The Navy JAG Corps will probably be happy to see 2010 in its rearview mirror.  One of the less-than-pleasant events during 2010 was the VWAP fiasco in United States v. Velasquez, which led to the promulgation of new VWAP rules and procedures for the Navy JAG Corps. 

As described in this Stars and Stripes article, LCDR Anthony L. Velasquez was a Navy doctor accused of sexually molesting 23 women during the course of purporting to provide medical treatment at Atsugi, Japan and Camp Arifjan, Kuwait.  On 26 May 2010, he pleaded guilty to two specs of wrongful sexual contact and two specs of conduct unbecoming an officer and a gentleman.  As part of a PTA, the government dropped 29 other specs.  The adjudged sentence was confinement for two years, a $28,000 fine with a 6-month enforcement provision, total forfeitures, and a dismissal.  But under the PTA, LCDR Valasquez ended up spending just 7 days in confinement and was protected from the fine as well. 

As Stars and Stripes reported:

[A] post-trial e-mail sent to victims by the JAG office left some with the impression that Velasquez would suffer a much harsher fate.

The May 26 e-mail stated that “the judge awarded a sentence of 24 months, a $28,000 fine to be paid right away or else an additional 6 months would be imposed, total forfeitures of pay, and most iportantly [sic], a DISMISSAL from the Navy.”

The e-mail made no mention of the plea agreement. Nor did it state that the judge’s sentence had been largely set aside because of the plea deal.  Unless Velasquez violates the terms of the plea agreement and commits another crime, he won’t go to federal prison or pay any penalties.

Victims interviewed by Stars and Stripes were confused by what had happened and unaware of the defense-friendly terms of the PTA.  All seven of the victims Stars and Stripes interviewed “expressed dismay over the terms of the plea deal, which most called ‘a slap on the wrist.'”

 Some of the victims alleged that the Velasquez case was an example of “different spanks for different ranks.”  One said:  “[T]his is yet another example of the military protecting officer positions from disciplinary action.  Have an enlisted man do the same thing, the sentence would have been much harsher.”

As we discussed, following his return to the States from Japan, LCDR Veleasquez was arrested at one point for failing to register as a sex offender in Washington State, though he was later released.  According to the Miltiary Sex Offenders Registry website, LCDR Velasquez is now registered as a sex offender in Kentucky.

This lengthy piece that ran in the Japan Times on 30 November revisted the case.  One of the victims criticized the convening authority, RADM Richard Wren, for agreeing to such a defense-favorable pretrial agreement.  According to the victim, “[S]omebody had told Adm. Wren it was going to cost $200,000 to go to trial . . . .  When he found out it was to come from his budget, Wren forced them to make a plea deal, behind our backs, which is a violation of our rights . . . .”

The Japan Times report indicates that the Secretary of the Navy approved LCDR Velasquez’s dismissal on 20 October 2010.  If so, LCDR Velasquez must have waived appellate review, since there’s no NMCCA decision in his case.  Perhaps he and his counsel thought it best to quickly terminate the military’s jurisdiction.

Impact of the Velasquez VWAP fiasco continues to reverberate.  According to the Japan Times article, an investigation is being conducted concerning the case.  Also, the case appears to have led to changes in VWAP procedure within the Navy.  On 14 June 2010 — 10 days after the critical Stars and Stripes article was published — the Navy JAG Corps issued a new VWAP regulation:  JAG/COMNAVLEGSVCCOMINST 5800.4.   The Instruction includes the following provision regarding victims and the pre-trial agreement notification process:

[h.](5)  Victims [sic] Views Concerning Pretrial Plea Negotiations.  Victims have a statutorily designated advisory role in decisions involving prosecutorial discretion, such as plea-bargaining.  Trial counsel shall ensure victims are aware of their right to act in this advisory capacity.  In those cases in which a victim has elected to exercise the right to act in such an advisory capacity, Trial Counsel shall ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority prior to the finalization of a pretrial agreement.

A later paragraph adds, “Alth0ugh the victim’s views should be considered, this instruction is not intended to limit the responsibility or authority of any service member to act in the interests of good order and discipline.”  Id. at para. h.(14).  The Instruction also spells out the trial counsel’s notification requirements as to victims and witnesses.  Id. at paras. h.(3), (4).  The Instruction also includes a VWAP Compliance Checklist.  Id. at encl. (1).  Block e on that form provides:  “Ensure victims are aware of their statutorily designated right to serve in an advisory capacity regarding decisions involving prosecutorial discretion, such as plea-bargaining.”  Block f provides:  “In those cases where a victim has elected to exercise the right to act in such an advisory capacity, ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority.”

