WASHINGTON — Defense Secretary Robert Gates on Thursday announced plans to relax enforcement of the “don’t ask, don’t tell” law, in some cases allowing known homosexuals to continue serving if evidence against them came from a vengeful third party.
The changes, which are effective immediately, allow for a “fairer and more appropriate” application of the ban on openly gay troops, Gates said. Congress is debating a full repeal of the law, but Gates said this interim step was needed before that decision is made.
The new rules update guidelines for “credible information” needed to launch an investigation into a servicemember’s sexuality. Information from third-party individuals must be given under oath, and people “motivated to harm the servicemember” through outing them are no longer considered credible sources.
Information provided to lawyers, physicians, therapists or clergy are also considered unusable for investigation purposes. Any evidence of homosexuality from security clearance investigations or domestic abuse reports is also forbidden.
In addition, Gates said only flag or general officers will be allowed to start a “don’t ask, don’t tell” investigation — currently any officer above O-4 can begin a fact-finding inquiry — in an effort to ensure consistency and fairness in the proceedings.
“Only Congress can repeal the law,” Gates said. “At the same time, these changes will allow us to execute the law in a fairer manner.”
David Hall, a former Air Force staff sergeant who was kicked out of the service in 2002 because of his sexual orientation, called Thursday’s announcement a step in the right direction. Commanders began an investigation against him based on the comments of a fellow airman angry with Hall over a poor work performance report.
“She definitely had an axe to grind with me, and it worked,” Hall said. “If these rules were in place then, they wouldn’t have taken her story as a credible reason. There wouldn’t have been an investigation. I’d be flying planes right now.”
Last year 428 troops were kicked out of the military under the law. Defense officials said only a small number of them were outed by third parties.
But Hall, who now works for the Servicemembers Legal Defense Network, said many of the cases they consult on involve outside parties outing troops who have steadfastly refused to discuss their sexual orientation.
Aubrey Sarvis, executive director of the legal network, said a full repeal of the law is still needed to ensure equality for homosexual servicemembers, but applauded the change. “At least a gay service member can divulge his or her sexuality to a physician or therapist without fear of getting fired.”
But Elaine Donnelly, president of the Center for Military Readiness, called the changes a “confusing message” that allows some gay troops to continue to serve while others are dismissed.
She said she believes gay soldiers could use the new third-party rules to proclaim their sexuality without facing discharge. “This will undermine respect for the law and perpetuate the institutional dishonesty that Joint Chiefs Chairman Adm. Mike Mullen complained of in February.”
Gates first discussed a “more humane” application of the “don’t ask, don’t tell” law last summer, but the new recommendations came only after a new 45-day review of the legal policy as part of the department’s year-long review of the law. Both Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen reiterated Thursday that they would not support a full repeal of the law until after that review is completed.
The changes would not apply to troops already booted from the service, but could affect pending cases already under investigation. In those cases commanders would be required to re-examine all of the evidence collected so far and re-evaluate whether separation proceedings should continue.
But Defense Department General Counsel Jeh Johnson said officials have not determined whether other evidence collected in older investigations — if a servicemember outed by a third party admits being gay, for example — could still be used in future proceedings.
That could mean that individuals like Lt. Col. Victor Fehrenbach — an Air Force pilot currently facing discharge after a civilian outed him to military commanders — will still face dismissal under the law if they publicly admitted to being homosexual.
Under the Defense Department regulations, being homosexual is not grounds for dismissal, but engaging in homosexual conduct is. Under changes announced Thursday, homosexual conduct includes “a statement by a servicemember that he or she is a homosexual or bisexual,” as well as getting married to someone of the same sex.
