Comentario: Solamente declarar uno que tiene una inclinación a hacer actos homosexuales o un intento de hacerlos, como entregar la carta tipo, es "conducta homosexual" pero no un "acto homosexual".

(2) A Service member shall be separated under this paragraph if one or more of the following approved findings is made:

Comentario: La frase "shall be separated" quiere decir que el mando tiene que separar (discharge) a un militar que entrega la carta tipo, a menos que él o ella demuestre que no hace, no intenta hacer, etc. actos homosexuales.

(a) The Service 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 Servicemember has demonstrated that:

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

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

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

4. Under the particular circumstances of the case, the Service member's continued presence in the Armed Forces is consistent with the interest of the Armed Forces in proper discipline, good order, and morale; and

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

(b) The Service 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 Service 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, attempts 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 Service 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:

1. A statement under oath by the Service 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;

2. Whether the Service member has engaged in homosexual acts;

3. Testimony from others about the Service member's past conduct, character, and credibility;

4. The nature and circumstances of the Service member's statement;

5. Any other evidence relevant to whether the Service member is likely to engage in homosexual acts. (This list is not exhaustive; any other relevant evidence may also be considered.)

(c) The Service member 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).

b. Burden of Proof. See subparagraphs 8.d.(5) and 8.d.(6) of this enclosure for guidance as to the burden of proof and when a finding regarding retention is required.

c. Characterization or Description. Characterization of service or description of separation shall be in accordance with the guidance in paragraph 3 of Enclosure 4. When the sole basis for separation is homosexual conduct, a characterization under other than honorable (OTH) conditions may be issued only if such a characterization is warranted under paragraph 3 of Enclosure 4, and if there is a finding that during the current term of service the Service member attempted, solicited, or committed a homosexual act. Circumstances that warrant consideration of an OTH include a finding that the Service member attempted, solicited, or committed a homosexual act as follows:

Comentario: Aquí dice que si el único motivo para la separación es la declaración, no se afecta la calificación de servicio (honrosa, general, etc.) a menos que usted también "cometa" o intente "cometer" un acto homosexual a la vista pública, en ciertos lugares o bajo ciertas circunstancias.

(1) By using force, coercion, or intimidation.

(2) With a person under 16 years of age.

(3) With a subordinate in circumstances that violate customary military superiorsubordinate relationships;

(4) Openly in public view.

(5) For compensation.

(6) Aboard a military vessel or aircraft.

(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 aircraft.

d. Procedures. The Administrative Board procedure under paragraph 3 of Enclosure 6 shall be used, subject to the following guidance:

Comentario: La frase "shall be initiated" significa que el tribunal administrativo tiene que separar a un militar que entrega carta tipo. Si la única "conducta homosexual" fue entregar la carta tipo, las "pruebas (evidence)" a los que se refiere aquí tiene que ver con entregar la carta tipo, no la "perpetración" de "actos homosexuales". No tiene que "cometer" un "acto homosexual" para "demostrar" que tiene una inclinación a hacerlos. Además, hacerlo puede ponerle en peligro de un cargo de mala conducta o incluso un consejo de guerra.

(1) Separation processing shall be initiated if there is probable cause to believe separation is warranted under subparagraph 8.a.(2) of this enclosure. For purposes of making this probable cause determination, the standards set forth in paragraphs 2.c. - 2.f. of Enclosure 5 are applicable.

(a) Only a commander in the Service member's chain of command, in the grade of O-7 or higher, is authorized to initiate separation proceedings on the basis of alleged homosexual conduct.

(b) Procedures for inquiries into homosexual conduct are outlined in Enclosure 5.

(2) The Administrative Board shall follow the procedures set forth in subparagraph 3.e. of Enclosure 6, except with respect to the following matters:

(a) If the Board finds that one or more of the circumstances authorizing separation under subparagraph 8.a.(2) of this enclosure is supported by a preponderance of the evidence, the Board shall recommend separation unless the Board finds that retention is warranted under the circumstances described in that paragraph.

(b) If the Board does not find that one or more of the circumstances authorizing separation under subparagraph 8.a.(2) of this enclosure is supported by a preponderance of the evidence, the Board shall recommend retention unless the case involves another basis for separation of which the Service member has been duly notified.

