989, re an outstanding achievement award in
                    academic training and physical training in the
                    Naval Aviation Schools Command. Exhibit 8 is a
                    memorandum from his Commanding Officer dated
                    February 9, 1990, placing Lieutenant Thorne on
                    the Commodore's list during Basic Naval Flight
                    Officer Training. Exhibit 9 is a memorandum
                    from his Commanding Officer dated May 18, 1990,
                    placing Lieutenant Thorne on the Commodore's
                    list at that juncture. Exhibit 10 is a
                    memorandum from the Acting Commanding Officer of
                    Attack Squadron FORTY-TWO to the Commanding
                    Officer of Attack Squadron SIXTY-FIVE regarding
                    Lieutenant Thorne's successful completion of
                    Fleet Replacement Squadron Training. Exhibit 11
                    are various excerpt from his service record.
                    Exhibit 12 is stipulation that we entered into
                    with the Navy in the first administrative
                    discharge proceeding regarding a command
                    inspection that was held on April 13, 1992.
                    They entered into the stipulation rather than
                    producing the ADMAT report because of
                    confidentiality concerns the Navy raised at that
                    time. But what the stipulation does excerpt
                    from the ADMAT report are the responsibilities
                    that Lieutenant Thorne had during that
                    inspection which related to three different
                    things: a zone inspection, responsibility for
                    maintaining the Naval Warfare Publications
                    Library, and certain responsibilities with
                    respect to the physical security of the squadron
                    in which Lieutenant Thorne received outstanding
                                 89
                    commendations in each case. Finally Exhibit 13,
                    I believe the government has already put into
                    evidence, that is the letter that Lieutenant
                    Thorne wrote to his Commander on January 31,
                    1994. Unless there are objections from the
                    government, I would ask that these exhibits be
                    published to the Board.
AREC:               I have no objections, as such, except to,
                    obviously, Exhibit 2, which we haven't seen yet.
                    We have no objections to 1 and 3 through 13.
LA:                 I gather from the proffer that it will be a
                    transcript of the statement that the Lieutenant
                    intends to give at some point.
CC [MR. ZIEGLER]:   He will give a statement orally, and to the
                    extent it deviates from a written declaration
                    that has been prepared, we would offer it at
                    that time. And any objection the government
                    would have to that, they can make it at that
                    time. We're not offering it now.
LA:                 Then 1 and 3 through 13 are admitted.
CC [MR. ZIEGLER]:   With your permission, Major Stutzel, may I
                    introduce to the members, who I don't believe
                    have copies, of the volume that we have of these
                    exhibits with any instruction you may wish to
                    give limiting their attention to the exhibits
                    that have been introduced so far.
LA:                 Did you not intend to introduce the remaining
                    exhibits in this volume at this point?
CC [MR. ZIEGLER]:   At this point, that's correct. We intend to
                    offer the remaining exhibits at a later part in
                    our case when it may make more logical sense in
                    connection with the testimony of other
                    witnesses. I think for the purposes of our
                    current presentation, these 13 or 12, depending
                    on how you count them, are all that we're
                    introducing at this present time.
AREC:               I have no objection to them giving them the
                    whole book, Major Stutzel, obviously with
                                 90
                       instructions that Exhibit 14 through 34 have not
                       been admitted, and they shouldn't go past 13.
LA:                    In light of that, gentlemen, obviously the
                       exhibits in the back of the book have not been
                       offered, and may or may not be available to you
                       depending on whether they're objected to and
                       admitted. So you're advised, please, to stop
                       with Exhibit 13. You're free, of course, to
                       read through all those.
[NOTE:     Volume of exhibits provided to each member.]
CC [MR. ZIEGLER]:      At this point, the respondent would call
                       Lieutenant Todd Suko.
Lieutenant Todd A. Suko, U.S. Naval Reserve, was called as a witness
by the respondent, was duly sworn, and testified as follows:
[Preliminary questions by the recorder:]
Q.          Would you please state your full name for the record and
            spell your last name?
A.          My name is Todd A. Suko, S-U-K-O.
Q.           And what is your rank and branch of service?
A.           Lieutenant, United States Naval Reserve.
Q.          And what is your duty station?
A.          I'm a reservist with AIRLANT 1086, which is a reserve unit
            for COMNAVAIRLANT in Norfolk.
Q.          And what is your occupation in the civilian community?
A.          I'm a law student.
MBR [CAPT COOK]:       I'm sorry, I didn't understand your occupation.
WITNESS:               Law student.
                            DIRECT-EXAMINATION
[Questions by civilian counsel, Mr. Ziegler]:
Q.           Lieutenant Suko, would you please describe for the members
             of the Board in general terms your experience in the Navy,
             starting from when you joined until the present time?
                                      91
A.   My first involvement with the Navy was ROTC at the
     University of Virginia. I joined there my first year.
     Upon graduation I went to Flight Training in Pensacola
     where I met Tracy. Right after the very first part in our
     first training squadron VT-10. From VT-10 we were in VT-
     86 together, and then the RAG at Oceana for A-6 training,
     and then we were in the same air wing. I was in VA-36. I
     was in VA-36 until July 31st last year, when I got out and
     started law school, and I've continued in the reserves
     since that time.
Q.   Lieutenant Suko, you indicated from your prior answer that
     you did, indeed, know Lieutenant Thorne, the respondent in
     this case?
A.   That's true.
Q.   And I have some difficulty in calculating exactly how long
     it is that you've know Lieutenant Thorne from your prior
     answer. How long have you known the Lieutenant?
A.   I met Tracy in, I guess, October of '89, and I've known
     him since that time.
Q.   And what precisely were the circumstances under which you
     first came to be acquainted with Lieutenant Thorne?
A.   We were in the same class in basic training, Basic Naval
     Flight Officer Training, so we started together in VT-10
     in Pensacola, which is the very first training squadron.
Q.   And could you summarize the professional contacts you've
     had with Lieutenant Thorne from that time that you first
     got to know him until the present time?
A.   Well, as a fellow--as a friend and fellow aviator, and
     fellow officer, in either the same squadron or the same
     air wing up until the point of his discharge, I think,
     about 2 years ago, I guess. And then since then, as a
     friend.
Q.   Was there a period of time that you lived with Lieutenant
     Thorne?
A.   Yes, he was my roommate in Flight School. I think we
     lived together from, I want to say--from about a year or
     so from like January of '90 to around the same time of
     '91.
Q.   As a fellow naval flight officer, Lieutenant Suko, how was
     Lieutenant Thorne held--in what kind of regard was he held
                            92
     by his peers?
A.   I think he was held in very high regard regarding his
     performance, especially--All the way through the training
     command he was either number one in his class or
     Commodore's list, all the way through. Out of VT-86, when
     we received our wings, he received the Top Gun award for
     the highest average for going through Flight School. And
     then the RAG, his performance was outstanding. I think he
     finished at or near the top of our class in the RAG.
     Generally speaking, he was the kind of guy most people--he
     set the example, certainly in our class and all the way
     through Flight School and the RAG. People looked up to
     him for his aviation ability, certainly.
Q.   And was there evidence, Lieutenant Suko, that he was held
     in high regard by his superiors?
A.   I think so, absolutely. He was, you know--his record,
     first of all, speaks for itself. I think when we finally
     finished up the RAG and we were going to squadrons, I
     can't speak for their personal opinions, but our
     perception was certainly that Tracy was one of the fast
     track top pick kind of guys out of the RAG. We were
     certainly envious.
Q.   And during the course of time that you knew him
     professionally, did he demonstrate the characteristics
     that you would expect to see in a naval officer?
A.   To me, absolutely,
Q.   Did you believe that he could lead others?
A.   Absolutely.
Q.   How did he demonstrate that?
A.   I think he has the basic qualities of a leader. He's a
     hard working, honest person with a lot of integrity. To
     me that's what counts. I think, through the time I knew
     him professionally, he never displayed anything but that.
Q.   Did he exhibit characteristics of loyalty?
A.   Absolutely.
Q.   Self-confidence?
A.   Yes.
Q.   Self-respect?
A.   Yes.
                            93
Q.   Was there ever any question in your mind about his
     devotion to his duty?
A.   No, never.
Q.   Was there every any question in your mind about his
     personal integrity?
A.   No.
Q.   Did he ever do anything to cause you to question his
     honesty and commitment to the Navy?
A.   No.
Q.   Did he always perform his duties energetically and with
     enthusiasm?
A.   Absolutely.
Q.   When did you first come to learn that Lieutenant Thorne
     was gay?
A.   Tracy told me, I believe it was, in the late winter, early
     spring of '92, if I'm not mistaken. It was January,
     February, around there.
Q.   Did you believe that he had the characteristics of a
     promising naval officer before you knew he was gay?
A.   Yes, from my perspective, as a fellow junior officer, I
     would say so.
Q.   Did your opinion in that regard change after you learned
     that he was gay?
A.   No.
Q.   Now, you testified earlier, Lieutenant Suko, that there
     was a period of time, I think it was about 11 months, that
     you roomed with Lieutenant Thorne, is that correct?
A.   That's correct.
Q.   Was that in an apartment or a house? What were the
     circumstances?
A.   We lived in a townhouse.
Q.   And how many bedrooms were in the townhouse7
A.   It was a three bedroom townhouse.
Q.   And how many baths?
A.   Two baths.

                            94
Q.        Now, Lieutenant Suko, are you, yourself, of heterosexual
          orientation?
A.        Yes, I am.
Q.        Was there ever any problem in rooming with Lieutenant
          Thorne with respect to his sexual conduct?
A.        Never.
Q.        Did he ever make any advances to you?
A.        Never.
Q.        Did he ever behave in any inappropriate ways?
A.        Never.
Q.        Was there ever any problem with Lieutenant Thorne
          respecting your rights to privacy?
A.        Never.
Q.        Lieutenant Suko, have you been at sea during your tenure
          in the Navy?
A.        Yes, I have.
Q.        Would you describe for the Board that experience?
A.        I went through a full work-up cycle at the USS ROOSEVELT,
          with VA-36. A little over half a cruise--I think I have a
          total of 7 months, actually, aboard ship deployed at sea.
Q.        And could you describe for us the living conditions that
          you experienced in that setting?
A.        Well, as a junior officer I generally shared a stateroom
          with five other people, and also shared a bathroom with--I
          don't know how many other people would be on the same--
          same deck, probably a hundred other people.
Q.        Would you have any difficulty in being with Lieutenant
          Thorne at sea in those circumstances for long periods of
          time?
A.        I would not.
CC [RR. ZIEGLER]:   Nothing further at this point.
                         CROSS-EXAMINATION
[Questions by the recorder:]
Q.        You lived with Lieutenant Thorne from January of '90 to
                                 95
           the late Fall of '90, is that right?
A.         I can't remember the exact date we first moved in, but I
           know it was about 11 months. I think we moved out in the
           September/October time frame of '91.
Q.         So, it's three and a half, four years---
A.         I'm sorry, '90.
Q.         Three and a half, four years ago?
A.         Yes.
Q.         You mentioned a moment ago that you found out, I think you
           said, in January or February of 1992, Lieutenant Thorne
           told you he was homosexual, is that correct?
A.         That's correct.
Q.         Do you remember testifying in the past that it was January
           or February 1991?
A.         I'm sorry. No, I'guess you're right, it was '91. I'm
           sorry, I made a mistake.
Q.         Okay, January or February of 1991?
A.         If that's what I said on the record, that's correct, yes.
Q.         Okay. How did you find out?
A.         He told me.
Q.         How did he tell you?
A.         We were out running and he just kind of mentioned it.
Q.         Mentioned it? And this was, what, about a year and a half
           prior to his telling the squadron?
A.         I can't remember the exact time frame. I think it was in
           the record before, but----
Q.         Would there be something that could refresh your--your
           statements of the past that could refresh your memory?
A.         If I could take a look at the date.
REC:       May I approach?
LA:        Yes.
WITNESS:   I just can't remember the date. I remember reading
           through this and it was correct.

                                  96
[The recorder provided a document to the witness, who examined and
returned to the record.]
WITNESS:   I know it was some time. I don't think it was a year and
           a half. I think it was a matter of six months. Anyway,
           it was correct what I said before. I apologize for not
           remembering clearly.
Q.         But, anyway, it was at least some time before he made the
           announcement, some significant time?
A.         Right. I think it was 5 or 6 months, if I'm not mistaken.
Q.         But you testified it was about a year and a half last
           time. In fact, you also testified twice, I think.
A.         I testified in '92, so it couldn't have been that long.
CC [MR. ZIEGLER]:    Objection, the witness has already responded he
                     doesn't recall the chronology.
Q.         Now, the testimony you gave at that time was closer in
           time to the events?
A.         Right, right.
Q.         So it's likely to be more accurate?
A.         It was '92, so it couldn't have been a year and a half.
Q.         '92 was the time of the Board, correct?
A.         Right.
Q.         And----
A.         He told me in '91, so it had to be about 5 or 6 months
           difference.
Q.         January of '91 to the summer of '92 would be----
A.         Oh, I'm sorry, you're correct.
Q.         Did he ask you not to tell anyone at that time?
A.         I don't remember if he put it that way. I think--it was
           just--he said it to me as a private matter, and I kept it
           private. He never specifically said, "Don't tell
           anybody, " but I think it was understood.
Q.         Did it surprise you?
A.         Yes, very much.
Q.         Did you ask him how he knew?
                                  97
A.         Yes, I think I did.
Q.         What did he say?
A.         I think he said it was something along the lines he had
           come to the realization that that was the way he was.
Q.         Did he talk about interactions with others?
A.         No.
Q.         Did you consult anyone at that time to see whether or not
           you had a duty to report that disclosure?
A.         I checked myself.
Q.         But no one else?
A.         No.
Q.         Did he tell you at that time that he intended it to be a
           private matter between you and him or something else?
A.         Well, he told it to me privately, and that's the way I
           took it, and that's the way I kept it.
Q.         Did he tell you that he intended to let others know later
           on?
A.         Not at that time, no.
Q.         Did you think to ask him what his intentions were?
A.         I think his intentions were--he was just expressing his
           orientation to me, nothing other than that.
Q.         Did you know it was grounds for separation from the
           military at the time?
A.         Yeah.
Q.         And you felt no responsibility to raise the issue?
CC [MR. ZIEGLER]:       Objection, argumentative.
LA:        Overruled.
WITNESS:   I think that my duty was to report misconduct according to
           the UCMJ. As a friend, I don't feel the duty to turn him
           in, if that's what you're asking me.
Q.         I'm just asking what you felt you had a duty to do at that
           point. Nothing, is that correct?
A.         That's correct.
                                     98
Q.   But you didn't ask anybody?
A.   No.
Q.   Now, you lived with Lieutenant Thorne for, what, about 11
     months. What sort of living arrangements did you have?
A.   We had a townhouse with three bedrooms and two bathrooms.
Q.   You described the conditions that you lived on the ship,
     that's three bedrooms and two bathrooms for two people.
     That was nothing like the conditions you had on the ship,
     is it?
A.   That's correct.
Q.   On a typical carrier there could be up to several thousand
     people?
A.   Six thousand.
Q.   Including the air wing, correct?
A.   That's correct.
Q.   And of those, 75,000 or 80,000--I'm sorry, 75% or 80% at
     least are going to be enlisted, right?
A.   That would probably be correct, if not a lot more than
     that.
Q.   So, describe--you've described what a typical JO would
     experience. Did you get an opportunity to see what a
     typical enlisted person would experience?
A.   Sure.
Q.   And what was that?
A.   A large bunk room with probably, I guess, 30 people per
     bunk room.
Q.   And what about the heads?
A.   Similar, in that they have a large head, similar in size
     to what the officers have.
Q.   And that's very different from three bedrooms and two
     bathrooms for two people, is that correct?
A.   Yes.
Q.   The privacy for the average person on the ship is going to
     be very different from privacy from the average person's
     home, right?
A.   Yes.
                            99
Q.   What squadron were you in?
A.   VA-36.
Q.   That's not the same as Lieutenant Thorne's, correct?
A.   Well, we were in--there's three squadrons together.
Q.   In the training command, right?
A.   Right, and then in the RAG. And then in VA-36 we were in
     the same air wing. They were our sister A-6 squadron.
Q.   Did you have anyone in your squadron openly declare
     themselves to be homosexual?
A.   No, I did not.
Q.   You don't know up front what that would do to the
     interworkings of a squadron?
A.   Let me clarify that question. No officers declared
     themselves homosexual.
Q.   So you don't know what that would do to the wardroom of a
     squadron?
A.   Well, I think the reaction of our wardroom was probably
     similar to the reaction in Tracy's wardroom, but not
     exactly the same.
Q.   But it didn't happen in your wardroom, did it?
A.   No, it didn't.
Q.   You said, I think, that you had 7 months on cruise, is
     that right?
A.   I have about a 7 months total at sea time, either way.
Q.   Roughly how many cats and traps?
A.   140 or so.
Q.   How many night traps?
A.   Around 60.
Q.   In order to do that you really have to trust the person
     you're flying with, don't you?
A.   Absolutely.
Q.   Particularly the A-6 doesn't function well as an aircraft
     unless the two can work together as a team, right?
A.   That's true.

                             100
Q.   In the time you were with the squadron, did you
     participate in the work-ups, exercises before deployments?
A.   I worked-up the entire set of work-ups in a little over
     half a cruise.
Q.   And so you know sometimes that a squadron can be at sea at
     least 6, sometimes 9 months a year?
A.   That's correct.
Q.   And that can be a long time without the company of your
     significant other, isn't that correct?
A.   Yes, it can.
Q.   Some people find themselves subject to unique temptations
     during a cruise, isn't that right?
A.   I wouldn't know.
Q.   Others around you? I mean, you never observed----
A.   I don't know exactly what you mean by that.
Q.   Well, even married guys, whether they carry it out or not,
     are subject to temptation when they're away that long,
     isn't that correct?
A.   That would require me to get into the mind of someone
     else, I wouldn't know.
Q.   You never discussed it with anybody?
A.   That certainly wasn't something that people would go
     around talking about.
Q.   Okay. You testified that you were roommates about--well,
     I guess it was almost 4 years ago, and then kept in
     contact since then through the squadrons and through the
     wing, is that correct?
A.   That's correct.
Q.   In the last 2 years, say, how much time have you spent
     with Lieutenant Thorne on, say, a monthly basis?
A.   Well, I was gone on work-ups and cruise until July of last
     year, so that was almost a whole--for the preceding prior
     6 or 7 months I really wasn't around prior to that.
Q.   In the last 2 years how many times have you seen him?
A.   Oh, many times.
Q.   In the last year how many times have you seen him?
                           101
A.   I can't say for sure, probably--I don't know 10 or 15
     times. It depends, I can't really----
Q.   Have they all been here in D.C.?
A.   No. Virginia Beach and Charlottesville and other places.
Q.   So in the last couple of years, then, you've seen them on
     an occasional basis both--you visited him in Virginia
     Beach and---
A.   We both lived down there.
Q.   ---he's visited you in Charlottesville, is that correct?
A.   That's correct.
Q.   And then also you've visited him here?
A.   That's correct. I've seen him up here.
Q.   Have you been to his home?
A.   Yes.
Q.   Have you visited him at work?
A.   Never visited him at work here.
Q.   When you visited him at home, are you talking about his
     home here in D.C.?
A.   Yes.
Q.   Where does he live in D.C.?
A.   On East Capital.
Q.   Do you know who he lives with?
A.   I believe he has a roommate.
Q.   Do you know his name?
A.   Mike Begland.
Q.   Was Mike there when you visited?
A.   No, he was not.
Q.   Did you ever talk about what, if any, relationship he had
     with Mike Begland?
A.   I know they're friends.
Q.   Do you know whether Mike Begland is a homosexual?
A.   Yes, I believe he is.

                             102
Q.        Do you know whether they share a bedroom?
A.        I don't know that.
REC:      No further questions.
                        REDIRECT-EXAMINATION
[Questions by civilian counsel (Mr. Ziegler)]:
Q.        Lieutenant Suko, Lieutenant Dutton asked you about trust,
          and in particular the needs in trusting someone when you
          were flying. Would you have any difficulties flying with
          Lieutenant Thorne?
A.        No, I wouldn't.
Q.        Lieutenant Suko asked you--excuse me, Lieutenant Dutton
          asked you about your experience at sea. Do you recall
          that testimony?
A.        Yes, I do.
Q.        You're familiar now with a prolonged tour at sea, is that
          correct?
A.        That's correct.
Q.        And you've lived previously in an apartment with
          Lieutenant Thorne, you told us about that earlier?
A.        That's also correct.
Q.        Based on your familiarity with the conditions at sea,
          Lieutenant Suko, would you have any concerns whatsoever in
          that same situation of living with Lieutenant Thorne?
A.        I would not.
CC [MR. ZIEGLER]:   Nothing further.
REC:                No, sir.
LA:                 Members of the Board?
                      EXAMINATION BY THE BOARD
[Questions by the member Captain Smith:]
Q.        Do you have any other friends that are admitted
          homosexuals?
A.        No, not that I know of. Tracy is the first person that I
                                  103
          ever knew that closely who was a homosexual.   Since then
          I've met other people.
Q.        When he volunteered to you in January of '91 that his
          sexual orientation--what his sexual orientation was, did
          you have other discussions with him subsequent to that?
A.        Regarding?
Q.        The nature of his homosexuality?
A.        I don't know the nature of it, but certainly on the issues
          around it.
Q.        In terms of what the code of conduct was of the UCMJ or--
A.        Certainly I think it probably came up, the conduct, in
          that conduct is strictly not prohibited--is strictly
          prohibited, excuse me, and I think he was aware of that.
          I'm certainly aware of it. As a legal officer as one of
          my collateral duties I was aware of what the requirements
          are prohibiting it.
Q.        So you were the squadron legal officer?
A.        Yes, I was.
MBR [CAPT SMITH]:   That's all I have.
MBR [CAPT COOK]:    Captain Barnett?
MBR [CAPT BARNETT]: I don't have any questions.
[Questions by the member Captain Cook]:
Q.        Lieutenant, during the time that you lived with Lieutenant
          Thorne subsequent to your discussion on his homosexuality,
          did you ever meet any other homosexual friends that he may
          have had at that time?
A.        After he told me?
Q.        Yes.
A.        No, I just know Mike, that's it.
Q.        There were no other individuals that you met that you knew
          to be homosexuals?
A.        In what time period?
Q.        When you were together after he--well, any time period.
          Take it from the time that he----
                                104
A.        Up until this period?
Q.        From the time he told you until now, have you met other
          homosexual friends that----
A.        Yes, I believe I have. I don't remember them being
          specifically pointed out that this person is a homosexual.
          I don't think he labels them quite that way.
Q.        I understand that. What is the basis for your statement
          that you believe he lives with a homosexual?
A.        Well, I just know that Mike is his roommate, and I believe
          Mike is homosexual, but that's all I know.
MBR [CAPT COOK]:    Thank you.
LA:                 Lieutenant, thank you very much.
[The witness withdrew from the hearing room.]
CC [MR. ZIEGLER]:   At this point I think we're at a natural
                    breaking point in the presentation of our case
                    and depending upon the druthers of the Board and
                    Captain Cook, we would suggest breaking for the
                    day.
MBR [CAPT COOK]:    I would like to clarify before we made a
                    decision on that where we stand in the status of
                    the case, particularly whether you have--
                    obviously you have other things to present and
                    you have other witnesses you'd like to present.
                    Are any of those witnesses available tomorrow?
CC [MR. ZIEGLER]:   No, sir, I don't believe they are. I think our
                    only remaining live witness is Dr. Korb, but I
                    don't believe he's available until Wednesday at
                    10:00 a.m.
AREC:               Sir, if I may, in deciding what day we should
                    reconvene, we intend to object to Dr. Korb's
                    testimony if it is consistent with his
                    declaration, which is contained in the packet
                    that I have on his relevance--the relevance of
                    his testimony to this proceeding here today or
                    tomorrow or the next day. If Lieutenant
                    Thorne's counsel wants to make an offer or
                    proffer as to what Dr. Korb would testify to,
                                  105
                     then we could maybe argue that evidentiary issue
                     out now and then we would know exactly how we're
                     going to schedule the rest of this proceeding.
MBR [CAPT COOK]:     Does anyone have any compelling appointment or
                     engagement that would preclude their remaining
                     to argue that particular issue?
REC:                 No, sir.
MBR [CAPT COOK]:     Well, if everyone thinks they have the time
                     available I recommend we proceed, Major.
LA:                  That's fine, sir.
MBR [MR. ZIEGLER]:   At this time we'd like to make a proffer of the
                     testimony that we would expect Dr. Lawrence Korb
                     to give on behalf of the respondent. Dr. Korb
                     is the Assistant Secretary of Defense in the
                     Reagan Administration from 1981 to 1985. He was
                     the author of the old regulations regarding
                     homosexuality in the armed forces. He has
                     taught at the United States Navy War College as
                     Professor of Management, and at the U.S. Coast
                     Guard Academy. He has prior Navy service. He's
                     a retired Captain, United States Naval Reserves,
                     19 years in ready reserves. He was in active
                     duty for 4 years as a naval flight officer. His
                     credentials are further identified in
                     Respondent's Exhibit 21, which at this time I
                     would offer into evidence, at least for the
                     purposes of the proffer.
AREC:                I have no objection.
LA:                  Then we'll consider Exhibit 21 with regards to
                     that.
MBR [MR. ZIEGLER]:   Dr. Korb has published numerous books and
                     articles. I'll just mention two books of
                     particular note, one called the "Joint Chiefs of
                     Staff", and one called "The Fall and Rise of the
                     Pentagon". He has consulted for numerous
                     administrations on national defense issues,
                     including the Reagan, Bush, and even to a lesser
                     extent, the Clinton Administration. He was
                                 106
specifically identified by President Clinton in
his July 20th, 1993 address in announcing the
new policy as someone who is familiar with both
the old and the new policy.
And the expert testimony that we would expect
Dr. Korb to give, if permitted to appear,
relates to several issues. First, Dr. Korb has
been provided with excerpts from Lieutenant
Thorne's service records and he has been
provided with Lieutenant Thorne's January 31,
1994 statement to his Commander, which is
Exhibit 17--Government's Exhibit 17, I believe.
And Dr. Korb would be prepared to give his
expert opinion as to whether or not these
statements acknowledging a homosexual
orientation in that letter are predictive of
conduct, and, in particular, whether those
statements are evidence of propensity to engage
in homosexual conduct or an intent to engage in
homosexual conduct. He would offer testimony
more generally on whether statements about one's
homosexual orientation considered in and of
themselves are predictive of conduct. He would
explain in detail why statements regarding one's
sexual orientation taken alone are not
incompatible with military service, and do not
undermine the ability of one to lead, do not
undermine unit cohesion and morale, do not
undermine mutual trust and confidence among
service members, do not undermine the integrity
of the system of rank and command, do not
interfere with privacy expectations, do not
undermine the public acceptability of military
service, and do no present any special security
concerns.
I would note that in the government's opening
statement, the government recited verbatim, I
believe, the findings of Congress in 10 U.S.C.
section 654, findings which, we would submit, go
directly to the issue of whether or not
statements of homosexual orientation are
consistent or are not consistent with the
overall objectives and missions of the military,
including the United States Navy. I think those
            107
        are issues that have been fairly raised by the
        government in it's opening statement. I think
        they have been fairly raised by the government
        in its cross-examination of the witnesses,
        including both Commander Luigart and Lieutenant
        Suko, and I think for these reasons Dr. Korb's
        expert testimony about the specific issue of
        whether Lieutenant Thorne's statements about his
        sexual orientation fall within or outside of the
        policy would be relevant to this proceeding and
        would assist the Board in its tasks. I'd note
        in closing, as Major Stutzel is aware, the
        standards of relevancy in this proceeding are
        considerably looser than they would be in formal
        legal proceedings.
AREC:   Just two points, Major Stutzel and Mr.
        President. Number one, reading the declaration
        of Dr. Korb and previous testimony, and based on
        the proffer of counsel here, it appears that
        much of his testimony is going to be presented
        to attack the basis for the policy, the very
        basis that Congress laid out, and that's why
        Lieutenant Dutton read that to you in his
        opening statement. That's a finding of
        Congress. That's not a province for anything
        that this Board can do anything about. Our job
        is to follow the law and follow the regulations.
        Therefore, anything Dr. Korb would have to say
        about the relevance of any of those particular
        findings of Congress or any of the basis for the
        regulations is not relevant to this proceeding
        here.
        As to his ability to say whether or not
        Lieutenant Thorne's statement that he made to
        his Commander is predictive of Lieutenant
        Thorne's homosexual conduct, that is why we're
        here. We believe at this point the government
        has presented enough evidence to meet our burden
        that Lieutenant Thorne made a statement and at a
        minimum at this point the rebuttal presumption
        aspects of the policy are in effect, and without
        tying anything he has to say to that--to
        rebutting Lieutenant Thorne's statement, not
        what that statement means because we know what
                    108
               it says. The regulation says that once he makes
               that statement he has to rebut the presumption
               and show that he does not have the propensity or
               intent to engage in acts. Dr. Korb's testimony
               is just going to be in general terms, if I take
               it properly, that, based on Lieutenant Thorne's
               record, which we already have provided in the
               record, based on that record that it may not
               mean what the regulations says it means. And
               that's not the province of this hearing either.
               It's up to the members to decide what he meant
               by that, and Dr. Korb's testimony is not going
               to help either way to decide whether we have met
               our burden under the regulation and whether or
               not Lieutenant Thorne's statement or any
               evidence he may present successfully rebuts the
               presumption that has been raised so far with the
               evidence.
MBR [MR. Z]:   If I could briefly respond, Dr. Korb's testimony
               is going to be particularized if he appears as a
               live witness, that is, he is not going to offer
               general criticisms of the new policy or explore
               its asserted rationale. Rather his testimony is
               going to be directed at the specific statements
               that Lieutenant Thorne is said to have made, and
               he is going to assess whether those statements
               themselves indicate a propensity to engage in
               homosexual conduct, evidence an intent to do so,
               or otherwise undermine the military mission in
               ways that the government has already put at
               issue.
               I would note that Dr. Korb has testified in at
               least two administrative discharge hearings that
               I am aware of. Colonel Cammermeyer's discharge
               hearing and Lieutenant Dunning's administrative
               separation proceeding. And, indeed, Dr. Korb's
               testimony in Colonel Cammermeyer's
               administrative proceeding was used to a
               considerable extent by the Federal District
               Court Judge who recently, I believe last month,
               ruled in Colonel Cammermeyer's favor that the
               old regulations were unconstitutional and
               granted her motion for preliminary injunction,
               reinstated her in the Armed Services.
                           109
                    So for all those reasons I think that the kind
                    of testimony we would expect from this witness
                    would be classic expert testimony about the
                    facts of this case, statements made by the
                    respondent in this case, and what those
                    statements mean in the overall context of the
                    situation in which they were made and under the
                    applicable law. And I think that there's no
                    question but that Dr. Korb's evaluation would be
                    of assistance to the Board in making its
                    determination. The Board is free, of course, to
                    give whatever weight it deems Dr. Korb's
                    testimony deserves according to how credible a
                    witness he is and how persuaded they are by his
                    arguments. But to deny the Board the
                    opportunity to even hear Dr. Korb talk at all
                    would seem to me a disservice to the
                    proceedings, to the Board, and it would be
                    fundamentally unfair to Lieutenant Thorne.
LA:                 Any other comments, Major Duffy?
AREC:               No, sir.
LA:                 Mr. Ziegler, as I understand it then Dr. Korb
                    would offer evidence which, in your opinion,
                    which you're offering as relevant to the issue
                    of whether or not the statement made by the
                    respondent should be--Board determine that he
                    made his statement is indicative of conduct or
                    indicates a propensity for conduct so it goes to
                    that first prong there as----
CC [MR. ZIEGLER]:   That is certainly one of the opinions that we
                    expect Dr. Korb to make.
AREC:               If I may, sir, if that is what he is going to
                    say, then the law, the regulation and the law
                    says that what he said, if the Board finds that
                    he said it in that way, does give rise to that
                    presumption. Unless Dr. Korb is going to be
                    used to rebut the presumption, then what he has
                    to say is not relevant. We're not here to argue
                    about the constitutionality of the policy.
                    That's for a different forum.

