Tuesday, February 23, 2010

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.

242 comments:

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C-dore 14 said...

Jay, I think that Byron is correct that an additional "protected class" will be created.  It's consistent with the way the service already handles all other minorities.  However, as you note, good leaders will be able to deal with it.  On the other hand the return is that gays will no longer be able to avoid service obligations, such as deployments, merely by announcing their sexual identity.

Andrewdb said...

OAM - while all of the services do that, I think the USMC is particularly successfull in inculcating those values - what's the joke about the Army and Navy are armed services, the AF is a corporation, and the Marines are a religion?  There is a little bit of truth to that.  I would also submit that introducing a lot more of our citizens to DIs might increase the amount of "teamwork" in the general population - not everyone of course, but in general.

Broader service would help in two ways - 1.  It would likely reduce the "preisthood" mentality ie, "guardians of the Constitution," we see what that leads to in other countries and I don't think we want that here.  2.  Look at the number of our elected officials that have actually served.  Tragically low.  Actual experience reduces the glamour (on the right) and the fear (on the left).  Given the numbers of people with actual service today, it is the rare elected official on either side of the aisle that has much personal experience for their opinions re the military - and that isn't good for our politics.  I know this is dangerously close to a "chickenhawk" argument, but I do think broader military experience (or at leasst exposure) would be a good thing.

You will likely say that I haven't mentioned why this is good for the effectiveness of the military, and you are right.  My big concern here is the long term civil-military relationship, yet we somehow managed to win WWII and Korea with a draft (and Vietnam too, if you look only at the military side).  I've strayed far enough from this topic of this thread, enough with my highjacking it.

UltimaRatioRegis said...

OnceAMarine,

Beautifully put.  Yes, written on our souls. 

The current generation of Marines is exquisite.  I have seen them and served with them, and their skill, bravery, forbearance, and espirit is in the finest traditions of the most glorious of our Corps.  There are none finer, and I cannot express the depth of prode to have served among them.

But you are correct.  Marines are always Marines.  They join the Corps for the same reasons as young men did seven decades ago.  To be MARINES.  But they are there very much IN SPITE OF, rather than because of, any influence of the education system, the culture, the values, or the society around them. God bless them.

UltimaRatioRegis said...

<span>OnceAMarine, </span>
<span> </span>
<span>Beautifully put.  Yes, written on our souls.  </span>
<span> </span>
<span>The current generation of Marines is exquisite.  I have seen them and served with them, and their skill, bravery, forbearance, and espirit is in the finest traditions of the most glorious of our Corps.  There are none finer, and I cannot express the depth of pride to have served among them. </span>
<span> </span>
<span>But you are correct.  Marines are always Marines.  They join the Corps for the same reasons as young men did seven decades ago.  To be MARINES.  But they are there very much IN SPITE OF, rather than because of, any influence of the education system, the culture, the values, or the society around them. God bless them.</span>

C-dore 14 said...

OAM, You make your point eloquently.  Military service is not a "right" or even an obligation and it places special demands on those who volunteer for it.  That said, I'm sure that many of our citizens who happen to be gay volunteer understanding those demands and wish only to serve without having to worry that someone will discover their sexual orientation.  I've known several officers, including one flag officer, who weren't in it to make a point or break any barriers but rather to serve their country.  Removing that concern can only be helpful to overall effectiveness.

Like you I've gone back and forth about the concept of compulsory service over the years eventually agreeing with the Royal Navy maxim you quote.  While, as Jay says, national service is "...not to much to ask..." my fear is that the obligation will be watered down to the point that working in a food bank a couple of hours a week will satisfy it.  The result will provide neither the military experience nor the life lessons that its advocates claim.

C-dore 14 said...

Then you must enjoy "Pearls Before Swine" :)

Jay said...

URR -- In spite of?

Many Marines I know are serving/have served because they *value* the culture/values/society around them.  Value it enough to defend it.

Jay said...

