THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, July 18, 1996 TAG: 9607180324
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JACK DORSEY, STAFF WRITER
LENGTH: 237 lines
It's a matter of honor.
Navy SEAL Cmdr. Marshall D. Daugherty could have quietly taken his punishment. He could have been slapped with a fine and a letter of reprimand, and retired.
But that didn't appeal to this 46-year-old commando-trained sailor, who earned his first Bronze Star in Vietnam as an enlisted man and his second in combat in Panama as an officer.
Instead, Daugherty faces, by his own choice, a special court-martial today at his base in Rota, Spain, where he will get a chance to tell a military judge his side of a long and complicated story.
At issue: whether it was legal for Daugherty to bring his two daughters with him when he returned to the United States to undergo spinal cord surgery.
``I can understand if they simply didn't like him and wanted to fire him,'' said Daugherty's military lawyer, Lt. Richard K. Giroux. ``That's their right. But to call him a criminal - he couldn't stand that. His honor's at stake.''
Temporarily relieved of command in November, Daugherty had been the commanding officer of Rota's elite Naval Special Warfare Unit 10, an outfit he established nearly two years ago.
He has been charged with disobeying military regulations governing ethics for bringing his two children to the United States at government expense in June 1995, when he was preparing for spinal surgery in Portsmouth.
The cost of the children's tickets: approximately $700 each.
Daugherty, who has earned 41 service medals in his 26-year career, holds a master's degree from Harvard in public administration and managed a $350 million program to acquire the SEALs' new Mark Five special operations craft, maintains he has done nothing wrong.
Pretrial documents insist that Daugherty went out of his way to avoid breaking regulations while making what he maintains were critical health care decisions during a time he was in pain and under medication.
His superiors maintain Daugherty used undue command influence for his own benefit, even though he was aware government travel for his children had been refused. It has always been allowed for his wife.
``Cmdr. Daugherty should reimburse the U.S. Government for the price of the commercial airline tickets for his two dependent children,'' wrote Capt. S.J. Holloway, chief of staff at the Little Creek-based Naval Special Warfare Group Two, following his preliminary inquiry into the case.
``(He) should be held accountable for his lack of judgment and violation of the Joint Ethics Regulation and U.S. Code.''
Daugherty also has been charged by his command in an unrelated, later incident, in which he allegedly filed fraudulent travel papers for a conference he failed to attend during a business trip to Madrid, Spain.
He maintains he went to Madrid, met with embassy officials concerning an upcoming operation and renewed his passport. But he ran out of time during the four-hour visit: By the time he made it to the conference, it was ending.
The charges were brought by his superiors, Holloway and Navy Capt. Pete Toennies, the commander of Naval Special Warfare Group Two.
Jacqueline, now 9, and Marie, now 11, were poor, sick and hungry when the Daughertys clawed through wall after wall of red tape to adopt them in the Philippines and bring them to Norfolk 10 years ago.
Today they are the center of a bureaucratic battle between the family and the Navy.
Daugherty's wife, Denise, desperate to save her husband's career and her family's reputation, has fought hard. She has written to congressmen, top Navy officers, friends and even adversaries at Special Warfare Group Two, and has documented in hundreds of pages of typed correspondence the complicated path her husband's career has taken in the past 15 months. Her latest effort was to write Hillary Rodham Clinton.
``I am writing to ask your help in stopping the United States Navy's continued abuse of my family in Spain,'' Denise Daugherty wrote on Monday.
``If you agree with me . . . then I urge you to bring this matter to the president's attention and he may act to right this terrible wrong.''
Daugherty's spine was injured April 29, 1995, on a commercial flight to Spain. A fellow passenger suffered a heart attack, and Daugherty, attempting to lift the man over a seat, ruptured two disks in his upper back.
The passenger died before the plane could land; Daugherty was left in severe pain and with numbness in his right hand. He began seeing physicians the following day.
