Gay Navy Officer’s Prison Term Points Up Dilemma

For the first two weeks of his confinement, Lt. (j.g.) Daniel Miller was kept in solitary in the Navy’s Subic Bay brig in the Philippines, where his activities were limited to reading the Bible, the Stars and Stripes newspaper and the prison regulations.

Then, Miller, 24, was transferred to the military prison at Ft. Leavenworth, Kan., to begin a one-year sentence at hard labor alongside convicted killers, rapists and muggers.

Miller’s crime: engaging in homosexual activity with two consenting sailors on his own time in his own apartment. Navy officials say it was the harshest sentence for consensual homosexual conduct in recent Navy history.

The Miller case has provoked outrage among many homosexuals and puzzlement among many military officers, and the Navy recently backtracked by abruptly cutting Miller’s sentence to two months. He was released Friday.

The case illustrates a continuing dilemma for military officials on how to deal with gay men and lesbian women enlisted in the armed forces. The problem promises not to go away soon as the military plans to test enlisted personnel for AIDS antibodies, a program that potentially could force even more homosexuals out of the military closet.

Policy of Military

Defense Department policy states that homosexuality is “incompatible with military life and seriously impairs the accomplishment of the military mission.”

The Navy’s military personnel manual says that homosexuality adversely affects mutual trust, morale and confidence among service members and impairs the ability of Navy officers to maintain discipline and order.

Most of the time, the military deals with the “incompatibility” by discharging the offender. Hundreds of homosexuals are released from the military each year; since 1980, the Navy alone has released 4,882 enlisted personnel and 66 officers for homosexual activities. Most were discharged quickly and honorably.

“We don’t treat homosexuality as a punitive matter in and of itself,” said Lt. Stephen Pietropaoli, a Navy spokesman in Washington. But Pietropaoli and top Navy officials were either unwilling to comment or at a loss to explain Miller’s initial one-year sentence.

Miller’s case has become a rallying cause for gay activists throughout the West and for critics of the military who contend that homosexuals are just as fit to serve their country as are heterosexuals.

“I was appalled,” said Jim Highland, a gay World War II Army sergeant who in 1983 founded Veterans CARE (Council for American Rights and Equality) in West Hollywood on behalf of the estimated 4 million homosexual veterans. “I thought they forgot to have him walk the plank. . . . Even though we in America have begun to change attitudes and realize that human sexuality is different than it was 50, 60, 100 years ago . . . the Navy is one of those primal type of organizations that continues to insist that all gay people are sick.”

Even Navy officers who would take issue with Highland’s views conceded that they are puzzled by the severity of Miller’s sentence.

‘No Rhyme or Reason’

“I don’t know of anyone going to jail for homosexuality,” said a Navy commander in San Diego. “I don’t see how they are going to come up with an explanation. I’d love to hear it. There’s no rhyme or reason to it.”

Navy legal officials in Washington, Hawaii, San Diego and the Philippines could not recall another case of an officer being sent to prison for consensual homosexual activities. A spokeswoman at Ft. Leavenworth was unable to cite another prisoner confined for similar conduct.

Lt. Timothy Walton, Miller’s Navy-appointed defense lawyer in the Philippines, said in a telephone interview that he searched military legal books for a similar sentence and could find none. He said that officers have been fined and jailed for using their authority to force sailors to submit to homosexual acts, but not for engaging in homosexual activity with consenting adults.

Miller, in addition to receiving a one-year sentence at hard labor, was stripped of all pay and benefits. He pleaded guilty to two counts of conduct unbecoming an officer for having homosexual relations with two sailors in his sixth-floor suite at the Guam Towers Apartments.

Walton said that when Miller entered his plea the defense was counting on an administrative discharge or, at the worst, a brief prison term. “We were hoping the court would take into consideration his decision to face up to what he had done,” Walton said.

The defense lawyer said he was “stunned” on Nov. 13 when the military judge, Capt. Peter H. Strow, slapped Miller with the prison term.

“I did not understand why the prison sentence was given,” Walton said. “I think there was a feeling that (Navy officials) wanted to get the message out that they don’t want this.”

The two sailors who were involved with Miller were granted immunity in exchange for testimony against him. All three men worked on the combat store ship San Jose based in Guam, but the two enlisted men were not under Miller’s direct command. The sailors, who received general discharges, signed sworn statements that Miller never used his authority or any force to get them to participate in homosexual acts. They also stated that all sexual activity with Miller occurred in his apartment and not aboard the San Jose or in any military facility.

Walton speculated that the Navy apparently realized on Dec. 31 that it had gone too far in penalizing Miller when Rear Adm. Edwin R. Kahn Jr. reduced Miller’s prison term to two months. Both Kahn and Strow have declined to comment on the case. Miller’s case is now before the Navy-Marine Corps Court of Military Review in Washington, but he was released because of time served as soon as Ft. Leavenworth officials got official word of the sentence reduction.

Promoted in 2 Years

Navy officials said there was no evidence that Miller was singled out because he had a poor service record. He entered the Navy as an ensign after graduating from the University of Washington’s ROTC program in 1983 and was promoted to lieutenant junior grade within two years, the minimum period.

Miller’s mother, Celia, said she has hounded Kahn and other military officials in the Philippines for an explanation of her son’s incarceration, but received no straight answers.