                                110
LA:                 Understanding that, Major Duffy, I don't believe
                    that's what Mr. Ziegler said the witness is
                    going to testify to. Also, I'm not sure I
                    exactly agree with the characterization of the
                    regulation. It says homosexual conduct, which,
                    of course, is the basis under the regulation for
                    separation from naval service, includes, in
                    pertinent part here, a statement that
                    demonstrates a propensity or intent. And, as I
                    understand it, you're offering the good Doctor's
                    testimony on the issue of whether or not this
                    statement, in fact, demonstrates that
                    propensity. Is that a correct characterization
                    of your proffer?
CC [MR. ZIEGLER]:   That's fair, Major.
LA:                 I have no great desire to extend the life of the
                    hearing, nor do I presume the respondent does
                    either. Nevertheless, it seems to me without
                    hearing the testimony that at least the proffer
                    with regard to that aspect of it meets the
                    limited requirements of materiality and
                    relevance that govern a Board of this nature.
                    So, in light of that I would allow Dr. Korb to
                    testify. I cannot require the Board to extend
                    its time till then to meet or tell it when to
                    meet and I'll be here when they want to. But it
                    seems to me based on the proffer, sir, that Dr.
                    Korb's testimony has some relevance to your
                    deliberations, and, as Mr. Ziegler pointed out,
                    how much weight you decide to give it, having
                    heard it, is totally within your province.
                    I would state, and I think it is fairly obvious
                    to both parties already, that the
                    constitutionality and the appropriateness of the
                    policy which has been established by the
                    Department of Defense and the Secretary of the
                    Navy through is instructions that govern this
                    particular proceeding are not relevant to the
                    Board. And you indicated already that you
                    didn't intend to pursue that particularly at
                    this forum as a matter of evidence here. Those
                    aspects of statements that get into those types
                    of matters certainly may be attached to the
                                111
                   record should you desire to submit those types
                   of things.
CC [MR. LEE]:      Captain Cook, I think we've indicated that Dr.
                   Korb would not be available until Wednesday
                   morning. The rest of our--the balance of our
                   case will consist of putting in evidence,
                   declarations of other expert witnesses, with a
                   brief characterization by us of those
                   declarations, and a number of other documents,
                   mostly government reports. The rest of our case
                   will go in very quickly, if you can predict any
                   of these things. But what I wanted to suggest
                   is perhaps it would be the best utilization of
                   your time, our time, if we did not meet--recess
                   throughout the day tomorrow and met again on
                   Wednesday, and concluded the hearing on
                   Wednesday.
MBR [CAPT COOK]:   Does the recorder pose any objection to that?
REC:               One moment, sir.    [Pause]
LA:                Captain Cook, I would just comment based on past
                   experience that there is at least some
                   potential, that may be anticipating this, having
                   worked with Lieutenant Dutton at a previous
                   Board, that there will be some objections to
                   some of the documents that I've had a chance to,
                   you know, peruse, and it could take--while I
                   don't necessarily think it is going to take all
                   day to go through those documents, my
                   recollection was from the last Board it took us
                   about half a day. Is that a fair
                   characterization?
REC:               That's my memory.
LA:                About several hours of proffers of relevance
                   with regard to particular matters. Some of them
                   look familiar as exact copies of the same thing
                   that we saw in the last Board. I'm not sure. I
                   haven't looked through the entire items yet.
REC:               It could take some time. There's certainly over
                   a hundred exhibits that the respondent has
                               112
                   proposed to offer before the Board.
LA:                 I was going to say, though, I'm not necessarily
                    sure that that was----
CC [MR. LEE]:      Sixty some.
REC:               Okay, well, some substantial number. I'm not
                   exactly sure how it stands at this point. I
                   received a lot of documents in advance.
CC [MR. LEE]:      We are prepared to be here tomorrow. It would
                   be my preference if the Board is available to
                   meet tomorrow morning at least to go through the
                   documents, particularly because if the testimony
                   or the case takes some time on Wednesday, we
                   want to give you plenty of time to deliberate as
                   well, without dragging it out.
MBR [CAPT COOK]:    Is the morning or the afternoon most preferable?
REC:               The government stands at your convenience, sir.
CC [MR. LEE]:       I don't care.
MBR [CAPT COOK]:   Okay, having heard the opinions of all, I would
                   like to put the Board into recess to reconvene
                   at 1300 tomorrow. I would also ask that the
                   recorder have prepared the additional copies of
                   those documents in order that--perhaps not later
                   than 10:00 tomorrow morning they'd be available
                   for us to review.
REC:               If I may, sir, I have them here. I believe
                   there is one document left to duplicate. May I
                   publish the copies here.
[Copies of the government exhibits were provided to the members.]
REC:               Having looked through them quickly, I think the
                   service record still needs to be copied, and if
                   you have five minutes after we recess I'll have
                   it.
MBR [CAPT COOK]:   We'd like to come over tomorrow morning and
                   spend some time and go through these, and get
                                 113
                   ourselves more familiar with the issues at hand
                   as we heard the subsequent testimony. So we
                   will stand in recess until 1300 tomorrow.
[The Board recessed at 1820 hours, 11 July 1994.]
                              * * * *




                                114
                            SECOND DAY

[The Board was called to order at 1310 hours, 12 July 1994. All
parties previously present were once again present.]
MBR [CAPT COOK]:   Please be seated. The Board is back in session,
                   but before proceeding with the particulars on
                   today's agenda, there is one matter that I'd
                   like to put on the record. And that is that in
                   reviewing the list yesterday afternoon of the
                   defense team, I think it is appropriate that I
                   let the government know one of the members is a
                   long standing acquaintance, and that's Ms. Dolly
                   Hauck. I have known her in excess of 20 years.
                   I have not had any correspondence or contact
                   with her the last 5 years, nor have I ever
                   discussed this case. But I think it is
                   appropriate that you be aware of that.
REC:               If I could just ask one or two questions in voir
                   dire. The first question is, you said you
                   haven't had any contact with her in the last 5
                   years, is that right?
MBR [CAPT COOK]:   No, maybe longer.
REC:               What were the natures of your contacts previous
                   to that?
MBR [CAPT COOK]:   We were friends. Her family and my family, we
                   were mutually stationed together at Patuxent
                   River, Maryland, and also at Whidbey Island,
                   Washington. We've been on ski trips together.
                   We've stayed at each other homes, and their
                   children babysat our children. But when Rick
                   went into the astronaut program and I was
                   assigned here in Washington and out to Whidbey
                   Island, we had not been in touch since that
                   time. This was the early '80's. I couldn't be
                   specific in a year.
REC:               Does your acquaintance with Ms. Hauck in any way
                   affect your impartiality at this Board?
MBR [CAPT COOK]:   Absolutely not.
                               115
REC:               I have no further voir dire.
CC [MR. LEE]:      I'll just say we haven't learned anything useful
                   from her about you, Captain Cook.
MBR [CAPT COOK]:   Well, when I knew her, she was a realtor not a
                   lawyer. So I just wanted to get that matter on
                   the record. Major, proceed.
LA:                Sir, before we continue, something occurred to
                   me--actually it occurred to me yesterday, but I
                   failed to do it at the end of the day, and that
                   was in light of what I anticipated at
                   yesterday's hearing that there would be fairly
                   substantial press coverage, I should have
                   instructed you that you should have done
                   everything you could to avoid that. And, of
                   course, anything that you've read in the paper,
                   anything that I saw was pretty much factual and
                   straight forward, but in any case, from here on
                   out, please, if you've got the TV on or articles
                   in the paper, Early Bird, matters such as that,
                   you should skip over anything that relates to
                   the case before you.
                   And I believe now we are ready.   Mr. Lee, your
                   exhibits.
CC [MR. LEE]:      Major Stutzel, what we would propose to do, and
                   using the index, too, there are a set of
                   exhibits that we provided you and counsel
                   previously, is just go through them, section by
                   section, and then, I guess we could provide an
                   opportunity to the recorder to make objections
                   individually. For example, section A has been
                   already admitted, that is Exhibit 1 through 13,
                   and what I would next propose to do is to offer
                   in evidence those set forth in section B of the
                   index, that would be Exhibits 14 through 28.
                   And I would stop there so that we would have a
                   manageable piece and the recorder could then
                   make objections one by one to those set forth in
                   section B, beginning with 14, if that's
                   acceptable.
LA:                That sounds like a good way of handling it.
                               116
CC [MR. LEE]:    Then I hereby offer in evidence Defense Exhibits
                 14 through 28.
LA:              Are there objections to any of those exhibits?
AREC:            Objections to all but Exhibit 24, which is the
                 declaration of Lieutenant Colonel Charles
                 Magness, so far as that declaration is offered
                 to the military character of Lieutenant Thorne.
                 Any comments he may have inside that declaration
                 as to the--whether the policy is a good policy
                 or not, we object to that part of the
                 declaration, which is part of the last paragraph
                 of Lieutenant Colonel Magness' declaration.
MBR [MR. LEE]:   Major Stutzel, Captain Cook, I'd like to respond
                 seriatim, and, Mr. Ziegler and myself will share
                 this burden. I will do some and he'll do
                 others. Beginning, then, with the declaration
                 and accompanying curriculum vitae of Dr. Michael
                 Carrera. The relevance of this exhibit is that
                 it supports the position that Lieutenant
                 Thorne's statements are not, in fact, conduct,
                 and not predictive of future conduct. Dr.
                 Carrera is an expert in human sexuality and sex
                 education. He's published books in this area
                 and his experience is set forth in the
                 curriculum vitae. It's a very impressive
                 career, and he's, in fact, one of the very
                 leading experts in the area of human sexuality.
                 The testimony that he would provide with this
                 declaration would provide the Board background
                 and opinion testimony, expert opinion testimony
                 for consideration of and understanding
                 Lieutenant Thorne's statement. For example, his
                 declaration would establish that homosexuality
                 is not a matter of choice, which I addressed in
                 voir dire and in my opening statement. The
                 declaration would establish that there is not a
                 difference between homosexuals and heterosexuals
                 in terms of those characteristics that go into
                 leadership, as that concept has been developed
                 and applied in the Navy over the years, in terms
                 of loyalty, courage, discipline. And related to
                 that is that it is not a mental disease or
                             117
        disorder, and hasn't been considered as such or
        treated as such since at least 1975.
        The declaration would establish the ability of
        homosexuals, such as Lieutenant Thorne, to
        utilize military training to the same extent and
        degree as heterosexuals. The declaration would
        establish specifically that Lieutenant Thorne's
        statements are not about homosexual conduct and
        are not predictive of future conduct. And that
        in his opinion, his expert opinion, such an
        inference is not scientifically possible, but
        is, in fact, based upon false stereotypes. On
        the contrary, Lieutenant Thorne's statements and
        conduct would break down those stereotypes, and
        that's been demonstrated, in fact, by his
        recent --most recent tour of service. His
        statement and his conduct has broken down that
        stereotype as it may have obtained at NAVAIR
        Systems.
        Finally, the declaration by Dr. Carrera would
        establish that a contrary interpretation of his
        statements, that is of Lieutenant Thorne's
        statements, and a requirement that he not make
        them--not make such a statement identifying who
        he is and that he lie about who he is, would be,
        in fact, dehumanizing and injurious to his or
        any other person's mental health. That's my
        statement with respect to the relevance of Dr.
        Carrera's testimony.
LA:     Comments, Major Duffy?
AREC:   Yes, sir. At issue here today are just--you
        just have two issues in front of us that we have
        to decide, and all the evidence presented has to
        go to these issues. The first one is, has
        Lieutenant Thorne made a statement or statements
        which directly--those statements directly would
        be used as evidence that he has propensity or
        intent to engage in homosexual acts. That's
        one. The second issue is, has he made a
        statement that he is homosexual, and if he's
        made that statement that he's homosexual, he has
        raised--by making that statement he has raised
                    118
                the presumption that he has the propensity or
                intent to commit homosexual acts. And evidence
                --he can then present evidence that would rebut
                that presumption raised by his statement that he
                is a homosexual. And that's clearly laid out in
                DOD Instruction 1332.30 and in the CNO message,
                in paragraph 8 of the CNO message.
                This declaration attacks the underpinnings of
                the statute and the policy, and questions
                whether the policy itself is a rational policy.
                And the statements that it is dehumanizing, the
                statement that it is at odds with psychological
                and psychiatric teaching is an attack on the
                policy itself and does not give us any
                illumination at all as to whether Lieutenant
                Thorne made a statement and what those
                statements mean. It just tells us that the
                policy itself-- that this person doesn't agree
                with the policy, is basically what it says, and
                what the findings of Congress has laid out in
                the statute. And that's why we're objecting to
                Exhibits 15--14 and 15, that they're not
                relevant to our proceeding here today as to
                whether the evidence produced by the government
                either is direct evidence of homosexual acts by
                Lieutenant Thorne or evidence that he made a
                statement that he's homosexual, which gives rise
                to the rebuttable presumption contained in the
                DOD and Navy instructions.
CC [MR. LEE]:   I would mention that there is one other ground
                of relevancy, and that is that one of the things
                that the Board is called upon to do here is to
                determine not only whether he should be
                discharged but the character of that discharge.
                And all of these expert statements, with respect
                to human sexuality and homosexual orientation,
                what it means, are very relevant to the Board's
                consideration of who Tracy Thorne is, what kind
                of a person he is, and what it means to be gay,
                to have homosexual orientation. Without that
                understanding they could hardly be expected to
                characterize the discharge.
                With respect to the narrow issue as cast by the
                            119
assistant recorder, I'd like to suggest another
ground on which all of these expert statement in
section B are, in fact, relevant. As I
indicated when I first stood up, they do support
the position that Lieutenant Thorne's statement
is not conduct, and is not, more importantly,
predictive of conduct. That is, it doesn't
indicate a disposition to engage in sexual acts.
It is important in addressing that issue that I
not only be able to seek to prove that with
direct evidence, but that I be permitted to do
it indirectly. And that I be permitted to
address those predispositions of the Board
members that may affect my ability to persuade
them about the meaning, the interpretation that
ought to be placed upon Lieutenant Thorne's
statement. What I'm talking about is the
stereotypes, and I don't mean to disparage these
officers in any sense, but the stereotypes about
homosexuality are fairly broadcast throughout
the military. This was found in the Rand
Report. This was apparent in the military
working group when it prepared its findings and
statement with respect to service by homosexuals
in the service.
In the course of my voir dire, and Captain Smith
I don't mean to focus on you particularly, but
we did have a discussion about the question of--
the controllability, the ability of a homosexual
to control his sexual urges. And we elicited,
not necessarily as a stereotype that Captain
Smith embraces, but the existence of a
stereotype with respect to that issue. These
declaration address those stereotypes and
establish that they are, in fact, false
stereotypes. And that much of our attitudes,
much of the persecution that going on with
respect to homosexuals is, in fact, based in
these stereotypes. And if I'm not permitted to
address these stereotypes, I'm really very
limited in my ability to persuade these officers
that the proper interpretation to place upon
Tracy Thorne's statements are simply
identification of who he is, and they do not
predict that he will engage in homosexual
            120
                conduct. I offer that as additional relevancy
                grounds for these expert opinions.
LA:             Any comment, Major Duffy?
AREC:           Yes, sir. As to any impact these declarations
                may have on the characterization of Lieutenant
                Thorne's service I'll waive the objection in all
                these declarations as to that issue alone, and
                say that they are admissible for that limited
                purpose. For any broader admission as to--other
                than characterization of service, I stand on the
                previous objection and just stand that Congress
                has already addressed in its statute and DOD
                regulation every issue raised by Lieutenant
                Thorne and his counsel as to what type of
                conduct is actionable under regulation. And any
                definitions to the contrary of that are against
                the statute and against-- against the statute and
                against the regulation itself, and that's not
                why we're here today. We're here just to
                determine whether Lieutenant Thorne's conduct
                and the statements that he made, what impact
                that have and whether they fit within the
                regulation, that's it. Any attacks on the
                regulation, which obviously Dr. Carrera does not
                agree with the regulation, are irrelevant to the
                proceeding today.
CC [MR. LEE):   I believe I already stated yesterday, we are not
                here attacking the regulations or the statute.
                We don't address that at all in this forum. The
                regulations, and he's not being discharged or
                sought to be discharged under the statute but
                pursuant to the regulation adopted at the
                direction of that statute. Those regulations
                do, in fact, require that a statement indicate a
                propensity to engage in acts, and it is that
                issue, whether or not those statements indicate
                a propensity to engage in homosexual conduct
                that all of these exhibits in section B address.
AREC:           If I may, sir, just--I think it is a
                mischaracterization. I think his statement--the
                instruction itself, section c, paragraph b, the
                officer has made a statement that he or she is
                            121
      homosexual or bi-sexual, or words to that
      effect, unless there is a further proof finding
      that the officer has demonstrated that he or she
      is not a person who engages or intends to engage
      or has a propensity to engage in or intends to
      engage in homosexual acts--that burden of proof
      is on Lieutenant Thorne, number one. And number
      two, this evidence does not go directly to
      Lieutenant Thorne and his propensity or intent
      engage in homosexual acts.
LA:   It may be appropriate to lay something of a
      foundation with regards to where my rulings will
      come from on all of these matters, that will
      both help direct argument and to maybe narrow in
      those argument somewhat, and also were serve, in
      a sense, as direction to the Board with regard
      to these exhibits. These are very lengthy
      exhibits. Just in going through them, and as
      been pointed out already in at least one of the
      exhibits, there will be matters which will give
      opinions with regards to the soundness of the
      current military policy. Now, if this were a
      court-martial, we would go through and cut and
      paste those type things out of exhibits that
      might otherwise be relevant. We're not going to
      do that here. If exhibits become admitted which
      contain portions that relate to the soundness
      of--or attacks on the current policy, those
      matters are not relevant to your consideration.
      As you're well aware and we've already
      discussed, it's not the purview of this Board to
      rule on the legality of the Navy policy
      regarding homosexual conduct.
      Having said that, and I won't bother going
      through that part of it again or necessarily
      pointing out in each exhibit whether or not
      there are those kinds of matters contained in
      those exhibits--having said that, then, the
      SECNAV instruction states that, of course, Rules
      of Evidence do not apply. And that oral or
      written material may be presented subject to
      reasonable restrictions on authenticity, which
      isn't a matter here, relevance, materiality, and
      competency. Those last three being a little
                  122
                more pertinent--to the point here.
                In a sense I agree with some of what Major Duffy
                has stated with regard to what is relevant, and
                that is the issues specifically before the Board
                which are: one, whether or not Lieutenant
                Thorne--let me read this from the right place so
                I don't get this wrong--whether or not he made a
                statement that demonstrates a propensity, intent
                to engage in homosexual--or intent to engage in
                homosexual acts, and if the determination is
                made that he has made such a statement that
                demonstrates that propensity or intent, whether
                he has rebutted the presumption setup by that
                statement, that, in fact, he would act on that
                propensity. In light of that, I think expert
                testimony with regards to the issue of whether
                or not someone who makes a statement as to
                orientation may or may not act out that
                orientation in conduct is certainly relevant.
                As I understood Mr. Lee's proffer with regard to
                this exhibit, this exhibit goes, at least in
                part, towards that matter. Is that----
CC [MR. LEE]:   That's a correct understanding, sir.
LA:             In light of that then I will allow Exhibits 14
                and 15 to be considered by the members. Does
                that help direct the kinds of things--I'm not
                necessarily saying that that's the only relevant
                area, but that that's the kind of thing I'm
                looking for, and if we can point out essentially
                something that is assisting the members in
                making that determination, whether those types
                of things occur, then they'll be able to
                consider the evidence.
CC [MR. LEE]:   That focuses me. Let me show you how brief I
                can be. Let me address the next two exhibits,
                16 and 17, which relate to Dr. Gregory Herek,
                again, an expert in the field of psychology.
                His declaration and the accompanying curriculum
                vitea would establish that identifying ones self
                as a homosexual, stating a homosexual
                orientation, does not, in fact, mean that the
                individual engages in sexual conduct. I have
                            123
        more to say, but I think I'm focused.
LA:     You seemed to have focused it pretty well, Mr.
        Lee.
AREC:   Sir, I have to take issue with one aspect of the
        policy here, and I just want to make sure it is
        very clear. The DOD instruction, 1332.3, which
        is the master instruction, says the Board has to
        make a finding under, again, section c,
        homosexual conduct, l(b), types of conduct. All
        we have to prove is that the officer made a
        statement he or she is homosexual, then the
        burden shifts to rebutting the presumption, the
        regulatory presumption encompassed by that
        statement. It's a rebuttal. It's not something
        that the government has to prove in this case.
        Once he makes that statement, the burden shifts
        to Lieutenant Thorne. If the sole purpose of
        this evidence is to attack the rebuttal
        presumption, then I object. However, if it is
        designed to boster any expected testimony of
        possibly Dr. Korb or Lieutenant Thorne, as we
        were told he would submit a declaration, then I
        can see the relevance of Dr. Herek's testimony
        as to what he could have meant by that
        statement, but only if there's some other
        evidence to hook it to. This standing in and of
        itself is not enough.
LA:     Maybe I'm losing something here in the
        translation. I was looking at the SECNAV--or
        excuse me, the ALNAV--NAVADMIN message, and now
        looking at the DOD message I still see the same
        language, and that says homosexual conduct is,
        in pertinent part, a statement that demonstrates
        a propensity to engage or intent to engage in
        homosexual acts.
AREC:   And my comment is that that is also modified by
        paragraph l(b) in the DOD instruction, and
        paragraph l(a) of the SECNAV instruction--excuse
        me, CNO message, that once the person makes the
        statement that they're homosexual, that then
        they have the burden of proof proving that they
        do not have a propensity or intent to commit
                    124
        homosexual acts.
LA:     Major, doesn't that sentence say when they make
        a statement that demonstrates a propensity or
        intent?
AREC:   No, the officer makes a statement that he or she
        is homosexual, in paragraph----
LA:     Where are you looking at now?
AREC:   Paragraph C(l)(b) of the DOD Instruction
        1332.30, and paragraph 8(b)(2) of the ALNAV
        message.
LA:     I think we may be picking nits here, Major
        Duffy. In the NAVADMIN message, in paragraph 3,
        it defines homosexual conduct as a statement
        that demonstrates a propensity or intent to
        engage in homosexual acts. Are you telling me
        that the Navy doesn't mean that's what it means.
        That's the definition of homosexual----
AREC:   Absolutely, sir, and I'm agreeing with you.   But
        it is also--you have to read it in context.   You
        have to read----
LA:     We're not talking about the rebuttable
        presumption. The first aspect of the statement
        is that it has to show a propensity. Now, you
        can arguing that saying I am a homosexual in and
        of itself does that, and that's fine. That's
        for you to argue. And it's for them to argue
        that it doesn't. And that's the definition of
        homosexual statement out of the order.
AREC:   And when the order then covers what types of
        evidence is presented, it says that when a
        person makes a statement that they are
        homosexual, they are a homosexual, then the
        burden shifts to them to prove that they do not
        have a propensity----
LA:     Well, the burden is on the respondent in this
        case from the get-go. He has to show cause for
        retention. Additionally-- and I'm not saying
                    125
       that you're wrong about rebut--that the burden
       is on him to rebut the presumption that he will
       not act in accordance with that propensity if
       it's there. I'm just saying that my reading of
       the definition of statement says that the
       statement has to indicate the propensity, and
       that's what a statement that subjects to someone
       to dismissal is--not dismissal but discharge.
REC:   Sir, I feel the need to interject here at this
       point, not as to the issue of the document
       itself. I will leave that with the Major. I
       just want to make sure it is clear to the legal
       advisor and that we're all not getting confused,
       that there is actually two portions of the CNO
       instruction concerning statements that can lead
       an individual to be discharged. One is, as the
       definition of conduct states, a statement in and
       of itself indicates a propensity to commit
       homosexual acts. The second is a statement that
       an individual is a homosexual which raises a
       presumption that homosexual acts are committed
       or that the individual has the propensity to
       commit those acts. Those are two entirely
       different kinds of statements----
LA:    Excuse me, Lieutenant. The Secretary of the
       Navy, through the Chief of Naval Operations, has
       said, "Homosexual conduct is grounds for
       separation. Homosexual conduct includes
       homosexual acts, a statement by a member that
       demonstrates a propensity or intent to engage in
       homosexual acts, or a homosexual marriage or
       attempted marriage."
REC:   That's correct.
LA:    It doesn't say anything about a homosexual
       statement period.
REC:   Certainly it does, sir. If you read in
       paragraph 8(b)(2), it says, "If the officer has
       made a statement that he or she is a homosexual
       or bi-sexual...."
LA:    Referencing back to paragraph 1, which----
                   126
REC:                "....or words to that effect...."
LA:                ----establishes the policy for separation under
                   basis of a statement. There are not two
                   definitions in here, Lieutenant, of homosexual
                   statements. There is one. It's included in the
                   front and it is included in the basic paragraph
                   under paragraph 8.
REC:               Actually, the----
LA.:               That's not something I'm going to discuss with
                   you. Lieutenant Dutton, I'm going to instruct
                   the members right out of this order and the
                   federal courts will decide what this order
                   means, but we're not going to stand here and
                   argue it. Why don't we go on to whether or not
                   these things are going to be admitted?
REC:               Sir, I have----
LA:                Thank you.
REC:               Sir, I have a responsibility----
LA:                Thank you, Lieutenant.
REC:               -----to put on the record the government's case.
LA:                Thank you. Object--do you have an objection to
                   my instructions?
REC:               I certainly do.     Perhaps----
LA:                Okay, thank you.
REC:               ----at this point I'd like to voir dire the
                   member----
LA:                Have a seat, please, Lieutenant.
REC:               I'd like to voir dire the legal advisor.
LA:                Let's take a recess.     Captain Cook, if we may.
MBR [CAPT COOK]:   The Board will stand in recess to reconvene in
                                127
                    10 minutes.
[The Board recessed at 1535 hours, 12 July 1994.]
                              * * * *

[The Board was called to order at 1545 hours, 12 July 1994. All
parties previously present were once again present.]
MBR [CAPT COOK]:    Okay, the Board is back in session.
LA:                 Sir, I apologize for our little lawyer
                    disagreement with regards to the law. I think
                    we've discussed that.
MBR [CAPT COOK]:    Well, you've raised questions in our mind, too,
                    so we'd like to see that resolved.
LA:                 I think all of the legal issues will become
                    clear through both instructions on the order and
                    argument of the respective sides of counsel as
                    to their interpretations of what that means, and
                    they're certainly entitled to, you know, within
                    certain limits--understand that there are
                    differences of interpretation as to what
                    particular words might mean in an order. And
                    that's kind of where we're standing at this
                    point. We were looking at Dr. Herek's two
                    exhibits, I believe.
CC [MR. LEE]:       There's been no ruling, Your Honor.
LA:                 Weren't you making two points, Major Duffy, or
                    had you completed that?
AREC:               I got lost in the flurry there. I believe I've
                    made all the necessary points. Dr. Herek's
                    testimony, in and of itself, was the point that
                    I made, without being connected to any rebuttal
                    evidence as to the nature of Thorne's statement
                    itself is not relevant to the proceedings here
                    today. It has to be tied into something.
LA:                 Mr. Lee, could you point me a little more
                    specifically in the declaration to----

