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United States. Congress. House. Committee on Veter.

Viewpoints on Veterans Affairs and related issues : hearing before the Subcommittee on Oversight and Investigations of the Committee on Veterans' Affairs, House of Representatives, One Hundred Third Congress, second session, May 4, 1994 online

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rebuffing men's sexual advances and reporting sexual harassment.'

Recommendations

There are several alternatives to existing aimotation practices. Ideally, the government
could remove the reason for discharge from all DD 214 forms, while retaining the
characterization of service. Obviously, it would be necessary to apply this option across the
board, in an even-handed manner, in order to alleviate the present situation. Failing that, the
cases involving gay military members could be reported as discharges for the "convenience of



' See generally. Randy Shilts, Conduct Unbecoming: Gays and Lesbians in the U.S.
Military (1993); Michelle Benecke & Kirstin Dodge, Military Women in Nontraditional Job
Fields: Casualties of the Armed Forces War on Homosexuals. 13 Harv. Women's L.J. 215
(1990); Scott Shuger, American Inquisition: The Military vs. Itself. The New Republic. Dec.
7, 1992, at 23.

' See Shilts, supra, at 622, 637, 640, 650-54, 658, 671; Benecke & Dodge, supra, at 229-
31.



165

the government," or other general category, as is presently done for a wide array of other
reasons for discharge. Alternatively, the government could list individuals" character of service
and reason for discharge only in cases involving misconduct, such as abuse of a special
position of trust or the use of force to cause serious bodily injury, whether committed by gay
or straight individuals. None of these options would preclude DOD from maintaining an
internal annotation system for reenlistment or any legitimate purpose. In general, however, we
see no credible justification for the current forced outing of gay, lesbian and bisexual veterans
through annotations or coding schemes on external documents such as the DD Form 214.
Discharge CharacterizatioDS

Issues

The area of discharge characterizations poses significant problems for gay veterans.
One of the most troublesome and pernicious issues in this area is the lack of parity in the
treatment of gay, compared to straight, personnel.

The standard for discharge characterizations for all military members is to base the
characterization on one's overall record of service, absent aggravating circumstances
surrounding the underlying cause for discharge. Significant discrepancies in the treatment of
gay and straight personnel exist in practice, however, and often result in loss of veterans
benefits. Many commanders have given, and continue to give, less than honorable discharges
to gay military members, notwithstanding their superb service records. In two recent cases,
for example, servicemembers with military records meriting an honorable discharge were
instead recommended for less than honorable characterizations merely for stating that they are
gay. Some commanders erroneously believe that the regulations require harsh treatment of gay



166



personnel, while others seek to misuse the discharge characterization system to punish gay
military members. In response to unfounded threats of an other than honorable discharge,
often made in cases involving private, off-base, consensual sexual activity, many
servicemembers accept general discharges, even though their military records suggest that an
honorable discharge would be warranted.

Lack of parity in the regulations themselves has also been a significant problem. One
of the most blatant examples concerns the criteria for other than honorable discharges. Unlike
their straight counterparts, gay veterans discharged prior to 1982 for consensual, private sex
were given other than honorable discharges.* Current provisions governing other than
honorable discharges for homosexual acts remain entirely inconsistent with the sorts of bases
on which an other than honorable discharge is generally allowed. The Air Force list of general
bases is typical and includes, among others, the use of force to produce serious bodily injury
or death, acts or ommission that endanger the security of the United States, and deliberate acts
or ommissions that seriously endanger the health and welfare of other persons. A private kiss
on base between consenting adults of the same gender, which can result in an other than
honorable discharge, is just not in the same category. Heterosexual acts on base, and even on
ships and planes, do not result in an other than honorable characterization. In practice, it is
a rare occurence when they result in any action.

Additional issues concern the significant number of gay veterans with general discharge
characterizations. Many military members are erroneously told by their military command at



* Today's regulations provide for an honorable or general characterization in such cases,
based on the military member's record of service.



167

the time of discharge that they are ineUgible for other benefits and, thus, do not try to obtain
them. The stigma attached to homosexual-related discharges further discourages veterans from
seeking discharge upgrades and benefits.

