Walter Fitzpatrick Court Martial

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Walter Fitzpatrick Court Martial

#51

Post by nbc »

Also, on block 17 of the Article 32 report, Quigley raised up a red flag and said that the charges were not in proper order. Block 17, which is right above Block 18, said that there is no reasonable grounds to believe that Fitzpatrick committed the events of which he was accused. :yankyank: Doesn't matter. They sent him to a special court-martial -- no Article 32 required. Even assuming that the 32 was hosed up in some major way, and even assuming his defense counsel objected at trial (which he would have had to have done to preserve the issue for appeal), there is no requirement for an Article 32 investigation at a special court-martial so any errors or irregularities in the 32 are irrelevant.I had noticed that but it never really sank in. Yes you have a good point.You're right, NBC -- no SJAR is required for a non-BCD special (and back then, it was no BCD or less than six months confinement because that was the max a special court-martial could adjudge -- it got upped to one year in 01 or 02, IIRC). Excellent, that's very helpful I think it was inappropriate for Zeller to offer his opinion, though, even outside of he context of RCM 1106 advice. He was disqualified from having any involvement in the case, but he was still Bitoff's SJA -- someone Bitoff presumably listened to. He should have just forwarded it without adding his two cents.I agree.Afer Walt refused mast, I think the convening authority did him a solid when he referred it to special, rather than general, court-martial (I get the impression from his letter that he didn't want to put the screws to Walt, but at the same time wasn't going to make any deals for Mast, so he sent it to a special to lessen Walt's punitive exposure). Since it was a special court-martial, the panel was prohibited from adjudging a punitive discharge. Officers don't get Bad Conduct Discharges or Dishonorable Discharges; they get Dismissals, and they can only get those at a general court-martial (as Terry Lakin can attest). But even if this had gone to a general court-martial, I think it's unlikely in the extreme that Walt would have gotten a dismissal for going on a boondoggle (there but for the grace of god go many a panel member), or using MWR money for unauthorized purchases. But the fact that the convening authority referred it to a special pretty much guaranteed that Walt got to keep his retirement. And by way of thanks, Walt continues to harass him and his family.A 500-some-odd Report of Investigation? Shoot. Me. Now.Interesting points to ponder. So much nuance...

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Walter Fitzpatrick Court Martial

#52

Post by nbc »

Thanks. Then I have absolutely no sympathy for FitzFundFilcher. He was using other people's money to benefit himself. He was hoisted by his own hubris.He did believe that since other ships had done the same that this was therefore ok. Bad defense.. But they did subpoena records from another ship. No idea what they showed.





Lt Anderson requested the following as discovery





L Any documentary evidence relating to the fuel oil leak emergency on board the USS Mars in July of 1988 to include engineering reports and damage reports. [WEIRD]


m. Any reports, memos or chronologies prepared by Captain Edwards~ USN, incident to his period of command on board the USS Mars in July of 1988.


n. The names and locations of all individuals serving as fund administrators and recreational services officers of MWR funds on all ships assigned to COMLOGRU 1 in July of 1988.


o. The names and locations of all individuals serving as fund administrators and recreational services officers of MWR funds on all ships assigned to COMLOGRU 1 at the present date. ..


p. The inventories of MWR equipment, as of July of 1988, specifically relating to stereo and television equipment, for all ships assigned to COMLOGRU 1 as of July of 1988.


q. The inventories of MWR equipment, as currently stands, specifically relating to stereo and television equipment, for all ships assigned to COMLOGRU 1 as currently.

The inventory sheet of Walt shows the following document.





18. Copy of USS Kansas City(AOR 3) ltr 5813 Ser LEG/0243 of 14 Mar 90 SUbj: Request for Discovery in GCM US V. Fitzpatrick~ w/encl





Encl (1) MWR Equipment Inventories for July 88 to present


Encl (2) USS Kansas City (AOR 3) Annual REC Fund Report for 1987 1988 1989


Encl (3) MWR Fund Audits for July 88 to present





15 pgs



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Walter Fitzpatrick Court Martial

#53

Post by Sterngard Friegen »

Fuel leak emergency . . . Old Yellow Stain?This is beginning to sound like LCDR Queeg's court martial. And Queeg was set up!

