U.S. Air Force Secretary Deborah Lee James appears to have denied a request by gay Air Force Lt. Joshua Seefried to resign from the service in exchange for not facing a court martial for sexual assault charges pending against him, according to sources familiar with the case.
In response to a request by the Washington Blade for an update on the status of the Seefried case, an Air Force spokesperson said last week that an “administrative matter” that had been pending since March had been resolved and the case was back on track for a court martial trial.
“The administrative matter has been resolved and the case is now pending re-referral of charges,” said Lt. Col. Joel Harper, public affairs director for the Air Force District of Washington.
Seefried, his attorney, and Air Force officials have declined to say what the administrative matter was. But two attorneys with expertise in military law have said that based on the known facts in the case, the administrative matter most likely was a request for resignation in lieu of court martial.
All such requests in Air Force cases must be approved by the Air Force Secretary.
If James had approved the resignation request the criminal charges against Seefried would have been dismissed. James would then make a determination on whether Seefried would be discharged under three possible conditions – honorable, general under honorable conditions, or “other than honorable.” The latter condition is a designation that often results in a stigma attached to a service member’s permanent record.
Seefried, who in 2010 founded the LGBT service members group OutServe, was charged in April 2014 with wrongful and abusive sexual contact and forcible sodomy. The charges stem from allegations by a gay male U.S. Marine lieutenant that Seefried allegedly performed sexual acts on him in a New York hotel room in 2012 while he was intoxicated and unable to give consent.
A military investigator who presided over two separate pre-court martial proceedings in the case known as Article 32 hearings, concluded following both proceedings that there was insufficient evidence to prove the allegations against Seefried and that a court martial would most likely result in Seefried’s acquittal.
The investigator, Col. Robert Preston, recommended against a court martial and that the charges should be dropped. But Maj. General Darryl Burke, commander of the Air Force District of Washington, overruled Preston’s recommendations both times and ordered that the case go to court martial.
Burke’s decision in March to overrule Preston a second time reportedly set in motion the administrative request by Seefried to seek resignation in lieu of court martial. Military District of Washington officials, possibly including Burke, reportedly gave their support for Seefried’s resignation in lieu of court martial, according to two sources familiar with the case.
Eric Montalvo, the founding partner in the D.C.-based national law firm The Federal Practice, served as a military defense lawyer and prosecutor for more than 21 years in the U.S. Marine Corps before going into private practice. He told the Blade this week that he isn’t surprised that Gen. Burke and Air Force Secretary James pushed for sending Seefried’s case to court martial.
Following intense political pressure over the past several years by members of Congress and the White House to address reports of what critics have called an explosive number of rape and sexual assault cases in the U.S. military, Montalvo said the pendulum appears to have swung in the opposite direction, with many sexual assault cases going to court martial even if the evidence is weak or suspect.
“Now particularly in the current political environment,” said Montalvo, “10 times out of 10 it’s going to get referred to a general court martial.”
He said that in cases he has observed, military authorities appear to be especially aggressive in prosecuting officers like Seefried as opposed to enlisted members on sexual assault cases.
“It doesn’t even have to be a straight faced allegation because I’ve seen all kinds of craziness coming through the system now,” he said. “And so the pendulum has swung to the absurd and in my opinion a lot of true victims are getting lost in this shuffle because the amount of nonsense coming through the system is beyond belief.”
Montalvo said only Seefried and his attorneys have the full details on the facts of the case. But he said that from what he knows of the case from information on the public record and from what the Blade has reported, he’s surprised that Seefried chose an administrative route, which could have landed him a less than honorable discharge, rather than agree to go to court martial and seek a full acquittal.
“Col. Preston knows what he’s doing and if he said this is an acquittal I believe him,” said Montalvo. “If you have ever met Col. Preston or spoken to Col. Preston you will understand he is a man of measured and deliberate intellect. And so he is not going to shoot off the hip or whatever,” Montalvo said. “And so I have a high confidence that if Col. Preston – because I know him and have practiced in front of him – made that determination he’s probably right.”
Because of this, Montalvo said he would have advised Seefried to go to court martial, where he would likely win an acquittal.
Among other things, Montalvo cited testimony at the second of the two pre-court martial Article 32 proceedings by a U.S. Coast Guard officer who was with Seefried and the Marine lieutenant who has accused Seefried of sexual assault. In his testimony, Coast Guard Lt. Commander John Fiorentine said he, the Marine and Seefried engaged in a fully consensual sexual encounter in Seefried’s New York hotel room.
“We got into bed – the three of us,” he said. “I believe [the Marine] was a willing participant,” he said.
Air Force spokesperson Harper said neither he nor other Air Force officials would confirm or deny that the so-far-unexplained “administrative matter” involved Air Force Secretary James denying Seefried’s request to resign in lieu of a court martial.
Harper, however, did release to the Blade a statement from Air Force headquarters at the Pentagon denying that the Seefried case or other sexual assault cases in the Air Force were being subjected to improper pressure or outside political influence to go to court martial rather than dismiss the case for insufficient evidence.
“Regardless of outside interest or media attention on a case, the decisions that result in a case being tried by court-martial are based on the law and the evidence in the specific case,” the statement says. “The commanders who make those decisions do so after reviewing the evidence and receiving the advice of legal counsel,” it says.
“The military justice system protects and defends the rights of all Airmen, including victims of crime as well as those accused of committing an offense,” the statement says. “Airmen and the American public can continue to have confidence that the system provides justice and ensures a ready and disciplined Air Force.”
Harper said a motion that Seefried’s attorney filed in December 2014 calling for dismissal of all charges against Seefried on grounds of unlawful command influence was “no longer pending before the court.” He said the administrative matter resulted in a deferral of the trial and a subsequent “re-referral” of the charges that removed the motion from consideration.
Seefried’s attorney, Richard Stevens, suggested at the time that military officials, including Gen. Burke, were being subjected to outside political pressure to take sexual assault cases to court martial out of fear that their careers would be in jeopardy if they chose to dismiss such cases.