U. S. Army Homosexual Conduct Policy Don’t Ask, Don’t Tell, Don’t Harass This is an information briefing. The purpose of this briefing is to provide you with information regarding the Army’s Homosexual Conduct Policy.

U. S. Army Homosexual Conduct Policy Implements 10 U.S. Code § 654 Implements DoD Policy AR 600-20, chapter 4-19 Army policy is a balance between the legal prohibition of homosexual conduct and the privacy rights of soldiers In 1993, Congress made a finding that engaging in, attempting to engage in or soliciting another to engage in homosexual acts is grounds for discharge from the military. Congress said that service by those who have a propensity to engage in homosexual acts creates an unacceptable risk to morale, good order and discipline, and unit cohesion. Therefore, the long standing element of military law that prohibits homosexual conduct continues to be necessary in the unique circumstances of military service. It was the sense of Congress that applicants should not be asked about homosexuality as part of the processing of individuals entering into the Armed Forces. Applicants are thus no longer ask about their sexual orientation. DoD issued Policy and training guidance via a series of memorandum following the release of the 1993 Presidential directive and Congressional guidance. The most recent memoranda were issued 12 August 1999. On 26 July 1999, the Secretary of the Army signed Army regulation 600-20, entitled Army Command Policy. Chapter 4-19 defines the Army’s homosexual Conduct Policy. The policy implements section 654 of Title 10, United States Code.

What does the Law Say? “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.” 10 U.S.C. § 654 The Law is found in Title 10, U.S. Code. Section number 654 contains the narrative entitled, “Policy concerning homosexuality in the armed forces.” Title 10 states that military life is fundamentally different from civilian life. The law recognizes that the military is a specialized society and is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

The Law and Army Policy in Everyday Language Don’t Ask, Don’t Tell Homosexual Conduct is: Admission of homosexuality Committing a homosexual act Marrying or attempting to marry a person of same sex Train the Force Recruiting IET Periodic Don’t Ask, Don’t Tell is what the collective policies of Title 10, DoD and Army Command Policy are popularly referred to in reference to homosexual conduct. Don’t Ask, Don’t Tell provides a straightforward summation of all of the laws and policies applicable to homosexual conduct in the Army. Homosexual conduct is defined as an admission of homosexuality, the solicitation of another to engage in a homosexual act or acts, the commission of a homosexual act or acts, or a homosexual marriage or attempted marriage. Participation in any of the above acts is a violation of the Army’s Homosexual Conduct Policy. Soldiers violating homosexual conduct policy are subject to inquiry, investigation and separation from the Army if violation is substantiated. In all cases due process is afforded to the soldier.

What Does ‘Don’t Ask” Mean? Applicants for enlistment will not be asked nor required to reveal their sexual orientation. Applicants for enlistment will not be asked if they have engaged in homosexual conduct. While on active duty, soldiers will not be asked about their sexual orientation or conduct unless there is credible information of homosexual conduct. The policy places certain restrictions on the information the military can gather or request from a soldier. The bullets on this slide describe information not subject to inquiry. Harassment of soldiers for any reason, including sexual orientation, will not be tolerated. Harassment is simply a harsh and covert form of “don’t ask.”

What Does “Don’t Tell” Mean? “Don’t Tell” is the opposite side of the coin from “Don’t Ask.” Soldiers should not disclose or discuss their sexual orientation or conduct. If a soldier admits to being homosexual, the commander will begin the process to determine if credible information exists which would warrant separation. The military has a restriction of the kinds of information it can ask for with regard to homosexual conduct. Soldiers also have a restriction on what they can “tell.” Both Title 10 and Army policy support the understanding that sexual orientation is a private matter. Therefore, soldiers are expected to keep their sexual orientation private. If a soldier chooses to “tell”, (through voluntary disclosure or admission of homosexual conduct), in most instances this disclosure or admission will be considered credible and will result in separation. To harass a soldier into affirming or denying a sexual orientation will not be tolerated in the Army. Such harassment is coercive, abusive and a patent violation of the policy.

What is Credible Information? A statement by a reliable person that a soldier has: engaged or solicited to engage in a homosexual act heard the soldier state that he or she was homosexual heard the soldier state that he she had married or attempted to marry a member of the same sex. A statement by a reliable person that they had observed a soldier admitting to or engaging in homosexual conduct. Credible information is a legal expression. An attorney must make the determination as to whether the information available is “credible.” If the determination is yes, then the commander may proceed with an investigation. If the answer is no, the commander may not proceed with an investigation. Whether the testimony regarding a soldier’s homosexual conduct comes from a reliable person will be considered by the attorney when establishing the presence or absence of credible information.

What Is Not Credible Information? Rumors that a soldier is homosexual Others opinions that a soldier is homosexual Going to a homosexual bar, reading homosexual publications, associating with known homosexuals or marching in homosexual rights rallies in civilian clothes Reports of being harassed shall not by itself constitute credible information justifying the initiation of an investigation. The examples on this slide are examples of information which are not “credible.” Rumors, hearsay, opinions, guesses, perceptions are not “credible.” The homosexual conduct in most instances will have been witnessed by the person providing the information. Soldiers who report being harassed are not to be considered as verifying that the accusations are accurate. Another way of saying this is that reporting harassment is not an admission of homosexuality and should not be regarded as if it were.