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Walter Fitzpatrick Court Martial

#54

Post by Maybenaut »

Fuel leak emergency . . . Old Yellow Stain?This is beginning to sound like LCDR Queeg's court martial. And Queeg was set up! :- got those yellowstain blues, oh, yes, those yellowstain blues... :- One of my all time favorite books (the movie was great, too!)
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Walter Fitzpatrick Court Martial

#55

Post by nbc »

Just for those, like me, who had to look it up, the references are to the Caine Mutiny

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Walter Fitzpatrick Court Martial

#56

Post by Maybenaut »

He did believe that since other ships had done the same that this was therefore ok. Bad defense.. But they did subpoena records from another ship. No idea what they showed.I don't know that that's a bad defense. If it was common practice, that might make the difference between willful and negligent dereliction (willful dereliction carried a 6-month sentence; negligent dereliction carried a 3-month sentence).
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Walter Fitzpatrick Court Martial

#57

Post by Maybenaut »

Just for those, like me, who had to look it up, the references are to the Caine MutinySorry :oops: But you should read the book! Or at least watch the movie -- THE BEST courtroom scenes outside of Anatomy of a Murder (which is the best courtroom movie EVER).
"Hey! You know, we left this England place because it was bogus. So if we don't get some cool rules ourselves, pronto, we'll just be bogus too." - Thomas Jefferson

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Walter Fitzpatrick Court Martial

#58

Post by nbc »

He did believe that since other ships had done the same that this was therefore ok. Bad defense.. But they did subpoena records from another ship. No idea what they showed.I don't know that that's a bad defense. If it was common practice, that might make the difference between willful and negligent dereliction (willful dereliction carried a 6-month sentence; negligent dereliction carried a 3-month sentence).Perhaps this is why during the review, the sentence was reduced from willful to negligent, even though Walt is still confused and believes that negligent is not an included lesser offense...One other topic is the lack of an NIS investigation. When Zeller contacted the NIS, they stated that they did not have anyone to spare to send out to the USS Mars in time, therefore Zeller did the investigation. Walt claims that Zeller failed to follow orders and that this undermined his case. The NIS is typically involved when the offense is a major one (> 1 yr lock up), and there are some instances where it needs to be involved statutorily (loss of life, fraud, child involved etc). Since the Article 15 resulted in a max penalty of 30 days arrest. So I fail to see why Walt is so upset about the lack of the NIS involvement.Of course, there are many issues that could have been raised during the Court Martial...Also the administrative involuntary separation board hearing found Walt not guilty of dereliction of duty... I am not sure if this has any relevance though. The Seattle PI newspaper thought it may help Fitzpatrick get a rehearing.

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Walter Fitzpatrick Court Martial

#59

Post by Sterngard Friegen »

Just for those, like me, who had to look it up, the references are to the Caine MutinySorry :oops: But you should read the book! Or at least watch the movie -- THE BEST courtroom scenes outside of Anatomy of a Murder (which is the best courtroom movie EVER).The Caine Mutiny is my favorite movie. (Second is Cyrano deBergerac. And White Christmas rounds out my top 3. I sure like me them Ferrers.)





I wrote a little bit about The Caine Mutiny before you became a member, Maybenaut. Jose Ferrer's Lt. Barney Greenwald is my favorite character and role model. You can read my comments here:





Discussing my gratitude for those who have served in the military: http://www.thefogbow.com/forum/viewtopi ... ld#p221311





Describing my favorite (and what I think is one of the most powerful) scenes in a movie: http://www.thefogbow.com/forum/viewtopi ... ld#p404223 -- scroll down one post for the clip from the movie.

