Nineteen Marine Corps officers are facing discipline in the Tailhook affair, but only one stands accused of criminal assault after a lengthy Pentagon investigation that uncovered 83 alleged attacks on women, according to a legal memorandum about the controversy.
The Marine Corps intends to discipline many, if not all, of the Marines implicated in the scandal, forcing the senior-most into retirement while slapping the junior officers with reprimands and $1,000 fines.
But two officers--a former El Toro pilot charged with indecent assault and a lieutenant colonel who is an ROTC instructor--have apparently been singled out for harsher punishment, according to the memo being circulated among some defense attorneys representing the accused officers.
The record, which was obtained by The Times on the condition that the source's name not be disclosed, states that the Corps wants to channel the 17 other officers--about half from El Toro Marine Corps Air Station--into confidential "non-judicial proceedings" in order "to keep the media out of it."
Prepared within the Marine Corps legal unit, the lengthy memorandum provides a behind-the-scenes glimpse into the way the Marines are handling Tailhook prosecutions and details, for the first time, potentially important issues for defense attorneys.
Among other things, the memo addresses case flaws, the possibility that the Corps trampled on the legal rights of suspected officers, and the likelihood that defense counsel will attack reportedly conflicting statements by Lt. Paula Coughlin, the Navy helicopter pilot whose complaints about misconduct at the 1991 Tailhook Assn. convention triggered a social revolution in the military.
"The amazing thing is that after all the heartburn, time and money, they cannot pin one assault on any Marine," the record concludes after summarizing the pending disciplinary cases. About 2,900 people were interviewed during the Pentagon's Tailhook investigation, including 298 Marines.
The five-page, single-spaced memorandum also contains evaluations of evidence and information that surfaced in frank discussions about Tailhook between Lt. Col. Geoff Lyons, a high-ranking Marine defense lawyer, and Maj. Phil Seymour, a member of the Corps' squad of Tailhook prosecutors.
Seymour, who is stationed at Quantico, Va., and Lyons, who is the regional defense counsel based at Camp Pendleton, declined to comment because regulations prohibit public discussion of pending cases.
The author of the memo is unknown. Sources, who requested anonymity, said it was written by someone in the Marine Corps legal defense command. Lyons said he did not personally write, or order the preparation of, any official memos or reports for distribution to those handling Tailhook cases. He cautioned that the record might be filled with opinion, speculation and hearsay.
Warrant Officer Robert C. Jenks, a Marine spokesman who is handling Tailhook inquires by the media, declined to discuss the memorandum. In general, he said, the Corps is handling the cases legally, fairly and efficiently.
The scandal grew out of the September, 1991, annual convention of the Tailhook Assn. at the Las Vegas Hilton, where the Pentagon concluded that 83 women and seven men were physically or sexually assaulted during the three-day gathering of aviators. The association takes its name from the device that helps brake planes landing on aircraft carriers, and most of the group's members are Navy and Marine aviators.
After a lengthy investigation by the Defense Department, about 120 Navy officers were identified as probable wrongdoers, along with 19 Marines, many of whom were formerly stationed at El Toro. According to the defense memo, charges under consideration for the Marines range from dereliction of duty and conduct unbecoming an officer to criminal offenses, such as indecent assault, adultery and sodomy.
Of the 19 Marines mentioned in the memo, eight are currently on duty in Southern California, including El Toro. Others are assigned to bases throughout the United States and Japan. The memo names five lieutenants, five captains, two majors, six lieutenant colonels and one colonel, whose promotion to brigadier general has been stalled by the Tailhook controversy.
Seventeen are facing hearings known as Article 15s, non-public hearings called "non-judicial punishment," the memorandum states. Two are facing Article 32s, a grand jury-style proceeding that will investigate the evidence against them. It is a step toward a court-martial.
The number of suspects and charges, however, is subject to change, considering the Pentagon has until September to bring new cases. Defense attorneys also say that formal charges against some of the 19 suspects have not been filed yet.
