United States Department of Defense

DEFENSE DEPARTMENT ISSUES MORE GUIDELINES CONCERNING IMPLEMENTATION OF HOMOSEXUAL CONDUCT POLICY

The Department of Defense released today two policy memoranda intended to improve application of the homosexual conduct policy. A Defense Department working group concluded last year after an extensive review of the implementation of the policy that, for the most part, the policy has been properly applied and enforced but recommended several specific steps to enhance the fair and proper implementation of the policy.

The new guidance does not change the basic homosexual conduct policy that went into effect February 28, 1994, after months of extensive congressional hearings and debate and the enactment of a federal statute. The policy supports unit cohesion and readiness and maintains the necessary balance between the prohibition of homosexual conduct in the military and the privacy rights of service members.

Speaking of the guidelines, Secretary of Defense William S. Cohen said: "The Department is determined to implement the homosexual conduct policy with fairness to all concerned. I've made it clear there is no room for harassment or threats in the military. I've instructed the military Services to make sure that the policy is clearly understood and fairly enforced."

One of the memoranda released today implements the working group's recommendation to strengthen and reissue the 1997 Defense Department policy memorandum stipulating guidelines for the investigation of threats against service members on the basis of alleged homosexuality. The reissued memorandum includes a new requirement for the military Services to ensure the guidance is effectively disseminated to all levels of command and is made part of training programs for law enforcement personnel, commanders and supervisors and incorporated into the required training that members of the armed forces receive upon entry into the armed forces and periodically thereafter.

The second memorandum implements three other working group recommendations to promote consistent and fair application of the law and policy:

• that installation level staff judge advocates consult with senior legal officers at higher headquarters prior to the initiation of an investigation into alleged homosexual conduct;
• that initiation of any substantial investigation into whether a service member made a statement regarding his or her homosexuality for the purpose of seeking separation be approved at the military department secretarial level;
• and that the Service inspectors general include as an item of specific interest in their inspections the training of those charged with application and enforcement of the policy on homosexual conduct; that is, commanders, attorneys, and investigators.

The working group's complete report, "Review of the Effectiveness of the Application and Enforcement of the Department's Policy on Homosexual Conduct in the Military," remains available at http://www.defenselink.mil/pubs/rpt040798.html. The two policy memoranda recently issued to implement the recommendations of that report are attached to this news release, as well as the March 24, 1997, Defense Department policy memorandum, "Guidelines for Investigating Threats Against Service Members Based on Alleged Homosexuality."

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August 12, 1999

SUBJECT: Guidelines for Investigating Threats Against or Harassment of Service Members Based on Alleged Homosexuality

As recommended in the 1998 Report to the Secretary of Defense on the Effectiveness of the Application and Enforcement of the Department's Policy on Homosexual Conduct in the Military, this memorandum reiterates existing policy regarding the investigation of threats against or harassment of service members on the basis of alleged homosexuality. Service members should be able to report crimes and harassment free from fear of harm, reprisal, or inappropriate or inadequate governmental response. Commanders must take appropriate actions in such instances, with due consideration given to the safety of persons who report threats or harassment, and see that persons found to have made threats or engaged in threatening or harassing conduct are held fully accountable.

Under DoD policy, a commander may initiate an investigation into homosexual conduct only upon receipt of credible information of such conduct. The fact that a service member reports being threatened or harassed because he or she is said or is perceived to be a homosexual shall not by itself constitute credible information justifying the initiation of an investigation of the threatened or harassed service member. Credible information exists only when information, considering its source and the surrounding circumstances, supports a reasonable belief that a service member has engaged in homosexual conduct.

The report of a threat or harassment should result in the prompt investigation of the threat or harassment itself. Investigators should not solicit allegations concerning the sexual orientation or homosexual conduct of the threatened or harassed person. If, during the course of an investigation, information is received that the service member has engaged in homosexual conduct, commanders shall carefully consider the source of that information and the circumstances under which it was provided in assessing its credibility. Such information does not negate the need to investigate the alleged harasser.

Please ensure that this guidance is effectively disseminated to all levels of command and is made part of training programs for law enforcement personnel, commanders, supervisors and incorporated in the training required by section 654(d) of title 10, United States Code.

