Staff Sgt. Logan Melgar of the 3rd Special Forces Group was killed in Mali, a country in West Africa.

NORFOLK, Va. — Military prosecutors in Virginia said last week that they want to add allegations of sexual misconduct to their murder case against a U.S. Marine and a Navy SEAL who are among those blamed for the 2017 hazing death of a U.S. Green Beret in Africa.

Navy prosecutor Benjamin Garcia made the request at a preliminary hearing Aug. 5 at a military court in Norfolk.

The lieutenant commander said that Marine Mario Madera-Rodriguez and SEAL Tony DeDolph were among four servicemen who planned to make “sexual contact” against Army Staff Sgt. Logan Melgar as he was hazed on video in his bedroom. Melgar was a member of the 3rd Special Forces Group based at Fort Bragg.

The overall effort to embarrass Melgar ultimately led to his death, according to charging documents. Melgar was bound with duct tape and placed in choke holds to temporarily knock him unconscious before he stopped breathing, the charging documents said.

The sexual misconduct allegation added a new wrinkle to a case that has pulled back the curtain on misconduct among some of America’s most elite service members.

It also follows a letter that was recently written by the top Navy SEAL to commanders that said some in the ranks “have failed to maintain good order and discipline” and that the problem “must be addressed immediately,” according to news outlets.

The July 25 letter didn’t offer specifics. But it comes after a string of high profile incidents involving Navy SEALs.

Among them is Melgar’s 2017 death in Africa, where U.S. Special Forces have supported and trained local troops in their fight against extremists.

Military prosecutors have charged four men — two SEALs and two Marines — in Melgar’s death in Bamako, Mali.

SEAL Adam Matthews and Marine Kevin Maxwell Jr. pleaded guilty to lesser charges and were sentenced to military prison.

DeDolph, 40, and Madera-Rodriguez, 34, still face charges of murder and the possibility of a life sentence if found guilty.

Capt. Warren Record, the preliminary hearing officer for the Aug. 5 proceedings, will make a recommendation in coming days over whether the case should proceed to a court-martial hearing.

An admiral will receive the recommendation and then decide where the case goes. Record said he will not recommend to the admiral that the sexual charges be added to the case, citing insufficient evidence.

The Aug. 5 hearing offered yet another detailed recitation of Melgar’s death.

Matthews and Maxwell, who are serving time in military prisons, testified via telephone that Melgar’s death was the result of a botched attempt to haze him over perceived slights against other service members.

Maxwell said the plot to haze Melgar started as a hypothetical joke that was cooked up as Marines and SEALs socialized at a bar and then at a dance club.

“It would be hilarious and embarrassing,” Maxwell said of their mindset before the incident.

He said the plan was to choke the blood flow to Melgar’s brain so that he would fall into unconsciousness, pull his pants down and videotape the incident, Maxwell said. They would then show it to him later.

Matthews said they had brought along a Malian guard who had removed his shirt and wore a leash as part of the prank.

But within minutes, the men said, Melgar was no longer breathing.

Petty Officer 3rd Class Daniel van Dijk, an information systems technician assigned to the mine countermeasures ship, faces “multiple drug charges” for allegedly possessing more than 380 grams of ecstasy and 93 tablets of LSD.

ALEX DIAZ/U.S. NAVY

By STARS AND STRIPESPublished: August 12, 2019

A USS Champion sailor from New Jersey has been accused of ordering hundreds of grams of MDMA — also known as ecstasy — and LSD intending to distribute them in San Diego late last year, a newspaper report said.

Petty Officer 3rd Class Daniel van Dijk, an information systems technician assigned to the mine countermeasures ship, faces “multiple drug charges” for allegedly possessing more than 380 grams of ecstasy and 93 tablets of LSD between Nov. 22 and Dec. 3, the Navy Times reported July 26.

Prosecutors in charge sheets accused Van Dijk of ordering about half of the ecstasy from Queens, N.Y., to be delivered to his personal mailbox at Naval Base San Diego, the report said.

He further brought about 58 grams of ecstasy onto the base to distribute and is accused of having possessed the LSD and the rest of the ecstasy off base in San Diego, according to the newspaper.

Van Dijk is also accused of trying to “wrongfully distribute some amount” of ecstasy in a drug deal Oct. 26 at or near San Diego, the report said. His court-martial trial is scheduled for Oct. 21.

Navy Region Southwest did not respond to Stars and Stripes’ requests for comment or court records.

The allegations against Van Dijk’s came just months after 15 sailors from the USS Ronald Reagan were implicated in a drug operation run from the Japan-based aircraft carrier between January 2017 and February 2018. Five sailors went to court-martial and 10 others received nonjudicial punishment in that case, which involved the purchase, sale and use of LSD and ecstasy.

A new legal opinion from the NavyMarine Corps Court of Criminal Appeals says court-martialing military retirees is unconstitutional — and the reason concerns the issue of retirement pay.

