Court Upholds Sailor’s Ouster for Wearing Women’s Clothing

The Supreme Court Monday rejected the appeal of a San Diego Navy man thrown out of the service for wearing women’s clothes while off duty.

The court, without comment, left intact rulings that Petty Officer Virgilio Guerrero was treated fairly when prosecuted for conduct “to the prejudice of good order and discipline in the armed forces.”

Guerrero, a 10-year veteran, was stationed at the Navy’s Fleet Training Center in San Diego in 1989 when convicted in a court-martial. His sentence included a discharge from the Navy.

Guerrero was convicted of two specific violations--dressing in women’s clothes after inviting another sailor to his apartment, and allowing his neighbors to see him in women’s clothes. The fellow sailor testified that Guerrero surprised him by leaving the room and coming back wearing a long-haired wig, makeup, a mini-skirt and blouse.

In each instance, Guerrero was off duty and away from the Navy base.

The U.S. Court of Military Appeals upheld Guerrero’s conviction and sentence last September, rejecting his contention that the portion of the military code used to prosecute him is too vague.

The appeals court noted that cross-dressing is not illegal outside the military and that not all cross-dressing would be “prejudicial to good order and discipline.”

“Certainly most Americans are familiar with Jamie Farr’s character ‘Corporal Klinger’ from the television series ‘MASH,’ a show that parodies military life,” the appeals court said. But it said the time, place, circumstances and purpose of someone’s cross-dressing can make it a violation of the military code.

“If a service member cross-dresses in the privacy of his home, with his curtains or drapes closed and no reasonable belief that he was being observed by others or bringing discredit to his rating as a petty officer of the U.S. Navy, it would not constitute the offense,” the military court said.

In the appeal acted on today, Guerrero challenged his conviction based on the testimony of neighbors who saw him through his apartment window and while he was leaving and arriving at his home.

If his conviction stands, the appeal said, “the government can arbitrarily and capriciously prosecute individuals who act in ways that, while peculiar, bizarre and eccentric, in no way violate any state or federal law.”

The appeal added that Guerrero’s conduct “in no way related to the performance of his duties.”

Bush Administration lawyers urged the justices to reject Guerrero’s appeal. They said that, even if his conviction based on the testimony of his neighbors were overturned, his conviction and sentence based on the testimony of the fellow sailor who visited his apartment would remain.

Guerrero did not appeal that aspect of the finding.