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Homosexual Conduct Discharge (rescinded)

Air Force

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AFI 36-3208 ADMINISTRATIVE SEPARATION OF AIRMEN (2 April 2010)

Source
AFI 36-3208 ADMINISTRATIVE SEPARATION OF AIRMEN (2 April 2010) (1.6 MB)

Comments: To view or download the complete regulation, click on the link to it in the box above these comments.

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Chapter 5
REASONS FOR INVOLUNTARY SEPARATION

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Section 5G- Homosexual Conduct
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5.36. Basis for Discharge:

5.36.1. Homosexual conduct is grounds for separation from the military service under the terms set forth in paragraph 5.36.2. Homosexual conduct is engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts, a statement by a member that he or she is a homosexual or bisexual, or words to that effect or marriage or attempted marriage to a person known to be of the same biological sex. 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 in the manner described in paragraph 5.36.2.

Comments: Submitting a statement, such as the sample letter, is "homosexual conduct" but not a "homosexual act".

5.36.2. A member shall be separated under this section if one or more of the following approved findings is made:

Comments: The phrase "shall be separated" means that they must discharge you if you made a statement, such as submitting the sample letter, unless it can be shown that you do not engage in, attempt to engage in, intend to engage in, or have a propensity to engage in "homosexual acts".

5.36.2.1. The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are approved further findings that the member has demonstrated that:

5.36.2.1.1. Such acts are a departure from the member's usual and customary behavior;

5.36.2.1.2. Such acts under all the circumstances are unlikely to recur;

5.36.2.1.3. Such acts were not accomplished by use of force, coercion, or intimidation;

5.36.2.1.4. Under the particular circumstances of the case, the member's continued presence in the Air Force is consistent with the interest of the Air Force in proper discipline, good order, and morale; and

5.36.2.1.5. The member does not have a propensity or intent to engage in homosexual acts.

5.36.2.2. The member has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the member 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 service member that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the service member is a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The service member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he or she is not a person who engages in, attempt to engage in, has a propensity to engage in, or intends to engage in homosexual acts. Propensity to engage in homosexual acts means 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. In determining whether a member has successfully rebutted the presumption that he or she is a person who 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:NOTE: This list is not exhaustive; other relevant evidence not precluded by this instruction may also be considered:

5.36.2.2.1. A statement under oath by the member 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;

5.36.2.2.2. Whether the member has engaged in homosexual acts.

5.36.2.2.3. Testimony from others about the member's past conduct, character, and credibility.

5.36.2.2.4. The nature and circumstances of the member's statement.

5.36.2.2.5. Any other evidence relevant to whether the member is likely to engage in homosexual acts.

5.36.2.3. The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by external anatomy of the persons involved).

5.37. Types of Separation. discharge under this section for homosexual conduct may be:

5.37.1. Described as an entry level separation if:

5.37.1.1. The airman is in entry level status; and

5.37.1.2. Characterization as under other than honorable conditions is not warranted according to paragraph 5.37.3.

5.37.2. Characterized as honorable or general according to Chapter 1, Section 1B, if:

5.37.2.1. The airman is not in entry level status; and

5.37.2.2. Characterization as under other than honorable conditions is not warranted according to paragraph 5.37.3.

Comments: The characterization of service will be based on your record (Honorable, etc.) unless you "committed" a "homosexual act" under certain circumstances.

5.37.3. Characterized as under other than honorable conditions only if it is found that during the current term of service the airman attempted, solicited, or committed a homosexual act:

5.37.3.1. By using force, coercion, or intimidation;

5.37.3.2. With a person under 16 years of age;

5.37.3.3. With a subordinate in circumstances that violate customary military superior-subordinate relationships;

5.37.3.4. Openly in public view;

5.37.3.5. For compensation;

5.37.3.6. Aboard a military vessel or aircraft; or

5.37.3.7. In another location subject to military control under aggravating circumstances noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or an aircraft.
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5.40. Action Required of the Commander:

5.40.1. If not a General Court-Martial Convening Authority (GCMCA) who is also a general officer, the unit commander forwards the information to the first GCMCA who is a general officer in the member's chain of command.

5.40.2. The first GCMCA who is a general officer in the member's chain of command:

5.40.2.1. Shall initiate discharge processing if there is probable cause to believe separation is warranted under paragraph 5.36. In making this probable cause determination, the standards of Attachment 4, paragraphs A4.4-A4.7 are applicable.

5.40.2.2. Is not required to comply with paragraph 5.2. Preprocessing counseling and rehabilitation are not applicable.

5.40.2.3. Will refer to the guidelines for fact-finding inquiries into homosexual conduct when determining whether to initiate an inquiry into the alleged homosexual conduct by an Air Force member (Attachment 4).

