Conducta homosexual (Homosexual Conduct) (revocado)
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COMDTINST M1000.6A COAST GUARD PERSONNEL MANUAL (18 June 07) (RESCINDED)
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Comentario: COMDTINST M1000.6A ha sido revocada y está retenidas en este sitio web sólo por motivos de archivarlas.
12.B. SEPARATING ACTIVE DUTY ENLISTED MEMBERS
12.B.2.d. Reasons for Discharge
13. Homosexual conduct as defined in Chapter 12.E.
12.E. Homosexual Conduct
The policies contained within this chapter are based upon 10 U.S.C. 654 and encompass the concepts commonly referred to as Don't Ask, Don't Tell. The phrase Don't Pursue, Don't Harass, has been subsequently added to better describe its intent. A brief description of these concepts follows:
1. Don't Ask. Commanders, commanding officers and officers-in-charge or appointed inquiry officials shall not ask, and members shall not be required to reveal, their sexual orientation. Additionally, all members of the Coast Guard are expected to adhere to this requirement.
2. Don't Tell. Members shall not be required to reveal their sexual orientation. However, if a member states that he or she is a homosexual or bisexual, or makes some other statement that indicates a propensity or intent to engage in homosexual acts, he or she may be subject to discharge.
3. Don't Pursue. Inquiries regarding sexual orientation may not be initiated unless credible information is discovered. Even then, only certain individuals are authorized to initiate inquiries and must stay within expressed guidelines. (See ... Article 12.E.7. regarding Command inquiries.)
4. Don't Harass. The Coast Guard does not tolerate harassment or mistreatment of anyone, whether they are service members, civilian employees, Auxiliarists or members of the public, for alleged or perceived sexual orientation, or any other reason. Harassment can take different forms, ranging from innocent comments and jokes causing a hostile climate, to direct verbal or physical abuse. Further guidance regarding harassment can be found in the ... Coast Guard Equal Opportunity Program Manual, COMDTINST M5350.4 (series).
3. Homosexual Act.
a. Any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires, and
b. Any bodily contact that a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (a) above.
4. Homosexual Conduct. A homosexual act, a statement by the member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage.
Comentario: Entregar una declaración, como la carta tipo, es "conducta homosexual" pero no "un acto homosexual".
8. Statement a Member Is a Homosexual or Bisexual or Words to That Effect. Language or behavior that a reasonable person would believe intends to convey that a person engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts. This may include statements such as, I am a homosexual, I am gay, I am a lesbian, and the like.
12.E.3. Separation Policy The suitability of persons to serve in the Coast Guard will be judged on the basis of their conduct and ability to meet required standards of duty performance and discipline. A members sexual orientation is considered a personal, private matter and is not a bar to continued service unless manifested by homosexual conduct as described in this article. There are three bases for separation:
1. Homosexual Acts. A Service member shall be separated if he or she has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are approved further findings of all these:
a. Such acts depart from the member's usual, customary behavior;
b. Such acts under all circumstances are unlikely to recur;
c. Such acts were not accomplished by using force, coercion, or intimidation;
d. Under the particular circumstances of the case, the member's continued presence in the Coast Guard is consistent with the Coast Guards interests in proper discipline, good order, and morale; and
e. The member does not have a propensity or intent to engage in homosexual acts.
2. Statements. A service member shall be separated if he or she states he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding 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.
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. A members statement that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because it indicates a likelihood the member engages in or will engage in homosexual acts.
b. A members statement he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption the member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(1) The member shall be advised of this presumption and given the opportunity to rebut it by presenting evidence demonstrating he or she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.
(2) In determining whether a member has successfully rebutted the presumption that he or she 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; this list is not exhaustive; any other relevant evidence may also be considered:
(a) Whether the member has engaged in homosexual acts;
(b) His or her credibility;
(c) Testimony from others about the member's past conduct, character, and credibility;
(d) The nature and circumstances of the member's statement; and
(e) Any other evidence on whether the member is likely to engage in homosexual acts.
3. Marriage. A service member shall be separated if he or she has married or attempted to marry a person known to be of the same biological sex (evidenced by the external anatomy of the persons involved).
12.E.4. Characterization of Service
Characterization of service will be determined in accordance with Articles 12.A.2. (for officers) and 12.B.2. (for enlisted members) subject to this guidance:
1. For both officers and enlisted members, a discharge shall be characterized as "Honorable" or "General (Under Honorable Conditions)" if the sole basis for separation is homosexual conduct unless aggravating circumstances are included in the findings.
2. For both officers and enlisted members, separation may be characterized as Under Other Than Honorable Conditions only if there is also a finding that during the current term of service the member attempted, solicited, or committed a homosexual act under any of these aggravating circumstances:
Comentario: Si entregar la declaración fue el único motivo para la separación, la calificación de servicio dependerá sólo en su historial (honrosa, etc.) y no la afectará su "conducta homosexual".
a. By using force, coercion, or intimidation;
b. With a person under 16 years of age;
c. With a subordinate in circumstances that violate customary military superior-subordinate relationships;
d. Openly in public view;
e. For compensation;
f. Aboard a military vessel or aircraft; or
g. In another location subject to military control under aggravating circumstances noted in the finding that adversely affect discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
12.E.7. Command Inquiries
1. Commanding officers may initiate fact-finding inquiries into alleged homosexual conduct only after receiving credible information a basis for discharge exists.
a. Credible information is that which, considering its source and the surrounding circumstances, supports a reasonable belief there is a basis for discharge. It requires a determination based on facts which can be articulated, not just a belief or suspicion.
Comentario: La "información creíble" es la declaración que entrega.
b. A commanding officer personally or a person he or she appoints may conduct a fact-finding inquiry.
2. Credible information about homosexual conduct does not exist if the only information known concerns an associational activity; e.g., 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. Credible information does exist, however, if a reliable person states he or she:
a. observed a service member engaging in homosexual acts or heard a service member state that he or she is a homosexual or bisexual or is married to a person of the same sex;
b. heard, observed, or discovered a service member made an oral or written statement a reasonable person would believe intends to convey the fact the service member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or
c. has observed behavior that amounts to a non-verbal statement by a service member he or she is a homosexual or bisexual; i.e., behavior a reasonable person would believe is intended to convey the statement the Service member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.
3. Service members will not be asked about or required to reveal whether they are heterosexual, homosexual, or bisexual. However, on receiving credible information of homosexual conduct, commanders or appointed inquiry officials may ask members if they engaged in such conduct. These officers first should advise the Service member of the policy on homosexual conduct and of his or her rights under Article 31, UCMJ, if applicable. Should the Service member choose not to discuss the matter further, the commander should consider other available information.
4. Commanders should gather all credible information that directly relates to the grounds for possible separation and limit inquiries to the factual circumstances directly related to the specific allegations. Informal fact-finding inquiries and administrative separation procedures are the preferred method of addressing homosexual conduct. However, Service members may be subject to disciplinary action or trial by courts-martial in appropriate circumstances.
5. This provision allows a commander to question a Service member about any information he or she provided in the course of the fact-finding inquiry or any related proceeding. It does not give the member any basis to challenge the validity of any proceeding or the use of any evidence, including his or her statement, in any proceeding.