1. U. S. Army Homosexual Conduct Policy
This is an information briefing. The purpose of this briefing is to provide you with information regarding the Army’s Homosexual Conduct Policy.

2. U. S. Army Homosexual Conduct Policy
Implements 10 U.S. Code § 654
Implements DoD Policy, DoD Directives ;
AR , chapter 4-19
Policy is a balance between the legal prohibition of homosexual conduct and the privacy rights of soldiers
In 1993, Congress made a finding that service by those who have a propensity to engage in homosexual acts creates an unacceptable risk to morale, good order and discipline, and unit cohesion. Therefore, the long standing element of military law that prohibits homosexual conduct continues to be necessary in the unique circumstances of military service. Accordingly, Congress passed a law, 10 u.s. Code, section 654, providing that service members who engage in homosexual conduct shall be separated from the Armed Forces.
It was the sense of Congress that applicants should not be asked about homosexuality as part of the processing of individuals for accession into the Armed Forces. Applicants are thus no longer asked about their sexual orientation upon accession. Moreover, it was determined that commanders should not initiate investigations solely to determine a member’s sexual orientation, but would initiate inquires only upon receipt of credible information that a service member had engaged in homosexual conduct.
DoD issued policies and training guidance via a series of memoranda and directive changes following the enactment of 10 U.S.C. section The most recent memoranda were issued 12 August 1999.
On 26 July, 1999, the Secretary of the Army signed Army regulation , entitled Army Command Policy. Chapter 4-19 defines the Army’s homosexual conduct policy that implements the Federal statute.

3. What does the Law Say?
“A member of the Armed Forces shall be separated if one of the following findings is made:
“the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts
“the member has stated that he or she is a homosexual or bisexual, or words to that effect
“the member has married or attempted to marry a person known to be of the same biological sex.”
Sexual orientation is not a bar to military service. Sexual orientation is a private and personal matter.
The law states that “The presence in the Armed Forces of persons who demonstrate a propensity on intent to engage in homosexual acts creates an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
A homosexual act is any bodily contact between members of the same sex for the purpose of satisfying sexual desires and any bodily contact that a reasonable person would understand to demonstrate a propensity to engage in such an act.

4. What are the Limits on Inquires into Homosexual Conduct?”
Applicants for enlistment will not be asked nor required to reveal their sexual orientation.
Applicants for enlistment will not be asked if they have engaged in homosexual conduct.
Only a soldier’s commander is authorized to initiate fact finding inquires involving homosexual conduct.
A commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge.
The policy places certain restrictions on the information the military can gather or request from a soldier. The bullets on this slide describe these limits.
Harassment of soldiers for any reason, including sexual orientation, will not be tolerated.

5. What Happens if a Soldier Tells Others that he/she is Homosexual or a Bisexual
If a soldier makes a statement that he or she is a homosexual or bisexual, or makes other statements indicating a propensity to engage in homosexual acts, the soldier’s commander may initiate an inquiry to determine whether that member should be discharged.
Discharge is not required if it is determined that the soldier made the statement for the purpose of avoiding or terminating military service.
To harass a soldier into affirming or denying a sexual orientation will not be tolerated in the Army. Such harassment is coercive, abusive and a patent violation of the policy.

6. What is Credible Information that can Trigger a Fact-finding Inquiry?
A statement by a reliable person that a soldier has:
engaged or solicited another to engage in a homosexual act or said that he/she is homosexual or bisexual
observed or heard the soldier Make any other statement that a reasonable person would believe was intended to convey that the soldier has a propensity to engage in homosexual acts
observed behavior by a soldier that amounts to a non-verbal statement that the soldier is homosexual or bisexual.
A commander must make the determination as to whether the information received is “credible.” If the determination is yes, then the commander may proceed with an investigation. If the answer is no, the commander will decide to act or not act on the attorney’s advice.
Whether the testimony regarding a soldier’s homosexual conduct comes from a reliable person will be considered by the commander when establishing the presence or absence of credible information.

7. What Is Not Credible Information?
Rumors, suspicious, or capricious claims that a soldier is homosexual
Others opinions that a soldier is homosexual
Going to a homosexual bar, reading homosexual publications, associating with known homosexuals or marching in homosexual rights rallies in civilian clothes
Reports by a soldier of being harassed on the basis of perceived sexual
The examples on this slide are examples of information which are not “credible,” and, therefore, do not justify a fact-finding inquiry.
Rumors, hearsay, opinions, guesses, perceptions are not “credible.”
Soldiers who report being harassed on the basis of perceived sexual orientation are not to be considered as verifying that the accusations are accurate. Another way of saying this is that reporting harassment is not an admission of homosexuality and should not be regarded as if it were. The focus in such cases should be on the harassment and not on the sexual orientation of the soldier who reported it.

