Military Board Refuses to Expel Sailor Over Orgy : Port Hueneme: The Navy panel says the incident at a New Zealand motel was ‘misconduct.’ It could lead to further action.

In a case testing how closely the military can control the sexual behavior of its personnel, a Navy board at Port Hueneme on Tuesday voted not to expel an enlisted man for engaging in a videotaped orgy in a New Zealand motel.

On a 2-1 vote, a three-officer administrative discharge board decided to keep Electrician 2nd Class Bill Bermudez, 24, of Los Angeles in the Navy rather than give him an “other than honorable” discharge as recommended by the prosecutor.

Furthermore, the board voted 3 to 0 that Bermudez, a veteran of the Persian Gulf War, did not commit a crime when he engaged in an act of oral sex with a woman in the motel last year in Christchurch, New Zealand.

“Oral sex between a man and a woman in private is not punishable under the Uniform Code of Military Justice,” argued defense counsel Lt. (j.g.) Jonathan Davis. “We don’t like it, but it’s none of our business.”

But the board did vote 3 to 0 that Bermudez’s actions in the motel room constituted under the military code “misconduct due to an indecent act.” This could leave him open for further Pentagon action, said a Navy source who requested anonymity.

“It’s a matter under review,” said Jeanie Pelkey, a civilian spokeswoman at the Naval Construction Battalion Center in Port Hueneme.

The unusual case follows the infamous sexual harassment incident at a 1991 Navy and Marine Tailhook Assn. convention in Las Vegas during which a number of women were fondled while being pushed through a gantlet of aviators in a hotel hallway. A government investigation of the scandal is expected to be completed soon.

Since Tailhook came to light, the Navy has made a determined effort to crack down on all harassment or other incidents that could reflect poorly on the Navy.

Tuesday’s hearing also occurred at a time of national debate over President Clinton’s proposal to allow homosexuals to serve openly in the military and hold gays to the same standard of conduct as heterosexuals.

In the Bermudez case, the Navy attempted to underscore what those standards of conduct should be.

A Navy spokesman at the Pentagon said Navy enlisted personnel are subject to these standards at all times--not just during working hours.

“Members on active duty in naval service are on active duty 24 hours a day,” said Cmdr. Craig Quigley, the spokesman. “Your conduct is constantly subject to scrutiny.”

“Bermudez has done severe damage to the Navy’s reputation in New Zealand,” argued the Navy prosecutor, Lt. Neal Sheehan.

Bermudez, a native of El Salvador who has been in the Navy for almost five years, was elated with the board’s decision.

“I feel great with the decision they made for keeping me in the military because I want to make a career out of the Navy and show everybody I’m a top performer,” he said.

Under Article 125 of the military code, Bermudez was charged with sodomy, which is defined as “unnatural carnal copulation with another person of the same or opposite sex. . . .”

He was also charged under Article 134 of the code, titled “Indecent Acts,” with conduct that “was of a nature to bring discredit upon the armed forces.”

A finding by the board that he was guilty of either criminal charge could have resulted in his discharge on conditions other than honorable.

Davis attempted to put into evidence enlarged color photos covertly taken in 1991 in Christchurch of a female stripping for a number of Navy officers from Point Mugu in an effort to show that the Navy had a double standard. But the hearing board senior officer, Lt. Cmdr. Edward Crews, would not allow the photos to become part of the hearing.

The case’s roots go back to last summer when Bermudez, stationed at Point Mugu, was on assignment in Christchurch. He was part of a team that provided logistic support for a National Science Foundation program exploring Antarctica.

In Christchurch, Bermudez and some other Navy personnel were housed at government expense in a private motel. In their off hours, many of the sailors dated local women.

In August, Bermudez was accused of rape by one of his female acquaintances. The charge, which carried a prison sentence of up to 14 years, was thrown out by a New Zealand judge.

But, according to Bermudez, it was a lesson learned.

In September, Bermudez and two other sailors invited a 19-year-old woman to his motel room where, Bermudez readily admitted at Tuesday’s hearing, they had oral sex and intercourse with the woman.

Bermudez said the orgy was videotaped by the three sailors because he wanted to ensure their protection should the woman ever accuse them of rape.

The other two sailors have since decided to leave the Navy with a less than honorable discharge without requesting a hearing.