Pentagon discharges under the antigay policy known as "Don't Ask, Don't Tell" ( DADT ) reached an all-time high of 1,231 in the fiscal year that ended in September. That is a rate of 3-4 ruined lives a day. The numbers were released by the military June 1 under pressure from the Servicemembers Legal Defense Network ( SLDN ) .
Yet even while the total number of discharges went up, the number of people discharged from the military for homosexual acts declined from 171 to 106. Simply being gay or talking about homosexuality was about 12 times more likely to get you discharged than actually having sex with a person of the same gender.
The Army more than doubled its discharges under DADT in 2000, from 271 to 573. SLDN executive director Dixon Osburn believes that a large portion of the increase was at Fort Campbell, Ky., in the wake of the July 1999 antigay bludgeoning death of PFC Barry Winchell while he slept. Two soldiers in his barracks were convicted of the murder.
Osburn said the base commander created an environment where gay service members, or ones who were perceived to be gay regardless of their sexual orientation, feared for their physical safety. "Soldiers are willing to sacrifice their lives for their country but they are not willing to sacrifice themselves to bigotry."
The Navy's discharges edged up from 314 to 358. Nearly a quarter of them ( 81 ) were at the Nuclear Power Training Unit and Command at Charleston, SC.
That "surprised" and "alarmed" Osburn. He said they had several cases from the base, but no indication that the scope was so large. The sailors at the base are older, in their second phase of training, and among the brightest. He would expect them to be more aware of SLDN and have been in contract with the organization. SLDN is attempting to contact past clients to see if any pattern of "witch hunts" emerges.
The Air Force was the only service to see a decline in discharges, from 352 to 177. Some of that may reflect falling back from a surge the previous year, principally at Lackland AFB near San Antonio, Texas. It also may reflect efforts to institute better training on implementing DADT.
Osburn has heard rumors that this year the Air Force had an increase in "entry level separations," which are possible within the first six months of enlistment. It may be that the Air Force simply is shifting the classification of the discharge from DADT to another category, while the underlying motivation for the discharge remains the same. SLDN has requested additional data from the Pentagon.
Has anything changed in the first few months of the Bush administration? "We haven't seen any change, for better or worse," said Osburn. "Everything seems to be happening just as badly as it had before." He called DADT "a stain that must be removed from our national policy."
RECOUPING HENSALA
John Hensala, a San Francisco psychiatrist discharged from the Air Force for being gay, will have to repay the service $71,000 for his professional training. The ruling by federal judge William Alsup is the first by a court on the policy of recoupment, or seeking reimbursement for education and other benefits paid by the military from those who have been discharged. The decision was made public May 29.
Hensala attended medical school under a military scholarship program and deferred his service for continued advanced training. In November 1994, after receiving notice to report for duty, he sent a letter to his commanding officer saying that he was gay, and did not believe that would affect his ability to perform his duty as child psychologist in the military.
The Air Force disagreed and discharged Hensala, who did not appeal. The matter ended up in court only when the Air Force tried to recover the money it had spent on his medical education. The Air Force argued that Hensala's actions, such as retaining a lawyer, documenting his homosexuality, and proposing to bring his boyfriend along, were not consistent with a willingness to serve under DADT. The judge agreed.
"Our concern is that that court has bought into a more restrictive reading of the recoupment policy than we think was originally intended," said Osburn. It is an interpretation that the Air Force always has followed and is more restrictive than those used by the Navy and Army.
He is concerned that the court rejected Hensala's repeated statements that he was willing to serve, and "relied upon an inquiry officer who simply said, I don't believe you, and recommended recoupment. This gives at least a small green light to rolling back some of the protections that service members have faced when discharged or disenrolled after coming out as gay."
"At the same time, the court has provided a bit of a road map, which the Air Force has not. It says, here are the factors that we are going to look at to see if there is a sincere desire to serve," said Osburn. "The court was pretty careful in saying there was not any one factor that was determinate of recoupment" but rather a pattern of multiple factors.
Changes Backed for Military System
A stellar group of legal experts has recommended sweeping changes in the military legal system that could have significant impact on gay and lesbian service members. Among the recommendations are elimination of provisions dealing with sodomy and adultery, and creating a fairer system of administrative discharges.
The Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice ( UCMJ ) was issued May 31, the anniversary date on which the system took effect. It was sponsored by the National Institute of Military Justice, "a private nonprofit organization dedicated to the fair administration of military justice."
The five-member group conducting the study is known by the shorthand of the "Cox Commission," after its chair, Walter T. Cox III. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, called the report "tremendously credible." SLDN testified at the Commission hearing March 13.
Gay activist Frank Kameny said the report "confirms what I've been advocating for a long time." He has served as an adviser to service members facing discharge because of sexual orientation since the 1950s.
Perhaps the most controversial recommendation is to "repeal the rape and sodomy provisions" of the UCMJ. The Commission noted, "Virtually all such acts could be prosecuted without use of provisions specifically targeting sodomy or adultery. ... The well-known fact that most adulterous or sodomitical acts committed by consenting and often married ( to each other ) military personnel are not prosecuted at court-martial creates a powerful perception that prosecution of this sexual behavior is treated in an arbitrary, even vindictive manner. This perception has been at the core of military sex scandals ... ."
The suggested modifications would still hold service members "accountable for sexual activities that interfere with military missions, undermine morale and trust within military units, or exploit the hierarchy of the military rank structure."
Ironically, gays and lesbians seldom are prosecuted under this provision because it is more difficult to prove sexual acts than it is to show sexual orientation under "Don't Ask, Don't Tell" as it is currently enforced. Some 90 percent of gay discharges are through administrative procedures rather than court-martials under the UCMJ.
The current system also gives base commanders the power to appoint members of a court-martial and decide certain pretrial issues. The Commission called this "an invitation to mischief" that "diverges further from civilian practice" and creates "the greatest barrier to operating a fair system of criminal justice within the armed forces."
It urged that court-martial panels be chosen at random. Osburn cited the example of PFC Barry Winchell. Base commander Major General Clark made the decision to cut a plea-bargain with one of the murderers. Clark had reason to seek to keep the case as low profile as possible.
The Commission also recommended examination of the "Feres Doctrine," a principle established 50 years ago that holds the government immune to lawsuits for injury "incident to military service." The courts have since ruled that "almost everything is incident to military service," said Osburn. This was why Winchell's mother could not successfully sue for the wrongful death of her son due to the government's negligence in failing to end antigay violence.
The Bush administration can implement some changes on its own, but certain others, such as repeal of the sodomy provisions of Article 125, would require legislation.
