2 OutlineThe Basics of DADT RepealHistorical ContextArmy Guiding PrinciplesOverview of Policy Changes and ConsiderationsTop 10 Things to Know About DADT RepealDiscussion
3 The Basics of DADT Repeal What will change after repeal of DADT?Statements about sexual orientation or lawful acts of homosexual conduct will no longer be a bar to military service.Soldiers will no longer be separated solely on the basis of legal homosexual acts; statements that they are gay, lesbian or bisexual (GLB); or marriage (see DOMA) to a person of the same sex.What can you expect?Sexual orientation will continue to be a personal and private matter.All Soldiers will be held to the same standards. All policies regarding personal/professional conduct, dress/appearance, and harassment will be sexual orientation neutral.For the purpose of benefits, under the Defense of Marriage Act (DOMA), “marriage” is defined as a legal union between a man and woman, and “spouse” refers only to a member of the opposite sex.Repeal will be effective …60 days after The President, SecDef, and CJCS certify that implementation is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention.This slide covers the basics of what will change with the repeal of Don’t Ask, Don’t Tell, what you can expect after the repeal, and when the repeal will be effective.What will change after repeal of DADT?Statements about sexual orientation or lawful acts of homosexual conduct will no longer be a bar to military service.Soldiers will no longer be separated solely on the basis of legal homosexual acts; statements that they are gay, lesbian or bisexual (GLB); or marriage (see DOMA) to a person of the same sex.What can you expect?Sexual orientation will continue to be a personal and private matter.All Soldiers will be held to the same standards. All policies regarding personal/professional conduct, dress/appearance, and harassment will be sexual orientation neutral.For the purpose of benefits, under the Defense of Marriage Act (DOMA), “marriage” is defined as a legal union between a man and woman, and “spouse” refers only to a member of the opposite sex.Repeal will be effective …60 days after The President, SecDef, and CJCS certify that implementation is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention.
4 Historical ContextIn 1993, Congress conducted 12 hearings on the issue of homosexuality in the military, and made this key finding:“The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts 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.”As a result, Congress enacted 10 U.S.C. § 654, which stated that Service Members may be separated by identifying themselves as homosexual by act, statement, or marriage.In order to understand where we are today, let us briefly discuss how we got here. Beginning in the 1920s, the Army established a regulatory framework for barring gay, lesbian, and bisexual Soldiers from service. Additionally, the framework allowed commanders the authority to discharge gay, lesbian, and bisexual Soldiers. Although the regulatory framework changed throughout the 20th century, the outcome did not; gay, lesbian, and bisexual Soldiers were barred from Service and discharged if their sexual orientation became known.The 1992 Presidential election, however, initiated a change in this framework. Subsequent to his election and inauguration, President Clinton directed the Department of Defense to remove questions regarding sexual orientation from future versions of enlistment applications and that the command not ask Soldiers about their sexual orientation. In response to President Clinton’s directives, Congress passed 10 U.S.C. Section 654 (after conducting 12 hearings on the issue in 1993) which directed the Department of Defense to separate Servicemembers for homosexual conduct. In turn, the Department of Defense issued DoD Directive which implemented the statute and created the framework known as Don’t Ask Don’t Tell.With the passage of 10 USC Section 654 and implementation of Don’t Ask Don’t Tell, the sexual orientation of a Soldier became a private matter. However, substantiated gay, lesbian, or bisexual conduct (by ACT, STATEMENT, or MARRIAGE) continued to bar enlistment and was grounds for separation.
5 Historical ContextCongress voted to repeal 10 U.S.C. § 654 (Don’t Ask, Don’t Tell) and the President signed into law on 22 December 2010.Repeal would take effect 60 days after the President, SecDef, and CJCS certify that the following conditions are met:After receipt of the comprehensive review;The Secretary of Defense, Chairman of the Joint Chiefs of Staff and the President certify that the repeal is not inconsistent with military readiness, military effectiveness, unit cohesion and recruiting, and that the implementation of necessary policies and regulations pursuant to the discretion is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.10 U.S.C 654 and Don’t Ask Don’t Tell remained the law until this past December. On December 22nd, President Obama signed the Don’t Ask Don’t Tell Repeal Act. When certain conditions are met in accordance with the Act, 10 U.S.C 654 will be repealed. Upon repeal, sexual orientation will remain a personal and private matter. However, gay, lesbian, or bisexual conduct or orientation will no longer bar entry or provide commanders a basis for discharge.Specifically, the Act states that repeal will take effect 60 days after the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that three conditions are met: one, that they have considered the Department of Defense Comprehensive Review on repealing Don’t Ask Don’t Tell; two, that the Department of Defense has established the necessary policies and regulations to implement repeal; and three, that implementation of those policies and regulations is consistent with military readiness, military effectiveness, cohesion, retention, and recruiting.On January 31st, the Department of Defense published the policies that will implement the repeal. Additionally, this training represents a crucial step in meeting the third requirement for certification.
6 Army Guiding Principles 1. Leadership matters most.2. Standards of conduct apply to everyone regardless of sexual orientation.3. Treat each other with dignity and respect.4. Application of our rules and policies must be sexual orientation neutral.Emphasize our role as professional Soldiers.6. Keep it simple.7. There Is no expectation to change religious or moral views.8. Good order and discipline will be maintained at all times.9. Chaplains have both the right to serve and conduct religious services according to their faith and a duty to perform or provide religious support.10. Stay focused on your mission.The following slide lays out the CSA’s guiding principles for the implementation of the repeal of DADT.1. Leadership Matters Most: Commanders’, senior Noncommissioned officers’, and DA civilian supervisors' leadership and personal commitment to implementation must be visible and unequivocal.2. Standards of Conduct Apply to Everyone Regardless of Sexual Orientation: Our standards of conduct apply equally to all Soldiers regardless of sexual orientation.3. Treat Each Other with Dignity and Respect: Unit strength depends on the strength of each Soldier . We achieve that strength by treating each Soldier with dignity and respect.4. Application of our Rules and Policies Must be Sexual Orientation Neutral: Sexual orientation is considered a personal and private matter. All rules and policies, and the enforcement of those rules and policies, will be sexual orientation neutral.5. Emphasize Our Role as Professional Soldiers: Leaders will emphasize Soldiers’ fundamental professional obligations and the oath to the Constitution and to obey the orders of the President and the officers appointed over them that is at the core of their military service. In the profession of arms, adherence to military policy and standards of conduct is essential to unit effectiveness, readiness, and cohesion.6. Keep it Simple: Education and training should focus on actions and policies needed to maintain the good order and discipline of an effective fighting force.7. There Is No Expectation To Change Religious or Moral Views: Soldiers will not be expected to change their personal views and religious beliefs. They must, however, continue to treat all Soldiers with dignity and respect. 8. Good Order And Discipline Will Be Maintained At All Times: Commanders and supervisors at all levels have the authority and responsibility to maintain good order, discipline and morale within their units. Harassment, bullying, or victimizing of any kind will not be tolerated. 9. Chaplains have both the right to serve and conduct religious services according to their faith and a duty to perform or provide religious support: The existing guidance developed by and for our chaplains, should be reiterated as part of any education and training concerning repeal. These regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and the duty to care for all.10. Stay Focused on Your Mission: Conduct training to minimize disruption on the force to ensure our military mission is not negatively impacted.