Recommendations

Discriminatory discharge characterizations are responsible for a large number of benefits
problems confronting gay veterans. This is particulary true for military members who are
given unwarranted general discharges and thus lose all educational benefits under the
Montgomery GI Bill. We urge the committee to take all steps possible to address with DOD
the unequal treatment of gay military members regarding discharge characterizations.
Consistent with the provisions of DOD Directive 1332.14, DOD should make it crystal clear
to commanders that discharge characterizations are to be performance-based and that gay
servicemembers, like their straight counterparts, should be awarded a fiilly honorable discharge
lacking hard evidence that requires any lesser grade. Statements of sexual orientation or
instances of gay acts not involving aggravating circumstances, alone, should not consitute such
evidence, as they do not for heterosexuals.

There are several specific steps that also can be taken by the Veterans Administration
that would alleviate at least some of the consequences of the lack of parity in military
regulations and the discharge characterization process. First, given that the standard today is
to award honorable or general discharges in like cases, pre- 1982 gay veterans who received
other than honorable discharges for consensual, private sex and related matters should have the
opportunity for a case-by-case review of their benefits status. Similarly, we recommend a case-
by-case review of general discharges awarded to gay veterans, given the strong record



8



168

indicating that significant numbers of gay servicemembers have been pressured by their
commands, through the unwarranted threat of other than honorable discharges, into accepting
general discharges even though their records and the evidence suggest that an honorable
discharge is warranted.

Second, the high level of misinformation that surrounds homosexual-related discharges
merits a strong outreach effort aimed at providing gay veterans with accurate information
regarding discharge upgrades and eligibility for benefits.

Health Issues

Issues

Among numerous veterans health issues, three particularly impact on gay, lesbian and
bisexual veterans. The first is the significant disparity in medical treatment, as well as the
knowledge and sensitivity of staff, regarding HI V-related illnesses and breast cancer that exists
among VA hospitals. Breast cancer, as you may be aware, manifests a higher incidence in
lesbians. A second issue concerns the improper use of medical information regarding the HIV
status of veterans during boards for correction of military records.

Third, we are aware of numerous cases where, as in cases involving women who report
sexual harassment, psychological notations have been used as a punitive measure against gay
individuals. One of the most frequent abuses is erroneously to label gay people as having
personality disorders. Evidence from these cases suggests that at least some practitioners
intentionally use this tactic to stigmatize gay people in their search for civilian employment and
to avoid awarding VA benefits for other medical disabilities.

Recommendations



169



In response to the health concerns of lesbians, gay and bisexual veterans, we make three
recommendations. At a minimum, a panel of health experts in HIV-related matters and breast
cancer should be convened to study and make recommendations on the issue of disparate
treatment within and among VA hospitals. With regard to medical records, HIV-related
information should be kept confidential and private so that it cannot be used during boards for
correction of military records. Given the frequency with which practitioners label gay veterans
as mentally ill and the extreme consequences of this practice, we recommend a case-by-case
review of all such psychological notations.

Conclusion

To conclude, let me again thank Chairman Evans and the Members of the Subcommittee
on Oversight and Investigations for the opportunity to speak today on behalf of
Servicemembers Legal Defense Network. Lesbian, gay and bisexual veterans comprise a large
constituency and a valuable resource for the Committee on Veterans' Affairs and the Veterans
Administration. We look forward to working with the Committee and the Veterans
Administration on issues affecting veterans, especially those of particular concern to lesbian,
gay and bisexual veterans.



10



170



THE




The fallacy of "Don't Ask, Don't Tell.'

The ban plays on

By Hanna Rosin

Senior .-Virman Robert Wilson did something last
December he now describes as "really stupid,"
because it ended his military career. Fighting
boredom on the night shift, he wrote a letter to a
friend on his office computer at Base Mildenhall in Lon-
don, telling him that he had broken up with his
bovfriend Jimmy and describing a pick-up scene at a gay
bar. He deleted the letter that night, but another airman
retrieved it and gave a copv of it to the base commander.
.No one had asked VVilson if he was gay and he never told
anyone, but the military pursued. The commander
waited until the following; Friday at 4:30 p.m.. when the
barracks were full, to send two investig-.ttors to search Wil-
son's room. There they found the proof they needed: a
copy of Randy Shilts's Conduct Unbecoming, about the his-
tory of gays in the military; acopyof;W..v., a gay magazine;
a tape of a PBS miniseries on gay life in San Francisco in
the '70s; a letter consoling a friend who is mv-positive;
and the real gem — Wilson's diary, in which he mentions
other gay servicemen by their nicknames (he refused to
identify them). In February the commander recom-
mended a less-than-honorable discharge, stripping Wil-
son of his veteran's benefits. It was upgraded to honor-
able when Wilson agreed to waive his right to a trial.

