Pentagon changes rules for discharging gays

[The Spartan]

AP through Yahoo News

Pentagon changes rules for discharging gays
By ANNE FLAHERTY and PAULINE JELINEK, Associated Press Writer Anne Flaherty And Pauline Jelinek, Associated Press Writer 1 hr 30 mins ago

WASHINGTON – Defense Secretary Robert Gates Thursday approved new rules that will make it harder to discharge gays from the military, calling the changes a matter of "common sense and common decency."

Gates announced new guidelines for how the Pentagon carries out the 1993 law banning gays from serving openly in the military — rules which essentially put higher-ranking officers in charge of discharge proceedings and impose tougher requirements for evidence used against gays.

The new guidelines go into effect immediately and will apply to cases already open. They are considered a stopgap measure until Congress decides whether to go along with President Barak Obama's call for a repeal of the "don't ask, don't tell" law.

"I believe these changes represent an important improvement in the way the current law is put into practice, above all by providing a greater measure of common sense and common decency for handling what are complex and difficult issues for all involved," Gates told a Pentagon news conference.

The changes raise the level of officer authorized to initiate a fact-finding inquiry into a case, the level of officer who can conduct an inquiry and of the one that can authorize a dismissal.

To discourage the use of overheard statements or hearsay, from now on any evidence given in third-party outings must be given under oath, Gates said. Cases of third-party outings also have included instances in which male troops have turned in women who rejected their romantic advances or jilted partners in relationship have turned in a former lover.

Some kinds of confidential information also will no longer be allowed, including statements gays make to their lawyers, clergy, psychotherapists or medical professionals in the pursuit of health care.

The individual service branches will have 30 days to change their regulations to conform to the new rules.

Military officials, Republicans and even some conservative Democrats have been reluctant to embrace a change in the existing law. They say they support Gates' review of the policy but that no changes should be made if they might undermine military cohesion and effectiveness.

Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, and other Democrats say the time has come to repeal the ban and have called for an immediate moratorium on dismissals.

Nathaniel Frank, a senior research fellow with the Palm Center, which supports a repeal of the ban, said it is unclear how much of an impact the new guidelines would have because regulations already restrict third-party allegations.

"Anything that continues to allow the discharge of service members for something that research shows has no bearing on military effectiveness will not go far enough," Frank said.

An estimated 13,000 have been discharged under the law. The Pentagon didn't officially begin tallying discharges until a few years after the law was implemented, and official figures show roughly 11,000 discharged since 1997 with the peak in 2001 before the military became strained by the wars in Iraq and Afghanistan.

Some more good news for the week. It's not the same as a repeal of the law, of course, but we're inching closer.

[Shroom Man 777]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed! That's a fucked up law, that's blatant discrimination! How the hell do they justify that at all? Is there any other mainstream (and governmental) organization in the USA that automatically discriminates against gays, to the point of firing them when their orientation is revealed?

[Einzige]

I don't necessarily trust this. It could very well be a simple maneuver so that the military can say, "See? We're not that discriminatory! We don't need to overturn DADT; we've just made it slightly more bearable for gays presently in the military." At any rate, even if this action was taken in good faith, it does not come remotely close to what we really need, which is full and unbiased action on this issue.

[Serafina]

How the fuck is that much of an improvement? You are still unable to be openly gay while in the military!
Aparently, all that changed is that you need more/better "evidence".

[[R_H]]

How the fuck is that much of an improvement? You are still unable to be openly gay while in the military!
Aparently, all that changed is that you need more/better "evidence".

It's not that restrictive. I've heard that DADT is lax to the point that they'll only discharge an individual if they're caught in the act, or if they admit to being homosexual. The latter is also used by non-homosexuals to get discharged if they don't want to serve any more. Remember that the people in the US military, especially in the combat arms, tend to be quite conservative about homosexuality.

[eion]

How the fuck is that much of an improvement? You are still unable to be openly gay while in the military!
Aparently, all that changed is that you need more/better "evidence".

