Among the U.S. Army Reserves and National Guard service members, like these, serving in Iraq are some who are openly gay because of a little known policy that requires they be deployed into a war zone even if they are discovered to be gay before leaving the United States. (Photo by AP)
MORE INFO Center for the Study of Sexual Minorities
in the Military
University of California, Santa Barbara
Number of discharges under ‘Don’t Ask, Don’t Tell’ policy
The number of military discharges of service members who identify as gay has increased steadily since the implementation of the “Don’t Ask, Don’t Tell” policy except for during two periods when U.S. military forces were deployed in war zones. In 1999, the United States increased its presence in the Bosnia-Kosovo conflict in the Balkans. In 2002 the U.S. sent troops to Afghanistan and in 2003 to Iraq, where they are still deployed today.
Members of the Army Reserves and the National Guard who inform their commanders that they are gay are routinely converted into active duty status and sent to the Iraq war and other high priority military assignments, according to a spokesperson for an Army command charged with deploying troops.
The spokesperson, Kim Waldron, a civilian who works for the U.S. Army Forces Command at Fort McPherson, Ga., said the active duty deployment of Reservists and National Guard troops who say they are gay, or who are accused of being gay, takes place under a Forces Command or “FORSCOM” regulation issued in 1999.
Waldron said the regulation is aimed at preventing Reservists and National Guard members from using their sexual orientation — or from pretending to be gay — to escape combat.
“The bottom line is some people are using sexual orientation to avoid deployment,” Waldron said. “So in this case, with the Reserve and Guard forces, if a soldier ‘tells,’ they still have to go to war and the homosexual issue is postponed until they return to the U.S. and the unit is demobilized.”
Waldron was referring to the military’s “Don’t Ask, Don’t Tell” policy on gays, which Congress enacted into law in 1993. The policy states that gays may serve in the military as long as they do not disclose their sexual orientation.
Disclosure by a service member that he or she is gay, the policy states, constitutes evidence that the service member is likely to engage in “homosexual conduct,” which is prohibited under the anti-sodomy clause of the Uniform Code of Military Justice.
Waldron said the FORSCOM regulation doesn’t conflict with the “Don’t Ask, Don’t Tell” policy because Department of Defense regulations that implemented “Don’t Ask, Don’t Tell” provide for a similar procedure for retaining service members who attempt to circumvent deployment by claiming they are gay.
Acknowledgement follows years of Pentagon denials
The existence of the 1999 FORSCOM regulation was revealed earlier this month by the Center for the Study of Sexual Minorities in the Military, a think tank affiliated with the University of California at Santa Barbara. In a news release issued on Sept. 13, the group said its researchers discovered the document while assisting the ABC television program “Nightline” with research on gays in the military.
Aaron Belkin, executive director of the CSSMM, said he was “astonished” that a military spokesperson has confirmed that military commanders routinely deploy service members thought to be gay into active duty assignments.
“The Pentagon has consistently denied that, when mobilization requires bolstering troop strength, it sends gays to fight despite the existence of a gay ban,” Belkin said.
The CSSMM and gay rights groups have asserted for years that gay service members whose sexual orientation becomes known are often retained during wartime, only to be discharged after they return home.
Statistics released by the DOD show that the number of gay discharges rose steadily between 1993, when “Don’t Ask, Don’t Tell” was adopted, and 2001, when the U.S. deployed troops to Afghanistan following the Sept. 11 terrorist attacks.
The number of gay discharges peaked in 2001 at 1,227, according to DOD figures. By 2004, as U.S. soldiers continued to fight the war in Iraq, the number of gay discharges dropped to 653.
Lt. Col. Ellen Kranke, a DOD spokesperson at the Pentagon, said the DOD has no comment on the FORSCOM regulation other than that the “Don’t Ask, Don’t Tell” policy remains in effect.
“Our policy has not changed,” she said.
Belkin and others familiar with the military’s “Don’t Ask, Don’t Tell” policy have said they learned through anecdotal reports that some commanders routinely allow known gays to remain in the service while other commanders have taken steps to quickly discharge service members who acknowledge being gay or who are discovered to be gay.
