Meta: bergann's Guide to Discharge Under DADT for Writers & Other Interested Parties
This is what I consider your basic need-to-know facts about discharge under the Don't Ask, Don't Policy, a helping hand so-to-speak if you're writing fic or original fiction concerning the topic. BTW, I am in no way an expert on this, ok? I've been researching the policy for the past couple of months for a school paper, but if you want an expert, Nathaniel Frank is your man -- he wrote this brilliant book called Unfriendly Fire: How the Gay Ban Undermines the Military & Weakens America. I highly recommend it.
If you see something in here that you disagree with, on a purely "I know this information is wrong" level, then feel free to correct me. I am happy to learn & I want this information to be as correct as possible.
bergann's Guide to Discharge Under DADT for Writers & Other Interested Parties
Don't Ask, Don't Tell, Don't Pursue, Don't Harass is a law passed by Congress in 1993, mandating the discharge of openly gay, lesbian, or bisexual service members. It is frightingly contradictory at times and it is often (but, it should be noted, decreasingly) misunderstood or misinterperted or, unfortunately, just plain ignored.
As the very name suggests, there are four key components that must be understood about this law before we proceed. I have only included the very basic of the components here, as otherwise I would be keeping you here for quite a while, and my intention is to educate on the discharge process.
You have:
Don't Ask which prohibits commanders or appointed inquiry officials from asking about sexual orientation. It also makes it so that service members are not required to reveal their sexuality.
Don't Tell which provides a basis for discharge if "the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts."
Don't Pursue which provides investigative limits concerning the inquiry into suspected homosexual conduct. Unfortunately, this is also the most complicated and least understood of component.
Don't Harass which prohibits anti-gay harassment of any form.
They seem pretty basic, don't they? Almost innocent in their simplicty, but they are only the tip of a very big iceberg that will have to wait for another day when it is not 1AM and I don't have school in the morning.
For now, there is the discharge process to talk about.
Under “Don’t Ask, Don’t Tell,” service members may be investigated and administratively discharged if they commit one of the following acts: 1) make a statement that they are lesbian, gay or bisexual; 2) engage in physical contact with someone of the same-sex for the purposes of sexual gratification; and 3) marry, or attempt to marry, someone of the same-sex.
Now, let's say there is a hypothetical service member about to be discharged for Homosexual Conduct (or Conduct Unbecoming or many other variations, depending on the branch) and let's say this hypothetical person for simplicity's sake is called Steve. Steve's command -- either a General or a Flag Officer -- has had credible information brought to them from a reliable source stating that Steve has engaged in homosexual conduct -- for example, a poster of a gay singer or associational behaviour or gossip are not deemed credible information.
Information provided by a third party must be given under oath. This is done to discourage the use of overheard statements and hearsay.
Now, if Command does indeed find this information credible, Command must choose between two types of investigation -- a "limited inquiry" or a "substantial Investigation". A limited inquiry is the type most often used, and here Command can do nothing but investigate the facts surrounding the claim of homosexual conduct -- this will happen even if Steve had told Command of his homosexuality himself. Substantial investigations are only allowed if Command has gotten permission from the Secretary of their military branch. SLDN tells me they've only heard of a handful of cases where this investigation has been requested, and none where it has actually been granted.
In both lines of investigation, it is important to note that inquiry officers are only allowed to ask about the alleged conduct, for example, “did you say you were gay?” but not about sexual orientation, for example, “are you gay?”
Things can go a little differently in criminal investigations however. These investigations are rare, and most of them occur because there is an allegation for sexual misconduct: such as fraternization, through coercion or force, in public, or with a minor.
Steve will have right to a lawyer before he says or signs anything concerning the accusation of his conduct -- either a military or civilian lawyer.
Discharges under DADT are usually administrative, not criminal, which means Steve is entitled to a set process. These will be listed on the forms he is given. Steve can, if he wants, choose to appear before a administrative separation board or board of inquiry. He would do this mainly to either fight for retention or to fight for a better discharge characterization than Command has recommended for him. This is what Steve would do if he had been wrongly accused, the evidence is weak, the accuser is not credible, or if he's worried about the discharge characterization.
Steve would here be allowed to present evidence, witness statements, cross-examine witnesses called by the military, testify under oath, and to have his trusty military defense attorney & civilian legal counsel beside him.
The theoretically impartial board members are instructed to weigh evidence by the “preponderance of the evidence” standard. Under this standard, the military must produce evidence that is of greater weight, or more convincing, than Steve's evidence in order to persuade the board to decide in favor of the military and against Steve. The slightest edge in the military’s favor is enough for it to win. This is an easier standard for the military to meet than the standard used at court-martial, where the government must prove Steve's guilt "beyond a reasonable doubt."