All this happened after last July's announcement of
the new "Don't. Ask, Don't Tell. Don't Pursue" policy for
gays in the military, which President Clinton called a
"major step forward" that would "end the witch-hunts."
While critics complained that the ban wasn't lifted, even
they hailed the policy as "a real advance for civil rights"
and predicted a "drastic reduction in homose.xual prose-
cutions" (as TNR put it) . In fact, the new policy has turned
out to be a reworded version of the old. and in some ways
it has made things worse. It has nor decreased the num-
ber of dischairges for homosexuality; in fiscal year 1993,
including eight months in which the new policy was in
effect, there were 773 discharges, compared with 708 in
fiscal year 1992. It has no/ created a climate in which het-
erosexuals and homosexuals are treated equalh" to date,
no straight servicemembers have been invesugated for
consensual sodomy or prosutution. .And its attempt to
end the witch-hunt by shifting the focus from "status" to
"conduct" has been totally ineffectual.

In selling its policy to gav rights groups in Julv. the
administranon brandished the status/conduct distinc-
tion as a critical change. "Se.xual orientation is consid-
ered a personal and prii-ate matter," then-Defense Secre-
tary Les .Aspin announced at the July press conference.
Conduct violations, he added, will be invesugated



Hazma Roalc: "Ooa't Ask, Don't Tell" Betrayed



"regardless of whether the person is homosexual or het-
erosexual." While both notions are part of the Depart-
ment of Defense rules, they are contradicted by other
parts and are violated in practice. The rules include an
exception that gay acdvists call "Queen for a Day": "if the
conduct is a departure from your usual behavior" — if
you're not really gay — then the conduct is excused. They
define as homosexual conduct hand-holding, kissing
and, more important, statements declaring your status,
which make you guilty until you prove you have never
acted or intend to act on your attractions. Drinking at
gay bars, marching in gay parades and reading gay lit-
erature are actions that the rules specify are not evi-
dence of homosexual conduct, yet as Defense Secretary
William Perry acknowledged in his confirmauon hear-
ing, these actions can be used as evidence "if a reliable
person observed behavior that he or she believes
amounts to a nonverbal statement that the servicemem-
ber is a homosexual." In other words, if someone sees
you go to a gay bar, assumes you're gay and reports it. a
commander can launch an invesugauon.

In reality, the locus on conduct has led to nothing
more than creative phr.Lsing of questions, and in some
c;iscs it has backfired by inviting more intrusive probes.
In one case, investigators got around two restrictions —
one against st;itus investigations and one against asking
the accused to name other homosexuals — by asking the
servicemeniber to drive them by the homes of service-
men he knew had engaged in gay conduct. Two of the
men whose homes he drove by are now under investiga-
don. An .Air Force captain in Fayetieville, North Carolina,
got around the gay bar exception by putting all the gay
bars in the area on the list of "off-limits establishments" —
a list normallv reserved for biLsinesses known to cheat ser-
vicemembers. like disreputable mechanics. Last month
two agents claiming to be doing a routine security investi-
gation visited a male friend of a serviceman who had
accepted the Navy's earlv retirement plan. Instead of ask-
ing if the ser\icemember was gay. they asked if iht two
were romanticallv involved and if they had sodomized or
masturbated each other They then went to all the gay
bars in the area with a picture of the servicemember and
asked bartenders if they knew him. Subsequently, the ser-
vicemembers security clearance was pulled, and he is
now being court-marualed — even though the new rules
expressly forbid information from a security clearance
invesugation to be used in a discharge proceeding.

What most undermines the new policy's poten-
tial are inadvertent and third-party disclo-
sures, which can expose even the most care-
fully closeted servicemember The new rules
forbid inquiries based on "rumor, suspicion or capri-
cious claims concerning a member's sexual orienta-
tion." but this has not stopped some overzealous com-
manders. The Servicemembers Legal Defense .Network
(SLDN) cites these scenarios: a servicemember invesu-



171



gated after an anonymous phone call to his base com-
mander; another investigated because he had taken
notes on homosexuality for a class: another investigated
after police searched his roommate's belongings for
drugs and found a letter on his side of the room men-
tioning homosexuality. And as cases like Robert Wil-
son's show, commanders continue to solicit informadon
about other servicemembers during investigations, a
clear violation of rules that limit inquiries to "factual cir-
cumstances directly relevant to the specific allegauons."

