‘Don’t Ask, Don’t Tell’ Appeal Was Too Late


     SPOKANE, Wash. (CN) – A federal judge dismissed a lawsuit from a Navy veteran who claimed he was court-martialed for having consensual gay sex after being unsuccessfully blackmailed by “Russian intelligence officers.”
     Mark Wilhelm sued the Department of the Navy Board of Correction of Naval Records in October 2015, claiming his civil rights were violated in his 2003 court-martial.
     Wilhelm was on active duty in the Navy from 1982 to 1995. He joined the Naval Reserve, and in early 2000 was commissioned as a chief warrant officer and returned to active duty, until he was discharged in 2003.
     In his lawsuit against the Navy, Wilhelm says he “learned of his homosexuality while in the Naval Reserves and attempted to keep the matter hidden from officials, friends, and colleagues in the U.S. Navy, as the [“Don’t Ask, Don’t Tell”] law required.”
     When he was assigned to a security position at a Navy base in Atsugi, Japan, rumors started circulating that he was gay. In response, he “told a number of small lies about himself, many to make himself sound more masculine and reduce suspicion about his sexuality during this time,” according to the complaint.
     In 2002, while on leave in Russia, he “engaged in consensual homosexual sex in private,” his complaint states.
     “Plaintiff was later confronted by Russian intelligence officers of pictures of himself engaged in homosexual sex and unsuccessfully blackmailed [him],” the complaint states.
     It continues: “He was threatened to have his sexuality exposed to the Navy unless he cooperated and provided intelligence for the Russians about NAFG [the Naval facility in] Atsugi. Plaintiff declined and immediately reported the incident to the U.S. Embassy. … These admissions became the basis for multiple charges of sodomy.”
     Wilhelm appealed his court-martial through the military courts, and unsuccessfully petitioned the Board of Correction of Naval Records before he sued.
     In response, government attorneys told a much different story.
     In the Navy’s motion to dismiss , it says that Wilhelm’s complaint did not explain all the charges against him: 38 of them.
     “Although plaintiff repeatedly alleges that he was investigated for and charged with sodomy, he never alleges that he pled guilty to or was convicted of sodomy or any other charges related to his sexual orientation or homosexual behavior,” Justice Department attorney Timothy Johnson wrote. “Plaintiff does not make any allegations at all regarding the actual basis of his court-martial conviction.
     In dismissing the appeal, Chief U.S. District Judge Thomas Rice cited that Navy’s responded that “indicates that Wilhelm was convicted of making false official statements, wrongful appropriation, and conduct unbecoming an officer.”
     Rice also agreed with the Navy’s argument that Wilhelm’s lawsuit was barred by the statute of limitations.
     He dismissed with prejudice Wilhelm’s request to expunge his conviction because “the Navy’s ‘investigation, persecution, prosecution, and dismissal of plaintiff violated his constitutional rights under the First, Fifth, and Fourteenth Amendments.'”
     to expunge his conviction on this basis.
     He dismissed without prejudice a claim under the Administrative Procedures Act, for failing to state a claim, but granted Wilhelm 30 days to amend that claim only.

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