Almy et al v. United States Department of Defense et al

Filing 43

MOTION for Partial Summary Judgment filed by Michael D. Almy, Jason D. Knight, Anthony J. Loverde. Motion Hearing set for 9/1/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 8/10/2011. Replies due by 8/17/2011. (Attachments: # 1 Declaration by Almy, # 2 Exhibit 1 to Almy Dec, # 3 Exhibit 2 to Almy Dec, # 4 Exhibit 3 to Almy Dec, # 5 Exhibit 4 to Almy Dec, # 6 Exhibit 5 to Almy Dec, # 7 Exhibit 6 to Almy Dec, # 8 Exhibit 7 to Almy Dec, # 9 Exhibit 8 to Almy Dec, # 10 Exhibit 9 to Almy Dec, # 11 Exhibit 10 to Almy Dec, # 12 Declaration by Knight, # 13 Exhibit 1 to Knight Dec, # 14 Exhibit 2 to Knight Dec, # 15 Exhibit 3 to Knight Dec, # 16 Exhibit 4 to Knight Dec, # 17 Exhibit 5 to Knight Dec, # 18 Exhibit 6 to Knight Dec, # 19 Exhibit 7 to Knight Dec, # 20 Declaration by Loverde, # 21 Exhibit 1 to Loverde Dec, # 22 Exhibit 2 to Loverde Dec, # 23 Exhibit 3 to Loverde Dec, # 24 Exhibit 4 to Loverde Dec, # 25 Exhibit 5 to Loverde Dec, # 26 Exhibit 6 to Loverde Dec, # 27 Exhibit 7 to Loverde Dec, # 28 Certificate/Proof of Service)(Woodmansee, Mark) (Filed on 7/27/2011) Modified on 8/4/2011 (gba, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 11 12 13 M. ANDREW WOODMANSEE (CA SBN 201780) STEPHANIE L. FONG (CA SBN 240836) KIMBERLY R. GOSLING (CA SBN 247803) JESSICA A. ROBERTS (CA SBN 265570) MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 JOHN M. GOODMAN (DC SBN 383147) SERVICEMEMBERS LEGAL DEFENSE NETWORK P.O. Box 65301 Washington, DC 20035-5301 Telephone: 202.328.3244 Facsimile: 202.797.1635 Attorneys for Plaintiffs MICHAEL D. ALMY, JASON D. KNIGHT, AND ANTHONY J. LOVERDE 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 17 MICHAEL D. ALMY, JASON D. KNIGHT, and ANTHONY J. LOVERDE, Plaintiffs, 18 19 20 21 22 23 24 v. UNITED STATES DEPARTMENT OF DEFENSE; ROBERT M. GATES, Secretary of Defense; DEPARTMENT OF THE AIR FORCE; MICHAEL B. DONLEY, Secretary, Department of the Air Force; DEPARTMENT OF THE NAVY; and RAY MABUS, Secretary, Department of the Navy, Defendants. 25 26 27 28 DECLARATION OF MICHAEL D. ALMY sd-544697 Case No. 10-cv-05627-RS DECLARATION OF MICHAEL D. ALMY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Date: September 1, 2011 Time: 1:30 p.m. Courtroom: 3, 17th Floor Judge: Hon. Richard Seeborg 1 I, Michael D. Almy, hereby declare as follows: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1. The Air Force has been a part of my life since it began. I was born at Bergstrom Air Force Base (“AFB”), Texas in 1970. My father is a West Point graduate who taught chemistry at the Air Force Academy, flew helicopters in Vietnam, and ultimately retired from the Air Force as a senior officer. One of my uncles retired as a Master Gunnery Sergeant from the Marine Corps, with service in World War II, Korea, and Vietnam. Another uncle served in the Army in Korea. 2. In 1988, I went to college at Wright State University and received a scholarship through Air Force ROTC. During my time in ROTC, I took an active role in developing programs there. In the summer of 1991, I was one of only a handful of AFROTC cadets who reported to Army Airborne Training at Fort Benning, Georgia. Although I have not had occasion to jump since, I am very proud of having earned my jump wings that summer. In 1992, I graduated from AFROTC as a distinguished graduate, in the top ten percent of all graduates nationwide. 3. I entered active duty in the Air Force in 1993. When I first entered active duty, I attended Basic Communications-Electronics Officer Training at Keesler AFB in Mississippi. Following completion of this course, I was stationed at the Air Intelligence Agency at Kelly AFB in Texas. After nine months of service at Kelly AFB, I was accepted for and attended navigator training at Randolph AFB in 1994. 4. In July 1995, I was assigned to Scott AFB in Illinois. I initially worked in systems support for the Intelligence Directorate (J2) of United States Transportation Command. Following this, I worked at the help desk for all Air Mobility Command and Control Systems. 5. In 1998, I was stationed at the Third Combat Communications Group at Tinker AFB in Oklahoma. While stationed in Oklahoma, I was named officer of the year for my unit of nearly 1,000 people. 28 DECLARATION OF MICHAEL D. ALMY sd-544697 1 1 2 3 4 6. communicator from my unit, with approximately 60 personnel in my squadron. There the squadron supported all the base-level communications requirements during Operation Desert Fox. 5 6 7 7. group was deployed in support of Operation Southern Watch. 8. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In July 2001, I was one of six officers selected from the entire Air Force to attend Professional Military Education at the Quantico Marine Corps Base in Virginia. 10 11 In September 1999, I again deployed to Saudi Arabia. I served as the executive officer for the 363rd Expeditionary Operations Group at Prince Sultan Air Base, where the 8 9 In September 1998, I deployed to Eskan Village, Saudi Arabia, as the senior 9. In June 2002, I was stationed at Ramstein Air Base, Germany, in the Communications Directorate of Headquarters for the U.S. Air Force Europe. There I worked on tactical communications and airborne communications projects. In December 2002, I again deployed to Prince Sultan Air Base in support of the invasion of Iraq at the beginning of Operation Iraqi Freedom. I was directly responsible for facilitating communications activation at newly established bases throughout the theater in Jordan, Saudi Arabia, and Iraq, as well as overseeing the viability of the network architecture supporting the unmanned aerial vehicle fleet. 