Belkin said the discovery of the FORSCOM regulation represents the first written documentation stating that military commanders actually deploy soldiers suspected of being gay or who admit to being gay to active duty assignments.
“Scholars, lawyers and, most importantly, gay service members themselves, have long known of the military’s practice of looking the other way when it’s time to fight a war,” Belkin said. “Now we have documentation showing this has been a deliberate policy.”
The handbook document in question, FORESCOM Regulation 500-3-3, is called “FORSCOM Mobilization & Deployment Planning System: Volume III Reserve Component Unit Commander’s Handbook.”
The handbook states that if a discharge of a Reservist or National Guard member for homosexual conduct "is not requested prior to the unit's receipt of alert notification, discharge is not authorized. Member will enter AD [active duty] with the unit."
FORSCOM spokesperson Waldron said an alert notification means that the unit in which a Reserve or National Guard soldier is assigned has been converted into active duty status.
According to the handbook, if a discharge has been requested and approved for a service member accused of homosexual conduct "prior to the unit's receipt of alert notification, the member will be discharged prior to the unit's effective date" of active duty. If a gay-related discharge was requested, "but not yet approved," at the time of an alert notification, the handbook says, the service member's entry into active duty will be delayed "pending final determination."
Waldron said that in the latter category, it would be up to a unit commander to determine whether a service member who claimed he or she was gay or who had been accused of being gay and in violation of the "Don't Ask, Don't Tell" policy should be discharged or placed on active duty and to join the unit about to be deployed.
Efforts to repeal ‘Don’t Ask’
Belkin said the confirmation by FORSCOM spokesperson Waldron further confirms that gay service members are retained during wartime and adds to what he says is a growing momentum calling on Congress to repeal the “Don’t Ask, Don’t Tell” policy.
A repeal bill pending in the House of Representatives currently is expected to line up more than 100 co-sponsors by the end of this year, supporters have said.
The Servicemembers Legal Defense Network, a Washington, D.C. based organization that assists members of the military that face expulsion under the “Don’t Ask, Don’t Tell” policy, initially questioned whether the FORSCOM regulation had ever been implemented.
"We have assisted many active duty soldiers who have been removed from the war zone because of the 'Don't Ask, Don't Tell' policy," said Steve Ralls, a spokesperson for SLDN.
"The fact is that gay discharges continue, including discharges of active duty service members in Iraq," said Ralls, a development, he said, that has led SLDN to believe no such policy of retaining gay service members existed.
But upon learning about Waldron's confirmation of the policy, Ralls said SLDN reviewed its own records of the group's assistance to specific service members accused of violating the "Don't Ask, Don't Tell" policy.
"Our attorneys did a review of our recent cases and they did not come up with any cases where a Reservist or Guard member was discharged for coming out [as gay]," Ralls said. "They had cases where a Reservist and National Guardsman who came out was deployed," he said.
"What this document shows is that someone within the armed forces who wrote it felt that gays could serve during wartime without disrupting morale and unit cohesion," Ralls said, in discussing the FORSCOM regulation. "That is a very significant development."
Bridget Wilson, a San Diego, Calif., attorney who specializes in military law and represents clients for SLDN, said the FORSCOM regulation does not conflict with the “Don’t Ask, Don’t Tell” policy. She said DOD regulations implementing the policy include a little noticed loophole that has allowed commanders to retain gay service members since 1994.
The DOD regulations, which pre-date the FORSCOM regulation, were intended to address the same issue as the FORSCOM rules, Wilson said: the problem of service members who claim to be gay to avoid wartime deployment or to merely end their service whenever they wish.
According to Wilson, the DOD regulation states, in part, “Nothing [in the homosexual conduct policy] requires that a member be discharged for the purpose of avoiding or terminating military service.”
“It does not say you have to be lying about your sexual orientation,” Wilson said. As long as military officials determine that a service member is invoking the gay conduct policy to avoid service, she said, the DOD regulation gives commanders the discretion to waive the discharge policy — at least until after a service member completes his deployment.
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