BATTLE SET OVER MILITARY GAY BAN

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, January 25, 1993                   TAG: 9301250062
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-10   EDITION: METRO 
SOURCE: Knight-Ridder Tribune
DATELINE: WASHINGTON                                LENGTH: Medium
BATTLE SET OVER MILITARY GAY BAN
The Clinton administration is expected to take the first step this week to end the military's long-standing ban on gays and lesbians in uniform.
President Clinton has chosen to take his first action through Secretary of Defense Les Aspin by letting him temporarily suspend current regulations and giving Aspin three to six months to prepare a permanent executive order for his signature, according to Defense Department sources.
The temporary changes would take effect within days, however, as soon as instructions are published through the military chain of command, according to military officers who asked not to be quoted by name.
Clinton's action already has sparked widespread controversy on Capitol Hill as well as within the armed forces, and the attempt to formally overturn the ban is expected to create a major battle in Congress.
Veterans organizations, religious groups and many in Congress oppose the idea of gays openly serving in uniform, while there is an equally vocal faction in Congress, supported by gay and lesbian activists, who regard the current military regulations and laws against homosexual conduct as discriminatory.
Aspin's first action will be to order military recruiters to stop asking two questions about a potential recruit's sexuality.
Currently, the application form for military service requires every recruit to answer whether he or she is a homosexual or bisexual, and whether he or she intends to engage in homosexual actions, defined as sexual relations with a person of the same sex.
The recruiter signs the form to witness the applicant's responses and signature.
Under present policy, a person who affirms a homosexual orientation or intent to engage in homosexual acts can be barred from enlistment.
"The government is not running a dating service, so that is not essential information," said Rep. Barney Frank, D-Mass. Frank is homosexual and supporter of eliminating the ban.
The chiefs of the armed forces were "very upset" when Aspin informed them of Clinton's plan at a meeting last Thursday, sources said. The chiefs had hoped that any changes would be studied carefully for some months before a final decision was made.
Sen. Dan Coats, R-Ind., who supports the ban, criticized Clinton's action.
"The president has compounded the problem by saying, `I want you to study it,' and yet he has imposed a policy change immediately," Coats said.
Perhaps the single most complicating factor in changing the regulations, most legal experts agree, is the Uniform Code of Military Justice. The code does not make it a crime for a service member to say he or she is gay, but it does criminalize homosexual conduct.
Moreover military law does not differentiate between on-duty and off-duty behavior.
In a Jan. 14 Congressional Research Service study of U.S. policy on homosexuals in the military, David Burrelli pointed out that "the president alone cannot modify" the articles of the code.
The Constitution gives Congress the power to set the rules for maintaining order and discipline in the armed forces. Thus, it would take an act of Congress to remove or modify the sodomy statute in the code, according to Burrelli's study and legal experts.
As an example of the opposition Clinton faces, Rep. Joe Barton, R-Texas, said he will introduce the Maintenance of Military Discipline Act in this session of Congress to circumvent Clinton's action by "making all existing Defense Department accession and separation directives the law of the land."
Clinton could veto it, but Burrelli said Congress could modify or nullify the president's executive order by incorporating its preferred policy in a larger bill, such as the annual Defense Department appropriations act.
"The president, lacking a line-item veto, would have to veto the entire bill, leaving the Department of Defense without funding, or accept the congressional language," he said.
Unless the sodomy statute were eliminated, even gay sex off-the-base would be subject to military prosecution.

by Bhavesh Jinadra by CNB