JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the recent actions against U.S. Navy Captain (Capt.) Owen Honors is a regrettable redux of the Las Vegas, NV Tailhook Association scandal of 1991. Still, this incident may reinvigorate the Department of Defense's efforts to promote dignity and respect for all service-members, to foster a culture of accountability, and to promote and to hold those in leadership positions consistent with the highest standards of moral and ethical conduct....
n January 4, 2011, Admiral John C. Harvey Jr., Commander, United States Fleet Forces Command (USFFC), permanently relieved (stripped of command) Capt. Owen Honors of his duties as commanding officer of the world's longest and first nuclear aircraft carrier, the USS Enterprise (CVN 65). The stated reason was Capt. Honors' demonstrated poor judgment, involving inappropriate sexual and scatological comments and actions while serving as executive officer (a/k/a XO), or second in command of that ship.
The philosopher George Santayana wrote in his Reason in Common Sense, The Life of Reason, Vol.1, that "[t]hose who cannot remember the past are condemned to repeat it." Unfortunately it appears that Honors - and perhaps others in his chain of command - forgot one of the infamous misconduct scandals in modern Naval history, the so-called Tailhook '91 convention in Las Vegas, NV. At least 119 Navy and 21 Marine Corps officers were referred by Pentagon investigators for possible disciplinary actions involving indecent assault, indecent exposure, conduct unbecoming an officer, dereliction of duty by failing to act in a proper leadership capacity. Another 51 individuals were found to have made false official statements during the investigation. None were court-martialed; instead charges were dropped or went to non-judicial punishment (NJP) known in the Navy as "Captain's Mast." Both Secretary of the Navy H. Lawrence Garrett III and Chief of Naval Operations (CNO) Admiral Frank Kelso - attendees at Tailhook '91 - resigned within two years of the infamous convention, and one estimate indicated that the careers of fourteen admirals and almost 300 naval aviators were scuttled or damaged by Tailhook.
Capt. Honors should have had a natural talent for excellence, and a prescience for steering clear of troubled waters - literally and figuratively. Up until the incidents in question, Honors seemingly did everything the Navy would expect of an up and coming leader - and then some. A native of Syracuse, N.Y., Honors graduated with a Bachelor of Science degree in Aerospace Engineering from the U.S. Naval Academy in 1983, earned the golden wings of a Naval Aviator in September 1985, and graduated from the famed "Top Gun" school. Holding positions of trust and responsibility as an aviator, staff officer, student and commander in peacetime and in combat, Honors reported as Executive Officer of the Enterprise (CVN-65) in July 2005.
As XO, Honors evidently created and had broadcast over the Enterprise's closed-circuit television to some 6,000 embarked sailors (10-15% of which were women) a number of controversial, provocative, and by some accounts derogatory weekly "XO Movie Night" videos. Those videos broadcast from May through November 2006 and July through December 2007, included but were not limited to comments and themes as the following:
- Foul language, including the "F-bomb;
- Material he recognized was demeaning and in poor taste, conceding in one video he'd been criticized because the clips aren't as funny as they used to -- "the XO's lost his b***" [crude slang for male genitalia];"
- Slurs he acknowledged were inappropriate about the sexual preferences of embarked sailors, including a comment on "whether he should ask whether checkmates (the Enterprise-based fighter squadron VF-211) are gay" [in contravention of the Don't Ask, Don't Tell law codified at 10 U.S.C. S.6 654 (1993)], and "[f]inally, let's get to my favorite topic ... Something foreign to the gay kid over there -- chicks in the shower. This is certainly the most popular video of any of the XO Movie videos. It's also the one that's landed me with the most complaints." Those comments followed with amateurish movie clips of Honors peering into showers, finding two (impliedly) naked female sailors soaping each other, and two (impliedly) naked male sailors soaping each other;
- Criticizing and implying possible reprisal against whistleblowers [in contravention of 10 U.S.C. S. 1034 (1993)], to wit: "Over the years I've gotten several complaints about inappropriate material during these videos. Never to me personally but, gutlessly, through other channels;" and
- Clips showing Honors and other sailors pretending to masturbate during a rectal exam, set to a song called "Spank," and another scene implies that an officer is having sex in his stateroom with a donkey.
