Whistleblower or Adulteress?

Navy officer convicted of adultery gets chance to clear her name

Lt. Cmdr. Syneeda Penland was convicted of adultery and conduct unbecoming, and was forced out of the Navy months shy of her retirement. But Penland swears she was victimized by her command for reporting waste and fraud.

Now, Penland will have a second chance to prove whether she was the victim of whistleblower retaliation by leaders at Navy Expeditionary Combat Command in the 6-year-old case.

A federal judge on April 20 ruled that the Board for Correction of Naval Records (BCNR) must take a second look at Penland’s case to determine whether her substantiated claims of waste, fraud and abuse against her command confer whistleblower status, as she claims — and if they do, whether the Navy should compensate her for forcing her out months before her 20-year retirement mark because of a felony conviction.

“From the day that I blew the whistle, which was April 4, 2007, everything that happened from that point forward — they have to consider, what did [the command]  do?” Penland told Navy Times in a phone interview Friday.

BCNR has the power to expunge the results of her Board of Inquiry, which was the basis of her 2009 discharge, and may allow her to regain the benefits she would have received if she had been allowed to retire.

The BCNR cannot unilaterally overturn her conviction, the federal judge in the case noted, and Penland did not ask for that in her filing. She chose to focus on the BOI decision to streamline her case, she told Navy Times last year, because the process is more straightforward than overturning a criminal conviction.

A Navy spokeswoman declined to comment on the April 20 ruling that sends the whistleblower review back to BCNR.

“The Board of Correction of Naval Records will reconsider their prior decision in accordance with the federal court’s order,” Lt. Jackie Pau, a Navy spokeswoman, told Navy Times.

Penland, a former supply officer who had earned her commission after several years as an enlisted cryptologic technician, began asking questions about Naval Coast Warfare Group 1’s procurement practices almost as soon as she took the comptroller job in 2006.

Her superiors didn’t appreciate her informal investigation of some of their contracts and transactions, she said, so when a former colleague’s estranged wife contacted the command with allegations of an affair, they had what they needed against her.

The investigation into her relationship with then-Lt. j.g. Mark Wiggan began in April 2007, based on sexual photos of her with a man. She claims those photos are of an ex-boyfriend, not her friend and coworker.

At that point, Penland decided to formally file her concerns about NWSG-1 with the (IG) inspector general.

Three of her allegations were later substantiated by the IG, which Penland hopes is enough to grant her whistleblower status, and solidify the definition for others who have gone through similar retaliation.

“Her ruling opened up the doorway for me, as far as where I want to go, making sure that our veterans are protected,” she said.

Penland was convicted in 2008 of adultery, making false official statements and conduct unbecoming an officer, for which she spent two months in a San Diego brig. Since this was a court-martial, she is a convicted felon — which legal experts say is very unusual for adultery cases.

She first filed a BCNR case to have her BOI overturned in 2009, which moved to dismiss her from the Navy for misconduct and poor performance. It was denied.

After exhausting Navy channels, she filed a claim in federal District of Columbia court against Navy Secretary Ray Mabus to overturn the BCNR’s decision, choosing to represent herself.

“The BCNR denied clemency, in part, because Ms. Penland was not a whistleblower under the Military Whistleblower Protection Act,” Judge Rosemary Collyer wrote in her decision. “In this respect, the BCNR erred. The case will be remanded for reconsideration of whether Ms. Penland’s eligibility as a whistleblower and claims of retaliation entitle her to clemency.”

Penland kept meticulous records of her case, including every filing and bit of communication from her criminal investigation, as well as her fraud and retaliation complaints.

“What was key, I believe, is when I gave [Collyer]  the outline of these dates, I gave her also when I was in contact with the Department of Justice,” she said.

Now it’s a waiting game, she said. Penland’s case would technically grant her back-pay for the five months she had left until retirement eligibility, in addition to the past six years of retirement pay, but it’s more of a means to the end of clearing her name.

“I never thought of myself as a convicted felon,” she said.

(LCDR Syneeda Penland meets CNO ADM Mike Mullen at 2007 NNOA Banquet in San Diego, CA.)

LCDR Syneeda Penland, a Black female Navy supply officer, formerly with a West Coast-based coastal warfare unit is scheduled to be court-martialed on 21 May in San Diego on charges that she had an affair with a married junior officer and lied about it later.

LCDR Penland, who is Black, says her prosecution is merely retaliation by her command after she made complaints about financial misconduct by military officials and civilian contractors within Navy Expeditionary Combat Command.

LCDR Penland, 36, is charged with adultery, indecent acts, conduct unbecoming an officer and making a false official statement. She could face as many as 16 years in prison and be dismissed from the Navy if convicted on all counts.

Her defense lawyer, Marine Capt. Patrick Callahan, said it is unusual for an adultery case to be taken to a general court-martial, where any finding of guilt, even on a lesser charge, would be a felony conviction that would follow Penland for life. It’s also unusual, he said, that the adultery charge is not accompanied by more serious charges, and because of his client’s rank and nearness to retirement.

LCDR Penland has 19 years of military service. She is the National Outreach Chairman of the San diego chapter of the National Naval Officers’ Association.

LCDR Penland is single. The man with whom she is alleged to have had an affair is a married lieutenant junior grade, and is a prosecution witness. LCDR Penland has denied having a sexual relationship with the man.

Wayne Johnson, a retired Navy lawyer, said that since LCDR Penland refused non-judicial punishment, NJP, her superiors had a great deal of discretion as to how they would deal with her, but he also said the general court-martial in an adultery case was unusual but not unheard of.

