THE VIRGINIAN-PILOT 
              Copyright (c) 1994, Landmark Communications, Inc.

DATE: Saturday, December 3, 1994             TAG: 9412030235
SECTION: FRONT                    PAGE: A3   EDITION: FINAL 
SOURCE: ASSOCIATED PRESS 
DATELINE: SAN FRANCISCO                      LENGTH: Medium:   54 lines

GAY RIGHTS SUPPORTERS CHEER RULING FOR RESERVIST WHO SAID SHE'S A LESBIAN

A Navy tribunal's surprise recommendation not to discharge a lesbian reservist was hailed as a victory by gay-rights activists Friday but discounted by other legal experts as an anomaly.

The recommendation, which lets Lt. Cmdr. (Select) Zoe Dunning, 31, remain in the Navy, raised new questions about how the Pentagon's ``don't ask, don't tell'' policy will be implemented. It must still be approved by the naval secretary.

``The decision, in a sense, is obviously a classic Bronx cheer at the policy,'' said Matt Coles, director of the lesbian and gay rights project at the American Civil Liberties Union's San Francisco office.

John Jenkins, associate dean of the National Law Center at George Washington University, disagreed. ``It seems to me that the decision of the board is an aberration,'' Jenkins said.

Eugene Fidell, a Washington attorney and expert on military law, said it was hard to draw conclusions from the ruling because the new policy is still being shaped. ``It's not soup yet,'' he said.

The old policy banned homosexuals outright.

``Don't ask, don't tell,'' implemented early this year, permits gay men and lesbians to serve, but only if they keep quiet about it and don't practice homosexuality.

The military, meanwhile, is forbidden from questioning service members about their orientation, the ``don't ask'' portion of the rule.

Under the new policy, if service members publicly declare themselves to be gay, they face discharge unless they can prove they do not engage in homosexual acts.

Previous cases under ``don't ask, don't tell'' have gone against the service member.

In Dunning's case, the board found that despite the fact that she declared ``I am a lesbian,'' at a 1993 rally, she had rebutted the presumption that she would engage in homosexual acts.

Dunning didn't try to convince the board she was celibate, arguing instead that her statement was merely an expression of orientation and did not imply she planned to commit acts prohibited by the military.

Fidell said that should send an encouraging message to the Clinton administration that the ``safety valve'' provisions of ``don't ask, don't tell'' are working. ILLUSTRATION: Dunning

KEYWORDS: GAYS LESBIANS HOMOSEXUALS U.S. NAVY by CNB