Worse, gay servicemembers have nowhere to turn for
counseling. Conversations with psychiatrists and clergy
are not protected; in fact, professionals have a duty to
report admissions of homosexuality. There is also no
protection from harassmenL .A servicemember who
complains to his commander about threats against him
because he is gay could be discharged. And service-
members in military courts are afforded few luxuries of
civilian junsprudence. There are no exclusionary rules,
so evidence illegally obtained can be used, and refusing
to answer questions is considered an admission of guilL

DOD spokesman Doug Hart insists the rules are
applied in an "evenhanded" manner and that no abuses
occur. When I recounted specific incidents, he said they
were "impossible." What about servicemembers asked
to turn in others? "You can't ask about other people. It's
explicit in the new directives." Hart said. "It didn't hap-
pen." In December DOD proudly announced that the
discharge figure for fiscal year 1993 showed a drop of
nearly sixty from 199'2. But that figure omitted the 1 15
servicemembers whom DOD wanted to dismiss but
couldn't because of an injunction issued in a case that
challenged the gay ban. In October — one week after
the fiscal year ended — the Supreme Court overturned
the injunction, and all 113 were discharged.

In another disturbing trend, the Pentagon has tried
to recoup scholarships and bonuses from nine service-
members discharged for homosexuality — a practice it
gave up in 1988. In one case, Eric Fenner received a
$4,500 bonus after graduating from training at a Navy
nuclear power plant in 1992. By that time he realized he
was gay but thought "Clinton might change things."
When he later disclosed his homosexuality to a chap-
lain, he was discharged. The next summer he got a letter
from the Defense Financial Services asking for $2,046
back. In another case, the Army is trying to collect
$24,000 of a ROTC scholarship from Michelle Keenan,
who was discharged in .March after she disclosed her
homosexuality. "The military can't have it both ways,"
savs Michelle Benecke, an executive director of the
SLDN. "The military rewarded them with scholarships
and they want to stav. They were kicked out against their
will, for reasons unrelated to their performance." Hart
says it is "endrely appropriate" for Doo to recoup funds,
and claims the practice protects the military from fraud
by those who know they are gay. Yet in 1988. according
to Caniluct L'nbecnmint^. even former Defense Secretary
Dick Cheney agreed the policy was "vindictive" and pri-
vately ordered commanders to back off

One positive result of the debate over the new policy is
that injunctions blocking its implementation have left a
handful of people serving openly and with distinction,
disproving the militarv's claim that cohesion would be
destroved if the gav ban were lifted. .-Vter being thrown
out of the Naw injanuarv 1993 one hour after telling his



commander he was gay, Lt. Dirk Selland filed suit chal-
lenging the ban's constitutionality and was reinstated; he
has now served openly as a gay man for a year and wai
recendy promoted. "It's terrific," says Selland. "I even
danced with the commander's wife." Marine Sgt.Jiutin
Elzie came out on ABC's "World News Tonight" on Jan-
uary 29, the day Senator Sam Nunn forced Clinton to
back off his promise and institute a six-month interim
policy, and was discharged soon after. In October, after
challenging the ban in court, he was reinstated; he is
now the only openly gay servicemember in the Marines,
and he has been recommended for a promouon.

Meanwhile, on April 4 Judge Eugene Nickerson of
New York barred DOD from dismissing six servicemem-
bers in the first legal challenge to the new policy, argu-
ing that it went no further than the old in safeguarding
homosexuals. "The new policy isn't worth the paper it's
written on," Elzie says. "Every day we serve and there's
no bad morale, we're showing it's a big mistake." •



172



THE NEW YORK TIMES. MONDAY. MAY 9. 1994



CAY TROOPS SAY
THE REVISED POLICY
IS OFTEN MISUSED

POLARIZED ATMOSPHERE



New Rules Are Being Used to

Ferret Out Homosexuals,

Rights Advocates Say



By ERICSCHMITT

WASHINGTON, May 7 — In its
tirit two months, the Clinton Admin-
istration's policy on homosexuals in
the military has not made life easier
for many gay servicemen and women
and m some ways has made it worse,
gay service members and their advo-
cates say-

The policy, nicknamed "Don't ask.
don't tell, don't pursue." was meant
to allow homosexuals to serve with-
out fear of persecution if they kept
their se.xual orientation private.