5.41. Recommendations of the Administrative Discharge Board.

5.41.1. If the board finds that one or more of the circumstances authorizing separation under paragraph 5.36.2 is supported by a preponderance of the evidence, the board must recommend discharge unless there is a further finding that retention is warranted under the circumstances described in paragraph 5.36. (See paragraph 5.37.).

5.41.2. If the board does not find that one or more of the circumstances authorizing discharge for homosexual conduct is supported by a preponderance of the evidence, the board must recommend retention unless the case involves another basis for discharge. In that event the board may recommend stopping the action to discharge for homosexual conduct.

5.42.1. The member shall bear the burden of proving throughout the proceeding, by a preponderance of the evidence, that retention is warranted under the circumstances described in paragraph 5.36.2.

5.42.2. Findings regarding the existence of the circumstances warranting a member's retention under paragraph 5.36. are required of the board or the discharge authority only if:

5.42.2.1. The member clearly and specifically raises such circumstances; or

5.42.2.2. The board or discharge authority relies upon such circumstances to justify the member's retention.

5.43. Other Authorized Disposition. Nothing in this regulation:

5.43.1. Limits the authority of the Secretary of the Air Force to take appropriate action in a case to ensure that there has been compliance with the provisions of this section.

5.43.2. Authorizes a member to seek Secretarial review.

5.43.3. Precludes discharge in appropriate circumstances for another reason set forth in this regulation.

5.43.4. Precludes trial by court-martial in appropriate cases.

5.43.5. Requires that a member be processed for separation when a determination is made by the member's commander that:

5.43.6. 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

5.43.7. Separation of the member would not be in the best interest of the Air Force.

Comments: They can retain you if they can prove that you made the statement solely for the purpose of getting discharged.

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Attachment 4
GUIDELINES FOR FACT-FINDING INQUIRES INTO HOMOSEXUAL CONDUCT


A4.1. Responsibility:

A4.1.1. Only a commander who is a general officer possessing general court-martial convening authority in the member's chain of command is authorized to initiate fact-finding inquiries involving homosexual conduct. A commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge. Commanders are responsible for ensuring that inquiries are conducted properly.

A4.1.2. When a commander receives information that may give rise to a homosexual conduct inquiry, his servicing staff judge advocate shall send a report to AF/JAA as required by the TJAG Special Subject Letter on Reporting Homosexual Conduct Cases. AF/JA will keep the SAF and CSAF informed of the status of pending and completed cases.

A4.1.3. A commander desiring to initiate a substantial inquiry to determine whether or not a statement of homosexuality was made for the purpose of seeking separation from military service, as defined in A4.2.6., must submit a request for approval through the chain of command and the Vice Chief of Staff of the Air Force (AF/CV) to the Undersecretary of the Air Force (SAF/US). The request must explain why there is a clear interest in conducting the substantial inquiry, why it is expected that the expanded inquiry will result in additional relevant evidence and why the Air Force benefit in expanding the inquiry outweighs any foreseeable disadvantage of expanded inquiry. Any commander in the chain of command, AF/CV or SAF/US can disapprove the request and return it to the initiating commander. SAF/US approval of a request shall be communicated back through the chain of command to the initiating commander.

A4.1.4. A fact-finding inquiry may be conducted by the initiating commander personally or by a person he or she appoints, but the appointee must be in the grade of O-5 or higher, or civilian equivalent. Subject to the restrictions on substantial inquiries in homosexual statement cases, it may consist of an examination of the information reported or a more extensive investigation, as necessary.

A4.1.5. The inquiry should gather all credible information that directly relates to the grounds for possible separation. Inquiries shall be limited to the factual circumstances directly relevant to the specific allegations. A member who makes a voluntary statement acknowledging his or her homosexuality may, but will not be required to, provide the names of other individuals to be interviewed relevant to his or her statement. The fact that an individual is identified by the member to be interviewed does not, standing alone, provide credible evidence sufficient to initiate an inquiry of that individual. Should the alleged homosexuality of members other than the subject arise in the course of the substantial inquiry, they will not be inquired into further without the approval of the appropriate command authority or, when required, the Under Secretary of the Air Force. See paragraphs A4.1.1. and A4.1.3.

A4.1.6. If a commander has credible evidence of possible criminal conduct, he or she may follow the procedures outlined in the Manual for Courts-Martial and implementing regulations issued by the Secretary of the Air Force.

A4.1.7. The guidelines in this attachment do not apply to activities of the Defense Criminal Investigative Organizations (DCIO) and other DoD law enforcement organizations, which are governed by DoD Instruction 5505.8.