Chief Judge Navy Capt. James Crisfield delivered the opinion last week, joined by Senior Judges Navy Capt. Marcus Fulton and Marine Col. Jonathan Hitesman. The decision was made as a result of an appeal from retired Chief Petty Officer Stephen Begani, who was court-martialed after leaving the Navy on charges of attempted sexual abuse of a child.

Begani was picked up by Naval Criminal Investigative Service agents on Aug. 5, 2017, a little over a month after he left active duty and was transferred to the Fleet Reserve. He was arrested when he arrived at a residence at Marine Corps Air Station Iwakuni, Japan, where he was employed as a contractor. Begani had been communicating with someone who he believed to be a 15-year-old girl, but who was actually an undercover NCIS agent.

He was sentenced to 18 months confinement and a bad-conduct discharge.

Begani was court-martialed because of a federal law that leaves some troops subject to the Uniform Code of Military Justice long after they hang up the uniform. Marines and sailors who leave active duty after more than 20 years in uniform but less than 30 and who want to collect retiree pay move into the Fleet Reserve or Fleet Marine Corps Reserve.

There they receive what is essentially retainer pay and can be summoned back to active duty without their consent in the event of war or a national emergency. After 30 years of active or inactive service, retirees are then transferred to the Regular Retired List and they’re no longer subject to the UCMJ.

None of this is true for retired reservists, though, which is why Crisfield argued in his written opinion that treating one group of retirees different than another is unconstitutional.

“Congress has determined that some, but not all, military retirees should remain subject to the Uniform Code of Military Justice (UCMJ) while they are retired,” Crisfield wrote. “… Accordingly, the sections of the UCMJ subjecting regular component retirees to UCMJ jurisdiction are unconstitutional.”

Zachary Spilman, a lawyer who specializes in military justice and the lead contributor to the military justice blog CAAFlog, where he first wrote about the decision, called the opinion “a bombshell.”

“This is a huge deal,” he said. “A court-martial for a retiree is very rare, but the threat of a court-martial is very real.”

As Spilman noted in his Tuesday blog post on the decision, Begani did not challenge jurisdiction at trial, but he did challenge it on appeal. Begani argued that being subjected to the UCMJ as a retired regular component member while retired Navy Reserve members are not “violated the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws.”

Navy Lt. Daniel Rosinski, who represented Begani, argued that there’s no difference between a reservist retiree or one who left active duty. They’re all out of uniform, none are subject to military duties on a day-to-day basis, and they can all be recalled to active duty, Rosinski said in his oral arguments. But a reserve retiree in Begani’s case would have been tried as a civilian.

Since they’re “similarly situated,” Rosinski argued that active and Reserve military retirees should be treated no differently when it comes to UCMJ jurisdiction.

“There are good reasons to subject full-time active-duty personnel to military jurisdiction,” Rosinski said. “They’re performing military duties on a day-to-day basis and there’s a compelling governmental interest in regulating their conduct.

“But there’s not good reason to distinguish among those non-active-duty personnel — active-duty retirees, retired reservists and selective reservists — for purposes of court-martial jurisdiction,” he added.

Spilman said that’s where the judges’ opinion — which essentially agrees with Rosinski’s point — is flawed. The judges’ opinion acknowledges that the retainer pay regular retirees like Begani receive come with the obligation that they’ll “maintain readiness for active service in event of war or national emergency.”

“That’s hardly an insignificant obligation; maintaining readiness for active service— while not a particular specific demand — undoubtedly requires a person to remain ordered and disciplined, the maintenance of which is the very reason for a military justice system,” Spilman wrote on Tuesday. “Furthermore, the federal courts have recognized that the Fleet Reserve was established for that specific purpose.”

In a Thursday follow-up post, Spilman again reiterated that those like Begani who are in the Fleet Reserve or the Fleet Marine Corps Reserve receive retainer pay, which is different than retired pay, and that a member “must actually be in that status to get the money.”

Spilman told Military.com on Thursday he believes there’s “zero chance” the government will not ask the Navy-Marine Corps Court of Criminal Appeals to reconsider its decision.

The U.S. Supreme Court earlier this year upheld the Defense Department’s authority to prosecute military retirees for crimes they commit when it opted not to hear the case of retired Marine Staff Sgt. Steven Larrabee, who was convicted of sexually assaulting a bartender.

The Navy-Marine Corps Court of Criminal Appeals opinion could now affect other cases, Spilman said. That includes Larrabee’s, who has taken his case to the U.S. District Court in Washington, D.C.

Stephen Vladeck, a professor at the University of Texas School of Law who represents Larrabee, has argued, like Rosinski that military retirees should not be subject to the UCMJ. He told Military.com in February when the Supreme Court declined to hear Larrabee’s case that the idea that retirees could be pulled back into active duty was outdated.

“Increasingly, the function has been performed by reserves, not retirees,” Vladeck said at the time.

Not everyone agreed, though. Retired Air Force Maj. Gen. Charles Dunlap, a professor at Duke University’s law school, wrote in February that it’s up to retirees who don’t want to keep a relationship with the military to terminate their commission or request a discharge.