The Navy JAG Corps was no doubt embarrassed by the Velasquez case.  But it has certainly taken reasonable steps to avoid being embarrassed by a similar episode in the future.

25 Responses to “Top 10 military justice stories of 2010–#8: the United States v. Velasquez VWAP fiasco”

  1. Charles Gittins says:

    I don’t disagree with the different spanks for different ranks complaint. In 1988, I represented a Navy Corpsman (E-6) who was nicknamed “gramps” who performed unnecessary pelvic exams for a group of female enlisted in Okinawa. He was not a PA and had no qualifications to perform the procedure. He ended up with a PTA for 5 years and a DD. Dwight may have been the TC in the case — I just don’t recall. I would have jumped on a deal like the one in the Velasquez case in a New York minute.

  2. Anonymous says:

    Untrained corpsman, without qualifications or at least express command authorization, and without insisting upon the presence of a standby in the examination room at all times — even if the patient objects or the command complains about the waste of resources — are just asking for trouble if they perform certain examinations.

    And, Velasquez (and others like it) is not a “different spanks for different rank” case, so much as it is a case demonstrating the difficulty of proving criminal intent or conduct where the accused is authorized to do certain acts involving the examination and manipulation of intimate body parts, bound largely only by the exercise of the acccused’s own professional judgment.

    One can second-quess the decision to approve the particular PTA given to Velasquez, but we should be fair in assessing the difficulty the government would have had in proving the case. I have no doubt this was the major consideration, and not the accused’s rank.

    If anything, his rank and status as a physician would have been an aggravator.

  3. Dr. Horrible says:

    Seems to me that the VWAP was only an ancillary issue and that the big heartache was the deal in this case.

  4. Anonymous says:

    Anon 2023 sounds like s/he is speaking from an inside perspective. Is that you, Rex Guinn? Though the buck stops at the CA, his legal advisor should be equally lambasted. If nothing else, this new section of the VWAP reg should be known as the Velasquez/Guinn notice requirement.

  5. Anonymous says:

    Why is the RLSO CO more to blame than the Trial Counsel? It seems to me that the VWAP issues were part of her regular duties. Do we really expect the CO to get into the weeds on every case? Shouldn’t he be able to assume his LTs are competent?

  6. sg says:

    What does VWAP stand for? Thanks.

  7. Anonymous says:

    Victim Witness Assistance Program

  8. Anonymous says:

    This is the first time I’ve read about this story but several things occured to me while reading your version. Outside of the vwap issues, maybe the govt had a weak case and getting a guilty plea from this guy was a huge victory in and of itself. He ultimately received a dismissal and has to register….who really cares about the 7 day cap (except victims in this case and they appparantly was because of TC’s inexperience) if the alternative was an acquittal.

  9. Anonymous says:

    That’s the way I’ve read it, from the beginning. Even if the government was wrong its assessment, I don’t see that as much of a story in itself.

    For me, it’s the VWAP issue with its appearance of attempting to deceive the victims which really got people going. If the victims had been properly advised, they would have at least had time to pull a Villareal and attempt to influence a senior convening authority to take the case.

  10. Anonymous says:

    The problem clearly lies with untrained TCs; NJS focuses its military justice on triad training, which is really of no use given the lack of trials out in the fleet. The Navy JAG doesn’t try cases anymore because it has formed a system that is not geared for military justice – brig closures, courtroom closures, retreating JAGs back to fleet concentration centers, the delay in perfecting the case so that the gov can’t lose (even more important now because every case seems to be a GCM), and skyrocketing costs of CMs in the face of budget constraints. Most TCs may handle 20 cases and may get 2-3 trials before they transfer. That is simply not enough to polish admin skills (which is all the VWAP instruction really is) and learn to effectively communicate with victims and convening authorities. And no amount of training at NJS or CLE will substitute the on-the-job training of actually handling a strong caseload.

    Just my two cents – if the Navy three star wants to fix his military justice problem, it’s not creating a small corps of military justice folks. It’s pushing the military justice system back on the fleet (and all the fleet – not just Norfolk and San Diego, but Southeast, Central, Northcentral, Northwest, Pacific, Europe), maintaing a strong RLSO and NLSO presence at every Navy base, training its SJAs to use the military justice system as opposed to simply separating or NJPing sailors, maintaining an anywhere-anytime attitude towards holding CMs (as opposed to having all of these “certified courtrooms”), and taking the burdens off the convening authority (costs, travel, security, brig transport). Then the Navy will again start to see the SPCMs that serve to train TCs and DCs. If the system keeps heading down the road its on, there will be no experience in a few years.