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Walter Fitzpatrick Court Martial

#60

Post by Plutodog »

I believe I watched the clip at the time. It's no longer there now, sadly. :cry:
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Walter Fitzpatrick Court Martial

#61

Post by rajah »

Whatever the rights or wrongs of his court martial, he has allowed it to consume him completely to the the detriment of family and professional life. With his education and background he could have made something of himself after the navy. I tend to think that the character flaws he shows now were always there and if his career had not been cut short by this incident it would have happened in another way eventually.He is not the sort of person we would want in charge of a nuclear arsenal and and what this did was sort him out for the good of all of us.Regards ...........Dick

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Walter Fitzpatrick Court Martial

#62

Post by Foggy »

Whatever the rights or wrongs of his court martial, he has allowed it to consume him completely to the the detriment of family and professional life. With his education and background he could have made something of himself after the navy. I tend to think that the character flaws he shows now were always there and if his career had not been cut short by this incident it would have happened in another way eventually.


He is not the sort of person we would want in charge of a nuclear arsenal and and what this did was sort him out for the good of all of us.


Regards ...........DickForealdo. Every word our friend from Oz speaks is pinpoint accurate.





When I think of what my own father has managed to accomplish after leaving the Navy, it boggles my brainbone that Walt seems to have done nothing - NOTHING - over the past 20+ years, except get himself in trouble and rack up criminal convictions.





If Walt really wanted to make admiral, he had to know that any mismanagement of the MWR fund would prevent that from happening.





... even if they didn't have to file the Report of NJP in his record, there is not a chance in hell that the underlying conduct would not have appeared on his Fitness Report. Zero chance. It would have said something like, "derelict in the performance of duties by failing to ...." whatever it was they say he failed to do. That would have been accompanied by substandard numerical marks. I'm uncertain about a lot of things in life, but I'm not uncertain about this -- the promotion board most assuredly would have seen that.Which is as it should be. Only the best of the best of the best stay on track and make it to flag rank. Sometimes injustices prevent officers from moving to the top, but more often it's just a matter of numbers: only a tiny few can reach the very top. It's ALWAYS unrealistic to plan your life around becoming Chief of Naval Operations, yanno? But especially if you're mismanaging the MWR fund on your supply ship as a Lt. Commander.





What a waste of a human life Walt is. I always say, it's not how many times you get knocked down; it's how many times you pick yourself back up again. Walt got knocked down 20-some years ago, and he's never picked himself up yet.





I hope he has a computer by now. Maybe he can use one at the library. It would be good for him to read this discussion over the past few pages of this thread.
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Walter Fitzpatrick Court Martial

#63

Post by ZekeB »

Admiral Fitzpatrick? He wouldn't have made Captain. Had he kept his nose clean he may have been put out to pasture as a Commander. I believe the amount of career officers who make O-6 is somewhere well under ten percent. Walt running with the ten percenters? No way.
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Walter Fitzpatrick Court Martial

#64

Post by nbc »

Whatever the rights or wrongs of his court martial, he has allowed it to consume him completely to the the detriment of family and professional life. With his education and background he could have made something of himself after the navy. I tend to think that the character flaws he shows now were always there and if his career had not been cut short by this incident it would have happened in another way eventually.He is not the sort of person we would want in charge of a nuclear arsenal and and what this did was sort him out for the good of all of us.Regards ...........DickWalt does agree in the Cox report that what happened destroyed his life, his marriage, his career, and his next CO on the Vinson noticed how he was somewhat obsessed by the 1990 Court Martial.

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Walter Fitzpatrick Court Martial

#65

Post by PatGund »

Walt does agree in the Cox report that what happened destroyed his life, his marriage, his career, and his next CO on the Vinson noticed how he was somewhat obsessed by the 1990 Court Martial.Well, the three domestic violence charges before his retirement, not to mention the the one after the retirement, the unlawful detainer case, and the credit card judgement, all may have had something to do with the destruction of his marriage. They were divorced eight years after his court-martial and four years after his retirement. Can you imagine what those eight years must have been like, especially if the Carl Vinson's CO was correct about Fitzpatrick's obsession with the court-martial??And after the divorce in 1998?? Well, between then and 2006, there was the Port of Tracyton fiasco, harassment charges, theft charges, restraining orders, violation of said restraining order, another domestic violence charge, trespass, jail time, etc.Seems like the main thing to have destroyed Walter Fitzpatrick's life is Walter Fitzpatrick.

