THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, March 14, 1995 TAG: 9503140327
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: THE NEW YORK TIMES
DATELINE: WASHINGTON LENGTH: Long : 142 lines
In the year since the military's new rules on homosexuals went into effect, the results have been as ambiguous as the rules themselves, interviews with service members, Pentagon officials and gay rights advocates indicate.
Some commanders are bending the regulations to protect popular gay service members and others are using their latitude to drum homosexuals out unfairly, gay rights groups say.
The rules, often described as ``don't ask, don't tell, don't pursue,'' allow homosexuals to serve in the military, but require them to keep their sexuality private. The policy is facing its first legal test, in a lawsuit brought in New York by six active-duty and reserve service members, who say it violates their First Amendment rights. The lawsuit went to trial Monday.
While gay rights groups dislike the new rules almost as much as the old outright ban, from the military's point of view, the new policy has succeeded in the goal it considered most vital: making the issue largely irrelevant.
``It's not the hot issue that it could have been or might have been in the past,'' Gen. John M. Shalikashvili, the chairman of the Joint Chiefs of Staff, said last month.
But the experience in the field is proving to be more complicated than either side's depiction might suggest.
On the one hand, a new study by the Servicemembers Legal Defense Network, a military legal aid organization, cites 180 cases in the past year when commanders from the four military branches violated the new policy. The examples include what the group called a ``witch hunt'' at a Marine base in Okinawa, when 21 Marines were questioned last spring about their sexual orientations. The Pentagon is investigating the matter.
Senior Defense Department officials acknowledge that in a 1.6-million member military, some commanders might have abused or misunderstood the new rules despite the Pentagon's aggressive education campaign. These officials deny that there are any systemic problems and say the legal aid organization's study is vague and exaggerated.
But perhaps the most surprising development involves the treatment of people who have openly broken the policy. About 15 gay service members serve openly in the military, pending the outcome of their court challenges, and in virtually all instances have received broad support from co-workers and other military colleagues.
In the year since the rules took effect on Feb. 28, 1994, the military has discharged 507 people for homosexuality. The armed services do not have statistics for the same period in previous years, but the overall discharge rate for homosexuality was virtually the same in the fiscal year that ended last September, as it was for the two previous years. Most cases involved people who wanted out and received administrative discharges.
``The regulations that have been put out are being followed,'' Defense Secretary William J. Perry said last month. ``It is a problem, though, in that the policy is being challenged in the courts. And until we have the court challenges settled, we will really not know where we are going in that area.''
Under the Clinton administration's new policy, adopted after a bruising battle with Congress and the Joint Chiefs of Staff, homosexual activity, which is broadly defined, is banned, but gay men and lesbians may serve in the armed services as long as they keep their sexual orientation private. Commanders may not ask about a soldier's sexuality and must have credible information to begin an inquiry.
The plaintiffs in the New York lawsuit and their supporters say the new policy is unjust and a violation of the Constitution's equal protection clause and the right to free speech guaranteed under the First Amendment.
The federal judge hearing the case in the Eastern District of New York in Brooklyn, Eugene H. Nickerson, is expected to rule by March 31. A stay against the Pentagon's starting discharge proceedings against the plaintiffs expires after that.
``The new policy is a charade that's only made the situation marginally less awful,'' said Rep. Gerry E. Studds, a Massachusetts Democrat who is one of only three openly gay members of Congress. ``You either tolerate discrimination or you don't. This does.''
The administration counters that the policy bans only homosexual conduct, including statements, because that could threaten the morale and fighting spirit of the armed forces. In essence, commanders say, allowing gay service members to serve openly would cause havoc in the ranks.
But this does not always seem to be the case, as with Lt. Paul Thomasson, a 32-year-old anti-submarine plane pilot. In a fateful twist, the lieutenant was assigned as an aide to the admiral responsible for carrying out the new policy for the Navy.
After he told his superiors last March that he was gay, Thomasson kept his job and security clearance, which are sometimes removed during discharge proceedings. Last month, as he was preparing a court challenge to his dismissal, the lieutenant received a glowing evaluation from his boss.
``Lt. Thomasson is one of the finest junior officers I have ever had the pleasure to serve with,'' Rear Adm. Albert Konetzni, the Navy's head of military personnel policy and career progression, wrote in his annual evaluation of Thomasson. ``Continue to challenge him with the most difficult assignments, he will excel.''
Nor did morale sink in the office. Sailors serving under the lieutenant lined up to support him. ``Of course it was a shock at first,'' said Petty Officer Jack Trumbull. ``But it was really no big deal. What a person does in his own time doesn't make any difference. He was a top performer.''
Senior Pentagon officials concede that individual commanders vary in how aggressively they enforce the new policy, thus setting the climate toward homosexuals serving in the office or command.
In some cases, the service member is too popular or too valuable to lose. Since a 33-year-old Navy doctor based in Virginia told her commanders a year ago that she was a lesbian, no one has taken any action against her.
``Her command either doesn't want to lose her or doesn't agree with the policy,'' said Paul Roecker, a lawyer for the doctor, who did not want to be interviewed or have her name used.
Not all commanders are as accommodating. The legal aid organization's study concluded that the military's new policy on homosexuals ``reveals a pattern of violations that often renders the policy little more than `ask, pursue and harass.' ''
For example, Navy lawyers last June issued some unusual guidance. The document encouraged administrative hearing officers presiding over discharge proceedings to obtain ``additional evidence demonstrating that a discharge is warranted by the unequivocal desire of the respondent to commit criminal acts.''
Gay rights groups say this violates the new policy by promoting improper inquiries against service members. But Cmdr. Steve Pietropaoli, a Navy spokesman, said, ``This seems appropriate for the government to provide advice to its representatives in these proceedings.''
Seaman Daniel Yarnall, a 24-year-old Navy intelligence code technician, said a barroom prank in Japan last fall nearly ended in disaster. Yarnall said after he rebuffed the advances of a woman in the bar, she yelled out that he must be gay. Yarnall said he jokingly yelled back, ``Yeah, I am,'' and pretended to kiss a male friend next to him.
Navy officials in Japan first reprimanded the young sailor and then tried to discharge him for homosexual conduct. Yarnall denied he was gay. Only after hiring a civilian lawyer for $8,500 and enlisting the help of a legal aid group and Rep. Rick Santorum, a Pennsylvania Republican who now is a senator, did Navy officials in Washington overrule the field commanders.
Yarnall left the Navy last month, as he had planned to do before the incident, with an honorable discharge.
One senior Pentagon official who monitors the new policy said he believes that incidents like the one involving Yarnall were isolated. But at the same time, the official said, ``It is a huge organization we have, and like any organization, some people never get the word, or get the word and just don't care.'' MEMO: Related articles on pages A1 and A12.
KEYWORDS: LESBIAN HOMOSEXUAL MILITARY PERSONNEL U.S. NAVY by CNB