7 Policy Changes and Considerations In Summary…All policies dealing with personal/professional conduct and harassment will be applied without regard to sexual orientation.Sexual orientation will not be made a protected class with respect to equal opportunity; the Army will not request, collect, or maintain information about sexual orientation.DOMA prohibits the extension of dependent-related benefits to same-sex partners of Soldiers.Soldiers can name same-sex partners as beneficiaries of Soldier-designated benefits such as Service-members Group Life Insurance (SGLI) and death gratuity.When analyzing benefit eligibility, same-sex partners should be treated the same as an unrelated third party (e.g. girlfriend, boyfriend).Sexual orientation will not bar entry into the Army, Soldiers previously separated under DADT may apply for re-entry, and Soldiers will no longer be discharged because of their sexual orientation.Sexual orientation will not be used as a factor in duty assignments, and Soldiers will not be allowed to request discharge because they are opposed to repeal of DADT.Compensation is not authorized for Soldiers previously separated under DADT.Here’s an overview of how Army policies have changed with the repeal of DADT. Policies are applied without regard to sexual orientation.Sexual orientation isn’t going to be a protected class with regards to equal opportunity.We’re not going to collect information about sexual orientation.While DOMA prohibits same-sex partners of Soldiers from receiving most benefits, Soldiers can name same-sex partners as beneficiaries for certain benefits.Sexual orientation can no longer bar an applicant from entry or reentry into the Army, and Soldiers will not be discharged because of their sexual orientation.Sexual orientation will not be used as a factor in duty and Soldiers who are opposed to the repeal of DADT won’t be allowed to request discharge.Sexual orientation will not be a determining factor in duty assignments.Soldiers previously separated for DADT will not be eligible for compensation.
8 Policy Changes and Considerations Topics we will cover related to policy…Standards of ConductEqual OpportunitySexual Harassment/Sexual AssaultBenefits and BeneficiariesPersonnel Management (Accessions, Discharges, Early Release, Duty Assignments)Claims for Compensation Due to Separation Under DADTCollection of Sexual Orientation DataOur discussion of policy changes and considerations will cover the following topics:- Standards of Conduct- Equal Opportunity- Sexual Harassment/Sexual Assault- Benefits and Beneficiaries- Personnel Management (Accessions, Discharges, Early Release, Duty Assignments)- Claims for Compensation Due to Separation Under Don’t Ask, Don’t Tell- Collection of Sexual Orientation Data
9 Policy Changes and Considerations Standards of Conduct (UCMJ)The UCMJ is the foundation for good order and discipline and the vehicle for enforcement of proper conduct.The UCMJ remains unchanged.Article 125:- Forcible Sodomy- Consensual SodomySodomy involving minorsApplication of the UCMJ must always be without regard to sexual orientation.First, I will discuss how repeal affects personal and professional conduct. In reality, repeal does not change the policies governing personal and professional conduct in any way. How commanders apply policies pertaining to conduct, however, is key. Bottom line, commanders should apply all statutes and policies regulating personal and professional conduct without regard to sexual orientation.It goes without saying that any discussion about personal and professional conduct begins with the Uniform Code of Military Justice. The UCMJ is the foundation for good order and discipline and the vehicle commanders use to enforce standards. At this moment, the UCMJ and Manual for Courts Martial remains unchanged.It is important to understand, however, the current status of Article 125, Sodomy. Unrelated to Don’t Ask Don’t Tell, the US Supreme Court, in United States versus Lawrence, held that private, consensual sexual activity, to include consensual sodomy, is a protected liberty under the 14th Amendment. Subsequently, the Court of Appeals for the Armed Forces (CAAF) echoed this holding in United States v. Marcum. The CAAF did not, however, completely close the door on charging consensual sodomy if the conduct was prejudicial to good order and discipline or service discrediting. An example of this would be consensual sodomy in public, clearly a service discrediting act. As a result, consensual sodomy, regardless of sexual orientation , should not be charged unless a fact exists that makes it prejudicial to good order or service discrediting. Sexual partners who are the same gender is not a fact that would make consensual sodomy prejudicial to good order or service discrediting.More importantly, application of the UCMJ must always be without regard to sexual orientation.The repeal of Don’t Ask Don’t Tell does, however, raise certain issues or possible points of friction with respect to crimes punishable under the UCMJ. An example of one such crime is Article 134, Adultery. One of the elements of adultery is sexual intercourse. Currently a married Soldier that committed gay, lesbian, or bisexual acts would not violate Article 134, Adultery. Commanders must be aware that not all crimes within the UCMJ are sexual orientation neutral.
10 Policy Changes and Considerations Standards of Conduct (Displays of Affection)There is no codified Public Display of Affection (PDA) policy.Standards for personal and professional conduct apply uniformly without regard to sexual orientation.Orders establishing local PDA standards and enforcement of such standards should always be sexual orientation neutral.Just as the repeal of Don’t Ask Don’t Tell has not affected the UCMJ and its application, it also has not affected other customary and regulatory standards that apply to Soldiers. Displays of affection is one category of conduct unaffected by the repeal, and it is the first category I will discuss.The Army does not have a codified standard governing displays of affection nor does the Army intend to establish a codified policy because of the repeal. Instead the standards for displays of affection have always been the customs of the Army and will continue to be the customs of the Army. What does that mean? Public displays of affection while in uniform are customarily discouraged. However, even some exceptions to that general custom apply. For example, it is customary and permissible for a Soldier to kiss his or her spouse at a promotion ceremony.The key, going forward, is that enforcement of customs pertaining to displays of affection and any local policies on displays of affection must be sexual orientation neutral. Simply put, if a leader would not correct a male Soldier for kissing his girlfriend at the PX, then that same leader should not correct a male Soldier for kissing his boyfriend at the PX.
11 Policy Changes and Considerations Standards of Conduct (Appearance)AR prescribes the standards for grooming and wear of Army uniforms.The only basis for differences in appearance within AR continues to be gender.There is no codified standard addressing civilian clothes.Orders establishing local appearance standards should always be sexual orientation neutral.Enforcement of appearance violations should always be sexual orientation neutral.Another area of conduct unaffected by the repeal is the Army’s standards on appearance. Army Regulation contains the Army’s standards on grooming and the wear of Army uniforms and there are no changes to this regulation because of the repeal. Therefore, all male Soldiers will continue to adhere to the appearance standards for men prescribed in AR 670-1, and all female Soldiers will continue to adhere to the appearance standards for women prescribed in ARFurthermore, the Army has no codified civilian clothes standard for Soldiers, and it does not intend on establishing a standard because of repeal. As with Displays of Affection, the key in implementing the repeal of Don’t Ask Don’t Tell is understanding that any local policies establishing standards of dress and enforcement of any violations of local policy or AR must be sexual orientation neutral.
