2. DoD POLICY ON HOMOSEXUAL CONDUCT
Good _______________, I’m _____________________. I am an attorney with the Office of the Staff Judge Advocate, US Army Armor Center and Fort Knox.
During the next hour, I will present an information briefing on the DoD policy on Homosexual Conduct in the Armed Forces.
This briefing is intended to help leaders and other key personnel understand the current DoD poliicy so that they can both implement it and teach it to subordinates.

3. DoD Policy on Homosexual Conduct
At the conclusion of this session, you will be able to:
State basic points of DoD Policy
Define Sexual Orientation
State Commander’s Responsibilities
Describe characteristics of credible information
List staff resources who can provide assistance
You will have an opportunity to test your knowledge and understanding of the DoD policy on homosexual conduct in the Armed Forces when we discuss several real-world scenarios near the conclusion of this briefing.

4. The Policy: Suitability is based on CONDUCT
The suitability of persons to serve in the Armed Forces is based on their conduct and their ability to meet required standards of duty performance and discipline.
Homosexual conduct is grounds for barring entry into the Armed Forces and for separation from the Armed Forces.
Sexual Orientation is NOT a bar to enlistment or continued service.

5. SEXUAL ORIENTATION Is a personal/private matter
Is “an abstract sexual preference for persons of a particular sex as distinct from a propensity to engage in sexual acts”
Definitions are the key to understanding the DoD policy on Homosexual Conduct.
What does the term “Sexual Orientation” mean?
Are there any questions?
As noted before, the suitability of an individual to serve in the Armed Forces is based on his or her CONDUCT and not on abstract thoughts the individual may have.

6. DEFINITIONS
Propensity: Indicates a likelihood that a person engages in or will engage in homosexual acts
Homosexual: A person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts
“Propensity” means “likelihood.” A soldier’s propensity to engage in homosexual acts can only become an issue if, and only if, the soldier’s otherwise private sexual orientation is manifested in a manner observable to others. That is -- in some form of homosexual conduct. It is improper to question someone about their sexual orientation.

7. WHAT IS HOMOSEXUAL CONDUCT? S.A.M.
STATEMENT
ACT
MARRIAGE BETWEEN THE SAME SEX
The DoD Policy has defined “Homosexual Conduct” to include statements by a soldier which demonstrate a propensity to engage in homosexual acts; Homosexual acts themselves; and Homosexual marriages.
An easy way to remember this definition is through the use of the acronym: “SAM”. Because purported marriages between members of the same sex are rare, let’s focus on statements and acts.

8. STATEMENT Conveyed through language or behavior
Indicates a propensity or intent to engage in homosexual acts
IS REBUTTABLE
An example of a statement falling within the SAM definition is a declaration by a soldier that he/she is homosexual.
The Department of Defense considers such a statement to be an indication that the soldier is likely to engage in homosexual acts and that the government may rely on this presumption to separate the soldier.
However, a soldier making such a statement may rebut the presumption it creates. Such a soldier should be given an opportunity to present evidence that he or she does not engage in homosexual acts and does not have a propensity or intent to do so. Such evidence may include an evaluation of his credibility, based on his testimony and the opinion of other soldiers, evidence regarding homosexual acts, and the circumstances surrounding the utterance of the statement.
The burden of proof lies with the soldier. This means the soldier who made the statement must present evidence mentioned in the preceding paragraph.
Your supporting trial counsel can advise you if such a situation arises in your command, directorate, or office.

9. ACTS ANY BODILY CONTACT:
Activily undertaken or passively permitted, between same sex persons for the purpose of satisfying sexual desires
That a reasonable person would understand to show a propensity or intent to engage in act described above
Homosexual acts are described as any bodily contact that meets these criteria. The continuum of homosexual acts includes forcible sodomy on the one end (a serious criminal offense) to hand holding in certain circumstances (a non-criminal act).
The key is to view the act (i.e. bodily contact) from the perspective of a reasonable observer. Would the setting and circumstances lead a reasonable person to conclude that the act was done to satisfy the sexual desires of either party?
In evaluating a report regarding an alleged homosexual act, you must take into consideration cultural differences. For example, in certain cultures it is perfectly permissible for two adult males to kiss in some fashion upon greeting each another.

10. Behaviors which are not homosexual acts
Associating with known homosexuals
Marching in a gay rights rally in civilian clothes
Possessing or reading homosexual publications
Going to a gay bar
Just as important as knowing what constitutes homosexual conduct under the DoD policy is knowing what types of conduct are not considered “homosexual conduct.”
REMEMBER! Homosexual acts require bodily contact under circumstances which would lead a reasonable observer to conclude the act was performed to satisfy sexual desires.
You must be careful not to confuse homosexual acts with “associational behavior.”
Now, what exactly do we mean by “associational behavior?” Examples include: (a) associating with known homosexuals; (b) marching in a gay rights rally, in civilian clothing; (c) possessing or reading homosexual publications; and (d) going to a gay bar.
It’s easy to see that associational activity, in and of itself, does not constitute a homosexual act because there is no bodily contact for the purpose of satisfying sexual desires.

