Log Cabin Republicans v. United States of America et al

Filing 202

SUPPLEMENT to MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 Regarding Application of Witt Standard of Review filed by Plaintiff Log Cabin Republicans. (Attachments: #1 Exhibit 1 to Supplemental Brief, #2 Declaration of Michael D. Almy with Exh A, #3 Declaration of Jenny L. Kopfstein, #4 Declaration of Anthony Loverde with Exh A, #5 Declaration of Joseph Christopher Rocha with Exh A, #6 Declaration of Stephen Vossler)(Woods, Daniel)

Log Cabin Republicans v. United States of America et al

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF MICHAEL D. ALMY IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS' SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips October 12, 2004 July 13, 2010

Complaint filed: Trial:

DECLARATION OF MICHAEL D. ALMY I, Michael D. Almy, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration. 2. I served as an active duty member of the United States Air Force from June 1993 to July 2006.

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DECLARATION OF MICHAEL D. ALMY IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS' SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW
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3. scholarship. 4.

I joined the United States Air Force Reserve Officers' Training Corps

("AFROTC") at Wright State University in 1988 and was awarded a full In the summer of 1991, I was one of a handful of AFROTC cadets who

reported to Fort Benning, near the city of Columbus, Georgia, for Army Airborne Training. While at Fort Benning, I earned a United States Parachutist Badge, commonly referred to as "Jump Wings." 5. 6. 7. In 1992, I graduated from the AFROTC in the top 10% of all In December 1992, I was promoted to Second Lieutenant. In June 1993, I went on active duty and was assigned to Keesler Air graduates nationwide.

Force Base in Biloxi, Mississippi for Basic Communications-Electronics Officer Training. Following completion of this course, I was stationed at the Air Intelligence Agency at Kelly Air Force Base in San Antonio, Texas. I remained at Kelly Air Force Base for approximately nine months, until I was accepted for navigator training at Randolph Air Force Base in Universal City, Texas in 1994. While there, I completed nearly nine months of navigator school. I did not complete navigator school because I failed a few examinations. 8. 9. In March 1995, I was promoted to First Lieutenant. In approximately June 1995, I left navigator school and was assigned

to Scott Air Force Base in St. Clair County, Illinois. There, I initially worked on systems support for the J2 Directorate of the United States Transportation Command. Following this task, I worked at the help desk for all Air Mobility Command and control systems. 10. 11. In March 1997, I was promoted to Captain. In 1998, I was stationed at the Third Combat Communications Group

at Tinker Air Force Base in Oklahoma City, Oklahoma. While stationed in Oklahoma City, I was named officer of the year for my unit of nearly 1,000 people. -2LOSANGELES 867900 v2 (2K)

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12.

In September 1998, I deployed to Eskan Village, Saudi Arabia as the

senior communicator from my unit with approximately 60 personnel from my squadron. There, my squadron and I supported all the base-level communications requirements during Operation Desert Fox. I remained in Saudi Arabia until February 1999. 13. Oklahoma. 14. In September 1999, I again deployed to Saudi Arabia to Prince Sultan Air Base. There, I served as the executive officer for the 363d Expeditionary Operations Group. I remained in Saudi Arabia until December 1999. 15. Oklahoma. 16. In July 2001, I was transferred to Quantico Marine Corps Base near Triangle, Virginia as one of six Air Force officers attending the United States Marine Corps C2 Systems School. This ten-month course has since become the United States Marine Corps Expeditionary Warfare Course, and is the in-residence professional military education that all Marine captains strive to attend. I completed the course, and remained in Virginia until June 2002. 17. In June 2002, I was transferred to Ramstein Air Base located near Kaiserslautern, Germany to serve in the Communications Directorate of the Headquarters of the United States Air Forces in Europe. There, I worked on tactical communications and airborne communications projects. I remained in Germany until December 2002. 18. In December 2002, I was deployed to Prince Sultan Air Base to work in the J6 directorate of the Combined Air and Space Operations Center during the invasion of Iraq. As part of this assignment, I was directly responsible for the communications activation of newly deployed sites. I also helped ensure a smooth -3LOSANGELES 867900 v2 (2K)