12 Policy Changes and Considerations Standards of Conduct (Fraternization)AR prescribes the Army’s policy on fraternization.The repeal of DADT will not change the Army’s policy on fraternization.Application of fraternization rules should always be sexual orientation neutral.The Army’s fraternization policy has always been sexual orientation neutral.Another area of conduct unaffected by the repeal is the Army’s fraternization policy. Army Regulation contains the Army’s standards on fraternization. At this time, there are no changes to the fraternization policy because of the repeal. The rationale behind this lack of policy change stems from the fact that DoD and the Army’s policy on fraternization has always been sexual orientation neutral. For example, intimate relationships between officers and enlisted, regardless of sexual orientation, have always been prohibited under the current policy and will continue to be prohibited. The repeal of Don’t Ask Don’t Tell does not necessitate a change in this arena of the law.
13 Policy Changes and Considerations Standards of Conduct (Hazing)AR prescribes the Army’s policy on hazing.The repeal of DADT does not change the Army’s policy on hazing.Application of hazing rules must always be sexual orientation neutral.The Army’s hazing policy has always been sexual orientation neutral.The final aspect of personal and professional conduct I will address is hazing. As I am sure you have already guessed, this is another area of conduct unaffected by the repeal. Army Regulation contains the Army’s standards on hazing and there are no changes to the hazing policy because of the repeal. Once again, the Army’s policy on hazing has always been sexual orientation neutral.The proscription on hazing, however, may be crucial in the successful implementation of the of Don’t Ask Don’t Tell. If Soldiers cause other members to be the subject of ridicule because of one’s sexual orientation, it may be a violation of the Army’s hazing policy. Once again, the key for leaders is ensuring that the application of the policy is sexual orientation neutral.
14 Policy Changes and Considerations Equal Opportunity (EO)AR prescribes the Army’s policy on equal opportunity.DoD and DA policies on EO have always prescribed that all Soldiers be evaluated on individual merit.Protected classes may utilize the Army’s EO system for complaints of unlawful discrimination.Sexual orientation is not a protected class in the same category as race, color, religion, gender, and national origin.However, DA now expressly prohibits sexual orientation from being a factor in accession, promotion, or other personnel decision-making.Soldiers may address complaints of discrimination based on sexual orientation by reporting it to the chain of command or the Inspector General.The addition of sexual orientation as a protected class would contradict a key component of DADT repeal implementation.Another area of our practice impacted by the repeal of DADT is Equal Opportunity.The fundamental guideposts of the Army’s Equal Opportunity policy remain unchanged. For instance, the guiding Equal Opportunity principle that all Soldiers be evaluated on individual merit remains. Additionally, the classes protected from unlawful discrimination; race, color, religion, gender, and national origin; remain unchanged. Thus, DoD and the Army will not make sexual orientation a protected class.Despite no changes to the protected classes, DoD and the Army do expressly prohibit sexual orientation from being a factor in accession, promotion, or other personnel decision-making. Individual merit should be the only factor in those decisions.If a Soldier believes they are the victim of discrimination that involves one of the protected classes, that Soldier may file a complaint in the Equal Opportunity system. Complaints of discrimination that do not involve a protected class are reported to the chain of command or Inspector General. For example, a Gay, Lesbian, or Bisexual Soldier singled out by his or her rater because of sexual orientation may report the conduct to his or her chain of command or the Inspector General.
15 Policy Changes and Considerations Sexual Harassment/Sexual AssaultAR (Ch. 7 and 8) covers the Army’s Sexual Harassment /Assault Response and Prevention (SHARP) programThe repeal of DADT does not change the Army’s SHARP policy.Application of SHARP rules must always be sexual orientation neutral.Any Soldier, regardless of sexual orientation, may use the existing system for complaints of sexual harassment or sexual assault.Sexual Assault Response Coordinators (SARC) and SHARP Specialists will assist Soldiers on sexual harassment and sexual assault issues.The Army’s Sexual Harassment policy is also worth discussing at this point, specifically because the policy allows Soldiers to report formal complaints of sexual harassment through the Sexual Harassment /Assault Response and Prevention (SHARP) program.The Army’s SHARP policy is found in AR (Chapters 7 and 8). The repeal of Don’t Ask Don’t Tell has no impact on existing policy.The Army’s Sexual Harassment policy has always been sexual orientation neutral. For example, a male Soldier could violate the policy by creating a hostile work environment for another male Soldier or by soliciting “quid pro quo” favors from another male Soldier. Such conduct violated the Sexual Harassment policy before repeal and will still violate the Sexual harassment policy after repeal.Additionally, any victim of Sexual Harassment or sexual assault had and still has the right to file a formal complaint using SHARP channels. Sexual Assault Response Coordinators (SARC) and SHARP Specialists will assist Soldiers on sexual harassment and sexual assault issues.More importantly, I cannot stress enough that application of the policy must always be sexual orientation neutral.
16 Policy Changes and Considerations Benefits and Beneficiaries (1 U.S.C § 7)DOMA, 1 U.S.C. § 7, defines the following terms for the purposes of Federal statute, regulation, or ruling:- “Marriage” only means a legal union between a man and woman;“Spouse” only refers to a member of the opposite sex.10 U.S.C § 1072, 37 U.S.C. § 401, and the Joint Travel Federal Regulation define “dependent” with language that triggers DOMA.DOMA prohibits DA from recognizing married or civil union partners of GLB Soldiers as “dependents.”DOMA will not prohibit GLB Soldiers from receiving benefits for selected dependents other than a spouse (e.g., adopted children).It is also important for us to understand what effect the repeal of Don’t Ask Don’t Tell will have on the various benefits DoD and the Army offer to Soldiers. For that, we must be familiar with a federal statute known as the Defense of Marriage Act. A portion of the DOMA, found in Title 1, United States Code, Section 7, defined the terms “marriage” and “spouse” for the purposes of federal statutes, regulations, and rulings. Specifically, it defines marriage only as a legal union between man and woman. It also defines spouse only as referring to a member of the opposite sex.This means every federal statute, regulation, or ruling that uses the terms “marriage” or “spouse” refers to ONLY to a relationship between one man and one woman. These definitions are important because of the benefits provided to Soldiers by the Army.All Soldiers receive considerable benefits, but the Army also provides additional benefits to Soldiers’ “dependents;” health care, a larger housing allowance, and post exchange privileges for dependents are just a few. If a Soldier has a dependent, then the Soldier and the dependent are entitled to those extra benefits. Therefore, the definition of dependent becomes critical. A dependent of a Soldier or former Soldier is:a. A Spouse of a Soldier; b. an unremarried widow or widower of a Soldier ; c. an unremarried former spouse of a retirement eligible Soldier ; d. a Soldier’s child under 21, or under 23 if a full-time student, or who is incapable of self-support (physical incapacity); e. a parent or parent-in-law (including in loco parentis) residing in the household and dependent on the Soldier for over one-half of their support; f. an unmarried person under 21, or under 23 if a full-time student, or who is incapable of self-support (physical incapacity), who is in the legal custody of the Soldier and has been for at least 12 consecutive months.That is where the statutes and regulations that establish those dependent benefits and DOMA intersect. Title 10, United States Code, Section 1072; which establishes medical benefits; Title 37, United States Code, section 401, which establishes pay and allowances; and the Joint Federal Travel Regulation, which covers additional travel allowances; all define “dependent” with the term “spouse.” Thus, the Army cannot extend dependent related benefits to Soldiers with married or civil union same sex partners.In analyzing benefits eligibility, you must always consider a same sex partner of a Soldier - even if their partnership was legalized in a jurisdiction that recognizes same sex marriage or civil union - as a third party rather than a dependent. The analysis of benefits would change however if any Soldier has a dependent that meets the definitions found in 10 U.S.C. 1074, 37 U.S.C. 401 and the JFTR. For example, a minor child meets the definition of dependent for those benefits. Therefore any Soldier, including a gay, lesbian, or bisexual Soldier, who is the legal parent or guardian of a minor child can receive the additional benefits provided to dependents.