It's not that restrictive. I've heard that DADT is lax to the point that they'll only discharge an individual if they're caught in the act, or if they admit to being homosexual. The latter is also used by non-homosexuals to get discharged if they don't want to serve any more. Remember that the people in the US military, especially in the combat arms, tend to be quite conservative about homosexuality.

Would you please explain Victor J. Fehrenbach, Jene Newsome, and the hundreds of other service-members who were discharged under DADT based on information from third parties. They did not declare their homosexuality, nor were they "caught in the act."

And since when is "I've heard" any manner of evidence outside of witch-trials, and oh wait DADT hearings?

This stopgap is an important step in repealing DADT as it will set stricter rules of evidence for these hearings and require such statements to be made under oath.

I'd prefer congress just repeal the whole mess of a policy tomorrow and allow everyone discharged under DADT to return to duty at their former rank and pay if they so wished, but whatever.

[The Spartan]

This stopgap is an important step in repealing DADT as it will set stricter rules of evidence for these hearings and require such statements to be made under oath.

Emphasis added.

This neatly sums up what I was getting at. It's also what I meant when I said, "Inching closer." It's an extra obstacle that's up in the way until we just get to repealing the whole damn thing. That's something which I fear will take another big push since the assholes have decided that this will somehow compromise our forces.

[Simon_Jester]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed! That's a fucked up law, that's blatant discrimination! How the hell do they justify that at all? Is there any other mainstream (and governmental) organization in the USA that automatically discriminates against gays, to the point of firing them when their orientation is revealed?

When the policy originated no one felt the need to justify it. It's lasted on momentum and people being dumbasses. Especially the old people who make the decisions.

How the fuck is that much of an improvement? You are still unable to be openly gay while in the military!
Aparently, all that changed is that you need more/better "evidence".

The improvements:

1) Soldiers are less likely to be kicked out of the military at random by someone who accuses them of being gay with the goal of getting them kicked out of the military. This benefits straights at least as much as gays... but a benefit to a straight person is still a benefit. Changing the rules of evidence to disallow witch hunts is good.

2) Soldiers can now tell lawyers, chaplains, and doctors that they are gay without this being used as evidence against them. This is not as good as it should be, but it is still an improvement, because it reduces the psychological burden on gays in the military and makes it easier for them to get medical support.

3) "Don't ask, don't tell" was a policy enacted by the U.S. Congress, here. It is beyond the power of the Department of Defense* to change that law. This is as far as the DoD can go without an act of Congress backing them up: they can ease off on enforcement of the regulation, but they cannot ignore or repeal the regulation. I repeat: this is as far as they can go without an act of Congress.

*Am I the only one who wishes they'd be honest and call it the War Department? It's not like we've fought a defensive war in the past 150-200 years... even the ones that were well justified were mostly fought over the sea and far away.

[Darth Yan]

Eh. It's a start. Maybe if he keeps it up Obama can actually fullfill some of his promises.

[Serafina]

Well, ok then - at least it is an improvement, tought repealing the whole idiotic "policy" is still necessary.

[Knife]

Agreed, this is a half measure allowing people political room while they gear up to just get rid of it. One shouldn't jump for joy for a half measure; however, one should be pleased that it does seem they are gearing up to finish this issue.

[[R_H]]

Would you please explain Victor J. Fehrenbach, Jene Newsome, and the hundreds of other service-members who were discharged under DADT based on information from third parties. They did not declare their homosexuality, nor were they "caught in the act."

In the case of Jene Newsome, the Rapid City PD revealed that she was married to a woman. According to 10 U.S.C. § 654(b)(2), that's grounds for removal. Who outed Fehrenbach? Again, according to 10 U.S.C. § 654(e)(2), Fehrenbach did not have to be removed, because it is clear that removing him would be against the best interests of the armed forces.

And since when is "I've heard" any manner of evidence outside of witch-trials, and oh wait DADT hearings?

The Newsome's marriage license wasn't an "I've heard", and I find it surprising that there haven't been stricter rules regarding evidence until now.

[eion]

Would you please explain Victor J. Fehrenbach, Jene Newsome, and the hundreds of other service-members who were discharged under DADT based on information from third parties. They did not declare their homosexuality, nor were they "caught in the act."

