Naples Article 32 dismissed, termed 'procedurally defective'
NAPLES, Italy — Criminal charges against a Naples-based sailor were dropped late Wednesday after the convening authority ruled that an Article 32 investigation was “procedurally defective.”
Rear Adm. Noel Preston, commander of Navy Region Europe and the general-court martial convening authority, dismissed the case against Chief Petty Officer Felix Correa after deciding the investigating officer improperly closed the entire Article 32 investigation to the public and media.
Stars and Stripes had filed a petition arguing that the closure was unlawful.
“Out of an abundance of caution, and in order to ensure that the interests and rights of both the accused and the public and media are given due regard, [the pretrial investigation] is deemed procedurally defective and charges are hereby dismissed without prejudice,” Preston wrote to Cmdr. Thomas O’Neill, commander of Naval Computer and Telecommunications Station, Correa’s command.
As of Wednesday, O’Neill had not decided what action, if any, to take, said Lt. Cmdr. Lisa Braun, Navy Region Europe spokeswoman.
“NCTS will consult with a Staff Judge Advocate and review all of its options prior to making any decision,” she said in a statement.
Those options include taking no action, any number of administrative procedures, sending the case to nonjudicial punishment, or proffering new charges and referring the case to a summary or special court-martial, or convening another Article 32 investigation, Braun said.
Preston’s decision is part of the Navy’s response to a petition filed Dec. 7 by Stars and Stripes with the U.S. Navy-Marine Corps Court of Criminal Appeals on grounds that the Nov. 15 and 16 Article 32 investigation was improperly handled.
The investigating officer in the case, Lt. Cmdr. Kathryn McCormick, barred the public and media from the entire pretrial investigation. Stripes argued that existing case law states that if a hearing or trial is to be closed to the public, it must be done on a “case-by-case, witness-by-witness, circumstance-by-circumstance basis,” as established by the U.S. Court of Appeals for the Armed Services.
Correa, 41, was charged with indecent acts with a minor, fraternization and sexual harassment.
With the Navy’s concession that the Article 32 process was improperly carried out and that charges against Correa were dismissed, the Navy’s lawyer, Lt. Mark Herrington, is asking the court to toss out Stars and Stripes’ petition.
However, Stars and Stripes opposes the Navy’s motion.
“What is needed is an order from the court directing compliance with applicable standards and prohibiting future arbitrary closures,” said Matthew Freedus, a lawyer who filed the petition on Stars and Stripes’ behalf.
“Adm. Preston deserves credit for effectively admitting the error, but the government claim that by doing so, that the petition is moot is incorrect, and it’s a transparent effort to escape a ‘finding of error’ from the court,” said Freedus, with the Feldesman Tucker Leifer Fidell LLP firm in Washington, D.C.