On Monday, the Thomas More Law Center filed a Petition for Writ of Certiorari with the United States Supreme Court, asking the justices to take action in the case of U.S. Army Lieutenant Colonel Christopher Downey. The Thomas More Law Center argues that the Army violated its own regulations, thus effectively ending what it describes as a "stellar" career.
In a footnote, the U. S. Fourth Circuit Court of Appeals acknowledged that the Army applied the incorrect burden of proof to Downey’s case, contrary to its own regulations, but took no further action. Downey’s current petition to the Supreme Court points out that error, contending that it was so manifest and so serious that nearly every other appellate court in the country would have required the Army’s final review board to rehear his case.
In a statement released by TMLC, TMLC attorney Jay Combs commented: “The Fourth Circuit Court of Appeals threw away the exceptional career of Lieutenant Colonel Downey in a footnote. The issue that the Fourth Circuit so cavalierly disposed of in a footnote was so serious that nearly every other circuit in the United States, on this issue alone, would have reversed the entire Army Board process without the need to even address any of the other issues in the case. Most circuits recognize that the rule of law is dealt a crippling blow if an agency does not have to follow its own regulations.”
Combs is the principle author of the petition. He is assisted by attorney Erin Kuenzig, who had handled the District Court and Fourth Circuit arguments.
According to TMLC, Downey’s troubles began in 2012 when he made the “politically incorrect” effort to prevent two lesbian officers under his command from violating Army regulations regarding public displays of affection. The two officers, a Captain and a Lieutenant, were in uniform at a formal military ball and were on the dance floor engaged in prolonged French kissing, while publicly taking off each other’s uniform jackets, and other intimate and salacious conduct.
Downey took immediate action to stop what he judged to be inappropriate behavior, and also attempted to prevent other soldiers from photographing and videotaping the officers’ conduct. When he lowered the camera of an enlisted soldier, the camera accidentally made contact with the soldier’s nose, said a TMLC statement. As a result, despite the recommendations of Downey’s immediate superior, General Mark Milley ordered an investigation and a subsequent Article 15 hearing where he acted as the presiding officer on charges of assault consummated by battery and violation of the repeal of “Don’t Ask, Don’t Tell” policy.
According to TMLC, "The Article 15 proceeding, which lasted approximately 5 hours, was more concerned about offending homosexual advocacy groups than the guilt or innocence of Lt. Colonel Downey." Downey was found guilty of the charge of assault consummated by battery, and was issued reprimands for both violations, relieved of command, issued a negative Officer Evaluation Report, and removed from the attendance list of the National War College.
A formal board hearing was convened to review the same matters to decide whether Downey should be retained in the Army. The formal board, unlike General Milley in the Article 15 proceedings, conducted an exhaustive adversarial hearing in which the Army was represented by an attorney and Downey was also represented by counsel. The hearing board listened to the testimony of multiple witnesses, reviewed evidence, and listened to the arguments of government and defense attorneys. Afterwards, the formal board unanimously determined the allegations against Downey were not supported by even a preponderance of the evidence.
However, despite the unanimous decision of the formal board of officers, the prior contrary findings of the Article 15 hearing remained a part of Downey’s official record. TMLC stated that this destroyed Downey's career and tarnished his good name. Downey had had, until then, a notable military career. For example, in 2012, he received a prestigious award recognizing him and the unit that he commanded as the best aviation battalion in the United States Army. 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.” His performance reviews uniformly painted a picture of one of the Army’s most skilled and accomplished combat aviators.
Downey has received glowing reports from superiors. Former Secretary of the Army, Louis Caldera, wrote of Downey: “As former SecArmy I had the honor of working with strong officers daily, Chris Downey stands out among them. A clearly superior performance by a leader with phenomenal potential.” White House Military Office Operations Director, Marcy Steinke-Fike: “He is clearly in the top 1% of the handpicked officers of the White House Military Office Operations Directorate and in all of the Lieutenant Colonel’s I have known in my 20 years of military service...Absolutely unlimited potential – a future General Officer!” Commanding General John F. Campbell wrote of Downey, "...he is my best aviation task force commander among the top three out of 70+ commanders that I senior rate. Strong General Officer potential.”
The Administrative Board Applied the Wrong Burden Of Proof
In order to remedy the injustice caused by the erroneous Article 15, Downey appealed to the Army Board for the Correction of Military Records (“ABCMR”). Unfortunately for him, the ABCMR applied the wrong burden of proof to his case, wrote TMLC. The Board is governed by 32 C.F.R. § 581.3(e)(2) which provides: “Burden of proof. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.” (emphasis added). "Rather than holding Downey to the correct burden of proof, the Board held him to the much more difficult burden of proving an error or injustice by clear and convincing evidence. Finding that LTC Downey had not met this illegitimately high standard, the Board denied him relief," wrote TMLC.
Richard Thompson, President and chief Counsel of the Thomas More Law Center commented on Downey's case: “There is no question in my mind that Lieutenant Colonel Downey was a victim of the military’s efforts to appease homosexual advocacy groups. As a result of political correctness gone amuck, America lost an outstanding combat commander who had given his country over 24 years of loyal service.”