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Walter Fitzpatrick Court Martial

#66

Post by nbc »

Walt does agree in the Cox report that what happened destroyed his life, his marriage, his career, and his next CO on the Vinson noticed how he was somewhat obsessed by the 1990 Court Martial.Well, the three domestic violence charges before his retirement, not to mention the the one after the retirement, the unlawful detainer case, and the credit card judgement, all may have had something to do with the destruction of his marriage. They were divorced eight years after his court-martial and four years after his retirement. Can you imagine what those eight years must have been like, especially if the Carl Vinson's CO was correct about Fitzpatrick's obsession with the court-martial??And after the divorce in 1998?? Well, between then and 2006, there was the Port of Tracyton fiasco, harassment charges, theft charges, restraining orders, violation of said restraining order, another domestic violence charge, trespass, jail time, etc.Seems like the main thing to have destroyed Walter Fitzpatrick's life is Walter Fitzpatrick.It would be hard to argue that in the end Walt himself played no role in this misery, which makes his ever expanding accusations against those who disagree with him even more relevant as it is a behavior that is repeating itself. With the same 'success'

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Walter Fitzpatrick Court Martial

#67

Post by rajah »

It wan't this incident that destroyed his life, it was Walts reaction to it. He left the navy with an honourable discharge and a certain amount of prestige and respect in the community from his navy rank. He could have done things with his life but instead.........I must admit to certain sorrow at the waste of a life.Regards .............. Dick

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#68

Post by Flatpointhigh »

His story would make a great American play on the order of Caine Mutiny Court-Martial.

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Walter Fitzpatrick Court Martial

#69

Post by Reality Check »

Dick nailed it.
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#70

Post by Foggy »

His story would make a great American play on the order of Caine Mutiny Court-Martial.We'll have to wait for the ending of this one before we start the playscript, though ...
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#71

Post by Flatpointhigh »

His story would make a great American play on the order of Caine Mutiny Court-Martial.We'll have to wait for the ending of this one before we start the playscript, though ...True.

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Walter Fitzpatrick Court Martial

#72

Post by nbc »

Draft of my Article 92 questions





Walt has argued that in response to the question:





Whether a specification for willful dereliction of duty was spelled out so that the accused knew the precise nature of his misconduct.




He considered it a "hard issue":





(Note: Hard issue. No one has been able to name the act, or my failure to act, that constituted the alleged delict to this day no one can.)




Source: Cox Commission Report, Sunday,10 June 2000, p376





So let's look in more detail at Specification 1, Dereliction of Duty Article 92(3). From the documentation, it seems quite clear to me what the specification charged. Since the Court Martial Report is not available to me, I am not sure as to the extent the government proved its case. Needless to say, the panel found it sufficient to return a guilty verdict on this specification. Walt's claim that he does not understand the charge, is without much relevance.





While Walt believed/believes that the specification failed to state an offense, the specification shows otherwise. (More on Walt's first appeal submission in which he tries to attack the trial on ten issues in a later posting.)





RADM Legrand in a letter to Patty Murray explains:





The Manual for Courts-Martial (MCM) indicates that a person is derelict in the performance of his/her duties when that person willfully or negligently fails those duties or when the person performs them in a culpably inefficient manner. LCDR Fitz­patrick's failure to supervise the expenditure of MWR funds exhibited a lack of that degree of care which a reasonably prudent person should have exercised given the notice he received from LT Samples.




Source: Jun 9, 1994, RADM LeGrand letter to Patty Murray (p. 329 of the Cox Commission report)





The specification as provided appears to be sufficient when compared with a sample specification





*** (4) Dereliction in the performance of duties.





In that _____ , (personal jurisdiction data), who (knew) (should have known) of his/her duties (at/on board -- location) (subject-matter jurisdiction data, if required), (on or about _______ 19___ ) (from about______19___ to about _____19___ ), was derelict in the performance of those duties in that he/she (negligently) (willfully) (by culpable inefficiency) failed __________ , as it was his/her duty to do




Compare this with Walt's Charge Sheet:





Charges: Violation of the UCMJ, Article 92. (Guilty)





Specification 1: In that Lieutenant Commander Walter F. Fitzpatrick, U. S. Navy, Combat Logistics Group 1, on active duty, who should have known of his duties as Executive Officer on board USS MARS (AFS1), from about July 1988 to about January 1989, was derelict in the performance of those duties in that he willfully failed to follow proper procedures for the accounting and expenditure of Morale, Welfare and Recreation funds on board USS MARS (AFS 1), as it was his duty to do. (Guilty)




As to the pleadings for dereliction of duty under Art 92(3), see Criminal Law Desk book Vol II, crime and defenses, which is based on the MCM.





