An Air Force general in March decided for a second time to overrule a recommendation by an investigating officer to drop sexual assault charges against gay Air Force Lt. Joshua Seefried and ordered that Seefried stand trial in a court martial at Andrews Air Force base in Maryland, according to an Air Force spokesperson.
But the spokesperson, Lt. Col. Joel Harper, public affairs director for the Air Force District of Washington, said an “administrative matter” that he was not at liberty to elaborate on has delayed the start of the court martial proceedings for nine months.
“After careful review of the evidence, the Air Force District of Washington Commander confirmed his decision to refer the case to court martial in March 2015,” Harper told the Washington Blade in an email. “There is an outstanding administrative matter under review by Air Force officials and until that process is complete, there will be no trial date set,” Harper said.
Harper was referring to the decision to take Seefried’s case to court martial made by Major General Darryl Burke, commander of the Air Force District of Washington. Burke’s action for the second time overruled a recommendation by Col. Robert Preston, a military lawyer who presided over two Article 32 hearings on the case that are similar to civilian grand jury proceedings.
Preston recommended in two separate reports following the hearings, in which witnesses testified, that there was insufficient evidence to prove the allegations against Seefried and that a court martial would likely result in the gay lieutenant’s acquittal.
Seefried in 2010 founded OutServe, a group of then-closeted LGBT service members who helped lead the effort to repeal the military’s “Don’t Ask, Don’t Tell” law.
Military prosecutors charged Seefried in April 2014 with wrongful and abusive sexual contact and forcible sodomy after a gay U.S. Marine lieutenant accused him of performing sexual acts on him in a New York hotel room in 2012 while he was intoxicated and unable to give consent.
Larry Youngner served as an attorney for the Air Force Judge Advocate General’s Office and in other Air Force legal positions for 30 years before joining the D.C. law firm Tully Rinckey, which specializes in military law. He told the Blade this week that the administrative matter in the Seefried case could be related to a request by Seefried to resign from the Air Force.
“It could be that the defense has offered his resignation in lieu of a court martial,” Youngner said. “It would be up to the Secretary of the Air Force ultimately to determine that in this case.”
Youngner said Air Force Secretary Deborah Lee James would most likely make such a decision with the advice of the Judge Advocate General of the Air Force, Lt. General Christopher Burne, and the Air Force’s civilian General Counsel, Gordon Tanner, who’s gay.
During Seefried’s second Article 32 hearing in January, a U.S. Coast Guard officer who had been considered one of the lead prosecution witnesses testified that Seefried’s accuser was a “willing participant” in a three-way sexual encounter with him and Seefried at the New York hotel room.
Coast Guard Lt. Commander John Fiorentine, among other things, testified that the three men ended up in Seefried’s Manhattan hotel room after a day of heavy drinking and socializing at a restaurant with other gay military officers.
“We got into bed – the three of us,” Fiorentine testified. “I believe [the Marine] was a willing participant,” he said.
Seefried and his attorney, Richard Stevens, declined to comment when contacted by the Blade about the latest developments in the case. Also declining to comment was D.C. gay activist Lane Hudson, a friend of Seefried’s who earlier this year told the Blade he was concerned that Gen. Burke’s first decision to overrule a recommendation not to take Seefried’s case to court martial could have been based on outside political pressure.
Stevens introduced a motion during a pre-court martial hearing in December 2014 calling for all charges against Seefried to be dismissed on grounds of unlawful command influence, an action considered a serious breach in the military justice system.
Stevens noted during the hearing that at least two Air Force generals’ careers ended in recent years over widely publicized media reports that they put a stop to the prosecution of sexual assault cases at a time when members of Congress and President Obama criticized the military justice system’s handling of sexual assault cases.
Stevens asked Burke, who testified at the hearing, if he feared that his own career could be in jeopardy if he had accepted Col. Preston’s recommendation to drop the charges against Seefried.
“I base my decisions on the evidence,” Burke told the hearing, adding that he followed the recommendation of his military legal advisers, who he said believed the case should go to court martial.
The Air Force has so far declined to disclose whether the military judge presiding over the Dec. 8, 2014, hearing has issued a ruling on Stevens’ motion seeking dismissal of the case on grounds of unlawful command influence. It is assumed he did not approve the motion since the case is continuing, but it’s unclear whether he rejected it or chose not to issue any ruling one way or the other.
Youngner said that if Air Force Secretary James approves a resignation request by Seefried — assuming Seefried has made such a request — it would also be up to her to decide whether Seefried’s service should be characterized in a discharge as honorable, general under honorable conditions, or under other than honorable conditions.
“It would be based on Secretary James’ assessment of his service record and her assessment of the facts in this case,” he said.