17 Policy Changes and Considerations Benefits and Beneficiaries (Soldier Designated)All Soldiers can still extend some benefits provided by the Army to third parties:SGLI BeneficiaryDeath Gratuity Beneficiary (DD 93)Survivor Benefit Plan Beneficiary (spouse or child while living/ third party may be designated in retirement)- G.I. Bill Death Beneficiary- Final Settlement of Accounts Beneficiary- Thrift Savings Plan Beneficiary- Wounded Warrior Act Designated CaregiverPost-Vietnam Era Veterans Assistance Program BeneficiarySame-sex partners should be treated the same as an unrelated third party (e.g. girlfriend, boyfriend) for benefits eligibility analysisAs I already mentioned, all Soldiers receive considerable benefits because of their service in the Army. With some of the service related benefits, Soldiers, regardless of marital status, have always been able to designate any party as a beneficiary. DOMA has never impacted these benefits, and Soldiers can name any third party as the beneficiary. Bottom line, a Soldier with a same sex partner can name the partner as the beneficiary of his or her SGLI and the other benefits listed on this slide.One benefit I would like to discuss in greater detail is the Survivor Benefit Plan. It is important to understand how SBP operates if death occurs on active duty versus when a Soldier elects SBP upon retirement. Soldiers who die on active duty may not have a non-dependent, including a same-sex partner, designated as their Survivor Benefit Plan (SBP) annuitant. Only authorized dependents (subject to DOMA) may be designated as the SBP annuitant when death of a Soldier occurs on active duty.Retired Soldiers may designate an individual who is not a dependent, including a same-sex partner, as a beneficiary for an SBP annuity, provided the designated individual is an insurable interest. The term 'insurable interest' means that the beneficiary has an interest in the continued receipt of financial support from the retiree, whether that expectation is based on a financial contract or other relationship based on blood, marriage or affinity. For example, it could include a same-sex partner, or an agreement by an uncle to pay his nephew's mortgage.
18 Policy Changes and Considerations Benefits and Beneficiaries (A Third Category)A third category of benefits consists of benefits that do not trigger DOMA.However, Services cannot extend these benefits to all Soldiers due to existing regulations.DoD and DA will continue to study existing benefits to determine if they should modify the regulations so that the Services can extend the benefits to all Soldiers.Finally, I will discuss a third category of benefits that does not trigger DOMA in the statutes that created them. Although DOMA is not triggered, many of the regulations extending the benefits to Soldiers do not allow third parties to avail themselves of the benefit or service. For instance, the statutes allowing for legal assistance services and military family housing do not trigger DOMA, but the regulations implementing those benefits currently would not extend them to third parties such as same sex partners. DoD and the Army intend on reviewing these benefits and services to determine if the regulations should be changed to allow all Soldiers to designate a third party who could receive the benefit.As I conclude my discussion on benefits, remember three key points: one, that DOMA will prohibit the extension of dependent related benefits to same sex partners; two, all Soldiers can designate 3rd parties as beneficiaries for some of the benefits of service; and three, in analyzing issues pertaining to benefits for same sex partners, the analysis will be just like an analysis done for a single Soldier attempting to extend benefits to a third party such as a girlfriend, boyfriend, aunt, or uncle.
19 Policy Changes and Considerations Personnel Management (Accessions)Upon repeal, statements about sexual orientation will not bar entry into the Army.All applicants must meet existing entrance standardsSoldiers separated under DADT may apply for re-entry.The Army will waive DD 214 re-entry codes based on DADT, and applications will be considered under existing re-entry standards.We will now discuss the effects of the repeal of DADT on personnel management. This area has undergone the most change due to the repeal of Don’t Ask Don’t Tell. Although it has changed significantly, the changes are straightforward. The first area of personnel management I will discuss is Accessions which includes enlisting and re-entry in the Army.The most significant change is obvious and has already been discussed. Sexual orientation will not bar entry into the Army. Thus, in order to enlist, applicants must meet the already existing entrance standards, minus the past bar on sexual orientation.Additionally, Soldiers separated under Don’t Ask Don’t Tell may apply for re-entry. The Army will waive re-entry codes based on Don’t Ask Don’t Tell, and in order to re-enter, the applicants must meet the already existing re-entry standards. Keep in mind, re-entry is not automatic. For example, a Soldier separated under Don’t Ask Don’t Tell and for misconduct may still be barred from re-entry due to the misconduct.
20 Policy Changes and Considerations Personnel Management (Discharges)Upon repeal, Services may no longer separate under DADT.Soldiers with an approved separation date after the date of repeal will have that separation cancelled.All pending separation actions and investigations under DADT will cease.The Army will discontinue discharge codes used under DADT.The second area of personnel management I will discuss is discharges, specifically involuntary discharges under Don’t Ask Don’t Tell.Upon repeal, the Army may no longer separate Soldiers for GLB conduct or orientation (Statements, acts, or marriage).So what will be done with the situations where the Army has initiated or even approved separation under Don’t Ask Don’t Tell? In those situations where an investigation was initiated or a separation for violating DADT was approved, but the Soldier was not yet actually separated, the Command will cancel and return to duty Soldiers who have an approved separation date that falls after the date of repeal. All other pending actions, for example inquiries, under Don’t Ask Don’t Tell will cease. Finally, the Army will discontinue all discharge codes associated with Don’t Ask Don’t Tell.
