A sample military homosexual policy
Jamie Howarth
version of a military service's new "Don't ask/Don't tell" policy.
POLICY ON HOMOSEXUAL CONDUCT IN THE COAST GUARD
Reference:
A. COMDT COGARD WASHINGTON DC 091405Z FEB 93/ALCOAST 014/93
B. PERSONNEL MANUAL, COMDTINST M1000.6A
1. The purpose of this ALCOAST is to provide policy
guidance concerning homosexual conduct in the Coast Guard.
This action will implement the policy that was announced
by President Clinton in Jul 93 and will keep the Coast
Guard in lock step with the other military services. The
following definitions apply:
a. Homosexual conduct: a homosexual act, a statement
by the member or applicant that demonstrates a propensity
or intent to engage in homosexual acts, or a homosexual
marriage or attempted marriage.
b. Homosexual act:
(1) any bodily contact, actively undertaken or
passively permitted, between persons of the same sex for
the purpose of satisfying sexual desires; and
(2) any bodily contact (e.g., hand-holding or
kissing, in most circumstances) that a reasonable person
would understand to demonstrate a propensity or intent to
engage in such an act.
c. Propensity to engage in homosexual acts: more than
an abstract preference or desire to engage in homosexual
acts; it indicates a likelihood that a person engages in
or will engage in homosexual acts.
d. Statement that a member, applicant, or inductee is a
homosexual or bisexual, or words to that effect: language
or behavior that a reasonable person would believe
intended to convey the statement that a person engages in,
attempts to engage in, or has a propensity or intent to
engage in homosexual acts. This may include statements
such as "I am a homosexual," "I am gay," "I am a lesbian,"
"I have a homosexual orientation," and the like.
e. Sexual orientation: an abstract sexual preference
for persons of a particular sex, as distinct from a
propensity or intent to engage in sexual acts.
f. Sexual misconduct: a sexual act in violation of the
UCMJ that occurs between consenting adults, in private,
whether on or off a military installation. It does not
include sexual acts involving force, coercion, or
intimidation; abuse of position or rank; fraternization;
with persons under the age of 16; or conduct that relates
directly to applicable security standards for access to
classified information.
2. This new policy applies to all active and reserve
officers and enlisted members, officer candidates, and
academy cadets. Five functional areas are covered by the
new policy:
a. Accessions:
(1) a person's sexual orientation is considered a
personal and private matter and is not a bar to service
entry or continued service unless manifested by homosexual
conduct. Applicants for enlistment, appointment, or
induction shall not be asked or required to reveal whether
they are heterosexual, homosexual, or bisexual.
Applicants also will not be asked or required to reveal
whether they have engaged in homosexual conduct, unless
independent evidence is received indicating that an
applicant engaged in such conduct or unless the applicant
volunteers a statement that he or she is a homosexual or
bisexual, or words to that effect.
(2) Homosexual conduct is grounds for barring entry
into the Coast Guard, as follows:
(a) if evidence is received indicating that an
applicant engaged in, attempted to engage in, or solicited
another to engage in homosexual acts, the applicant shall
be rejected for entry into the Coast Guard, unless there
is a further determination that such acts are a departure
from the applicant's usual and customary behavior; such
acts, under all the circumstances, are unlikely to recur;
such acts were not accomplished by the use of force,
coercion, or intimidation; and the applicant does not have
a propensity or intent to engage in homosexual acts. Such
a determination will be made in the course of the normal
accession process.
(b) an applicant shall be rejected for entry
into the Coast Guard if he or she makes a statement that
he or she is a homosexual or bisexual, or words to that
effect, unless there is a further determination that the
applicant has demonstrated 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. Such
a determination will be made in the course of the normal
accession process.
(c) an applicant shall be rejected for entry
into the Coast Guard if, in the course of the accession
process, evidence is received demonstrating that an
applicant has married or attempted to marry a person known
to be of the same biological sex (as evidenced by the
external anatomy of the persons involved).
(3) all applicants and inductees will be advised
before enlistment, commissioning, or induction that
homosexual conduct is grounds for separation from the
Coast Guard. Failure to receive such information shall
not constitute a defense in any administrative or
disciplinary proceeding.