11. RECAP Sexual Orientation is a private/personal matter
CONDUCT determines suitability for service
Homosexual Conduct (SAM) is justification for administrative discharge
Now, to review:
(A) Sexual Orientation is a private and personal matter. A soldier’s sexual orientation is a non-issue as long as it remains private and personal, that is, not manifested in some observable fashion (SAM).
(B) Suitability for service is based on Conduct not abstract beliefs.
(c) Homosexual CONDUCT (SAM) remains a valid basis for administrative separation from the Armed Forces.

12. DoD POLICY ON HOMOSEXUAL CONDUCT AFFECTS
Accessions
Separations
Criminal Investigations
Security Investigations
Military Training
The current DoD policy impacts five distinct areas.
We will look briefly at each of these areas.

13. ACCESSIONS Sexual orientation ALONE is not a bar
Will not be asked to reveal whether they are heterosexual, homosexual, or bisexual
All will be informed of policy
This slide summarizes the impact of the DoD policy on Army accessions:
(A) We cannot ask a prospective recruit about sexual orientation, and that recruit is not required to inform us of his sexual orientation. However, voluntary disclosure of sexual orientation may bar a recruit from entering the service.
(B) Sexual Orientation, if kept private and personal, is not a bar to service.
(C) The Army must advise all applicants, before enlistment, that homosexual conduct continues to be a bar to entry and grounds for separation.

14. SEPARATIONS Based on CONDUCT Three bases: S A M
Discharge for engaging in homosexual conduct will be “honorable” or “under honorable conditions”
A Court-Martial can have worse consequences.
Separation may result from Homosexual Conduct. Discharge based on Homosexual Conduct is normally characterized as “honorable” or “under honorable conditions.”
However, a soldier’s conduct may warrant an OTH discharge or trial by court-martial if the soldier attempted, solicited, or committed a homosexual act:
By using force;
With a person under 16 years of age;
With a subordinate;
Openly in public view;
For compensation; or
Aboard a military vessel, aircraft, or in a location under military control.

15. CRIMINAL INVESTIGATIONS
Not done solely to determine sexual orientation
Sexual misconduct alone, between consenting adults, in private, is generally insufficient to prompt a criminal investigation
Determination of a soldier’s sexual orientation is never the SOLE reason for initiating an investigation. The focus of a criminal investigation must be on CONDUCT.
Military law enforcement officials will not normally investigate sexual misconduct between consenting adults that occurs in a private location unless there is some aggravating factor present.

16. CRIMINAL INVESTIGATIONS
Allegations of sexual misconduct handled by CO in the absence of aggravating factors
If CO is uncertain what to do call JAG
The Commander generally handles inquiries into the sexual misconduct of his or her soldiers. Should you, as a commander, uncover the presence of aggravating factors during your inquiry, or should you ever be uncertain regarding the facts you uncover -- seek advice from your supporting brigade trial counsel on how to proceed.
REMEMBER! Prior to interviewing anyone suspected of a crime, you must advise them of their Article 31(b) rights.

17. PERSONNEL SECURITY
No investigation solely to determine sexual orientation
No questions about sexual orientation on Security Questionaire
Only sexual CONDUCT can be questioned
No info about sexual orientation or conduct can be used for separation
Personnel Security Investigations may not be conducted solely to determine a soldier’s sexual orientation.
Inquiries and investigations are limited to a soldier’s conduct.
If a security clearance investigation uncovers any information about homosexual orientation or conduct, this information cannot be used in a separation proceeding. This prohibition ensures that prohibited information does not make it in the back door.

18. MILITARY TRAINING Soldiers are to be informed of policy
Commanders, recruiters, and investigators, etc., are to be informed of the policy
Soldiers must be informed about the laws and regulations governing sexual conduct, including policies on homosexual conduct. These matters are covered in the Military Justice classes given to trainees during BT and OSUT. Classes should also be taught periodically by the chain of command.
DoD is taking steps to ensure that all commanders and personnel involved in recruiting, accession processing, criminal and security investigations, and administrative separations are trained regarding the DoD policy. Such is the purpose of this class.