CDR S -- wasn't so much interested in amount of air time -- since she is an obvious opponent of the idea, more so hearing from someone who has equally studied the issue as a proponent.  Balance.

UltimaRatioRegis said...

Jay, true enough.  But the society and the culture they defend rarely reciprocates.  Secondary and Higher Education is replete with a loathing of the military and the profession of arms.  I work in it.

C-dore 14 said...

CDR S, I wish you hadn't said anything about the ad.  I was going to complement you on your sense of humor.

OnceAMarine said...

<span><span>C-dore 14</span><span></span><img></img></span>
"That said, I'm sure that many of our citizens who happen to be gay volunteer understanding those demands and wish only to serve without having to worry that someone will discover their sexual orientation.  I've known several officers, including one flag officer, who weren't in it to make a point or break any barriers but rather to serve their country"

I do not doubt the veracity of that statement in the least.  I'm sure at some point that I've served alongside an individual who was gay, though I never knew nor thought much about it.  If any of them happened to be gay they were too honorable to make an issue of it - by honorable I mean that they understood our culture, one where the individual willingly subordinates his own self-interest to the overall interest of his unit.  I've told my own two Midshipman sons the same thing my grandfather and father told me, and that is that a Marine may not be able to preserve his life but he can always preserve his honor.  That much is in every service member's power and that is the wellspring from which everything else must flow.  When this once again becomes our standard and our creed, I believe the majority of these ancillary issues will solve themselves.
<p><span><span></span></span></p>

Philo said...

The Gay Military dating ad on this page is hilarious.

Philo said...

"<span>I’m sure that these folks are perfectly willing to serve but would like to do so without sacrificing their personal desires and on their own terms.<span> "</span></span>
***
Just like so many adulterous straight people. I do find it amazing the number of men and women that cheat on their wives while away from home.  Too bad they can't read the UCMJ.

Philo said...

DM, 
You talk to Oprah?  Why do I think this is just another one of your hyperbolic lies?

Philo said...

Byron,

Then go sweep your porch.

Philo said...

Regis,
"<span>But you are correct.  Marines are always Marines.  They join the Corps for the same reasons as young men did seven decades ago. "</span>
**
Even the gay Marines?

OnceAMarine said...

Philo, acting dishonorably is acting dishonorably.  There's no grey area and no one should receive a pass. 

Philo said...

DB,
"<span>Ahhh... but it does have to do with performance. And I'll say that as a female."</span>
As soon as women face the same performance standards as men, you can bring up performance.

C-dore 14 said...

OAM, You'll get no argument from me on the subject of honor or the service ideal that most of us try to live up to.  

UltimaRatioRegis said...

"<span>Even the gay Marines?"</span>

I dunno Philo-troll, why don't you find them and ask them?  

Byron said...

I believe the FLASH TRAFFIC email I sent Phib had for a subject line, "Oh my God...." :)

UltimaRatioRegis said...

"<span>Actually the stats say that black people shouldn't be in the military based on rates of infection."</span>

Well, troll, funny you should mention that.  The stats say that among the Black community, the rate of infection is extremely high due to risky behavior involving intravenous drug use.  A behavior puts them at risk.  But we don't allow intravenous drug users into the service. 

With gay men, behavior puts them at risk also.  They comprise the VAST preponderance of HIV positive people in the US.

MR T's Haircut said...

HAHAHA  SUCKA!  I PITY THE FOOL!!!

MR T's Haircut said...

HAHAHA  SUCKA!  I PITY THE FOOL!!!

MR T's Haircut said...

Reminds me of the time on cruise when one of our det members starting getting periodicals from Filipina mail order bride services.... one of our guys set him up...

Phib, you have been had

MR T's Haircut said...

I am about lost on this thread.. too much RFI from the trolls and cross talk on the net.. need a card of the Day Phib!

Philo said...

Regis,
Why do you feel the need to insult people?  I just asked a simple question.  I was curious to know if you feel that gay Marines are "exquisite" too, or do you consider the gay Marines "fabulous"?