After my time in Saudi Arabia, I returned to Tinker Air Force Base in

After my time in Saudi Arabia, I returned to Tinker Air Force Base in

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transition of all communications functions to the new Combined Air and Space Operations Center at Al Udeid Air Base in Qatar. 19. Before I left Prince Sultan Air Base in May 2003, I was contacted by my leadership at Ramstein Air Base in Germany and asked if I wanted the Chief of Maintenance position at the 606th Air Control Squadron at Spangdahlem Air Base, Germany. I accepted the position. 20. 21. In May 2003, I returned to Ramstein Air Base in Germany. While I In September 2003, I reported to my new assignment at the 52d was there, I obtained the rank of Major in approximately August 2003. Fighter Wing at Spangdahlem Air Base in Germany. As part of my new assignment, I was in charge of 180 personnel. 22. While I was stationed at Spangdahlem Air Base, I regularly attended Christian chapel services and served as a mentor to younger airmen, their spouses and family members of deployed members that needed emotional support. 23. In September 2004, my unit deployed to three locations in Iraq. While in Iraq, my unit controlled the airspace over two-thirds of Iraq, and my troops maintained the equipment necessary for that mission. This included Close Air Support for the liberation of Fallujah. During this time, my unit sustained repeated mortar and rocket attacks. When one of my troops was injured by rocket fire, I rallied my troops, aided the wounded and restored damaged equipment to service, thus avoiding the loss of the mission. 24. While I was in Iraq, I occasionally volunteered at the hospital in Balad, Iraq. As a volunteer, I would comfort patients and move them to the flight line for the MEDEVAC helicopters so that they could be transported to Landstuhl Regional Medical Center located near Landstuhl, Germany, which is the nearest treatment center for wounded soldiers coming from Iraq and Afghanistan.

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25.

As a result of my leadership, I was nominated for and received the

2004 Lieutenant General Leo Marquez Award in the field grade officer category for electronic maintenance. The Lieutenant General Leo Marquez Award is presented to maintainers who have demonstrated the highest degree of sustained job performance, job knowledge, job efficiency and results in the categories of aircraft, munitions and missile, and communications-electronics maintenance. As a result of receiving the Lieutenant General Leo Marquez Award, I was regarded as the top Air Force Communications Officer in Europe. 26. While in Iraq, I utilized, at the permission of the United States Air Force, Air Force computers to send and receive electronic mail correspondence for personal purposes from my government-issued electronic mail account because the Air Force restricted access to all private electronic mail systems, and therefore my government-issued account was the only way I could send and receive electronic mail. 27. 28. My unit remained in Iraq until the beginning of 2005. Thereafter, my In approximately February 2005, a search was conducted on the unit returned to Spangdahlem Air Base in Germany. computer I utilized while I was stationed in Iraq. The search resulted in the discovery of emails I had sent to two men between December 2004 and January 2005. In the emails, I discussed homosexual conduct. The emails were forwarded to my Commander, and I was called into my Commander's office. While in my Commander's office, I was read the Don't Ask, Don't Tell policy. I was then handed the emails and asked how I could explain their content. I told my Commander that I wanted to talk to a lawyer before I made any kind of statement. At no point did I indicate to my Commander that I am homosexual.

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29.

Because of the content of the emails and my Commander's perception

that I had violated Don't Ask, Don't Tell, I was relieved of my duties on March 14, 2005. As a result, my security clearance was suspended and a portion of my compensation was terminated. 30. duties. 31. 32. 33. My removal from my position of leadership resulted in tremendous I was replaced with a junior officer that had neither the training nor the After I was relieved of my duties, I remained at Spangdahlem Air Base disruption to my unit and a loss of unit cohesion. expertise that I had. in Germany for approximately sixteen months. During this time period, I was assigned to an administrative desk job. 34. 35. The Air Force started discharge proceedings against me when they I initially contested my discharge. I invoked my right to an presented me with a Notification of Show-Cause Action dated July 7, 2005. administrative hearing, instead of resigning my commission. In preparation for the hearing, I had several of my former troops write character reference letters for me, including one of my squadron Commanders. In addition, a chaplain at Spangdahlem Air Base also wrote a letter. Copies of several character reference letters are attached hereto as Exhibit "A." 36. In approximately March 2006, my Wing Commander recommended that I be promoted to Lieutenant Colonel, even though the United States Air Force was pursuing my discharge. 37. Approximately a week before the administrative hearing, my lawyer told me there was no way we would win the hearing and that the government's lawyers were pushing for a general discharge instead of an honorable discharge. I wanted to make sure I got an honorable discharge, and I told my lawyer this. My -6LOSANGELES 867900 v2 (2K)

The members of my unit were not told why I was relieved of my

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