21 Policy Changes and Considerations Personnel Management (Early Release)No policy for early discharge based on:Opposition to repealOpposition to serving or living with gay, lesbian, or bisexual SoldiersArmy regulations and policies change frequently. Those changes do not allow Soldiers to void their service obligations.Provision for voluntary discharge remains the same, and is granted only when in the best interest of the Army.The third area of personnel management I will discuss is early release for Soldiers opposed to the policy change.Bottom line, DoD and the Army will not allow Soldiers to request discharge because they are opposed to the repeal of Don’t Ask Don’t Tell. As under current policy, discretionary discharge may only be granted when the military department secretary has determined the early separation would be in the best interest of the Service.It is important to remember that when Soldiers sign a contract with the military, there is no early release provision in the contract for when policies change. In fact, policies and regulations are in a constant state of change during a Soldier’s service in the Army, and the Army has never granted early release due to those changes. During periods of flux, Soldiers must exhibit the professionalism needed to implement change.I do, however, want to highlight one possible issue or point of friction regarding early release. This issue involves chaplains. Commanders need to understand that in order for Chaplains to serve in the Army, they must have an ecclesiastical endorsement. Negating a Chaplain’s endorsement is the prerogative of the endorsing agent, not the chaplain, and it only negates the contract between the chaplain and that endorsing agency, it does not negate the contract with the Army. That contract can only be negated in one of four ways: change endorsement, change branch, retire if eligible, or voluntarily resign. The last two options may not be granted if the chaplain still has a service obligation incurred from schooling, a PCS, etc.Chaplains are encouraged to discuss any issues or conflicts with their commanders, supervisory chaplains, and/or their endorsing agent.
22 Policy Changes and Considerations Personnel Management (Duty Assignments)There is no change to the Army’s current policies with respect to duty assignments.“Needs of the Army.”All Soldiers can make individualized requests for accommodation in assignment.Soldiers assigned to countries that prohibit GLB conduct will adhere to guidance provided by local commanders.Rationale: The Army will not use sexual orientation as a basis or factor in official decision making.The final area of personnel management I will discuss is duty assignments.Duty assignments have and continue to be determined by the “Needs of the Army.” Because sexual orientation should not be used as a factor in decision-making, the repeal of Don’t Ask Don’t Tell will not change that policy.Just as before the repeal, Soldiers can continue to make individualized requests for accommodation during the assignments process- to include requests to be assigned based on the needs of a same sex partner, whether that partner is also in the Army or not. However, assignments officers may not base assignments on sexual orientation, and Soldiers need to understand that ultimately the “Needs of the Army” are the primary determinative factor in assignments.It is possible that Soldiers will be assigned to countries that prohibit GLB conduct. If that is the case, Soldiers will have to be aware of and adhere to guidance published by the local command. (Example: this is similar to a female Soldiers assigned to certain areas, who are advised by their commands to conform to local laws and customs, i.e. covering their heads in public.)Finally, possible issues or points of friction regarding duty assignments brings our analysis back to the Defense of Marriage Act. Because DOMA restricts legally recognized partners of GLB Soldiers from being dependents, the Army will not be able to command sponsor those partners on overseas assignments. For example, the lack of command sponsorship will implicate travel expenses, SOFA protections, and even the required visas the partners will need in order to stay in the host nation. Additionally, DOMA will prevent Gay, Lesbian, and Bisexual Soldiers from receiving consideration as dual military spouses in the assignments process.
23 Policy Changes and Considerations Claims for Compensation Due to Separation Under DADTDoD has not authorized compensation of any type for Soldiers separated under DADT.When the Army separated Soldiers under DADT, it did so under valid law and regulations.The repeal of Don’t Ask Don’t Tell raises issues in but does not significantly impact the areas of claims for compensation and the collection of sexual orientation data.The first area deals with claims for compensation by Soldiers separated under Don’t Ask Don’t Tell. Bottom line, DoD and the Army have not and will not compensate Soldiers separated under Don’t Ask Don’t Tell because at the time, the law and implementing regulations were valid.
24 Policy Changes and Considerations Collection of Sexual Orientation DataThe Army is not authorized to request, collect, or maintain information about sexual orientation—Except:If the information is an essential part of an otherwise appropriate investigation or official action.A Soldier’s sexual orientation is a private matter.The second area deals with the collection of Sexual Orientation Data. By law, the Army collects data regarding the protected classes in the Equal Opportunity Program.As already discussed, DoD and Army policy will not make sexual orientation a protected class. Thus, the Army is not required to collect data on sexual orientation, and in fact, DoD policy prohibits it. The only exception to this prohibition occurs when sexual orientation is an “essential” part of an otherwise appropriate investigation or official action.For example, if sexual orientation is a relevant part of a sexual assault investigation, it would be an essential part of that investigation. Remember, the general rule is that a Soldier’s sexual orientation is a private matter.
25 DADT Regulations Updates (1 of 2) NUMBERREGULATIONPROPONENTINPUTPCT COMPLETEDRAFTSTAFFAR 27-1Judge Advocate Legal ServicesOTJAG100AR 27-3The Army Legal Assistance ProgramARPatient AdministrationG-1, DMPMARStandards of Medical FitnessARSeparation of OfficersUSARAREnlisted Administrative SeparationsARU.S. Army Reserve Reenlistment ProgramAR 145-1Senior Reserve Officers Training Corps Program Organization, Administration, and TrainingAR 195-2Criminal Investigation ActivitiesARUnited States Military AcademyUSMAAR 350-1Training and Leader DevelopmentG-3/5/7ARPersonnel Security ProgramG-2ARLeaves and PassesG-1, DAPE-PRARMilitary AwardsG-1, HRCAROfficer Transfers and DischargesARArmy Command PolicyG-1, DAPE-HRARIdentification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV)AR 601-1Assignment of Enlisted Personnel to the U.S. Army Recruiting Command Active and Reserve Components Enlistment ProgramThe following two slides show the regulations that are undergoing revision pending the repeal of Don’t Ask, Don’t Tell.I want to emphasize that the changes to these regulations will not occur until the effective date of repeal.**NOTE: Aligned with DRAFT EXORD Annex B (V3)7 FEB 11 (v1)
26 DADT Regulations Status (2 of 2) NUMBERREGULATIONPROPONENTINPUTPCT COMPLETEDRAFTSTAFFARActive and Reserve Component Enlistment ProgramG-1, DMPM100ARMilitary Entrance Processing Station (MEPS)USMC, USN, USAFARArmy Retention programARInitial Entry/Prior Service Trainee Support (RCS MILPC-17(R1))G-1, HRCARArmy Education Incentives and EntitlementsARSeparation Program Designator (SPD) CodesARProcessing Personnel for SeparationUSARARActive Duty Enlisted Administrative SeparationsDA PAMMilitary Personnel Office Separation Processing ProceduresNGREnlisted Personnel ManagementARNG*NGREfficiency and Physical Fitness BoardsNGB**NOTE: Aligned with DRAFT EXORD Annex B* Policy memorandum to be issued pending receipt of Army Directive7 FEB 11 (v1)