                                  128
CC [MR. LEE]:   Let me reference you to paragraphs 5 and 6 of
                the declaration.
LA:             I will admit and allow the members of the Board
                to consider those two exhibits. Exhibit 16, a
                little more specifically than I noticed in the
                other document, does, to some degree, discuss
                the soundness of the policy. As I instructed
                you before, that's not within the purview of the
                Board's decisions. For those parts of the
                document which are not relevant to the matters
                we discussed before, they should not be
                considered. Likewise, I'll remind you again,
                and I think I mentioned this yesterday, that
                once admitted, of course, how much weight or how
                little weight is given to any exhibit or any
                material, of course, is within your discretion,
                with regards to that. I don't point that out
                specifically at this point in time with regard
                to the respondent's evidence, but that's true of
                any evidence that's been presented, including
                the government's case. Sir?
CC [MR. LEE]:   Major Stutzel, with respect to your instruction
                limiting their consideration of materials, I
                don't object to that. I think that's a correct
                instruction. However, I would ask, perhaps,
                that it be modified or limited so that they
                would be permitted to consider those portions
                not for whether the policy is good, bad, or to
                be accepted here. It should be accepted here,
                but for the proposition that there is an impact
                from stereotypes, and those stereotypes are, in
                fact, false. That is, that is the report of the
                testimony and they may consider that to the
                extent that they wish.
LA:             Did I understand you before to indicate that
                were documents of this sort to have some
                relevance with regard to characterization of
                service and what----
AREC:           Only as to characterization of service, yes,
                sir. As to meanings of statements, things like
                that, we believe the regulations speak for
                themselves.
                            129
LA:                 And I think that's the kind of thing that you're
                    going to in that sense?
CC [MR. LEE]:       The stereotyping argument that I made did not go
                    to characterization of the discharge, but rather
                    to the interpretation to be placed upon the
                    statement. If I can refer again to my exchange
                    with Captain Smith, and the stereotype that
                    homosexuals cannot control their sexual urges
                    would permit an inference, if it were proved,
                    that merely saying "I'm a homosexual" infers a
                    propensity to engage in conduct. What I want to
                    address through the expert testimony is that
                    that stereotype is false, and, thus, an
                    inference of that nature is not proper.
MBR [CAPT SMITH]:   Let me set the record straight on something.
                    That wasn't my intent in our exchange that we
                    had yesterday. What I was attempting to say is
                    that regardless of your sexual orientation you
                    can no more or no less control it more so than
                    the other persuasion.
CC [MR. LEE]:       I believe I understood your comment in   that
                    sense, and I apologize for using you.    It's just
                    a mental tick. It reminds me of where    we
                    discussed it. I raised the issue; you    did not;
                    and I understood your comment.
LA:                 Again, sir, as we rather heatedly discussed
                    before, for what relevance these documents would
                    have towards any, you know, towards your
                    determination of whether or not a statement if,
                    in fact, occurred indicates a propensity to act
                    upon that statement and for what relevance it
                    might have with regards to whether or not a
                    presumption that action will occur based upon
                    that statement, of course, it would be relevant.
AREC:               Sir, as to those statements anything as to
                    stereotypes of homosexuals, obviously, again I
                    will stand on the--we, obviously, have some
                    disagreement as to the content of the
                    regulations involved here today--I will stand on
                    the interpretation of both as to what the
                    statements mean. And that's what we're stuck
                                130
                with. What societal prejudices may or may not
                influence people and whether homosexuals pray
                upon other people or not is not an issue here.
                At issue here is what Lieutenant Thorne's
                statement meant and only on what Lieutenant
                Thorne mean and not some hypothetical person
                that--it's only relevant to that effect.
LA:             Well, I suppose I agree in the sense   that any
                expert witness is always taking some   kind of
                hypothetical type situation and--for   whichever
                side that witness is testifying, and   attempting
                to lay that hypothesis over whatever   it is he's
                referring.
AREC:           And my objection is that there is no tie in Dr.
                Herek's declaration to Lieutenant Thorne.
LA:             Well, again, in light of the Rules of Evidence
                at this matter, I think through argument--I
                think we get back to the general definitional
                aspect of this whole regulation as to whether or
                not ultimately the statement is indicative of
                conduct. And--and, you know, that, obviously,
                is a point of contention between the parties.
                We're now to--let's see, let me make sure I get
                my numbers correct here. We're now----
CC [MR. LEE]:   18 and 19.
LA:             18 and 19?
CC [MR. LEE]:   Correct.
LA:             15--17 and 18--excuse me, 16 and 17 are admitted
                for the Board's consideration.
CC [MR. LEE):   Moving on to 18 and 19. This is a declaration
                of Andrew Humm, who's an expert in sexual
                orientation and discrimination based upon sexual
                orientation. It established what Lieutenant
                Thorne--that Lieutenant Thorne speaks in his
                declarations only of his orientation and not
                propensity and conduct. And I would refer you,
                for ease of reference, to paragraph 2 for
                example of his declaration. And I would request
                             131
                    the same type of instruction with respect to the
                    remainder of the declaration.
LA:                 Major Duffy?
AREC:               Sir, I'd say again, without wasting any time,
                    same objection I raised before. It is our
                    belief that the regulation is clear that once a
                    person makes a statement that they're homosexual
                    that indicates-- takes the presumption that they
                    have the propensity or intent to engage in
                    homosexual acts. This declaration merely states
                    that Lieutenant Thorne's statement that he was a
                    homosexual does not do that, and we believe that
                    that's contrary to that portion of the
                    regulation that says that a statement that the
                    person is homosexual indicates propensity or
                    intent to engage in homosexual acts. We'd raise
                    our objection on that, and as to the rest of the
                    declaration, although, Mr. Lee certainly talked
                    about the limiting instruction that would apply
                    to the rest of the declaration.
LA:                 Exhibits 18 and 19 are admitted with the same
                    limitations as the previous exhibits.
CC [MR. ZIEGLER]:   I think that brings us to Exhibits 20 and 21.
                    Yesterday I spent some time making a proffer of
                    what Dr. Korb's testimony would be, and I
                    believe Major Stutzel ruled that he would be
                    permitted to testify tomorrow. The declaration,
                    that's Exhibit 20, and the resume, curriculum
                    vitae, that's Exhibit 21, are offered in support
                    of the testimony that we would expect Dr. Korb
                    to give. I would not, in particular, that
                    paragraphs 9, 10 and 27 of Dr. Korb's
                    declaration are specific to the issues.
                    Paragraph 27 is specific to the issue of Doctor-
                    -excuse me, Lieutenant Thorne's service record
                    and his fitness to serve in the United States
                    Navy based on his performance, and at a minimum
                    would go to issues of characterization of
                    discharge. But, more generally, paragraphs 9
                    and 10 go to the specific issue of whether
                    statements of sexual orientation are predictive
                    of conduct. And I think the remainder of Dr.
                                   132
                    Korb's declaration would go to the basis for his
                    opinion, which I think he would be permitted to
                    articulate once he had expressed his more
                    specific opinion.
AREC:               At this point, although it is not cumulative
                    now, I suspect it will be cumulative tomorrow,
                    when Dr. Korb will be here in person to testify,
                    and we can make the necessary objections at that
                    time. We particularly object to paragraphs 15,
                    16, 17, 18, 19, 20, 21, 22, 23, 24, and every
                    paragraph following the declaration, because,
                    then again, that attacks the underpinnings of
                    the regulations and the statute itself. In
                    fact, Dr. Korb testified before Congress
                    substantially the same and he testified in this
                    declaration. Dr. Korb's opinion as to whether
                    it is proper for the Navy to discharge
                    Lieutenant Thorne is absolutely irrelevant,
                    despite his qualifications, and I object to that
                    part of the declaration because that's what
                    we're here to find out, as to whether he's
                    within the regulation or not. If he is, he
                    stays; if he's not, he goes.
LA:                 You ran through the number rather quickly.   You
                    started with 15 and----
AREC:               15 forward. Prior to that, again, he talks
                    about the difference between misconduct and
                    conduct, but that's something that's addressed
                    in the regulation itself. And, of course, we
                    agree with the statement that homosexual status
                    alone is not sufficient to discharge, which is
                    contained in paragraph 11. Any testimony he
                    might have about the former policy is totally
                    irrelevant, also. So only as to his--anything
                    he may be able to say about Lieutenant Thorne's
                    statement, in particular, as it applies to
                    Lieutenant Thorne would possibly be relevant to
                    rebut the presumption raised by his statement
                    that he's a homosexual, if it, indeed, ties to
                    Lieutenant Thorne and is not in the abstract.
CC [MR. ZIEGLER]:   Briefly, Major, the only response I would have
                    is to the extent that Dr. Korb is permitted to
                                133
                    give specific opinion testimony as to whether or
                    not a statement orientation is predictive of
                    conduct or not, and I believe I understood that
                    to be your ruling yesterday, I think that
                    anything else he may offer, such as some of the
                    statements he makes in paragraphs 15, 16, 17 and
                    18 and so on, by way of explanation as to how he
                    arrived at the expert opinion and judgment would
                    be admissible. I think the Board, in that
                    context, would be entitled to exercise its
                    discretion as you instructed it as to whether or
                    not they find that persuasive or not persuasive,
                    but I think it would be, therefore, relevant.
LA:                 With regards to the objection as to the
                    cumulativeness, I'll overrule that objection in
                    light of the fact that we're talking about one
                    of the expert witnesses. If we were dealing
                    with all the expert witnesses, statements and
                    testimony it might be a different matter. But
                    since we're dealing with one, I'll allow the
                    members to consider Exhibits 20 and 21. Again,
                    gentlemen, the same limitations as previously
                    stated.
CC [MR. ZIEGLER]:   Exhibits 22 and 23 are respectively a
                    declaration of Dr. Robert MacCoun and his
                    curriculum vitae, which is 23. Dr. MacCoun is a
                    professor at the University of California. He
                    was one of the authors of the Rand study. The
                    Rand report was a report that was specifically
                    commissioned by the Secretary of Defense in the
                    context of the re-evaluation of the policy out
                    of which 10 U.S.C. section 654 and its
                    implementing regulations arose. For that reason
                    we would submit that anything contained in the
                    Rand report generally, and anything that one of
                    its authors, such as Dr. MacCoun, would have to
                    offer would be in the nature of admissions that
                    could considered by the Board as to either what
                    the policy means or the context in which the
                    policy, regulatory and factual context out of
                    which the policy arose.
                    The focus of Dr. MacCoun's declaration
                    specifically is that he and his colleagues at
                                134
                    the Rand Corporation studied the effect on unit
                    cohesion and morale of openly gay service
                    members, and they did that through a series of
                    steps, including primary research on the
                    experiences of foreign militaries who accepted
                    homosexual service members, as well as numerous
                    interviews with military experts. And the
                    conclusion of the declaration are that sexual
                    orientation and open acknowledgements of sexual
                    orientation did not have a deleterious effect on
                    unit cohesion and morale. Because that goes
                    directly to the issue of whether statements that
                    ones makes as to one's orientation, whether they
                    have an effect on you ability to perform within
                    the military context, we think would, in
                    addition, be relevant and admissible for that
                    reason.
AREC:               Sir, same objection basically as before. He
                    attacks in his declaration that the presence of
                    homosexuals in a military unit impact military
                    cohesion and takes issue with that in his
                    declaration and makes an argument as to what
                    could cure that. However, Congress has made an
                    explicit finding in the statute. DOD, also, in
                    its regulation, and the Navy in its regulation,
                    has made that determination for us, and it is
                    not something we're called to consider today.
LA:                 Mr. Ziegler, you're going to--I've perused Dr.
                    MacCoun's statement--you're going to need to be
                    a little more specific with regards to contents
                    of the document in this particular case. I
                    could not find anything that--in my first look-
                    through there--that touched the same things that
                    allowed me to admit the other documents. So if
                    you could be more----
CC [MR. ZIEGLER]:   Dr. MacCoun's testimony focuses on a slightly
                    different issue then we've seen in the prior
                    expert declarations. The prior expert
                    declarations of Drs. Carrera, Herek and Humm,
                    focused as experts in psychology and the meaning
                    of statements of sexual orientation. They
                    focused on the issue of what ones sexual
                    orientation and acknowledgements about it may
                                135
        say about your conduct. What Dr. MacCoun
        focuses on is whether people who makes
        statements within the military context of
        acknowledging their sexual orientation
        nevertheless function effectively, and, thereby,
        going to the issue of whether their conduct more
        generally is adversely impacted by their
        orientation. And I think for that reason, while
        it is a somewhat different focus, it's
        nevertheless certainly relevant to the issue
        before the Board. Again, I'd reiterate that--
        actually a second ground for admitting it, is
        that I think the recorder in some of the cross-
        examination of defense witnesses has opened the
        door to the issue about whether ones homosexual
        orientation does affect unit cohesion and
        morale. I remember examination that Lieutenant
        Dutton conducted of Lieutenant Suko as to
        whether walking hand-in-hand on a ship or
        whether other such conduct or the presence of
        homosexuals in the military context would
        adversely affect unit cohesion. I think that
        Dr. MacCoun's testimony would directly rebut any
        such suggestion.
AREC:   Sir, I certainly don't remember any question
        about walking hand-in-hand on board ship that
        Lieutenant Dutton asked on cross-examination.
        Even as it may, even if he had asked a specific
        witness who was making statements about
        Lieutenant Thorne's suitability or military
        character and its impact on a unit, this
        declaration merely is a conclusory fashion
        attacks the underpinning of the unit cohesion
        rationale policy--actually for the regulations
        and the statute. Because, therefore--it does
        nothing to help the members determine whether
        Lieutenant Thorne has made a statement that
        raises the presumption that he has the
        propensity or intent to commit homosexual acts.

LA:     Further comments? I'm going to sustain the
        recorder's objections to Exhibits 22 and 23 on
        the grounds of relevance.

                    136
CC [Mr. Z]:         Thank you, Major. I believe that with respect
                    to Exhibit 24 the assistant recorder indicated
                    that he has no objection as to what exhibit.
AREC:               24, except to the language where he talks about
                    the policy should be changed and what the policy
                    is based on, which is in paragraph 7 of the
                    declaration. I would move that it just not be
                    considered as opposed to striking it for
                    purposes of its admission.
CC [MR. ZIEGLER]:   That brings us to Exhibit 25, which is the
                    declaration of Dr. Robert Rankin and his CV is
                    attached as Respondent's Exhibit 26.
LA:                 Okay, just--just to make sure we've go the bases
                    covered there. Exhibit 24 is admitted, subject
                    to the limitations as indicated by Major Duffy.
                    It would be my ruling that the opinions with
                    regards to the policy, of course, are not
                    relevant. I'm sorry.
CC [MR. ZIEGLER]:   That's quite all right. Respondent's Exhibit
                    25, the declaration of Dr. Rankin. Dr. Rankin
                    is a retired Captain in the United States Naval
                    Reserves. He is the Chief of Psychiatry in
                    Mental Health Services at the VA Medical Center
                    in Oakland, and a fellow of the American
                    Psychiatric Association. He served on active
                    duty as a medical officer in the United States
                    Navy from '64 to '66, including a tour in
                    Vietnam, and has been in the Navy Reserves for
                    19 years. The substance of his testimony turns
                    on his professional counseling of service
                    members over the course of his service as a
                    psychiatrist who have issues pertaining to their
                    sexual orientation. The conclusions that Dr.
                    Rankin offers in his declaration are several,
                    including that known homosexuals have for years
                    served in all branches of the military and have
                    done so with distinction. That their
                    acknowledged status does not adversely affect
                    their ability to do their job. And, in
                    particular in paragraph 10 he offers opinions
                    with respect to the specific issue of whether or
                    not statements of orientation or one's
                                137
                orientation are predictive of conduct. In
                particular, I would refer the Board to the
                second to the last statement in paragraph 10
                where he offers that the fact that a sailor was
                attracted towards an individual of the same
                gender does not indicate an intention or a
                propensity to act upon those feelings. For all
                those reasons, we think that Dr. Rankin's
                testimony is relevant and should be admitted.
AREC:           Sir, the regulations clearly states that a
                person who states that their homosexual then has
                to prove that they have no propensity or intent
                to commit acts. Dr. Rankin's testimony, again,
                is, again, in the abstract with no relation to
                Lieutenant Thorne saying that a theoretical
                homosexual somewhere could possibly
                compartmentalize his sexual desires while on
                board ship--that he's seen it happen in the
                past. But as to whether he's examined
                Lieutenant Thorne and can make that conclusion
                about Lieutenant Thorne's statement, it is not
                in the declaration itself. Also, Dr. Rankin
                takes issue with the policy and the declaration,
                basically saying that it has to do--that it's
                not enforced, completely uniform, and that he,
                again, is talking about that that's in his
                experience which was an old policy. That has no
                relevance today. As to--he says nothing
                particularly about Lieutenant Thorne and whether
                Lieutenant Thorne has propensity or intent to
                commit homosexual acts, nor provides any
                illumination about his statement.
LA:             I'm not aware of any requirement that an expert
                witness necessarily have a direct relationship
                with the subject of his testimony, whether it be
                a court or admin processing or something of that
                nature. I'll allow the members of the Board to
                consider Dr. Rankin's statement. Again, with
                the same limitation as related to those other
                previous statements with regard to where he gets
                into his opinions on the policy.
CC [MR. LEE]:   Thank you. With respect to Exhibits 27 and 28,
                they are the declaration and curriculum vitae of
                            138
                Dr. Los Shawver, an expert in psychology and
                sexual identity. Her declaration establishes
                that identification of ones sexual orientation
                does not relate to sexual conduct or intent or
                desire to engage in sexual conduct. The
                declaration also establishes that persons who
                engage in sexual behavior cannot be
                distinguished from those who don't engage in
                sexual behavior based upon their self-
                identification as being heterosexual or
                homosexual. The two, the declaration and the
                conduct, are not identical and don't permit an
                inference of one from the other. And I would
                refer you to paragraphs 10 through 14,
                specifically, of that declaration.
AREC:           Particularly, the objection to Dr. Shawver is
                the same as to the others, and it says nothing
                to shed light on rebutting the presumption
                raised by Lieutenant Thorne's statement that
                he's a homosexual. She also attacks the privacy
                rationale, and some other rationale of the
                policy, and I would object. That's the standard
                objection I have. Most of these documents may
                contain one or two based on a certain
                interpretation of the regulation relevant tid-
                bits. Frequently they are prima facie attacks
                on the basis of a statute and the regulation,
                and I would object to all characterizations in
                there concerning the regulation and the basis
                for the regulation. And, since they have
                nothing to do with Lieutenant Thorne and his
                statement, I'd object, also, on those grounds.
LA:             Exhibits 27 and 28, again, admitted with the
                same--same limitations.
CC [MR. LEE]:   Major Stutzel, that concludes the exhibits set
                forth in Exhibit B. If we could continue to
                proceed in this manner, I'd like to now offer
                into evidence all those exhibits set forth in
                Section C of our index to exhibits, that's 29,
                30, and 31. Perhaps we can address all three of
                them at once. They have something of the same
                source and character. They are statements by
                medical professional organizations, the American
                            139
        Psychological Association, American Nurses
        Association and American Psychiatric
        Association, and so on. One is a declaration of
        a member of the American Psychological
        Association.
        The issue that's addressed by these three
        documents is, once again, how do we interpret
        the statement by Lieutenant Thorne, and
        interpretation is an issue here. Is it a
        statement that indicates a propensity to engage
        in sexual conduct? Most evidence that goes to
        such an issue, that is how do you interpret
        something, of necessity, must be indirect, and
        this is indirect evidence relating to that
        issue.
        First of all, the documents establish that
        homosexuality is not a mental disorder. They
        establish that people who declare themselves
        homosexuals have no less judgment capacity,
        reliability than heterosexuals. And, finally,
        it discusses again some of the stereotypes on
        the basis of which homosexuals have been reacted
        to and their statements interpreted in the past.
        What these things indicate about interpretation
        of Lieutenant Thorne's statement is this: He
        does have control of his sexual responses. He
        does have judgment capacity, and the kind of
        reliability that you would expect of a naval
        officer which would permit him to, in fact, as
        he says in one of his statements conform his
        conduct to the requirements of military law and
        regulations. And that is relevant to
        interpreting what he meant and what he intended
        when he declared himself a homosexual. He said
        in one of his statements, "Commander, I'm going
        to conform." And what these medical statements
        or statements by members of the medical
        profession permit the Board to do is infer
        credibility of Lieutenant Thorne's assertion to
        his Commander that, "I will conform my conduct."
        And that's the relevancy basis of these three
        documents.
AREC:   Sir, as to document 29, that just takes issue
                    140
                with the policy in and of itself, and on its
                face I don't think--it certainly does not meet
                the proffer offered by Mr. Lee. The same with
                Number 30. As to 31, the declaration of Mr.
                Anderson, it is really just a more detailed
                analysis as to what 29--excuse me, I'm sorry,
                31--what 20 and 30 have to say. They, in fact,
                attack the basis for the policy and that's, in
                my reading of them, is about all they do. They
                do not shed any light on when Lieutenant Thorne
                said in the news that he was homosexual and
                raised the presumption as to what the propensity
                and intent of him to commit homosexual acts and
                how he may rebut that, and, therefore, it is not
                relevant.
CC [MR. LEE]:   And to the extent, and I do admit   that the
                statements do address the policy,   but to the
                extent they do so, I would invite   the same
                instruction the legal advisor has   given in the
                past.
LA:             The objections to Exhibits 29, 30 and 31 are
                sustained. I could not find anything in there
                that, in my opinion, is directly relevant to the
                issue before the Board.
                Maybe this is a good time to discuss how to
                distribute things. Do we want to bust down the
                things or will we take it that upon instructions
                to the members, that the members skip binder
                number mum-de-frats, that they will, in fact, do
                so, and----
CC [MR. LEE]:   I'm prepared to break them down, but because
                they're not nice well bound documents, I would
                ask that they be submitted in their entirety
                with an instruction to the Board to ignore them.
                We would ask that those exhibits that have
                been--that have not been admitted do accompany
                the record as a proffer.
LA:             I was going to say that all those matters,
                obviously, would remain in the record for that
                purpose. Any objection to handling it that way,
                Major?
                            141
AREC:               Sir, I believe the three Captains can well
                    ignore the documents as per your instruction.
MBR [CAPT COOK]:    You gave them to us yesterday.
LA:                 That's true. I just wanted to make sure we had
                    that on the record.
AREC:               And, in fact, had you not been here, they would
                    have had to review the documents anyway.
LA:                 That's true, in deciding whether or not to
                    consider them. Good point. Okay, we're up to
                    32, moving right along.
CC [MR. ZIEGLER]:   This brings us, I believe, to Section D of the
                    respondent's exhibits which----
AREC:               I'm going to withdraw some objections here, so
                    we can go. 32, it is relevant only to civilian
                    employees for whatever purpose it may have.
                    Just because it is not relevant to uniform
                    services, I'll continue my objection to 32.
                    However, 33, that was already not objected to.
                    34, 35, 36, 37, I'll withdraw objections to.
LA:                 Let me make sure-- I'm getting confused as to
                    what you are and are not objecting to.
AREC:               32, I still stand in objection, sir.
LA:                 Okay, you're objecting to 32. 33, is the order,
                    so you're not objecting to that.
AREC:               I have never objecting to that. 34, 35--36, I
                    believe, was withdrawn--you intended to withdraw
                    36?
CC [MR. ZIEGLER]:   36, let me make sure. Yes, 36 was a clerical
                    mistake. It's redundant of other exhibits.
AREC:               And 37, I'll withdraw----
MBR [CAPT COOK]:    If I may, Major, the documents we've been
                    provided only go to 34.

                                142
AREC:     There are two other binders.


CC [MR. ZIEGLER]:   You're quite right.   We've only published volume
                    one to the Board.
LA:                 Why don't we finish out volume one here first,
                    and let's look at Exhibit 32, which, as I
                    understand it, is the last exhibit you have an
                    objection to in this binder. Let's see what
                    we've got.
AREC:               It's just totally irrelevant. It's a matter
                    of--to all civilian and department of Navy
                    employees. We're talking members of the uniform
                    services here, and a policy that applies only to
                    members of the uniform services. Therefore, any
                    action by the Secretary of the Navy as to
                    civilian members of the Department of the Navy
                    is irrelevant to this proceeding.
CC [MR. ZIEGLER]:   If I may, Major, Respondent's Exhibit 32, we
                    would submit is an admission of the Department
                    of the Navy. It is a directive from the
                    Secretary to all civilian departments of Navy
                    employees. And while it pertains to Navy policy
                    with respect to civilian employees it
                    specifically supports the notion that civilian
                    employees may be permitted to be hired and work
                    without regard to their sexual orientation. In
                    the last paragraph Secretary Dalton says, and I
                    quote, "I fully expect our civilian and military
                    managers to support these values in their work
                    place decisions." And we would suggest--and it
                    goes on to encourage them to maintain a
                    sensitivity to culture differences and value the
                    contribution each member of the team may make to
                    the accomplishment of our mission. And we would
                    submit that this is, at least in part, an
                    admission that even within the combined
                    civilian/military context that homosexual
                    orientation does not affect the overall
                    accomplishment of what the military seeks to do.
                    And for that reason is relevant.

                                143
LA:                 I'll sustain the recorder's objection to Exhibit
                    32 on grounds of relevance, and then allow the
                    document to be attached for whatever weight it
                    might have with regards to the Department of
                    Navy's policy to its uniform services as opposed
                    to civilian employees. Then 33 and 34 have been
                    admitted.
MBR [CAPT SMITH]:   In regards to 34, the copy that I have is
                    undated and unsigned.
LA:                 As is what I have here.
CC [MR. ZIEGLER]:   So far as we know, the original is undated and
                    not signed. I'm not aware of the existence of a
                    signed copy. There may well be one. This is
                    all that we----
MBR [CAPT SMITH]:   That would infer to me that that is not an
                    official document.
LA:                 Anybody ware of whether at some point in time
                    Mr. Dorn, in fact, executed the memorandum.
CC [MR. ZIEGLER]:   Major, we would be happy to undertake to
                    investigate whether this is the final, official
                    copy of this memorandum or not. So far as we
                    know, it is, but Captain Smith is quite right,
                    it is not dated or signed on its face. Unless
                    the recorder is willing to stipulate----
LA:                 Do you know anything?
AREC:               Sir, we'll get the signed copy before we close
                    to deliberate.
LA:                 Okay, why don't we do that. We'll hold off on
                    the admission of Exhibit 34.
CC [MR. ZIEGLER]:   At this point in time could we publish to the
                    Board volumes--we might as well do volumes two
                    and three.
LA:                 That's fine.
AREC:               Why don't we wait until they're admitted first,
                                   144
                    and then publish them?     Or are they going to go
                    through and strike----
LA:                 Pardon?
MBR [CAPT COOK]:    If you're going to strike them and mark them,
                    that's fine.
LA:                 I think the Captain's point was that as he was
                    going through he was noting, you know----
MBR [CAPT COOK]:    If someone will do that for us vice just handing
                    us the document or give us a list----
LA:                 Exhibit by exhibit, then they can consider or
                    not consider the documents.
CC [MR. ZIEGLER]:   Have the members strike the document?
LA:                 Well, in the copies that they've got.
MBR [CAPT COOK]:    Or you could just give us a summary of what we
                    are to strike, that's fine, when you're done.
                    We just need some summation.
LA:                 Well, that's what they had been doing with the
                    first volume which you already had. By my notes
                    the documents that were excluded in the first
                    volume were 22, 23, 29, 30, 31, and 32. Is
                    that----
MBR [CAPT COOK]:    Just a second.    Okay.
LA:                 And 34 is still pending.    Does that sound right,
                    Lieutenant Dutton?
REC:                36 was withdrawn, sir.
LA:                 That's in binder two, yeah, and this was just
                    through the first volume.
REC:                22, 23, 29, 30, 31, and 32?
LA:                 Right.
REC:                Yes, sir.
                                145
LA:                 34, we're looking for a signed copy.     Okay, so
                    we're now at Volume Two, tab 35?
CC [MR. ZIEGLER]:   Yes, and my understanding is that the assistant
                    recorder has no objections to Exhibits 35, 36,
                    and 37.
AREC:               36 has been withdrawn.
CC [MR. ZIEGLER]:   You're quite correct.     36 has been withdrawn.
LA:                 All right, those exhibits then are admitted.
                    We're up to 38. To be supplied at hearing, mine
                    says.
CC [MR. ZIEGLER]:   Have you been provided with a copy of that?
LA:                 Oh, that's the Rand----
CC [MR. ZIEGLER]:   Major, I think I've addressed previously what we
                    would argue is the relevance of the Rand report
                    in the context of my earlier remarks about Dr.
                    MacCoun's declaration. I believe the thrust of
                    the Rand report or its focus is on whether
                    acknowledged homosexuals adversely affect unit
                    cohesion and morale, and I think it fairly and
                    clearly concludes that there is no basis for
                    that perspective. I think for that reason it
                    goes to the issue of whether statements made
                    about sexual orientation in the military context
                    are predictive of conduct that's adverse to the
                    military mission.
AREC:               Sir, first of all it is recognized as being
                    cumulative by the respondent and his counsel.
                    Second of all--and I'd raise a cumulative
                    objection, and also of volume. There's a lot in
                    here that is not relevant, the Rand report.
                    This could take days to read, as I am well aware
                    of. As it attacks--a lot of this attacks the
                    basis for the policy. If there is some specific
                    passages that the respondent would like to point
                    to as what relevant portions the Board should
                    consider, I'd like to hear them. Otherwise, it
                    is full of inadmissible material as to the basis
                    for the policy, history of past policies,
                                146
                    surveys from other organization, surveys from
                    within DOD, a discussion of AIDS, which we've
                    never relied on as the basis for the policy, and
                    things along those lines, jobs and housing
                    rights, legal sanctions and legal rights. A lot
                    of this is just irrelevant to the issues here.
CC [MR. ZIEGLER]:   Major, the primary observation I would make is
                    that the Rand report was a report commissioned
                    by the Secretary of the Defense. He
                    commissioned it because he thought a report of
                    this kind would be useful to consideration
                    broadly of all of the issues raised by
                    homosexuality in the armed forces. And, as
                    such, I think it provides a useful context of
                    factual, scientific, social scientific for
                    understanding the background out of which the
                    current policy emerged.
LA:                 In understanding that it may well, certainly, be
                    relevant to the Secretary's decision making
                    process and as to what type of policy to have
                    and so on. How is it relevant at this stage,
                    now that he has, in fact, established that
                    policy and given us the guidelines by which we
                    analyze the facts before us?
CC [MR. ZIEGLER]:   I'd like to address that point. It is relevant
                    in much the same sense as legislative history is
                    relevant to interpretation of a statute. You
                    don't always read words within a statute--they
                    don't always have meaning in and of themselves.
                    Sometimes you require a context, historical
                    context, in order to understand what those words
                    mean. Our argument would be that it is only by
                    understanding the various considerations,
                    problems, issues that went into the formulation
                    of the policy that you can understand the
                    meaning of the policy. We've already seen
                    there's some disagreement between the parties as
                    to what certain key provisions within the
                    regulations mean, and, I think, having a full
                    legislative record, so to speak, would be
                    potentially helpful to the Board. And I
                    certainly don't see how it would be prejudicial.

