My buddy Justin responded to my Don’t Ask, Don’t Tell post in an email (he did not include the typos in his email. The formatting changed when I copied the email into FoxTrott):
“While I appreciate the point you are trying to make, there is a fundamentalflaw with your logic in Scenario 2. Unless I am missing something, you seemto posit that a male Soldier who declares his sexual preference for boysseven years of age is not homosexually oriented. I submit to you insteadthat the Soldier in question is actually both a pedophile and a homosexuallyoriented individual, and, therefore, is also subject to discharge under theCongressional "Policy Concerning Homosexuality in the Armed Forces," ascodified in 10 USC 654, like the Soldier in Scenario 1.I believe that your point would be better served by substituting "boys" with"girls" in Scenario 2 (assuming we are still talking about a male Soldier),but this entire hypothetical still fails in practical application. Thecommander in Scenario 2 would likely refer the Soldier for a mental healthevaluation immediately given the fact that the Soldier has confessed aproclivity towards underage children. The Soldier's assurance that he wouldnever act on that proclivity is irrelevant because of the career-endingcatastrophe (and potential criminal culpability/civil liability) that wouldbefall our hapless commander should the Soldier be unable to control himselfat some point in the future. Assuming the Soldier was truthful in his claimand his paraphilia was confirmed upon a medical examination (regardless ofhis intent to act upon it), he would be designated as administratively unfitfor service and separated under the applicable service regulation. See,e.g., Army Regulation 40-501 (Standards of Medical Fitness), para. 3-35(a);Army Regulation 635-200 (Active Duty Enlisted Separations), para. 5-17. Inthe end, the pedophiliac Soldier is administratively discharged just likethe homosexually oriented Soldier.My comments here are limited only to the two scenarios laid out above andare not intended to address the substance/policy of 10 USC 654 or any of itsimplementing regulations.”
The point of my Don’t Ask, Don’t Tell post was to show the absurdity of that policy by establishing that bad soldiers get to stay in the army as homosexuals are automatically discharged merely for being homosexuals. Thus, I responded to Justin with several theoretical soldiers that I thought the military would not discharge despite a poor character trait. For example, I asked whether the military would discharge a soldier that merely expressed an abstract desire to have sex with his mother. Additionally, I asked whether the military would discharge a racist white soldier in a unit made up of African Americans. Finally, I asked whether the military would discharge a soldier who told the men in his unit that he wanted to sleep with their wives. Justin had a response for every example. In each case, the military could discharge the soldier.
I knew that the military was tough. However, I did not know that the military had so many ways to discharge soldiers. There is likely no soldier of whom I could conceive that the military could not discharge under the right factual scenario.
The problem is the level of discretion that the military has to punish non-homosexual soldiers. I gave Justin the example of a male soldier in a unit in which a majority of the men are married. Suppose that this soldier tells the men in his unit that he has a fetish for married women. The soldier has seen the wives of the married men. The soldier tells those men that he wants to have sex with their wives. The married men believe the soldier and want to kick his ass. However, all the men know with 100% certainty that the soldier will never actually have sex with their wives, flirt with their wives, etc. The married men merely know that the soldier has a strong sexual desire for their wives.
Justin posited two ways in which the military could discharge this soldier:
1) Under Art. 134 (10 USC 934) (stating that “Though not specifically mentioned in this chapter [10 USCS §§ 801 et seq.], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter [10 USCS §§ 801 et seq.] may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” (emphasis added)).
2) Under Army Regulation 635-200, para. 5-17(a)(9) (Active Duty Enlisted Separations), para 5-17 (stating that “Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to—…Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. Soldiers with 24 months or more of active duty service may be separated under this paragraph based on a diagnosis of personality disorder.” (emphasis added)).
Both of the above authorities permit, but do not require, the discharge of a soldier. However, Don’t Ask, Don’t Tell requires the discharge of a soldier who has indicated that he is gay. See 10 USC 654(b)(2) (declaring that “A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:… That the member has stated that he or she is a homosexual or bisexual, or words to that effect.” (emphasis added). In fact, as written, Don’t Ask, Don’t Tell has only two exceptions:
1) No discharge if “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.” Id.
2) No discharge if “the member engaged in [homosexual] conduct or made statements [indicating homosexuality] for the purpose of avoiding or terminating military service…and…separation of the member would not be in the best interest of the armed forces.”
Thus, under Don’t Ask, Don’t Tell, the military must discharge a soldier that lets another soldier know that he is gay so long as the former soldier does nothing to prove that he is straight or that he only said that he was gay to get out of the military. On the other hand, the military can, but need not, discharge a soldier who tells the other men in his unit that he wants to have porno sex with their wives. I think that we can all agree that it would not be unreasonable to argue that the latter statement would have a greater negative effect on unit “morale, good order and discipline, and unit cohesion” than the former. Why then the varying levels of discretion? If what we really care about is “morale, good order and discipline, and unit cohesion,” See 10 USC 654(6), shouldn’t we at least give the military the discretion to decide whether an individual soldier’s homosexuality actually hurts his unit’s morale, etc.?
JAC: The military already has rules against flirting and having sex with other soldiers (male or female). These rules should alleviate most of your concerns. I merely wish to point out the absurdity of discharging soldiers based solely on the sexual preference that they manifest.
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