DADT's Last Gasps

From Congress to courts to the Pentagon, military service ban remains – but just barely

More than three months ago, on Dec. 22, 2010, President Barack Obama signed the Don’t Ask, Don’t Tell Repeal Act into law, declaring to the crowd assembled, “We are a nation that welcomes the service of every patriot.”

Dr. Clifford Stanley Undersecretary of Defense for Personnel and Readiness
Dr. Clifford Stanley Undersecretary of Defense for Personnel and Readiness

A little more than a month later, on Jan. 28, Undersecretary of Defense for Personnel and Readiness Clifford Stanley made clear, however, that DADT remains in effect until the law’s required certification, saying at one point, “It is still possible for a person to be discharged [under DADT]. I have heard nothing about a moratorium.”

April 1, in fact, marked 100 days since Obama said, ”This is done,” after affixing his name to the law aimed at ending the 1993 law banning open military service. The ban remains on the books to this day. From the Congress to the courts to the military itself, though, DADT certainly appears to be taking its last gasps.

Earlier this week, opponents of DADT filed briefs at the U.S. Court of Appeals for the Ninth Circuit in support of the trial court’s decision in Log Cabin Republicans v. United States. From the expected organizations – like the Human Rights Campaign, Lambda Legal and the Palm Center – to a wide range of other organizations – Forum on the Military Chaplaincy, religious organizations and a group of Hispanic organizations and other minority organizations – the support for the trial court decision striking down DADT as unconstitutional remains in the background as the specifics of DADT repeal begin taking root in the military.

On March 31, that point was proven out as a three-person administrative separation board of the U.S. Navy heard from the government, witnesses and the military-appointed lawyer for Petty Officer 2nd Class Derek Morado, in one of the first disclosed separation hearings since the DADT Repeal Act was signed into law.

J.D. Smith, the co-director of OutServe – a group that started in 2010 for gay, lesbian and bisexual servicemembers – said he had not heard of any other separation hearings since the repeal act was signed into law. As for commanders moving forward with DADT-related discharge processes, though, he said, “That’s absolutely still going on.”

Morado approached Get Equal, according to the director of the organization that burst onto the scene in the spring of 2010 with its aggressive approach to LGBT-equality advocacy – that often ended in arrests – for help. The group then sent an email alert to its members about Morado’s case on March 30.

As the fresnobee.com detailed on March 30, Morado’s case began when “he posted a photo of himself on his MySpace page [in 2009] kissing another man. … A senior enlisted man in his ordnance and weapons unit turned him in, he said, and an admiral signed off on discharge proceedings.”

As to Morado’s efforts in advance of the hearing to reach out to Get Equal, Director Robin McGehee said, “He was unsure what the process was going to be like and, just like us, very perplexed that he was hearing all these celebratory reports about repeal and why his hearing was continuing.

”He was baffled. … He thought for sure his hearing was going to be put on hold,” she added. “He was fearful that they were trying to make this happen before implementation.”

Following the March 31 hearing, the panel recommended Morado’s retention in a 3-0 decision. Morado spoke with Metro Weekly that night, saying ”The board reviewed the instruction, they reviewed the evidence, they heard from some character witnesses that we provided. And, ultimately, they decided to retain me and keep me in the military.”

Asked why the panel reached that decision, he said, ”The basic reasoning I got was just, based on the evidence, they saw no immediate need to separate me from the military.”

Had the panel recommended Morado’s separation, however, the separation would have to be reviewed by an admiral or higher, according to a lawyer familiar with the DADT discharge process. Additionally, a “Letter of Deficiency” could have been filed by Morado’s lawyer, detailing any problems with the panel’s decision. That Navy official’s recommendation would then – under the Oct. 21, 2010, changes put in place by the Pentagon – have needed to be approved by Navy Secretary Ray Mabus, in consultation with the Defense Department general counsel and the undersecretary of defense for personnel and readiness, before Morado could have been discharged.

Before learning the outcome of the hearing, however, McGehee discussed the “emotional and physical stress” that she said Morado was facing and added pointedly, “It really begins to make you question why we’re wasting the money on a hearing like this and also why we’re allowing the military to bully him.”

In fact, Morado told Metro Weekly, ”I’m glad it’s over with. I feel nothing but relief.”

Smith went further, though, saying, ”The fact that everyone knows that the Pentagon hasn’t discharged anyone since Obama signed the repeal law, and yet we are seeing, on the unit level, discharge procedures still going forward – it’s creating an almost harder position for some people.

“They just need to move certification. They just need to end this thing.”

The next day, however, Clifford Stanley testified before the House Armed Services Military Personnel Subcommittee on and laid out a plan that would not end the military’s “Don’t Ask, Don’t Tell” policy until likely September – although he would not give a specific date.

On April 1, Stanley also told the subcommittee, chaired by Rep. Joe Wilson (R-S.C.), that his assessment of the implementation of the Don’t Ask, Don’t Tell Repeal Act is that there have been “no issues or problems with training, and all is going well.” The director of the Joint Staff, Vice Adm. William Gortney, concurred, saying, “Thus far, no surprises and we’re pretty pleased with where we are.”

Stanley added that he “anticipate[s] the training will be completed by this summer.” The Pentagon officials detailed that about 9 percent – or 200,000 – of servicemembers have been trained thus far. Gortney later clarified, noting, “We anticipate about mid-summer … to get the recommendations from the service chiefs to the chairman.”

Facing questions from antagonistic Republicans and supportive Democrats, the hearings featured some of the more extreme factions of both caucuses, from Rep. Chellie Pingree (D-Maine) – who strongly spoke in support of repeal despite her freshman status in the 111th Congress – to Rep. Austin Scott (R-Ga.) – a freshman in the 112th Congress who was surprised to learn that servicemembers have regularly been discharged under DADT based on their sexual orientation and not on what he called ”conduct violations.”

Talking with Metro Weekly after the hearing, Pingree said she viewed the hearings as happening because the Republicans on the subcommittee ”just wanted to have another shot to kind of argue the change in policy and look for reasons, perhaps, to really more discuss why they disagree with repeal than anything else.”

Following up on the April 1 subcommittee hearing, the whole House Armed Services Committee, chaired by Rep. Buck McKeon (R-Calif.), will be holding another hearing on the repeal of DADT at 1 p.m., Thursday, April 7. The hearing will feature testimony from Gen. Peter W. Chiarelli, Army vice chief of staff; Adm. Gary Roughead, chief of naval operations; Gen. James F. Amos, Marine Corps commandant; and Gen. Norton A. Schwartz, Air Force chief of staff.

Further reporting on the April 7 hearing will be posted at Metro Weekly’s Poliglot.

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