Navy Capt. Nicholas Yamodis, a neurosurgeon, recommended that Daugherty undergo surgery at the naval hospital in San Diego. Such an operation was not possible in Rota because of a lack of equipment, nor at nearby Landstuhl, Germany, because of a lack of expertise, Yamodis said. Although the chances were small, the surgery could leave Daugherty a quadriplegic, the doctor said.
He knew and trusted the staff at San Diego and scheduled surgery there for June 21, 1995, also recommending that Daugherty travel by civilian aircraft to limit the joltings of take-offs and landings. A military medical flight would take three days and make many more stops.
In addition, the doctor recommended that Daugherty's wife, Denise - a registered nurse trained in caring for neurosurgical patients - travel with him as an attendant.
When the couple asked if their children also could accompany them, Yamodis replied that he could only authorize one non-medical attendant.
The Daughertys could not leave their children in Rota. There was no long-term care available, and they expected to be gone for three to six weeks. Nor could they leave them with a subordinate in the command - that would violate fraternization regulations.
Daugherty returned to his office to review the government's travel regulations and noted that ``attendants'' could accompany a service member seeking medical treatment. Daugherty assumed that the wording's use of the plural meant that more than one attendant could accompany him. He requested a copy of the Air Force regulation governing such flights, but never received it.
From that point, the situation quickly grew complicated. Holloway ``decided to intervene in my husband's medical treatment,'' Denise said in her letter to Hillary Clinton.
``He directed the surgical site, the surgeon and the mode of air transportation be changed within 24 hours of our departure due to year-end money shortfalls.''
His command ordered Daugherty to obtain a military flight. It ordered him to Portsmouth Naval Hospital, instead of San Diego, to save money and reduce take-offs and landings. The physician there suggested a different medical procedure.
``Capt. Holloway recommended that we solve our children's transportation problems by simply making them patients and putting them on the air evacuation flight with us,'' Denise Daugherty said. ``He told my husband if anyone asked what was wrong with them, to tell them it's personal and to have them call his diving medical officer.
``My husband told Capt. Holloway he felt his plan was unethical and illegal and that he would not follow his recommendation.''
Surgery was scheduled for Monday, June 19. On the Friday before, one of Daugherty's staff officers suggested the children fly on emergency leave orders. Travel officials said that was possible, but cautioned that it fell into a ``gray area,'' according to pretrial documents.
The staff officer said Daugherty's main concern was whether the proposal was legal. Toennies also said that Rota travel officials told him ``the only way children can travel is in emergency leave status. But they recommended against using it.''
Nevertheless, Daugherty - viewing his situation as a family emergency - authorized emergency leave travel orders for his children.
He telephoned Holloway June 16 to say he was leaving that day by commercial airline, there being no military medical flights available for several days. Holloway's staff made living arrangements for the family in Norfolk.
His command maintains that he should have referred the decision up the chain of command for approval. However, the command also acknowledged this is not addressed in any of the command's regulations.
A staff member in Daugherty's office, Petty Officer 1st Class Myra Clanton, a clerk who typed the orders, testified in a sworn statement that she felt Daugherty was working within the regulations. ``I don't believe that Cmdr. Daugherty, or anyone else, attempted to do anything that was in violation of the regulation,'' she said.
The surgery was performed June 20, a day earlier than originally scheduled in San Diego. Daugherty was discharged the next day and ordered on convalescent leave for 30 days, but told to remain in Norfolk for the first five days.
The family went to Missouri for 18 days, staying with relatives there, then returned to Rota.
``We paid all the expenses out of our own pocket during the convalescent period, including traveling from Norfolk to Joplin,'' said Denise Daugherty. ``The only expense the government paid was the children's round-trip air transportation from Spain to Norfolk as prescribed by law.''
Holloway, on Oct. 27, informed Daugherty of the allegations of illegal travel and of the second travel incident involving the trip to Madrid.
In that case, Daugherty is accused of stealing $363 in travel funds and defrauding the government.
Giroux, the Navy lawyer, wrote that he found it ``ironic that a naval special warfare commanding officer's voluntary act to help a stranger receive emergency medical care ultimately ended with a . . . group commander impeding the same commanding officer from receiving urgent medical care,'' wrote Giroux.