(3) The separation authority disposing of the case shall be a general or flag officer, of equal grade or senior to the commander initiating a fact-finding inquiry or separation proceeding, in the Service member's chain of command or serving as a Service-designated centralized separation authority.

(4) The separation authority shall dispose of the case according to the following provisions:

(a) If the board recommends retention, the separation authority shall take one of the following actions:

1. Approve the finding and direct retention; or

2. Forward the case to the Secretary concerned with a recommendation that the Secretary separate the Service member under the Secretary's plenary authority in paragraph 15 of this enclosure.

(b) If the board recommends separation, the separation authority shall take one of the following actions:

1. Approve the finding and direct separation; or

2. Disapprove the finding on the basis of the following considerations:

a. There is insufficient evidence to support the finding; or

b. Retention is warranted under the circumstances described in subparagraph 8.a.(2) of this enclosure.

(c) If there has been a waiver of Board proceedings, the separation authority shall dispose of the case in accordance with the following provisions:

1. If the separation authority determines there is not sufficient evidence to support separation under subparagraph 8.a.(2) of this enclosure, the separation authority shall direct retention unless there is another basis for separation of which the Service member has been duly notified.

2. If the separation authority determines that one or more of the circumstances authorizing separation under subparagraph 8.a.(2) of this enclosure is supported by a preponderance of the evidence, the Service member shall be separated unless retention is warranted under the circumstances described in that subparagraph.

(5) The Service 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 subparagraphs 8.a.(2)(a) and 8.a.(2)(b) of this enclosure.

(6) Findings regarding whether or not retention is warranted are required if the Service member clearly and specifically raises such circumstances as described in subparagraph 8.a.(2) of this enclosure.

Comentario: Lo pueden retener si pueden demostrar que hizo la declaración sólo para que lo separaran.

(7) Nothing in these procedures:

(a) Limits the authority of the Secretary concerned to take appropriate action in a case to ensure compliance with this issuance;

(b) Requires that a Service member be processed for separation when a determination is made in accordance with regulations prescribed by the Secretary concerned that:

1. The Service 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

2. Separation of the Service member would not be in the best interest of the Armed Forces.

Comentario: Aquí hay una escapatoria: un cuerpo militar podría establecer normas, basadas en que les "conviene" a las fuerzas armadas, que permitan la retención de los militares que dicen que tienen propensión o la intención de cometer actos homosexuales. Sin embargo, actualmente ninguno de los cuerpos tiene normas que la permitan.

(c) Precludes retention of a Service member for a limited period of time in the interests of national security as authorized by the Secretary concerned;

(d) Authorizes a Service member to seek Secretarial review unless authorized in procedures promulgated by the Secretary concerned;

(e) Precludes separation in appropriate circumstances for another reason in this Instruction; or

(f) Precludes trial by courts-martial in appropriate cases.

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ENCLOSURE 5

GUIDELINES FOR FACT-FINDING INQUIRIES INTO HOMOSEXUAL CONDUCT

1. RESPONSIBILITY

a. Only a commander in the Service member's chain of command, in the grade of O-7 or higher, 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 basis for discharge. Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs.

b. A fact-finding inquiry may be conducted by the 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. The inquiry may consist of an examination of the information reported or a more extensive investigation, as necessary.

c. 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.

d. If a commander has credible evidence of possible criminal conduct, he or she shall follow the procedures outlined in Reference (o) and implementing regulations issued by the Secretaries of the Military Departments concerned.

e. The guidelines in this enclosure do not apply to activities referenced in DoDI 5505.8 (Reference (t)).

2. BASIS FOR CONDUCTING INQUIRIES

a. A commander will initiate an inquiry only if he or she has 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. A determination is made based on articulable facts, not just a belief or suspicion.

b. A basis for discharge exists if:

(1) The Service member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts.

Comentario: En este caso, la "conducta homosexual" fue simplemente entregar la carta tipo.