1. The specification must spell out the nature of the inadequate performance alleged. United States v. Kelchner, 36 C.M.R. 183 (C.M.A. 1966); United States v. Long, 46 M.J. 783 (C.M.A. 1997) (misuse of credit card for official government travel).





2. The specification need not set forth the particular source of the duty violated. United States v. Moore, 21 C.M.R. 544 (N.B.R. 1956).





3. The specification must allege nonperformance or faulty performance of a specified duty, and a bare allegation that an act was “not authorized” is insufficient. United States v. Sojfer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (specification alleging that accused corpsman committed acts beyond the scope of his duties, i.e. breast and pelvic examinations, failed to state the offense of dereliction), aff’d, 47 M.J. 425 (C.A.A.F. 1998).





4. Variance between the nature of the inadequate performance alleged and the nature of the inadequate performance proven at trial may be fatal. United States v. Smith, 40 C.M.R. 316 (C.M.A. 1969) (accused charged with dereliction by failure to walk his post by sitting down upon his post, but evidence showed he left his post before being properly relieved, in violation of Article 113, and was found asleep in a building off his post); United States v. Swanson, 20 C.M.R. 416 (A.B.R. 1950) (accused charged with dereliction by failure to forward funds, but finding was failure to properly handle funds).





5. For the enhanced maximum punishment for willful dereliction, the specification must allege willfulness, including actual knowledge of the duty. United States v. Ferguson, 40 M.J. 823 (N.M.C.M.R. 1994).




As to the concept of willful versus negligent, the difference is in severity of punishment. This is relevant since in a later review, willful was changed to negligent, as a lesser offense. Of course, Walt had expected a dismissal :-)





However, it is my understanding that OJAG reduced the conviction to a lesser included offense from an intentional criminal act to a negligent criminal act on the part of LCDR Fitzpatrick.




Source: Karen Hill, in a letter to the Oklahoma Bar Assoction, July 10, 1998 (p. 364 of the Cox Commission Report)





Walt was not impressed:





In response to overwhelming [NBC] documentary evidence that I did nothing wrong, that my trial, a Federal Courts-Martial, had been maliciously tampered with, and that cruel and unusual treatment had been visited upon myself and my family, the Judge Advocate General's office responded with a one paragraph legal statement changing the offense for which I'd been wrongfully found guilty from "willful" dereliction of duty to "negligent" dereliction of duty. This is an aberration!!




Source: Letter by Fitzpatrick to NCIS, Treasure Island: REPORT OF OFFENSES / FORMAL INITIATION OF CHARGES, September 23, 1993 (p. 405 of the Cox Commission report)





And finally the MCM which spells out the difference:





(3) Dereliction in the performance of duties.





(A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months.





(B) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.




Walt claims that he did nothing wrong, however the record shows that an audit of the MWC funds for 1988 found more than 25 discrepancies, and that Lt Samples had informed LCDR Fitzgerald the the funds were 'derelict' and that he could not certify them. The Navy Hotline also received a complaint about misspending of MWC funds related to the funeral, and although I do not think that was part of the specifications, it set in motion a set of events, starting with the Command ordering RADM Bitoff to investigate the failed audit and the hotline complaint.





Failing to properly account for the expenditures, especially after having been made aware of problems several times, may have been instrumental in panel's decision to return a guilty verdict. The letter of reprimand sentence illustrates that they did not consider the offense to be significant enough to warrant a 3 or 6 month incarceration, or discharge. Yes, in the end it was a relatively minor act that exploded into a Court Martial.





If only Walt had not turned down the Article 15...

