The 2012 incident that could lead to the end of a decorated lieutenant colonel's career involved a lesbian kiss and a broken nose, according to Army investigators.

And the nose wasn't broken, either.

Downey was found guilty of assault consummated by battery after an Article 15 hearing, the lawsuit states, for injuring a soldier attempting to take pictures of two female officers kissing on the dance floor during a military ball at Fort Drum, New York, injuring the man's nose while pulling down his camera. He received a reprimand for that finding and for violating Army Directive 2011-01, the "don't ask, don't tell" repeal, as part of the incident, during which he asked the women to stop what he saw as inappropriate conduct.

The lawsuit seeks to stop any separation proceedings while the court considers the case, to return Downey to the top of the list for promotion to colonel, and to pull the investigation's findings and subsequent reports from Downey's personnel file.

The night in question

Soldiers practice loading into a UH-60 Black Hawk helicopter at Bezmer Air Base, Bulgaria, on July 21. The soldiers, assigned to the 173rd Airborne Brigade, prepped for Swift Response, an all-night air assault mission, during Saber Guardian 17 in the Black Sea region. Army photo by Spc. Thomas Scaggs

The very public display of affection, not the same-sex nature of the participants, led to Downey's action, his lawyer said.

"Had a husband and wife been dancing and engaged in the type of activity these two females had engaged in, he would've done the same thing," Thompson said.

Downey also asked soldiers who were taking pictures and recording video of the incident to stop, fearing for possible repercussions for both the unit and the individuals on the dance floor, Thompson said. The lawsuit doesn't dispute that one of the cameras ended up hitting a specialist in the nose after Downey pushed it, but that's where the suit and the Article 15 part company.

X-ray findings

The lawsuit quotes the investigation as saying Downey "pushed a camera held by SPC [redacted] into SPC [redacted's] face with enough force to fracture the soldier's nose." It's a finding challenged by about a page worth of rebuttal in the lawsuit, including statements that:

  • An EMT on the scene examined the soldier and determined his nose wasn't broken.
  • An X-ray taken of the soldier immediately after the incident doesn't show a fractured nose.
  • The injured soldier did not speak during the Article 15 proceedings and "understood LTC Downey never intended to harm him, and that any injury he suffered was an accidental side effect" of Downey's intent to "protect the integrity of his officers."

All of Downey's appeals in the matter went on with the Army accepting the broken-nose finding, Thompson said, until the Thomas More Law Center — which "defends and promotes America's Judeo-Christian heritage and moral values," according to its website — got involved.

Thompson cited several other concerns with the investigation. Chief among them: An order that prevented Downey from communicating with members of his unit, preventing him from a full legal defense, and an Article 15 proceeding that the suit says was to address the assault allegation only, but became a five-hour ordeal and frequently involved Downey's superiors quizzing him on his interaction with the female officers. The female officers did not testify at the hearing.

"He was outraged, to me, when anyone would accuse him of discriminating against soldiers in his command," Thompson said of his client, who has been awarded three Bronze Star Medals and seven Air Medals, including one with "V" device, according to a law center news release.

Thompson alleged the Army's treatment of his client stemmed from a desire to avoid controversy surrounding the DADT repeal, which took place seven months before the Fort Drum incident. He pointed to a May 2012 article on the Defense Department's web site discussing the success of the program as a sign that Army higher-ups wanted "to make an example of him because they were concerned about the publicity that would come from the homosexual community if they did not take strong action."

Less than a week after the incident, it did receive some publicity: A Huffington Post article, which didn't name any of the participants or the unit, detailed one of the female officer's account of the evening, which included being shoved by a senior enlisted soldier in the unit, who allegedly called her a "f---ing abomination."

The woman said her commanding officer told her, "You [both] need to stop dancing; the unit does not need this kind of publicity," according to the article. The lawsuit says statements in the piece were "falsely attributed" to Downey, and Thompson maintained that Downey would've stepped in to stop a similar display of affection between members of the opposite sex — an action that would've come, he said, without the same aftermath.

"Had this been two heterosexual officers," Thompson said, "I'm speculating now, but there would not have been an issue."

The SERB that could end Downey's career began deliberations Wednesday, Thompson said. He did not know when they would reach a decision.

About Kevin Lilley

Kevin Lilley is the features editor of Military Times.

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