                                147
AREC:               Sir, in light of the fact that this was
                    considered by the Secretary of Defense in
                    formulating the policy, considered by Congress
                    in passing the law that they passed, which
                    resulted in the regulation we're dealing with
                    today, this is, while, interesting background
                    reading for policy makers, we have the
                    regulation that, except for one provision we
                    have minor disagreement on as to what weight
                    certain evidence would have, this policy talks
                    about fire departments and their--and how they
                    have attempted to integrate homosexuals. It
                    talks about other militaries, which--the
                    argument has no relevance on the United States
                    military because our mission is unique in the
                    world. It talks about attempts or the
                    successful integration of blacks into the
                    military, which has no relevance to this policy
                    because that is an attack on the policy. It
                    talks about public opinion, which, again, is
                    irrelevant. AIDS, violence, what is know about
                    unit cohesion in military performance, these are
                    all basis for the policy and not the policy
                    itself. I believe, again, unless there is a
                    certain passage or passages that they would like
                    the members to consider, putting the whole
                    report in, which clearly is in large portion
                    irrelevant to determining whether Lieutenant
                    Thorne, by his statements, has proven his
                    propensity or intent to engage in homosexual
                    acts, is a far cry from examining the
                    underpinnings of the policy in a weighing tone
                    such as this.
LA:                 Further comment?
CC [MR. ZIEGLER]:   Only to reemphasize that I think this serves
                    exactly the same purpose that legislative
                    history serves in interpreting the meaning of
                    the regulation.
LA:                 Of course, that legislative history is of great
                    interest to those who look at matters on appeal,
                    but generally not of much weight at a trial
                    level. Appreciating the fact that this is a
                    rather thick volume, I will sustain the
                                148
                    respondent's objection to it in its entirety at
                    this point. However, Mr. Ziegler, if you desire
                    to call certain portions of the document out
                    that more closely fit in with my remarks earlier
                    on admissibility, then I would allow you to re-
                    entertain portions of the document. At this
                    point, Exhibit 38 is excluded in its entirety.
CC [MR. ZIEGLER]:   Thank you, Major. I think that brings us to
                    Exhibit 39, and I'd actually propose taking
                    Exhibit 39, 40 and 41 together, since they were,
                    in fact, together. They are all part of a
                    report issued by the United States General
                    Accounting Office in June of 1992. The report
                    examines the range of issues associated with
                    service by homosexuals in the military service
                    and studies the experiences of foreign
                    militaries who have permitted gays in their
                    military, as well as fire departments and police
                    departments, and reach many conclusions that the
                    Rand report and some of the earlier reports that
                    we've mentioned reached: that there is no
                    scientific or imperial basis for believing that
                    there is any adverse impact by having within the
                    military context people who openly acknowledge
                    their sexual orientation. I won't belabor the
                    point, but only to say that we think this
                    generally goes to the issue of connection
                    between acknowledging your orientation on the
                    one hand and whether you can effectively serve
                    in military context. For that reason we would
                    offer these three exhibits into evidence.
AREC:               We would note that General Accounting Office
                    report we're speaking about, in this context,
                    was from June 1992, prior to the policy being
                    implemented or this regulation being implemented
                    and the statute being passed by Congress.
                    Again, a large portion of the GAO report goes to
                    the basis for the policy and at times takes
                    issues with the basis for the policy, focuses on
                    cost to the government, and things along those
                    lines. The policies of other armed forces, I
                    would argue, is absolutely irrelevant. That's
                    Exhibit Number 40. And the statistics related
                    to the policy in 41 are also irrelevant as to
                                149
                whether or not Lieutenant Thorne has a
                propensity or intent to commit homosexual acts.
                These exhibits taken together do nothing to
                illuminate any--any part of Lieutenant Thorne's
                conduct.
LA:             I'm going to sustain the   recorder's objection to
                Exhibits 39, 40 and 41.    Again, with the same
                proviso, Mr. Ziegler, as   to the other documents,
                if you desire to be more   specific and point
                things out. 42?
CC [MR. LEE):   I don't think this would be too cumbersome, we
                might consider Exhibits 42 through 47 together.
                They are of the same character. They are
                government generated documents, and, thus,
                constitute admissions by the government with
                respect to a very pertinent consideration, that
                is they recognize that homosexuality, homosexual
                orientation is not incompatible with military
                service, that homosexuals as a group do not
                possess characteristics that make them
                unsuitable for service, that there is no support
                for idea that homosexuals cannot effectively
                serve. They're hard working, career oriented,
                willing to put in long hours. In fact, the last
                of the documents on that page, 47, Exhibit 47
                recognizes that-- it's a 1976 document--
                recognizes that it was Navy policy at that time
                and extensively into the future to recognize
                that homosexuality did not have an adverse
                impact on the completion of the Navy's mission,
                and that it was within the discretion of the
                Chief of Naval Personnel to retain those of a
                homosexual orientation in the Navy. The
                distinction between orientation and conduct
                having been made for nearly 30 years now within
                the Navy, according to this document, authored
                by the Chief of Naval Personnel.
                I would point out, you're probably aware of
                this, Major Stutzel, that Exhibits 42 through 44
                were offered in a previous proceeding in which
                you sat at legal advisor and were admitted on
                this subject. I think the three other exhibits
                that I've identified 45 through 47 are really
                            150
                not distinguishable.
LA:             This having appealed to consistency, Mr. Lee?
CC [MR. LEE]:   Yes, it is.
LA:             Major Duffy?
AREC:           Sir, I'd like to add the fool of consistency is
                the hobgoblin of little minds. 42, 43, and 44,
                I collectively refer to those as PERSEREC
                studies, which is where they originated. Based
                on the proffer by Mr. Lee, it is evident that
                they are just there to attack the basis for the
                policy. That's the sole basis of the admission.
                These two studies show that homosexuals may not
                have the effect on the military that the policy
                and Congress--or the regulation and Congress
                have stated that they do have on the military.
                Therefore, they are attacking the basis for the
                policy, and I'll object to them on relevance
                grounds.
                As to number 45, the Crittenden Report--or known
                as the Crittenden Report, this is a 1957 report.
                No policy we have today is relevant to the
                Crittenden Report, and Lieutenant Dutton informs
                me that this was excluded in the past. so if
                you want to be consistent, that would be one
                thing to be consistent with.
                47[sic] is a message most of us have seen before
                speaking as to how homosexuals can serve the
                fleet and some problems with enforcement in the
                 policy I'd object only on the grounds that it,
                again, provides nothing, as none of these
                documents do, to illuminate Lieutenant Thorne's
                conduct and how it meets the regulatory scheme
                here. It's the same objection to most of the
                documents.
                I would object to the Chief of Naval Personnel,
                again, because this comments on a 1970--1976, I
                believe, document. Commenting on Department of
                Defense, at least the Chief of Naval Personnel's
                opinion as to homosexual separation proceedings
                               151
                and the discretion. We have since done numerous
                studies. We’ve have two different policies in
                the interim. This has no effect. This talks
                about a policy that no longer is in existence,
                and it is--this memo is almost 20 years old and
                its relevance to this Board and whether it would
                shed illumination on anything Lieutenant Thorne
                has done based on the new regulation--it's
                tenuous at best.
LA:             Mr. Lee, can you tell me what parts of those
                documents it was that was pointed out to me as
                being particularly relevant to the issues
                involved in the case?
CC [MR. LEE]:   With respect to Exhibit 42, I don't have a page
                reference. But with respect to 42, there is a
                specific finding in that study that
                homosexuality is not incompatible with military
                service. I think that would probably be set
                forth in their findings section. Similarly,
                with respect to Exhibit 44, it's really a
                companion study, same focus. And the findings
                there is that homosexuals as a group do not
                possess characteristics that would make them
                unsuitable for service. Again, I would think
                that would be reflected in the findings and
                conclusions section. If I take a moment, I
                might be able to----
                The basis for my characterization of Exhibit 42
                is set forth on page III, where he indicates
                "We've examined recent contemporary studies that
                lead to the inference that homosexual men and
                women as a group are not different from
                homosexual men and women in regard to adjustment
                criteria or job performance."
LA:             I'm sorry, where--oh, Roman III, okay.
CC [MR. LEE]:   In the middle of the carry-over paragraph. With
                respect to Exhibit 44, again, on page Roman
                Numeral III, there is a findings in the
                conclusion section, " . ..that the preponderance
                of the evidence presented in this study
                indicates that homosexuals are pre-service
                            152
                    suitability related adjustment that is as good
                    or better than the average heterosexual." By
                    reading the entire document, you can learn that
                    the medical phrase "pre-service suitability
                    related adjustment" relates to and describes
                    characteristics related to suitability for
                    service.
LA:                 Again, with the same provisos as the other
                    documents, Mr. Lee, I'll sustain the
                    government's objections to Exhibits 42 through
                    44. So that completes Volume Two, gentlemen, by
                    my reading, and let's just make sure we all have
                    the same set of cards here. Exhibit 35 was
                    admitted; Exhibit 36 was withdrawn; Exhibit 37
                    was admitted: and the remaining documents were
                    excused, with the proviso that if particular
                    parts at some later point are pointed out, we
                    might revisit. Is that everybody's
                    understanding?
MBR [CAPT COOK]:    I would like to have a summary in total at the
                    end.
LA:                 Yes, sir, of what we've got.
AREC:               Sir, in light of the fact that we're breaking
                    volumes, notwithstanding the fact we have three
                    objections pending, I think this might be a good
                    time for everyone to take a break. Mr.
                    President, that's your call.
MBR [CAPT COOK]:    Do we have a compelling reason for a break, or
                    you just want to have a break. If there's a
                    compelling need for a break, then I have no
                    problem with that. But if there isn't, then I
                    would like to continue.
CR:                 May I, Mr. President, it is indicated that we
                    need a comfort break at this point, sir.
MBR [CAPT COOK]:    Okay, if you need a comfort break, then we'll
                    proceed and reconvene at 1515.
[The Board recessed at 1505 hours, 12 July 1994.]

                                153
                               *   *   *   *

[The Board was called to order at 1520 hours, 12 July 1994. All
parties previously present were once again present except LT Burch.]
MBR [CAPT COOK]:    And the Board is back in session.          Major?
LA:                 Sir, just before we proceed with the remaining
                    exhibits, I would note for the record that
                    Lieutenant Burch is not present at the
                    respondent's table. I've been informed by Mr.
                    Lee that his presence at this part of the
                    hearing has been approved by the respondent.
CC [MR. LEE]:       Understood and accepted by the respondent.
LA:                 Do we except to see him back for the remainder
                    of the day?
CC [MR. LEE]:       I believe he excused himself for the day and
                    will be here tomorrow.
LA:                 We're now at exhibit--we have pending objections
                    to Exhibits 45, 46 and 47. Does either side
                    have anything else they wanted to say before
                    ruling on those?
AREC :              No, sir.
LA:                 The objection to Exhibit 45 is sustained based
                    on relevance. A 35 year old report may be of
                    interest in the sense of legislative history or
                    background, but does not contain anything
                    relevant to current policy. Likewise, Exhibit
                    46 is irrelevant to the issues before the Board.
                    And also I'd also exclude the 1976 memo on
                    relevance.
REC:                I'm sorry, Major.          Was that Exhibit 47 you just
                    excluded?
LA:                 Yes, 45, 46 and 47 are all excluded.
CC [MR. LEE]:       If we could proceed then with the remaining
                    exhibits in section D, Exhibits 48 through 52.
                    Again, they all have the character of admissions
                                   154
by the government with respect to issues in this
case. Let me distinguish one of them, however.
Exhibit 49--in the Herek declaration that was
admitted earlier, which was Exhibit 16, this
document was referred to and used as an
illustration of the nature and effect of
stereotypes. This is the original of that
document that he referred to there, and I would
submit it as an exhibit accompanying and
relating to the Herek declaration. With respect
to the remaining exhibits, 48, 50, 51, and 52--
48 relates to the fact that the stereotypes that
long governed the way that homosexuals were
treated in the military have disappeared over
time as facts of the matter came to be
recognized. For example, with respect to denial
of security clearances for homosexuals. It
became apparent by virtue of government studies
and by virtue of the performance of homosexuals
in the military over time, that they were not,
in fact, security problems, that they were,
indeed, trustworthy and reliable. Again, I
bring these-- would bring these to the Board's
attention with respect to the role of
stereotypes in interpreting Lieutenant Thorne's
statement and the fact that the military has, in
fact, recognized that some of the stereotypes
that operate concerning homosexuals are, in
fact, erroneous. That would be the character of
Exhibit 48. That would be the character of
Exhibit 50.
Exhibits 51 and 52 have a little bit different
thrust to them. 51 acknowledges that an
employee of the Office of the Secretary of
Defense was, in fact, a homosexual, but is a
person involved in the administration of
regulations barring service by homosexuals.
That employee was, in fact, himself a
homosexual. Other than the obvious irony, it
makes the point that those people responsible
for the defense of the country include
homosexuals. That's Exhibit 51.
Exhibit 52 is a proposed Headquarters of the
Army--Department of the Army policy relating to
            155
         homosexuality.  It is a 1991 document, in which
         the Army did, in fact, propose accepting
         service by persons with a homosexual
         orientation. And, indeed, went beyond that and
         would have acknowledged and proposed
         acknowledging and accepting discrete private
         sexual conduct by homosexuals.
         Again, I think these all go to the issue and the
         role and impact of stereotypes, and they are
         admissions by the government with respect to the
         place of homosexuals in military service.
AREC :   As to 48--48 applies to both military and
         civilian persons up for security clearances, and
         talks about whether or not certain questions
         should be asked based on someone's orientation,
         whether a different question should be asked
         whether someone is homosexual or heterosexual as
         to their security worthiness. I believe the
         Department of Defense's policy on security
         clearances is now different--actually, it is
         about the same as this memo. We don't ask
         different questions of someone based on their
         sexual orientation. Therefore, it has no
         relevance as to whether Lieutenant Thorne, by
         his statements, has propensity or intent to
         commit homosexual acts. It has to do with--
         solely with issuance of security clearances
         within the military back in 1991, and really
         nothing to do with stereotypes or prejudices.
         It talks about legal status of people and how
         they should be investigated.
         As to 49, putting it as an attachment to Dr.
         Herek's --I believe it was Dr. Herek's
         declaration, I believe that that portion of the
         declaration is self-explanatory and this
         provides no further illumination on what is
         contained in it. It is done solely to tie the
         homosexual-- the policy governing homosexual
         conduct in the military to the old policy of
         segregation within military units, and it should
         be recognized for what it is, and should be
         excluded. It has no relevance to Lieutenant
         Thorne.
                     156
                    As far as the hearings, these, again, talk about
                    basis for the policy. Number 50, which is the
                    House Budget Committee Hearing with Former
                    Secretary Cheney, talking about the policy. And
                    it is back in 1991. This Week with David
                    Brinkley from 1991 talking about the differences
                    between a homosexual exclusion policy with
                    military and civilian personnel within DOD. And
                    we recognize that--the policy, again, recognizes
                    that there is a difference and we treat people
                    in the uniformed services different from
                    civilian employees due to the unique nature of
                    military service. And, again, this isn't
                    relevant to Lieutenant Thorne and any statement
                    that he may have made. It has nothing to do
                    with prejudice at all. It just makes a
                    statement as to what the military is concerned
                    with in the homosexual policy.
                    As far as the Proposed Headquarters Department
                    of the Army Letter recommending any change in
                    the then policy, we'll argue that, first of all,
                    it was merely a proposal and has no official
                    weight. There's no indication of authorship,
                    although there is accompanying article saying
                    what it was and an Army spokesman confirmed that
                    it was a proposal that never got sent forward to
                    change the policy. Therefore, it sheds no light
                    as to whether Lieutenant Thorne has propensity
                    to commit homosexual acts, and we would move
                    that it be excluded based on those arguments for
                    all documents.
LA:                 The objections to Exhibits 48, 49, 50, 51 and 52
                    are sustained on the basis of relevance. The
                    same rationale as with regards to the other
                    exhibits which I have excluded. We're up to 53.
CC [MR. ZIEGLER]:   Major, before we leave Section D, with the
                    Board's indulgence, I wonder if I might just
                    very briefly go back to Respondent's Exhibit 38,
                    which I believe the legal advisor excluded
                    subject to any further argument that we may have
                    as to its relevance. My colleague, who is
                    obviously more familiar with the Rand Report
                    than I am, pointed out to me that there is, in
                                157
        fact, in pages 41 to 64 of the Rand Report a
        specific discussion of the relationship between
        statements of sexual orientation and sexual
        behavior, and whether or not a statement of
        homosexual orientation is predictive of
        behavior. If, for example, if you look on page
        41 of the Rand Report there is--and that is the
        big thick volume that we had provided to you
        previously. The second bullet point there,
        which is one of the questions as discussed in
        that section is, Is homosexual status and
        conduct synonymous? And there is throughout
        this a discussion of that issue as an imperial
        matter, and, in fact, at the conclusion of that
        discussion on page 56 the Rand Report concludes
        that there are, in deed, people who consider
        themselves to be homosexual or bi-sexual who,
        for whatever reasons, refrain from homosexual
        activities. And I think this supports our
        argument that statements of orientation are not
        necessarily predictive of conduct. And so we
        would urge the Board to admit Exhibit 38, at
        least pages 41 to 64 for that more limited
        purpose.
AREC:   Sir, that it is possible that some individual
        who make a statement that they are homosexual
        can refrain from engaging in homosexual acts is
        implicit in the policy by the rebuttal
        presumption itself and it is entirely
        unremarkable to us. It's a decision made by the
        policy that people, once they make that
        statement that they are homosexual, then they
        have to rebut the presumption made by their
        statement. This is--the fact that these people
        exist is one of the reasons why the rebuttable
        presumption exists in the regulation. And this
        section actually does talk about that, what the
        military regulations says. My objection here is
        that it does nothing to shed light on what
        Lieutenant Thorne said as to his statement that
        he was a homosexual. Therefore, since that
        sheds no light on that, the fact that this
        tracks the regulation is entirely unremarkable
        and has no need to be put into evidence.

                    158
CC [MR. ZIEGLER]:   I think what it shows is that you can make a
                    statement about your sexual orientation and not
                    necessarily be predictive of what you're going
                    to do. And it is empirically based, and I think
                    for that reason it is relevant.
LA:                 I would agree with you, Mr. Ziegler. I think
                    you've met the threshold with regards to that
                    matter. I'll allow--I believe you collected
                    those back up, so you might want to republish
                    those to the members for the members to consider
                    for what weight again they consider appropriate
                    pages 41 through 63----
CC [MR. ZIEGLER]:   Page 64.
LA:                 --64 of the Rand Report. It is Chapter Two,
                    Sexual Orientation and Sexual Behavior.
AREC :              Sir, if I may, rather than distribute the whole
                    book, why don't we just have xeroxed the pages
                    and give it to them?
CC [MR. ZIEGLER]:   If it is simply a question of what's easier.
                    We're happy to do it either way.
MBR [CAPT COOK]:    Let me make a comment on that. That's fine if
                    you can do a better job of xeroxing, but some of
                    that xeroxing you've given us as evidence to
                    look at, we can hardly read.
AREC:               As to, sir?
MBR [CAPT COOK]:    We can't read it. I can go through it item by
                    item, but we were struggling in there today. If
                    you're going to 20 some pages off a book--- If
                    you'd like me to go through them right now, I'll
                    go through them.
AREC:               That is something I think we can solve
                    administratively.
MBR [CAPT COOK]:    But if you're going to do it, let's do a quality
                    job and get it so we can----
LA:                 I don't think there's any problem giving the
                                  159
                    almost always do, or at least usually what a
                    statement means is apparent only from looking at
                    to whom the statement is made, the reasons the
                    statements are being made, and I think that goes
                    both to the issue of what the person who
                    communicated the message intended and it goes--
                    and it also, secondarily, goes to issues of the
                    conditions of discharge and whether the
                    statement was being made for legitimate purposes
                    of expressing ones point of view in an First
                    Amendment context, or whether it's some other
                    purpose.
LA:                 Mr. Ziegler, I understand your proffer, if you
                    will, with regards to these two exhibits as
                    background for the Lieutenant's alleged
                    statements. Is there a--what I don't recall
                    specifically is whether there's a factual tie to
                    these specific----
CC [MR. ZIEGLER]:   There is, indeed, a factual tie. What
                    precipitated Lieutenant Thorne to appear on the
                    original "Nightline" telecast, which you'll
                    recall from the government's case, was the
                    consideration of Exhibit 53. And, indeed, if
                    you may remember Congresswoman----
LA:                 Now, that I look at the date, I see it's the
                    same date. That's good enough. I'll admit
                    Exhibits 53 and 54 for their relevance regarding
                    his statements.
CC [MR. ZIEGLER]:   If I could then turn to Section F, Exhibits 55
                    and 56, which I'd also like to address
                    collectively. These are--Exhibit 55 is a letter
                    from Congresswoman Patricia Schroeder, who at
                    the time was the Chairwoman of the Sub-Committee
                    on Military Installations and Facilities of the
                    Committee on Armed Services for the U.S. House
                    of Representatives. It's directed then to
                    Secretary of Defense Richard Cheney, and it's a
                    letter of support for Lieutenant Thorne at that
                    particular stage of his administrative--his
                    initial administrative discharge proceedings.
                    It evidences the fact that Congresswoman
                    Schroeder has reviewed the Lieutenant's record,
                                161
                    and on the basis of her review of that record
                    and her own particular opinion with respect to
                    the then existing policy, supports Lieutenant
                    Thorne's position. I think as character
                    evidence it's certainly relevant.
                    I would make the same argument with respect to
                    Exhibit 56, which is a similar letter from
                    Congressman Harry Johnson of the 14th District
                    of Florida on behalf of Lieutenant Thorne. And
                    I think, again, would go to the characterization
                    of discharge as a minimum.
AREC:               Sir, as to their review of Lieutenant Thorne's
                    record, no objection. As to their extraneous
                    comments about what they believe the policy--the
                    worth of the policy, I would object on those
                    grounds. Otherwise, I believe it is admissible.
LA:                 I will admit Exhibits 55 and 56, members, for
                    your consideration. Again, think back to the
                    provisos, back 20 or 30 exhibits ago, the
                    opinions of the members of Congress as to the
                    current or then current policy or any future
                    policy are, of course, not relevant to your
                    considerations.  But those matters that directly
                    relate to the respondent may be considered.
MBR [CAPT COOK]:    Counsel for the respondent, I don't have a copy
                    of that in my particular file, if you would, 55.
CC [MR. ZIEGLER]:   Perhaps we could replace your volume with
                    another volume.
MBR [CAPT COOK]:    Actually, just pull it out of that one, because
                    I've already marked my volume up.
CC [MR. ZIEGLER]:   Is it just Exhibit 55?
MBR [CAPT COOK]:    So far, yes.
[Document handed to Captain Cook.]
CC [MR. ZIEGLER]:   Are we up to Exhibit 57? Let me address 57
                    through 60 collectively. These are three
                    reported federal court decisions from the
                                   162
        Cammermeyer, Dahl, Abel and Keith Meinhold
        cases, respectively. Let me group these into
        two categories. Cammermeyer, Dahl and Meinhold
        all brought challenges to the old policy. Able
        is the only decision that relates to the new
        policy. We offer Cammermeyer, Dahl, and the
        Meinhold decisions for the limited purpose of
        showing that there were, in fact, at least three
        service members who had made statements
        acknowledging their homosexual orientation who,
        nevertheless, had distinguished records of
        service to various military branches and there
        was no other evidence of sexual misconduct or
        homosexual conduct. We would offer that, at
        least as limited evidence, that there isn't
        necessarily a correlation between statements of
        sexual orientation and a propensity to engage in
        conduct, as demonstrated by the records of these
        three service people.
        With respect to the Abel case, we offer that of
        a slightly different purpose. I think we have
        earlier identified a competing perspective
        between the parties as to the meaning of the
        Defense Department regulations regarding
        statements and whether statements of orientation
        are predictive of conduct. And in the Able
        decision the Federal District Court Judge there,
        and I'd refer the Board specifically to page 3
        of that decision, Federal District Judge
        Nickerson, I think, plainly sides with the
        construction of the regulation that respondents
        are urging here today. And that is, that a
        statement of orientation is not necessarily
        homosexual conduct, and that there is a way to
        distinguish those two things. And I think for
        that reason it provides some meaningful guidance
        to the Board in construing how these regulations
        may be applied in particular situations--a
        situation that is, in material respects,
        identical to the situation before them.
AREC:   I'd object on grounds of--taking Cammermeyer,
        Dahl and Meinhold cases--actually all four of
        these cases are in various stages of appeal
        right now. The analysis of the court is
                    163
                irrelevant to this tribunal, as the analysis of
                any court that doesn't have supervisory
                jurisdiction over us is irrelevant. Therefore,
                all these cases--first of all, the Department of
                Defense, Department of the Navy, and the
                Department of Justice take issue of the court's
                interpretation for all four of these cases of
                both the old policy and the present regulation.
                Therefore, that would be irrelevant.
                As far as the Abel case, that judge's
                interpretation of policy, I think--that was in
                the context of stating the regulation may have
                exceeded the legislative intent of Congress, and
                that, again, is not something for us to decide
                here. Congress gave us the basis for the
                policy. DOD has implemented it. It is not for
                this tribunal to decide whether the regulation
                comports with the act. It's up to this tribunal
                to decide whether or not Lieutenant Thorne, by
                his statements, has indicated a propensity or
                intent to commit homosexual acts when he stated
                he was a homosexual, amongst other statements
                that he'd made. Therefore, the analysis, the
                legal analysis of various district courts around
                the country is irrelevant to our case.
LA:             The objection to Exhibits 57 through 60 is
                sustained inasmuch as the legal discussions and
                aspects of the cases which discuss the status of
                either new or old policy are not relevant to the
                matters before this Board. And specific acts of
                conduct or lack of acts of conduct on the part
                of individuals in four--or maybe, possibly in
                one of those cases, possibly a few more tacked
                o n , specific acts or lack of conduct on the part
                of other individuals is not relevant to the
                conduct of the respondent or lack thereof of the
                respondent. That brings us up to 61.
CC [MB. LEE]:   May I inquire of the recorder whether there is,
                in fact, an objection to 61 and 62?
AREC:           As long as they're being presented for the
                limited purpose of showing what the Navy's
                definitions and what the Navy expects of its
                             164
                officers and to characterization of Lieutenant
                Thorne's service, I have no objections.
CC [MR. LEE]:   I think that would be consistent with the
                purposes for which I would offer them. They do
                credit the testimony of Commander Luigart, but I
                think that's the characterization of the use
                that you've described.
LA:             61 and 62 are admitted.
CC [MR. LEE]:   Moving to Exhibits 63 through 68, these are
                research articles authored by Dr. Gregory Herek
                and Dr. Louis Shawver, and I would submit them
                as materials and research on which they relied
                in forming the opinions set forth in their
                declarations, which had been previously
                admitted. As you recall both of them testified
                with respect to the issue whether a statement of
                homosexual orientation is necessarily subject to
                interpretation that it shows a propensity to
                engage in conduct. And these articles all
                address some aspect of their opinions. I would
                accept and invite the limiting instruction that
                you've given with respect to other exhibits,
                because these articles in some degree all
                address aspects of and express viewpoints about
                the past, and perhaps, yes, to some extent the
                current policy with respect to service by
                homosexuals. But, in addition to addressing
                those policy issues, and I don't offer them for
                that purpose, they do support and reflect the
                research on which their opinions in this case
                are based.
AREC:           Sir, I'd object on relevance grounds. I believe
                that although this is research performed by the
                experts involved, largely the first document--
                we'll take them one at a time, if I may. 63
                deals with security clearances. That's not at
                issue in this case. And the fact that Dr. Herek
                relies on this does not necessarily make it
                relevant to the case here today. I think his
                declaration stands in and of itself. Much like
                the PERSEREC Studies, these studies go to a
                different aspect - security clearance for 63.
                            165
      64, the title itself gives it away, "Myths About
      Sexual Orientation". It's just --I've seen this
      a number of times. It's a "how to cook book" on
      how to present, attack the homosexual policy and
      regulations of the military in large degree.
      It's basically a source book, and, again, isn't
      relevant as to whether Lieutenant Thorne has, by
      his statements, indicated a propensity or intent
      to commit homosexual acts. 65 - again, talks
      about general social issues in the military and
      anti-gay prejudice in society in general, and
      has no bearing on the military. In the fact,
      the only reason I could see that this would be
      relevant would be to attack the underpinnings of
      the policy in an attempt to put in the legal
      analysis that the policy is based on individual
      prejudices of people. The same thing with 66,
      same type. 67 is Dr. Herek's --I believe it is
      very cumulative with his declaration. It is
      basically his article concerning the history of
      the homosexual military policies, and sets up
      and knocks down what Congress has found and the
      Department of Defense has relied on as the basis
      for the policy, and is irrelevant for that
      purpose. Same thing with Dr. Shawver's final
      article, Exhibit 68. She just challenges in
      this--it's a challenge to policy. I fail to
      see--my knowledge of these documents--I'm not
      intimately familiar with all of them. I am
      familiar with some of them. I don't see where
      they meet, necessarily, the proffer in that
      mostly they are concerned with attacks on the
      old policy or on the regulations as they exist
      now. Therefore, they should not be admitted on
      balance.
LA:   The recorder's objections to Exhibits 63 through
      68 are sustained, again with the same proviso,
      Mr. Lee, Mr. Ziegler, that if you can point out
      something more specifically in the articles,
      other than that they do appear as Major Duffy
      pointed out more relevant to the issue of the
      suitability of the policy as opposed to
      specifically relevant to the issues before us
      here. That concludes Exhibit [sic] 3.