/signed/

Rudy De Leon

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August 12, 1999

SUBJECT:  Implementation of Recommendations Concerning Homosexual Conduct Policy

The Department of Defense is committed to the fair and even-handed application and enforcement of its policy on homosexual conduct in the military. An April 1998 report responded to the Secretary of Defense tasking to review how well the Department's policy on homosexual conduct is being applied and enforced. That report provided an analysis of the data on separations for homosexual conduct in Fiscal Year 1997, as well as a discussion of various issues arising under the policy, and made several recommendations. Since that time, my office has continued to analyze the data and issues discussed in the April 1998 report, as well as the data concerning separations based on homosexual conduct in Fiscal Year 1998. It is now appropriate to take the actions outlined below to ensure that the Department's policy is being properly applied and enforced.

First, as the April 1998 report makes clear, the majority of homosexual conduct discharge cases involve minimal or no investigation; that is also confirmed by the data that were analyzed for Fiscal Year 1998. As a result, many installation-level attorneys have not had occasion to build practical expertise in the special rules applicable in this area. Accordingly, the April 1998 report found that, in more complex investigations, it has become common practice for installation judge advocates to consult for advice with more experienced judge advocates in higher headquarters legal offices. The review recommended that the Department issue guidance specifying that such consultation is recommended before initiating investigations into alleged homosexual conduct.

Second, the April 1998 report concluded that little or no investigation should be necessary in most cases where a service member has made a statement acknowledging his or her homosexuality and does not contest separation. The report recognized, however, that it is appropriate in some circumstances to undertake an investigation to determine whether recoupment of financial benefits is warranted, or whether a service member's statement may have been fabricated in an effort to avoid a service obligation. To ensure appropriate review of such cases, the report recommended that prior authorization at the Military Department secretarial level be obtained for any substantial investigation of this nature.

Third, the April 1998 report noted that each Service devotes substantial effort to training commanders and attorneys on the Department's homosexual conduct policy. Notwithstanding these efforts, some commanders, attorneys and investigators report that they have not received training. Accordingly, the report recommended that the Military Departments issue guidance directing that Service Inspectors General include as a specific item of interest for inspection the training of all those charged with implementing the homosexual conduct policy.

In order to implement the recommendations and findings of the April 1998 report, I request that you issue guidance as follows:

• Recommend that, to promote consistent and fair application of the law and policy, installation level staff judge advocates consult with senior legal officers at higher headquarters prior to the initiation of an investigation into alleged homosexual conduct. This guidance should make clear that the responsibility to determine when credible information exists - i.e., to determine whether the information reported supports a reasonable belief that a service member has engaged in homosexual conduct, such that an investigation is appropriate - remains with commanders. Commanders are best equipped to assess the credibility of the information provided, taking into account, for example, whether the stress of basic training may affect the reliability of a statement.
• Ensure that initiation of any substantial investigation into whether a service member made a statement regarding his or her homosexuality for the purpose of seeking separation be approved at the Military Department secretarial level.
• Ensure that Service Inspectors General include as an item of specific interest in their inspections the training of those charged with application and enforcement of the policy on homosexual conduct - i.e., commanders, attorneys, and investigators.

Please provide your draft implementing guidance on these matters to Mr. Frank Rush, Principal Deputy Assistant Secretary of Defense for Force Management Policy, within 30 days.

/signed/

Rudy de Leon

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March 24, 1997

SUBJECT: Guidelines for Investigating Threats Against Service Members Based on Alleged Homosexuality

This memorandum reiterates existing policy regarding the investigation of threats against service members on the basis of alleged homosexuality. This guidance is issued because of information we have received that some service members have been threatened with being reported as homosexual after they rebuffed sexual advances or themselves reported acts of sexual misconduct by others. The information also indicates some service members reported threats of harm to their person or property based on perceived homosexual orientation.

Under DoD policy, a commander may initiate an investigation into homosexual conduct only upon receipt of credible information of such conduct. Credible information exists when information, considering its source and the surrounding circumstances, supports a reasonable belief that a service member has engaged in homosexual conduct.

The fact that a service member reports being threatened because he or she is said or is perceived to be a homosexual shall not by itself constitute credible information justifying the initiation of an investigation of the threatened service member. The report of such a threat should result in the prompt investigation of the threat itself. Investigators should not solicit allegations concerning the sexual orientation or homosexual conduct of the threatened person. If, during the course of an investigation, information is received that the service member has engaged in homosexual conduct, commanders shall carefully consider the source of that information and the circumstances under which it was provided in assessing its credibility.

Service members should be able to report crimes free from fear of harm, reprisal, or inappropriate or inadequate governmental response. Please ensure that commanders take appropriate actions in such instances, with due consideration given to the safety of persons who report threats, and see that commanders hold fully accountable persons found to have made threats or engaged in threatening conduct.

/signed/

Edwin Dorn