Jenks said four Marines have been punished so far with a $1,000 fine, official reprimands, or non-punitive letters of caution. One case has been referred to the military's equivalent of a grand jury proceeding.
Most of the Marine-related charges stem from activities in Suite 308 of the Hilton--the so-called Rhino room organized by former members of Tactical Reconnaissance Squadron 3 from El Toro. The unit was disbanded the year before the Tailhook convention that sparked the scandal.
The centerpiece of the unit's hospitality suite was a penis-shaped drink dispenser attached to a 5-by-8-foot mural of a bull rhinoceros, the squadron mascot.
Pentagon officials say that some Marines forced or tried to force five women to drink from the dispenser, which contained a mixture of rum, Kahlua, milk, ice cream and ice. They further assert that Marines hired strippers, engaged in consensual sex acts, and encouraged women to expose their breasts in exchange for squadron T-shirts.
The majority of the Marines involved face one count each of either dereliction of duty or conduct unbecoming an officer--some for organizing the Rhino suite, some for failing to shut it down, and a few for being in the company of a stripper.
According to the memo, several others face charges of indecent exposure or performing indecent acts. Two face obstruction of justice charges, while one of the lieutenant colonels--presumably the most serious case of the lot--is facing a battery of possible charges, including sexual harassment, adultery, obstruction of justice and conduct unbecoming an officer.
"He will be the exhibit to show everyone that the Department of the Navy is serious," the memo states. "His problem is that he has changed his story a number of times."
Though the Pentagon's final Tailhook report gave detailed descriptions of five indecent assaults on women in the Rhino suite, the memo states that only one Marine is accused of indecent assault--Capt. Gregory J. Bonam, a former El Toro pilot, who is now a flight instructor at Meridian Naval Air Station in Mississippi. He is suspected of assaulting Lt. Coughlin while participating in a gauntlet of officers that groped women passing through the third-floor hallway of the Hilton.
According to the memo, Coughlin apparently has had trouble identifying Bonam as her assailant. It says she identified him in a photograph, but picked out someone else as her attacker in one lineup. Her description of Bonam's clothing conflicts with several photos of him, and Bonam has "alibi witnesses" as well, the memo states.
A source close to the Bonam case, who requested anonymity, said Coughlin, however, picked Bonam out of a second lineup.
In addition, Coughlin has told investigators that her attacker wore a wristwatch and that she bit him on the arm while struggling to get away. The source said photos show that Bonam was not wearing a wristwatch at the time and there is no indication he was bitten.
"The government believes they know who the U.S. Navy aviator is that assaulted her, but they cannot prove it. The government acknowledges a weak case (against Bonam), but has bowed to the politically correct feminists and will put Coughlin on the stand to be cut up by the defense," the memorandum states.
In a second matter involving Coughlin, she reportedly identified another Marine pilot--a general's aide--as being a participant in the gauntlet, and then she recanted. The officer is still facing charges of dereliction of duty for organizing the Rhino suite.
Coughlin could not be reached for comment, but the attorney who represents her in a lawsuit against the Tailhook Assn. and the Hilton Hotel, Nancy Stagg of San Diego, said: "I think that the report by the Department of Defense stands by her statements. I have heard those allegations (about Coughlin before). . . . I think you have to consider the source."
The memorandum notes that there is a lack of corroborating evidence for several Marine cases. Certain sex acts probably cannot be proven. Investigators have been unable to find and question some of the women who were indecently assaulted, as well as witnesses to some of the alleged wrongdoing. Statements conflict.
"The prosecutors have acknowledged that they are 'pushing the envelope' with many of their charges," according to the record obtained by The Times.
In three separate cases, two lieutenant colonels and a colonel are charged with dereliction of duty for failing to close down the Rhino room after they witnessed some of the events in question.
Defense attorneys interviewed by The Times contend the charges are unfair because four Navy admirals, including Chief of Naval Operations Frank B. Kelso, have not been accused of anything so far, although they too were in the Rhino suite.