                  166
                Why don't we-- if everyone can follow along with
                their list, and I will list what I believe I've
                ordered excluded and see if we have any
                agreements or disagreements up to that point.
                Exhibits 1 through 13 were admitted yesterday
                with the except of Lieutenant Thorne's
                declaration to be added later as Exhibit 2.
                According to my notes, the exhibits up through
                Exhibit 21 were admitted. Exhibits 22 and 23
                were excluded. 24 through 28 were admitted,
                again, just for purposes of reminding you there
                were some of these exhibits that had limiting
                instructions with regards to them. Exhibits 29,
                30 and 31 were excluded. 32 was also excluded.
                34 was admitted pending a copy of a signed page.
                Anybody disagree with the listing for the first
                volume?
CC [MR. LEE]:   33 was admitted?
LA:             That's my note on it, that 33 was admitted.
REC:            The government concurs with that.
LA:             In volume--the second volume then, starting with
                35, 36, and 37 were admitted.
REC:            Sir, 36 was withdrawn.
LA:             I’m sorry, you're right. I've got that note
                over on the side. 36 was withdrawn, so 35 and
                37 were admitted. 38 was excluded with the
                exception of pages 41 through 64, which were
                admitted for your consideration. And the
                remaining documents in Volume Two were all
                excluded. Is that everybody's understanding?
CC [MR. LEE]:   Correct.
REC:            Yes, sir.
LA:             Volume Three, Exhibits 45, 46, 47, 48, 49, 50,
                51 and 52 were excluded. 53, 54, 55, and 56
                were admitted. 57, 58, 59, and 60 were
                excluded. 61 and 62 were admitted, and 63
                through 68 were excluded.
                            167
REC:                The government concurs with that, sir.
LA:                 Mr. Lee?
CC [MR. LEE]:       Yes, sir.
LA:                 We are still on the respondent's case. Did the
                    respondent desire to present more evidence this
                    afternoon?
CC [MR. LEE]:       We don't have anything further to present today.
                    That concludes our documentary presentation. We
                    have one witness, Dr. Korb, to present live.
                    We'll ask Lieutenant Thorne to make his
                    statement at that time, and then I, suppose,
                    move to closing arguments.
LA:                 Did the government have anything they desired to
                    present today?
REC :               No, sir.
LA:                 Dr. Korb was available at----
AREC:               10:00, I believe.
LA:                 1000.   Sir, that's where we stand.
MRR [CAPT COOK]:    Do you prefer, Lieutenant Thorne, to go after
                    Dr. Korb or----
CC [MR. ZIEGLER]:   We would, sir.
MBR [CAPT COOK]:    Then let's reconvene at 1000 tomorrow morning.
[The Board adjourned at 1600 hours, 12 July 1994.]
                                * * * *




                                  168
                               THIRD DAY
[The Board was called to order at 1030 hours, 13 July 1994. All
parties previously present were once again present. Additionally,
Lt Burch was present.]

MBR [CAPT COOK]:    The Board is back in session, and I have a new
                    appreciation for why many say the wheels of
                    justice turn slowly. This week has demonstrated
                    that. I believe we're continuing with the
                    respondent's case. Mr. Ziegler, over to you.
CC [MR. ZIEGLER]:   Thank you, Captain Cook, and thank you again for
                    the Board's patience in getting a later start
                    this morning then we had expected. One
                    preliminary matter that I'd like to take up
                    before we get to Dr. Korb's testimony. It
                    relates to an issue that Captain Smith raised
                    yesterday concerning Respondent's Exhibit 34,
                    which you recall is a training manual from the
                    Defense Department with a cover letter or
                    memorandum from Assistant Secretary Dorn that
                    was not signed and was not dated. Through the
                    good graces of Major Duffy we have obtained a
                    copy of a signed and dated cover memorandum, and
                    have been advised that there were no material
                    changes in the substance of the training manual
                    between the exhibit that we previously included
                    in our package and what was finalized. They are
                    the same as far as we know. And I'd ask
                    permission to publish to the Board the final
                    copy of the cover memorandum.
LA:                 Objections?
AREC:               No objection, sir.
LA:                 Were there any other outstanding objections with
                    regard to that exhibit? I don't believe there
                    were.
AREC:               No, sir.
CC [MR. ZIEGLER]:   At this time the respondent would call Dr.
                    Lawrence Korb to the stand.
                                  168
Lawrence J. Korb, Ph.D., was called as a witness by the respondent,
was duly sworn, and testified as follows:
[Preliminary questions by the recorder:]
Q.        Please state for the record your full name and spell your
          last name?
A.        My name is Lawrence, with a "w", J. Korb, K-O-R-B.
Q.        Where are you currently occupied--employed?
A.        I'm at the Brookings Institution.
Q.       And where were you employed before that?
A.       Before that I was at the University of Pittsburgh, before
         that the Raytheon Company, and before that I was the
         Assistant Secretary of Defense for Manpower, Reserve
         Affairs, Installations and Logistics. Before that I was a
         professor at the Naval War College; before that I was
         professor at the U.S. Coast Guard Academy; before that I
         was a professor at the University of Dayton; before that I
         was a naval flight officer.
Q.       And where do you currently reside, sir?
A.       I live in Reston, Virginia.
REC:      Thank you.
                         DIRECT EXAMINATION
[Questions by CC (Mr. Ziegler)]:
Q.       Good morning, Dr. Korb. My name is Luther Ziegler. I'm
         one of the attorneys for Lieutenant Tracy Thorne, the
         respondent in this matter. Major Stutzel, with your
         permission, I'd like to approach the witness and provide
         him with a copy of Respondent's Exhibits Volume One. The
         only exhibits I may ask him to refer to are among the
         first 13 which, I think, were received into evidence with
         no objections. This may just facilitate examination.
REC:      I have no objection to that procedure.
[Volume One of the Respondent's Exhibits was handed to witness.]
Q.       Dr. Korb, you've indicated that you're currently employed
         at the Bookings Institution. Could you describe for the
                                   169
     Board in general terms the position that you hold at the
     Brookings Institution and the kinds of responsibilities
     that you have?
A.   I'm the Director of the Center for Public Policy
     Education, which does executive education for government
     and business leaders, as well as run conferences on major
     public policy issues. And I'm a senior fellow in the
     Foreign Policy Studies Program, which involves doing
     research on national security issues.
Q.   And where were you educated, Dr. Korb?
A.   I was educated at St. John's University in New York, and
     the State University of New York at Albany.
Q    Could you tell us what degrees you've received and when
     you received them?
A.   I received a Master's Degree from St. John's in 1962, and
     a Ph.D. from the State University of New York in 1969.
Q.   Now, in response to the recorder's preliminary questions,
     Dr. Korb, you indicated that you have served in the United
     States Navy, is that correct?
A.   Yes, I have.
Q.   I wonder if you could describe in a little more detail for
     the Board the extent of your service?
A.   From 1962 to 1966 I was on active duty as a naval flight
     officer. I served in Patrol Squadron ONE and on the Staff
     of Patrol FOUR-SEVEN Fleet/U.S.-Taiwan Patrol Force, and
     Command of Fleet Air Wing ONE was the three hats that the
     Admiral wore. I got off active duty in the summer of '66
     and I immediately affiliated with the Naval Reserve and I
     remained as a ready reservist until the mid-1980's when I
     retired with the rank of Captain.
Q.   And you provided the recorder with a brief thumbnail
     sketch of your employment history. I'd just like to ask
     you to fill in some of the details for us. I believe that
     you testified that for a period of time you taught at the
     U.S. Navy War College, is that correct?
A.   That's correct, from 1975 to 1980.
Q.   And you also taught at the United States Coast Guard
     Academy, is that correct, sir?
A.   That's correct, from 1971 to 1975.

                           170
Q.   And was it after your teaching responsibilities ended that
     you became Assistant Secretary of Defense?
A.   I had a very brief stay at the American Enterprise
     Institute for Public Policy Research for about 6 months in
     between leaving the Navy War College and going into the
     Reagan Administration.
Q.   So you were appointed to be Assistant Secretary of Defense
     by President Reagan?
A.   That's correct.
Q.   And precisely how long did you serve as Assistant
     Secretary of Defense?
A.   About four years and nine months.
Q.   And would you describe for the Board a little more
     specifically what your responsibilities were as Assistant
     Secretary?
A.   Well, I was given responsibility for overseeing the
     recruiting, retention of the 5 million people who worked
     for the Department of Defense, either as active duty,
     reserve or civilians, for maintaining the nation's--this
     nation's worldwide military base structure, providing
     policies for the sea, air, and land forces for the
     logistic support.
Q.   And did part of your responsibilities, Dr. Korb, involve
     the policy--the then existing policy regarding service by
     homosexuals in the military branches?
A.   Yes, it did. In 1982 I promulgated a directive to carry
     out the policy which had been decided by Deputy Secretary
     of Defense Clader in January 1981.
Q.   And did you have any responsibility for implementing those
     directives?
A.   Yes, my responsibility was to see that the services
     carried out the policy as annunciated in the directive on
     enlisted separations.
Q.   And did you continue to have those responsibilities during
     your entire tenure as the Assistant Secretary of Defense?
A.   I did.
Q.   Now, I notice, Dr. Korb, from you curriculum vitae which
     has been previously admitted into evidence as Exhibit 21,
     that you served on a number of committees, boards and
                           171
     commissions. I'm not going to ask you about all of those,
     but some of them may have some particular relevance to
     this proceedings. I'd just like to ask you a couple of
     questions about them. I note that at least as to the time
     this CV was prepared you were Vice Chairman of the Board
     for the Committee of National Security, is that correct?
A.   I am now the chairman.
Q.   Could you tell us a little bit about the work of that
     committee or board?
A.   The Committee for National Security is a group of former
     government officials involved in the national security
     area, including the former director for the CIA, former
     assistant secretaries of defense and state, who try and
     help the public think through major issues of national
     policy by being available to speak at communities around
     the country to groups that are concerned about how much to
     spend on defense, what weapons to buy, what should be the
     U.S. role in the world, arms control issues, prolification
     issues.
Q.   Does the work of that board or committee relate to
     military personnel issues at all?
A.   Yes, it does.
Q.   I also note that you are affiliated in some way with the
     National Military Family Association. What is that
     exactly?
A.   The National Military Families Association is a group
     started by the spouses of military people approximately a
     decade ago to ensure that the concerns of what used to be
     called military dependents but has changed to be military
     families are addressed both by the Pentagon and the
     legislature when they made decisions. When I left the
     Pentagon I was asked to join the Board of Advisors and
     I've been recently appointed Vice-Chair of that Board.
Q.   And I also note that you are, or at least at one time were
     affiliated with the Council on Foreign Relations?
A.   I still am.
Q.   What exactly is the work of that Council?
A.   Well, the Council on Foreign Relations are--is a group of
     people who are concerned about the United States not
     adopting an isolationist policy. It was originally
     started after World War I, and its work has continued.
                           172
     Basically that group brings together policy makers from
     all over the world to interact with people on the major
     issues affecting the security of the United States.
Q.   Now, you've testified earlier, Dr. Korb, that you stepped
     down from the Assistant Secretary of Defense in the Reagan
     Administration in 1985. Did you have any responsibilities
     or were you asked to assume any responsibilities by the
     Bush Administration with respect to consulting on national
     defense issues?
A.   I was a member of the Defense Issues Group for the 1988
     Bush campaign.
Q.   Now, you've testified, Dr. Korb, that you were the author
     of, and you had responsibility for implementing the old
     regulation--what we commonly refer to as the old
     regulations regarding service by homosexuals in the
     military. I gather from that testimony that you are
     familiar with the workings of the old regulations?
A.   Yes, I am.
Q.   Are you equally familiar with the recently revised
     regulations which are what bring us here today?
A.   Yes, I am. In fact, in President Clinton's speech
     announcing the new regulation I was very privileged to be
     quoted, along with Senator Goldwater, as people who were
     conversive with and supported his efforts in that area.
Q.   Have you previously been asked to testify as an expert
     witness on issues relating to service by homosexuals in
     the military?
A.   Yes, I was asked to testify by Senator Nunn before the
     Senate Armed Forces Administration in March 1993 when the
     Senate was debating this issue.
Q.   And have you been asked to appear in any court or
     administrative proceedings?
A.   Yes, I have. I testified in the Board of Inquiry, I guess
     would be the official name, for Colonel Greta Cammermeyer,
     and I've also testified for Lieutenant Zoe Dunning.
Q.   And could you just briefly, for those who may not be
     familiar, describe the circumstances of the Cammermeyer
     and Dunning cases?
A.   Well----

                           173
AREC:               I’m going to object to the relevence of the
                    Cammermeyer and Dunning cases on this
                    proceeding, sir.
CC [MR ZIEGLER]:    Major, this is merely background information
                    with respect to Dr. Korb's qualifications to
                    testify as to this issue.
LA:                 Inasmuch as I guess his qualifications to
                    testify as an expert are a matter, I suppose, of
                    a legal determination or a procedural
                    determination that I would make, and that I am
                    familiar with those cases, there is no need to
                    go into detail with regard to the fact that he
                    testified at them, because I'm familiar with
                    what those cases are.
CC [MR. ZIEGLER]:   With your indulgence, I wonder if I might,
                    nonetheless, be permitted to make a record with
                    respect to those issues? Unless counsel for the
                    government is willing to stipulate to Dr. Korb's
                    qualifications as an expert to offer testimony
                    in this area.
AREC:               We'd stipulate that Dr. Korb, certainly, has
                    studied the policy and has testified before
                    Congress and has testified at previous hearings,
                    and that he is as qualified as anyone who has
                    studied the policy to comment on it, and that
                    his opinions have been sought out by both the
                    Executive and Congressional Branches.
CC [MR. ZIEGLER]:   I understand from that that the government is
                    willing to stipulate that he is an expert
                    witness of these purposes and that's fine.
AREC:               With that limitation, yes.
LA:                 Okay.
[Continued direct examination by CC (Mr. Ziegler)]:
Q.        Dr. Korb, have you published any writings, books or
          articles on this general subject?
A.        I have written several OPED pieces on this subject, and I
          have a chapter in a book coming out that's due to be
                                174
     published sometime this year.
Q.   And what's the name of that?
A.   I don't recall off-hand.
Q.   Now, Dr. Korb, have you previously been provided by
     counsel for Lieutenant Thorne with excerpts from
     Lieutenant Thorne's service record?
A.   Yes, I have. It's a very outstanding record.
Q.   And I'd refer you in particular to what have been
     previously admitted into evidence as Respondent's Exhibits
     1 through 12, and if you could just briefly pursue those
     exhibits. You don't have to read them in detail. I just
     want to be certain that those are, in fact, the excerpts
     from his service record that you previously examined.
A.   Yes, they are.
Q.   And, in particular, I would like to draw your attention to
     Exhibit 13. Exhibit 13 is a letter that Lieutenant Thorne
     wrote to his Commander at Naval Air Systems Command on
     January 31st, 1994. Have you seen that letter before, Dr.
     Korb?
A.   Yes, I have.
Q.   Dr. Korb, are you familiar with some of the previous
     statements that Lieutenant Thorne has made with respect to
     his sexual orientation?
A.   Yes, I saw him on "Nightline", and I attempted to testify
     at his hearing in Norfolk. I wasn't permitted to, but I
     did sit through the hearing.
Q.   You've had occasion to meet and talk with Lieutenant
     Thorne?
A.   I have.
Q.   Dr. Korb, in your opinion, do the statements made by
     Lieutenant Thorne about his homosexual orientation
     demonstrate a propensity or intent to engage in homosexual
     conduct?
A.   Absolutely not.
Q.   In your opinions, are the statements about his sexual
     orientation a sufficient ground for separating him under
     the new regulations?
A.   They are not.
                           175
Q.   Would you explain to the Board, Dr. Korb, the basis of
     your opinion?
A.   Well, the directive that I authored was focused on
     conduct, not status. And my understanding is that the new
     policy is more-- leans more toward the conduct then the
     previous policy. The statement that Les Aspen made in
     December of '93, he was then Secretary of Defense, that
     new policy is--this focuses on conduct, not status, are
     the things that lead me to believe that a mere statement
     like that in no way violates the new policy.
Q.   Now, you've referred to a statement that the then
     Secretary of Defense made, is there other empirical
     evidence out there in the way of studies that may have
     been commissioned by the government or academic literature
     or otherwise that support your opinion?
A.   Well, there's no empirical basis that I've ever seen, and
     I think I've read everything on it that shows in any way a
     person's status undermines the military's mission. I'm
     refer in particular to the Rand study, which was
     commissioned by the Department of Defense in the spring of
     1993, that absolutely, definitively states that there the
     mere presence of a person who has acknowledged a
     homosexual status in any way undermines the military
     mission and is not something that couldn't be dealt with
     through education and leadership.
Q.   Now, based on your review of Lieutenant Thorne's service
     record, Dr. Korb, and your knowledge of him, do you
     believe that he has demonstrated that he has the qualities
     to be a fine Naval Officer?
A.   I--I--I would qualify and say an outstanding Naval
     Officer. Everything in his record leads me to believe
     that he is, and will continue to be, an outstanding Naval
     Officer. At one time I used to teach at AOCS, which is
     the Aviation Officer Candidate School, and I saw lots of
     young men go through. And he, based upon what I see from
     his record, he would be the best of the best. In fact, I
     think at one point they refer to him as "top gun", which
     is the highest accolade that anybody in the aviation
     community can get.
Q.   And do you believe that he is any less qualified to serve
     his country now that he has acknowledged his sexual
     orientation?
A.   Absolutely not.
                           176
Q.   Do you think his acknowledged homosexual orientation makes
     him any less an effective leader?
A.   Absolutely not. There have been many outstanding leaders
     who were homosexual, and there'll continue to be.
Q.   Do you believe his acknowledged sexual orientation
     undermines in any way interest in unit cohesion and
     morale?
A.   Absolutely not. Unit cohesion is really predicated upon
     the trust that the people have in one another to be able
     to carry out the military mission, to be--remain calm
     under fire, and that the people with whom you're dealing
     have integrity, they have loyalty.
Q.   And what you know of Lieutenant Thorne's record leads you
     to believe that he has the kinds of characteristics that
     would warrant that trust and loyalty?
A.   If I were young enough to go back on active duty, I'd love
     to serve with him.
Q.   Is it your opinion, Dr. Korb, that Lieutenant Thorne's
     acknowledged sexual orientation undermines the integrity
     of the system of rank and command?
A.   Absolutely not. Rank and command is really based upon the
     respect that you have for the people who are leading you,
     and that respect is earned by showing that you're
     professional, that you know your job, that you can be
     counted on to keep your word, that you're a person that is
     dedicated to the service of the country and puts the
     mission of the organization ahead of ones own personal
     advancement.
Q.   Dr. Korb, do you believe that Lieutenant Thorne's
     acknowledged sexual orientation will compromise anyone's
     reasonable privacy expectations?
A.   Absolutely not. That's based on a false stereotype of
     homosexuals as sexual predators, that somehow or another
     that they can't control their urges, and that--- If you
     go in our society today, if you go down and you work out
     at the gyms, there's no sign that says, you know,
     homosexuals do not enter here, and there's no problems as
     far as I know.
Q.   Does having an acknowledged homosexual like Lieutenant
     Thorne undermine the public's acceptability of military
     service?
                           177
A.        Well, opinion polls tell us no.
Q.        Does having an acknowledged homosexual like Lieutenant
          Thorne in the Navy present any security concerns that you
          know of?
A.        Well, as Dick Chaney, Secretary of Defense, said, that's
          an old chestnut, and there's no empirical evidence to
          back--to back up that concern.
Q.        Bottom line, Dr. Korb, should the statements that
          Lieutenant Thorne has made about his sexual identity bar
          him from serving his country?
A.        Absolutely not.
CC [MR. ZIEGLER]:   Your witness.
                         CROSS-EXAMINATION
[Questions by the assistant record]:
Q.        Dr. Korb, you testified before that you appeared before
          the SASC on March 31st, 1993?
A.        Approximately that date, yeah.
Q.        And you testified before the SASC substantially the way
          you testified today about the basis for policy and your
          opinion of them?
A.        Yes, sir.
Q.        And as a result of those hearings and other hearings that
          the SAC and HASC and Congress had together, they passed a
          statute that's now codified at 10 U.S. Code, section 654,
          correct?
A.        That's correct.
Q.       And in section (b) of that--are you familiar with the
         statute?
A.       I am. I mean, I don't have each of the sections
         memorized.
Q.       I'll pass you a copy of this for purposes of questioning.
         I'll take you down to section (b), where it says policy,
         the policy that Congress passed. And Congress then said,
         "A member of the armed forces shall be separated from the
         armed forces under the regulations prescribed by the
         Secretary of Defense if one or more of the following
                                178
          findings is made and approved in accordance with the
          procedures set forth in such regulations." Then the
          applicable one here--we go to number two under that,
          paragraph two, is that "The member has stated that he or
          she is homosexual or bi-sexual, or words to that effect,
          unless there is a further finding made and approved in
          accordance with procedures set forth in the regulations
          that the member has demonstrated that he or she is not a
          person who engages in, attempts to engage in or has the
          propensity to engage in, or intends to engage in
          homosexual acts”, correct?
CC [MR. ZIEGLER]:   Object, Major Stutzel. I believe it is somewhat
                    misleading to present the witness with a copy of
                    the statute, since it is not the statute that
                    Lieutenant Thorne is being processed under. It
                    is rather the implementing regulations that are
                    promulgated under this statute. I think that
                    the witness should have the benefit of both the
                    statute and those regulations before answering
                    any questions with regard to the meaning that
                    they may have.
LA:                 Major Duffy?
AREC:               Sir, the statute forms the basis for the policy.
                    It is a direction from Congress that the
                    Department of Defense was obviously not
                    authorized to deviate from in making the policy.
                    Congress made out the policy in this fashion.
                    The implementing regulations just, in our
                    opinion, mirror that. We discussed that
                    yesterday. I can run Dr. Korb through this and
                    then give him a copy of the regulation.
CC [MR. ZIEGLER]:   I would respectfully submit, Major, that the
                    statute is not by its terms self-enforcing. It
                    is merely a policy statement and Congress
                    specifically directed the Secretary of Defense
                    to issue regulations that would be the
                    enforceable regulations, and if we look at the
                    notification of show cause proceedings pursuant
                    to which we are here, what is referenced is not
                    the statute but what is referenced is the
                    Defense Department's directive, and it is that
                    that is directly relevant to the Board's
                                   179
                    determination.  I'm merely asking that the
                    witness be provided with a copy of the
                    implementing regulation at the same time he
                    reviews the statute.
LA:                 Major Duffy, I think you had indicated that you
                    were willing to do that. I believe as much as
                    you'd read out of the statute, I wasn't
                    following word for word, but it did seem to
                    mirror the implementing regulation as far as
                    you'd gone.
AREC:               I've handed the witness a copy of the CNO
                    message.
CC [MR. ZIEGLER]:   Objection. I wonder if we could also provide
                    the witness with a copy of the Defense
                    Department Directive, 1332.30, that, I think, is
                    the primary source of the proceedings against
                    Lieutenant Thorne?
LA:                 Major Duffy, position?
AREC:               I'll gladly give it to him, if they want me to.
LA:                 I would agree that the Navy Instruction is what
                    has implemented the DOD order, but we'll fill in
                    all the holes that way.
[Document provided to witness.]
AREC:               I've handed the witness a copy of Department of
                    Defense Instruction 1332.30 dated December 21st,
                    1993, which is a DOD instruction.
[Continued cross-examination by assistant recorder]:
Q.       Dr. Korb, if you'll look at the DOD instruction. I'll
         direct your attention in that instruction to paragraph
         (c)(l)(b), where it talks about a commissioned officer
         shall be separated under this provision if one or more of
         the following proved.
A.       Are we talking about the law now?
Q.        No, we're back to the directive, the DOD directive.
A.        Okay, mine says "This directive applies to the Office of
                                  180
     Secretary of Defense, military departments----"
Q.   Right. Section (c) of that directive.
A.   Okay. "The terms used in this directive are defined in
     enclosure (l)."
Q.   No, where it says "homosexual conduct".
A.   Okay, okay, "homosexual conduct", okay, reasons for
     separation, I got you.
Q.   Particularly under section (c), subjection (1) under that
     where "Commissioned officer shall be separated under this
     provision if one or more of the following proved findings
     is made", and specifically underneath that, part (b) of
     that paragraph where it say, "The officer has made a
     statement that he or she is a homosexual or bi-sexual, or
     words to that effect."
A.   Well, it say--mine here, "homosexual conduct is grounds
     for separation. Homosexual conduct includes homosexual
     acts or statement by a member that demonstrates a
     propensity or intent to engage in homosexual acts", that's
     what mine says.
Q.   Directing to attention to----
A.   (c), right here?
Q.   No, we're looking at different sections of the directive.
A.   In fact, that's my understanding. That's what we're
     talking about "conduct", right.
Q.   I'm taking the directive from the witness. Subsection (1)
     under (c), and in particular subsection (b) underneath
     that.
A.   Okay. [Document returned to witness.]
Q.   It says, "An officer has made a statement that he or she
     is a homosexual, bi-sexual or words to that effect",
     correct?
A.   Um-hum.
Q.   That's a grounds for separation, that's what's become
     known as the rebuttal presumption, correct?
A.   That's my understanding, yeah.
Q.   And then at that point, as the paragraph goes on, "Unless
     the Board makes a further approved finding that the
                           181
     officer has demonstrated that he or she is not a person
     who engages in...." and it goes on into the types of acts
     involved.
A.   Um-hum.
Q.   And that's the directive that's implemented that we're
     dealing with here today, correct?
A.   Yeah, as a whole. Not just this one part, because I see
     right here before it says, "homosexual conduct", and
     homosexual conduct includes homosexual acts, and then I
     think this is a key thing, which inconsistent to what
     you've been trying to get me to say, "a statement by a
     member that demonstrates a propensity", and I assume
     that's what they're talking about down here.
Q.   Well, it says, plain language, in both the statute, as we
     discussed before, and in this, that if he makes a
     statement that he's homosexual----
A.   No, it doesn't say in plain language. In plain language
     it says preceding that. I think that's the context that
     you're supposed to take that. I mean, as I write a
     directive, the way--you put the general and then you get
     to the specific. And the general is statements that imply
     conduct, and that's what I assume that they mean when they
     say here, okay. Because there's all kinds of statements
     that you could make, but we're talking about statements
     that indicate a propensity towards a certain type of
     conduct. I mean, why would that go first?
Q.   Because that's the nature of the----
A.   Yeah, that's right, because that's what they're trying to
     tell you, the emphasis is on conduct.
Q.   And then you go from the general to the specific, which is
     the concept of using generic, and that's the way you write
     a directive, correct?
A.   No, no, no, no. When I wrote directives, the general--in
     other words, what you want people to pay attention to, you
     put first, okay. And the first thing is, look, we're
     focusing on conduct here. It says right here, okay,
     "homosexual conduct. Homosexual conduct includes
     homosexual acts, a statement..." which is what we're
     talking about, ". . .by a member which demonstrates a
     propensity or intent". And then when you talk about the
     statement, I assume that you don't have to write it again.

