Midshipmen lawsuit contested

February 18, 1994|By Tom Bowman | Tom Bowman,Sun Staff Writer

Government attorneys yesterday sought the dismissal of a lawsuit filed by midshipmen implicated in the U.S. Naval Academy's largest cheating scandal, denying claims that investigators violated their constitutional rights.

Papers filed in U.S. District Court in Washington also claimed that a continued delay in disciplining the senior midshipmen involved could affect the Navy's staffing needs.

All the estimated 950 seniors -- even the 133 implicated in the scandal -- have made their service selections, choosing either Navy or Marine service in specific ships, submarines or units, the government response to the suit said. Uncertainty about the number of midshipmen who will graduate on May 25 could affect the Navy's ability to assign and rotate personnel, perhaps causing some current Navy personnel to remain indefinitely in their posts, the government said.

As a result of the lawsuit, the Navy has twice delayed disciplinary hearings slated to begin Feb. 11. The Navy has said hearings would begin no earlier than Wednesday, a day after the first scheduled hearing on the midshipmen's lawsuit before U.S. District Judge Stanley S. Harris.

Of the midshipmen implicated, 109 are slated to appear before a disciplinary panel of five active-duty officers who have the power to recommend expulsion, Naval Academy officials said.

Of the remaining cases, 17 have been dealt with by Capt. John B. Padgett, the midshipmen's commandant, with punishments assigned that included some or all of the following: loss of leadership posts within the brigade, fourth-class privileges (for example, no personal car allowed at the academy), retaking the Electrical Engineering 311 course, no involvement in varsity sports or extracurricular activities, and delayed graduation.

Two cases are awaiting disposition by the commandant, and one midshipman scheduled for disciplinary action by the commandant has been dismissed from the academy for another reason. Three of the midshipmen were found not in violation by a review panel of retired admirals.

In the final case, the midshipman had already graduated. That case has been referred to that officer's command for possible action by a military court.

Further delays in disciplinary action by the officers' panel will also harm "good order" and "discipline" at the academy, the government lawyers say. Morale will continue to deteriorate in the 4,100-member brigade until the scandal involving EE 311 is resolved, they say.

The exam was stolen several days before it was administered to 663 midshipmen on Dec. 14, 1992. Copies quickly spread through the school's dormitory, making its way through 29 of the 36 companies. The incident struck at the heart of the academy's honor concept: "Midshipmen are persons of integrity: They do not lie, cheat or steal."

The "Double EE problem" has spurred two Navy investigations, an overhaul of the honor concept, a congressional hearing and an admission by the academy's superintendent, Rear Adm. Thomas C. Lynch, that he failed to aggressively pursue a probe of the scandal.

The midshipmen's lawsuit asked the federal court to block the officers' panel from hearing the cases and to prevent the plaintiffs' "involuntary statements" from being used against them the Navy.

Government lawyers conceded, in their papers, that the midshipmen were not read their rights by investigators. But the accusations of honor violations against the 133 midshipmen amounted to "administrative" charges, while the Fifth Amendment offers protection only against criminal charges, the lawyers said.

Although the midshipmen argue that those constitutional rights -- known in the military as Article 31 -- extend beyond criminal proceedings, the Court of Military Appeals has ruled the opposite, the government lawyers noted.

But lawyers representing 48 of the midshipmen said that a federal appeals court has ruled that intentional violation of rights may not be allowed in administrative proceedings to discharge a service member.

Charges by the midshipmen that they were denied legal counsel during the investigation and before the officers' panel also were rejected by the government lawyers. Midshipmen were offered counsel throughout the investigative process, the lawyers said. Although a lawyer cannot represent a midshipman before the officers' panel, counsel can be consulted outside the hearing room throughout the proceedings.

Midshipmen who leave or are expelled toward the end of their senior year must repay their education costs of about $80,000 or serve three years as enlisted sailors.

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