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Sex assault allegation stalls 1-star nomination, sources say

Physician counseled after investigation, sources say

May. 19, 2014 - 06:00AM   |  
Capt. Daniel Zinder was nominated in March 2013 to become a one-star rear admiral, but an allegation of sexual assault likely has quashed the move.
Capt. Daniel Zinder was nominated in March 2013 to become a one-star rear admiral, but an allegation of sexual assault likely has quashed the move. (Navy)
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A highly successful Navy physician’s nomination to rear admiral has stalled after allegations emerged that he sexually assaulted a fellow officer a year before, placing his nomination in an unusual and high-profile limbo.

Capt. Daniel Zinder, an ear, nose and throat doctor who recently commanded a trauma hospital in Afghanistan, was accused of assaulting a female O-5 at a professional conference in 2012, according to five Navy sources familiar with the case.

The allegation, first reported confidentially in 2012 for treatment and counseling only, emerged after Zinder’s March 2013, nomination to rear admiral — a career-capping achievement that will likely never go forward.

Zinder, 51, admitted to consensual sex with the married O-5 and was issued an administrative letter, the sources said. The Zinder case, lodged against a flag officer nominee, highlights the circuitous way many allegations emerge and the hurdles to prosecuting cases where evidence is sparse and the time to pursue charges is running down.

Zinder was not criminally charged or handed non-judicial punishment, but the administrative letter has tanked his chances of ever pinning on a star, two Navy officials confirmed.

The convening authority decided not to pursue an Article 32 hearing in January, one official said, opting instead for non-judicial punishment for conduct unbecoming and adultery, as the accuser was married. But the NJP was never carried out. The two-year statute of limitations on NJP expired as attorneys were drawing up a charge sheet, the official confirmed.

Instead, Zinder received an adverse fitness report and a letter of reprimand in February from Vice Adm. Frank Morneau, the head of Naval Expeditionary Combat Command.

Zinder and his private defense attorney did not respond to repeated phone messages and emails sent over five days, and a spokesperson with the Navy’s Bureau of Medicine and Surgery, where Zinder is assigned, was unable to make him available by May 16.

As of mid-May, a Navy spokesman said, Zinder’s nomination is still pending.

The incident

Zinder and his accuser, also a physician, met for the first time at the 2012 Military Health System Conference outside Washington, D.C. The event was held in the Gaylord National Resort, where both were staying. They talked in a hotel bar on the evening of Feb. 1 after a day of panels and speeches.

She told Naval Criminal Investigative Service agents that she consumed about four drinks that night, over several hours, including a couple of beers during a long dinner with coworkers in a hotel restaurant, according to one source familiar with the investigation.

She woke up naked the next morning in Zinder’s bed with no memory beyond the first few sips of her last drink, at around 10 p.m., according to a source familiar with the investigation, who asked for anonymity to speak about an ongoing case. She told investigators she felt dizzy, nauseated and too weak to move.

“How could you do this to your husband?” Zinder said when he confirmed that they’d had sex, according to the accuser’s recollection to investigators.

As a policy, Navy Times does not identify alleged victims of sexual assault.

Two days later, Zinder contacted her. Over the phone, he told her she had followed him back to his room that night. In a follow-up email later provided to NCIS, she accused him of drugging her and taking her back to his room.

In May of that year, the accuser filed a restricted sexual assault report, which is not reported to investigators, the source said. Later that year, she confided in a few friends about what had happened, one of whom was familiar with Zinder.

The accuser’s friend knew a woman who was in Afghanistan with Zinder at the time, where he was the commander of NATO’s Role 3 medical unit in Kandahar.

She warned the friend via email, who showed the message to someone else, and that person called NCIS, according to the source familiar with the investigation.

NCIS opened an investigation and in early 2013, investigators started calling the command, trying to identify the woman from the rumors.

By June, a few months after Zinder’s nomination, they had identified the accuser, who agreed to give her statement. She went into a local NCIS office and, at the request of agents, called Zinder so that they could record his remarks.

He admitted to having sex with her, stating he thought it was consensual, and acknowledged the email in which she accused him of drugging her. NCIS issued a two-month military protection against Zinder on June 21, 2013, on the basis that the accuser felt she was in danger.

The fallout

By fall, NCIS was wrapping up its investigation. Morneau, the NECC boss, decided in January not to take the case to a courtroom, as evidence was insufficient to prove the sex was forced. But by then, there wasn’t enough time to take Zinder to admiral’s mast because of the two-year statute of limitations.

Instead, the adverse fitrep and administrative letter followed, three Navy officials confirmed.

The case bears similarities to a sexual assault court-martial conducted earlier this year for a Naval Academy midshipman accused of raping a fellow mid at an off-campus party.

The academy accuser admitted to drinking to the point of blacking out the night of the incident, but an expert medical witness testified that it’s possible to be fully conscious and aware of one’s actions while drunk, even if the alcohol has impaired the ability to make memories of the incident.

In that case, a military judge ruled that there wasn’t enough evidence to prove that the accuser hadn’t consented to sex. In the Zinder case, there wasn’t corroborating evidence or witnesses to prove the accused was drugged or unable to consent.

And in both cases, the accusers initially wanted to keep the alleged assaults quiet, but decided to come forward when rumors prompted an NCIS investigation.

Zinder continues to head an office at the Bureau of Medicine and Surgery in Falls Church, Virginia. Zinder could appeal file to have his letter of reprimand removed from his record with the Board for Correction of Naval Records, but his chances at making one star are shot, sources said.

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