Evidence that would not be allowed in a court-martial is allowed in administrative separation boards. The only restriction on evidence that may be introduced at an administrative separation board is that the evidence must be "relevant" to the alleged homosexual conduct, in this case, Steve's.
After changes made to the policy in March, 2010, certain categories of confidential information -- such as information provided to lawyers, clergy and psychotherapists -- no longer will be used in support of discharges. Information provided to medical personnel in furtherance of treatment, or to a public-health official in the course of seeing professional assistance for domestic or physical abuse also is excluded, as well as information obtained in the process of security-clearance investigations, in accordance with existing Pentagon policies. (source)
If he's fighting for retention in front of the board of his choosing, Steve must prove that:
• Such acts are a departure from his usual and customary behavior;
• Such acts are unlikely to recur;
• Such acts were not accomplished by the use of force, coercion, or intimidation;
• Under the particular circumstances of the case, Steve's continued presence in the
Armed Forces is consistent with the interest of the Armed Forces in proper discipline, good order, and morale of the Service; and
• Steve does not have a propensity or intent to engage in homosexual acts.
(This is where the "Queen for a Day" expression comes from. Basically saying that, so long as you're a heterosexual person commiting homosexual acts, as a departure of your 'normal' behaviour, then homosexual conduct is fine -- because you'd only be a heterosexual person having homosexual sex once.)
Now, let's say for the sake of further knowledge, Steve did not win his fight in the boards -- as is actually usually the case in most DADT discharges, sadly. There's an overwhelming number of cases lost, even with strong evidence.
But back to Steve, who is about to be discharged.
If Steve had only been with the military for under 180 days, he would get an Entry Level Separation (ELS) with an uncharacterized discharge. After 180 days of service however, Steve would either receive three types of discharges: Honorable, General (Under Honorable Conditions), or Other Than Honorable (OTH).
The belief that discharges under DADT are Bad Conduct Discharges (BDC) or Dishonorable Discharges (DD) would be wrong. These types of discharges would only be determined by courtmartial following criminal prosecution. That is, Steve would be receiving a BDC or DD if he had engaged in homosexual conduct with a minor or rape.
If Steve has no other "aggravating circumstances" present during his discharge, or isn't being "dual processed" for another reason for discharge, he will receive a Honorable or General Discharge. He'd be receiving a OTH if he attempted, solicited, or committed a homosexual act in the following circumstances:
• By using force, coercion, or intimidation;
• With a person under 16 years of age;
• With a subordinate in circumstances that violate customary military superior-subordinate relationships;
• Openly in public view;
• For compensation;
• Aboard a military vessel or aircraft; or
• In another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
Now, there are certain perks and drawbacks with the different types of discharge. Under an Honorable Discharge, Steve would be entitled to all the veteran benefits he is eligable for (in terms of his time of service). A General discharge will entitle Steve to almost all of the veteran benefits, but it might raise some questions among some civilian employers about his work performance. If Steve gets an OTH discharge, he will risk losing possibly all his veteran benefits, unless the Veterans Administration decides his request of assistance can be accepted. In a lot of states, OTH discharge will also stop Steve from collecting unemployment compensation from the military.
All discharges for homosexual conduct come with an invalid re-enlistment code. This means that once Steve has been discharged for homosexual conduct, he can't get back in to any branch of the military. But unless Steve has received an OTH, BCD or DD; the civilian world is pretty much his oyster. His discharge should in no way prevent him from doing what he wants.
You should also be aware of four Uniform Codes of Military Justice: Article 31, Article 125 & Article 133-34.
Article 31: provides protection to service members including when they are questioned about their sexual orientation, personal life or sexual activities by their command or other members of the military. Under Article 31, any service member exposed to such questioning may refuse to answer questions, provide a statement or sign any document related to the questioning. In addition, Article 31 gives service members the right to a lawyer before answering questions or signing paperwork.