10. After returning from Saudi Arabia, I was promoted to the rank of Major and accepted a position as the Chief of Maintenance at the 606th Air Control Squadron (“ACS”) at Spangdahlem Air Base in Germany. I reported to Spangdahlem Air Base in September 2003, where I was in charge of a directorate of 180 troops. 11. In September 2004, my unit deployed to three locations in Iraq in support of Operation Iraqi Freedom. This marked my fourth deployment to the Middle East during my Air Force career. During this deployment, my unit controlled the airspace over two-thirds of Iraq, and my troops maintained the communications systems necessary for that mission. This included air support for the liberation of Fallujah, Iraq. My base came under daily mortar 27 28 DECLARATION OF MICHAEL D. ALMY sd-544697 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 attacks. During one of these attacks, one of my Airmen was struck. The mortar attack also caused significant damage to our equipment. 12. Towards the end of this deployment to Iraq, I received the Leo Marquez Field Grade Officer of the Year Award, which recognized me as one of the top officers in my career field for the entire Air Force. A true and correct copy of a letter from USAF General Foglesong congratulating me on this award is attached hereto as Exhibit 1. 13. During my service in the Air Force, I received numerous other military awards and decorations. These accolades include, but are not limited to, the Joint Service Commendation Medal, three Air Force Commendation Medals, the Air Force Achievement Medal, the Air Force Outstanding Unit Award, the Air Force Organizational Excellence Award, the Combat Readiness Medal, the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Humanitarian Service Medal, the Air Force Overseas Long Tour Ribbon, the Air Force Longevity Service Award, the Small Arms Expert Marksmanship Ribbon, the Air Force Training Ribbon, the Company Grade Officer of the Year award, the Senior Communications and Information Badge, and a recognition as Distinguished Air Force ROTC Graduate. 14. Throughout my service in the Air Force, my military superiors and evaluators provided uniformly high assessments of me in my annual performance evaluations and promotion recommendations. For example, when I served as the Chief of Maintenance in the 606th ACS at Spangdahlem Air Base, a supervisor commented that I was: “Outstanding leader of [his] largest directorate; immediate impact on morale/mission—maintenance never stronger. . . Complete leader . . . Superb leader ready for command; simply incredible results in every endeavor.” Similarly, another supervisor commented: “Deployed superstar; engineered unprecedented mission results during local deployments in Germany/Holland[.] Top-shelf comm[unications] officer and outstanding leader; impact player ready for command.” True and correct copies of these evaluations are attached hereto as Exhibit 2. 28 DECLARATION OF MICHAEL D. ALMY sd-544697 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 15. During my deployment in Iraq that began in 2004, the Air Force prohibited Airmen from using private email accounts. Airmen in Iraq were forced to use governmentprovided computers and email accounts for official duty as well as personal correspondence. Specifically, AFI 33-119 authorized service members to use their government email accounts for personal correspondence for “morale, health, and welfare purposes.” Because of that, I used my Air Force email account for personal emails. However, I made every effort to keep my work and personal emails separate. I was using an email account and computer that only I had access to. 16. Shortly after I left Iraq in January 2005, during a purportedly “routine” search of my computer files, another member of the Air Force found personal emails in a separate folder labeled “Friends,” including at least one email from me to another man discussing same-sex conduct. Although this search was conducted outside my chain of command, these emails were brought to the attention of my commander. 17. Around midday on March 14, 2005, my commander, Lt Col Fischer ordered me to attend a meeting and confronted me with the emails. Lt Col Askew was also there. Lt Col Fischer began by reading me the DADT law, and pressured me to acknowledge I am gay. I understand that before the meeting, Lt Col Fischer had already taken the unnecessary steps of putting me on a “Do Not Arm” list, and took action to limit my access to the squadron armory. 18. In mid-June, 2005, a “Discharge For Cause” memorandum was circulated that stated I was being considered for administrative discharge for violation of Department of Defense policy against homosexual conduct. Major Mueller and Lt Col Askew both signed this document. A true and correct copy of which is attached hereto as Exhibit 3. 