``I confess that I feel like I am about to witness a train wreck that I am powerless to prevent.''
Holloway and Toennies attempted to have Yamodis, now commanding officer of Rota Naval Hospital, charged as well. However, the Bureau of Medicine in Washington declined, saying its ``bottom line impression'' was that Special Warfare Group Two's action ``is not consistent with CNO's desire to take care of our people.''
Daugherty's attorney notes that both Holloway and his investigating lawyer took separate commercial flights to Madrid from Norfolk, even though scheduled military flights were operating on the same day.
Giroux also points out that Army Gen. George A. Joulwan, commander of the U.S. European Command, was investigated for six trips his wife made at government expense while he was assigned in Europe.
Joulwan was forced to reimburse the government $5,573. But in June, Defense Secretary William Perry rejected recommendations that Joulwan reimburse the government for trips he made to Garmisch, Germany for a vacation, and to Pennslyvania for his daughter's graduation.
Perry saw those travel issues as ``minor, minor mistakes,'' primarily because of ``confusion of regulations,'' the Pentagon said.
Daugherty's spinal condition worsened and by November his Portsmouth surgeon recommended a spinal fusion operation, as Yamodis had months before.
Daugherty had lost confidence in the Portsmouth physician and returned to Yamodis, who again scheduled surgery in San Diego.
Meanwhile, Daugherty was to have returned to Norfolk about that time to face an Article 15 hearing, or Captain's Mast, concerning the allegations against him.
Once notified that a second operation had been ordered, Daugherty's command again stepped in and ordered that he return to Portsmouth for the procedure, not San Diego.
A compromise was reached: Daugherty's operation was to be held at Bethesda Naval Medical Center near Washington.
``After two weeks Capt. Toennies finally conceded that my husband could change surgeons and we could travel to Bethesda instead of Portsmouth for surgery,'' Denise Daugherty said.
``He also relented and provided me orders so that I could accompany my husband as an attendant.''
The surgery was scheduled for Dec. 27, but when Toennies failed to authorize the travel, the surgery had to be canceled.
Daugherty at that time filed an Article 138 complaint against Toennies for ``meddling with his medical treatment.''
The surgery was rescheduled and the family was to have left for Washington on Jan. 3.
``At 11:30 p.m. on the evening of Jan. 2, Capt. Toennies sent a FAX to our home which rescinded my travel orders,'' said Denise Daugherty. ``The orders directed my husband to proceed to Bethesda without me or the children the next morning.
``At this point I was extremely angry. I knew Adm. (Mike) Boorda had a reputation for being a family advocate and I decided to call him.''
Although Boorda, former chief of naval operations, had already left his office, staff members who took Denise Daugherty's call, intervened and secured funding for all the family members to fly to Bethesda the next morning.
Daugherty was on the operating table for nine hours, while doctors repaired damage from his herniated disks. Titanium plates were inserted in his upper spine and bone grafts were used from his hips. Although his neck motion is now restricted, Daugherty no longer faces the possibility of paralysis from the injury.
He submitted a letter for retirement in mid-December. However, it is being held up pending the outcome of his court-martial.'
Cmdr. Jim Fallin, a spokesman for the Naval Special Warfare Command at Coronado Naval Amphibious Base, Calif., said he wasn't allowed to discuss the court-martial at length.
``I think what we need to do is allow the court-martial to take place,'' he said. ``This is an honest attempt to look all the various facets here to see that the common standards of conduct that all of us must adhere to were adhered to.''
The court martial is expected to last two days, with Holloway as the main government witness. ILLUSTRATION: FILE PHOTO
Cmdr. Marshall Daugherty had been the commanding officer of Rota's
elite Naval Special Warfare Unit 10.
Color photo
Marshall Daugherty's troubles began when he sought to bring his
wife, Denise, and daughters, Marie, 11, and Jacqueline, 9, with him
from Rota, Spain, for back surgery in the United States.
KEYWORDS: COURT MARTIAL NAVY SEAL MEDICAL TREATMENT by CNB