  11. Anonymous says:

    Anon 0729…From what I have heard, the TC opposed the deal and was given 72 hours from when the deal was proposed to when the deal was signed. TC DID in fact try to tell the victims the terms of the deal, and was verbally reprimanded by the STC for doing so.

    but yes, let’s call the TC incompetent. Clearly she should have deduced that the STC was dealing behind her back.

  12. Anonymous says:

    Anon 2129, the job of the SJA isn’t to make things easy for the military justice training pipeline, it’s to represent the needs and the desires of the Command. Operational commands don’t care about the training needs of the JAG Corps and to them an NJP/ADSEP is just as good as guilty at a special in most cases.

  13. Anonymous says:

    anonymous 1330, you’re wrong. I know personally that one of the victims did direct e-mail the two-star, causing all manner of chaos at the local legal office. Now, riddle me this…how would she have know about the deal in order to send said e-mail if the TC hadn’t told her about the deal prior to the court date. Again, there’s a lot more to this story than meets the eye, and a lot more than I bet the RLSO is willing to admit. Wasn’t there an IG? Is it complete yet? Can we FOIA it and set the record straight once and for all?

  14. Anonymous says:

    VWAP isn’t the issue. The deal is the issue. And like it or not, CAs don’t really give a crap about the justice part of Military Justice, they only care about efficiently getting rid of trouble sailors and not spending money on court-martials. It has nothing to do with the case or the lawyers. You can’t make CNFJ care. He doesn’t consider doing justice for the victims of a serial sexual assualt to be part of his job. He just needed LCDR Serial-Sex-Offender gone. So let’s quit crapping on the TC or RLSO CO, unless anyone can say that these two officers encouraged the CA to take the deal.

    That said, it shouldn’t surprise anyone that this RLSO has administrative problems. They barely have a case load, the senior leadership is distracted by servicing the command-service needs of CNFJ and the waterfront, they actually sent their XO on an IA – let me say that again, they interrupted an XO tour to send him to do administrative grunt work for the Army – Oh, and they already dinged their batting average earlier in the year when they lost a speedy-trial motion on a CP case.

    I have a difficult time placing the blame for this ridiculous result entirely on the TC and a failure to comply 100% with VWAP. The fault primarily lies with the CA, with very little fault residing within the RLSO.

  15. Anonymous says:

    Anon 0729, that’s a pretty cheap shot. Remember, until someone FOIAs and posts the full IG report, we have ONE Stars and Stripes Article on which to base VWAP in this case, and Stars and Stripes is…well…on par with most high school rags for accuracy. It’s a known fact that the “legal advisor” to the IG in this aftermath of this case was also the JAG Senior detailer. If there were questions as to the TC’s competence and experience, then why was she still PCSd to a competitive independent SJA billet in the special warfare community? As to the CO’s culpability, well, the previous commenter is right…I can’t say whether he is a bad JAG or not without first knowing what advice was given to the CA.

    A lot of people on this blog seem very willing to tarnish the reputations of fellow officers on little more than rumor. Saddening.

  16. Anonymous says:

    The deal itself may not have been a bad deal – LCDR Doc gets a dismissal, sex offender registration, does a few days in the brig, gets fired, loses all military benefits, has a felony conviction, and most likely loses his medical license… and this costs the G nothing. Not a bad result. Maybe the STC had it right (disclaimer – I know none of the parties involved). As for whether there was any problem – maybe it was simply victims raising a stink because they wanted the guy to do life. Any experienced TC (not many in the USN) would have dealt with this scenario – a victim wants a guy to get the death penalty for stealing a Playstation game. Once had a victim of less than $50 tell the MJ that the guy should go away for 20 years (DC was asleep at the wheel and did not object).

    In short, this much about nothing.

  17. Anonymous says:

    Anon 1451: The fact that you think this was not a bad deal for the government is shocking. Sex offender registration and loss of medical license are administrative results of bad act – not punishment. And frankly not much of a deterrent to similar bad actors. A SERIAL sexual offender, and officer, and a doctor gets 7 DAYS of confinement and gets to avoid pleading guilty to victims that have a civil cause of action against him . . . and you think it “may not have been a bad deal.” And that folks, in a nutshell, is what is wrong with the Navy’s Military Justice system. 7 Days of confinement and he lost his job . . . you’ve got quite the hammer there, Sparky.

  18. Zappa says:

    Clearly this deal was close to right as it seems both sides think it was unfair. What is most disappointing about these posts is that we have active duty JAG officers and NCIS agents publicly dragging colleagues through the mud. Seems to me that “A Better Practice” demands better from all, no?

  19. Anonymous says:

    Agree that calling people out by name was a bit off, but this blog site persists in reposting inaccurate arguments, leading some of our brethren to persist in drawing false conclusions while others question one attorney’s competence, leading others clearly playing with a lot of inside scoop to try to correct the record.