Article 125: prohibits all service members from engaging in sodomy as defined in the UCMJ (primarily oral and anal sex between members of the same or opposite sex). Service members found violating this article can be courtmartialed and imprisoned if found guilty. There's a lot of confusion about this article, however, because on June 26, 2003, the Supreme Court of the United States ruled on the case of Lawrence v. Texas and decided that a Texas statute prohibiting two persons of the same gender from engaging in private consensual sexual conduct, and all similar State laws, is unconstitutional. Currently, Article 125 of the UCMJ remains in effect. The UCMJ forbids members of the armed forces from engaging in all types of conduct, including some conduct that is allowed under civilian state and federal law. Any changes to existing state and federal laws do not automatically affect the articles of the UCMJ. Service members found violating this article can be, and often times are, court-martialed and imprisoned if found guilty. Despite the Lawrence v. Texas ruling, Article 125 remains in effect unless and until it is changed either through a specific court ruling or altered by congressional action. To be safe, service members should operate under the assumption that they can be arrested and prosecuted if caught engaging in sexual activity falling within the definition of sodomy in Article 125 of the UCMJ. Convictions under Article 125 can result in up to five years in prison for each act, punitive discharge, reduction in pay and fines and forfeitures.41 Service members have gone to prison for violating Article 125 of the UCMJ.
(Interestingly enough, all of SLDN's example cases occuring under this accusation are between heterosexual couples.)
Article 133&134: Article 133 outlaws “conduct unbecoming an officer and a gentleman.” Article 134 outlaws conduct that results in the “prejudice of good order and discipline in the armed forces” as well as conduct that “brings discredit upon the armed forces.” Conduct that has been considered a violation of Articles 133 and 134 includes: adultery, fraternization, indecent acts with another and soliciting another to commit an offense.
Although criminal investigations and prosecutions of homosexual conduct are rare under these articles it does not mean that service members should not take the threat seriously. The threat of criminal prosecution for physical conduct with a person of the same-sex is real. Not only sex, but virtually any physical act with another person of the same-sex can be criminally prosecuted, if it can be shown that the act was committed for a sexual or romantic purpose. Convictions under Article 133 or 134 can, in some cases, result in up to five years of imprisonment for each act, a punitive discharge (Bad Conduct discharge or Dishonorable discharge), reduction in pay-grade and fines and forfeitures.
Along with Nathaniel Frank's Unfriendly Fire, I findt that a definitive "must read" if you're writing in-depth story about the possible effect of the law, or just curious, is SLDN's Survival Guide: A Comprehensive Guide to "Don't Ask, Don't Tell" and Related Military Policies. It's quoted quite heavily in here. It is 82 pages long and pretty much my go-to guide for anything DADT related when concerning the lives of service members in particular, and not in effects of the military as a whole.
I also, for once, recommend the Wikipedia page about DADT as it has a easy & informative page about it, and Servicemembers Legal Defence Network can provide you with links to the history of it, the actual law, legal issues, research & basic fact sheets about DADT. It has a very user-friendly website with easy to find links.
The Palm Center also has a lot of great information about current changes happening in the military concerning gender and sexuality.
If you see something in here that you disagree with, on a purely "I know this information is wrong" level, then feel free to correct me. I am happy to learn & I want this information to be as correct as possible.
bergann's Guide to Discharge Under DADT for Writers & Other Interested Parties
Don't Ask, Don't Tell, Don't Pursue, Don't Harass is a law passed by Congress in 1993, mandating the discharge of openly gay, lesbian, or bisexual service members. It is frightingly contradictory at times and it is often (but, it should be noted, decreasingly) misunderstood or misinterperted or, unfortunately, just plain ignored.
As the very name suggests, there are four key components that must be understood about this law before we proceed. I have only included the very basic of the components here, as otherwise I would be keeping you here for quite a while, and my intention is to educate on the discharge process.
You have:
Don't Ask which prohibits commanders or appointed inquiry officials from asking about sexual orientation. It also makes it so that service members are not required to reveal their sexuality.
Don't Tell which provides a basis for discharge if "the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts."
Don't Pursue which provides investigative limits concerning the inquiry into suspected homosexual conduct. Unfortunately, this is also the most complicated and least understood of component.
Don't Harass which prohibits anti-gay harassment of any form.
They seem pretty basic, don't they? Almost innocent in their simplicty, but they are only the tip of a very big iceberg that will have to wait for another day when it is not 1AM and I don't have school in the morning.
For now, there is the discharge process to talk about.
Under “Don’t Ask, Don’t Tell,” service members may be investigated and administratively discharged if they commit one of the following acts: 1) make a statement that they are lesbian, gay or bisexual; 2) engage in physical contact with someone of the same-sex for the purposes of sexual gratification; and 3) marry, or attempt to marry, someone of the same-sex.
Now, let's say there is a hypothetical service member about to be discharged for Homosexual Conduct (or Conduct Unbecoming or many other variations, depending on the branch) and let's say this hypothetical person for simplicity's sake is called Steve. Steve's command -- either a General or a Flag Officer -- has had credible information brought to them from a reliable source stating that Steve has engaged in homosexual conduct -- for example, a poster of a gay singer or associational behaviour or gossip are not deemed credible information.
