By: Richard A. Peterson
Date: November 3, 1994
Source: United States Air Force, Judge Advocate General. "Memorandum for All Staff Judge Advocates and Military Judges." November 3, 1994. Reproduced as "Don't Ask, Don't Tell, Don't Pursue." Available online at http://dont.stanford.edu/regulations/AFmemo.pdf; website home page: http://dont.stanford.edu (accessed July 19, 2003).
Traditionally, the United States armed services have relied on two provisions for removing gays and lesbians from military services. In 1920, the Articles of War were amended, making sodomy a court martial offense. This regulation did not change until it was recodified as Article 125 of the Uniform Code of Military Justice (UCMJ) in 1951. The armed forces, in the past, have also removed gays and lesbians from the service through personnel regulations. Between the two world wars, the military attempted to exclude gays from entering the service by denying those deemed too feminine—those lacking sufficient facial and body hair. During World War II (1941–1945), the military devised psychological procedures to attempt to identify overt homosexual behavior at induction.
In 1981, the military issued Directive 1332.14, which, for the first time, bluntly stated that homosexuality was incompatible with military service. The directive provided mandatory discharge for any person who "engaged in, has attempted to engage in, or has solicited another to engage in a homosexual act." Between 1981 and 1990, the military discharged 16,919 personnel for sexual orientation and behavior issues. These discharges involved 1.7 percent of all involuntary discharges in the Department of Defense during this period. Although most of these discharges were honorable, the discharge papers clearly stated to future employers the basis for the discharge. In 1991, the issue of gays in the military became politicized when returning Gulf War (1991) veterans publicly announced their homosexuality and criticized military policy.
That October, presidential candidate Bill Clinton (served 1993–2001), speaking before Harvard University's Kennedy School of Government, stated that if elected he would issue an Executive Order ending discrimination in the military on the basis of sexual orientation. In December 1992, following Clinton's political victory, Colin Powell, chairman of the Joint Chiefs of Staff (JCS), warned the incoming administration that the JCS would resign en masse if the order were issued. The JCS was willing to scrap Directive 1332.14, but refused to change Article 125 of the UCMJ. The military argued that avowed gays would undermine unit cohesion. Opponents countered that the military policy was clearly discriminatory.
The high profile controversy was a difficult problem for President Clinton. His liberal supporters demanded that he keep his campaign promise. Conversely, Congress, the body with the sole authority to amend the UCMJ, would have overwhelmingly refused to codify the order—handing the new administration an early, high-profile defeat. In January 1993, to avoid the pending political defeat, Clinton ordered Secretary of Defense Les Aspin to consult with the military and develop a compromise proposal. Six months later, Aspin announced the administration's "Don't Ask, Don't Tell" policy, which allows gays and lesbians to serve as long as they do not proclaim their sexual orientation or violate Article 125. Further, the policy stipulates that military commanders may not initiate an investigation into an individual's sexual orientation without credible evidence. Because the policy did not have the force of law and could be repealed in 1993, Congress codified the policy with the passage of P.L. 103–160 by a veto-proof margin of 273–135 in the House, and 77–22 in the Senate, respectively.
Like all good compromises, the "Don't Ask Don't Tell" policy pleased no one. Conservatives condemned the policy because it eased the absolute ban on homosexuals in the military. Liberals criticized the policy because gays and lesbians were prohibited from revealing their sexual orientations. Unable to amend the law in Congress, liberals turned to the courts for legal redress. However, federal courts generally have been hesitant to become involved in this issue. Deferring to legislative and military experience and expertise, federal courts maintain that they "lack the competence" to overrule military decision in such matters. From 1994 to 2001, 7,800 gay service members were discharged from the military.
Primary Source: Richard Peterson to All Staff Judge Advocates and Military Judges November 3, 1994
SYNOPSIS: In 1994, the Department of the Air Force issued this memorandum to all military judges to ensure that commanders comply with the "new" homosexual policy, codified by Congress in 1994. It also provides "tips" and "sample questions" for inquiry to determine whether credible evidence exists to initiate removal from the service.
FROM: HQ USAF/JAG
1420 Air Force Pentagon
Washington, DC 20330–1420
SUBJECT: Commander Inquiries on Members Stating They Are Homosexual
This is in response to the questions we have received about the impact of the U.S. Court of Appeals for the Ninth Circuit decision in Meinhold v. Department of Defense on the "new" homosexual policy. At the outset we stress that Meinhold is an "old" policy case. Neither the "new" DoD policy nor the Air Force implementation of the "new" DoD policy have been changed in response to the Meinholddecision. Nevertheless, the decision in Meinholdcannot be totally ignored. We need to make an effort to makeeach administrative discharge case for homosexual conduct as legally unassailable as possible.