(2) The Service member has made a statement that he or she is a homosexual or bisexual, or words to that effect; or

(3) The Service member has married or attempted to marry a person known to be of the same sex.

c. Credible information does not exist, for example, when:

(1) The individual is suspected of engaging in homosexual conduct, but there is no credible information, as described, to support that suspicion; or

(2) The only information is the opinions of others that a Service member is homosexual; or

(3) The inquiry would be based on rumor, suspicion, or capricious claims concerning a Service member's sexual orientation; or

(4) The only information known is an associational activity such as 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; or

(5) The information does not come from a reliable person.

d. Credible information exists, for example, when:

(1) A Service member states to a person of senior grade and authority within his or her chain of command that he or she is a homosexual or bisexual, or words to that effect; or

(2) A reliable person states, under oath, that he or she observed a Service member engage in, attempt to engage in, or solicit another to engage in a homosexual act or acts; or

(3) A reliable person states, under oath, that he or she was told by a Service member that he or she is a homosexual or bisexual, or words to that effect; or

(4) A reliable person states, under oath, that a Service member has married or attempted to marry a person known to be of the same biological sex.

e. A "reliable person" is someone who would be expected, under the circumstances, to provide accurate information. Examples of a person who may not be a "reliable person" are:

(1) A person with a prior history of untruthfulness or unreliability;

(2) A person with a motive to seek revenge against or to cause personal or professional harm to the Service member specifically, or to cause personal or professional harm to persons suspected of being homosexually generally; or

(3) A person with a prior history of conflict with the Service member.

f. The following information shall not be considered evidence of or be used for purposes of fact-finding inquiries or separation proceedings regarding homosexual conduct, unless the Service member consents in writing that the information may be used:

(1) Information considered privileged pursuant to Rule 502 ("Lawyer-client privilege"), Rule 503 ("Communications to Clergy"), or Rule 513 ("Psychotherapist-patient privilege") of the Military Rules of Evidence;

(2) Information provided by a Service member to a medical professional furtherance of medical treatment, or to a public health official in the course of a public health inquiry;

(3) Information provided by a Service member in the course of seeking professional assistance for domestic or physical abuse sustained by the Service member or by a member of his or her household;

(4) Information about a Service member's sexual orientation or conduct obtained in the course of a personal security investigation, in accordance with and to the extent protected by DoD 5200.2-R ("Department of Defense Personnel Security Program") (Reference (u)).

3. PROCEDURES

a. Informal fact-finding inquiries and administrative separation procedures are the preferred method of addressing homosexual conduct. This procedure does not prevent disciplinary action or trial by courts-martial when appropriate.

b. Commanders shall exercise sound discretion regarding when credible information exists. They shall examine the information, the source of the information, and the circumstances under which the information was obtained and decide whether an inquiry is warranted or whether no action should be taken.

c. Commanders or appointed inquiry officials shall not ask, and Service members shall not be required to reveal, whether a Service member is a heterosexual, a homosexual, or a bisexual. However, upon receipt of credible information of homosexual conduct (as described in paragraph 2 of this enclosure) commanders or appointed inquiry officials may ask Service members if they engaged in such conduct after advising Service member of the DoD policy on homosexual conduct and their rights under Article 31 of the UCMJ, Appendix 2 of Reference (o), if applicable. Should the Service member choose not to discuss the matter further, the commander should consider other available information. No negative inference may be drawn from a Service member's decision not to discuss the matter.

d. At any given point of the inquiry, the commander or appointed inquiry official must be able to clearly and specifically explain which grounds for separation he or she is attempting to verify and how the information being collected relates to those specific separation criteria.

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GLOSSARY

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homosexual. A person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

Comentario: Una definición tan amplia que pueda abarcar casi cualquier contacto entre personas.

A "homosexual act" means any bodily contact, actively undertaken or passively permitted, between a Service member and another person of the same sex for the purpose of satisfying sexual desires and any bodily contact that a reasonable person would understand to demonstrate a propensity or intent to engage in such an act.

A "statement that a Service member is a homosexual or bisexual, or words to that effect," means language or behavior that a reasonable person would believe was intended to convey the statement 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. 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.

A "homosexual marriage or attempted marriage" is when a Service member has married or attempted to marry a person known to be of the same biological sex. "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.

homosexual conduct. Engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts; a statement by the Service 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.