As you may be aware, there has been a lot of movement with Title 10, Section 654 of the US Code, better known as “Don’t Ask, Don’t Tell” in the last few months. It really began earlier this year when Secretary Gates announced a revision to the policy. That revision made a couple of important changes to how separation proceedings could begin and who had the authority to approve the separation.
It came to a head in early October when Virginia Phillips, a Federal Judge in California, ordered the military to cease enforcement of 10 USC 654. For eight days in October, the DADT policy was effectively rescinded until President Obama’s Administration appealed the ruling to the Ninth Circuit Court of Appeals. The Ninth Circuit then temporarily stayed Judge Phillips’ injunction and DADT came back into force.
However, a day after the temporary stay was issued, Secretary Gates issued new guidelines for the enforcement of 10 USC 654. With the rapid changes to the policy in the past couple of months, there may be some confusion as to what’s actually going on with it. I intend to clarify the current policy with this post.
First and foremost: DON’T ASK, DON’T TELL IS STILL IN EFFECT! I emphasize that because there may be a Servicemember who mistakenly believes that s/he can safely come out of the closet. Nothing has changed regarding whether or not you can “tell.” If you do, you will subject yourself to possible involuntary separation. Nothing in this post should be construed as advice saying that it’s safe to come out of the closet; in fact, I am stating the opposite: making a statement at this time that you are homosexual or bisexual will jeopardize your career. Continue to serve in silence until the policy is either repealed or permanently rendered unenforceable. You can seek legal advice from the Servicemembers’ Legal Defense Network if you accidentally make a statement regarding your orientation. Do NOT come to me for help on this matter; while I do sympathize, support repeal, and would not disclose to anyone what you might tell me, I WORK FOR THE CHAIN OF COMMAND! I cannot assist you. Contact SLDN instead.
With that caveat out of the way, let’s now discuss the most recent changes.
Earlier this year, Secretary Gates elevated the approval authority for separations under 10 USC 654 to the second General Officer in the affected Servicemember’s chain of command. Additionally, the authority to initiate separations was also elevated to the first General Officer in the chain of command. This change effectively made it more cumbersome to separate Servicemembers for homosexuality, but not terribly difficult. After the Ninth Circuit issued its temporary stay of injunction, Secretary Gates again elevated the approval authority. This is what we shall now discuss.
As before, separations can only be initiated by a General Officer in the Servicemember’s chain of command — that has not changed. Also, only a General Officer can order an investigation into a Servicemember’s alleged homosexuality, and it must be conducted by either the General Officer or by an appointed officer in the pay grade of O-5 or higher. That requirement was also established earlier this year. Where the new changes reside is in the approval authority.
As of October 22, only the Service Secretaries, in conjunction with the Undersecretary of Personnel and Readiness and the General Counsel of the Department of Defense, may approve separations under the Don’t Ask, Don’t Tell policy. What does this mean? To answer that, I will give an example using the Army.
SPC Snuffy declares to his company commander that he is homosexual. His commander, in accordance with Army Regulation 635-200, Chapter 15, begins inquiring into how to separate SPC Snuffy from the Army. The matter is brought before the Post Commander, Major General Smith, and he signs the paperwork to initiate the separation of SPC Snuffy.
SPC Snuffy receives his notification of MG Smith’s intent to separate him, and waives his right to a separation board (a hearing intended to determine whether or not a Servicemember should be separated). The packet must then go to the Pentagon to the Honorable John McHugh, Secretary of the Army. Before he can approve the separation, Hon. McHugh must consult with both Hon. Jeh Johnson (General Counsel) and Hon. Dr. Clifford Stanley (Undersecretary). Essentially, the Secretary of the Army has to say, “Look, I need to decide whether or not to separate SPC Snuffy. Take a look at his packet and tell me what you think.”
To date, no Soldier has been separated under Don’t Ask, Don’t Tell since before the initial injunction was imposed on the military on October 12. It is unlikely that any action will be taken on any existing or pending cases until either Congress declines to repeal 10 USC 654 or the Department of Justice prevails on its appeal to the Ninth Circuit. That doesn’t mean it can’t or won’t happen, though.