In spite of weaknesses in the court's reasoning, the decision has been made not to request reconsideration en banc from the Ninth Circuit or seek certiorari from the U.S. Supreme Court in Meinhold. We thus are left with a precedent in the Ninth Circuit that specifically recognizes that it is constitutionally permissible to discharge members for homosexual conduct. At the same time, the precedent essentially allows a court to retroactively reinterpret military regulations under the guise of making them conform to the constitution. Using this technique, the Ninth Circuit added to the "old" policy a new requirement that discharges solely based upon statements be supported by evidence reasonably demonstrating that an individual has a "concrete,"
"fixed," or "expressed" desire to commit homosexual acts.
Because the "new" policy has the added weight of Congressional hearings and is based on federal statute, it remains to be seen whether the Ninth Circuit can apply the reasoning of Meinhold to the "new" policy. Consequently, commanders should continue to apply the "new" policy as written. To the extent possible, consistent with the facts, separations should be initiated based upon acts or marriages; even Meinhold supports discharge based upon acts. When evidence or acts or marriages is not available, commanders should continue to initiate separations based upon statements alone.
Air Force policy requires a commander to have credible information that a basis for discharge exists prior to initiating an inquiry. We stress that the policy on homosexual conduct does notprohibit commanders from initiating inquiries on a member who states that he is a homosexual. In these cases, the inquiry establishes the facts and circumstances surrounding the statement, because statements of homosexuality have been used in an attempt to avoid military service or to avoid specific assignments or deployments. Factors of concern may include the timing of the statement in relation to an imminent PCS or receipt of education.
The most compelling cases for an inquiry are those in which the member has received substantial benefits from the government, such as advanced education or training, and then, just prior to entering on active duty, announce that they are homosexual. We have had five such cases since the implementation of the "new" policy, three involving medical school, one involving law school, and one involving graduate school. Four of the five cases have been processed within the Air Education and Training Command (AETC).
HQ AETC policy is that in cases in which a member states that he is a homosexual after receiving substantial government benefits, but before fulfilling his military obligations, a judge advocate normally will be appointed to conduct an inquiry. The purpose of the inquiry is to determine the truthfulness of the statement. The inquiry is conducted in accordance with DoD and Air Force policy. We recommend the practice of appointing judge advocates for these high profile cases, which usually involve physicians, because a judge advocate is much more likely to be able to perform a thorough inquiry within the parameters of the policy. A judge advocate need not be appointed as inquiry officer, however, in cases other than these high profile cases.
If after investigation, it is found that the statement is true and separation action is initiated against the member, the member may still be subject to recoupment action under 10 U.S.C. 2005. (See IMC 94–4 to AFR 39–10, AFI 36–3206, paragraph 4.37). A member, who is separated for the homosexual conduct of stating he is homosexual, is subject to recoupment if a finding is made that the member made the statement for the purpose of seeking separation. The fact that the statement is true does not protect the member from recoupment.
Whether a commander initiates an inquiry into a member who states he is homosexual is dependent upon the facts and circumstances of the case. For example, if the facts and circumstances raise concern that the member is making a false official statement to avoid military service, the commander may initiate an inquiry. The purpose of the inquiry is to determine if the commander possesses credible information upon which to initiate separation action or if other action should be taken because the member has made a false statement to avoid service; the intent of the member in making the statement also should be examined as being highly probative to recoupment. The purpose of the inquiry is not to discover evidence of homosexual acts or to ferret out other homosexuals in the military. If acts or other military members are discovered during the proper course of the investigation, however, appropriate action may be taken.
If your commander wants to initiate an inquiry into a member who has received substantial government benefits, we recommend you discuss the proposed inquiry with your MAJCOM. A judge advocate inquiry officer is not always necessary, but may be prudent in cases involving substantial government benefits because advocacy organizations or outside counsel may be involved. Two of our current cases are represented by the same civilian attorney, who we are advised also represents several other similarly-situated members in the other services. If an officer other than a judge advocate conducts an inquiry in this type of case, we strongly recommend a judge advocate serve as a very close advisor to the IO.
Attached are tips for officers appointed to inquire into this type of case and some sample pattern questions. Our POC is Major Mike Gilbert at DSN 224–4075.
Richard A. Peterson
Deputy Chief, General Law Division
Officer of the Judge Advocate General
Tips for Inquiry Officers of Cases Involving Members Who State They Are Homosexuals
You have been appointed to serve as an inquiry officer in a case involving a member stating he or she is homosexual or bisexual. Making such a statement is homosexual conduct that subjects the member to involuntary separation action because the statement creates a rebuttable presumption that the member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. Moreover, if the member has received educational assistance, special pay, or bonuses, the member may be subject to recoupment of an amount of government benefits proportional to the amount of the member's military service that has not been fulfilled.
The purpose of the inquiry is to determine if the commander possesses credible information upon which to initiate separation action or if other action should be taken because the member has made a false statement to avoid service. The intent of the member in making the statement also must be examined because it is highly probative to the issue of recoupment. The purpose of the inquiry is not to discover evidence of homosexual acts or to ferret out other homosexuals in the military. As an inquiry officer (IO), you must look at all relevant evidence to enable you to make a finding on the truth of the statement by the member that he or she is homosexual. You also should make a finding on the member's purpose for stating he or she is homosexual or bisexual.
