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New Policies for Homosexual Discharges

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Updated March 27, 2010

Secretary of Defense Robert Gates has issued new rules concerning "Don't Ask, Don't Tell," which will make it much harder for military commands to discharge gay servicemembers.The changes are a result of a 45-day review of the current policy, which Gates ordered last month. According to Gates, the new policy is a “fairer and more appropriate” enforcement of the military’s “don’t ask, don’t tell” policy that bans open service by gays.

One of the most significant changes is that homosexual dischage proceedings now require General Officer or, (for the Navy) Flag Officer (O-7 or above) invovement. In my experience, commanders are reluctant to involve such senior officers in routine unit disciplinary procedures, so I expect this new policy alone will bring homosexual discharges in the Military to almost zero.

During a Pentagon news briefing, Gates said,“These changes reflect some of the insights we have gained over 17 years of implementing the current law, including the need for consistency, oversight and clear standards...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, to a process for handling what are difficult and complex issues for all involved.”

The new rules are effective immediately, and include:

* Only a general (or flag) officer may order a fact-finding investigation or a discharge for homosexual conduct.Under the old policy, any commanding officer could initiate such.

*Investigating officers forfact-finding inquiries regarding homosexual conduct must be in the paygrade of O-5 or above. Previously, any commissioned officer could conduct such inquiries.

* Homosexual discharges can only be approved by a general officer or flag officer (O-7 or above) in the servicemember's chain of command.Previously any commanding officer in the member's chain of command could approve such discharges.

*Re-define what constitutes "credible information" to initiate an investigation.All accusations and witness statements must now be given under oath. Overheard statements and hearsay information is discouraged.

* Change what is considered to be a “reliable person” upon whose word an inquiry can be initiated, with special scrutiny on third parties who may be motivated to harm the service member.

* Prohibits certain information from being used. This includes information provided to lawyers, clergy and psychotherapists; provided to a medical professional in the course of medical treatment; provided in the course of seeking professional assistance for domestic or physical abuse; and information about sexual orientation or conduct obtained in the course of security clearance investigations.

These new rules will make it extremely hard for commanders to initiate discharge proceedings for gay service members, in my opinion. I expect homosexual discharges to drop to nearly zero.

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