27 Top 10 Things to Know About DADT Repeal Accessions & Separations Policies.Standards of Conduct Apply Equally to Everyone.Personal Privacy.Moral and Religious Concerns/Freedom of Speech.Benefits.Equal Opportunity.Duty Assignments.Medical Policy.Release and Service Commitments.Collection and Retention of Sexual Orientation Data.This slide contains the “Top 10 Things to Know About the DADT Repeal.”1. Accessions & Separations Policies: We will no longer separate Soldiers solely on the basis of legal homosexual acts, a statement that a Soldier is homosexual or bisexual, or marriage to a person of the same sex. Statements about sexual orientation or lawful acts of homosexual conduct will not be a bar to military service or admission to any accession program. Sexual orientation will continue to be a personal and private matter.2. Standards of Conduct Apply Equally to Everyone: All Soldiers will be held to the same standard of conduct. All members are responsible for upholding and maintaining high standards of the U.S. Military at all times and in all places.Personal Privacy: Commanders may not establish practices that physically segregate Soldiers according to sexual orientation. Commanders do have the discretion to alter billeting assignments to accommodate privacy concerns of individuals on a case-by-case basis where it is in the interest of maintaining morale, good order and discipline, and is consistent with performance of the mission.4. Moral and Religious Concerns/Freedom of Speech: There will be no changes regarding any Soldier’s free exercise of religious beliefs, nor are there any changes to policies concerning the Chaplain Corps and its duties. The Chaplain Corps’ First Amendment freedoms and its duty to care for all will not change. Soldiers will continue to respect and serve with others who may hold different views and beliefs.5. Benefits: There will be no changes to eligibility standards for military benefits and services. The Defense of Marriage Act (DOMA) prohibits the Federal Government from recognizing any same-sex marriage, so same sex partners do not qualify as dependents for many military benefits and services. However, a same-sex partner should be treated the same as an unrelated third party (e.g. girlfriend, boyfriend). All Soldiers will continue to have various benefits for which they may designate any beneficiary regardless of relationship.6. Equal Opportunity: Sexual orientation will not be placed alongside race, color, religion, sex and national origin as a class under the Military Equal Opportunity (MEO) Program and therefore will not be dealt with through the MEO complaint process. All Soldiers, regardless of sexual orientation are entitled to an environment free from personal, social, or institutional barriers that prevent Soldiers from rising to the highest level of responsibility possible. Harassment or abuse of any kind, include that based on sexual orientation, is unacceptable and will be dealt with through command or inspector general channels.7. Duty Assignments: There are no changes to assignment policy. All Soldiers will continue to be eligible for world-wide assignment without consideration of sexual orientation. Soldiers assigned to duty, or otherwise serving, in countries in which homosexual conduct is prohibited will abide by the guidance provided to them by their local commanders.8. Medical Policy: There are no changes to existing medical policies.9. Release and Service Commitments: There will be no new policy to allow for release from service commitments for Soldiers opposed to repeal of DADT or to serving with gay or lesbian Soldiers.10. Collection and Retention of Sexual Orientation Data: Sexual orientation is a personal and private matter. Commanders will not request, collect, or maintain information about the sexual orientation of Soldiers.*THE EXACT EFFECTIVE DATE OF REPEAL WILL BE WIDELY DISTRIBUTED. UNTIL THEN, CURRENT POLICIES REMAIN IN EFFECT.
29 (Selected FAQs and Vignettes) Back-Up(Selected FAQs and Vignettes)
30 Frequently Asked Questions Will Soldiers honorably discharged under DADT be allowed to reenter the Army?All honorably discharged Soldiers have an equal opportunity to apply for reentry. The Army will determine re-accession based on need and a number of other factors, but sexual orientation will not be a factor. (Support Plan for Implementation, Appendix D, Q3)What education will be required for Soldiers and their families when repeal occurs?Soldiers will be informed of the change in policy and expectations for behavior. Members involved in certain functions (e.g., administrative, legal or investigative) may receive additional education focused on specific changes to their specialty. Family members will be informed of the changed policy and advised where to go to seek any specific information they need. Further guidance is available from the chain of command, and Army policy staff, lawyers, chaplains and medical personnel. (Support Plan for Implementation, Appendix D, Q17)
31 Frequently Asked Questions What is the changed policy on sexual orientation in the military?Soldiers will not be involuntarily separated for lawful homosexual conduct. Sexual orientation remains a personal and private matter. Sexual orientation and lawful homosexual conduct (statements, acts or same-sex marriage) are not a basis for separation, reassignment or special consideration. Soldiers may inform others of their sexual orientation at their own discretion. The Army will not ask Soldiers to identify their sexual orientation. The Army will not collect or maintain data on an individual’s sexual orientation. (Support Plan for Implementation, Appendix D, Q1)Does the changed policy apply equally to all Active, Reserve and Guard components?Yes. DoD policy on sexual orientation applies equally to all members of the Active, Reserve and National Guard Components. (Support Plan for Implementation, Appendix D, Q10)
32 Frequently Asked Questions Will the Army establish a new category of early release from service commitments for Soldiers based on moral, religious or other objections to the repeal of DADT?No. The Army does not permit the early discharge of Soldiers based upon their opposition to the repeal of any new policy. This includes DADT or objection to serving with or living in the company of any Soldier. Existing DoD regulations allow Soldiers with a service commitment to request early, voluntary discharge under their Service Secretary’s plenary authority. Granting these types of requests is at the discretion of the Service Secretary and is granted only when the early separation would be in the best interest of the Army. Commanders retain their current authority under existing Army personnel management policies to assist personnel within their units who desire to separate from the Army when in the best interest of the Army, the unit and/or the individual in question. Soldiers are advised to talk to their chain of command and/or seek legal assistance to ensure they understand the available options within the Army for pursuing separation for any reason. (Support Plan for Implementation, Appendix D, Q8)
33 Frequently Asked Questions How will the military handle discrimination towards gay, lesbian and bisexual Soldiers?Unlawful discrimination against any individual or group is unacceptable. General military equal opportunity (EO) policy requires the promotion of “an environment free from personal, social or institutional barriers that prevent Soldiers from rising to the highest level of responsibility possible” and prohibits the evaluation of Soldiers on bases other than “individual merit, fitness and capability.” Complaints regarding harassment or discrimination based on sexual orientation are dealt with through the chain of command, the Inspector General (IG) and other means established by the Army. Criminal harassment should be referred to appropriate law enforcement agencies for investigation. (Support Plan for Implementation, Appendix D, Q16)
34 Frequently Asked Questions Are there any new restrictions on duty assignments or employment?No. There will be no special treatment or special arrangement for the assignment or employment of gay, lesbian and bisexual Soldiers. In these matters, all Soldiers will be considered equally regardless of sexual orientation. (Support Plan for Implementation, Appendix D, Q11)How will repeal of DADT affect recruitment and retention policies?If otherwise qualified, individuals may join and serve in the Army without regard to sexual orientation. Sexual orientation is not a factor in recruitment or retention in the Army, and the Department of Defense does not have sexual orientation targets or quotas for recruiting. (Support Plan for Implementation, Appendix D, Q2)
35 Frequently Asked Questions Does repeal affect standards of conduct?Standards for personal and professional conduct apply uniformly without regard to sexual orientation. Soldiers will continue to conduct themselves consistent with the law and with Army customs and traditions. Soldiers are expected to conduct themselves professionally at all times. Unprofessional behavior by any Soldier that fails to meet standards of conduct should be corrected by explanation, counseling, administrative action or legal action depending on the nature, severity or repetition of the offense. Sexual misconduct of any kind is inconsistent with our values and will be dealt with swiftly and severely. Harassment or violence of any kind between Soldiers will not be tolerated.