In the case of Jene Newsome, the Rapid City PD revealed that she was married to a woman. According to 10 U.S.C. § 654(b)(2), that's grounds for removal. Who outed Fehrenbach? Again, according to 10 U.S.C. § 654(e)(2), Fehrenbach did not have to be removed, because it is clear that removing him would be against the best interests of the armed forces.

Fehrenbach was outed during a police investigation into an accusation of rape by a man he met online. He asked whether his employer had a right to the report, and the police informed him they would. To clear himself of the charges, Lt. Col Fehrenbach told his side of the story, explaining he had met the man and had consensual sex with him. He was quickly cleared of all the charges by the police and then an investigation board was convened by the Air Force. No one in his unit complained, or even knew about the investigation until the board had voted to recommend him discharged.
And the armed forces have long since demonstrated that they consider the service of gay men and women to be against their best interests in almost all cases.

Gay Boise Air Force Pilot 'outed' by false accusation

And since when is "I've heard" any manner of evidence outside of witch-trials, and oh wait DADT hearings?

The Newsome's marriage license wasn't an "I've heard", and I find it surprising that there haven't been stricter rules regarding evidence until now.

Why should that surprise you? DADT was not a policy crafted to benefit gay service members and allow them to serve with honor; it was a policy crafted to allow the rooting out of gay service members. Like most laws, the name tells you very little about what the actual provisions in the law.

It’s a bullshit law written by old men and enforced by idiots. It is antithetical to the honor and honesty expected of service-members. And that is before we even approach the damage it has done to national security.

And the marriage license wasn't discovered by the USAF running a background check on the Sgt. or found amongst the Sgt's effects on the base. It was sitting on the kitchen table of their locked house, and when the police peered in and saw it, they went out of their way to inform the USAF, even though they had no legal obligation to do so.

[Ritterin Sophia]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed! That's a fucked up law, that's blatant discrimination! How the hell do they justify that at all? Is there any other mainstream (and governmental) organization in the USA that automatically discriminates against gays, to the point of firing them when their orientation is revealed?

No offense, Shroomy, but you just now realized that?

[Lonestar]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed!

They don't. In fact you end up seeing pshrinks and whatnot before the discharge goes into effect, mostly to make sure that you aren't "faking". In addition it's not unheard of for gay servicemen to have that ignored at the command level, or even have someone fudge their discharge code on the DD214 so that they can be recalled to active duty while they're in the IRR. It sounds like this is a formalization of the trend, thankfully.

[Alyeska]

Why should that surprise you? DADT was not a policy crafted to benefit gay service members and allow them to serve with honor; it was a policy crafted to allow the rooting out of gay service members. Like most laws, the name tells you very little about what the actual provisions in the law.

It’s a bullshit law written by old men and enforced by idiots. It is antithetical to the honor and honesty expected of service-members. And that is before we even approach the damage it has done to national security.

This entire statement is bullshit and you fucking know it. DADT was a compromise when Clinton was trying to remove all barriers to openly serving homosexuals. DADT was an improvement over the previous policies in place. DADT was put in place to reduce the investigation and rooting out of service members. That was part of the "Don't Ask". You are allowing your personal emotions to color your statements about what has happened.

[eion]

Why should that surprise you? DADT was not a policy crafted to benefit gay service members and allow them to serve with honor; it was a policy crafted to allow the rooting out of gay service members. Like most laws, the name tells you very little about what the actual provisions in the law.

It’s a bullshit law written by old men and enforced by idiots. It is antithetical to the honor and honesty expected of service-members. And that is before we even approach the damage it has done to national security.

This entire statement is bullshit and you fucking know it. DADT was a compromise when Clinton was trying to remove all barriers to openly serving homosexuals. DADT was an improvement over the previous policies in place. DADT was put in place to reduce the investigation and rooting out of service members. That was part of the "Don't Ask". You are allowing your personal emotions to color your statements about what has happened.

