The Flint Hills Observer
March 1997

Conduct Unbecoming: Third Annual Report On "Don't Ask, Don't Tell, Don't Pursue": Executive Summary
by Kirk Childress, Esq., Staff Attorney, Servicemembers Legal Defense Network

"Don't Ask, Don't Tell, Don't Pursue" is evolving into a Machiavellian system where the ends justify the means. In 1996, the armed forces repeatedly excused violations of current law including witch hunts, seizure of personal diaries, and threatening servicemembers with prison unless they accused others as gay--all in an effort to target and ferret out gay men and women who serve our country. The result is that gay discharges have soared to a five-year high at a cost exceeding $25 million in 1996. The findings of the third annual report by Servicemembers Legal Defense Network (SLDN) on "Don't Ask, Don't Tell, Don't Pursue" include:

1. The Department of Defense (DOD) discharged 850 people under "Don't Ask, Don't Tell, Don't Pursue" in fiscal year 1996--a five-year high, and the highest rate of discharge since 1987.
2. SLDN documented 443 specific violations where suspected gay servicemembers were asked, pursued and harassed.
3. Women were disproportionately targeted, accounting for 29% of gay discharges, despite making up only 13% of the active force. In the Army, women accounted for 41% of gay discharges, three times their presence in the service. Women are often accused as gay after rebuffing men's sexual advances or reporting sexual abuse, regardless of their actual orientation.
4. DOD continues to criminally prosecute servicemembers for allegations of gay, but not straight, consensual relationships, contrary to regulations requiring even-handed treatment in the criminal system.
5. The physical torture of suspected gay servicemembers seems to have ended. Tactics under prior policies included forced "neurological testing," like that endured by former Lieutenant Jay Hatheway, and locking military members in broom closets with no personal breaks until they "confessed" to being gay.

RECOMMENDATIONS
SLDN concludes that many military members continue to ask, pursue and harass servicemembers in direct violation of "Don't Ask, Don't Tell, Don't Pursue." The violations result from a lack of leadership, training and recourse to stop illegal investigations. Some commanders, criminal investigators and inquiry officers blatantly disregard the clear limits on gay investigations. Others simply do not know any better, as the services have failed to implement adequate, ongoing training in the field. Lastly, those accused under "Don't Ask, Don't Tell, Don't Pursue" have no recourse to stop improper investigations before it is too late. SLDN recommends that DOD take the following steps to stop the continuing abuses of the law:

1. Train all military personnel about the letter and intent of "Don't Ask, Don't Tell, Don't Pursue," emphasizing the limits placed on investigations into gay accusations. Most servicemembers report that they have received no training or only cursory, one-time training three years ago, when the law was implemented.
2. Discipline commanders who disobey the limits on investigations and who tolerate harassment. The law and regulations will be respected when commanders know that they will be held accountable for their actions.
3. Allow women to report sexual abuse without fear that they will be accused and discharged as lesbians in retaliation. Officials should adopt, as a first step, the 1989 recommendation of the Defense Advisory Committee on Women in the Services to train commanders on the potential misuse of gay accusations.
4. Provide servicemembers with a way to report anti-gay harassment, including death threats and hate crimes, without fear of retribution and discharge.
5. Exclude evidence that has been wrongfully obtained from being used at an administrative discharge board, as suggested by a 1995 report by the Advisory Board on DOD Investigative Capability.
6. Stop selective criminal prosecution of servicemembers for allegations of adult, consensual gay relationships in circumstances where heterosexuals would not be prosecuted, as required by the regulations.
7. Revise and replace obsolete recruiting forms written in January 1989 (DD Form 1966/1) with ones that do not ask recruits about their sexual orientation or conduct.
8. Require commanders to reveal in writing to the servicemember the specific reason an inquiry or investigation has been initiated against the servicemember so that (s)he knows what the allegations are and can provide commanders an appropriate response to expeditiously resolve and end unwarranted investigations.
9. Require commanders to not intrude into private conversations between gay servicemembers and their families, doctors and other health care professionals and not use such statements as the basis for retribution, investigation and discharge.
10. Make clear to commands that, under current law, inquiries and investigations can only be started with credible information. Not all information is credible, such as rumors or retaliatory accusations. Commanders cannot start inquiries on the theory that they will discover credible information if they investigate.
11. Discharge expeditiously individuals who come out as gay to commanders rather than launch costly, wide-ranging investigations to establish bases for criminal charges or reduced benefits against the servicemember.
12. Rescind the Department of Defense, Air Force and Navy memoranda that provide confusing and contradictory guidance to military personnel regarding the original letter and intent of the law not to pursue suspected gay servicemembers.

DOD should adopt these recommendations as a first step to bring itself into compliance with the current law and regulations. These recommendations, if fully implemented, would marginally improve the safety of servicemembers' daily lives. They would not eliminate or alter "Don't Ask, Don't Tell, Don't Pursue," which requires administrative separation of servicemembers who say that they are gay, engage in affectional or sexual conduct with someone of the same gender, or attempt to marry a person of the same gender. These recommendations would in no way cure the constitutional defects of the law, which punishes gay servicemembers for saying and doing the same things permitted to their straight counterparts.