On February 28, 1994, the Pentagon adopted new regulations on gay men and lesbians in the military in the wake of the "Don't Ask, Don't Tell, Don't Pursue" uproar during the Clinton administration. Despite what the popular press implied, the new regulations have done nothing to improve the status of gay and lesbian military personnel. Servicemembers are still subject to the same intrusive investigations as before. They can still lose their careers simply if they confide in a family member or close friend that they are gay or lesbian. Even worse, servicemembers can still be imprisoned for up to fifteen years if they have been or are in a loving relationship with a person of the same gender.
Under the “new” policy, statements of sexual orientation are grounds for discharge. Commanders and investigators are permitted to ask military members whether they have ever stated they are gay or lesbian. The best advice for gay and lesbian military personnel is to say nothing. Article 31 of the Uniform Code of Military Justice gives servicemembers the right to remain silent. Investigators and commanders often imply falsely that they will be lenient if the servicemember will acknowledge his or her sexual orientation. There is no evidence that anyone has ever been treated more leniently after making such a statement to an investigator, and there are numerous examples of servicemembers who have lost their careers and their benefits after being promised leniency.
There are no rules of confidentiality that protect military personnel, except when they talk with a private attorney. Statements to doctors, psychologists, chaplains and members of the clergy may be used against servicemembers in court and discharge proceedings. Commanders may seize and read personal diaries, letters and computer files to search for evidence of homosexuality. Private homes off-base may also be searched.
All homosexual acts, even those that occur in private and off post, are grounds for discharge and criminal prosecution including imprisonment. Gay and lesbian acts are not limited to sexual activity. The definition of "acts" is broad enough to include holding hands, dancing and even platonic hugging that might lead another person to believe that the servicemember is gay or lesbian. Going to a gay bar, reading lesbian novels or associating with gay and lesbian friends can lead to investigation and discharge. Military investigators often go to gay bars and attempt to interrogate owners, employees and patrons about the person under investigation. No one is required to answer questions posed by a military investigator about a servicemember's sexual conduct or personal habits. As with the servicemembers themselves, the best advice for bar owners and friends is to say nothing at all about the servicemember. Even innocuous statements can be turned against the person under investigation.
A number of misconduct charges have been brought at North Carolina military bases. For example, in 1983 at Camp Lejeune, a Navy doctor was convicted of sodomy, fraternization and conduct unbecoming an officer after a week-long trial, which featured testimony by a Marine who had been in a relationship with him. In 1993, two Air Force Captains at Pope Air Force Base were convicted of sodomy and going to an off-limits gay bar in Fayetteville. Each was dismissed from the military and forfeited all veteran's benefits and severance pay. Nationally, the Constitutionality of "Don't Ask, Don't Tell, Don't Pursue," has been tested; the Fourth Circuit Court of Appeals upheld the policy in its decision in Thomasson v. Perry, 80 F.3d 915 (1996).
Servicemembers who receive death threats or other harassment risk an investigation into their private lives if they report such threats to the military authorities. Also, female servicemembers who complain of sexual harassment risk being labeled as lesbian if they rebuff unwanted advances from men (often termed “lesbian baiting”). Servicemembers who are faced with harassment should seek legal counsel from a private attorney before reporting the harassment.
Although the military still presents a hostile environment for gays and lesbians, the Service Members Legal Defense Network (SLDN) reports that there is a subtle shift in attitudes within the military community toward tolerance of gay and lesbian servicemembers. Some squad members openly support their gay and lesbian counterparts, but unfortunately, this is the exception not the rule. Due to this systemic hostility, any gay or lesbian servicemember in the care of a military defense counsel should ask the attorney if he or she takes issue with homosexuality. If a client senses the military attorney has an anti-gay bias, the client should request new counsel from his or her Senior Defense Counsel; the reasons for making the request are privileged. (In most cases, however, a gay client will be well-represented by the military defense counsel and will not need to seek an expensive civilian attorney.) If a gay or lesbian servicemember has any concerns, he or she can seek more advice and assistance from SLDN. It is a is a non-profit legal services organization aimed at ending discrimination, harassment and intolerance waged against gay and lesbian military personnel. (For more information, see the website at www.sldn.org.)
Despite the bleak outlook for gay men and lesbians in the military, gay and lesbian civilians who require security clearances to work for the military can no longer be denied a security clearance solely on account of their sexual orientation.
Another shift in policy occurred in the Naval Criminal Investigative Service (NCIS). It no longer investigates most reports of homosexual activity unless it is in conjunction with a felony, usually non-consensual sex. Instead most reports of homosexuality are dealt with administratively, not criminally, or they are assigned to the Military Police’s Criminal Investigative Division, which handles misdemeanors.
Many gay and lesbian servicemembers who wish to leave the military usually can get an Honorable Discharge with little effort. However, those who fail to get an Honorable Discharge may be given an Other than Honorable Discharge or even prosecuted, if there is any evidence of homosexual activity. Furthermore, even if an “outed” servicemember is not actually prosecuted or administratively discharged, it is likely that he or she may be forced out of the military eventually. Discrimination and abuse combined with offers of General Under Honorable Conditions discharge or an Honorable Discharge will often convince a gay servicemember to leave.
Former servicemembers who have received a discharge other than an Honorable Discharge may attempt to have the discharge upgraded. Because most discharges (approximately ninety percent) are fully honorable, a discharge which is less-than-honorable may be harmful for the recipient in a number of areas, including his or her civilian employment opportunities. Also, eligibility for certain veterans' benefits depends on the class of discharge.
In cases where a former service member has received less than a fully honorable discharge within the past fifteen years, the veteran may seek to have the discharge reviewed and upgraded. In many cases in the past, less than honorable discharges have been awarded that would, today, result in Honorable or General discharges (especially for homosexuality). Such discharges are likely to be upgraded. Occasionally a Board for Correction of Military Records will review discharges that were made over fifteen years ago.
Edited Fall 2004 by:
NC GALA Intern Lindsay Wilkes, UNC Law '07
and Attorney Steve Ockerman
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This page was last updated on November 24, 2004.