A Point of Order on ‘Don’t Ask, Don’t Tell’

G.I. Korea’s latest posting on the renewed “don’t ask, don’t tell” controversy causes me to note a point that this entire debate is missing:  I saw very few cases in which soldiers were discharged involuntarily solely because of homosexual conduct.  In my experience as a former Army JAG, at least 80% of the Chapter 15 (homosexual conduct) discharges I saw were self-reports by soldiers who may or may not have been gay, but who just wanted out of the Army.  They tended to do this after reassignment into units with bad commanders or NCO’s, often after years of honorable service.  Had they really been gay all that time?  Here, their answers varied.  I often had my doubts, but I seldom really needed to know that much detail to defend them.

Soldiers who have service obligations they don’t want to complete don’t have many options, and none of them are easy.  Desertion terminated by apprehension has a maximum punishment of three years in prison.  Soldiers who intentionally get in trouble to get a chapter 14 (misconduct) usually overdo it, face a court martial, and end up with a federal conviction and jail time.  The other options?  Flunk a few PT tests, get fat, or get pregnant.  Obviously, the aforementioned options are more available to some than others.  Some would rather flunk a PT test than claim to be gay.

You may wonder how I knew.  I was a defense counsel, what my clients told me was protected by attorney-client privilege, and I knew how to find the holes in their stories, break them down, and get the truth out of them.  After all, what lawyer wants to learn it for the first time during the trial?

The remaining 20% of Chapter 15 discharges, with only one exception I can recall, were cases where the homosexual conduct would have justified a discharge even if the conduct had been heterosexual — here, I mean acts with a drunk or sleeping victim, assault, fraternization, or abuse of authority.

I remember exactly one case of two good soldiers who did not self-report and who were chaptered out solely because of private, consensual homosexual conduct.  I represented one of them until my tour in Korea ended and another lawyer took over his defense.  Granted, the conduct still violated the general order against sex in the barracks, but that was an asinine rule.  I believed that it was unjust to discharge those soldiers.
I’m not going to say much about the merits of don’t ask, don’t tell here generally, beyond making three general points:  first, military society is different from and more restrictive than society at large in many ways, and the homosexual conduct policy is just one of those ways.  Second, in my experience, the policy generally worked well, and the Army was also strict about punishing harassment based on rumored or suspected homosexual orientation.  Third, a relatively small percentage of the homosexual conduct discharges I observed were involuntary.