19. Commander’s Responsibilities
Ensure soldiers are briefed on DoD Policy on homosexual conduct
Ensure refresher and optional individual training in Military Justice, IAW AR 27-10, paragraph 19-2f
Commanders must be familiar with this policy and how it impacts on their responsibilities.
Commanders are responsible for ensuring that their soldiers receive initial and periodic briefings on the policy. Your servicing Trial Counsel can assist you in preparing such briefings.
Commanders must also ensure that they act in accordance with the policy when they are faced with situations involving allegations of homosexual conduct.

20. HOW SHOULD A COMMANDER RESPOND TO ALLEGATIONS OF HOMOSEXUAL CONDUCT?
Remembering the investigatory principles you learned during the briefing on Military Justice, what actions should you take, as a Commander, when faced with allegations that a soldier within your command has engaged in homosexual conduct?

21. WHAT THE CO SHOULD DO:
Determine if the conduct fits the DoD definition of homosexual conduct (SAM)
Verify that the information is credible
Start informal fact-finding only if credible info exists
(1) Your first step should be to compare the alleged conduct with the DoD definition. Remember SAM!
(2) Next, you should make certain that the information about the alleged homosexual CONDUCT is credible.
(3) Finally, you should initiate an inquiry ONLY if the situation involves: Homosexual Conduct as defined by the DoD policy and the information is credible.
Whenever you have any questions regarding such a matter, do not hesitate to call your Trial Counsel.

22. WHAT IS CREDIBLE INFO? Comes from a reliable source
Is an observation (sight or sound) of conduct
Would lead reasonable person to believe the person making the statement or act intended to convey the fact that he/she engages in or has propensity to engage in homosexual conduct.
Now, your responsibilities when faced with allegations of homosexual conduct within your command seem simple enough, but tell me -- how do you decide whether the information you have received is “credible?”
(1) Is the person who provided the information a reliable source of information?
(2) Is the information based on the informant’s personal knowledge? That is, on the informant’s first-hand observation of the conduct in question (e.g. did he see it, or hear it himself?)?
(3) Would a reasonable person believe that a soldier who committed the conduct has the propensity or intent to engage in such conduct?

23. HOW SHOULD YOUR COMMANDER CARRY OUT THE INQUIRY?
Confine all questions to homosexual conduct (NOT orientation!)
Verify that info is credible
Seek legal advice as needed
How should you conduct an inquiry into homosexual conduct?
(1) Remain focused on CONDUCT -- Do not ask questions concerning sexual orientation.
(2) Base the conclusions you draw from your fact-finding on credible information.
(3) As always, contact your supporting Trial Counsel if you have any questions.
Should the Commander’s Inquiry fail to uncover facts which verify that a soldier has engaged in homosexual conduct, the inquiry should be terminated.

24. RESOURCES AVAILABLE TO SUPPORT YOU
SJA MP
CID
However, if the Commander’s inquiry verifies that a soldier did engage in homosexual conduct, he/she should contact their Trial Counsel regarding the initiation of administrative separation proceedings or UCMJ action.
In addition, should a commander uncover possible criminal misconduct during the course of an inquiry, he/she may contact the local law enforcement officials which include: the local Trial Counsel, the Military Police Investigations (MPI) section or CID.

25. REVIEW Basic Points of DoD Policy Definitions CO Responsibilities
Available Assistance
What is the basis of an individual’s suitability for service in the Armed Forces? (Conduct).
Is homosexual conduct still an admissible ground for barring someone from entering into or separation from the Armed Forces? (Yes).
What is sexual orientation? (Abstract sexual preference Not a bar to enlistment or continued service).
What constitutes homosexual conduct under the DoD Policy? (SAM).
What are not homosexual acts? (Associational Behavior).
How should CO respond to allegations of homosexual conduct within his command? (Does alleged conduct fall within SAM? Is the information Credible? Conduct initial fact-finding inquiry.)
Credible information? (Reliable person. Personal knowledge. Reasonable belief.).
Actions following initial fact-finding (Terminate inquiry. Contact Trial Counsel to initiate separation or UCMJ actions.).
Who is available to assist? (SJA, MPI, CID).

26. Questions Concerning the DoD Policy on Homosexual Conduct
[Field Student Questions]

27. Application of the DoD Policy
(Discussion of Scenarios)
Now, lets see how this DoD Policy on Homosexual Conduct may come into play during the everyday exercise of a commander’s duties.
1) Ambiguous statement to CO during an open door visit.
2) Handholding in the park.
3) Frequenting a gay bar.
4) Death threat to a gay soldier pending separation.
5) Outing in local gay publication.
6) Lesbian pride parade.
7) Staking out the local gay bar.
8) CID follow-up on sonsensual sodomy (photos/letter/names).
9) Computer bulletin board list.
10) Undercover CID agent in the gym latrine.
11) Extortion attempt.
12) Soldier promises to behave.
13) Officer discloses to a close friend.
14) Recruit says “I’m gay.”