WASHINGTON, March 25, 2010— -- Gays and lesbians serving in the military can now breathe a little easier under longstanding Pentagon policy that prohibits them from disclosing their sexual orientation with threat of discharge.
New guidelines for how the military enforces "don't ask, don't tell" raise the bar on who or what can initiate an inquiry into allegations of misconduct by a gay or lesbian service member.
The modifications will take effect immediately and affect all cases, including open proceedings that must be scrapped and reinitiated under the new rules. But it will not be retroactive.
Secretary of Defense Robert Gates announced the move today, saying the changes will provide "a greater measure of common sense and common decency to a process for handling what are difficult and complex issues for all involved.
"These changes reflect some of the insights we have gained over 17 years of implementing the current law, including a need for consistent oversight and clear standards," Gates said.
The department is raising the level of officers authorized to initiate and conduct inquiries into allegations involving a service member's sexual orientation. It is also tightening what constitutes credible information and a "reliable person" on whose word an inquiry can be initiated.
Information provided by third parties to military leaders must now be given under oath. The department is also discouraging the use of overheard statements and hearsay.
The new regulations will place "special scrutiny on third parties who may be motivated to harm the service member," Gates said.
Certain categories of confidential information, used in discharge cases under "don't ask don't tell," will now be off limits. Service member conversations with lawyers, clergy, therapists and other medical professionals will remain private.
Gates was joined in the announcement by Chairman of the Joint Chiefs of Staff Adm. Mike Mullen. Both men said they have received support from military leadership and the White House for the changes.
"The changes are unanimously supported" by senior civilian and military leadership, Gates said.
Pentagon Directive Could Mean Fewer Discharges for Gays
Advocates for gays and lesbians praised the new measures, which could lead to fewer investigations and discharges, as a "step forward for our country," but continued to call for full repeal of the ban on gays serving openly in the military.
"The 'don't ask, don't tell' law is arbitrarily enforced and inconsistently applied to service members," said Human Rights Campaign spokesman Trevor Thomas. The campaign is "focused on a full repeal of 'don't ask, don't tell' this year," he said.
After President Obama's pledge earlier this year to work with Congress to overturn the law, the Pentagon launched a review of the issues that would be spurred by a repeal. That report is due in December.
"There' are a lot of unanswered questions in terms of the implementation of this proposed change of the law," Gates said. "I think we need to do this thoroughly and professionally. Doing it hastily is very risky."
Until Congress acts on a repeal, the military is still obligated to follow the law which was first enacted in 1993. The steps announced today are adjustments in the way the department applies the"don't ask don't tell" policy, not measures that overturn or nullify portions of it.
Pentagon general counsel Jeh Johnson told reporters the new guidelines do not amount to a moratorium on the policy because all open cases will continue. He also said most discharge cases under "don't ask don't tell" are initiated by a service member's own statement or admission of homosexuality.
"If there is compelling evidence that a person has engaged in homosexual conduct, I would not expect these new regulations would make a difference," Johnson said.
Public and political support for lifting the ban has increased significantly since President Bill Clinton first announced the compromise policy more than a decade ago.
In May 2009, a USA Today/Gallup poll found 69 percent of respondents favored allowing gays to serve openly in the military.
A bill to lift the ban, already introduced in the House of Representatives, has 187 supporters, 31 votes short of the 218 needed to get it passed.
More than 13,000 service members have been discharged from service since "don't ask, don't tell" went into effect more than a decade ago.
In 2009, some 428 members of the military -- 259 men and 159 women -- were discharged for violating the rules on homosexual activity, the lowest number of discharges in 30 years, according to recently released Department of Defense statistics.
Discharges under "don't ask, don't tell" peaked in 2001, when 1,227 service members were separated from the military.