Homosexual Conduct Discharge (rescinded)
After you read this fact sheet, please call the Hotline (877-447-4487) to talk over your options with a counselor.
Servicemembers who are suspected of being lesbian or gay may face harassment from their commands and fellow servicemembers. It can take the form of rude jokes and name calling, increased scrutiny of the member’s performance or conduct (such as disciplinary action for minor infractions that the command tolerates from other members), orders to perform undesirable duties, death threats, and physical assaults by one or more people.
Be prepared to take immediate and aggressive legal action. A strongly-worded letter faxed from a counselor to the commanding officer may provide some protection. In other cases, one or more of the formal complaint procedures, along with outside intervention, may persuade the command to take action. Equal Opportunity offices will sometimes treat harassment based on perceived sexual orientation as a form of sexual harassment and accept those complaints. The procedures can be lengthy; therefore, assertiveness at the first stages of the complaint process may persuade the command to take action rather than let the procedure run its course.
It is usually best to document harassment before a complaint is made. However, when danger to the servicemember is great, the claim should be made at once and the harassment documented after the complaint is made. Unfortunately, it is not safe to assume that commands and military investigators will be thorough and evenhanded in questioning witnesses and searching for evidence of harassment.
Servicemembers considering filing complaints over harassment must review what information the command or coworkers may have, or may be able to find out without difficulty, about homosexual statements or acts. Behavior that is theoretically protected under Don’t Ask, Don’t Tell, (such as associating with lesbians, reading gay material, going to a gay bar, etc.) may also trigger an investigation of the member. An absence of evidence does not protect members against unfounded allegations but it does make it harder for commands to pursue an investigation of the victim.
Documentation for a Homosexual Conduct Discharge
Servicemembers can seek this discharge by stating, in writing (see the sample letter), that they are gay and addressing the statement to the separation authority, via the commanding officer. Verbal statements should not be made instead of, or in addition to, the written statement. Commands may misunderstand or distort what was said and perhaps claim a member admitted to acts under aggravating circumstances or acts warranting disciplinary action. Commands also often ignore verbal statements because they do not want to discharge the servicemember. Be sure to have a counselor review the written statement before it is submitted. Statements that take strong political positions may trigger an investigation or harassment. Likewise, statements should not acknowledge engaging in homosexual acts.
Approaching the Command
A written discharge request is submitted directly to the member’s commanding officer, either in person or by mail. The request can include a cover letter with the member’s statement which can: remind the command of the member’s rights, request that the member’s privacy be protected and, if necessary, ask for command assistance with any existing harassment. (Where the letter is written by an attorney, it can also explain that the writer has advised the client to make no further statements.) Most of all a cover letter informs the command that the member is not alone.
The servicemember must decide when to submit the statement. Although not common, commands have been known to prepare unsatisfactory evaluations of members after they are known, or suspected to be, gay. Therefore, the member might wait until the current evaluation period is over and the evaluation or fitness report has been completed. If the command is currently undertaking an investigation of other members, it may be best to wait until the investigation is over.
The member may wish to submit the request earlier if the member is:
- still in entry level status;
- particularly anxious;
- experiencing harassment.
Pressuring an Unresponsive Command
Generally, a statement is sufficient to trigger discharge proceedings. If the member’s commander does not seem to be acting on the statement, a first step can be to communicate directly with the separation authority.
Skeptical commands may need to be provided with further documentation but, regardless of what command representatives may say, there are virtually no circumstances under which it is advisable to provide evidence of homosexual acts. Instead, members should provide information about their life or lifestyle, such as documentation that they belong to gay religious or political groups, subscribe to gay periodicals, attend PFLAG meetings with their parents, statements where members describe their appreciation of gay culture, the emotional experience of recognizing and appreciating that they are gay, etc.
In some cases, members may ask friends, family members, ministers, or others to write statements about their sexual orientation. It is important for counselors to review any letter before it is submitted to the command to ensure that letter writers do not include information about sexual activity. Because command inquiries may involve attempts to interview these people, any letter writer must be reminded not to talk with military officials about sexual acts.
Members can also submit a letter from a civilian psychologist or doctor stating that the medical professional has had discussions with the member and that the member is indeed gay. Providing such a letter can prevent the military from investigating whether the member was lying in order to get out. Some servicemembers prefer to avoid doctors’ letters, which may seem to imply that homosexuality is a medical issue. Where statements from doctors or therapists are used, they can point out that homosexuality is not an illness. As with other letters, these must avoid references to homosexual acts. (Although Military Rule of Evidence 513 now recognizes psychotherapist-patient privilege, it is still important that the servicemember not authorize disclosure of unwanted evidence.)
Type of Separation
In most cases in which the sole basis for discharge is homosexual conduct, even those involving homosexual acts, the characterization of service should be Honorable, General (under Honorable Conditions), or an Entry Level Separation. However, many cases have misconduct issues other than homosexual acts associated with them and these issues can result in a characterization of service of Under Other Than Honorable Conditions (OTH). If a member is discharged on the basis of homosexual conduct, that reason will be noted on the discharge document and that information may stigmatize the veteran (and possibly limit employment opportunities) in the future. A characterization of Under Other Than Honorable Conditions (OTH) will result only if the military finds that, during the current enlistment, the member attempted, solicited, or committed a homosexual act under aggravating circumstances.
Some commands may prosecute members for sexual acts, resulting in a punitive discharge as part of a court-martial sentence or a characterization of OTH as part of a discharge in lieu of court-martial. Commands may also dual process a member for misconduct.