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Walter Fitzpatrick Court Martial

#73

Post by SueDB »

While Article 15 Procedures may not be some folks'es cup of tea, it does allow for the disposal of relatively minor disciplinary offenses without the public federal felony conviction that a court-martial can bring.
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Walter Fitzpatrick Court Martial

#74

Post by Sterngard Friegen »

That's pretty vague by civilian standards.An indictment in a criminal case would say that on such and such a date, while [defendant] was in charge of a fund, the [defendant] spent money on or purchased [specific items] which were for the benefit of [someone other than intended], and that the [defendant] thereby embezzled money from the fund.Nevertheless, the military system is different and intentionally more vague becauase good order and discipline (as well as responsibility) are valued.FitzFundFilcher was a fuck up who, after getting great fitreps, started showing his true colors. When he refused a Mast that was the end of him.

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Walter Fitzpatrick Court Martial

#75

Post by nbc »

Walt is also making a lot of the preliminary investigation by Lt Zeller into the matter but fails to understand some important issues here:1. RADM Bitoff was ordered by his command to investigate the failed MWR audit and the hotline complaint.2. RADM Bitoff asked his staff to do so3. Lt Zeller contacted NCIS but they did not have anyone available before the USS Mars would leave port4. Cpt Edwards, RADM Bitoffs' Chief of Staff, ordered Lt Zeller to do the investigation, which was an I&E (integrity and efficiency investigation)5. Lt Zeller sent back several reports6. Many of the reports (work products) were not made available to the Court MartialNote that an Article 32 hearing is much like a Grand Jury hearing but in many ways offers more protection and opportunities to the accused. Timeline[Sept 15] - LT Zeller Assigned as I&E IO by CAPT EdwardsSept 18, 1989 - Lt Zeller, Bitoff's SJA, leaves for USS Mars[Sept 20, 1989 - Article 31 (b) warning to LCDR Fitzpatrick]Sept 29, 1989 - LCDR Fitzpatrick detaches from USS Mars Oct 02, 1989 - Lt Zeller returns from USS Mars and debriefs Cpt Romanski (Assistant Chief of Staff) verbally, stating that he considers the charges seriously. Told to write final report for discussion with Edwards and Romanski and then RADM BitoffOct 05, 1989 - Lt Zeller sends preliminary report to CAPT Romanski[Lt Zeller informs CAPT Romanski to revise his description of Oct 05, to avoid the perception that Romanski was the accuser]Oct 10, 1989 - CAPT Edwards returns and reviews with Romanski the draft investigationOct 11, 1989 - RADM Bitoff returnsOct 12, 1989 - RADM Bitoff meets with Lt Zeller and CAPT Edwards and Romanski to discuss I&E report. Approves recommendations to refer matter to Article 32 to ensure impartiality and has LCDR Fitzpatrick's orders changed to keep him under Bitoff's jurisdictionOct 13 - CAPT Romanski informs LCDR of charges and he is not happy...[Oct 17 - USS Mars comes under Lt Zeller commend at CAPT Edwards directions][Oct 19 - LCDR Fitzpatrick message to SECNAV to object to change of orders][Oct 23 - Lt Zeller submits second I&E report forward to Edwards. 'Declares LCDR guilt']Other data[Nov 1 - Lt Zeller Prefers formal charges, requests art 32 investigation by direction of RADM Bitoff]Nov 3, 1989 - Lt Zeller Memo to Article 32 IO with list of witnesses and last know locationsNov 14, 1989 - Lt Zeller grant of immunity signed for civilian witness Brian FeeleyNov 21, 1989 - Draft of Art 32 appointing order[Dec 12, 1989 - RADM Bitoff recuses KT Zeller from Art 34 advice][Jan -17 1990 - Lt Zeller's NJP Mast package. LCDR Fitzpatrick has till Jan 19 to respond][Jan 24, 1990 - Prefers charges and prepares SPCM]Much more but so far the records seem straightforward to me but I am not a lawyer and/or familiar with Navy procedures here.Oh yes, Lt Zeller ordered witnesses to not discuss the matter, something which Walt calls a gag order...

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