36 Frequently Asked Questions What is the impact of repeal on Family Programs?Impact on family programs is dependent on the definition of “family member.” Military family working definition (from draft DoDI , Military Family Readiness Systems) states: “group composed of one Soldier and such Soldier’s dependents, two married Soldiers or two married Soldiers and such Soldiers’ dependents. To the extent authorized by law and in accordance with Army implementing guidance, the term may also include other nondependent family members.”With respect to Family Readiness Groups (FRGs), anyone interested in providing assistance to Soldiers and their Family members can join an FRG. This includes but is not limited to:- Soldiers- RelativesSpouses- Retirees from any serviceChildrenEmployees- Friends- Community members
37 Frequently Asked Questions How will DADT policy information be disseminated to military families?DADT repeal education information materials will be posted on the following websites that provide timely, accurate information to military families:• Military OneSource (MOS)• Military HOMEFRONT (MHF)• Military Service specific Family Support websites• Family Matters Blog• Appropriate Facebook and Twitter pagesThe Deputy Assistant Secretary of Defense for Military Community and Family Policy will provide links to DoD DADT policy change information to the National Military Family Association (NMFA) and other non- government offices supporting military families.
38 Frequently Asked Questions Does repeal of DADT affect benefits for partners of gay, lesbian and bisexual Soldiers?GLB Soldiers are eligible for the same benefits as any single Soldier. For example, any single Soldier may extend to someone of their choosing benefits such as notification instructions on their DD Forms 93, Record of Emergency Data (RED), and may list the designated individual as an SGLI beneficiary. The Department of Defense is examining other benefits that may be included in this set.Context: Under the Defense of Marriage Act (DOMA), the Federal Government defines marriage as a legal union between one man and one woman as husband and wife. The word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Under DOMA, married/spouse benefits cannot be extended to an unmarried partner, to include same-sex partners. (Support Plan for Implementation, Appendix D, Q5)
39 VignettesSITUATION: You are the Noncommissioned Officer in Charge at a high tempo recruiting office. Your top notch, high performing recruiter who has served in the military for 15 years asks to meet with you. Due to his personal religious beliefs, he tells you he cannot process an outstanding applicant who voluntarily states he is gay.Issue: Accessions and Recruiting Policy. What actions should the NCOIC take? Has the Soldier committed misconduct?Discussion: Normally, counseling and education should be your first course of action. As his supervisor, you counsel him on the new policy, informing him that sexual orientation is not a bar to military service, and his duty is to recruit the best qualified applicants within the enlistment standards set by the Service. Due to the Soldier’s stated religious concern, you may suggest the Soldier meet with the chaplain or another spiritual advisor. If, the recruiter continues to refuse to process an otherwise qualified recruit, he could be subject to disciplinary or adverse administrative action. However, if the recruiter’s performance and professionalism are otherwise high, and he is able to carry out assigned duties but still cannot resolve the conflict with his personal beliefs, the NCOIC could work with the chain of command to explore their available options to include possible reassignment. In all situations, leaders are expected to enforce standards and correct behaviors that undermine unit cohesion. Positive leadership with a focus on professional obligations to uphold the policy while recruiting the best qualified applicants should be reinforced. Soldiers are expected to obey lawful orders and could be subject to discipline or adverse administrative action if they refuse orders, even if such refusal is based on strong, sincerely held, moral or religious beliefs.
40 VignettesSITUATION: You are the Noncommissioned Officer in Charge at a high tempo recruiting office. A top notch, high performing recruiter has been doing a good job for the past couple of months after your discussion with him about DADT. He requested a reassignment but it was denied. The recruiter asks to see you and informs you that while he appreciates how the situation was handled, he has tried but he cannot resolve his personal beliefs with the repeal of Don’t Ask, Don’t Tell. He has two years remaining on his current enlistment and wants to know how he can request an early separation.Issue: Release from Service Commitments. What actions should the NCOIC take? Can the recruiter be released early from his service commitment?Discussion: The Army does not permit the early discharge of Soldiers based upon their opposition to a new policy. This includes a repeal of Don’t Ask, Don’t Tell. “Any Soldier may request early discharge at any time. However, the Army will only approve in cases where it is in the best interest of the Army."
41 VignettesSITUATION: An applicant comes into a recruiting station and says that he would like to enlist. In accordance with Army policy, the recruiter does not ask any questions about the applicant’s sexual orientation; however, the applicant reveals of his own accord that he is gay.Issue: Accessions and Recruiting Policy; Collection and Retention of Sexual Orientation Data. What should the recruiter do after hearing the applicant’s statement?Discussion: Applicants will not be asked or required to reveal their sexual orientation during the accession process. If an applicant comes into a recruiting office and volunteers a statement that he or she is gay or lesbian, the recruiter should explain to the applicant that sexual orientation is considered a personal and private matter, and the comments about their sexual orientation is not part of administration and will not be used in their application into the Army. No Soldier is required to declare their sexual orientation. The recruiter should continue to administer the application unless the applicant is otherwise ineligible for service in the military.
42 VignettesSITUATION: A Lieutenant complains to her immediate supervisor that she believes the reason for her non-selection to a much-desired school was due to her sexual orientation. The supervisor informs the Soldier that the panel used for the selection process had no way of knowing her orientation, but he would check into the situation and get back to her. After an informal inquiry of the panel members, the supervisor concludes that the selection process used was fair and equitable. The Soldier is still not satisfied and wants to know what other course of action she can take. You refer her to the Commander who understands the Soldier has a right to redress suspected wrongs in the selection process, but is unsure if this is a matter for the Equal Opportunity Advisor (EOA), the IG or the chain of command.Issue: Equal opportunity. The commander wonders if this is an issue under the Military Equal Opportunity (EO) Program, the Inspector General (IG), or something the chain of command should be made aware of to determine if the selection board acted appropriately.Discussion: Soldiers should be evaluated only on individual merit. The IG and commanders work allegations of unfair treatment not associated with EO on a regular basis. The supervisor’s attempt to resolve the complaint.