                           182
Q.   Correct. I don't think we're in basic agreement.
A.   Okay, all right.
Q.   We may be in agreement as to what a specific statement
     means, and that was your testimony earlier.
A.   Right.
Q.   How long have you known Lieutenant Thorne?
A.   Well, I first met him personally during the hearing in
     Norfolk which, I think, was two years ago.
Q.   How many times have you met with him since then?
A.   Um--I--the next time I met him personally was here.     I've
     seen him on television.
Q.   Have you discussed his statement with him in any great
     detail?
A.   Absolutely not.
Q.   So you're not interested in exploring any more of what he
     meant by his statement?
A.   No, I just haven't had a chance to.
Q.   Do you have any personal knowledge whether Lieutenant
     Thorne has committed homosexual conduct?
A.   I do not.
Q.   Then you don't have any personal knowledge whether
     Lieutenant Thorne has an intent to engage in homosexual
     acts?
A.   I do not. All I know about is what I see in his fitness
     reports, which tells me he's a hell of a Naval Officer.
Q.   Are you aware--when you say "he's a hell of a Naval
     Officer", when you were in the Navy was it a common
     practice for a good Naval Officer to publicly criticize
     the policies of the Department of the Navy?
A.   I don't know what you mean "publicly". There's a lot of
     griping in the squadron, you know, about things that were
     going on.
Q.    That's the usual griping. I'm talking about--let's go
     back to the court-martial of Billy Mitchell, back in the
     '20's where public criticism was a doctrine----
A.   Yeah, there were a lot of people complaining about the
     bombing restrictions in Vietnam publicly.
                           183
Q.   Was that considered--in fact, in the Navy FITREP on the
     back, the Navy performance evaluation, one of the blocks
     you check off is whether the person supports Navy policy.
A.   Um-hum.
Q.   And that's one of the aspects of a good naval officer.
A.   Again, I don't know what you mean by "supports". I mean,
     we would--the people I knew who criticized the bombing
     restrictions would never violate them, but they would
     criticize them.
Q.   On national television?
A.   I mean, people criticized Secretary MacNamara for trying
     to get a common plane, the F-111, to be both a Navy and an
     Air Force plane, and they publicly criticized it to the
     press and the media. In fact, one Admiral testified
     before Congress and he was asked, "Well, what would you do
     if we give you this plane?" He said, "I'd push it off the
     side of the aircraft carrier." So, again, and as far as--
     and he got promoted, so, I don't know what you mean. I
     mean, he didn't do that but that was his opinion.
Q.   But that was his duty to testify truthfully in front of
     Congress. We've had some cases recently about----
A.   Well, I think that's a little----
Q.   ----lying to Congress----
A.   ----that's a little--that's a little bit far. I mean, to
     say what would you do if we gave you--I mean, that would
     be against the law, as far as I know, to push planes off
     the side of an aircraft carrier.
Q.   He made his point well to Congress who was making a
     decision on the aircraft at the time, correct?
A.   No, the Congress wasn't talking about that. The decision
     had already been made. Okay, and if read Admiral----
Q.   But they questioned him about it?
A.   ----Zumwalt's book, he makes it very clear that the Navy
     acted insubordinate with the TFX, that that, in fact, if
     the Navy had been supportive of the Secretary, that that
     plane would have been an effective Navy plane.
Q.   I believe you've digressed enough as to what happened
     during the '60's. As far as Lieutenant Thorne is
     concerned, you don't know him very well? You met him
                           184
          twice?
A.        No, I only know him--as I would if I sat on a promotion
          board looking at his fitness reports, which is----
Q.        So up until the time he appeared on national television he
          had--he had a good record, and that's what you saw?
A.        Yes.
AREC :              I have nothing further.
CC [MR. ZIEGLER]:   No questions.
LA:                 Do members of the Board have questions for Dr.
                    Korb?
CC [CAPT COOK]:     Captain Barnett?
                      EXAMINATION BY THE BOARD
[Questions by member (Captain Barnett)]:
Q.        Dr. Korb, while you were in your capacity of a reserve
          officer, did you ever sit on a Board of Inquiry?
A.        A Board of Inquiry? No, I sat in one--I was on a court-
          martial when I was on active duty.
Q.        How about while--assuming you had a command, were you ever
          a convening authority?
A.        No.
Q.        Well, what is your understanding as to the responsibility
          of a Board of Inquiry in a case like this?
A.        My understanding is that you're to make a determination on
          the basis of the facts presented to you, and make a
          recommendation as to disposition of the case.
Q.        Would you or would you not assume that to include
          determining the appropriateness of the Department of
          Defense policy?
A.        Well, I think that anybody who swears an oath to the
          Constitution of the United States, as commissioned
          officers do, are to use their best judgment in--in--in any
          case. I mean, for example, when I testified for
          Lieutenant Dunning there was an order of a federal court
          that said the ban is unconstitutional and the Department
          of Defense is enjoined from enforcing it. And the Board
                                185
     took that into account, even though that was different
     from the DOD directives. And the Department of Defense
     was actually held in contempt because--because of that.
Q.   In your understanding-- from your experience as a Naval
     Officer and working those Boards, and certainly from your
     experiences in DOD's top personnel, what is--what do you
     see as Lieutenant Thorne's responsibility in coming to the
     Board to show cause or rebuttal as a presumption?
A.   Well, I think that Lieutenant Thorne's responsibility is
     to show you that he's a fine Naval Officer, never done
     anything as a Naval Officer that would undermine the
     military commission, in the things that he's done, the
     people that he's flown with, that, in fact, he has a great
     potential to go on and maybe obtain the rank that some of
     you have.
Q.   I think, you know, drawing on your knowledge of Board
     procedure, I don't--none of those things are part of the
     question here, I don't believe. I believe the question is
     answering the rebuttal of presumption that he has--he
     partakes in homosexual conduct, because that's his
     statement.
A.   Well, again, I mean, he has made a statement of his
     orientation. As far as I know, there is no conduct
     related to that that can be necessarily implied anymore
     than says, "I'm a Catholic", that means "I go to church on
     Sunday," or, "I'm pro-life."
Q.   But, according to our policy, I'm just reading from the
     CNO message, paragraph 3(e), which defines a statement
     that a member is --statement that a member is a homosexual
     or bi-sexual or words to that effect means language or
     behavior that a reasonable person would believe was
     intended to convey the statement a person engages in,
     attempts to engage in, or has a propensity or intent to
     engage homosexual acts. So, my boss is telling me that if
     he makes a statement "I am a homosexual", that a
     reasonable person would probably draw the conclusion from
     that statement that there's going to be conduct associated
     with that statement.
A.   Again, not necessarily, because if you read what your boss
     says earlier, he's talking --his first statement is about
     conduct. It seems to me that--I don't know if Admiral
     Kelso, I assume Admiral Kelso put this out. I don't know
     if this with Admiral Boorda's statement. That he's
                           186
     telling you what you need to worry about is conduct.
Q.   But he's also telling me that this presumes conduct?
A.   Well, no. Well, I think, again, I think what he's telling
     you is there are statements and there are statements. And
     there are things that you can infer from what people say
     that, you know, indicate that, and then there are just
     other statements that merely acknowledges certain status
     rather than something that would lead you to think that
     the person would carry out. Again, if you use the analogy
     people follow a certain type of religion, if they make a
     certain statement which would lead you to think that they
     do things that other people say, you know, that I’m this
     or that.
Q.   Well, tied with that, I understand you reviewed his
     service record as if you'd sat on a Board?
A.   Pardon me?
Q.   I say, you reviewed his service record as----
A.   Yes, I did.
Q.   ----if you'd been a member of a Board looking him over for
     promotion. I presumed you reviewed it since he came back
     on active duty?
A.   I don't know. Do I have any of the statements? I don't
     think so.
Q.   It's part of 1 through--well, I'm--this is a government
     exhibit, 18, which is his service record, I guess. What
     I'm trying to get at here, and I'm trying--I'm looking for
     something to help me understand where in the testimony
     we're rebutting the presumption, and so tying together
     with this definition by CNO of what the statement infers
     with earlier testimony that he is now living with a known
     gay person, Michael Begland, and then in his service
     record he changed his service life insurance election and
     certificate, the primary beneficiary he made on that--he
     removed his mother from the primary --earlier document as
     primary beneficiary and made Michael Bagland a primary
     beneficiary. So would that lead a reasonable person to
     believe that there was more than a roommate relationship?
A.   Not necessarily. I think, again, there are lots of people
     who have good friends of the same gender, who loan money
     to them. Again, I don't think you can necessarily infer
     anything.
                           187
Q.        I'd only ask for the reasonable man's inference. I'm
          simply looking for something to help me find something in
          the testimony that addresses the rebuttable presumption,
          and so far I'm not hearing it. If there is anything in
          your testimony that I missed that specifically address
          Lieutenant Thorne's rebuttal of the presumption----
A.        Well, again, my testimony is that my whole purpose when I
          was in the Department of Defense, after discussing this
          policy change with Deputy Secretary Clader was, we're
          going to be consistent and it was going to be conduct.
          And--my whole assumption based upon this change was to put
          it more towards conduct, but to reenforce that. I mean,
          that was the whole reason the President brought up the
          issue in the first place, and that's what Secretary Aspen
          said after he issued the directive.
Q.        Again, I just-- I'm having a hard time. That all, to me,
          addresses the policy, and I don't think we're here to
          debate the policy. I'm trying to get to the specifics of
          rebuttal, and I fail to see it.
CC [CAPT COOK]:     Captain Smith?
[Questions by member (Captain Smith)]:
Q.        Just to your background, sir.   You indicated that you had
          21 years, I believe, in the service.
A.        Counting active reserve, 23.
Q.        Right. Were you ever a commanding officer of an
          organization?
A.        No, I was not.
Q.        Were you ever embarked in a ship of any type for any
          period of time?
A.        Yes, I was.
Q.        Can you describe that for me, please?
A.        Yeah, my last year I was on the staff, as I mentioned, of
          an Admiral who wore three hats, and we were embarked on
          three seaplane tenders, we rotated.
Q.        So you spent some period of time----
A.        Yes, I'm qualified as an Officer of the Deck underway,
          yes, sir.

                                188
Q.        I noticed from your declaration on page 5, and I'll quote
          for you, if you don't mind, sir. It is paragraph 13, it
          says, "On the other hand, to the extent that sexual
          misconduct threatens to undermine the discipline, good
          order and morale that is critical to the accomplishment of
          military missions, such misconduct can be, and is
          adequately addressed to exist in regulations, which
          prohibits such misconduct whether committed by homosexuals
          or heterosexuals." How would you define "misconduct"?
A.        Well, I'm talking about the conduct that's prescribed by
          the Universal [sic] Code of Military Justice, which
          doesn't make a distinction between heterosexuals and
          homosexuals who engage in certain types of prohibited
          sexual behavior.
Q.        So that would be forced?
A.        That would be forced. As my understanding, the last time
          I looked at it, any type of oral sex, even between
          consenting heterosexual, even between married
          heterosexuals is a violation of the Uniform Code of
          Military justice.
MBR [CAPT SMITH]:   Thank you, sir, that's all I have.
[Questions by member (Captain Cook)]:
Q.        Doctor, what were your degrees in? You mentioned earlier
          that you had a Master's.
A.        Political Science.
Q.        You were talking on leadership and you were referring to
          Lieutenant Thorne, and I believe you made the statement or
          words to that effect that an individual puts the mission
          of the organization ahead of the individual's agenda.
A.        Um-hum.
Q.        Would you put him in that category from the standpoint of
          his public proclamations and representing the Navy and
          what have you?
A.        I don't think there's any connection between the two.
          What I'm talking about, and it is well documented. It
          happened an awful lot during Vietnam that people were
          concerned about their own promotions, the services were
          concerned about budget shares rather than carrying out the
          mission. That's what I'm referring to. People knew that.
          People in my squadron would take off, fly around the field
                                189
     and land against so they could count it as two missions to
     get an air medal. That's the type of things, you know,
     that I'm talking about where people put their own careers
     ahead of the mission, and the men know that.
Q.   Having served on a carrier in Vietnam, I'm familiar with
     that particular problem. It helped to build a healthy
     competition between the carrier Navy and the VP Navy, but
     that's a different issue. Propensity, and I take from
     your particular statements, if I may--before I get into
     that I'd like to do one other thing. On the homosexual
     conduct discussion that we had in the document, the DOD
     instruction, it says, "Homosexual conduct is grounds for
     separation from the military services", and that's page 2-
     1, sir.
A.   The DOD instruction?
Q.   Yes, the DOD instruction.
A.   Okay.
Q.   ". ..is grounds for separation from the military services",
     but we sort of cut it short there, because it does say,
     "under the terms set forth in paragraph (c)(l)(b) below."
     And if you go over the (c)(l)(b) on page 2-2, I think it
     says, "The officer has made a statement that he or she is
     a homosexual or bi-sexual, or words to that effect, unless
     there is a further approved finding that the officer has
     demonstrated that he or she is not a person who engages in
     or attempts to engage in or has a propensity to engage in
     or intends to engage in homosexual acts." Now, if I take
     that over to the Navy instruction--that's the CNO message,
     sir, and it's on the third page, paragraph 8, "Officer
     Separation Processing Procedures." "Homosexual conduct is
     grounds for separation from the naval service. Homosexual
     conduct includes homosexual acts, a statement by a member
     that demonstrates a propensity or intent to engage in
     homosexual acts..." and then it continues. In your
     original directive, this is paragraph 7, "As the
     directives clearly stated the purpose was to authorize the
     military to discharge homosexual service members who
     engaged in or demonstrated a propensity..." Could you
     clarify what you meant when you drafted that article, or
     what was a propensity to engage in?
A.   Well, it's like the Supreme Court would say about
     pornography, it's hard to define in the abstract, but when
     you see it you know it. I mean, when a persons makes the
                            190
     type of statement that leads you to believe they are
     doing, intend to do certain things, and, obviously, its an
     individual judgment, which is why we have Boards of
     Inquiry and things to determine that. I mean, there are
     statements that you an make that say, "I am a homosexual
     and I intend to do this or that", that would be a
     propensity.
Q.   Okay, and then the term "propensity" has been used in a
     subsequent documents following that. In the Navy
     document, and I'll refer to that instruction. It's on the
     front page, paragraph 8, it has a definition. "Propensity
     to engage in homosexual act means more than an abstract
     preference or desire to engage in homosexual acts. It
     indicates a likelihood that a person engages in or will
     engage in..." Do you agree with that definition?
A.   Well, I think that's what we're talking about. The
     abstract and the real, if you will.
Q.   The evidence presented to us-- they go from propensity and
     they go from definitions in a statement that Lieutenant
     Thorne is a homosexual, and then I begin to wonder where
     do you cross the line on propensity? Would actions on his
     part approach that line or carry across there, actions
     such as he's notified other members of his command that
     he's a homosexual and he's stated that. I think under
     your definition you say that's not a propensity.
A.   No, no, but I think they are very clear on that. I mean,
     it talks about if you have a picture of someone of the
     same gender, I mean, that's not to be construed as
     evidence. I think it has to be very close to talking
     about engaging in homosexual acts.
Q.   If he moved in with a homosexual roommate and lived with a
     homosexual roommate, would that--and he's a stated
     homosexual, would that be a propensity?
A.   No.
Q.   That does not?
A.   Not in my view.
Q.   If he took another act, as indicated by Captain Barnett
     and then changed his insurance to that individual that he
     lived with, would that indicate a propensity to you?
A.   No.

                           191
Q.        Bear with me just a second, if you would. Now, in the
          instruction, this is the DOD instruction, and it's page 8-
          2, sir.
A.        Page what?
Q.        8-2. This is in the government's evidence, Lieutenant
          Dutton.
 LA:                Is that the Guidelines for Fact Finding
                    Inquires, sir?
MBR [CAPT COOK]:    It's the basis for conducting that.   that's the
                    section.
REC:                May I approach?   8-2, sir?
MBR [CAPT COOK]:    Yes, sir.
[Document handed to witness by Recorder.]
Q.        It's under section (c), Dr. Korb, the basis for conducting
          inquiries. It says, "The basis for the discharge exists
          if..." and I'll go to (2)(b), "...the member has said that
          he or she is a homosexual or bi-sexual or made some other
          statement that indicates a propensity to act." And then
          it goes down, if we can, to (3)(d), which I think
          addresses the case that you made earlier, "The only
          information known is an associational activity, such as
          going to a gay bar, possessing or reading homosexual
          publication, or associating with known homosexuals, or
          marching in gay-rights rallies." Those, in and of
          themselves, don't constitute it, but it seems to me that a
          reasonable person puts those two in conjunction with each
          other, you have a propensity. Would you care to comment
          on that?
A.        No, and, again, I think that was the whole purpose of this
          is to be a little bit clearer about what we're talking
          about in propensity, and that's why they gave examples.
          Because I think previously people would say that--you
          know, I can remember when I was in the Pentagon reading a
          column in the Washington Post in which certain action was
          taken against an Air Force officer in theoretically
          carrying out my directive. And when I found out about it,
          I called the Secretary of the Air Force, Chief of Staff of
          the Air Force, and I said, "Get that person out of prison.
          That's not what we meant." And they did, and I was right.
                                192
     The Court of Military Appeals overturned that. So this is
     what I'm saying, that, in fact, they're trying to say what
     some people in the past or some people had thought was
     propensity, in fact, is not. And I would say that many
     people reading that would say, "Well, that's propensity,
     and that's why you put it in there, to show you can't
     necessarily infer the conduct on the basis of that."
Q.   Okay, this is item 13 in the defense's case. It's
     Lieutenant Thorne's letter to the Commander, Naval Air
     Systems Command, and specifically paragraph 2.
A.   Okay.
Q.   I guess I'll start at the beginning. It says--it states,
     "As you may know I was previously processed for discharge
     and transferred to the inactive stand-by reserve after I
     acknowledged my homosexual orientation. I'm proud to be
     who I am and I do not deny my sexual orientation. I
     believe, however, that my sexual orientation is in no way
     related to my ability to serve as a Naval Officer." Now I
     want to get into the part of the paragraph that I think
     may be germane. "I've no interests or involvement in
     sexual behavior that involves force, coercion or
     intimidation, abuse of position or rank, subordinates, or
     minor persons, or any conduct that relates directly to
     applicable security standards for access to classified
     information. I agree and accept that sexual conduct by
     military personnel aboard military vessels, aircraft and
     other areas under military control is properly subject to
     military regulation, included complete prescription, and
     will in all aspects abide by those regulations." Now,
     "Beyond these assurances I consider my sexual life,
     whether orientation or conduct, as private as anyone
     else's and I do not believe it should be of interest or
     concern to the Navy." Now, I think that paragraph might
     have significance to what it doesn't say. Basically it
     has eliminated all the things that I will not do. It says
     "I'm a homosexual" and it says "I consider my sexual
     life," a reasonable person would imply that he had a
     sexual life, "and whether orientation or conduct as
     private as anyone else's." Is that a logical
     extrapolation in you mind?
A.   That a person's private life ought to be private?
Q.   No, that was not the question. The individual went
     through a number of items. He then said, "I consider my
                           193
          sexual life", that would imply to me that he has a sexual
          life, and he has stated that he is a homosexual. Is that
          a logical extrapolation on what is said there?
A.        Oh, I think what he's saying there, and, again, you'd have
          to ask him what he means, but my thing is he is saying
          that he considers that private. Going back to the point
          that was raised by your colleague, Captain Smith, if we
          ever enforce the UCMJ regulations, we would--you know, we
          would not have many people left in the service, and I
          think what we're saying, basically, is if this is your
          private life and it doesn't interfere with the military
          mission, we're not going to check them, whether you engage
          in all of these, you know, so called, you know, things
          that are prohibited by the Uniform Code of Military
          Justice. My assumption is that he's basically saying that
          type of thing.
Q.        But the Thorne case aside, if you read that, would you
          conclude that the individual had a sexual life?
A.        No, not necessarily. He's saying this is private.
MBR [CAPT COOK]:    It's saying it's private. It says "I have a
                    sexual life." Okay, we don't need to dwell on
                    that particular point. Bear with me, I'm going
                    to jump around here in these exhibits. I think
                    that concludes all the questions I have at this
                    time. Captain Barnett indicates he has another
                    question.
[Questions by member (Captain Barnett)]:
Q.        I appreciate your patience, Dr. Korb, but we appreciate
          having an expert witness to work with to help us muddle
          through what is a somewhat foggy issue. We've had an
          extensive amount of testimony which you weren't privy to
          throughout the course of this Board of Inquiry regarding
          the honesty of Lieutenant Thorne, which is very good and
          certainly supports why he came forward as he did. In
          fact, Mr. Lee even indicated that his sister said
          throughout his early life he was honest to a fault. I
          think we've had adequate testimony that he is an
          explicitly honest person. So taking that, and reading
          this article in the Times Picayune of August lst, 1993
          where he's interviewed by John Pope, Staff Writer, and
          he's--he's responding to a question about he isn't much
          happier about President Clinton's solution which forbids
                                194
          the military to ask about sexual orientation but forces
          people to keep quiet on the subject. In quotes, "I'm
          really disappointed, he said. Do I want to come in and
          talk regarding my sex life? No, I really don't want to
          have to lie. That's really immoral." Now, what kind of
          conclusion would you draw from that?
A.        Well, I think----
Q.        Based on the face that he's an explicitly honest person,
          and he's saying that if he has to come in and answer
          questions about his sex life, that he would have to lie.
A.        Again, you'd have to ask him--you know, in his mind. But
          what I would say is that when you have a policy that's
          been named "Don't ask, don't tell", in my view that is not
          an invitation to people to be honest and up-front about
          questions. And I think a lot of people who were involved
          in this situation felt--you may remember when Secretary
          Aspen had the chief testified on this nobody seemed to
          know what was allowed, what was not allowed, what was
          meant. There was a great deal of confusion, and, I think-
          -that's my--you know, that's how I would read it. The
          frustration.
Q.        Well, then you can appreciate the frustration we're
          having. Our position here is not to rule on policy.      It's
          to rule on compliance with policy.
A.        Oh---

MBR [CAPT COOK]:    Captain Smith, you have any questions?
MBR [CAPT SMITH]: No.
MBR [CAPT COOK]:    I don't have any other questions at this time.
LA:                 Counsel, in light of the Board's questions?
CC [MR. ZIEGLER]:   No, I think the Board has covered the issues
                    that I had on redirect.
AREC:               No, sir.
LA:                 Dr. Korb, thank you very much for coming in.
[The witness was excused and withdrew.]
CC [MR. ZIEGLER]:   Captain Cook, I wonder if I could request a
                                195
                    brief recess before we proceed with Lieutenant
                    Thorne's statement?
MBR [CAPT COOK]:    Certainly. The Board will stand in recess until
                    1145 and reconvene at that time.
[The Board recessed at 1132 hours, 13 July 1994.]
                              * * * *




                                196
[The Board was called to order at 1155 hours, 13 July 1994. All
parties previously present were once again present.]

MBR [CAPT COOK]:    The Board is back in session.   You may proceed.
CC [MR. ZIEGLER]:   Mr. President, at this point in time Lieutenant
                    Thorne would like to make an unsworn statement.
MBR [CAPT COOK]:    Lieutenant Thorne?   Are we going to be provided
                    a copy of that?
CC [MR. ZIEGLER]:   Yes, sir.
RESPONDENT:         Good morning, Captain Cook, members of the
                    Board. I am Lieutenant Tracy William James
                    Thorne. I'm an American. I'm a naval officer,
                    and I am a gay man. Today I would like to tell
                    you a little bit about myself and my love of
                    country and of the Navy we proudly serve in.
                    Today I will place in your hands as my fellow
                    officers my hopes and dreams, and ask simply
                    that you do the right thing.
                    I've had what many might describe as a unique
                    opportunity for a junior Lieutenant, that is
                    that I've served in the Navy twice. Twice I
                    have left the civilian world to put on this
                    uniform and someday twice I will have left it.
                    And while in most aspects, those two tours have
                    been identical, in one aspect they have not.
                    You see, the first time I served my country as,
                    to all appearances, a heterosexual, a person the
                    Navy expected and wanted, a person they were
                    willing to spend millions of dollars to train, a
                    person they praised over and over again in
                    fitness reports, a person who earned the highest
                    possible recommendation for accelerated
                    promotion.
                    Now the Navy has a different Tracy Thorne. I am
                    still devoted to my country. I still love the
                    U.S. Navy, and am committed to its goals and the
                    values that it fosters. I still achieve. I
                    still get the job done. I still received
                    praises from my superiors and still get high
                                197
marks from those who work for and with me. The
only thing that is different now is that I'm
honest with myself and I'm honest with you. Let
me repeat that. The only thing that is
different is that I am honest with myself and I
am honest with you.
My first day in the Navy was May 31st, 1989.
Shortly after graduating from Vanderbilt I
started as an officer candidate in Aviation
officer candidate school aboard Pensacola Naval
Air Station. In reality the Navy had started
for me more than two years earlier. It had
started with a book that some of you may have
read. It started with a book called "Flight of
the Intruder". It was a book about naval
aviation. It was a book about the A-6 Intruder
and the Vietnam war, and that book captured my
imagination and started my dream of someday
wearing these wings of gold.
I picked up that book one day and sat down on
the front steps of my fraternity house at
Vanderbilt, and I was immediately captured. I
read that book cover to cover in one day, and
the very next morning I was sitting in front of
a U.S. Navy Recruiter asking him how I could
make that book a reality for me. I thought, as
you have, that maybe it was just a whim or an
impulse when I went to that recruiter. But it
wasn't, and two years later I walked up the
steps of that red brick building in Pensacola,
and I walked underneath the sign that read
"Through these doors walks the future of Naval
Aviation."
I worked hard at AOCS to stay on top. Seventy-
two candidates walked through those doors with
me, but by my graduation 14 weeks later there
were only 32 left. Of those remaining, I was
ranked fourth. As a candidate officer, I'd been
given command of the G and X companies, and at
my commissioning ceremony I was given
outstanding achievement awards in physical and
academic training. I’m sure you all remember
the day you received your commission as ensigns.
            198
I know that I do, and I know it was the proudest
day of my life, having my family there with me.
Over the next year I went through three phases
of flight training at VT-10 and VT-86, and I
learned what it meant to put in long hours. I
remember the late nights we all spent studying
for a mission. I remember the long days in the
chart room measuring out target times to the
second. I did that because I knew how important
it was to be on top and on target. I'm sure
you, Captain Cook, remember riding to a briefing
playing those NATOPS numbers over and over again
in your head. I remember the satisfaction of
following that sunrise pre-flight, of all the
mission planning coming together, and making a
successful mission.
In basic, intermediate, and advanced flight
training I worked hard to be at the top of my
class. The help that I had received from my
instructors and my comrades, the long hard hours
I had put in paid off in the end. I graduated
with the highest grades for the fiscal year
earning what was known in the Training Command
as "Top Gun" honors. But my true pay off was
not found in honors or the Commodore's list. My
greatest joy was a set of orders handed to me
sending me off to Oceana Naval Air Station, the
home of the A-6 Intruder.
For the next 14 months I was consumed by
systems, diagrams, lectures, briefings, and
eventually flights in that old airplane. Hour
after hour was spent in the chart room preparing
flip charts and radar predictions. Eventually,
we made it to the weapons stage and finally
finished off with the ultimate test: CQ. With a
good bit of luck on my side, I found myself
again in the number one slot.
Life in the fleet was even more fast paced. the
pace of operations nearly consumed me. Yet, I
relished the opportunity to be a part of the
best A-6 squadron in the United States Navy, the
Fighting Tigers. Now, as opposed to just
            199
flying, the true job of   a naval officer became a
reality for me. I took    up my role as a division
officer, and in the end   inherited five separate
collateral duties, more   than any other officer
in the squadron.
My primary duties placed me as the direct
supervisor for a division that ranged in size
from five to nine men. I provided leadership to
the unit, counsel to the individual, and
encouraged the group as a whole to work together
always keeping foremost in their minds the
interests of the United States Navy and our
nation as a whole. My life in VA-65 was the
culmination of my dream that had started four
years earlier with that book.
Must of what I did in VA-65 is similar to what I
do now. In January of this year I received
orders to Naval Air Systems Command in
Arlington, Virginia. There I was detailed as an
Information Management Division supervisor, what
you may know as AIR 714. While I knew very
little about computers and even less about fiber
optic networks, I looked forward to the
opportunity to make a contribution to our team.
Two days ago you heard my skipper testify as to
my performance at NAVAIR. I am truly grateful
for the opportunities he has given me as a team
member. My success was possible largely because
of his support. Without him, none of my
accomplishments would have been possible. You
see, he made it clear to the team when I went in
that he was giving me full authority to do what
was needed to make things work, and if there
were problems he was going to be there to back
me up. Because I had his support, I had my
teams support, and that was all that was
necessary to make things work. Just as I had
done in my previous years in the Navy I took on
the task and got the job done, contributing to
the larger goals of our organization. Except
this time, I was honest with myself and I was
honest with others about who I am. I'm proud of
my accomplishments at NAVAIR, and I'm proud to
            200
be a part of the team.
Clearly, my love of the Navy, the jets I flew,
and the people I worked with raises the question
then, why didn't I just keep my mouth shut? Why
couldn't I just keep it quiet and do my job like
all the other gays and lesbians in the armed
forces?
I don't know why I am gay. My family doesn't
know. The simple fact of the matter is that no
one really knows why I am gay. While a
preponderance of the evidence shows that at a
bare minimum there's a biological origin,
there's no conclusive evidence. What I can tell
you, gentlemen, is that I didn't choose to be
gay. I didn't choose to be gay any more than
any of you choose to be straight. I never
rolled out of bed one day and said, "I think
I'll chose my sexual orientation today." It
just doesn't happen that way. And I doubt that
any of you could understand why anyone would
choose to be gay. In so doing you're inviting
public disapproval and ridicule. You invite
discrimination, to include the loss of your job,
your family and even your very life. I may not
have been happy in the past about being gay, but
that's what I am. It may very well have taken
me the better part of 24 years to come to that
conclusion, but I have and I'm proud of it. I
could no more wish it away if I wanted to than I
could the color of my skin. But, as each of you
know, and as I have finally come to realize, in
life you've got to play the hand you've been
dealt.
With that said, I really didn't have a choice as
to whether or not I was going to be open about
it or not. But as you've heard, I am honest.
It was a simple matter of truth for me. My
mother and father raised me to respect the
truth, perhaps to a fault I have always been
honest. So when I finally came to accept the
fact that I was gay, it was only natural for me
to let those who were part of my life know about
it.
            201
I slowly began to open up to those who were
closest to me. I was honest to one of my
closest friends in the squadron, Lieutenant
Suko. Prepared for total rejection, I actually
found acceptance. Prompted by that acceptance,
I decided to open the door a little bit wider
and was honest with another squadron mate with
the same positive results. I felt a little bit
better about myself, but the questions still
occasionally arose in the squadron about the
young Lieutenant (junior grade) Thorne, why he
wasn't out at all the parties. One excuse after
another led me to eventually outright lie as to
why I couldn't go out with my squadron mates
friends or sisters. I simply wanted to be
forthright with those whose confidence I had
earned. Nothing more, nothing less.
Over the next several months I did a lot of
reading about the history of lesbians and gay
men in our armed forces. I read about Sergeant
First Class Perry Watkins, United States Army,
who, when he was drafted in 1968 told the
military he was gay. The military was in the
middle of a war and they didn't care. They
drafted him anyway. Perry Watkins served his
country well for over 13 years as an openly gay
decorated soldier. He re-enlisted several
times, but his retirement began to grow near and
publicity over the army's openly gay soldier
started to appear and the military decided it no
longer needed Perry Watkins, and it discharged
him for his sexual orientation in spite of pleas
of his commanders to keep him. Perry was no
longer of use, you see. The war was over and we
were at peace.
I read about Lieutenant (junior grade) Tom
Dooley, the young Navy doctor who set up a
string of hospitals throughout Vietnam, and was
responsible for the immunization and treatment
of over 600,000 Vietnamese refugees, a man who
was listed in a 1959 Gallop poll as the 7th most
admired man in America. Tom Dooley was forced
to accept a dishonorable discharge, because Tom
Dooley, the most famous naval officer of the
            202
time, was a homosexual.
As disheartening as these stories were and as
much as it brought into question my faith in the
Navy, it was an incident that happened about
half-way through my RAG training that started a
process that would change things forever. One
of my classmates and an instructor at VA 42 were
killed on a low level training mission. That
accident caused all of us to do a lot of
thinking, but it struck a particular chord in
me. Simply because of the nature of our jobs, I
know that each of you has probably faced the
same situation several times. The death of a
comrade makes you step back--the death of a
comrade makes you step back and question life
and what you are doing with it. Rob's death
really caused me to think. I knew that I was no
better than Rob, and I knew that deep down
inside it could have been me that was in that
airplane. And if I could have been killed, I
was forced to ask myself, "HOW many other
lesbian and gay men have died serving their
country and nobody knew it?"
I'm telling you this only to describe to you I
couldn't just sit back and pretend that I was
what everyone else wanted me to be. This isn't
about some broader agenda; it is about Tracy
Thorne; this is about the military; nothing
more. I just couldn't reconcile being part of
an organization that was supposed to support
liberty and justice for all, when all didn't
include me. So when I saw an opportunity to
shed some light on the issue, which I'd felt had
been in the dark for far too long, I took that
opportunity to be honest about myself hoping
that it might cause at least a few Americans to
reevaluate the situation.
Congress was moving on the issue. The debate
was underway. I made a real life decision. I
put my career, my dreams, everything I had on
the line just so I could be honest about who I
am. I agree, as you do, that the mission is
foremost and nothing else should be put ahead of
            203
our mission. I never put myself or my needs
ahead of the mission, and that is why I always
informed my commanding officers of my actions so
they could take proper actions and notify the
proper authorities.
It's ironic that my honesty, the simple truth,
is what may very well do me in. I now face the
rebuttable presumption. We've heard a lot about
the rebuttable presumption today, but in reality
there is nothing for me to rebut. I have made
no statements about conduct. I've made
statements about who I am. And there's been a
lot of talk today about honesty. That's right,
I don't want to lie about who I am, and I have
told the media that. It's not about conduct.
It's about who I am.
As a result of telling the truth, for the second
time in my life, I stand before a Board of
officers and talk about the most personal
aspects of my life. I doubt it's easy for you.
I know for sure it's not for me. I don't think
that you would want to talk about your private
lives in public, and I know, for sure, that I
don't.
Nevertheless, the regulations you'll consider
here today list several areas of conduct
specifically prohibited for naval personnel. I
want to assure you, gentlemen, that we are in
agreement on this. I, like you, believe that
sexual behavior that is degratory to good order,
discipline, or moral has no place in our armed
forces. I, like you, feel that the Navy has no
place for those who engage in sexual harassment
or use force, coercion, or intimidation for
their personal interests. I, like you, believe
that those who engage in fraternization are
destructive to the accomplishment of the
military mission. And I, like you, agree that
those who would lure minors into illegal,
immoral or improper relationships are guilty of
crimes worthy of the most severe punishment. I
agree that sexual conduct by military personnel
aboard vessels, aircraft or other areas of
            204
military control is properly subject to
regulation, including complete proscription, and
I will abide by those regulations in total. I
do not condone this behavior, nor will I
tolerate it Beyond these assurances, however, I
consider my personal life to be worthy of the
same right to privacy that you, or any other
military officer, enjoys, the same right that we
all enjoy under our Constitution.
Today, I ask you to allow me to remain an
officer in the United States Navy. I am well
aware that the chances of me having a full
career as an aviator are fairly remote at this
time. The Navy took away flying from me more
than two years ago when they put me into a desk
job. Since that time my squadron has been
decommissioned and the old A-6 is being phased
out. And as an officer holding a reserve
commission in a time of steep cutbacks, I know
that my time may very well have been limited
even if I'd never told the truth. For one
reason or another, my career as an active duty
aviator, has been irrevocably damaged.
My Dad had recently told me that there are times
when you have to pick up and move on, that
there's a time when you've done your part and
its appropriate to start planning for your own
future. Maybe I have reached that point in this
fight. Maybe it's time for me to cut my losses
and move on with life. I may never fulfill the
dreams I once had, but, perhaps, there will be
new dreams.
The future for Tracy Thorne is really unclear
now. I don't know whether my contract will be
renewed this fall. But one thing seems
apparent, one way or another I will be leaving
active duty on or about 01 October 1994. I have
made plans to start graduate work as a civilian
this fall. This is certainly not what I would
have wanted. Had I been given the chance, I
would have augmented my commission to the
regular Navy and begun planning for a career in
our Navy. Unfortunately, that is just not going
            205
to be in the cards for me this time around.
Still, my love for the Navy and what it stands
for is strong, and I want to continue my
affiliation with it in whatever way possible.
If I can not have the active duty career I once
dreamed of, I can at least have in part that
dream, and remain a member of the reserve forces
and serve my country as my country needs me. I
have submitted the appropriate paperwork to
affiliate with a local reserve unit at the
termination of my active duty career. This in
some small way will give me the opportunity to
continue in the service of our nation. I would
hope that over time my service could set an
example, as it has over the last two years, that
gay and lesbians Americans can and do serve
their country with honor and pride.
At my last Board of Inquiry my father gave very
moving testimony in support of me. It was not
easy. He had gone through a difficult time
accepting the fact that I am gay, but in the
end, he recognized that I was the same person I
had always been and he recognized that what was
happening was wrong. My father would have been
here today with the rest of my family. He would
have been here to speak with you three
gentlemen. He would have been here to standup
for what was right. Unfortunately, my father
was killed two weeks ago when an engine failed
on his aircraft during takeoff. I don't know
for sure exactly what he would have said today.
I do know that I could not possibly improve on
what he said before. To do so would be very
unwise. But I will do my best to tell you some
of the things he might have shared with you.
My father was a kind, gentle man that grew up in
Mississippi. He was raised in the heart of
prejudice, and, yes, he was a man full of the
same. He was raised to think that some of us
were better than others. That was what his
parents had taught him, just as their parents
had taught them. My father left Mississippi to
become a doctor and a surgeon, but in the end he
            206
became more.    He became a healer..
Over the years--over the years he had learned
people are all pretty much the same inside.
When he gave them medicine, they all reacted the
same way. He learned, in the end, that we all
have too much in common and too many important
callings in life to squabble over the few things
with us that were different. He would have told
you, in his own simple way, that he really
didn't understand what we were fighting about
here because we're all supposed to be on the
same side. And he would have told you that when
the times get rough and the bad guys start
rolling up on the shore, that we'd all pick up
sticks and go down to the beach and knock them
back into the water.   Had he the chance, he
would be standing here behind me with his hand
on my shoulder and he would be demanding that
you as Naval Officers whose only oath is to the
Constitution of our nation, he would demand you
judge me on my performance and my abilities, not
on the prejudice of others.
In the end, he would have told you that he knew
how bad you must really feel having to do what
you're doing here today. And when you go home
tonight, when this is all over and done with, he
would have told you to find somebody that you
love. He would have told you to tell that
special person what you have done today and how
badly it makes you feel. He would have told you
that doing just that would make you feel a
little bit better, because at lease one more
person will know the truth. In the end, the
truth always makes you feel better. He would
have told you these things, because, in the end,
in the end my father-- in the end my father was a
healer.
I joined the Navy because I believe in three
things. I believe in duty. I believe in honor.
And I believe in country. I am here today as
Lieutenant Tracy William James Thorne. I'm a
proud American. I'm a proud Naval Officer, and
I am a proud gay man. I have earned my wings of
               207
                    gold, and the rank that I wear upon my
                    shoulders. I wear it with pride, just as you
                    do, and I have earned my rightful place in the
                    United States Navy. Captain Cook, members of
                    the Board, I ask you to recommend to the
                    Secretary of the Navy that I be retained In the
                    United States naval service. Thank you very
                    much.
MBR [CAPT COOK]:    Thank you, Lieutenant Thorne. It is very moving
                    testimony, and I know it was very difficult for
                    you and you did it admirably. I would like to
                    have the Board stand in recess at this time and
                    reconvene at 1400.
[The Board recessed.]
                              * * * *