It's a Golden Mean fallacy. There is no "right" amount of persecution. DADT delayed by years the full open service of gay men and women in the military by creating the appearance of tolerance and allowing for the no-strings-attached ejection of anyone even hinting at further reform. Even if DADT was the right choice at the time (and I do not grant that position) Clinton fucked up by not using his executive power to tighten the rules of evidence and procedures. Had he locked down the process into something approaching fairness it would have been harder for the Bushies to ramp up the discharges even more.

The only reason the numbers didn’t continue to go up after 2001 is because the military realized they might need some of these “undesirables” to fight their two wars. How can a policy whose purported purpose is to allow gay men and women to serve with honor in the military justify a continuing increase in discharges under that policy. If your riflemen’s rifles keep jamming and misfiring you have stop blaming the men at some point and start considering the fact that there is a fundamental defect in your equipment.

IT DIDN'T STOP THE INVESTIGATIONS. FUCK THAT FUCKING LIE OF A NICK-NAME. All that meant is they stopped putting the "Are you gay?" question on the recruitment applications. They still investigated even the merest hint of the most unsubstantiated of a rumor.

Again, this announcement by Sec. Gates is a necessary stopgap on the road to repeal of DADT and the full and open service of gay men and women in the military, but such a measure should never have been necessary in the first place. Clinton bungled the negotiation and implantation of DADT and burned a good chunk of his political capital doing so.

[Broomstick]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed! That's a fucked up law, that's blatant discrimination! How the hell do they justify that at all? Is there any other mainstream (and governmental) organization in the USA that automatically discriminates against gays, to the point of firing them when their orientation is revealed?

Until the 1980's (and the late 1980's at that) firing homosexuals (real or suspected) was standard operating procedure in the US in both government and private industry, as was housing discrimination. It's was "justified" by reason "that's the way it's always been".

[Alyeska]

(snip)

You done crying on your soapbox and white washing history?

[eion]

(snip)

You done crying on your soapbox and white washing history?

What part of history am I "whitewashing". Was DADT a compromise? Yes. Did it represent an improvement over previous policy? If it had been implemented in the spirit in which it was written, perhaps, but too often it has been twisted to suit the desires of the enforcers, rather than the intent of the law. Unit commanders will overlook the actions, or rumors of actions, of mission-critical service-members while coming down hard on other, less vital, service-members. The policy has also been unevenly applied to female service-members over male ones.

If we go by discharge rates, I don't think anyone can make a case that the continued increase in discharges of service-members under 10 U.S.C. § 654 represents a fundamental improvement over previous policies.

The news in the OP is the kind of action I would have expected Congress to direct when it switched to a Democratic majority in 2006, but I suspect certain members of the party didn’t want to be labeled anti-military and pro-homosexualist, and another faction wanted to keep the issue alive for the 2008 elections. The GLBTQ community remain one of the favorite political chew-toys of both parties, after all.

I welcome your response to those points, or you can just ignore them as you did before.

[Flagg]

You know, now that I think about it, I can't believe that the US automatically expels gays from the military the second they're outed! That's a fucked up law, that's blatant discrimination! How the hell do they justify that at all? Is there any other mainstream (and governmental) organization in the USA that automatically discriminates against gays, to the point of firing them when their orientation is revealed?

Until the 1980's (and the late 1980's at that) firing homosexuals (real or suspected) was standard operating procedure in the US in both government and private industry, as was housing discrimination. It's was "justified" by reason "that's the way it's always been".

Virginia state employees can now be fired simply for being homosexual now, as well.

[Simon_Jester]

It's a Golden Mean fallacy. There is no "right" amount of persecution. DADT delayed by years the full open service of gay men and women in the military by creating the appearance of tolerance and allowing for the no-strings-attached ejection of anyone even hinting at further reform.

Can you prove that? I mean, would Clinton have been able to swing something better than DADT at the time, without burning even more political capital that he still needed for other things that, frankly, affected more people? Like that universal health care bill we could have had fifteen years ago if it hadn't been stopped?

[Darth Wong]

This entire statement is bullshit and you fucking know it. DADT was a compromise when Clinton was trying to remove all barriers to openly serving homosexuals. DADT was an improvement over the previous policies in place. DADT was put in place to reduce the investigation and rooting out of service members. That was part of the "Don't Ask". You are allowing your personal emotions to color your statements about what has happened.

