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February 1, 1996
Task Force: Ms. Sarah E. Gallop; Professor Stephen C. Graves, Task Force Chair; Professor Kenneth R. Manning; Mr. Alan E. Pierson; Professor Lisa A. Steiner; Mr. Frank P. Tipton; Professor J. Kim Vandiver; Professor William B. Watson
The Department of Defense (DOD) policy on gays in the military also applies to ROTC. [1] Before 1993, gays were barred from service in the military based on their sexual orientation, whether or not they actually engaged in sexual activity with someone of the same sex. All inductees were required to state whether or not they were gay, and commanding officers were authorized to investigate anyone whom they suspected of being gay.
After 1993, DOD announced a new policy on gays, which was called "don't ask, don't tell, don't pursue," or just "don't ask, don't tell." Gays may enter and stay in the military as long as they do not reveal a homosexual orientation or engage in "homosexual conduct." Inductees to ROTC or other branches of the military are not asked about their sexual orientation. Commanding officers are not allowed to investigate sexual conduct on their own initiative. However, if a cadet does reveal his or her homosexuality, or if the military receives "credible" evidence that someone is engaging in "homosexual conduct," then an investigation will begin and the cadet may be discharged. [2]
If the cadet reveals his or her homosexuality but desires to remain in the military, then the cadet must prove that "he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." If the cadet successfully rebuts the presumption of homosexual conduct, then the cadet may remain in the military. [3]
"Homosexual conduct" includes any "homosexual act," which is defined as "any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires," or "any bodily contact that a reasonable person would understand to demonstrate a propensity or intent to engage in [the above]." [4] Such acts range from hand-holding [5] to sexual relations. Homosexual conduct also includes any statement "that demonstrates a propensity or intent to engage in homosexual acts," or a marriage or attempt at marriage with someone of the same sex. [6] However, possessing or reading gay publications or gay-related literature, patronizing gay bars and nightclubs, or attending gay events (in civilian clothes) does not in and of itself constitute an infraction of the policy. [7]
Although commanding officers may not ask about sexual orientation, credible evidence may be presented by other cadets or officers about a particular cadet's conduct, and an investigation may be initiated on those grounds. Such evidence includes seeing or hearing homosexual acts; hearing that a cadet intends to marry or is married to someone of the same sex; hearing, observing, or discovering some statement from a cadet that conveys the fact that he or she engages or intends to engage in homosexual acts; or observing some behavior that amounts to a non-verbal statement of the same. [8]
Given credible evidence of homosexual acts, an investigation will end in disenrollment unless the following findings are all made: "(a) such acts are a departure from the member's usual and customary behavior; (b) such acts under all the circumstances are unlikely to recur; (c) such acts were not accomplished by the use of force, coercion, or intimidation; (d) under the particular circumstances of the case, the member's continued presence in the Armed Forces is consistent with the interest of the Armed Forces in proper discipline, good order, and morale; and (e) the member does not have a propensity or intent to engage in homosexual acts." [9]
There may be some discretion in how the policy is implemented by commanders. "Commanders shall exercise sound discretion regarding when credible information exists. They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken." [10]
Prior to 1990, disenrolled cadets were liable for reimbursement to the military for expended scholarship funds. In 1989, an MIT cadet was discharged after revealing his homosexual orientation. He was initially asked to reimburse the DOD for approximately $39,000 of scholarship money. After a court challenge, DOD waived the requirement for reimbursement for that particular case. At the current time, DOD determines reimbursement policy for ROTC scholarships on a case-by-case basis. [11]
Any statistical portrait of the impact of the new policy is necessarily incomplete, whether in reference to ROTC or across the military as a whole. Below are some figures:
Endnotes
1. This section is written in reference to ROTC, though the policies described apply to all service members in the armed forces. For the purposes of this report, "cadet" refers to ROTC cadet or midshipman, and "gay" refers to gay, lesbian, or bisexual. For the DOD definition of "homosexual conduct," see below.
2. The DOD directives, instructions, and enclosures therein (of Dec. 22, 1993) that are relevant to the new policy, as stipulated by the National Defense Authorization act for FY1994, include: DODD 1304.26, "Qualification Standards for Enlistment, Appointment and Induction;" DODD 1332.14, "Enlisted Administrative Separations;" DODD 1332.30, "Separations of Regular Commissioned Officers;" DODI 5505.8, "Investigations of Sexual Misconduct by the Defense Criminal Investigative Organizations and other Law Enforcement Organizations;" revised DIS Manual 20-1, "Sexual Conduct;" and DODD 1322.18, "Military Training." An overview of the entire policy may be found as an attachment to DOD News Release No. 605-93 (Dec. 22, 1993), "Secretary Aspin Releases New Regulations on Homosexual Conduct in the Armed Forces."
3. DODD 1332.14, Enclosure 3, "Standards and Procedures," paragraph H.1.b.2.
4. DODD 1332.14, Enclosure 2, Definition F, "Homosexual Act."
5. DOD Memo from Asst. Sec. of Defense Edwin Dorn to Asst. Secs. of the Army (Manpower Reserve Affairs), Navy (Manpower and Reserve Affairs), and Air Force (Manpower, Reserve Affairs, Installations, & Environment), Dec. 22, 1993, Attachment "DOD Policy on Homosexual Conduct Training Plan," subattachment of "Hypothetical Teaching Scenarios," Situation 2.
6. DODD 1332.14, Enclosure 2, Definition G, "Homosexual Conduct."
7. DODD 1332.14, Enclosure 4, and DODD 1332.30, Enclosure 8, entitled "Guidelines for Fact-Finding Inquiries into Homosexual Conduct," paragraph E.4.
8. This is a paraphrase of DODD 1332.14, Enclosure 4, and DODD 1332.30, Enclosure 8, paragraphs F.1-3.
9. DODD 1332.14, Enclosure 3, paragraph H.1.b.1.
10. DODD 1332.14, Enclosure 4, and DODD 1332.30, Enclosure 8, paragraph D.2. See also DODI 5505.8, paragraph F.2.
11. (see Section 2005, Title 10, U.S. Code in effect on or before June 26, 1990).
12. Data provided by the MIT Army ROTC Program.
13. Figure calculated from report by C. Dixon Osburn et al., "Conduct Unbecoming Continues: The First Year Under 'Don't Ask, Don't Tell, Don't Pursue'," Servicemembers Legal Defense Network, February 28, 1995.
14. NYT, March 13, 1995, p. A1.
15. NYT, January 17, 1996, p. A8.
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