[The Board was called to order at 1405 hours, 13 July 1994. All
parties previously present were once again present.]

MBR [CAPT COOK]:    The Board is back in session. I believe we have
                    completed the respondent's case?
CC [MR. ZIEGLER]:   That's correct, Mr. President.
MBR [CAPT COOK]:    We'll then proceed to the case in rebuttal and
                    sur-rebuttal. Lieutenant Dutton?
REC:                Sir, the government has one document in
                    rebuttal. It is a report of the hearing before
                    the Military Forces and Personnel Subcommittee
                    of the Committee on Armed Services in the House
                    of Representatives, hearing held July 21st,
                    22nd, and 23rd, in which the testimony of the
                    Honorable Jamie S. Gorelick, General Counsel,
                    Department of Defense, was taken before the
                    committee in which she explained the Department
                    of Defense's understanding of the homosexual
                    instructions and the rebuttal presumption. A
                    copy has been provided to the counsel for the
                    respondent.
CC [MR. ZIEGLER]:   Major Stutzel, we object to the introduction of
                                208
                    this exhibit on the grounds of relevance. I
                    believe that yesterday you ruled with respect to
                    a number of exhibits offered by the respondent
                    that so called legislative history, that is
                    documents reflecting the history of the
                    evolution of the policy prior to the
                    promulgation of the regulation would not be
                    admissible. And on that basis you excluded a
                    number of exhibits we had proffered. And I
                    think on that same rationale the exhibit being
                    proffered by the government ought to be
                    excluded.
LA:                 Let me take a look at what we've got here.
REC:                I would state, if I may, in response today, in
                    fact, there was testimony by Dr. Korb of his
                    statements before similar committees of Congress
                    and of his understanding of the interpretation
                    of the policy, and, in particular, the
                    rebuttable presumption and what raises it. This
                    is--since that evidence was admitted and is
                    before the Board, this is evidence that is
                    directly in rebuttal to that and statements that
                    are confined fairly directly, actually, to
                    statements similar to what Dr. Korb made but
                    with a different conclusion.
CC [MR. ZIEGLER]:   Major Stutzel, Dr. Korb gave his testimony
                    without objection from the recorder. I would
                    also note that the testimony he gave was
                    specifically directed to Lieutenant Thorne's
                    statements and Lieutenant Thorne's situation.
                    And to the extent that he gave any testimony
                    with respect to remarks that he had made before
                    Congress or in other forums, they were offered
                    only for the purposes of explaining the basis of
                    his opinion, and, I think as such, were
                    appropriate. And, again, I would note that the
                    government made no objection at the time to that
                    testimony. And I think that in the interest of
                    consistency with respect to yesterday's rulings
                    as to some of the legislative history, or so
                    called, we had offered that this would not
                    fairly be admissible. And I think, moreover,
                    while I haven't had a chance to read the
                                209
                   exhibits since it was just given to me a few
                   minutes ago, that my understanding is that this
                   testimony was with respect to the statute that
                   Congress passed and not specifically to the
                   Defense Department directives or the Secretary's
                   instruction, and, as such, I don't think it is
                   relevant for that additional reason since that's
                   not the basis for this proceeding.
REC:                It's the government's memory that there were
                    objections raised even before today--yesterday,
                    to Dr. Korb's testimony, to the nature of the
                    testimony, and it was overruled by the legal
                    advisor. We accepted it, and are simply asking
                    to offer the DOD's interpretation of the very
                    policy that Dr. Korb testified to at some length
                    today. The DOD's understanding and
                    interpretation of the policy is relevant to shed
                    further light on Dr. Korb's testimony, and
                    that's all it's offered here to show today.
LA:                 I'm going to allow you to publish--I guess we
                    haven't marked it yet, whatever the next
                    government's exhibit in order would be--to the
                    members. Members, it may be considered, again,
                    of course, not because the Board has any duty or
                    responsibility to determine the appropriateness
                    of the current or past policies regarding
                    homosexuals in the military, but for whatever
                    weight and content it has, if any, that might
                    tend to rebut Dr. Korb's opinion as to what
                    propensity and statements under the current
                    policy and how--how the current policy should be
                    interpreted.
REC:                Thank you, sir. Do I understand the next
                    government exhibit is number 30?
REPORTER:           Yes, sir.
REC:                I have what is currently marked as Government
                    Exhibit 30, and I have a copy I'd like to
                    publish to each member.
[Exhibit distributed to each member.]

                                210
REC:                The government rests its case in rebuttal.
LA:                 Sur-rebuttal?
CC [MR. LEE]:       We have no sur-rebuttal, thank you.
MBR [CAPT COOK]:    I understand all evidence is presented?
REC:                Yes, sir, it is.
CC [MR. ZIEGLER]:   Yes, Mr. President.
MBR [CAPT COOK]:    Does the recorder desire to make closing
                    argument?
REC:                Yes, sir.
MBR [CAPT COOK]:    One question before we proceed.   May we ask
                    questions during this?
LA:                 During the argument, sir?
MBR [CAPT COOK]:    During his presentation for clarifications? Is
                    it appropriate to ask questions during his
                    presentation?
LA:                 It is rather unusual, I guess, I would say, sir.
                    I don't know that there is necessarily any
                    prohibition against doing it or anything that
                    indicates that that is proper or not. Either
                    side have any objections if a member of the
                    Board deems it necessary to ask a question?
REC:                I do, actually, and the basis objection I would
                    have is not to answer any of your questions but
                    rather to--I don't want, as an attorney in the
                    case--to get in the position of becoming a basis
                    of evidence in any way. One of the fundamental
                    rules of Western jurisprudence is that the
                    evidence comes from outside the attorneys, and I
                    would prefer not to inject myself inadvertently
                    or otherwise as a source of evidence. Having
                    said that, I have no problems with you asking
                    any questions of clarification to the legal
                    advisor for purposes of clarifying the law.

                                211
MBR [CAPT COOK]:   Proceed.
REC:               Thank you, sir. Gentlemen, as I began the
                   hearing with my opening, it is the policy of the
                   Department of Defense that conduct is a basis
                   for separation. However, there are two ways in
                   which statements can be held as conduct, because
                   there are really two types of statements at
                   issue. And that causes the issues to be framed
                   as follows, and I'll repeat again what I said
                   when we came in. Number one: Has Lieutenant
                   Thorne made a statement or statements which
                   directly indicate, in and of themselves, a
                   propensity or intent to engage in homosexual
                   acts? That comes from the CNO message,
                   paragraph 3, the definition of homosexual
                   conduct, CNO message, paragraph 8, Homosexual
                   Conduct as a Basis for Separation and Officer
                   Separations. And it comes directly from the DOD
                   instruction, 1332.30.
                   The second similar issue comes from the same
                   sources. Has Lieutenant Thorne made a statement
                   that he is a homosexual, thereby raising the
                   presumption that he engages in homosexual acts
                   or has a propensity or intent to do so? And,
                   following from that, has Lieutenant Thorne to
                   your satisfaction rebutted that presumption?
                   Lieutenant Tracy Thorne is an admitted
                   homosexual. He has made many statements that he
                   is, in fact, a homosexual, some before you
                   today. And under the existing regulations his
                   statements that he is a homosexual are enough,
                   standing alone, to find that he has committed
                   homosexual conduct if you find that they have
                   raised the presumption as required under the
                   regulations, and that that presumption is
                   unrebutted.
                   But there's much more to this case. There is
                   admitted before this Board a substantial body of
                   evidence which is, itself, defined as homosexual
                   conduct, that is evidence which in and of itself
                   is a statement of a propensity or intent to
                   engage in homosexual acts.
                               212
                    Now, in my closing argument here before you,
                    gentlemen, I'd first like to outline the
                    specific pertinent parts of the regulations
                    which apply here, that is the CNO message and
                    actually I will take the language, it's the
                    same, directly from the DOD instruction. These
                    implement the Congressional statute and the DOD
                    regulations concerning homosexuals in the
                    military. Then I would like to review the
                    evidence that makes it very clear, not only is
                    Lieutenant Thorne a homosexual, as he stated,
                    but he has also a propensity or intent to engage
                    in homosexual acts.
[Referring to Chart.]
                    First the regulations. DOD Instruction 1332.30,
                    in enclosure (1) in the definitions, and
                    likewise in the CNO message, states that there
                    are three forms of homosexual conduct. First, a
                    homosexual act. That's pretty straight forward.
                    Second, a statement that demonstrates a
                    propensity or intent to engage in homosexual
                    acts, a statement that in and of itself
                    demonstrates the propensity or intent to engage
                    in homosexual acts. Or, third, a homosexual
                    marriage.
[Referring to Chart.]
                    The DOD instruction goes further in enclosure
                    (2) under the reasons for separation to state
                    that homosexual conduct is grounds for
                    separation from the military service.
                    Homosexual conduct--act, statement, or marriage-
                    -is grounds for separation from the military
                    service. That's enclosure (2) of DOD
                    Instruction 1332.30, and also in the OPNAV
                    message. Homosexual conduct, again, in that
                    same section is defined, and what it says is
                    that a commissioned officer shall be separated
                    under this provision if one or more of the
                    following approved findings is made: That the
                    officer has engaged in homosexual acts. Sounds
                    familiar, that comes right out of the
                    definition. That the officer has made a
                                213
statement that he or she is a homosexual or
words to that effect. A statement that he or
she is a homosexual or words to that effect.
And unless there is an approved further finding
that the officer has demonstrated that he or she
is not a person who engages in or attempts to
engage or has a propensity to engage in or
intends to engage in homosexual acts, you must
vote to separate him. And, of course, there is
that homosexual marriage.
The instruction doesn't stop there. It goes on
to clarify what kinds of statements we're
talking about. Why? Because there are, as I
mentioned, two kinds of statements. There are
kinds of statements that in and of themselves
indicate a propensity to commit homosexual
conduct, and then there are the kind whose
statement, as the instruction says, "I am a
homosexual" or words to that effect.
The instruction goes on to say that a statement
by an officer that he is a homosexual, nothing
more, that he is a homosexual or words to that
effect, creates a rebuttable presumption that
the officer engages in, attempts to engage in,
has a propensity to engage in, or intends to
engage in homosexual acts. The instruction has
made clear that it contemplates two kinds of
statements. Those that are directly indicative
of conduct, and those that state I am a
homosexual which raise the presumption of
conduct. Two kinds of statements.
An example of the kind of statement that, for
instance, would be indicative of conduct in and
of itself on its face, is "I'm a homosexual man
with an active sex life." That, on its face, is
indicative of a propensity or intent to engage
in homosexual acts.
But, again, as I said, the instruction doesn't
stop there, because the next sentence says, "A
statement that he is a homosexual," period,
raises the presumption. Now, that's a very
different matter. The first portion was, "I'm a
            214
homosexual with an active sex life" which
demonstrates propensity in and of itself. This
is a simpler statement. "I am a homosexual."
And the law implies, "with an active sex life"
part by raising the rebuttable presumption that
the propensity or intent exists. You'll find
this consistent language throughout the
statutes, the DOD instructions, the CNO
instructions, and, in fact, it is consistent
with Defense Exhibit 34 and the instruction to
commanders.
I'll call those first kinds of statement, Type
One. Those are the kinds of statements that on
their face indicate that Lieutenant Thorne has a
propensity or intent to engage in homosexual
acts. If you find that Lieutenant Thorne has
made this type of statement, DOD Instruction
1332.30 and the NAVADMIN instruction both say
the officer shall be separated.
Now, I'll call the second type of statement,
Type Two statements. Those are the statements
that just say, "I'm a homosexual," and the law
implies "with an active sex life" part by
raising that presumption. If you find that
Lieutenant Thorne only made this type of
statement and no Type One statements, then you
must also separate Lieutenant Thorne, unless
Lieutenant Thorne has proved to your
satisfaction that he does not have a propensity
or intent to engage in homosexual acts. Another
way of saying that is, you must separate
Lieutenant Thorne unless he has rebutted the
presumption.
Now, there's a significant amount of evidence of
what I term Type One statements before you.
I'll just pick out several of them. I've
paraphrased them and listed the exhibits here.
The first time you see it in the exhibits is in
Exhibit 10, that's the statement of Lieutenant
Anderson, in which Lieutenant Thorne said,
"Well, first I was unsure of my sexuality, and
then I became pretty sure, and then there was a
point in time where I was positive." That's
            215
indicative of some propensity or intent to
engage in homosexual acts. It's--it's on its
face indicative of some homosexual conduct.
The second time, it's Government Exhibit 12, in
which he stated on a CNN program that "I'm just
the same as everyone else, but I love a
different sex than you do." That's more than
that abstract attraction. That is a statement
of propensity or intent. Those are loaded words
with much more than a mere abstract attraction
according to the plain, every day meaning of the
words. It's Government Exhibit 12.
Government Exhibit 13, the article in the
Cleveland Plain Dealer, he said, "I'm not
predatory. I don't want to recruit others. I
just want to do my job and keep my private life
to myself." Again, in the context of him being
a homosexual, those were the words he used.
Again, statements of propensity. Statements in
which he was characterized as a political
activist. Statements showing that he wants to
separate his military time from his off duty
hours, which Congress specifically found is not
to be done with military members. You're
military members 24 hours a day because private
life affects military performance.
Government Exhibit 14, the "Good Morning,
America". "I cannot separate my private life
completely. I cannot put a picture of my family
on the desk as Senator Sam Nunn could, because
if I was honest about who my attractions were
to, I'd be kicked out of the military."
Then Government Exhibit 15, the "Nightlinen
program of July 1993, this is the second
Nightline" program. He says, "It's not
reasonable to ask homosexuals to remain
celibate." He said the negative, but it implies
that it is not reasonable to ask homosexuals to
remain celibate, implying that he, himself--it
would be unreasonable for him to be asked to be
celibate, as well.