Information provided by a third party must be given under oath. This is done to discourage the use of overheard statements and hearsay.
Now, if Command does indeed find this information credible, Command must choose between two types of investigation -- a "limited inquiry" or a "substantial Investigation". A limited inquiry is the type most often used, and here Command can do nothing but investigate the facts surrounding the claim of homosexual conduct -- this will happen even if Steve had told Command of his homosexuality himself. Substantial investigations are only allowed if Command has gotten permission from the Secretary of their military branch. SLDN tells me they've only heard of a handful of cases where this investigation has been requested, and none where it has actually been granted.
In both lines of investigation, it is important to note that inquiry officers are only allowed to ask about the alleged conduct, for example, “did you say you were gay?” but not about sexual orientation, for example, “are you gay?”
Things can go a little differently in criminal investigations however. These investigations are rare, and most of them occur because there is an allegation for sexual misconduct: such as fraternization, through coercion or force, in public, or with a minor.
Steve will have right to a lawyer before he says or signs anything concerning the accusation of his conduct -- either a military or civilian lawyer.
Discharges under DADT are usually administrative, not criminal, which means Steve is entitled to a set process. These will be listed on the forms he is given. Steve can, if he wants, choose to appear before a administrative separation board or board of inquiry. He would do this mainly to either fight for retention or to fight for a better discharge characterization than Command has recommended for him. This is what Steve would do if he had been wrongly accused, the evidence is weak, the accuser is not credible, or if he's worried about the discharge characterization.
Steve would here be allowed to present evidence, witness statements, cross-examine witnesses called by the military, testify under oath, and to have his trusty military defense attorney & civilian legal counsel beside him.
The theoretically impartial board members are instructed to weigh evidence by the “preponderance of the evidence” standard. Under this standard, the military must produce evidence that is of greater weight, or more convincing, than Steve's evidence in order to persuade the board to decide in favor of the military and against Steve. The slightest edge in the military’s favor is enough for it to win. This is an easier standard for the military to meet than the standard used at court-martial, where the government must prove Steve's guilt "beyond a reasonable doubt."
Evidence that would not be allowed in a court-martial is allowed in administrative separation boards. The only restriction on evidence that may be introduced at an administrative separation board is that the evidence must be "relevant" to the alleged homosexual conduct, in this case, Steve's.
After changes made to the policy in March, 2010, certain categories of confidential information -- such as information provided to lawyers, clergy and psychotherapists -- no longer will be used in support of discharges. Information provided to medical personnel in furtherance of treatment, or to a public-health official in the course of seeing professional assistance for domestic or physical abuse also is excluded, as well as information obtained in the process of security-clearance investigations, in accordance with existing Pentagon policies. (source)
If he's fighting for retention in front of the board of his choosing, Steve must prove that:
• Such acts are a departure from his usual and customary behavior;
• Such acts are unlikely to recur;
• Such acts were not accomplished by the use of force, coercion, or intimidation;
• Under the particular circumstances of the case, Steve's continued presence in the
Armed Forces is consistent with the interest of the Armed Forces in proper discipline, good order, and morale of the Service; and
• Steve does not have a propensity or intent to engage in homosexual acts.
(This is where the "Queen for a Day" expression comes from. Basically saying that, so long as you're a heterosexual person commiting homosexual acts, as a departure of your 'normal' behaviour, then homosexual conduct is fine -- because you'd only be a heterosexual person having homosexual sex once.)
Now, let's say for the sake of further knowledge, Steve did not win his fight in the boards -- as is actually usually the case in most DADT discharges, sadly. There's an overwhelming number of cases lost, even with strong evidence.
But back to Steve, who is about to be discharged.
If Steve had only been with the military for under 180 days, he would get an Entry Level Separation (ELS) with an uncharacterized discharge. After 180 days of service however, Steve would either receive three types of discharges: Honorable, General (Under Honorable Conditions), or Other Than Honorable (OTH).
The belief that discharges under DADT are Bad Conduct Discharges (BDC) or Dishonorable Discharges (DD) would be wrong. These types of discharges would only be determined by courtmartial following criminal prosecution. That is, Steve would be receiving a BDC or DD if he had engaged in homosexual conduct with a minor or rape.
