The Navy is inventing grounds to fire a sailor found in a bed with another male sailor at the Naval Nuclear Power Training Command in South Carolina, the sailor's attorney said.
Navy Petty Officer Stephen C. Jones is contesting his discharge for dereliction of duty because of unprofessional conduct.
His lawyer, Gary Myers, said this week the Navy believes Jones is homosexual but has no proof and so charged him with something else.
But he says publicity from the case, first reported in The Washington Post, could discourage the military from using excuses to oust gay members when the 'don't ask, don't tell' policy against them serving openly is repealed.
According to Navy documents provided by Myers, Jones, of Pensacola, Fla., and another sailor fell asleep on his bunk while watching "The Vampire Diaries" on a computer last month.
Myers said there were three versions of how the men were dressed but "in no version is either totally undressed." He said Jones was on top of the covers and the other sailor under the covers. The other sailor left when Jones' roommate returned to the room shortly after midnight.
Because Jones has been in the service for less than six years, he is not entitled to a formal military hearing on his dismissal but can have the decision of dismissal reviewed by filing documents with officials farther up the chain of command.
In his filing, Myers calls the dismissal "bigotry disguised as the rule of law."
He writes that while Jones' commanders suspect he is homosexual, they "cannot invoke 'don't ask, don't tell,' because there was no admission of homosexuality or homosexual conduct."
Navy spokesman Thomas Dougan said he could not comment on the case because of privacy laws. But he said two sailors in the same bed is against Navy rules.
"It's a violation of command instruction for sailors to act professionally in the barracks," he said. "It's unprofessional to share the same bed. It's a very general rule and command instruction."
Last December, President Barack Obama signed the law repealing the 17-year-old "don't ask, don't tell" policy under which soldiers, sailors, airmen and Marines were required to keep their homosexuality a secret or face dismissal.
The repeal takes effect two months after the president, defense secretary and chairman of the Joint Chiefs of Staff certify that lifting the ban won't hurt the military's ability to fight.
Myers said publicity from the Jones case could have a dampening effect on commanders dismissing openly gay service personnel on made-up charges.
"A lot more people will be on the lookout for it," he said. "All you need in a situation like this is a kid with the moral courage to say 'I'm not going to roll over. I didn't do anything wrong.'"