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Documentation for a Homosexual Conduct Discharge
Approaching the Command
Pressuring an Unresponsive Command
Type of Separation
Many servicemembers are discharged each year for homosexual conduct. A few are court-martialed each year for homosexual acts. A member may be separated for stating that he or she is homosexual or bisexual; for engaging in, attempting to engage in, or soliciting a homosexual act; or for marrying, or attempting to marry, someone of the same sex. Servicemembers who are suspected of engaging in homosexual acts face the likelihood of a command fact-finding inquiry or a more formal investigation. They run the risk that coworkers, friends, and even family may be questioned and, in the process, told about their suspected sexual orientation or acts.
In the current military policy, commonly known as Don't Ask, Don't Tell, the DoD regulated a distinction between a member's sexual orientation and a propensity to engage in sexual acts. A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service...unless manifested by homosexual conduct. However, the military's definition of homosexual acts is absurdly broad and can include hugging and hand-holding. Soliciting a homosexual act could include asking for a kiss. The Don't Ask, Don't Tell regulations, while written very carefully, are maddeningly, purposefully vague and leave much interpretation to command discretion. Individual commands' interpretations of the regulations can vary widely.
To discharge a member, the military must find that at least one of the following instances of homosexual conduct is supported by the evidence:
• The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts...;
• The member has made a statement that he or she is homosexual or bisexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts...;
• The member has married or attempted to marry a person known to be of the same biological sex....
A statement of homosexuality or bisexuality is grounds for separation because the statement indicates a likelihood that the member engages in or will engage in homosexual acts but, the military claims, not because it reflects the member's sexual orientation. A member will not be discharged if a member engaged in acts, made statements, or married or attempted to marry a person known to be of the same biological sex for the purpose of avoiding or terminating military service.
A homosexual conduct discharge can be a way out for members of the military who no longer wish to remain there. However, there are pitfalls that can occasionally complicate a standard gay discharge. The procedure can turn into a protracted and embarrassing investigation and the member can receive a characterization of OTH for aggravating circumstances, as a result of dual processing for a misconduct discharge based on separate disciplinary problems, or for fraudulent enlistment. In rare cases, the member could even face court-martial under the Uniform Code of Military Justice (UCMJ): Article 125 (10 USC §925) which outlaws sodomy; Article 133, (10 USC §933) which criminalizes conduct unbecoming an officer and a gentleman; Article 134, (10 USC §934) which criminalizes all conduct of a nature to bring discredit upon the armed forces and includes specific provisions for indecent acts; and Article 80, (10 USC §880) which criminalizes attempting any act defined as an offense under the UCMJ.
Unfortunately, the regulations give no further guidance on when court-martial might be appropriate. However, prosecution is more likely for cases involving aggravating circumstances. Military standards apply whether a member is on-base or off-base, on-duty or off-duty. The potential for court-martial prosecution exists even when sexual activities occur in private, off-base, among consenting adults. (While it is not common, it does occur, particularly in the Air Force.)
Members need to consider several factors before seeking discharge for homosexual conduct:
• That the member's discharge papers (Form DD-214) will indicate homosexual conduct.
• The possibility of harassment.
• What other discharges might be available to the member.
One of the key factors in preparing a gay discharge request is ensuring that the command does not have, and will not get, harmful information from the member or other sources. It is important to limit the information and documents given to the command. The command is likely to conduct a fact-finding inquiry (and may make outrageous demands for proof). Therefore, members need to know they have a right to remain silent and doing so can help prevent an unfavorable characterization of service.
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Servicemembers who are suspected of being lesbian or gay may face harassment from their commands and fellow servicemembers. It can take the form of rude jokes and name calling, increased scrutiny of the member's performance or conduct (such as disciplinary action for minor infractions that the command tolerates from other members), orders to perform undesirable duties, death threats, and physical assaults by one or more people.
Be prepared to take immediate and aggressive legal action. A strongly-worded letter faxed from a counselor to the commanding officer may provide some protection. In other cases, one or more of the formal complaint procedures, along with outside intervention, may persuade the command to take action. Equal Opportunity offices will sometimes treat harassment based on perceived sexual orientation as a form of sexual harassment and accept those complaints. The procedures can be lengthy; therefore, assertiveness at the first stages of the complaint process may persuade the command to take action rather than let the procedure run its course.
It is usually best to document harassment before a complaint is made. However, when danger to the servicemember is great, the claim should be made at once and the harassment documented after the complaint is made. Unfortunately, it is not safe to assume that commands and military investigators will be thorough and evenhanded in questioning witnesses and searching for evidence of harassment.
