Richard Thompson, President and Chief Counsel of the TMLC commenting on the lawsuit, stated: “General George Patton who once wrote about the requirement of ‘loyalty from the bottom to the top,’ stated ‘loyalty from the top down is even more necessary.’ LTC Downey gave his all to the Army and to the country he loves, yet the Army he so loyally served threw him under the bus merely to avoid negative press from the homosexual community. America is set to lose one of its exceptional combat leaders due to an unjust application of the Army’s policy regarding repeal of Don’t Ask Don’t Tell [“DADT”]. Our lawsuit is an attempt to correct this injustice to Chris Downey and our nation.”
The lawsuit stems from LTC Downey’s effort to prevent two female officers under his command, a Captain and a Lieutenant, who were in uniform at a formal military ball and were on the dance floor engaged in prolonged French kissing, taking off each other’s uniform jackets, and other intimate conduct, from violating Army regulations regarding public display of affection. Once he became aware of the situation, LTC Downey took immediate action to stop the inappropriate behavior. He also attempted to prevent other soldiers from photographing and videotaping the officers’ inappropriate conduct, which he believed would embarrass the officers and affect the good order and discipline of his unit. In the process of lowering the camera of an enlisted soldier, the camera accidentally made contact with the soldier’s nose.
As a result of the incident, LTC Downey was ordered to face an Article 15 hearing for assault consummated by battery and violation of the repeal of “Don’t Ask, Don’t Tell” policy. The commanding officer, General Mark Milley, found LTC Downey guilty of the charges. As a result, LTC Downey was issued reprimands for both violations, relieved of command, issued a negative Officer Evaluation Report (OER), and removed from the attendance list of the National War College.
TMLC’s federal lawsuit alleges that the Article 15 proceedings against LTC Downey violated both the US Constitution and Army Regulations. LTC Downey has exhausted all of his military administrative appeals. He now turns to the federal courts as his last resort to vindicate his constitutional rights and to prevent the end of his military career.
TMLC trial counsel Erin Kuenzig is one of the attorneys representing LTC Downey. Kuenzig explained, “A fair and impartial review of the facts leads to only one conclusion—that LTC Downey has always acted to protect the well-being of his soldiers, his unit, and his country and should never have been penalized for doing the right thing. We are asking the Court to review all of the due process violations and violations of Army regulations that led to such an unjust result in this case.”
AN OUTSTANDING MILITARY OFFICER
LTC Downey has given his country and the Army 24 years of distinguished service, including over 1,000 combat flight hours during three combat tours of duty. He has been awarded 3 Bronze Stars and 7 Air Medals, one with a “V” device for valor in combat. The Air Medal with “V” device was awarded for valor he displayed on May 25, 2011, in “complete disregard for his own safety while initiating multiple engagements against an enemy with superior fields of fire over friendly forces. His actions were decisive in saving the lives of soldiers on the ground.”
From 2010 to 2012, LTC Downey returned to combat as an Aviation Task Force Squadron Commander in Jalalabad, Afghanistan. Under his direction, his unit exceeded Army maintenance standards enabling an unprecedented 3,000 missions executed and 30,000 flight hours flown in the most complex and dangerous region of Afghanistan, the Kunar Valley.
Additionally, under his command, the unit won two national level awards in one year, an achievement repeated only once before in the history of the awards: The Ellis D. Parker Aviation Unit Award for the Top Combat Unit of the Year, which recognized that the unit operated in one of the most challenging and helicopter-dependent areas of operation while sustaining the finest safety record of any Aviation unit in theatre; and The Army Aviation Association of America Active Aviation Unit of the Year Award, which recognized that his unit flew in excess of 30,000 accident free hours in some of the most inhospitable flying terrain in the world. LTC Downey was rated as the best Aviation Task Force Commander in all of Regional Command East. He was slated to attend the National War College well before his peers.
THE ARTICLE 15 PROCEEDINGS
The Article 15 proceedings were unduly influenced by concern over adverse media attention, offending homosexual advocacy groups, and contradicting the Department of Defense’s position that repeal of DADT was being successfully implemented. Tainting the entire Article 15 proceedings was the fact that on May 10, 2012, two weeks before the Article 15 Hearing, a Department of Defense press statement entitled “Report Shows Success of “Don’t Ask, Don’t Tell Repeal” trumpeted the conclusion that the Don’t Ask Don’t Tell repeal was being implemented successfully. Chairman of the Joint Chiefs of Staff, General Martin E. Dempsey, claimed he had not seen “any negative effect on good order and discipline” resulting from the repeal.
The Article 15 Hearing took place in a conference room on May 30, 2012. LTC Downey appeared without his assigned military lawyer because she was told by General Milley’s lawyer that the hearing would merely be a “commanders’ conversation.” She advised Downey that her presence would make him “appear weak.” The hearing lasted 5 hours.General Milley appeared at the hearing flanked by two of his staff lawyers who sat adjacent to him while LTC Downey sat alone in the middle of the room with no representation. LTC Downey was asked legal questions which he was not qualified to answer. He was also ordered to view a loose leaf binder of random photographs which had been taken throughout the night of the formal ball and characterize the behavior of the individuals depicted in the photos as “appropriate” or “inappropriate.”Although the enlisted soldier LTC Downey was alleged to have assaulted was in the hall, he was not called as a witness. The two lesbian officers he allegedly discriminated against were not called. During the hearing, the General became angry that his investigation was being questioned and informed Downey he was keeping track of number of times Downey criticized his investigation.
As a consequence of the Article 15 determinations, a Show Cause Board was convened to determine whether LTC Downey should be retained in the Army. After hearing from multiple witnesses, the Board found that the allegations of LTC Downey’s derogatory activity was not supported by a preponderance of the evidence and voted unanimously to retain LTC Downey in the Army. Nevertheless, despite the Show Cause Board’s determination, his remarkable accomplishments and consistently stellar reviews from his superior officers, a Selective Early Retirement Board, which convened on Wednesday (Nov 12th), will decide whether LTC Downey should be forced to retire.