            216
Government Exhibit 16, a very important exhibit,
also has a similar statement. That's to the New
Orleans Times Picayune. "I don't want to have
to talk about homosexual acts. I don't want to
have to lie. I don't want to have to lie about
my sex life." That would put him in an awkward
position in this forum if he had spoken directly
about his sex life, but it is indicative that he
has a sex life, and that he would be in
violation if he discussed it.
Government Exhibit 17 is also very important.
And that is where he specifically states to
Commander, Naval Air Systems Command, "I
consider my sexual life, whether orientation or
conduct, as a private matter of no concern to
the military." The government believes, as
well, that that is an indication, specific in
the language in and of itself, that he is a
homosexual with an active homosexual lifestyle.
That is a statement that he has not only a
propensity but an intent to commit homosexual
acts within the body of that statement itself.
Therefore, the government asserts that either
individually or collectively those are
statements of conduct on their face, either
alone or taken together, that show that
Lieutenant Thorne commits homosexual acts and
has a propensity or intent to do so.
The Type Two statements, I'll call them, "I'm a
homosexual", the record is riddled with those.
We heard another one today. Every government
exhibit, other than the administrative type of
exhibits, has one in them, and many of the
defense exhibits do as well. Since going on
"Night1ine" in May 1992 to proclaim his
homosexuality, he's used such statements over
and over again. He has brought his case, as an
activist, to the media at every opportunity.
I'll have more to say on that in a moment.
Those are the Type Two, "I am a homosexual"
statements, and those are the kinds of
statements that show the propensity or intent,
because it is raised by the presumption in the
            217
statute itself. And those kinds of statements,
even if you find--even if you find that these
statements, those that I term Type One, that
show, in the government's eyes, a propensity or
intent to engage in homosexual conduct on their
face, even if you do not agree, there are other
statements which specifically raise that
presumption because he has stood up and said, "I
am a homosexual." It didn't come from anyone
else. It came from his mouth. "I am a
homosexual." And those words raise the
presumption under the specific statutory and
instructional language we have before us.
Now you must ask yourself, now that that
presumption is raised by Lieutenant Thorne's
conduct, by Lieutenant Thorne's words
themselves, has he rebutted that presumption.
And the answer can only be no. Taken all
together, the Type One statements, the ones that
on their face indicate specific conduct, would
show you that as well, that he has that intent
or propensity to commit homosexual acts. He
cannot rebut the presumption based on the record
that he has laid of his own statements.
But, also, what is most telling is some of the
other information that came forward before the
Board as well. The information from Lieutenant
Todd Suko, who testified that Lieutenant Thorne
lives with another openly homosexual man here in
D.C. His name is Michael Begland.
The last page of the service record, the name of
Michael Begland is also listed as the
beneficiary of the SGLI payments for Lieutenant
Thorne. That's a position that's normally
reserved for a spouse or parent or a person
intimate to one's life. It's the government's
argument that Michael Begland is Tracy Thorne's
homosexual lover. It's as simple as that. It's
the basis of the circumstantial evidence that's
before you. There are all sorts of statements
to point in that direction, and whether it is
actually Michael Begland or not, it is the
action of Lieutenant Thorne to commit homosexual
            218
acts or the propensity to do so that has been
brought forth on the record here.
I'd like to look briefly at the statements of
Dr. Korb, who said that he believed that those
statements did not show any kind of propensity
or intent to engage in homosexual acts. Now, he
was at one time the Assistant Secretary of
Defense for Manpower. And he's published
opinion pieces on what the--according to his
words, on what the resolution of the homosexual
issue should be. He's also looked at Lieutenant
Thorne's record, but an incomplete record. He
hasn't looked at the whole thing in making his
determination. And he said that really people
rely on false stereotypes that homosexuals
cannot control their urges. Really what he's
asking you to do is overlook human nature.
Human beings are sexual beings, and human beings
act upon their sexuality.
Really the important part of Dr. Korb's
testimony is that he testified before the Senate
Subcommittee to the same effect that he
testified here today, and you have before you
the statute that was passed nonetheless. You
have both the Senate version and the statute
that was passed by the entire Congress. And it
contradicts Dr. Korb's testimony. Dr. Korb is a
man who came before you really with an axe to
grind. He's not happy with the policy. He
disagrees with the policy. His views were not
heard by Congress. He's asking you to overrule
what Congress found. He interprets the policy
the way he wants it to be, not the way it is.
Any statements that he made about Lieutenant
Thorne cannot be given any significance. They
met once two years ago. He saw him a couple of
times on T.V. He read an incomplete record, and
he saw him again today. And he purports to tell
you that Lieutenant Thorne has no propensity or
intent to engage in homosexual conduct. That
is, what I can only characterize as, a
ridiculous assertion based on utterly incomplete
evidence. Really, the key to understanding his
            219
                   testimony is that he is dissatisfied with the
                   policy and he wants you to advance what he
                   thinks the policy ought to be rather than what
                   the policy is.
                   Lieutenant Thorne's statement was also a very
                   moving statement. But even so, Lieutenant
                   Thorne is asking you to do what is in Lieutenant
                   Thorne's best interests, not what Congress has
                   said is in the military's best interests. All
                   of the respondent's assertions amount to this
                   point. Do what is in my best interest and not
                   what Congress has found to be in the military's
                   best interests based on national security.
                   Now, again, in summation, there are two ways you
                   can find conduct. There's ample evidence of
                   statements directly indicative of that
                   propensity or intent to engage in homosexual
                   acts. Those are the Type One statements, which
                   you have identified before you. He has also,
                   the second way, unquestionably stated, "I am a
                   homosexual" thereby raising the presumption of
                   propensity or intent, raising the presumption by
                   his own act of coming forward as a homosexual.
                   And he has clearly been able--clearly been
                   unable to rebut that presumption, because there
                   is evidence before the Board from which you
                   could conclude the existence of homosexual acts.
                   Not as a basis for separation, that's not what
                   he's here for, but as a basis for failing to
                   rebut that presumption. He wants to keep his
                   sex life private. He doesn't want to have to
                   lie. He lives with a homosexual man. Where
                   there's smoke, there's fire.
                   Government Exhibit 5 is a form for findings to
                   assist you. It's just a guide. You're free to
                   be as specific as possible in your findings. It
                   is no secret that this case has the potential
                   somewhere down the line to end up in federal
                   court, and the more specific your findings are
                   the better.
MBR [CART COOK]:   Excuse me, may I ask you to repeat that
                   statement again. I think I understood what you
                               220
       said, but you said enclosure such and such is a
       list of findings?
REC:   Yes. Government Exhibit 5 is a form for
       findings before the Board. It is provided to
       assist you. It's a guide. It's not your
       required formal finding. Feel free to be as
       specific as possible, I said, in your findings.
       It will be helpful to all parties concerned in
       understanding what you have found as a result of
       this Board.
       As to the recommendation on separation that you
       must make. I'd ask you to consider some of the
       following: We have provided you Lieutenant
       Thorne's entire service record. I'd ask that
       you consider it in its entirety. He stated in
       one context, too, that they threw away millions
       of dollars spent on his flight training. "I
       graduated number one. I was a top student."
       The Navy isn't throwing that away. The Navy
       spent that money, but it is of no benefit to the
       Navy. It's a benefit to Lieutenant Thorne, and
       is being used at his point for nothing more than
       to forward a personal political agenda. He has
       used the Navy, not the other way around. He is
       a political activist, who he said suspected in
       high school his homosexuality, was pretty sure
       in college--well before entering the Navy--knew
       or suspected his homosexuality. This is not a
       man who puts the mission before his own agenda.
       Those were his words, but that's not correct.
       He went on national television in uniform to
       advocate his personal political agenda, again,
       using the Navy for his own purposes in direct
       disobedience of his Commanding and Executive
       Officers. That is not loyalty. That is not the
       quality of a worthy officer. That is not
       integrity. He paints himself as a victim, but
       it is the Navy that has been used as the tool of
       this man to advance his political agenda. I ask
       you to consider those when making your decision
       on a recommendation for separation.
       I ask that you find that Lieutenant Thorne has
       committed homosexual conduct, either because the
                   221
                    statements he made in and of themselves on their
                    face are indicative of a propensity or intent to
                    commit homosexual acts, or because the
                    statements have raised the presumption of
                    homosexual propensity or intent and that he has
                    not rebutted that presumption. Thank you.
MBR [CAPT COOK]:    Thank you, Lieutenant. Does the counsel for the
                    respondent desire closing argument?
CC [MR. ZIEGLER]:   We do, Mr. President. Mr. President and members
                    of the Board, thank you for your patience in
                    listening to our case. We appreciate the
                    obvious care and thoughtfulness that you have
                    brought to this task. We know it hasn't been an
                    easy one, and I will try to be brief in my
                    closing statement and in arguing the law to you
                    and in describing the evidence what you have
                    heard and what it means under the applicable
                    law.
                    The question that you're being asked to decide
                    today is whether Lieutenant Tracy Thorne should
                    be discharged from the United States Navy
                    because of homosexual conduct. One portion of
                    the applicable regulations that the recorder did
                    not put up on the board for you, but which we
                    have put up on a separate board, and in which
                    Dr. Korb emphasized was the first thing that you
                    read in the homosexual conduct separation
                    provisions of DOD Directive 1332.30 is that
                    homosexual conduct is grounds for separation
                    from the military services. It goes on to
                    provide in the highlighted portion of that
                    provision that sexual orientation is considered
                    a personal and private matter, and homosexual
                    orientation is not a bar to continued service
                    unless manifested by homosexual conduct. The
                    issue is, as it should be, conduct not
                    orientation.
                    Now, the first thing to note is that absolutely
                    no evidence has been presented that Lieutenant
                    Thorne has engaged in any form of homosexual
                    conduct as we normally understand that term.
                    There is no evidence of homosexual acts. The
                                222
government has offered no such evidence.
Lieutenant Thorne's service records, and they
have all been presented to the Board, contain no
such evidence. You've heard from his current
Commanding Officer, Commander Luigart, he has
told you that he knows of no such evidence. You
have heard from one of his former squadron
mates, Lieutenant Todd Suko, who lived and
worked side-by-side with Lieutenant Thorne for
years, and he has told you he is aware of no
such conduct. There is literally no evidence in
the record of homosexual conduct.
The conduct related evidence that is in the
record is the performance of a young naval
officer who has distinguished himself at
virtually every phase of his career and who has
always aspired to the ideals of excellence,
devotion to duty and country, and, perhaps, most
of all, personal integrity that characterize the
Navy. You've seen his record. He finished 4th
in a class of 72 at Aviation Candidate School.
He was the recipient of outstanding achievement
awards for the excellence of his performance in
academic training and physical training from the
Naval Aviation Schools Command. He was placed
on the Commodore's list that same year and
received "top gun" honors for having the highest
overall GPA. He finished top in his class after
his 13 month training in the Intruder. He has
received consistently outstanding fitness
reports, and you have heard in detail the
performance evaluation given by his current
Commanding Officer, who has testified that he is
very near the top of the hundreds of lieutenants
who have served under his command. And you
heard a similar endorsement from Dr. Korb
earlier today.
So what we have then in a nutshell is, one, no
evidence whatsoever of homosexual conduct: two,
an exemplary record of superior performance as a
naval officer: and three, a policy that says,
and I'll quote, "It is the policy of the
Department of Defense to judge the suitability
of persons to serve in the armed forces on the
            223
                    basis of their conduct." We submit to you that
                    on the basis of this evidence, the only fair
                    conclusion that you reach is that the separation
                    of Lieutenant Thorne is completely unwarranted.
                    Now, in his closing argument Lieutenant Dutton
                    asked you to disregard this, and instead to
                    focus on statements, on certain statements made
                    by Lieutenant Thorne acknowledging that he has a
                    homosexual orientation. According to the
                    government, merely identifying yourself as
                    having a homosexual orientation is enough to
                    raise the rebuttable presumption and provide a
                    basis for discharge. Statements about your
                    orientation, says Lieutenant Dutton, equal
                    conduct under the regulation. And I'll address
                    in a minute some of the statements that he
                    pointed to as the Type One statements, and
                    address his Type Two statements.
                    But let me say as a threshold legal matter, with
                    all respect to the government, that is not what
                    the regulation says. What the regulations says,
                    and I think that these provisions which are the
                    provisions at the outset of the homosexual
                    conduct portion of DOD Directive 1332.30 are----
MBR [CAPT COOK]:    Could I ask you to move that out so that we can
                    see it?
CC [MR. ZIEGLER]:   These are the controlling provisions for reasons
                    elucidated well by Dr. Korb before. These are
                    the first provisions that you see in the
                    directive and any later provisions, such as the
                    provision that Lieutenant Dutton was relying on
                    about statements that one is a homosexual have
                    to be read in light of these controlling
                    propositions that it is homosexual conduct and
                    not orientation that governs here.
                    So there are three propositions that we would
                    draw from this provision. One, is that conduct
                    is the grounds for separation; two, that
                    orientation is not a grounds for separation; and
                    three, that the only kinds of statements that
                    can serve as the basis for separation are
                                224
statements by a members that demonstrate a
propensity or intent to engage in homosexual
acts. That's the first place that there's
reference to statements in the directive, and
subsequent references to statements, such as the
ones relied upon by the recorder, have to be
read in this context.
This requires, then, that a statement show a
likelihood for a propensity of engaging in
conduct, not some abstract preference. To read
the regulation any other way, such as is
suggested by the government, is to completely
obliterate the careful distinction drawn here
between conduct on the one hand, which is, and
nobody disputes, the legitimate subject of Navy
regulation and sexual orientation on the other
hand which, as the regulation says, is
considered a personal and private matter and is
not a bar to continued service. If there's
meaning to this distinction, and if there is
meaning to the directive in the regulation that
only conduct can be the basis for separation,
then we would suggest to you that the government
cannot be right that statements merely
acknowledging orientation are enough. Rather
what your task is is to determine whether
Lieutenant Thorne's statements, given all the
facts and circumstances surrounding them,
demonstrate a propensity or intent to engage in
homosexual acts. We submit that they do not.
We have not and will not rebut the presumption
because the government, we would respectfully
submit, has not met its threshold burden of
proving a statement that demonstrates a
propensity or intent to engage in conduct, as it
must.
Well, what about the statements that Lieutenant
Thorne has made? You have seen the "Nightline"
broadcast in which he acknowledged that he was
gay and participated in a political debate not
of his initiation, about the important issue--an
important issue of national policy. You read
the subsequent newspaper accounts in which
Lieutenant Thorne again acknowledged who he was
            225
and further tried to advance that debate, the
political dialogue about a policy that was then
in transition and the subject of an arms
controversy both within and outside the
military. And you saw Lieutenant Thorne's
letter to his command earlier this year when he
was reinstated, a letter which Lieutenant Thorne
wrote to assure his commander there would be no
problems because of his sexual orientation, that
he would abide by all applicable regulations,
and that he would cooperate fully with is new
command.
We submit to you that these are not statements
that can fairly be read to demonstrate a
propensity or intent to engage in homosexual
acts. What they are is a frank acknowledgement
of his sexual identity. They're not conduct,
and I think to pretend they are is disingenuous
and contrary to an overall reading of the
regulation.
And perhaps the best evidence of this is, and
although its been two years now since Lieutenant
Thorne has first candidly acknowledged in public
his sexual identity, there is no evidence in the
record of sexual misconduct as we ordinarily
understand it. There are, in short, no facts
from which you can infer such conduct.
Now, let's look at some of the statements that
the government relies on, that they say on their
face demonstrate a propensity. First,
Lieutenant Thorne's statement that he's positive
that he's gay. That's a statement that is
obviously about his orientation, about his
attraction, not about conduct, not about an
intent, not about a propensity. There's nothing
there that says anything of the kind.
Similarly, number two, a statement that he loves
a different sex, even thought I'm not sure that
this is an exact quote, even assuming that it
is, this too is a statement about one's
orientation. This isn't expressing an intent or
propensity to do anything. A statement that
he's not predatory, he just wants to keep
            226
private life to himself. That's just the
reverse. He's saying that he has no intention
to engage in conduct, that he merely wants his
rights to privacy as guaranteed under the
regulations, to be respected.
The next one, he cannot put a picture of his
family on his desk. That says nothing about
ones propensity to engage in any kind of
conduct. It's not reasonable to remain
celibate. If anything, that's just a point that
he made in a policy discussion. It's not
anything that expresses anything about his
sexual conduct one way or the other.
That he does not want to lie about his sex life.
Well, sex life means a good deal more than just
conduct. Sex life certainly encompasses who we
are, what we thing, abstract preferences,
desires, and things other than what we do, in
fact. And for him to say that he doesn't want
to lie about his sex life doesn't say one thing
or the other about conduct or what his
intentions may be.
Similarly, when he writes to his commander "I
consider my sexual life, whether orientation or
conduct, private and of no concern to the
military", that's merely saying what the
directive guarantees. That this is a private
matter, something that we all know. And he's
not here announcing his intention or
demonstrating a propensity to do anything one
way or the other. He's merely expressing a
value that he has and which he thinks the
Defense Department directive embodies.
Now, Lieutenant Dutton has tried to boaster his
case from time to time by pointing to evidence,
which he characterizes as evidence, that
Lieutenant Thorne associates with known
homosexuals. We heard him cross-examine
Lieutenant Suko, for example, and he just
referred to that about Lieutenant Thorne's
current friends, his current living
arrangements, and whether people that he now
            227
socializes with are now homosexuals. We submit
to you that this evidence proves nothing. This
is demonstrated by Department of Defense's own
training manual, which is Exhibit 34, which we
have submitted to you. And if you look at
Exhibit 34, page 4-4, you will see this
statement: "Credible information of homosexual
conduct does not exist where the only
information known is an associational activity.
Associating with known homosexuals, marching in
a gay rights rally in civilian clothes. Such
activity, in and of itself, does not provide
evidence of homosexual conduct." This is
directly out of the training manual. You cannot
reasonable infer homosexual conduct based upon
the fact that he associates with known
homosexuals.
Indeed, this very point was made by the General
Counsel of the Defense Department in the exhibit
you saw that the government put in on its
rebuttal case, where, on page 171, she says,
"Since 1981 associational activities in
themselves has not been a basis for discharge.
We need to honor the interests of individuals in
the service in reading, in having friends, and
in speaking their mind." This is the
government's evidence, and we think that this
clearly establishes that any such associations
or evidence of associations that Lieutenant
Thorne may have is not at all probative of
homosexual conduct.
Lieutenant Dutton, in his closing, also referred
to the fact that Lieutenant Thorne may have
listed a male friend as a beneficiary on an
insurance policy, and tried to argue that that's
additional evidence. There too you should know
that Defense Department directives specifically
say that doing just that, listing a male friend
on an insurance policy as a beneficiary, does
not reasonably suggest homosexual conduct. And
I would refer you to a July 19, 1993 memorandum
from the Secretary of Defense implementing the
new policy and, in particular, to the enclosure
which are policy guidelines on homosexual
            228
conduct in the armed forces, where it is stated
that, and I quote, "The listing by a service
member of someone of the same gender as the
person to be contacted in case of emergency, as
an insurance beneficiary, or similar context,
does not provide a basis for separation or
investigation."
There has also been the suggestion that
misconduct is somehow lurking in Lieutenant
Thorne's letter to his commander, the January
1994 letter, where he says he believes his
sexual life is as private as everybody else's.
I think we saw that statement earlier. There is
nothing improper about that, as I've argued.
There merely reflects what the regulation
guarantees to him, that such matters are
private. No where in that letter is there any
statement by Lieutenant Thorne that he intends
to engage in any kind of misconduct, just the
contrary. The purpose of the letter is to
ensure his commander that that wouldn't be a
problem.
Now, you have also heard a considerable body of
expert testimony. Testimony that is largely
uncontradicted on this record. Most of it in
the form of written declaration. Some of it in
the form of Dr. Korb's testimony earlier today,
that mere statements about orientation are not
predictive of conduct. There's an important
distinction between the two things reflected in
the regulation, and it is simply improper to
infer unnecessary connection.
Now, Lieutenant Dutton seeks to disparage Dr.
Korb's testimony, contending that Dr. Korb is
merely a disgruntled policy maker, who isn't
happy with the way the policy turned out. It's
odd that the President of the United States, in
his announcement of the new policy on July 20,
1993, would specifically identify Dr. Korb as
one of the person's most knowledgeable about
these issues, and as someone whose opinion he
would endorse.

            229
You've heard or read the testimony of other
experts, a large number of them. Dr. Carerra,
an expert in human sexuality; Dr. Herek, an
expert psychologist; Andrew Humm, a civil rights
specialist; Dr. Louis Shawver, an expert in the
issues of privacy; and we have also submitted to
you excerpts from the Defense Department's own
study, the one it commissioned, the Rand Report:
and we've similar submitted the declaration of
Dr. Rankin, a retired Captain in the United
States Naval Reserves, and a psychiatrist with a
special expertise in counseling service members
about their sexuality. What all these experts
say, and what the government has not
contradicted with rebutting expert testimony, is
that statements about orientation aren't
predictive of conduct and you can't fairly infer
that they are.
And I would note that we're not relying merely
on the judgments of people who live outside the
military context. We realize that there are
special demands in military life, but we have
provided you with the testimony of Dr. Rankin
and Dr. Korb, both of whom, we would submit,
understand and appreciate those special
requirements and their views are the same. They
confirm that service members who acknowledge
their sexual orientation can serve effectively
in the military. What they say shows us, and
the experience that they talk about, shows us
that homosexuals can and do possess the
characteristics of leadership, loyalty, devotion
to duty, honesty, initiative, and courage that
we expect in naval officers.
If you recall back to Lieutenant Dutton's
opening statement, he read to you, verbatim, I
think, Congress' findings in the statute
pursuant to which the regulations are issued.
Findings that Congress made about the importance
of things like trust and morale and unit
cohesion to the military mission. We would
submit to you that what the evidence has shown
is Lieutenant Thorne embodies those
characteristics, and I can think of no better
            230
                   evidence then the enthusiastic testimony of his
                   current commanding officer, who has no reason to
                   come before you to say those things if they
                   weren't true and if they weren't genuine and if
                   they weren't deeply felt. I think that he
                   testified quite clearly that in his view
                   Lieutenant Thorne embodies all those
                   characteristics. He was a team builder. He was
                   somebody that he trusted and who he trusted to
                   represent him in the United States Navy.
                   This sad irony of this case is that we're here
                   today not because Lieutenant Thorne failed to
                   live up to these qualities, qualities like
                   personal integrity and honesty, but precisely
                   because he did live up to them. It would have
                   been, as he more poignantly than I had, pointed
                   out that it would have been a far easier course
                   for him to have lied about himself and about who
                   he is by pretending to have a heterosexual
                   orientation. But he didn't do that. He didn't
                   do that because he believed that virtues of
                   honesty, personal integrity and courage, the
                   same virtues that the Navy has instilled in him,
                   required that he candidly acknowledge who he is.
                   And having do that, the government would now
                   tell you he cannot serve. We do not believe
                   that that is what the regulations require. We
                   do not believe that that is what justice or
                   common decency require.
                   Because insufficient evidence of homosexual
                   conduct has been presented here, we urge you to
                   recommend that Lieutenant Thorne be retained in
                   the United States Navy. And in the event that
                   you find otherwise, we think that there is no
                   question that he would be entitled to the most
                   honorable characterization of discharge that is
                   available. Thank you.
MBR [CAPT COOK]:   Thank you, sir. Before we proceed to the legal
                   advisor advising the Board of the applicable
                   law, I'd like to take a 15 minute recess, and
                   then we'll reconvene for that phase.


                               231
[The Board recessed at 1500 hours, 13 July 1994.]
                               * * * *

[The Board was called to order at 1515 hours, 13 July 1994. All
parties previously present were once again present.]

MBR [CAPT COOK]:    The Board is back in session, where I believe we
                    pass the baton to Major Stutzel.
LA:                 Yes, sir. Before I begin the instructions, we
                    need to have marked what were proposed
                    instructions from the respondent. You can mark
                    those as the next exhibit from the respondent.
                    They provided those to me during the noon
                    recess, and I've ruled that I would not give
                    those instructions. Let me look at those again
                    real quick before I put my findings on the
                    record.
[Document marked as Respondent's Exhibit 69.]
LA:                 Thank you. They're marked as Respondent's
                    Exhibit 69. The first portion of that
                    instruction I did not give because it was a
                    restatement, essentially, of the law and an
                    interpretation of the statute which I deemed was
                    more appropriately the subject of argument by
                    respondent's counsel. Paragraphs 2, 3 and 4 of
                    the proposed instruction I did not give because
                    I believe it invaded the province of the Board
                    as matters that related to factual findings that
                    were within the province of the Board. The
                    positions advocated in those last three
                    paragraphs were more properly the subject of
                    argument by respondent's counsel, and, in fact,
                    they did argue those points, than a finding as a
                    matter of law that certain things were--were or
                    were not conduct.
MBR [CAPT COOK]:    Okay, you've noted that on the exhibit?
LA:                 No, sir, I didn't note it on the exhibit, but it
                    is now in the verbatim record.

                                 232
MBR [CAPT COOK]:   Okay. Are we going to get a verbatim copy of
                   your instructions to us? We'd like to have one.
LA:                You will, sir, because I'm going to read them to
                   you directly out of an NAVADMIN message, and
                   that was the first thing, sir, that I was going
                   to say. The law in this case is set forth in
                   NAVADMIN 33/94, which--I don't have it right
                   here, the list that shows what the government
                   exhibit number that was, but you, I know, in
                   fact, do have it in there.
                   I would call your attention specifically to two
                   portions of that order. One is paragraph 8,
                   which I intend to, in pertinent part, read into
                   the record.
MBR [CAPT COOK]:   Could you hold up just a minute, Major?
LA:                Yes, sir. You might want to follow along in
                   that. I will be, in my oral instruction,
                   cutting and pasting somewhat orally to skip over
                   those parts that are not directly relevant to
                   the evidence that's been presented here.
MBR [CAPT COOK]:   Okay, but we would like a verbatim transcript of
                   that as we commence our deliberation.
LA:                In addition to having a copy of the instruction?
MBR [CAPT COOK]:   I want to hear everything you have to say on
                   this.
LA:                Okay, sir.   The reporter then will need to----
MBR [CAPT COOK]:   In a context of your instructions, we don't want
                   to leave that to our imagination or
                   interpretation.
LA                 Okay, sir. You might want to wait until I'm
                   done reading through and see whether there's
                   anything substantially different, and, if not,
                   of course, then you'll have substantially have
                   that. It will take some amount of time for the
                   reporter to be able to actually make a
                   transcript of it.
                                233
As I was going to say, paragraph 8, which is the
officer separation processing procedures, and
paragraph 3, which provides definitions
applicable to the administrative separation
policy, some of those definitions are contained
within paragraph 8 and some of them I will refer
to during my instructions, others are terms that
you might desire to have further definitions of.
And if I don't specifically hit them, you should
look there first to see whether, in fact, the
instruction has defined them.
The law in the case, gentlemen, is that
homosexual conduct is grounds for separation
from the naval service. "Homosexual conduct
includes homosexual acts," and that term is
defined in the paragraph 3," a statement by a
member that demonstrates a propensity or intent
to engage in homosexual acts, or a homosexual
marriage or attempted marriage. A statement by
a member that demonstrates a propensity or
intent to engage in homosexual acts is grounds
for separation not because it reflects the
member's sexual orientation, but because the
statement indicates a likelihood that the member
engages in or will engage in homosexual acts. A
member's sexual orientation is considered a
personal and private matter and is not a bar to
continued service unless manifested by
homosexual conduct in the manner prescribed
below."
"A commissioned officer shall be recommended for
separation by a Board of Inquiry if one or more
of the following approved findings is made: The
first is that that officer has engaged in,
attempted to engage in, or solicited another to
engage in homosexual acts or act, in a
homosexual act or acts." That is not the
allegation brought in this case, so I will not
go through the remainder of that paragraph.
Paragraph two states, "That the officer has made
a statement that he or she is a homosexual or
bi-sexual or words to that effect." Now, that
term, in and of itself, is defined in paragraph
            234
                   three, subsection (e), and it says, "A statement
                   that a member is homosexual or bi-sexual or
                   words to that effect means language or behavior
                   that a reasonable person would believe was
                   intended to convey the statement that the person
                   engages in, attempts to engage in or has the
                   propensity or intent to engage in homosexual
                   acts." And, again, that's in paragraph three.
MBR [CAPT COOK]:   Slow down, if you would.
LA:                Yes, sir.
MBR [CAPT COOK]:   Paragraph three (c), right?
LA:                 Paragraph three (e). Now, that's the definition
                   of that initial term used in subparagraph 2--
                   (b)(2) back in section eight. Continuing on in
                   paragraph two, "The officer has made a statement
                   that he or she is a homosexual or bi-sexual, or
                   words to that effect, unless there is a further
                    approved finding that the officer has
                   demonstrated that he or she is not a person who
                    engages in, attempts to engage in, has a
                   propensity to engage in, or intends to engage in
                    homosexual acts. A statement by an officer that
                   he or she is a homosexual, or words to that
                   effect, creates a rebuttable presumption that
                   officer engages in homosexual acts, or has a
                   propensity or intent to do so. The officer
                    has..." in this case, "... been advised of that
                    presumption and has been given the opportunity
                    to rebut the presumption by presenting evidence
                    demonstrating that he does not engage in,
                    attempt to engage in, have a propensity to
                    engage in, or intend to engage in homosexual
                    acts."
                   "The term 'propensity to engage in homosexual
                   acts' means more than an..." excuse me, "...more
                   than an abstract preference or desire to engage
                   in homosexual acts. It indicates a likelihood
                   that a person engages in or will engage in
                   homosexual acts."
                   "Now, in determining whether an officer has
                                235
successfully rebutted the presumption that he
engages in, attempts to engage in, has a
propensity to engage in, or intents to engage in
homosexual acts, you may consider some or all of
the follow: Whether that officer has engaged in
homosexual acts; the officer's credibility;
testimony from others about the officer's past
conduct, character, and credibility; the nature
and circumstances of the officer's statements,
and any other evidence relevant to whether that
officer is likely to engage in homosexual acts."
And the list that I've just provided there is
not an exhaustive list with regards to those
matters. Any other relevant evidence that you
have received may be considered in making that
determination.
A third grounds for separation by the Board of
Inquiry is a finding by you that the officer has
married or has attempted to marry a person of
the same sex, and, of course, we don't have
evidence presented on that aspect either.
The burden of proof at the administrative
hearing is upon the respondent by a
preponderance of the evidence that his retention
is warranted.
Should you determine that separation is
warranted, characterization of that service with
be either with an honorable or general
separation. Honorable service means that an
officer's quality of service has met the
standards of acceptable conduct and performance
for officers of the naval service, or is
otherwise so meritorious any other
characterization would be clearly inappropriate.
General under honorable conditions service is if
the officer's service has been honest and
faithful, it is appropriate to characterize that
service under honorable conditions.
Characterization of service as general under
honorable conditions is warranted when
significant negative aspects of the officer's
conduct or performance of duty outweighed
positive aspects of the officer's military
            236
                   record.
MBR [CAPT COOK]:   Where did you jump to then? You went from
                   paragraph (e) in which you just read----
LA:                what I just read to you is not contained in the
                   NAVADMIN message. That comes from SECNAV
                   Instruction 1920.6A, which is the basic
                   instruction on administrative separation of
                   officers, and it is Enclosure (5) of that order
                   which gives guidelines on characterization of
                   service.
MBR [CAPT COOK]:   Okay, you'll provide a copy of that to me?
LA:                Yes, sir, we can get you a copy of that.
REC:               Sir, it is a government exhibit.   I believe it
                   is 20.
LA:                Okay, so you'll find it in Enclosure (5) of that
                   order. In preparing your findings for the case,
                   you've, in fact, actually been provided with two
                   potential findings worksheets. One is
                   Government Exhibit 5, and as Lieutenant Dutton
                   indicated, of course, you're not obligated to
                   necessarily use this particular format. You can
                   be more detailed in that should you desire to be
                   so. I provided you with a proposed script for
                   the Board of Inquiry hearing, and at the end of
                   that set up a proposed finding worksheet,
                   particular similar to what you received in
                   Government Exhibit 5. You're free to use either
                   or neither of those.
MBR [CAPT COOK]:   We also received one in the appointing order.
                   Are we bound by that?
LA:                Well, let me look, sir, at the appointing order
                   and see.
MBR [CAPT COOK]:   And that's page 2, paragraph (b)--or page 1,
                   paragraph 4(a) and paragraph (b). And if we are
                   bound by that, that raises some other
                   interesting questions, because if you look at
                   paragraph 2 of reference (c), which you might
                               237
                   look at, it will be a significant challenge to
                   deal with that.
REC:               The government's position would be that you
                   would not be bound by the specific language. It
                   is language which does not include, actually,
                   all of the decisions that you are required to
                   make under the SECNAV instruction.
MBR [CAPT COOK]:   That's why I asked the question.
LA:                Yes, sir, that---- Sir, you referenced a
                   paragraph in the----
MBR [CAPT COOK]:   The appointing order from Admiral Bowes.   It's
                   paragraph 4(a) and 4(b).
LA:                Yes, sir, I've got that, but then you referenced
                   back to one of the instructions.
MBR [CAPT COOK]:   Well, if you go back to the--and it says in
                   there, paragraph 2 of reference (c), and if you
                   go back to reference (c), which is the CNO
                   message, paragraph 2 says on "22 December the
                   Secretary of Defense released to the Department
                   of Defense..." de-da-de-da-de-da, and then it
                   finishes up, and there we are.
LA:                I think we’re back to our typo in the
                   appointment letter again. Reference (c) talks
                   about the--the appointment letter references
                   whether or not it constitutes homosexual conduct
                   as defined in paragraph 2 of reference (c). As
                   you pointed out, sir, paragraph 2 does not
                   contain definitions of anything. It's paragraph
                   3 that contains the definitions.
MBR [CAPT COOK]:   That's why I'm asking you questions because this
                   is the government's evidence. The question is,
                   are we bound by it or are we not bound by it?
LA:                The findings that you should use in making your
                   findings should be more in keeping with the two
                   findings worksheets, because you have to make--
                   or you have at the least the potential of making
                   several levels of decisions as you see reflected
                               238
                    on here. You could decide there was no conduct,
                    which would, by definition, necessity that
                    there's no grounds for separation. Or you could
                    find that there is conduct, but that a
                    rebuttable--excuse me, the presumption has been
                    rebutted. So that's kind of a second level
                    decision there with regards to whether or not,
                    first, there is or is not conduct. Secondly, if
                    there is conduct, there is or there is not a
                    rebuttable--is or is not a rebutment to the
                    presumption.
MBR [CAPT COOK]:    In more simplistic language, is the Board bound
                    by the appointing order and the instructions set
                    forth?
CC [MR. ZIEGLER]:   Our position, Major, would be that the Board is
                    not bound.
REC:                The government would concur. The SECNAV
                    instruction details that the Board must make two
                    types of decisions here. A finding as to the
                    conduct, and a recommendation as to the
                    characterization of service.
LA:                 Yes, that's absolutely correct. And you'll find
                    that reflected on the findings worksheets. Sir,
                    that includes the instructions that I intended
                    to give you at this point in time. If you have
                    any questions at this point in time as to those
                    instructions or should any questions regarding
                    either those instructions or what evidence that
                    you had offered to you arise while you're in
                    deliberations, you should call us back in and
                    bring those questions up on the record. Unless,
                    of course, you have them at this point in time.
                    I believe you have, in your custody, copies of
                    all the documents that have been admitted into
                    evidence. Either side have any other matters
                    with regards to instructions that needed to be
                    covered?
REC:                No, sir.
CC [MR. ZIEGLER]:   I don't think so. I think our objection as to
                    proposed instruction has been noted. We have
                                239
                    nothing further.
LA:                 And that is--your proposed instruction has been
                    included in the record.
MBR [CAPT COOK]:    Captain Barnett, do you have any questions?
MBR [CAPT BARNETT]: No.
MBR [CAPT COOK]:    Captain Smith?
MBR [CAPT SMITH]:   The only thing I would bring up in the form of a
                    question is there is a very stylized format that
                    we've been given to follow for addressing our
                    findings. Can we deviate from that format and
                    include statements from the individual members
                    of the Board, if we so desire?
LA:                 Yes, sir, you may, but with the understanding
                    that you have to make a finding, obviously.
MBR [CAPT SMITH]:   I understand that.
LA:                 That finding can be using the exact format that
                    you see in either one of these would be
                    sufficient that fits what finding you end of
                    having, and the same thing with the
                    recommendation, or you could be more detailed
                    should you desire to do so.
MBR [CAPT COOK]:    Do we have enclosures to support that finding or
                    the findings are listed and then reference
                    enclosures (l), (2), (3), (4)?
LA:                 Yes, sir. In terms of being more specific, how
                    you would do that would be up to your call, as
                    to how specific you want to be. There's no
                    obligation that you be any more specific other
                    than making your final finding. If you desire
                    to pinpoint evidence as the basis for your
                    finding, you're free to do that either by
                    attaching as an enclosure to your specific
                    finding form or by reference to, for example,
                    Government Exhibit 10 or Respondent's Exhibit
                    15, or something of that nature, without
                    attaching it necessarily, again, since it is
                                 240
                    already in the record.
MBR [CAPT COOK]:    If there are no other questions, we anticipate
                    that we will return at 11:30 tomorrow morning
                    and render our judgment at that time. So we are
                    now convened [sic] until 11:30 tomorrow--or
                    adjourned.
[The Board adjourned at 1540 hours, 13 July 1994.1
                              * * * *




                                241
                             FOURTH DAY
[The Board was called to order at 1130 hours, 14 July 1994. All
parties previously present were once again present.]

MBR [CAPT COOK]:    Please be seated. The Board is back in session.
                    Before proceeding with the findings and
                    recommendation, I'd like to take the opportunity
                    to thank Lieutenant Thorne and his defense and
                    support group for the professional demeanor in
                    which these proceedings were conducted. You
                    helped to facilitate a difficult situation, and
                    the Board appreciates that. And the government,
                    and to the friends in the press who have
                    maintained a very professional demeanor and I
                    thank them.
                    Findings: The cumulative statements of
                    Lieutenant Thorne, that he is a homosexual,
                    raised the presumption of homosexual conduct as
                    set forth in DOD Directive 1332.30, dated 21
                    December 1993, and the Navy implementation
                    guidance, NAVADMIN 033/94. The statements of
                    Lieutenant Thorne and facts presented in the
                    government's evidence clearly creates a
                    rebuttable presumption that the officer engages
                    in homosexual acts or has a propensity or intent
                    to do so. Evidence and testimony presented by
                    counsel for the respondent failed, in fact made
                    no effort, to rebut the presumption.
                    Recommendations: By a vote of 3 - 0 the Board
                    recommends Lieutenant (jg)[sic] Thorne has
                    failed to show cause for retention in the Naval
                    Service and he should be separated with an
                    Honorable Discharge.
                    These proceedings are adjourned.
[The Board adjourned at 1133 hours, 14 July 1994.]
                              * * * *



                                242

								
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