Excerpts from the videos and descriptions of their content were first published Saturday, January 1, 2011 by The Virginian-Pilot newspaper in Norfolk, Virginia. The Navy reacted quickly to the news stories and videos that went "viral" in national and world media. Official Navy spokesperson Commander Chris Sims said on CNN that: "Production of videos, like the ones produced four to five years ago on USS Enterprise and now being written about in The Virginian-Pilot, were not acceptable then and are still not acceptable in today's Navy...." The Navy does not endorse or condone these kinds of actions. The Virginia Pilot News report also went on to say Honors was asked to abandon his moviemaking in 2007 and complied.
If this was true, and his superior officers knew of these improprieties, why would Honors have received fitness reports setting up to succeed as Captain of the Enterprise, and then recommend at a board of officers to assume command of the ship where he previously committed acts of misconduct? Has the tolerance for misconduct in general, and sexually-oriented improprieties in particular, increased in recent years?
Since 1991, the Department of Defense has conducted 18 major investigations into sexual assault and sexual harassment in the Armed Forces. The Pentagon says there were 3,230 reported sexual assaults involving military members in fiscal year 2009. That was an 11 percent increase from 2008, according to the statistics. At the military service academies -- West Point and the Air Force and Naval academies -- there were 41 reports of sexual assault involving cadets and midshipmen during the 2009-2010 academic year.
At the same time, military officials estimate that as much as half of all sexual assaults in the ranks go unreported, and by General Accountability Office (GAO) estimates, the military's mandatory sexual assault prevention and response training programs are not "consistently effective." The GAO also concluded, amongst other findings, that many victims remain silent because they fear ridicule or believe that no action will be taken.
Kerry Dougherty, The Virginian-Pilot reporter who has broken much of this story to the world's attention, wrote recently that "according to the Enterprise's (un)official Facebook page, where folks are weighing in largely to defend the embattled Honors, these vulgar flicks delighted many," with such anonymous comments as "I believe Capt. Honors was trying to make himself approachable by his crew as well as improving the morale on a ship..." He also quoted a former sailor, Jessica Roman who "praised Honors, saying his 'funny videos' were stress relievers" and who was "'shocked' by the news stories about her former executive officer."
Commissioned leaders are not valued for their ability to entertain or relieve stress; they certainly are not charged with creating hostile work environments, especially where they sail, ride, jump, or walk into harm's way. They are supposed to be professionals dedicated to the profession of arms. As members of a profession, they engage in a career dedicated to knowledge and skill expertise gained by formal education and long-term experience in the workplace, validated by formal examinations and credentials. They also dedicate themselves to a "career commitment and a closed community with strong feelings of loyalty," and "have their careers controlled by accession, assignment, and promotion based on competence," and, in no small part, are subject to "a formal code of law and ethics developed, maintained, and applied by the profession." The Navy has concluded that Capt. Honors' actions were prejudicial to good order and discipline. This is not some politically correct, management-speak concept. Effective, confident military forces that fight and win wars and sustain peace always depend upon the cohesive nature of good order and discipline. The Department of Defense generally considers conduct as "prejudicial to good order and discipline" if it calls into question a service member's objectivity, results in actual or an appearance of preferential treatment, undermines authority, and compromises the chain of command.
