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Servicemembers Legal Defense Network is calling on the secretary of the Navy to discharge a soldier with a "less than honorable" status and reduced retirement pay after an internal investigation concluded the sailor had, in fact, abused a subordinate sailor using antigay and homophobic hazing.
Petty Officer Joseph Rocha, a gay man who remained closeted during his service and is now a client of SLDN's, claimed that he was abused over the course of about two years, from 2004 to 2006, by his superior and fellow sailors for his perceived sexual orientation while serving in the Navy in Bahrain.
In January of 2007 the Navy's investigation of Rocha's commander, Chief Petty Officer Michael Toussaint, turned up 21 findings of fact documenting numerous incidents of abuse and harassment that included employing homophobic epithets and forced simulation of gay sex acts. Following the investigation, Toussaint was censured and forced into early retirement.
In a newly released letter sent from Navy secretary Ray Mabus to SLDN executive director Aubrey Sarvis dated January 21, 2010, Mabus wrote that although a court-martial was considered in the case, the chief of Naval Operations opted for a letter of censure "after careful deliberation, and it is a decision I support."
Mabus explained, "His decision was based on a number of factors, including the time that has elapsed since the hazing incidents, the fact that Senior Chief Toussaint's involvement previously was reviewed by an authorized commander, and Senior Chief Toussaint's proximity to retirement eligibility following return from an overseas deployment."
In a response letter dated July 1, 2010, SLDN legal director Aaron Tax noted, "It is difficult to comprehend why these factors, individually, or even when taken together, excuse the abuse Rocha and others suffered at the hands of Toussaint. These abuses include being locked inside of a feces-filled dog kennel, being forced to simulate sex acts with another man, and being spanked. The fact that time has passed, that Toussaint, like countless others, has recently deployed, and that he is close to retirement, cannot and should not excuse his actions."
In February a Retirement Grade
Determination Board further recommended that Toussaint should be retired
at full pay as a senior chief petty officer, the rank to which he was
promoted after the abuse investigation had been completed. According to a Navy Times article, "Under the 2009 retirement pay schedule, Toussaint would be eligible
for about $2,032 in monthly retirement pay as a senior chief. If Mabus
opted to reduce him one rank, to E-7, he would receive about $1,850 each
month under the 2009 figures; if reduced to E-1, a retired sailor would
receive $664 monthly."
But Tax requested in his letter that Toussaint be retired at the pay grade "at which he last served honorably" and be given "a discharge characterization that reflects his service record, which is clearly, less than honorable."
Tax concluded, "To do anything less sends the message that so long as 10 USC SS 654 (the law known as 'Don't Ask, Don't Tell') remains on the books, not only will service members continue to be fired based on their actual or perceived sexual orientation, and not only will the law will continue to silence lesbian, gay, and bisexual service members who are the subject of harassment, but the Navy will continue to give license to their superiors to harass, degrade and abuse them."