8. What are Grounds for a Fact-finding Inquiry?
Credible information must exist.
A commander must have a reasonable belief that a soldier has:
Engaged or solicited to engage in a homosexual act
Stated that he or she is a homosexual or otherwise indicated a propensity to engage in homosexual conduct
Married or attempted to marry a person of the same sex
If a commander determines that credible information exists, the commander may proceed with an inquiry.

9. Substantial Investigation
The initiation of any substantial investigation into whether a soldier stated that he\she was homosexual or bisexual for the purpose of avoiding or terminating military service must be approved at the Army Secretariat level..
Definition of substantial investigation: Any investigation that extends beyond questioning the member, individuals suggested by the member for interview and the member’s immediate chain of command.
When commanders believe that a soldier may be stating that he or she is homosexual for the purpose of being discharged and the commander wishes to investigate the soldier’s claim beyond the “admitting” soldier, individuals suggested by the soldier for interview, or the soldier’s immediate chain of command, approval to investigate must be obtained at the Secretariat level. This may occur, for example, where recoupment of financial benefits is at issue in connection with a soldier’s discharge.
In the case of such inquires, information concerning homosexual conduct by other service members should not be solicited. If such information is nonetheless revealed, it will not be inquired into without the approval of competent authority, as in other cases.
Approval authority to conduct the inquiry has been delegated to Assistant Secretary of the Army (Manpower and Reserve Affairs).

10. August 1999 Procedural Changes
Judge Advocates will consult senior legal officers at a higher HQ prior to the initiation of an investigation.
Initiation of substantial investigations into whether a soldier has stated that he\she is a homosexual for the purpose avoiding or terminating service requires approval at the secretarial level.
The IG will inspect homosexual conduct policy training.
Three procedural changes were published on 12 August 1999 by the DoD that are designed to improve implementation of the homosexual conduct policy.
These changes resulted from a report to the Secretary of Defense in April 1998: Review of the Effectiveness of the Application and Enforcement of the department’s Policy on Homosexual Conduct in the Military.
In addition to these three recommendations, the panel found that the Department’s policy on homosexual conduct is “generally being implemented properly.” A few of the areas were identified which could be clarified or implementation could be enhanced.
In March 1997, the Under Secretary of Defense issued a directive providing guidance on how threats against homosexuals in the Armed Forces should be investigated (previous slides discussed the Army’s implementation of this directive) and specific prohibitions against harassment will be discussed now in some detail. This guidance was reiterated in subsequent memoranda.
An August 1999 Under Secretary of Defense memorandum reiterated and clarified this guidance.

11. Zero Tolerance for Harassment
Definition: Derogatory, abusive, threatening or annoying behavior directed toward an individual or group.
Possible types of harassment
Verbal (on or off duty)
Jody calls regarding homosexuals
Derogatory, abusive, threatening or annoying language or references about homosexuals
Graffiti in latrines, bulletin boards, etc.
Anonymous threats; telephonic, electronic, etc.
Commanders are responsible for command climate which ensures all soldiers are treated with dignity and respect.
Commanders are responsible for setting leadership standards regarding jody calls, language, etc.
Commanders, through their senior NCOs, are responsible for physical appearance of the barracks, offices, latrines, etc.

12. Harassment
All soldiers will be treated with dignity and respect and will be afforded a safe and secure environment in which to live and work.
Harassment of soldiers for any reason, to include perceived or alleged homosexuality, will not be tolerated.
Commanders at every level will take appropriate action to prevent harassment of or threats against any member of the Army.
The issue of harassment is applicable for all soldiers. It is not relevant to know the race, gender, religion, sexual orientation or any other fact or perception about a U. S. Army soldier to know that it is not appropriate or acceptable to harass that soldier.

13. What Can a Soldier Do If Threatened, Harassed or Accused of Being Homosexual?
Report harassment at once to the commander
Commanders will take appropriate action to protect the safety of soldiers who report threats or harassment.
Communication of a threat is a violation of the UCMJ.
Appropriate action by the commander should include prompt investigation of the threat or harassment itself.
Threats or harassment based on a soldier’s perceived or alleged homosexuality do not, by themselves, constitute credible information justifying an inquiry about possible homosexual conduct by the harassed soldier.

14. Who Can a Soldier Talk with Confidentially?
Legal Assistance Attorney
Chaplain
If a soldier has a concern or if he\she is uncomfortable discussing issues regarding homosexual conduct with the chain of command, they can discuss those matters in confidence with either a legal assistance attorney or a chaplain. Information provided to a chaplain or a legal assistance attorney is generally considered privileged and will not be disclosed unless the soldier approves of the disclosure.

15. Summary
The challenge to commanders is to enforce the statutory ban on homosexual conduct in the military while respecting the limits tat the policy places on investigations of such conduct.
Service to this nation is an honorable endeavor. Soldiers who offer their commitment and their lives in service to this country should and must be treated with dignity and honor. Every soldier has the right to expect decent treatment, safety, and the support of the chain of command.
If we violate this trust for any soldier, we violate the trust of all soldiers.