Pentagon Inspector General Derek J. Vander Schaaf said in April that 30 Navy admirals and 2 Marine generals would be referred to the Secretary of the Navy for possible disciplinary or administrative action for condoning some of the Tailhook conduct. He also reported that one admiral, Richard Dunleavy, an assistant chief of naval operations, retired last year after giving contradictory statements about what he saw at the convention.
The colonel's defense is that he did not shut down the Rhino room because Kelso and then-Secretary of the Navy H. Lawrence Garrett III, both his superiors, were present while he was there and did not halt the activities. Garrett later resigned over the controversy.
Michael L. Powell, a civilian defense attorney in Virginia and a retired Marine lieutenant colonel, said he has statements from witnesses who place Kelso and Garrett in the Rhino room.
Kelso, the senior-most naval officer at Tailhook, has said he was unaware of the scandalous conduct while it was occurring. Garrett has said he only stuck his head in the door of the Rhino room and saw no offensive conduct.
According to the memorandum, the Marine cases are being processed like the Navy's, using private disciplinary proceedings wherever possible to avoid potential news coverage.
All the Marine cases have been consolidated at Quantico under the supervision of Lt. Gen. Charles C. Krulak, head of the Marine Corps Combat Development Command.
Krulak presides over the Article 15 hearings in which he serves as questioner, jury and judge. He also has the power to refer cases for other types of discipline, including court-martials.
In most cases, the memo states, Krulak will recommend a non-punitive letter of caution for the offender. If he deems the case more serious, fines of $1,000 and letters of censure or admonition, with a recommendation that they not appeal, are possible.
The memo states that "if the accused does not show the proper repentance, contriteness and martial spirit, he is likely to be punished more severely."
Generally, second lieutenants to captains will get non-punitive letters of caution and a chewing out by their commanders, when their conduct does not involve touching a female.
Majors to colonels--the field grades--will be held responsible for setting up hospitality suites and for not stopping conduct that occurred, "apparently whether it occurred in their presence or not," the memorandum states. Any field-grade officer is expected to retire after non-judicial punishment proceedings, according to the record.
Defense attorneys contend that the consolidation of cases under Krulak is illegal, taking away the long-established authority of local commanders to discipline Marines within their units. For example, Marines assigned to aviation wings are supposed to be disciplined within their wing.
"I have never seen this type of usurping of local authority to prosecute," said Kevin McDermott, a Santa Ana attorney who is representing a Marine captain.
Two defense counselors, Powell and Charles W. Gittins of Williams & Connolly in Washington, have asked the U.S. Senate Judiciary and Armed Services committees to investigate the legality of putting all the disciplinary cases under Krulak's control.
They say the centralized process violates the chain of command and misconstrues rules intended to remove commanders from presiding over disciplinary cases they are not competent to hear.
Defense attorneys also contend that handling all proceedings at Quantico might interfere with a Marine's right to the attorney of his choice because of costly travel expenses, particularly for civilian attorneys representing Marines stationed on the West Coast.
Jenks, the Marine Corps spokesman, said the decision of Marine Corps Commandant C.E. Mundy Jr. to consolidate disciplinary hearings at Quantico is legal and necessary to ensure uniformity and efficiency in the processing of cases.
"That is not what the book says about the process," Jenks said in response to the defense contentions. He referred to the Rules of Court-Martial, which state that "a superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases. . . ."
Gittins and Powell say the centralized process would be legal if the cases involved national security issues; Mundy was personally hearing the matters; or Krulak commanded all Marine aviation units, which he does not.
"The Combined Disposition Authority process is untested in court and is a Draconian way to handle the Tailhook cases," Powell wrote in his letter to the Senate Judiciary Committee. "Without a doubt, it is a large-scale violation of the Marine Corps and Navy chain of command, which heretofore has been the bedrock of the military justice system."