DADT 101

One thing I learned as a LT doing my first Staff Weenie tour was this simple fact: you don't have to be an expert in everything - you just have to make sure you get the right people on your staff.

In that line, one of the great things about this blog is the network of commenters, emailers, lurkers, facebookers, and twitterers that keep the information flow going both ways. When things come up that are complicated - I reach out to them. When I put something out there that I am a little off-phase about - they reach out to me.

I tend to run the anti-DADT argument from the upper-level, large pixels. A few weeks ago I reached out to one of the JAGs I keep in the stable. If you want to read about DADT from the JAG level - you cannot do better than this.

Counselor - over to you.

---

There is a lot of confusion and misinformation circulating about how DADT is applied to the fleet. While it is easy for some to pull up a random piece of the US Code, it is far more difficult to explain how that law is applied to a given sailor. This brief primer is designed to give a more comprehensive explanation on the law of DADT, explain how it is applied, and give concrete examples of how DADT has failed as a policy.

First: The Law.

The DADT policy is codified as 10 U.S. Code 654. However, the actual process for applying DADT is primarily covered in MILPERSMAN 1910-148. DADT prohibits anyone who "demonstrates) a propensity or intent to engage in homosexual acts" from serving in the armed forces of the United States, because "it would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." The act prohibits any homosexual or bisexual person from disclosing his or her sexual orientation or from speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States armed forces. The "don't ask" part of the policy indicates that superiors should not initiate investigation of a service member's orientation in the absence of disallowed behaviors, though credible and particularly evidence of homosexual behavior may cause an investigation.

Second: How it works.

The Act gives the policy, but the MILPERSMAN gives the process. Under the MILPERSMAN, separation processing is MANDATORY if the CO believes based on credible information, the servicemember has committed homosexual conduct.
Homosexual conduct includes engaging in a homosexual act, marrying or attempting to marry a person of the same gender, or making statements evidencing a propensity or intent to engage in homosexual acts. "Credible" information MAY be in the form of outing by a third party, a provision that has come under increased scrutiny, but has not yet been repealed.

Credible information does NOT include opinion, rumor, frequenting of homosexual establishments, reading of homosexual materials, or associations with homosexuals (e.g. participating in a "pride march"). Credible information DOES include a statement by the member that they are gay, a reliable person observing the member in homosexual activity, or a reliable
person relates that the member made a homosexual statement (either verbal or non-verbal). So yes, outing by a third party CAN lead to a separation board.

Processing for these cases is MANDATORY, unless it can be proven that the conduct in question was committed solely to get out of service and separation is not in the best interest of the service.

If the CO questions the validity of the information, the CO, and only the CO, may authorize an investigation. The purpose of the investigation is not a witch hunt and is used only to gather information necessary to assist the CO in determining the appropriate disposition. Per MILPERSMAN, this is to be done after consultation with the Staff Judge Advocate of the General
Court-Martial Convening Authority. Many GCMCAs will in fact order subordinate units to not conduct an investigation without the GCMCA's approval.

Where a member admits to being gay and does not contest separation, little investigation is needed, unless the CO believes the statement was made to avoid service obligation. In this case, the CO must seek approval from SECNAV (ASN (M&RA)) before initiating an investigation.

Once referred to an admin board, the verbatim reason for processing must be stated on the notice form. (e.g. Separation by reason of homosexual conduct as evidenced by member's statement that he is a homosexual).

If a member marries or attempts to marry a member of the same gender, the member must be separated. If a member makes a statement that he or she is gay, the member must be separated UNLESS the member can prove by a preponderance of the evidence that they do not intend to engage in homosexual acts. (i.e. they intend to remain celibate). If a member engages
in homosexual acts, the member must be separated UNLESS the member can prove that the act is a departure from their normal behavior; not done by use of force, intimidation or coercion; the acts are unlikely to recur; the member does not have a propensity to engage in homosexual activity; and retention is not contrary to good order, discipline, and morale.

If the evidence of homosexual conduct is not deemed credible by the board, the board may find no basis and retain.

Everyone following?

Third: How it REALLY works.

Since DADT's implementation, over 13,000 servicemembers have been processed out. I can say that I have never seen a gay sailor with a good record, who wanted to stay in, kicked out. However I've seen MANY straight sailors claim to be gay in order avoid service. While I caveat this segment by stating that this is anecdotal, enough anecdote eventually becomes data.

Case 1: A nuke sailor finishes his enlistment and re-enlists with a substantial bonus. A month later he says he's gay. He keeps the bonus, waives his board in exchange for an honorable, and goes to work for a power company.

Case 2: A sub par sailor with only three years in and a poor performance record claims he is gay. He leaves with a General and retains is VA disability benefits and his VA loan benefits.

Case 3: A slightly better sailor claims gay at three years. He gets an honorable and keeps his GI Bill.

Case 4: A strong sailor, well liked by his chain, is outed by his psychotic ex-boyfriend. The command drops several hints to the PIO that, should the investigation into the credibility of the evidence come back "inconclusive", they would not be upset. No board conducted upon a proper investigation and determination that the evidence was not credible.

Case 5: Similarly strong sailor caught receiving oral sex in the sea bag locker by shipmate. After referral to NJP, where the same punishment was given in other cases of shipboard sexual activity, regardless of gender involved - restriction and a bust, the case is sent for mandatory processing. Sailor presents a good military character defense with testimony from his LCPO and others in his chain, and claims "queen for a day". Sailor retained by vote of 3-0.

Case 6: (And there are a lot of these) A sailor is caught groping his shipmates in the berthing. The command is low on operational funds and is worried about a drawn out court-martial which will be expensive, politically charged, and require sending several of their key crewmembers TAD to TPU during their upcoming underway. To save cost, the defense attorney offers, and they agree to process the member for homosexual conduct vice sexual assault in exchange for his waiving a board and accepting an OTH, denying him all veteran benefits.

This is how it really works.

The problem with DADT is that is primarily a vehicle through which poor performers can get an easy out, and good sailors live in fear of separation. My overwhelming experience, is that most of the fleet, in the words of one of my more eloquent blue shirts, "don't care if you eat a taco or lick a hot dog when you go home...just show up and do your job." Moreover, it allows
activist groups to take skewed numbers consisting largely of either people who are NOT gay, or people who were committing other misconduct, and then claim that the mean, homophobic, military has pushed people out. This is particularly infuriating as it is congress, not the military, that mandates DADT, yet we must remain silent and vilified while people in Washington
paint us as bigots to further their own agenda. It allows liberal politicians to vilify the military and we, thank to Article 88 of the UCMJ, are often all too silent in defending the truth...that it is CONGRESS, and the PRESIDENT, not the military, that says gays can't serve.

Again...your results may vary, but I have NEVER seen a good sailor who wanted to stay in kicked under DADT. I have seen commands bend over backwards to retain these sailors, even when everyone knew they were queer as a three dollar bill at an Elton John concert.

Repeal the policy. Treat sex offenders as sex offenders. Stop giving dirtbags an easy way to keep their benefits. And let those who do their job continue to do their job without fear in a time when we are fighting two wars.

---

UPDATE: OK, see what you people have done to my blog? Over 200 comments and all is great .... but are you happy now? If you haven't seen the add on the right - well, I saved URR the trouble and did a screen-cap. Click here. And no, I didn't pick it - google adsense did. If I did, there would be more chest hair.

FWIW - Byron saw it first.