“I told him (Kahn) my son was not a criminal and it was ridiculous to have him spend time in prison,” Celia Miller said. “He didn’t give me any justification. He told me it was a criminal act and that it would be put under review.”

Celia Miller, who lives in a small town in eastern Washington, said she first learned that her son was a homosexual in late November when he wrote her a letter describing his plight as he was being transferred to Ft. Leavenworth. The news hit the Miller family hard. Miller’s father, Charles, has been hospitalized with a serious illness and Celia Miller has been trying to hold down a job as a family counselor while fighting for her son’s release.

‘If He Is, He Is’

“It was extremely upsetting for me,” Celia Miller said. “I didn’t realize my son was into that kind of thing, anyway. I would rather he isn’t gay but if he is, he is. What he does in the privacy of his own home is his business. It seems to me if he does his job well, that’s all that counts.”

Navy officials explained that Miller’s punishment is authorized under the Uniform Military Code of Justice.

“Now whether or not this would be considered a stiff sentence would depend on the viewpoint of the person making the judgment,” said Tom Streeter, a spokesman for the Navy’s Pacific Fleet. “Cases such as this (involving officer and enlisted personnel) are too rare to determine what is the norm.”

“Homosexuality is . . . divisive and it’s bad for morale,” added a Navy spokesman in San Diego. “The Navy policy has been to just discharge expeditiously and get them out of the service, period.”

Number of Discharges

The Navy has discharged an average of nearly 1,000 homosexuals each year in the 1980s, far more than any other military branch. The Army has annually discharged an average of 330 gay personnel since 1980, compared to 300 in the Air Force and 150 in the Marine Corps.

The number of homosexuals discharged could rise substantially as all branches of the military implement plans announced in October by Defense Secretary Caspar W. Weinberger for periodic testing for AIDS antibodies. A sailor who tests positive and admits to his doctor that he is homosexual faces the likelihood of being discharged, Navy officials said.

Gay officers and sailors are usually given honorable discharges and allowed to retain their military benefits unless a commanding officer wants to press for other than an honorable discharge, according to Navy officials in Washington. Most of the cases involve enlisted personnel who lied about their sexuality when they joined the Navy.

The Department of Defense issued new guidelines on military discharges in 1982 that said that homosexuality is not a criminal offense unless the sex acts took place along with a series of aggravated circumstances. These included using physical force or intimidation; having sex aboard a military vessel or aircraft; involving a person under 16, or violating the customary relationship between a military supervisor and his subordinate.

Other Charges Dropped

Miller was charged with two counts of conduct unbecoming an officer, two counts of fraternizing with enlisted personnel, one count of sodomy and one count of indecent conduct. He pleaded guilty to conduct unbecoming an officer, and the other charges were dropped.

Navy sources in the Philippines said that prosecutors brought Miller to trial in a court martial because he had engaged in homosexual acts with enlisted personnel assigned to his ship.

“It’s not just a case of an officer (having sex with an) enlisted (man), it’s within the same command . . . a small community at sea,” said a Navy source in the Pacific Fleet familiar with the case. “Dammit, you’ve got to do something whether or not there is a threat of use of power or even a perceived threat. . . . When it comes out and becomes general knowledge through the media, you’ve got young sailors thrown to the fleet who are going to hear about it and form opinions based upon what happened.”

The Navy, however, has done little to publicize the sentence or otherwise make an example of Miller. Repeated attempts to interview Navy officials connected with the case were rebuffed.

Discharges Customary

Moreover, other similar cases involving homosexual acts between officers and enlisted personnel have resulted in discharges.

In 1983, for example, a highly decorated 19-year veteran and commanding officer of the frigate Edward McDonnell was tried on charges of having sex with a third-class hospital corpsman assigned to his ship. After four days of sometimes lurid testimony--including reports of “loud and wild” sessions in the commander’s cabin--Cmdr. Gerald Michael Vanderwier was dismissed, fined $1,200 and stripped of all military benefits.

Miller earned a BA degree in international studies from the University of Washington before he was sent to Surface Warfare Officer School in Coronado in June, 1983. Five months later, he was assigned to the San Jose.

Miller has been forbidden by Navy officials from talking to reporters, but in response to a letter from The Times, he wrote that the Naval Investigative Service launched an investigation into homosexual activity aboard the San Jose last August. Miller said he was not targeted by the original investigation, but his name was given to investigators as one who patronized gay bars in Guam and Singapore.

Asked to Confess

Miller wrote that while his battle group was headed toward Australia, he was flown to the aircraft carrier Midway on Sept. 5 for questioning by agents of the Naval Investigative Service. They presented the statements from the two sailors and asked Miller to make a confession. Miller said he requested a defense attorney, but was refused.

Later that day, agent A. J. Zgainer typed a statement and Miller signed it.

“I know it was a stupid thing to do now, but please realize I was under immense strain and pressure because of the investigation,” Miller wrote. “No one said anything about prison and general court martial. . . . I was so confused and so stupid.”

According to a copy of the confession obtained by The Times, Miller admitted that his first homosexual act took place in the summer of 1983 when he was attending warfare school in the San Diego area. The statement said Miller had an “affair” with one sailor assigned to the San Jose from November, 1984, to last February.

Miller said this week in a statement released by his mother that after he gets out of prison he will continue to fight to clear his name.

“Regardless of the fact that my sentence has been allegedly commuted to two months, the fact remains the Navy still prosecuted me and I will be considered a convicted felon.”