Published April 2010 Bar Bulletin
Defending Gay Soldiers Who Defend America
By Stephen H. Carpenter, Jr.
Are there any queers in the theater tonight?
get them up against the wall!
There’s one in the spotlight, he don’t look right to me,
get them up against the wall!
—Pink Floyd, The Wall (In the Flesh)
A wall of discrimination that has long deterred gay and lesbian citizens from openly serving in the military may finally, brick by brick, be coming down. Making good on his campaign pledge, President Obama is orchestrating a repeal of the Armed Forces’ “Homosexual Conduct Policy,” codified at 10 U.S.C. § 654, and colloquially known as “Don’t Ask, Don’t Tell” (DADT).1
Congress has also introduced complementary legislation entitled the Military Readiness Enhancement Act (MREA).2 This act seeks to “enhance the readiness of the Armed Forces” by replacing the current DADT policy with a policy of non-discrimination on the basis of sexual orientation.3
Accordingly, human rights advocates have reason to be cautiously optimistic, but even if DADT is ultimately repealed, it has largely come too late for the more than 13,500 homosexual servicemembers who have been involuntarily separated under it.4 These aggrieved persons’ only potential avenue of relief, at this point, is with their respective services’ Discharge Review Boards and Correction of Military Records Boards, whose remedies are strictly limited to upgrading the characterization of discharge, improving the reenlistment code and revising the reason given on the DD-214 for the discharge.
These post-separation boards cannot bring servicemembers back into active duty, or otherwise restore their benefits or reimburse lost pay. Worse yet, if the current administration proves unsuccessful in repealing DADT, these former soldiers, airmen and sailors may never receive any relief at all.
Indeed, President Obama’s attempt to abolish the ban on homosexuals in the Armed Forces (like former President Clinton’s ill-fated attempt) remains ever vulnerable to political undercurrents, any one of which could conceivably defeat his push for equality. Accordingly, while many Americans, civilian and military alike, hold their collective breath in waiting anxiously for the new act to become law, this article offers some short-term guidance for homosexual members who, in the midst of prolonged bipartisan bickering, may find themselves, like the thousands before them, facing administrative separation.
From a practical standpoint, because the U.S. Army has historically separated more uniformed members for homosexual conduct than any other branch of service, its regulation, based on Department of Defense (DoD) Directive 1332.14, is examined. Army Regulation (AR) 600-20 paragraph 4-19, sets forth its service’s “Homosexual Conduct Policy.”5
It primarily targets any “person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.” Examples of such offending behavior include “hand-holding, slow dancing or kissing that a reasonable person would understand to demonstrate or intent to engage in such bodily contact.” If confronted with these or similar allegations, the alleged perpetrator’s military commander is required to initiate an investigation.
Prior to initiating separation paperwork, however, the commander must have a “reasonable belief based upon the source and the surrounding circumstances” that a servicemember has engaged in or intends to engage in homosexual acts.6 Commanders have the discretion to “decline to open an investigation if they determine the request lacks credible information that a violation has occurred or is not in keeping with established policy.”7 However, if the information is subsequently “deemed credible by the criminal investigation organization commander (CID) as well as the soldier’s commander in most cases,” the member must be notified of his impending separation.”8
In such a case, the alleged offender must be referred to a three-member administrative separation board, which decides whether there is “probable cause” to believe that a homosexual act occurred. If this finding is made, the military member must be discharged with an honorable, general or other than honorable discharge, as might be warranted by the specific facts in the case.9
These administrative boards are not, however, merely kangaroo courts. Soldiers processed for separation for homosexual conduct are entitled to legal representation by military defense counsel at no expense and/or to representation by civilian counsel at their own expense.10
Accordingly, soldiers should unequivocally invoke DADT’s only meaningful due process protection — the right to remain silent. This right is sacrosanct. Indeed, “commanders or appointed inquiry officers will not ask, and soldiers will not be required to reveal whether a soldier is heterosexual, homosexual or bisexual.”11
But soldiers may still be asked if “they engaged in such conduct,” but they must first be advised of their right to say nothing in accordance with Article 31(b), Uniform Code of Military Justice (UCMJ).12 By admitting to being a homosexual, the soldier creates a “rebuttable presumption” that he effectively engaged in sexual conduct.13
The Ninth Circuit, in Witt v. Dep’t of the Air Force,14 held the Government has the burden to demonstrate the charged homosexual conduct actually (not figuratively) “damaged unit cohesion” before a discharge may occur. In justifying its ruling, the court held gay uniformed personnel possess a “substantive due process right” to serve in the military, which, by implication, subjects DADT to an intermediate level of constitutional scrutiny.15
In citing DADT, Witt rejected the Government’s overreliance on past “congressional findings regarding unit cohesion and the like” to support its policy. In the court’s view, judicial deference to military matters “does not mean abdication.”16 As a result, the Government must affirmatively demonstrate, on the administrative record, that “unit cohesion” was detrimentally affected by the claimed homosexual conduct prior to discharge.