“As a retired service member subject to military jurisdiction, count me among those of my comrades-in-arms who believe it a small price to pay to maintain the connection with the armed forces,” Dunlap wrote.

available witnesses

The admiral who oversaw the failed war crimes case against Navy SEAL Eddie Gallagher was investigated for accepting gifts during what became known as the Navy’s “Fat Leonard” scandal.

A female officer on board the USS Salvor, a salvage ship, accepted freebies, including a hotel room stay, dinner, drinks, a golf outing, and entertainment, from a military contractor while in Kota Kinablu, Malaysia, in August 1998, according to Navy documents reviewed by the San Diego Union-Tribune.

While Rear Adm. Bette Bolivar’s name was redacted from the documents, the deep sea diver was the commanding officer of the Salvor at the time. Safeguard-class ships such as the Salvor are usually only assigned six officers, and Bolivar’s biography matches that of the female officer described in the documents.

A Navy spokesman contacted by the Washington Examiner would not confirm or deny that Bolivar was the officer referenced in the report.

Hundreds of Navy personnel were alleged to have taken gifts from Leonard Glenn “Fat Leonard” Francis, the head of military contractor Glenn Defense Marine Asia. The company was the Navy’s primary servicer in the region for more than 10 years, providing sewage removal, fuel, food, and other services for ships in the Pacific.

Adm. Philip Davidson said in a memo that the unidentified officer matching Bolivar’s description should remain in command and “continued to be a significant contributor and valued leader in the Navy.” He wrote that he had dealt with the matter through “administrative action.”

Adm. John Richardson, chief of naval operations, took over from Bolivar as the convening authority in the Gallagher case Saturday.

Two days earlier, he had removed her authority over the case of Lt. Jacob Portier and dismissed the charges against him. Portier was Gallagher’s superior officer and had been accused of helping him cover up his alleged crimes.

Richardson also on Thursday ordered an investigation into the Navy’s Judge Advocate General corps. President Trump last week ordered Navy officials to rescind Navy Achievement Medals given to the prosecutors who failed to secure a conviction in the Gallagher case.

Gallagher’s court-martial for various war crimes, including murdering an injured teenage ISIS fighter while deployed to Iraq in 2017, ended earlier this year with a jury finding him not guilty of all charges except unlawfully taking a picture with the corpse of the fighter. The sentence included a reduction in rank from chief petty officer to petty officer first class, though Navy rules would ultimately take him down to E-1 should Richardson confirm the verdict.

Gallagher’s defense team wants the reduction in rank reversed so he can retire with full benefits. Lead defense attorney Tim Parlatore told the Washington Examiner he feels confident about his client’s chances now that Richardson has taken authority, though he admitted anything is possible.

“Nobody’s ever heard of the CNO taking over a case,” Parlatore said.

 

An Air Force Academy cadet who kissed and groped an intoxicated, apparently sleeping female cadet without consent pleaded guilty Tuesday to one count of simple assault and two counts of assault consummated by a battery.

Andrew S. Hong, who was entering his third year at the academy, was sentenced to eight months behind bars.

He also will forfeit pay and allowances and will be reprimanded and will be dismissed from the Air Force.

Hong pleaded guilty as part of a pre-trial agreement, and the other charges against him — one count of attempted abusive sexual contact and two counts of abusive sexual contact — were dismissed.

The assault occurred April 28, 2018, when Hong and a group of friends from the academy’s Korean American community held a party at a house in Fort Collins, he testified. They were drinking, and the female cadet, whose name The Gazette is withholding, went to sleep after she became sick.

Drunken-driving charge leads to removal of Air Force Academy colonel

Hong said he later went to where she was sleeping and began to grope her, ultimately reaching to touch her genitalia before she stirred and pushed him away. He then spit alcohol into her mouth, causing her to cough violently.

The crimes to which Hong pleaded guilty are violations of Article 128 of the Uniform Code of Military Justice, which deals with assault.

“Cadet Hong will now have a federal conviction on his record,” the academy said in a news release.

Before Hong was sentenced, the victim read a statement, saying that he “completely betrayed my trust as one of my closest friends at USAFA.”

She said she hoped Hong’s court-martial would help her deal with what had happened.

“His crimes have taken a negative toll on all aspects of my life and left me to further deal with self-hate and confusion,” she said. “After losing my friends, I felt alone and devastated and withdrew from everyone and everything around me.

“Mentally and emotionally drained, the semester after the event has been my worst semester at USAFA with academics and military aspects suffering, not being on any honors list for the first time. I am still in disbelief that this has happened to me and feel displaced in the Cadet Wing and with the Korean American community within.”

Hong’s mother also addressed the court, pleading with Judge Matthew Talcott to have mercy on her son.

“After this incident, I’ve had a lot of time to talk to my son, so I know that he’s very, very remorseful,” she said through a translator.

“I beg for your leniency and forgiveness so that he can recover from his mistake and become a positive person in the future and contribute to society.”

Hong also asked the judge to limit his confinement and apologized to the woman, who was sitting in the courtroom.

“I know that I hurt you. I know that I made poor decisions. I will regret those decisions for the rest of my life.”