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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M. ANDREW WOODMANSEE (CA SBN 201780)
[e-mail]
STEPHANIE L. FONG (CA SBN 240836)
[e-mail]
KIMBERLY R. GOSLING (CA SBN 247803)
[e-mail]
JESSICA A. ROBERTS (CA SBN 265570)
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125
JOHN M. GOODMAN (DC SBN 383147)
[e-mail]
SERVICEMEMBERS LEGAL DEFENSE NETWORK
P.O. Box 65301
Washington, DC 20035-5301
Telephone: [phone]
Facsimile: 202.797.1635
Attorneys for Plaintiffs
MICHAEL D. ALMY, JASON D. KNIGHT,
AND ANTHONY J. LOVERDE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL D. ALMY, JASON D. KNIGHT,
and ANTHONY J. LOVERDE,
Plaintiffs,

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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.

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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

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I, Michael D. Almy, hereby declare as follows:

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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.

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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.

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group was deployed in support of Operation Southern Watch.
8.

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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.

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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

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

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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

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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.

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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

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sd-544697

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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.
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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

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DECLARATION OF MICHAEL D. ALMY
sd-544697

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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:

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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.

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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

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DECLARATION OF MICHAEL D. ALMY
sd-544697

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