A Navy petty officer facing discharge for falling asleep in bed with another male sailor last month says his ouster is motivated by homophobia, not a legitimate crime, a claim that has some gay rights advocates worried about life after "don't ask don't tell."
Stephen Jones, 21, a student at the Naval Nuclear Power Training Command in Charleston, S.C., says he and friend Brian McGee inadvertently fell asleep together while watching the "Vampire Diaries" on a computer in his quarters Feb. 6.
Jones was wearing pajama pants and a white t-shirt, laying on top of the covers; McGee was in boxer shorts under the blanket on Jones' twin bed, according to both men's account of the situation.
When Jones' roommate, Tyler Berube, walked in shortly after midnight, the sleepy sailors woke up, got dressed and went back to their rooms.
Several days later, however, Jones and McGee were cited with dereliction of duty for "willfully failing to exhibit professional conduct in his room," according to the Navy report specifying the charges.
McGee accepted the charge and received docked pay. But when Jones refused to accept a penalty, instead hoping for a court martial to prove his innocence, he was ordered separated from the Navy for good.
While there was no evidence of homosexual conduct presented in the statements given by the three men to military investigators, Jones and his civilian attorney Gary Meyers believe homophobic suspicions were motivation for the charge.
"The roommate is concerned about what he sees, even though he sees nothing," Meyers said. "And his statement doesn't indicate he saw anything. Two men woke up and they left the room. It's a bizarre overreaction."
Meyers contends that because the command had too little evidence to start an investigation under "don't ask, don't tell," which is still technically military policy, it used a subterfuge to achieve the same result.
"I asked several times about what was unprofessional about what I did, and every time they said it's just unprofessional. Period," said Jones, who is appealing the decision.
"Guys are always playing video games, watching movies, in other people's quarters," Jones said. "Brian and I hung out on a regular basis. Curfew was 2 a.m. We woke up between 12 and 12:30, and were back in our rooms before 1. I have never been in trouble ever in all of my life."
A copy of the Navy's investigative report confirms that Berube discovered the two men asleep in bed, well before the 2 a.m. curfew Feb. 6, but does not detail how Jones or McGee may have exhibited unprofessional behavior.
A spokesman for the Naval Nuclear Training Command did not respond to ABC News' requests for comment but told the Washington Post, which first reported on the case, that "the determination was that two sailors sharing the same rack was unprofessional."
Attorney Meyers said, "If this is a problem, every kid who was ever in a fraternity or sorority or in a dorm room, wearing boxers and sitting on the bed, is going to have to look at their conduct again."
Calls to Capt. Thomas Bailey, the commanding officer, were not returned.
Case Highlights Potential for Discrimination
Gay rights advocates say it's premature to know whether the case is an isolated incident involving potential homophobic bias or illustrative of a broader trend.
But some of them are concerned about what could be coming as the military moves ahead with implementing a repeal of "don't ask, don't tell."
"The Navy has already found a way to kick out suspected gays, even without using the DADT policy," John Aravosis wrote of the case on AmericaBlog.
"And the sailors in question have no choice but to hire civilian lawyers to defend them because sexual orientation isn't included in the Pentagon's non-discrimination policies, and won't be even if DADT is fully repealed this year."
Aravosis wants President Obama to sign an executive order adding the military to the existing federal policy that bans discrimination based on sexual orientation.
"We have to be on guard that some commanders don't come up with creative ways to go against the repeal," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. "No commander should look for a phony charge against a gay or suspected gay sailor in a post-repeal world. The issue that should always be on the table is conduct, not sexual orientation."
As for Jones, who declined to comment on whether he is gay, the case clearly demonstrates an abuse of power, regardless of his perceived sexual orientation.
"Anybody could be separated on these terms," he said. "It's very vague. I have done nothing wrong."