Soldiers would still be wise to demonstrate that their alleged conduct is evidence of nothing more than “sexual orientation” and did not otherwise prejudicially “affect [the] unit until the military initiated discharge proceedings under DADT, and even then, that it was [the] suspension pursuant to DADT, and not his homosexuality, that damaged unit cohesion.”17 Soldiers can do this by gathering sworn statements that demonstrate that the effects of their conduct were “remote” and thus unit cohesion could not have been adversely affected.
No matter which defense tactics are used to prolong a soldier’s military employment prior to the repeal of DADT, one point is crystal clear. The personal hardships that gay and lesbian soldiers have endured in defense of this country, both here and in combat overseas, entitle them to serve no matter how their private, intimate and consensual relations with others are judged. For each time they save a life, defend a building or make the ultimate sacrifice, there will be one less brick in the wall.
Stephen Carpenter, Jr. (stephen@mscarpenter.net) is a private practice attorney in Seattle who formerly served terms as both a prosecutor and defense counsel in the U.S. Army Judge Advocate General’s Corps. He currently defends uniformed military members in courts-martial and administrative separation actions throughout the country.
1 Notably, even with the rescission of DADT, other federal statutes must likewise be rewritten, most notably Army Regulation (AR) 380-67, page 44, which may prohibit a homosexual person from holding a security clearance.
2 The bill would replace this ban with new provisions prohibiting discrimination based on sexual orientation in the armed forces. H.R. 1283, S. 3065.
3 Id.
4 DADT was enacted in 1994.
5 Generally, a member’s sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct.
6 Memorandum from the Under Secretary of Defense to Secretaries of the Military Departments et al., subject: Guidelines for Investigating Threats Against Service Members Based on Alleged Homosexuality (24 March 1997).
7 DoD instruction 5505.8 (all Involuntary Discharge actions with Homosexual Conduct as the basis entitled the respondent to an Administrative Discharge Board, regardless of service characterization or time-in-service.)
8 10 U.S.C. § 654(b).
9 DoD Directive 1332.14, paragraph 3(f)(b) (providing several bases for an other than honorable discharge, including, in part, “by using force, coercion of intimidation; with a person under the age of 16, and openly in view of the public”).
10 Id. at ¶ 4(a).
11 Id.
12 Notes, 10 U.S.C. § 654(d)(2).
13 AR 600-20, paragraph 4-19(e).
14 444 F. Supp. 2d 1138 (2006).
15 Witt, 444 F. Supp 2d 1138; see also, Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc) (holding plaintiff possessed standing to sue for “sexual orientation” discrimination under Title VII).
16 Witt, 444 F. Supp 2d 1138 (citing Rostker v Goldberg, 453 U.S. 57, 70 (1981)).
17 Id., note 11.