43 VignettesSITUATION: A Soldier requests emergency leave after receiving a Red Cross message concerning the critical condition of his same-sex partner.Issue: Benefits. Is the Soldier eligible for Emergency Leave?Discussion: The Soldier may be eligible for emergency leave. The sexual orientation of the Soldier’s partner has no bearing on the decision. DoDI states that emergency leave may be appropriate in the following circumstance: the Soldier’s failure to return home places a severe or unusual hardship on the Soldier, his or her household or immediate family. Commanders may grant up to 30 days of emergency leave. The Commanding Officer should meet with the Soldier to obtain information about the emergency and verify that the Soldier’s presence can resolve or alleviate the situation. If in doubt, the Commander should seek legal advice and consult the chain of command. If circumstances and the military mission warrant granting emergency leave, the Commanding Officer should ensure swift processing of the request. If the situation does not fall within the guidelines of emergency leave and the mission will not be unacceptably impacted, every attempt should be made to resolve the situation swiftly and compassionately through other authorized alternatives. Considerate, professional understanding is the humane approach to granting leave requests, regardless of the situation or circumstances.Some points of clarification on this vignette:The Soldier may be eligible for emergency leave.The sexual orientation of the Soldier’s partner has no bearing on the decision.Army policy provides for Soldiers to be authorized emergency leave for up to 30 days for emergency situations within the immediate family or if the Soldier is affected personally by a disaster (for example, hurricane, tornado, or flood) when severe or unusual hardship would be encountered if the Soldier failed to return home. Immediate family is:(1) Parents, including stepparents.(2) Spouse.(3) Children, including stepchildren.(4) Sisters, including stepsisters.(5) Brothers, including stepbrothers.(6) Only living blood relative.(7) A person in loco parentis (one who stood in place of a parent to the Soldier).Army policy is being revised to allow for emergency leave under the following circumstances:Army policy states that to generate an emergency leave situation, a family problem must impose important responsibilities on the Soldier that must be met immediately and cannot be accomplished from his or her duty station or by any other individuals or by other means. A person who is not from the Soldier’s immediate family, including a same sex partner, who becomes critically ill or incapacitated, may create a severe or unusual hardship which would warrant approval of emergency leave. Two examples are, if a person who is not from the Soldier’s immediate family is the sole guardian of the child or stepchild of a Soldier (stationed away from their child) and that person becomes ill or incapacitated and can no longer provide care for the child, emergency leave may be considered. A second example is if the illness or incapacity of a person who is not from the Soldier’s immediate family becomes a factor that causes a disaster (for example, hurricane, tornado, or flood) to impose a severe or unusual hardship upon a Soldier if he or she failed to return home, emergency leave may be considered.The Commanding Officer should meet with the Soldier to obtain information about the emergency and verify that the Soldier’s presence can resolve or alleviate the situation. If in doubt, the Commander should seek legal advice and consult the chain of command. If circumstances and the military mission warrant granting emergency leave, the Commanding Officer should ensure swift processing of the request. If the situation does not fall within the guidelines of emergency leave and the mission will not be unacceptably impacted, every attempt should be made to resolve the situation swiftly and compassionately through other authorized alternatives. Considerate, professional understanding is the humane approach to granting leave requests, regardless of the situation or circumstances.
44 VignettesSITUATION: You are the administrative chief of a unit personnel office. A newly commissioned Lieutenant reports to the unit with the expectation of starting his BAH at the “with dependent” rate. He informs you that he got married while executing PCS orders. He presents his marriage certificate. While reviewing the documents, you notice the Soldier was married to his same-sex partner in Vermont where same-sex marriage is legal. The newly-reported member informs you he thought he would receive BAH at the “with dependent” rate once DADT was rescinded.Issue: Benefits. What entitlements are available to same-sex partners?Discussion: The Defense of Marriage Act (DOMA) currently recognizes only opposite-sex marriages. Therefore, a Soldier cannot claim dependency for a same-sex partner, for BAH purposes. You inform the Lieutenant that he is not entitled to BAH at the “with dependent” rate based on a marriage to a same-sex partner. However, if the Soldier has a qualifying dependent such as a dependent child, then he is eligible for BAH at the “with dependent” rate. The question of benefits for unmarried partners is being studied by the DoD at this time. For further explanation of the law and current entitlements available to the Soldier and his family, refer the Lieutenant to the Legal Office.
45 VignettesSITUATION: You are the Executive Officer of your unit. While shopping at the local mall over the weekend, you observe two junior male Soldiers assigned to your unit and in civilian clothes kissing and hugging in the food court.Issue: Standards of Conduct. Is this within standards of personal and professional conduct?Discussion: If the observed behavior crosses acceptable boundaries as defined in applicable standards of conduct for your unit and the Army, then an appropriate correction should be made. Your assessment should be made without regard to sexual orientation.
46 VignettesSITUATION: A Soldier has been observed entering, leaving and generally “hanging around” a gay bar. The Commander is notified of the observations but isn’t sure what action, if any, she should take.Issue: Standards of Conduct. What should the Commander do? Can she take administrative disciplinary action and charge the Soldier for patronizing a gay bar? Should she conduct a Commander’s inquiry?Discussion: Installation Commanders can place an establishment off-limits for certain reasons, such as known or suspected criminal activity or drug use. An establishment would not be placed off-limits just for catering to gay clientele. Unless the establishment is designated off-limits by the installation Commander or there is evidence of behavior by the Soldier that is counter to Army standards of conduct, there is no prohibition against going to a gay bar. In this case, the Commander should take no action.
47 VignettesSITUATION: A Warrant Officer is watching the local TV news coverage of a gay rights parade when he notices a female Soldier assigned to his unit marching in the parade in civilian clothes, carrying a handmade placard. As the television camera zooms in on the Soldier’s sign, the Warrant Officer can clearly read the handwritten words “Support Gays and Lesbians in the military!” The next morning, he reports the incident to his Commander.Issue: Standards of Conduct. Is this prohibited activity? Should the Commander inquire into what meaning this Soldier had intended to convey by carrying that particular sign in the gay rights parade?Discussion: A Soldier’s participation and carrying a banner or sign in a gay rights activity would not in and of itself constitute misconduct unless the Soldier’s actions are otherwise prohibited or would discredit the military. For example, participating in uniform or while on duty hours would be prohibited unless approved by authorized command authorities. In this case, the Soldier chose to carry a sign that acknowledged positive support for gay and lesbian Soldiers serving in the military. The parade was a local community-sanctioned event and was not a protest or dissident activity prohibited by existing policy. Furthermore, the Soldier was off-duty and in civilian clothes. Participation in the parade as described is within the Soldier’s right of expression and consistent with good order and discipline. However, if there is any doubt about participating in any off-base event, the Commander should contact the SJA for advice.
48 VignettesSITUATION: You are the Command Sergeant Major of a Garrison. A Soldier with sixteen years of service requests to see you about her next assignment. Due to a medical concern of her same-sex partner, she would like to request a base where her partner would have access to the medical care. She states that if she cannot get the care, she intends to turn down her next assignment. She wants to know if she can receive any assignment priority based on the needs of her partner.Issue: Duty Assignments. What actions should the Command Sergeant Major take? Can the Assignment Officer take into consideration the member’s honest acknowledgement concerning her partner and assign her to the desired location? Can the member decline assignment orders without consequences?Discussion: Soldiers are assigned permanent change of station orders based on the needs of the Service. Soldiers can share personal information with assignment personnel for consideration in making assignments. Assignment personnel then make assignments within existing Service assignment policy. In general, a Soldier’s sexual orientation should have no bearing on the assignments process. In this case, the same-sex partner would not qualify the Soldier for assignment priority under existing Army policy. However, the Soldier can provide any information that she is comfortable sharing for consideration. The Soldier could also share her concerns with the Commander who could make an input to the assignment process within existing Service regulations. If the assignment can be made within existing assignment policy and the needs of the Army, then this request should be considered. The Soldier may turn down the assignment and separate if she does not have an existing service commitment that would prevent her from separating. If the Soldier has further questions about assignment priority based on her situation, she should be referred to the legal office.