    I say the solution is to just stop posting anything from Stars and Stripes.

  20. Anonymous says:

    Zappa,

    While I would agree with you in theory, a better practice would also demand that senior officers take responsibility for their role in this debacle rather than letting their juniors take the heat in the press and online, especially if what’s been posted above about reprimands etc. is true. Saying “shouldn’t I be able to assume my LTs are competent?” is only a fair argument if the LT was truly incompetent and not, as it appears to be the case here, actively obstructed from any meaningful role as a representative of the victims during the three days in which this deal was struck. This is the problem with MILJUS, ultimately what the CA wants, the CA wants, but then it becomes the role of leadership to stand up and say “we didn’t care what TC had to say, even if relaying victim concerns…this was the deal we struck”. Instead, what we have seen here is an attempt, through the canard of DD Form 2702, to blame a TCs minor administrative error (and it is minor…all accounts indicate that TC was in regular and meaningful contact…would handing out a piece of paper have mattered? If they had gotten the form would they have been happy with the deal? TC followed the spirit of VWAP, if not the letter to a t) for what is ultimately the real issue here…they favorably endorsed and advised for a 7 day deal for a serial sex offender. It’s that “the buck doesn’t actually stop with me” attitude coming from the leadership in this case that perhaps has inspired others in the know to come out swinging in defense of the low guy on the totem pole.

    A better practice also means not standing by and watching someone get piled on unfairly while those equally if not more culpable sit back and say nothing, and in fact, in some instances, actively engage in the pile on. That is what I believe has people fired up at this stage in the game.

    For pete’s sake, this community is a bunch of gossips.

  21. anonymous says:

    My questions about this case have nothing to do with the sentence agreed to (although that is semmingly troubling as well).

    Quite simply, 29 specifications were walked away from. Now, how did they end up on the charge sheet in the first place – and thereby raise the victim’s expectations? As I understand it, this case was investigated and developed over several months. I see no reason why the case could not have been better analyzed and only viable charges preferred. If there really were proof issues, then shame on the TC and STC, who have no one else to blame.

    If the charges were viable – then the issue is not the TCs – but the SJA and CA’s. But I honestly cannot imagine a two-star, when facing the political spectre of dismissing viable sexual assaults, would do so just to save a buck.

    My bet (and this is purely conjectral), was that the CA was presented with a fait accompli related to an exagerrated initial charging decision made by the either the TC or STC. And it all unraveled from there.

  22. Anonymous says:

    Nope. All valid charges that the TC was prepared to go forward on. Close to 30 complainants and something like 14 or so actually charged both as wrongful sexual contact or conduct unbecoming in the alternative. The weak charges were vetted out at the 32, and chester the molester was allowed to plead to the least severe of the allegations. The DC on this case deserves a legion of merit for swindling that deal. Also worth mentioning, the STC at the time of the 32 was actively engaged and serving as co counsel. After he went IA the new STC never detailed a new ATC. Let me repeat: a second tour LT was prosecuting a multiple victim sexual assault case with a LCDR accused with NO co counsel. The only time RLSO got involved after the old STC left was to deal it out over the TCs objection.

  23. Anonymous says:

    PS if you don’t think this was about money, check the timing between the new CNIC instruction on funding of courts-martial being shifted to the region, the defense getting their civilian expert approved and the rush by the sja to deal.

    The government’s witness list was 30 deep and included victims, 413 testimony, experts, and former corpsman. It wasn’t over charged, it wasn’t weak, and the TC worked her tail off for a year getting it ready.

    Please don’t speculate or call shame on anyone when you simply don’t have the facts.

  24. anonymous says:

    Awfully strident defense given what I said – perhaps you are too close to the case to view it objectively. Since you missed it the first time, I’ll repeat the operative word – IF. As in “If there really were proof issues, then shame on the TC and STC, who have no one else to blame.”

    Quite honestly, I fail to see how being a second tour LT has anything to do with the analysis. Either the TC is competent to handle prosecuting courts-martial – or not.

    Here are the facts I think I correctly stated: 29 specifications were walked away from in the final PTA. That leads to one of two conclusions – either the TC oversold the case in the initial charging recommendation, or the CA walked away from provable sexual assault charges willingly (as you assert – solely based upon the cost).

    Getting past a A32 is nothing more than a probable cause showing. That certainly does not equate with the viability of the charges at trial.

    30 witnesses? Experts? MRE 413? All that AND a former corpsman? Oh no!

  25. EmilyDewey says:

    LT D here. Appreciate the support. Don’t appreciate the flamewars in my name. If anyone has questions about this case, e-mail the parties involved. Otherwise let’s all give the name calling, speculation and drama a rest.