(4) nothing in this accession policy requires
rejection for entry into the Coast Guard when it is
determined that:
(a) an applicant or inductee made a statement,
engaged in acts, or married or attempted to marry a person
of the same sex for the purpose of avoiding military
service; and
(b) rejection of the applicant or inductee would
not be in the best interest of the Coast Guard.
b. Separations:
(1) separation policy is revised to emphasize that
the suitability of persons to serve in the Coast Guard
will be judged on the basis of conduct and their ability
to meet required standards of duty performance and
discipline. A member's sexual orientation is considered a
personal and private matter and is not a bar to continued
service unless manifested by homosexual conduct as
described below. There are three bases for separation:
(a) homosexual acts: a servicemember shall be
separated if he or she has engaged in, attempted to engage
in, or solicited another to engage in homosexual acts,
unless there are approved further findings that such acts
are a departure from the member's usual and customary
behavior; such acts under all the circumstances are
unlikely to recur; such acts were not accomplished by the
use of force, coercion, or intimidation; under the
particular circumstances of the case, the member's
continued presence in the Coast Guard is consistent with
the interest of the service in proper discipline, good
order, and morale; and that the member does not have a
propensity or intent to engage in homosexual acts.
(b) statements: a servicemember shall be
separated if he or she states that he or she is a
homosexual or bisexual, or words to that effect, unless
there is a further approved finding that the servicemember
has demonstrated 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. A
statement by a servicemember that he or she is a
homosexual or bisexual, or words to that effect, creates a
rebuttable presumption that the servicemember engages in,
attempts to engage in, has a propensity to engage in, or
intends to engage in homosexual acts. The servicemember
shall be advised of this presumption and given the
opportunity to rebut the presumption by presenting
evidence demonstrating that he or she does not engage in,
attempt to engage in, have a propensity to engage in, or
intend to engage in homosexual acts. In determining
whether a member has successfully rebutted the presumption
that he or she engages in, attempts to engage in, or has a
propensity or intent to engage in homosexual acts, some or
all of the following may be considered: whether the member
has engaged in homosexual acts; the member's credibility;
testimony from others about the member's past conduct,
character, and credibility; the nature and circumstances
of the member's statement; and any other evidence relevant
to whether the member is likely to engage in homosexual
acts (this list is not exhaustive; any other relevant
evidence may also be considered). A statement by a member
that demonstrates a propensity or intent to engage in
homosexual acts is grounds for separation not because it
reflects the member's sexual orientation, but because the
statement indicates a likelihood that the member engages
in or will engage in homosexual acts.
(c) marriages: a servicemember shall be
separated if he or she has married or attempted to marry a
person known to be of the same biological sex (as
evidenced by the external anatomy of the persons
involved).
(2) procedures: separation processing shall be
conducted as follows:
(a) commissioned officers: all commissioned
officers will be processed for separation IAW article 12-
a-15 of ref b for alleged homosexual conduct. The board
of inquiry makes findings and recommendations based on a
preponderance of evidence. The commissioned officer shall
bear the burden of proving throughout the proceedings, by
a preponderance of the evidence, that retention is
warranted under the limited circumstances described in
subparagraphs 2b(1)(a),(b), and (c) above. Both the
determination board and the board of inquiry shall make
specific findings of the reasons warranting retention or
not warranting retention and, if appropriate, stating the
character of discharge to be issued. A commissioned
officer may be considered for separation under all the
reasons in ref b and those set forth in subparagraphs
2b(1)(a),(b), and (c) above; however, separate findings
under each applicable section shall be required as to the
reasons for separation.
(b) warrant officers: warrant officers will be
processed for separation IAW article 12-a-21 of ref b for
alleged homosexual conduct. When evaluation boards are
convened and board of inquiry procedures are followed in
cases of homosexual conduct, the same procedures as
described above for commissioned officers apply to warrant
officers.
(c) enlisted members: all servicemembers being
processed for separation for homosexual conduct will be
informed in writing of the reason(s) for being considered
for separation under this policy and of their rights.
