Note: The U.S. Military repealed the "Don't Ask, Don't Tell" policy effective 9/20/11, which cancelled the homosexual conduct discharge and the potential for military members to be charged with an offense under the label "homosexual conduct". As a result, the following fact sheet is no longer applicable and is retained here for archival purposes only.
Many servicemembers are discharged each year for homosexual conduct. A few are court-martialed each year for homosexual acts. A member may be separated for stating that he or she is homosexual or bisexual; for engaging in, attempting to engage in, or soliciting a homosexual act; or for marrying, or attempting to marry, someone of the same sex. Servicemembers who are suspected of engaging in homosexual acts face the likelihood of a command fact-finding inquiry or a more formal investigation. They run the risk that coworkers, friends, and even family may be questioned and, in the process, told about their suspected sexual orientation or acts.
In the current military policy, commonly known as Don’t Ask, Don’t Tell, the DoD regulated a distinction between a member’s sexual orientation and a propensity to engage in sexual acts. 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. However, the military’s definition of homosexual acts is absurdly broad and can include hugging and hand-holding. Soliciting a homosexual act could include asking for a kiss. The Don’t Ask, Don’t Tell regulations, while written very carefully, are maddeningly, purposefully vague and leave much interpretation to command discretion. Individual commands’ interpretations of the regulations can vary widely.
To discharge a member, the military must find that at least one of the following instances of homosexual conduct is supported by the evidence:
- The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts…;
- The member has made a statement that he or she is 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…;
- The member has married or attempted to marry a person known to be of the same biological sex….
A statement of homosexuality or bisexuality is grounds for separation because the statement indicates a likelihood that the member engages in or will engage in homosexual acts but, the military claims, not because it reflects the member’s sexual orientation. A member will not be discharged if a 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.
A homosexual conduct discharge can be a way out for members of the military who no longer wish to remain there. However, there are pitfalls that can occasionally complicate a standard gay discharge. The procedure can turn into a protracted and embarrassing investigation and the member can receive a characterization of OTH for aggravating circumstances, as a result of dual processing for a misconduct discharge based on separate disciplinary problems, or for fraudulent enlistment. In rare cases, the member could even face court-martial under the Uniform Code of Military Justice (UCMJ): Article 125 (10 USC §925) which outlaws sodomy; Article 133, (10 USC §933) which criminalizes conduct unbecoming an officer and a gentleman; Article 134, (10 USC §934) which criminalizes all conduct of a nature to bring discredit upon the armed forces and includes specific provisions for indecent acts; and Article 80, (10 USC §880) which criminalizes attempting any act defined as an offense under the UCMJ.
Unfortunately, the regulations give no further guidance on when court-martial might be appropriate. However, prosecution is more likely for cases involving aggravating circumstances. Military standards apply whether a member is on-base or off-base, on-duty or off-duty. The potential for court-martial prosecution exists even when sexual activities occur in private, off-base, among consenting adults. (While it is not common, it does occur, particularly in the Air Force.)
Members need to consider several factors before seeking discharge for homosexual conduct:
- That the member’s discharge papers (Form DD-214) will indicate homosexual conduct.
- The possibility of harassment.
- What other discharges might be available to the member.
One of the key factors in preparing a gay discharge request is ensuring that the command does not have, and will not get, harmful information from the member or other sources. It is important to limit the information and documents given to the command. The command is likely to conduct a fact-finding inquiry (and may make outrageous demands for proof). Therefore, members need to know they have a right to remain silent and doing so can help prevent an unfavorable characterization of service.