Servicemembers considering filing complaints over harassment must review what information the command or coworkers may have, or may be able to find out without difficulty, about homosexual statements or acts. Behavior that is theoretically protected under Don't Ask, Don't Tell, (such as associating with lesbians, reading gay material, going to a gay bar, etc.) may also trigger an investigation of the member. An absence of evidence does not protect members against unfounded allegations but it does make it harder for commands to pursue an investigation of the victim.
Servicemembers can seek this discharge by stating, in writing (see the
sample letter), that they are gay and addressing the statement to the separation authority, via the commanding officer. Verbal statements should not be made instead of, or in addition to, the written statement. Commands may misunderstand or distort what was said and perhaps claim a member admitted to acts under aggravating circumstances or acts warranting disciplinary action. Commands also often ignore verbal statements because they do not want to discharge the servicemember. Be sure to have a counselor review the written statement before it is submitted. Statements that take strong political positions may trigger an investigation or harassment. Likewise, statements should not acknowledge engaging in homosexual acts.
Approaching the Command
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A written discharge request is submitted directly to the member's commanding officer, either in person or by mail. The request can include a cover letter with the member's statement which can: remind the command of the member's rights, request that the member's privacy be protected and, if necessary, ask for command assistance with any existing harassment. (Where the letter is written by an attorney, it can also explain that the writer has advised the client to make no further statements.) Most of all a cover letter informs the command that the member is not alone.
The servicemember must decide when to submit the statement. Although not common, commands have been known to prepare unsatisfactory evaluations of members after they are known, or suspected to be, gay. Therefore, the member might wait until the current evaluation period is over and the evaluation or fitness report has been completed. If the command is currently undertaking an investigation of other members, it may be best to wait until the investigation is over.
The member may wish to submit the request earlier if the member is:
• still in entry level status;
• particularly anxious;
• experiencing harassment.
Pressuring an Unresponsive Command
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Generally, a statement is sufficient to trigger discharge proceedings. If the member's commander does not seem to be acting on the statement, a first step can be to communicate directly with the separation authority.
Skeptical commands may need to be provided with further documentation but, regardless of what command representatives may say, there are virtually no circumstances under which it is advisable to provide evidence of homosexual acts. Instead, members should provide information about their life or lifestyle, such as documentation that they belong to gay religious or political groups, subscribe to gay periodicals, attend PFLAG meetings with their parents, statements where members describe their appreciation of gay culture, the emotional experience of recognizing and appreciating that they are gay, etc.
In some cases, members may ask friends, family members, ministers, or others to write statements about their sexual orientation. It is important for counselors to review any letter before it is submitted to the command to ensure that letter writers do not include information about sexual activity. Because command inquiries may involve attempts to interview these people, any letter writer must be reminded not to talk with military officials about sexual acts.
Members can also submit a letter from a civilian psychologist or doctor stating that the medical professional has had discussions with the member and that the member is indeed gay. Providing such a letter can prevent the military from investigating whether the member was lying in order to get out. Some servicemembers prefer to avoid doctors' letters, which may seem to imply that homosexuality is a medical issue. Where statements from doctors or therapists are used, they can point out that homosexuality is not an illness. As with other letters, these must avoid references to homosexual acts. (Although Military Rule of Evidence 513 now recognizes psychotherapist-patient privilege, it is still important that the servicemember not authorize disclosure of unwanted evidence.)
Type of Separation
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In most cases in which the sole basis for discharge is homosexual conduct, even those involving homosexual acts, the characterization of service should be Honorable, General (under Honorable Conditions), or an Entry Level Separation. However, many cases have misconduct issues other than homosexual acts associated with them and these issues can result in a characterization of service of Under Other Than Honorable Conditions (OTH). If a member is discharged on the basis of homosexual conduct, that reason will be noted on the discharge document and that information may stigmatize the veteran (and possibly limit employment opportunities) in the future. A characterization of Under Other Than Honorable Conditions (OTH) will result only if the military finds that, during the current enlistment, the member attempted, solicited, or committed a homosexual act under aggravating circumstances.
Some commands may prosecute members for sexual acts, resulting in a punitive discharge as part of a court-martial sentence or a characterization of OTH as part of a discharge in lieu of court-martial. Commands may also dual process a member for misconduct.
This fact sheet is based on information from www.girights.org, the website of
CCCO, 405 14th Street, Suite #205, Oakland, CA 94612 and the GI Rights Hotline, 877-447-4487 or firstname.lastname@example.org