Service members with less than 180 days service upon
notification of discharge will be processed for separation
IAW article 12-b-20 of ref b. Servicemembers with 180 days
or more service upon notification of discharge shall be
entitled to an administrative discharge board. However,
this board may be waived by the servicemember. The
administrative board procedures established in article 12-
b-31 of ref b shall be used, subject to the following
guidance:
(1) separation processing shall be initiated
if there is probable cause to believe separation is
warranted under subparagraphs 2b(1)(a),(b), and (c) above.
Fact-finding procedures are outlined in subparagraph 2b(4)
below.
(2) if the board finds that one or more of
the circumstances authorizing separation under
subparagraphs 2b(1)(a), (b), and (c) above is supported by
the evidence, the board shall recommend separation unless
the board finds that retention is warranted under the
limited circumstances described in those subparagraphs.
(3) the member shall bear the burden of
proving, by a preponderance of the evidence, that
retention is warranted under the limited circumstances
described in subparagraphs 2b(1)(a),(b), and (c) above,
except in cases where the servicemember's conduct was
solely the result of a desire to avoid or terminate
military service.
(4) findings regarding whether or not
retention is warranted under the limited circumstances
described in subparagraphs 2b(1)(a),(b), and (c) above are
required if the member clearly and specifically raises
such limited circumstances.
(5) if the board does not find sufficient
evidence that one or more of the circumstances authorizing
separation under subparagraphs 2b(1)(a),(b), and (c) above
has occurred, the board shall recommend retention unless
the case involves another basis for separation of which
the member has been duly notified.
(d) action of separation authority regarding
enlisted separations where an administrative discharge
board is required:
(1) if the board recommends retention, the
separation authority shall either: approve the finding
and direct retention; or disapprove the finding and direct
separation on the basis that one or more of the
circumstances authorizing separation under subparagraphs
2b(1)(a),(b), and (c) above has occurred.
(2) if the board recommends separation, the
separation authority shall either: approve the finding
and direct separation; or disapprove the finding on the
basis that there is insufficient evidence to support the
finding or retention is warranted under the limited
circumstances described in subparagraphs 2b(1)(a),(b), and
(c) above.
(3) if there has been a waiver of the board
proceedings, the separation authority shall dispose of the
case as follows: if the separation authority determines
that there is not sufficient evidence to support
separation under subparagraphs 2b(1)(a),(b), and (c)
above, the separation authority shall direct retention
unless there is another basis for separation for which the
member has been duly notified; or if the separation
authority determines that one or more of the circumstances
authorizing separation under subparagraphs 2b(1)(a),(b),
and (c) above has occurred, the member shall be separated
unless retention is warranted under the limited
circumstances described in those subparagraphs.
(e) nothing in these separation procedures,
regarding either commissioned officers, warrant officers,
or enlisted members, requires that a member be processed
for separation when a determination is made that the
member engaged in acts, made statements, or married or
attempted to marry a person known to be of the same
biological sex for the purpose of avoiding or terminating
military service and separation of the member would not be
in the best interests of the Coast Guard. Furthermore,
nothing in these procedures precludes: retention of a
member for a limited period of time in the interests of
national security as authorized by the secretary;
separation in appropriate circumstances for another reason
set forth in ref b; or trial by court-martial in
appropriate cases.
(3) characterization of discharge: if a
servicemember is discharged for engaging in homosexual
conduct, the discharge will be characterized as
"honorable" or "under honorable conditions." However, a
member may be discharged with a characterization of "under
other than honorable conditions" if the member attempted,
solicited, or committed a homosexual act under any of the
following circumstances: by using force, coercion, or
intimidation; with a person under 16 years of age; with a
subordinate in circumstances that violate customary
military superior-subordinate relationships; openly in
public view; for compensation; aboard a military vessel or
aircraft; or in another location subject to military
control under aggravating circumstances.
(4) command inquiries:
(a) commanding officers may initiate fact-
finding inquiries into alleged homosexual conduct only
after receiving credible information that there is a basis
for discharge. Credible information exists when the
information, considering its source and the surrounding
circumstances, supports a reasonable belief that there is
a basis for discharge. It requires a determination based
on articulable facts, not just a belief or suspicion. A
fact-finding inquiry may be conducted by the commanding
officer personally or by a person he or she appoints.