Philo said...

<span>There's no grey area and no one should receive a pass. </span>
***
Why not?  They're straight, so no one cares what they do in bed.  Dare we cross the line and talk about the aspects of straight sex that are illegal, but most often ignored by the majority of the military?  There are lots of passes given, it just helps if someone is straight.

Philo said...

Once,
<span>"The concept of “rights” echoes time and again in many of these posts.<span>"</span></span>
****
do you believe then that it would be ok to dismiss military members for telling someone that they're christian?

UltimaRatioRegis said...

"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."

Sez so right there in US Code, Trollo

Byron said...

There's a simple method to trimming crosstalk aon the net: the MINUTE you ID a troll, you pocking ignore him. I mean the SOB ain't even exchanging oxygen for CO2 for all you know. It ain't rocket science

Philo said...

99,

Well it appears that no one here can discuss issues without personal attacks.  You can go back to agreeing with each other and discriminating against gay people, I'll leave you to your bigotry.  I do suggest that you make an attempt to talk to gay people in the military (not that they'd be likely to feel safe talking to you), they aren't bad people, and many serve with significant distinction, contrary to the characatures that are conjured to scare people about repealing DADT.  It's unfortunate that in America some people are only willing to fight for the rights of the people they agree with. I believe that DADT will be repealed, it's only a matter of time.  The truly sad part is that the bigoted opinions expressed here will encourage our men and women in uniform to continue to discriminate and undermine the policy change prolonging the agony of the change, just as it was with women, and blacks.  Gay people serve with distinction, stop making them lie to you.  Lead, follow, or get out of the way. Out.

UltimaRatioRegis said...

See ya Philo!  So long and thanks for the ad on the side of the page!

Redeye80 said...

CDR,

It seems the Commandant of the Marine Corps has come out!  He opposes changing the policy.  I guess he will be following Gen Pace to CIDIV. What say ye?

Andrewdb said...

Well, what Gen. Conway actually said (from VOA English Service, the full transcript isn't posted yet):

General James Conway told the House Armed Services Committee he also supports the study plan, but hopes its results are driven by military concerns, rather than political or social ones.

"I would encourage your work, mine and that of the working group to be focused on a central issue, and that is the readiness of the armed forces of the United States to fight this nation's wars," he said. "My concern would be if somehow that central purpose and focus were to become secondary to the discussion because that is what your armed forces is all about."

http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument&orgId=574&topicId=138360025&docId=l:1133547548&start=24

MR T's Haircut said...

I just hate attention whores...

like Curly Bill said in Tombstone... "well bye"

C-dore 14 said...

MTH, It's more like the time our Suppo found out the truth about the "sweet young thing" he picked up on Burgis ("Boogie") Street in Singapore.

C-dore 14 said...

Philo, It's a shame that most of your earlier posts weren't like this one, which is articulate and would have sparked some meaningful discussion.  As it was most of your comments came across as snarky and seemed, to me at least, primarily intended to provoke other posters here.  You succeeded and were branded as a "troll" as a result.  For info, your generalization is wrong about many of those who frequent this site and who (including the host and myself) agree with you that DADT should be repealed.  

ActusRhesus said...

oh yeah. that's exactly the reason.  hence my call of bs.

Redeye80 said...

Here is the quote I was using,
“My personal opinion is that unless we can strip away the emotion, the agendas and the politics and ask, at least in my case, do we somehow enhance the war-fighting capabilities of the United States Marine Corps by allowing homosexuals to openly serve?” Conway said. “We haven't addressed it from the correct perspective. At this point, I think that the current policy works. My best military advice to this committee, to the secretary, and to the president would be to keep the law such as it is.”

Parse all you want, he is against it!  Bully on him.

S/F,
REDEYE

sobersubmrnr said...

CDR Salamander is the balance, he supports repeal.

cdrsalamander said...

Thanks.  As this thread demonstrates - cdrsalamander is not an echo chamber.

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