What are Grounds for Investigation? Credible information must exist. A commander must have a reasonable belief that a soldier has: Engaged or solicited to engage in a homosexual act Stated that he or she is a homosexual or otherwise indicated a propensity to engage in homosexual conduct Married or attempted to marry a person of the same sex Once JAG has determined whether credible information exists the commander may proceed with an investigation. The commander must believe that the soldier under investigation has committed one or more of the acts listed on this slide and that if founded would result in separation.

Substantial Investigation The initiation of any substantial investigation into whether an admission of homosexuality was made for the purpose of seeking separation from the Army and/or determining whether recoupment of financial benefits is warranted must be approved at the Army Secretariat level. Definition of substantial investigation: An investigation that extends beyond questioning the member, individuals suggested by the member for interview and the member’s immediate chain of command. When commanders believe that a soldier may be making an admission of homosexuality for the purpose of being discharged and the commander wishes to investigate the soldiers claim beyond the “admitting” soldier, individuals suggested by the soldier for interview or the soldier’s immediate chain of command … approval to investigate must be acquired at the Secretariat level. When a soldier admits that he or she is homosexual and the soldier has received financial benefits from the Army… approval for separation must be approved at the Secretariat level.

DoD Directed Policy Changes Installation Judge Advocates will consult senior legal officers at a higher HQ prior to the initiation of an investigation. Initiation of substantial investigations into admission of homosexuality for the purpose of separation will be made at the secretarial level. The IG will inspect homosexual conduct policy training. Three extensions to policy were published on 12 August 1999 by the DoD that further refined homosexual conduct policy. The three directives expand the Army policy and provide a review/inspection to ensure that the policy is being implemented with equity and fairness. These policy changes resulted from a report to the Secretary of Defense in April 1998: Review of the Effectiveness of the Application and Enforcement of the department’s Policy on Homosexual Conduct in the Military. In addition to these three recommendations, the panel found that the Department’s policy on homosexual conduct is “generally being implemented properly.” A number of areas were identified which could be clarified or implementation could be enhanced. In March 1999, the Under Secretary of Defense issued a directive providing guidance on how threats against homosexuals in the Armed Forces should be investigated (previous slides discussed the Army’s implementation of this directive) and specific prohibitions against harassment will be discussed now in some detail.

Zero Tolerance for Harassment Definition: Derogatory, persistent, threatening or annoying behavior directed toward an individual or group. Possible types of harassment Verbal (on or off duty) Jody calls regarding homosexuals Derogatory language or references about homosexuals Graffiti in latrines, bulletin boards, etc. Anonymous threats; telephonic, electronic, etc. Commanders are responsible for command climate which ensures all soldiers are treated with dignity and respect. Commanders are responsible for setting leadership standards regarding jody calls, language, etc. Commanders, through their senior NCOs, are responsible for physical appearance of the barracks, offices, latrines, etc.

Harassment All soldiers will be treated with dignity and respect and will be afforded a safe and secure environment in which to live and work. Harassment of soldiers for any reason, to include perceived homosexuality, will not be tolerated. Commanders at every level will take appropriate action to prevent harassment of or threats against any member of the Army. The issue of harassment is applicable for all soldiers. It is not relevant to know the race, gender, religion, sexual orientation or any other fact or perception about a U. S. Army soldier to know that it is not appropriate or acceptable to harass that soldier.

What Can a Soldier Do If Threatened, Harassed or Accused of Being Homosexual? Report harassment at once to the commander Commanders will take appropriate action to protect the safety of soldiers who report threats or harassment. Communication of a threat is a violation of the UCMJ. Appropriate action by the commander should include prompt investigation of the threat or harassment itself. Threats or harassment based on a soldier’s perceived or alleged homosexuality do not, by themselves, constitute credible information justifying an inquiry about possible homosexual conduct by the harassed soldier.

Who Can a Soldier Talk with Confidentially? Legal Assistance Attorney Chaplain If a soldier has a concern or if they are uncomfortable discussing issues regarding homosexual conduct with the chain of command, they can discuss those matters in confidence with either a legal assistance attorney or chaplain. Information provided to a chaplain or legal assistance attorney are generally considered privileged communication and will not be disclosed unless the soldier approves of the disclosure.

Summary The challenge to all soldiers is to comply with the law that prohibits homosexual conduct while at the same time respecting the privacy and dignity of every soldier. Service to this nation is an honorable endeavor. Soldiers who offer their commitment and their lives in service to this country should and must be treated with dignity and honor. Every soldier has the right to expect decent treatment, safety, and the support of the chain of command. If we violate this trust for any soldier, we violate the trust of all soldiers. If any soldier falls subject to the law, that soldier is entitled to the right of due process and the presumption of innocence. Every soldier and every leader has the obligation and authority to seek the fair, equitable and just treatment of all soldiers.