If Steve has no other "aggravating circumstances" present during his discharge, or isn't being "dual processed" for another reason for discharge, he will receive a Honorable or General Discharge. He'd be receiving a OTH if he attempted, solicited, or committed a homosexual act in the following circumstances:
• By using force, coercion, or intimidation;
• With a person under 16 years of age;
• With a subordinate in circumstances that violate customary military superior-subordinate relationships;
• Openly in public view;
• For compensation;
• Aboard a military vessel or aircraft; or
• In another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
Now, there are certain perks and drawbacks with the different types of discharge. Under an Honorable Discharge, Steve would be entitled to all the veteran benefits he is eligable for (in terms of his time of service). A General discharge will entitle Steve to almost all of the veteran benefits, but it might raise some questions among some civilian employers about his work performance. If Steve gets an OTH discharge, he will risk losing possibly all his veteran benefits, unless the Veterans Administration decides his request of assistance can be accepted. In a lot of states, OTH discharge will also stop Steve from collecting unemployment compensation from the military.
All discharges for homosexual conduct come with an invalid re-enlistment code. This means that once Steve has been discharged for homosexual conduct, he can't get back in to any branch of the military. But unless Steve has received an OTH, BCD or DD; the civilian world is pretty much his oyster. His discharge should in no way prevent him from doing what he wants.
You should also be aware of four Uniform Codes of Military Justice: Article 31, Article 125 & Article 133-34.
Article 31: provides protection to service members including when they are questioned about their sexual orientation, personal life or sexual activities by their command or other members of the military. Under Article 31, any service member exposed to such questioning may refuse to answer questions, provide a statement or sign any document related to the questioning. In addition, Article 31 gives service members the right to a lawyer before answering questions or signing paperwork.
Article 125: prohibits all service members from engaging in sodomy as defined in the UCMJ (primarily oral and anal sex between members of the same or opposite sex). Service members found violating this article can be courtmartialed and imprisoned if found guilty. There's a lot of confusion about this article, however, because on June 26, 2003, the Supreme Court of the United States ruled on the case of Lawrence v. Texas and decided that a Texas statute prohibiting two persons of the same gender from engaging in private consensual sexual conduct, and all similar State laws, is unconstitutional. Currently, Article 125 of the UCMJ remains in effect. The UCMJ forbids members of the armed forces from engaging in all types of conduct, including some conduct that is allowed under civilian state and federal law. Any changes to existing state and federal laws do not automatically affect the articles of the UCMJ. Service members found violating this article can be, and often times are, court-martialed and imprisoned if found guilty. Despite the Lawrence v. Texas ruling, Article 125 remains in effect unless and until it is changed either through a specific court ruling or altered by congressional action. To be safe, service members should operate under the assumption that they can be arrested and prosecuted if caught engaging in sexual activity falling within the definition of sodomy in Article 125 of the UCMJ. Convictions under Article 125 can result in up to five years in prison for each act, punitive discharge, reduction in pay and fines and forfeitures.41 Service members have gone to prison for violating Article 125 of the UCMJ.
(Interestingly enough, all of SLDN's example cases occuring under this accusation are between heterosexual couples.)
Article 133&134: Article 133 outlaws “conduct unbecoming an officer and a gentleman.” Article 134 outlaws conduct that results in the “prejudice of good order and discipline in the armed forces” as well as conduct that “brings discredit upon the armed forces.” Conduct that has been considered a violation of Articles 133 and 134 includes: adultery, fraternization, indecent acts with another and soliciting another to commit an offense.
Although criminal investigations and prosecutions of homosexual conduct are rare under these articles it does not mean that service members should not take the threat seriously. The threat of criminal prosecution for physical conduct with a person of the same-sex is real. Not only sex, but virtually any physical act with another person of the same-sex can be criminally prosecuted, if it can be shown that the act was committed for a sexual or romantic purpose. Convictions under Article 133 or 134 can, in some cases, result in up to five years of imprisonment for each act, a punitive discharge (Bad Conduct discharge or Dishonorable discharge), reduction in pay-grade and fines and forfeitures.
Along with Nathaniel Frank's Unfriendly Fire, I findt that a definitive "must read" if you're writing in-depth story about the possible effect of the law, or just curious, is SLDN's Survival Guide: A Comprehensive Guide to "Don't Ask, Don't Tell" and Related Military Policies. It's quoted quite heavily in here. It is 82 pages long and pretty much my go-to guide for anything DADT related when concerning the lives of service members in particular, and not in effects of the military as a whole.
I also, for once, recommend the Wikipedia page about DADT as it has a easy & informative page about it, and Servicemembers Legal Defence Network can provide you with links to the history of it, the actual law, legal issues, research & basic fact sheets about DADT. It has a very user-friendly website with easy to find links.
The Palm Center also has a lot of great information about current changes happening in the military concerning gender and sexuality.