(b) credible information of homosexual conduct
does not exist when the only information known concerns an
associational activity (e.g.., Going to a gay bar,
possessing or reading homosexual publications, associating
with known homosexuals, or marching in a gay rights rally
in civilian clothes). Such activity, in and of itself,
does not provide evidence of homosexual conduct. Credible
information does exist, however, if a reliable person
states that he or she observed or heard a servicemember
engaging in homosexual acts or saying that he or she is a
homosexual or bisexual or is married to a person of the
same sex; or a reliable person states that he or she
heard, observed, or discovered a member make a spoken or
written statement that a reasonable person would believe
was intended to convey the fact that he or she engages in,
attempts to engage in, or has a propensity or intent to
engage in homosexual acts; or a reliable person states
that he or she observed behavior that amounts to a non-
verbal statement by a member that he or she is a
homosexual or bisexual, i.e., Behavior that a reasonable
person would believe was intended to convey the statement
that the member engages in, attempts to engage in, or has
a propensity or intent to engage in homosexual acts.
(c) servicemembers will not be asked about or
required to reveal whether they are a heterosexual,
homosexual, or bisexual. However, upon receipt of credible
information of homosexual conduct, commanders or appointed
inquiry officials may ask members if they engaged in such
conduct. But the member should first be advised of the
policy on homosexual conduct and rights under art. 31,
UCMJ, if applicable. Should the member choose not to
discuss the matter further, the commander should consider
other available information.
(d) all credible information should be gathered
that directly relates to the grounds for possible
separation and inquiries should be limited to the factual
circumstances directly related to the specific
allegations. Informal fact-finding inquiries and
administrative separation procedures are the preferred
method of addressing homosexual conduct. Servicemembers
may be subject to disciplinary action or trial by court-
martial, however, in appropriate circumstances.
(e) nothing in this provision precludes
questioning a member about any information provided by the
member in the course of the fact-finding inquiry or any
related proceeding, nor does it provide the member with
any basis for challenging the validity of any proceeding
or the use of any evidence, including a statement by the
member, in any proceeding.
c. Criminal investigations: no investigations will be
conducted solely to determine whether a servicemember is a
heterosexual, homosexual, or bisexual. Criminal
investigations will not normally be initiated into adult
private consensual sexual misconduct where such misconduct
is the only offense involved. Absent aggravating
circumstances, allegations of adult private consensual
sexual misconduct will be referred to the servicemember's
commander. If the commander determines that there is
credible information of adult private consensual sexual
misconduct, he or she may request a criminal investigation
by Coast Guard investigations (CGI). Upon receiving such
a request, CGI must then independently evaluate and make a
determination whether the request is based on credible
information of adult private consensual sexual misconduct
prior to initiating a criminal investigation. All
investigations will be conducted in an evenhanded manner,
without regard to whether the alleged sexual misconduct
involves homosexual or heterosexual conduct. These
provisions do not provide a basis for challenging the
validity of any administrative or criminal proceeding or
for excluding the use of any evidence in such proceeding.
d. Personnel security investigations: after DOD
finalizes its policy, the Coast Guard will issue separate
guidance.
e. Military training: in conjunction with briefings
under article 137 of the UCMJ, which are required upon
entry and periodically thereafter, servicemembers will be
informed of the Coast Guard's policy on sexual conduct,
including homosexual conduct. This is a command
responsibility, not a procedural entitlement. Failure on
the part of the member to receive or to understand such
explanation does not create a bar to separation or
characterization. Additionally, supporting materials are
being developed for commanding officers and personnel
involved in recruiting, accession processing, criminal
investigations, and administrative separations. These
supporting materials will include detailed hypothetical
cases that illustrate how military personnel should
approach specific, concrete scenarios under the new policy
on homosexual conduct in the Coast Guard.
3. Implementing regulations for Coast Guard Academy cadets
will be published separately.
4. These policy changes are effective immediately.
Presently, action is being taken to incorporate these
changes into existing regulations (e.g., Personnel Manual,
Recruiting Manual) and to create new regulations as
necessary. This ALCOAST will serve as guidance to
implement the new policy until the actual changes to
existing regulations and new regulations are released.
The policy and procedures announced in ref a are hereby
cancelled.
--
________________________________----+----_________________________________
"Come on down to the river of | - | ja...@panix.com
sight and you can really | - | (Jamie Howarth)
understand" - Neil Young | - |