McVeigh v. Cohen

Ever since the Oklahoma City bombing of 19 April 1995, the name "Timothy McVeigh" has been highly recognizable--so much so that the judge in McVeigh v. Cohen began his ruling by referring to "Plaintiff Timothy R. McVeigh, who bears no relation to the Oklahoma City bombing defendant . . . " In addition to his name and its unfortunate connotation, U.S. Navy Senior Chief Timothy McVeigh had at least one other problem in his life: he was a highly decorated noncommissioned officer in the navy, but if his superiors had reason to believe he was gay, he could be discharged. If McVeigh continued in the military for another three years, he would be eligible to retire with outstanding benefits; but if he suffered a less than honorable discharge, he would have little to show for his 17 years of service. There was no reason, however, to reveal his sexual orientation, if indeed he was gay: under the "Don't Ask, Don't Tell" policy, McVeigh was under no compunction to make a statement as to his preferences, nor was the navy free to pry into his personal life.

Then on 2 September 1997, McVeigh sent a fateful electronic mail, or e-mail, message through the America Online Service (AOL). The note was a response to a request from Helen Hajne, a civilian coordinating a drive to collect toys for children of U.S.S. Chicago crew members. McVeigh, who served on the Chicago, a submarine, sent her a note under the alias "boysrch@aol.com," and signed it "Tim." Hajne, also an AOL subscriber, searched the alias on the member directory and discovered that "boysrch" was named Tim; worked for the military; and lived in Honolulu, Hawaii. There was no further information as to his full name, address, or phone number; however, "Tim" listed his marital status as "gay," and included among his interests "boy watching" and "collecting pics of other young studs."

Hajne's husband, like McVeigh, was a non-commissioned officer aboard the Chicago, and after she passed the e-mail message and profile to him, the materials ultimately made their way to the desk of Commander John Mickey. The latter, the equivalent of a general in the army, served as captain of the ship--and McVeigh's commanding officer. He passed the evidence to Lieutenant Karin S. Morean, the principal legal adviser for the ship and a member of the JAG (Judge Advocate General's) Corp. By this point, the navy suspected McVeigh as the "Tim" who had written the note, but just to make sure, Morean asked a Navy paralegal, Legalman First Class Joseph M. Kaiser, to contact AOL. When Kaiser called AOL's toll-free number, he spoke with a technical services representative. Without identifying himself as a member of the navy--let alone of its legal corps-- Kaiser told the AOL representative that he had received a fact sheet, and wanted to confirm a member's profile. His intention, as per Morean's orders, was to connect "boysrch" with the user profile which McVeigh had filled out under his own name; and indeed, the AOL representative confirmed that "boysrch" and McVeigh were one and the same.

After receiving this verification, Morean contacted McVeigh to inform him that the navy had obtained an indication that he had made "a statement of homosexuality" in violation of the "Don't Ask, Don't Tell" policy. She advised him of his right to remain silent in relation to the military's prohibition against "sodomy and indecent acts" covered in the Uniform Code of Military Justice (UCMJ). Soon afterward, on 22 September 1997, the navy informed McVeigh that it had commenced an "administrative separation," or discharge proceedings, on the basis of his "homosexual conduct, as evidenced by your statement that you are a homosexual."

Six weeks later, on 7 November 1997, the navy conducted a discharge hearing before a three-member board. McVeigh testified regarding his e-mail message to Hajne, thus implicitly identifying himself as its author, but also presented evidence that he had been involved in several heterosexual relationships--including an engagement to one woman. Nonetheless, the board ruled that the navy had sufficient evidence to charge McVeigh with "homosexual conduct." This being a dischargeable offense, the navy further accelerated its proceedings to make McVeigh's discharge final at 5:00 a.m. Eastern Standard Time on Friday, 16 January 1998.

The day before this was to happen, however, McVeigh commenced his lawsuit in U.S. District Court, naming Defense Secretary William Cohen as defendant. The navy put off his separation until Wednesday, 20 January. On Wednesday morning the court held a hearing at which the navy initially refused to honor the judge's request for more time to consider the case. It rescheduled the discharge to take place on Friday, 23 January. But on 22 January, the navy told the court that it would give it until Tuesday, 27 January, to make a decision on the case. If a decision was not made before that date, McVeigh would be removed from service. The court, in the person of Judge Stanley Sporkin, made its ruling on 26 January.