But advocates for homosexual
rights and homosexual service mem-
bers interviewed around the country
say a number of commanders are
misusing the broad new authority
granted under the policy to ferret out
homosexuals.

In addition, while a few gay ser-
vicemen and women said they felt the
new policy had improved conditions,
most of those who were interviewed
said 11 had instead polarized attitudes
toward homosexuals and had shifted
the burden of proof to the service
member if accused of engaging in
homosexual acts.

The evidence on discharge pro-
ceedings is preliminary and largely
anecdotal. The services have dis-
missed more than 125 people tor ho-
mose.xualiiv since the new rules look
effect on Feb. 28. Most cases involve
people 'Jfho wanted to get out and who
received administrative discharges.

But a senior Defense Department
official, who spoke on condition of
anonymity, acknowledged that the



Pentagon had concerns about reports
of "overaggressive enforcement"
and had started efforts to prevent
what he said could be widespread
violations.

Some lawmakers have also heard
complaints that commanders were
bending the policy "The early signs
aren't great." said Representative
Barney Frank, a Massachusetts
.■>emocrat who is one of two openly
)-.ay members of Congress.

More broadly, gay members of the
services say that last year's bitter
battle over the issue has unsettled the
atmosphere of grudging, unofficial
tolerance that prevailed in some
parts of the military under the old
ban. Rather than creating an under-
standing, they say. the debate hard
ened animosities against homosex-
uals.

"It used to be ambiguous, but now
everyone has had to take sides." said
a Navy lieutenant commander in the
wa.shinBiiin area, who like most of ihc
do/cn gay service men and women
interviewed did so on the condition of
anonymity

Under the compromise policy Con-
gress and ihc Clinton Administration
approved lasi year, mililaiy officials
are nm allowed (o ,isk iroops about
(heir sexual status or sl.irt investiga-
tions withoui credible information ol
homosexual acts. The goal was a poli-
cy in which people were punished for
homosexual conduct, or for actions
thai called atlenuon to iheir orienta-
tion, rather than for simply being
homosexual- Homosexual conduct is
defined as a homosexual act. a state-
ment dcmonslraling "a propensity Of
intent to engage m homosexual acts"
or a homosexual marriage.

Mr. Clinion. who had campaigned
for President on a promise to end the
ban. defended ihe compromise by
saying it would end witch hunts
against homosexuals who were serv-
ing without openly displaying their
sexual orientation.

But several marines in Okinawa.
South Carolina and .North Carolina,
now under investigation or facing dis-
charge, have charged ihat their com-
manders bent the new rules to begin
the proceedings. The marines and
their lawyers say the commanders
seized on questionable information or
intimidated co-workers of marines
whom commanders suspect are gay
into making accusations.

"The new policy is actually worse
because it leaves more responsibility
at the commander's discretion, but a
lot of investigations start with homo-
phobic commanders." said Sgt. Jus-
tin Elzie. a gay marine at Camp Le-



jeune. N.C.. who has filed suit to block

the mililary from discharging him.

■Following the Letter'

A Marine Corps spokesman. Chief
Warrant Officer Bill Wright, said that
he was unaware of any violations in
enforcement and that he was "very
confident Ihat commanders are fol-
lowing Ihe letter of the policy."

Some homosexuals in the military
say the policy has helped in small but
meaningful ways "If a male friend
calls. I don'l have to feel threatened
anymore." said a 44-year-old Air
Force lieutenant colonel based in Col-
orado "I ai'.vays had some concern
when that happened before."

But the consensus among most
troops — heterosexual and homosex-
ual — is that last year's painful de-
bate produced a policy that in prac-


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Online LibraryUnited States. Congress. House. Committee on VeterViewpoints on Veterans Affairs and related issues : hearing before the Subcommittee on Oversight and Investigations of the Committee on Veterans' Affairs, House of Representatives, One Hundred Third Congress, second session, May 4, 1994 → online text (page 20 of 23)