Capt. Honors' Navy owes its traditions of exemplary adherence to law and ethics to John Adams, who drafted the first "exemplary conduct" standards for Continental Navy and Army forces approved by the Continental Congress. The first Article of the 1775 "Rules for the Regulation of the Navy of the United Colonies of North-America," mandated "exemplary conduct" for Navy leaders. Article XLVII of the 1775 American Articles of War forbade officers from "behaving in a scandalous, infamous manner." The rules also called for publishing details of "the crime, name, place of abode, and punishment of the delinquent ... in the news papers, in and about the camp, and of that colony from which the offender came, or usually resides: after which it shall be deemed scandalous in any officer to associate with him." In 1956, Congress re-codified the Navy's 1775 Rules, but it wasn't until 1997 that the same Preface quotes the Senate Armed Services Committee's "legislative intent" behind the "exemplary conduct" standard. The standard would "not prevent an officer from shunning responsibility or accountability for an action or event" but instead would "establish a very clear standard by which Congress and the nation can measure officers of our military services." Congress "holds military officers to a higher standard than other members of society ... [and] the nation deserves complete integrity, moral courage, and the highest moral and ethical conduct."
So what exactly is the standard of "exemplary conduct?" The language of the Exemplary Conduct Statute (10 U.S.C. S. 5947, with other service analogues at different sections), reads as follows:
"All commanding officers and others in authority in the naval service are required-- (1) to show in themselves a good example of virtue, honor, patriotism, and subordination; (2) to be vigilant in inspecting the conduct of all persons who are placed under their command; (3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the navy, all persons who are guilty of them; and (4) to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote and safeguard the morale, the physical well- being, and the general welfare of the officers and enlisted persons under their command or charge."
Commissioned officers must ensure that they have not misunderstood or misinterpreted or been erroneously informed of illegality, immorality, or unethical conduct, but where they find it, their oath of office, the Uniform Code of Military Justice (UCMJ), along with the Exemplary Conduct Statute will legally compel them to "do the right thing."
They lead by example. They stop illegal, immoral, or unethical practices from taking place in the first place. They report those matters that they know to be illegal, immoral, or unethical, using the tools, traditions, institutions, and channels of communication available to us within the chain of command. In the instance of multinational, coalitional, or interagency operations, to include the Department of Defense as a whole, there are often reporting and resolution mechanisms beyond the immediate chain of command but which should be approached only upon "exhaustion of remedy" at initial and subsequent echelons of reporting or resolution.
As a last resort, when Commissioned Officers find themselves irreconcilably incapable of discharging the duties of the office upon which they have entered, they may - and should - resign their office. Amongst others, General Robert E. Lee chose to do this, saying:
With all my devotion to the Union and the feeling of loyalty and duty of an American citizen, I have not been able to make up my mind to raise my hand against my relatives, my children, my home. I have therefore resigned my commission in the Army, and save in defense of my native State, with the sincere hope that my poor services may never be needed, I hope I may never be called on to draw my sword.
History has and will continue to judge the judgment exercised towards that end.
Sir Winston Churchill never said that "[t]he only traditions of the Royal Navy are rum, sodomy and the lash." His assistant, Sir Anthony Montague-Browne rebutted that Churchill ever said this oft-repeated, and unfair characterization of past Naval tradition. What is certain about today's modern American Navy, as well as the other Armed Forces, is that military leaders more than ever must be arbiters and role models of exemplary conduct in every instance, location, and situation. They must be part of the solution to prevent and to prosecute sexual assault and sexual harassment in the armed forces. They now must also find ways to implement - with dignity and respect for all service members - the Don't Ask, Don't Tell Repeal Act of 2010 (H.R. 2965, S. 4023); that law repeals law and policy from 1993 onward (10 U.S.C. S. 654) that had prevented openly gay and lesbian people from serving in the U.S. military. When those in command cannot or have not demonstrated exemplary conduct, they, too, may be held accountable like Capt. Honors, or should resign their commissions like General Lee.
Kevin Govern is a professor at Ave Maria School of Law. He began his legal career as an US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law.
Suggested citation: Kevin Govern, Higher Standards of Honorable Conduct Reinforced: Lessons (Re)Learned from the Captain Honors Incident, JURIST - Forum, Jan. 12, 2011, http://jurist.org/forum/2011/01/higher-standards-of-honorable-conduct-reinforced-lessons-relearned-from-the-captain-honors-incident.php