Johnson said adultery cases frequently are based on witness testimony — usually that of the second person in the relationship, who is often granted immunity in exchange for his or her testimony.

Johnson said that if a sexual relationship were proven, prosecutors would also have to prove that it was prejudicial to good order and discipline in order to win an adultery conviction. Since LCDR Penland and the man were both officers, were not members of the same command, and are not alleged to have carried on the affair in public, that might be difficult to prove, he said.

LCDR Kevin Messer is lead prosecutor in the case. LCDR Messer denied that LCDR Penland’s prosecution had anything to do with command retaliation and said the general court-martial fit the crime. He called allegations of financial problems a “smokescreen and a subterfuge” but did not dispute any of the allegations when talking to Navy Times.

“This case wasn’t about adultery,” LCDR Messer said. “It was about a lieutenant commander who abused her rank to intimidate and coerce an enlisted sailor for the purpose of causing her to divorce her husband. It was about sex, lies and manipulation.”

Neither Callahan nor Penland’s civilian lawyer, Clifton Blevins, returned calls for comment about Messer’s accusations.

LCDR Penland, a supply officer who was commissioned through OCS in 1997 after serving seven years as an enlisted sailor, said she was warned several times by superiors to stop questioning financial practices within San Diego-based Naval Coastal Warfare Group 1 in the months after she arrived at the command in 2006.

She said her command failed to win approval from Naval Installations Command and Naval Facilities Command before completing multimillion dollar construction and renovation projects at the Navy Outlying Landing Field in San Diego; hired contractors in government positions without first advertising those positions to the public; and allowing civilian contractors to supervise military personnel and approve government contracts.

Steve McDonald, director of Business Development for the contractor, Logistics Support Inc., declined to comment on Penland’s allegations. A Navy spokeswoman at the Pentagon was also unable to provide responses to the allegations.

In a separate command investigation completed by NECC officials regarding allegations of racial and gender discrimination — LCDR Penland is Black — by her command, a Navy captain suggested that LCDR Penland raised the allegations only after learning that she was facing adultery charges.

LCDR Penland turned down mast on March 26, and was referred to court-martial on June 5.

She filed a complaint with Rep. Bob Filner, D-Calif., on Feb. 21, a complaint with the NECC inspector general March 30, and a second complaint with the Defense Department inspector general April 10. Her first complaint to Filner occurred more than one month before she went to NJP.

NECC has not responded to requests under the Freedom of Information Act for investigation findings. LCDR Penland produced documents to prove that she requested the investigation. A spokesman for the DoD inspector general’s office said he was unable to provide results because its investigation of LCDR Penland’s allegations is still underway.

Callahan said the fact that the NECC investigation was not yet completed more than a year after it was filed was unusual because IG investigations involving complaints of command reprisal are normally completed within six months.

Callahan said he asked that the trial be postponed until the IG investigations are concluded, but trial judge Cmdr. Robert Redcliff denied that request.

LCDR Syneeda Penland was found guilty and sentenced to 60 days in jail on 24 May. She was also fined two months pay after the military jury found that she had been involved in a sexual relationship with a married lieutenant junior grade and lied about it to her superiors.

After deliberating for approximately two hours, five captains and three commanders found LCDR Penland guilty of adultery, conduct unbecoming an officer, making a false official statement and failing to obey a lawful order.

The Black female officer was taken to the brig immediately after her sentence was announced.

It was very surprising to see an officer given jail time for purely military offenses,” her defense lawyer, Marine Capt. Patrick Callahan, said, adding that it was also unusual to see the case taken to a general court-martial, where a conviction is equivalent to a felony conviction in civilian courts. “These are things where if she was working at the local Sears, she would have been called into the office and yelled at, and at worse, fired.”

LCDR Penland said earlier that she believed her court-martial was part of a command reprisal for her questioning what she said was financial misconduct within the Navy Expeditionary Combat Command. That misconduct, she said, included improper funding of a multimillion dollar building construction project at the Navy’s Outlying Landing Field in San Diego, NECC commanders allowing civilian contractors to supervise military personnel and make procurement decisions, and illegal hiring practices within the command.

An investigation into Penland’s allegations by the Defense Department Inspector General has not been completed. The NECC IG has not responded to queries concerning the status of its investigation into similar allegations raised by LCDR Penland in a complaint more than a year ago. On June 15, 2008 that IG investigation has not been completed.

During the two-day court-martial, LCDR Penland, who is single and has nearly 19 years of service, and the lieutenant junior grade both denied having a sexual relationship. The prosecution presented no witnesses to the affair.

Callahan said the prosecution’s only evidence of an affair were close-up pictures of sexual activity between two people whose faces were not visible, and several e-mails purportedly between the husband and wife that the husband denied writing.

The husband, Lt. j.g. Mark Wiggan, testified that the photos were of sexual activity between him and his ex-wife. He said that she gave the photos and e-mails to Navy prosecutors while the couple was going through divorce proceedings in civilian court.

Callahan said there was no proof that the e-mails had been sent by Wiggan and said they could have been sent by anyone with access to his e-mail account.

Callahan said the case was unusual because LCDR Penland was court-martialed while Wiggan was given a good fitness report and a Navy commendation after he allegedly confessed to his superiors. He also said there have been recent cases where married officers in more compromising situations have not been court-martialed and been allowed to retire.

Callahan said most officers convicted by court-martial are ordered to show cause why they should be retained in the service after the conviction. Those who cannot do so are processed for administrative separation, which would force Penland to lose all retirement benefits.

Justice is supposed to be fair and equal, and this is far from that,” he said.

Callahan said Penland would appeal the verdicts.

 

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