It's a Golden Mean fallacy. There is no "right" amount of persecution. DADT delayed by years the full open service of gay men and women in the military by creating the appearance of tolerance and allowing for the no-strings-attached ejection of anyone even hinting at further reform. Even if DADT was the right choice at the time (and I do not grant that position) Clinton fucked up by not using his executive power to tighten the rules of evidence and procedures. Had he locked down the process into something approaching fairness it would have been harder for the Bushies to ramp up the discharges even more.

I don't think you understand what the Golden Mean fallacy is. It is fallacious to say that the middle ground between two contrary conclusions must always be correct. But this has to do with correctness of logical arguments; it is not an indictment of the political strategy of compromise.

Is DADT unacceptable? Yes. However, the prior policy was to eject all gays regardless of whether they openly stated their orientation, which was even more unacceptable. Hence, DADT was an improvement upon an even worse situation.

[eion]

Can you prove that? I mean, would Clinton have been able to swing something better than DADT at the time, without burning even more political capital that he still needed for other things that, frankly, affected more people? Like that universal health care bill we could have had fifteen years ago if it hadn't been stopped?

To a certainty, probably not.

In '93 The House had 258 Democrats to 176 Republicans. The Senate was 57:43 in the Dems favor. However, in '93 public opinion of gays & lesbians was also lower. He probably couldn't have gotten full and open service, but he could have constrained the policy in a similar way to how Gates just did. Raise the initiating authority to flag rank, force all DADT investigations to be carried out under oath, strict rules of evidence or some other method to apply the process equally. DADT allowed statements to normally privileged individuals (lawyers, chaplains, doctors, therapists) to be used against the service-member.

This is, to my knowledge, unprecedented. If a seaman told his lawyer he had stolen provisions while at sea, that statement could not be forced out of the lawyer. If a sergeant confessed to adultery to his Chaplin, that statement would not be taken directly to a convening authority. DADT was supposed to treat GLB service-members as equal to their heterosexual colleagues so long as they kept their private life private. And until now, that is not how it has been applied.

I don't think you understand what the Golden Mean fallacy is. It is fallacious to say that the middle ground between two contrary conclusions must always be correct. But this has to do with correctness of logical arguments; it is not an indictment of the political strategy of compromise.

Is DADT unacceptable? Yes. However, the prior policy was to eject all gays regardless of whether they openly stated their orientation, which was even more unacceptable. Hence, DADT was an improvement upon an even worse situation.

You're correct. I misused the Golden Mean Fallacy.

DADT as written is an improvement over the previous policy, but it was not enforced as such. The law was not strictly written to define what constitutes a voluntary statement, what a homosexual act is, and what evidence could be used against those investigated. Informal investigations (remember the whole "Don't Ask" part) still went on. Executive Directives were not utilized as fully as they could have been in response to continually rising discharge rates.

Many other countries in 1992-93 lifted their bans on service entirely. If Clinton had pushed for a simple removal of regulations on GLB service members, rather than push for explicit open service, the results might have been different. With the majorities he had, he might have been able to slip it through.

He could have also pushed initially for a removal of sodomy from the UCMJ (which is still in there, by the way, despite Lawrence v. Texas), using the argument of persecution of heterosexual service-members and the outdated nature of the statute. He could have then followed with a call for open service later. I have no doubt that his intentions were good, but his execution was lacking.

[Darth Wong]

How old are you? If you're old enough to have been politically aware in the 1990s, you would know that Clinton faced nearly as much intensity of hatred as Obama does now. Moreover, you would know that public attitudes toward homosexuality were much harsher at the time. The 1990s came just after the 1980s, and in the 1980s, people were still so backward that they failed to pass the ERA, for fuck's sake. I mean come on, how difficult is it to say that men and women should have equal rights in the Constitution? You should not underestimate how far we've come as a society in the last 20 years. Hell, I still remember Sunday closing laws and school prayer when I was a kid.