19. On June 24, 2005, Lt Col Askew completed a “Commander’s Assessment” that characterized me as a “moderate” threat to national security. Being described as any sort of threat to this country after all of my service continues to hurt me to this day. 20. Subsequently, I was relieved of my duties, my security clearance—Sensitive Compartmented Information, one of the highest level security clearances available in the 28 DECLARATION OF MICHAEL D. ALMY sd-544697 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 military—was suspended, and part of my pay was terminated. My clearance was suspended in such a way that I in essence “lost” my clearance, which had significant impact on my employability after the Air Force. 21. On July 7, 2005, I was sent a Notification of Show-Cause Action Initiated Under AFI 36-3206, Chapter 3, paragraph 3.6.8. Under the Air Force regulations cited in the Show-Cause action memorandum, I was required to make a showing that I should be retained in the Air Force. On February 1, 2006, I received notice by Special Order that administrative board proceedings were being convened to determine whether to recommend a discharge under DADT. 22. In response to the recommendation for discharge under AFI 36-3208, I decided to make a Conditional Waiver Statement that would waive the rights associated with a Board of Inquiry hearing because the decision of the Board would get reviewed by the same person who would have the ultimate deciding authority even if I did not have the hearing. I made the decision to waive the Board under guidance from my defense counsel. I also made the decision for personal reasons because after nearly a year of dealing with the administrative and legal process, I was emotionally exhausted and did not want to face a hostile Board. 23. Consequently, on February 15, 2006, I offered a conditional waiver contingent on (a) my receipt of no less than an honorable service characterization, if the recommendation for my discharge is approved; and (b) the opportunity to submit statements on my own behalf to the Show-Cause Authority, and any subsequent reviewing authorities, for their consideration in determining if my discharge should be approved. A true and correct copy of that statement is attached hereto as Exhibit 4. 24. The same day, I submitted a “Personal Statement” in response to the Show- Cause Action Initiated under AFI 36-3206. A true and correct copy of this Personal Statement is attached hereto as Exhibit 5. 25. The first attachment to my Personal Statement was a “Memorandum for Record” regarding the “Purported Evidence and Inquiry Leading to Show-Cause Action.” The 28 DECLARATION OF MICHAEL D. ALMY sd-544697 5 1 2 3 4 5 6 7 8 9 10 11 12 13 memorandum discussed my expectation of privacy regarding my government email account during deployment. In the memorandum, I also raised the question of whether the search of my files was to find proof of homosexuality without any credible evidence. 26. Also attached to my personal statement were multiple character references. True and correct copies of some of theses references are attached as Exhibits 6-8 respectively. As you can see, many of my colleagues—superiors and subordinates alike—wrote letters in resounding support of my retention. For instance, a retired Army Colonel wrote: “My view is that Major Almy has been, and will continue to be an excellent officer.” The Lieutenant Colonel who was my squadron commander during the discharge process also wrote: “I am convinced the Air Force, its personnel, mission and tradition remains unchanged and unharmed despite his alleged [violations of DADT].” 27. Other character reference letters included the following comments from a First Lieutenant who had been under my supervision in the 606th ACS: 14 As a graduate of the Virginia Military Institute I have seen plenty of examples of good and bad leadership. Based on my personal and professional interaction with Maj Almy I can say that he is truly one of the best. . . . One would be hard pressed to find someone in the directorate that did not respect him. His troops loved working for him and were willing to do anything for him at a moment’s notice. He demands the best out of his people and always gets it. If given the opportunity to work for Maj Almy again, my answer would be a resounding YES! If removed, the Air Force would be losing a great man and a great leader. When he was relieved of his duties as Chief of Maintenance the 606 ACS fell apart. It became painfully evident how important Maj Almy was not only to the mission but to his troops. 15 16 17 18 19 20 21 22 23 24 25 26 28. While discharge proceedings were pending, I remained at Spangdahlem Air Base performing ad hoc duties. Approximately a year after I was relieved of my command duties, my Wing Commander formally recommended to the Air Force promotion board that I be promoted to Lieutenant Colonel “below promotion zone”—in other words, ahead of my peers—even though the Air Force was actively pursuing my discharge. This recommendation was made by the base commander, the most senior officer on the installation. Ironically, this 27 28 DECLARATION OF MICHAEL D. ALMY sd-544697 6

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