DATE: Sunday, April 6, 1997                 TAG: 9704070323

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY JACK DORSEY, STAFF WRITER 

                                            LENGTH:  115 lines

SAILOR VS. NAVY: A FIGHT FOR JUSTICE CONTINUES AFTER COURT-MARTIAL CLEARS HIM, NAVY CAREER REMAINS IN JEOPARDY.

Ask Navy lawyer James Walsh if his client - Petty Officer 1st Class Thomas F. Bennett - is worth fighting for, and the lieutenant falls silent, as if the question is another in a chain of indignities.

``He has almost 18 years in service,'' Walsh said by telephone from his office at the Sigonella Naval Air Station in Sicily. ``He's never been in trouble. Has never had any problems. No counseling.

``He served in a combat zone. Sixty to 70 percent of our troops can't even say that. He's getting screwed.

``Is he worth going to bat for? Yeah.''

His client is a 36-year-old operations specialist assigned to the Tactical Support Center in Sigonella, and the Navy believes he was drunk when he was involved in a traffic accident last Aug. 22 on a narrow two-lane road outside his Sicilian base.

Bennett acknowledges he drank that night at a party celebrating his return from Bosnia - but he says it was his wife, not he, who was driving when another car approached with its high beams on. ``She couldn't see, slammed the brakes and hit a guard rail,'' he said.

When military security personnel arrived at the scene of the one- car accident 25 minutes later, they offered to give the Bennetts a ride home and to have their car towed. Instead, said Bennett, they drove them to the base security office for a sobriety test.

The test began Bennett's journey through military justice - a trip that has seen the charges against him dropped in court-martial and pressed anew in an administrative hearing, and that now could end up in his dismissal from the service.

Sigonella, like U.S. military bases the world over, takes drinking and driving seriously. It is not tolerated. It almost always results in disciplinary action.

When Bennett's blood alcohol level was tested by the security personnel that night, they found it registered 0.194 - nearly double the 0.10 level the Navy regards as legally impaired. He was told he'd face a captain's mast, a form of nonjudicial punishment, for the infraction.

But Bennett balked: He wasn't driving, he insisted. He'd go to a court-martial before he'd accept such punishment.

His superiors obliged, taking him to trial last December. There the judge learned Bennett's sobriety test was administered illegally, and that base police had destroyed a 30-minute video taken of the couple in which Bennett's wife allegedly told officers she was driving. In addition, Bennett insisted his rights had not been explained to him.

The judge threw out the evidence and the case collapsed - developments that, in the civilian world, might have ended the episode. Not here, however: No longer facing criminal charges, Bennett learned he would instead face an administrative separation hearing for ``commission of a serious offense'' related to the dropped DUI charge.

``The prosecutor in the original case conceded I was not the driver of the car,'' a frustrated Bennett said. ``The Staff Judge Advocate conceded to my lawyer . . . I was not the driver of the car up to the point of impact.''

Bennett's fate passed into the hands of a board of officers and enlisted sailors who will determine whether he was guilty of misconduct. If they decide he is, they must next decide whether Bennett can stay in the Navy.

The stakes are high: If he is mustered out, he'll lose all benefits.

And in reaching its decision, the board will be able to use all the evidence the court could not - including the illegally obtained sobriety test.

Capt. W.J. Tyson III, commanding officer of Sigonella Naval Air Station, ordered the hearing, which is scheduled for April 14. The board's use of evidence deemed inadmissible in the criminal case is allowed and ``does not violate U.S. Navy policy, fundamental notions of fairness, or Constitutional safeguards,'' wrote a lawyer who works for Tyson.

``The due process protections against self-incrimination and the rights to be represented by qualified counsel to present evidence, to cross examine witnesses and to present their own witnesses, are provided in an administrative board,'' the Navy said.

But Walsh has protested in papers filed with the Commander Fleet Air Mediterranean that the upcoming hearing violates the ``fundamental notions of fairness.''

By permitting the administrative hearing, the Navy is ``essentially regarding the Constitution and our military principles with contempt,'' the lawyer wrote.

Bennett's driver's license has been held by the base ever since the accident. His lawyer ``has been berated and admonished for his zealous representation'' of him.

``I was formally counseled (told) to inform my chain of command of the substance of my communications with my lawyer,'' Bennett said.

The message, he believes, is clear: His command ``intends to make an example of me, to show what happens if you refuse captain's mast and are not convicted at court-martial.''

The command claims the upcoming hearing is not a punitive measure, Bennett counters that it clearly is.

``Separation from naval service, potentially under other than honorable conditions, is a punitive measure,'' he wrote in an effort to get the matter dropped.

Even if the board recommends that he stay in the service, the commanding officer has the option to administratively discharge him, Bennett said. ``I have been told a recommendation to be retained is the equivalent to a recommendation for an honorable discharge,'' he said.

Walsh, meanwhile, has told the Sigonella command that it does not have the authority to administratively process Bennett, arguing that only the sailor's ``parent command'' - the Navy's Tactical Support Center in Naples, Italy - has such authority.

Though his Sigonella bosses have given him low marks on his fitness report, the officer in charge of the Naples command ``has voiced no desire to separate . . . Bennett from the naval service,'' Walsh wrote to Tyson.

``Moreover, even in light of the trepidation encountered . . . Bennett was identified as promotable and recommended for advancement in his most recent enlisted performance evaluation.''

Whether that will count for much remains to be seen. While he awaits the hearing, Bennett spends his days on temporary duty in Sigonella's legal office, preparing tax returns for fellow sailors.

His boss there, the staff judge advocate at the base, is the officer who served as prosecutor at Bennett's court-martial.

He also will officiate at Bennett's administrative hearing.

KEYWORDS: U.S. NAVY COURT-MARTIAL DRUNKEN DRIVING

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