Pentagon: No gays were discharged in past month

LISA LEFF | Associated Press

SAN FRANCISCO — No U.S. service members have been discharged for being openly gay in the month since the Defense Department adopted new rules surrounding the “don’t ask, don’t tell” policy, a Pentagon spokeswoman said Monday, Nov. 22.

Under new rules adopted Oct. 21, Defense Secretary Robert Gates put authority for signing off on dismissals in the hands of the three service secretaries.

Before then, any commanding officer at a rank equivalent to a one-star general could discharge gay enlisted personnel under the 1993 law that prohibits gays from serving openly in uniform.

Pentagon spokeswoman Cynthia Smith told The Associated Press that no discharges have been approved since Oct. 21.

Smith did not know if the absence of recent discharges was related to the new separation procedures. The Pentagon has not compiled monthly discharge figures for any other months this year, she said.

Based on historical trends, however, it appears the change, as well as moves by Gates and President Barack Obama to get Congress to repeal “don’t ask, don’t tell,” has caused discharge rates to fall dramatically, said Aaron Belkin, executive director of Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara.

“Statistically, it would be extremely unlikely if we had a month in which there were no gay discharges,” Belkin said, noting that 428 gay and lesbian service members were honorably discharged under the ban in 2009.

A month without “don’t ask, don’t tell” discharges was welcome news, said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network. Still, the organization continues to hear daily from military personnel who are under investigation for being gay and face the possibility of being fired.

“We have clients who are still under investigation, who are still having to respond, and in fact we have a client under investigation right now under suicide watch,” Sarvis said. “So ‘don’t ask, don’t tell’ has not gone away.”

Gates announced the change requiring the top civilian officials with the armed forces to personally approve “don’t ask, don’t tell” discharges after a federal judge in California ordered the military to immediately stop enforcing its ban on openly gay troops, declaring the 17-year-old policy unconstitutional.

An appeals court subsequently froze the judge’s order until it could consider the broader constitutional issues in the case.

Putting responsibility for firing gay personnel in the hands of the three service secretaries was not designed to slow the rate of discharges, Gates said at the time. Rather, concentrating that authority was meant to ensure uniformity and care in enforcement at a time of legal uncertainty, he said in a memo outlining the new rules.

Gates since has urged the Senate to repeal “don’t ask, don’t tell” before a new Congress takes office in January. He said this week he plans to release a monthslong study on how lifting the gay service ban would affect the armed forces and could be carried out on Nov. 30.

—  John Wright

DADT update: Most troops don’t mind serving with gays; appeals court to rule Friday on injunction

A majority of service members who responded to a Pentagon survey wouldn’t mind living and serving alongside openly gay people, according to The Washington Post. Of course, more than half of those who received the survey didn’t respond, which would seem to indicate that they don’t have much of a problem with “don’t ask don’t tell” being repealed, either. And that’s a good thing, because whether they like it or not, they’re already serving alongside gays and lesbians. Besides, it shouldn’t really be up to the troops. Anyhow, the Post’s report is based on findings that were leaked from the study that’s due to President Barack Obama by Dec. 1, on how to end the 17-year-old policy. The Post goes on to note that a federal appeals court is expected to rule later today on whether the military can continue enforcing DADT pending the government’s appeal of a district court’s ruling declaring the policy unconstitutional.

UPDATE: The appeals court did not issue its ruling as expected Friday. Sources said the ruling will be issued next week at the earliest.

—  John Wright

SLDN advises caution despite Pentagon announcement; Dan Choi attempts to re-enlist

Despite the Pentagon’s announcement Tuesday that military recruiters have been told they must accept gay applicants, the Servicemembers Legal Defense Network continues to advise caution.

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up,” SLDN Executive Director Aubrey Sarvis said in a statement Tuesday afternoon. “The ‘don’t ask, don’t tell’ law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Of course, if you’ve already been discharged for being gay, you don’t have much to lose. Among those who plan to try to re-enlist in the wake of the Pentagon announcement is Lt. Dan Choi, according to his Twitter feed:

—  John Wright

Former colleagues testify for lesbian flight nurse discharged from Air Force under DADT

GENE JOHNSON | Associated Press

TACOMA, Washington — A lesbian flight nurse discharged from the Air Force under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday, Sept. 13.

Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.

“It was a rather dishonorable act on the part of the Air Force,” Schaffer said. “It should not be about what you are, but who you are.”

Witt’s case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt’s dismissal met that standard.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Phillips’ ruling has no effect on the legal issues in Witt’s case, gay rights activists believe a victory — and Witt’s reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.

Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt’s sexuality. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.

Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

Former colleagues who testified Monday disagreed that Witt’s firing accomplished anything — especially because it came during a shortage of flight nurses.

“We were at war at the time,” said Lt. Col. Vincent Oda. “It was the loss of an able flight nurse is what that was.”

The court also heard from other service members discharged under “don’t ask, don’t tell.” One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn’t want to hide anything.

The result of that initial inquiry? “No evidence” of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.

One of Witt’s lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.

Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.

Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.

Her suspension came less than a year before she would have earned her full pension.

—  John Wright