You initially should interview the subject member. Ensure you notify counsel if the member already has retained counsel. You also should interview the following persons:
- Parents and siblings. If the member does not provide this information, DD Form 398 should have this data.
- Look at the DD Form 398 for any other possible leads for interview subjects.
- School counselor and advisor.
- Any other knowledgeable school officials.
- School career development office; did the member interview for civilian jobs? Did the student apply for fellowships, internships, etc., that would have been displaced by military service?
- Roommates and close friends, including people the subject dated.
- Mental health medical records.
- AFIT program manager. Did the member apply for deferment of military service? If the member is in medical school, was the member assigned to intern in an area of medicine he or she did not want?
- Air Force career manager.
You should prepare a list of anticipated questions and forward them to your MAJCOM staff judge advocate for review and comment. Attached is a list of suggested questions for interviewing the subject member; many also can be used for other witnesses.
Sample Question for Inquiry Concerning Member Who States He Is Homosexual After Receiving Advanced Education Benefits
Review AFI 90–301, Attachment 5, which contains the script for introduction of an inquiry officer. (Also review Attachment 6 to AFI 90–301, which is an inquiry officer guide.) Tell the witness/subject member if you are recording the interview.
- Read the member the Air Force policy on homosexual conduct. (See 10 U.S.C. 654 and the attached.) Remember that a member must be given a rights advisement under Article 31, UCMJ, if the discussion begins to involve acts or conduct that violate the UCMJ. (As an inquiry officer in a statement-only case, you should not ask questions concerning homosexual acts unless you have credible information of such acts, such as if the member raised the topic.)
- Verify the member's full name and social security number. Also verify his address and phone number.
- Swear the member in by oath or attestation.
- If a written statement is in question, ask if he recognizes the statement.
- Is the signature on the statement that of the member?
- Did the member write the statement himself or did he have assistance, such as an attorney?
- Did the member understand the policy on homosexual conduct at the time he made the statement?
- If the statement in question is not written, ask the member if he made the statement.
- If so, when did he make it? To whom? Where?
- Under what circumstances?
- Had the member ever been briefed on the policy on homosexual conduct? If so, by whom and where?
- When did the member enter the education program, such as HPSP or FLEP?
- What status is the member, e.g., Reserves?
- What was the member obligated to do in return for education assistance?
- If currently in the education program, what school is the member attending, what year of studies, when will the member graduate?
- Who is the member's academic and/or faculty advisor? Advisor for thesis, dissertation, etc.?
- If HPSP, what area of medicine does the member intend to pursue?
- Has the member applied for any intern or residency programs?
- If so, where and for when?
- Has the Air Force directed the member to choose from specified specialties? If so, which ones?
- Why did the member make the statement? If written, why did the member choose to send the letter where he did?
- Why did the member choose this particular time to make the statement?
- If the member used certain terms, such as "homosexual orientation" or "propensity," ask the following questions: What did the member mean by "homosexual orientation" or "propensity?" (Note: If the member states he means what the regulation says, ask him to explain what he means in his own words.)
- Does the member have a "propensity to engage in homosexual acts?" If so, can he explain what he means?
- How does he know he has a "homosexual orientation" and/or "propensity?"
- When did he realize he has a "homosexual orientation" and/or "propensity?"
- Whom has he told he is a homosexual or that he has a "homosexual orientation" and/or "propensity?" When did he tell them? Why did he tell them?
- Has the member been dating anybody (opposite or same sex)?
- How frequently has the member dated?
- How recently?
- How can these persons be contacted?
- Did the member belong to any homosexual student organizations at school?
- If so, which?
- How can other members of the organization, who knew of his membership, be contacted?
- Has the member told any of his family members? If so, whom? How can they be contacted?
- Who are close friends of the member and how can they be contacted?
- How does the member feel about the Air Force?
- Does the member prefer to remain in the Air Force, or would he rather be discharged?
- What is the member's understanding of the possibility of the Air Force recouping the costs of his educational assistance?
- What, if any, influence did the recoupment policy have on making the statement?
- Are there any other witnesses or documents that could verify the member's statement that he is homosexual?
- Is there any further information, statements, or evidence concerning the matters discussed?
Berube, Alan. Coming Out Under Fire: The History of Gay Men and Women in World War Two. New York: The Free Press, 1990.
Scott, Wilbur and Sandra Carson Stanley, eds. Gays and Lesbians in the Military: Issues, Concerns, and Contrasts. New York: Walter de Gruyter, 1994.
Shilts, Randy. Conduct Unbecoming: Gays and Lesbians in the U.S. Military. New York: St. Martin's Press, 1993
Hackworth, David. "The Case for a Military Gay Ban." The Washington Post, June 28, 1992.
Service Members Legal Defense Network. Conduct Unbecoming. The Eight Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," (2002) available online at ; website home page http://www.sldn.org (accessed April 4, 2003).
Department of Defense. "Washington Headquarters Services." Available online at (accessed April 4, 2003).