Navy Board Recommends Discharge of Gay Officer : Military: Lawsuit challenging Clinton’s ‘don’t ask, don’t tell’ policy is expected. It is the third such case to be decided in recent days.

A Navy board of inquiry recommended Thursday that Lt. Tracy W. Thorne be discharged for declaring that he is a homosexual, paving the way for another likely court challenge to President Clinton’s “don’t ask, don’t tell” policy on gays in the military.

Although the ruling still could be reversed by Navy Secretary John H. Dalton, Thorne and his lawyers said that they are preparing to file suit in federal district court here to challenge the policy on constitutional grounds.

“Today’s decision means that, no matter what the rhetoric, the reality is that (the military’s treatment of homosexuals) is no different today than it was before” Clinton’s new policy went into effect last December, Thorne told a news conference after the ruling.

“I am disappointed,” he said, but added: “This is not an end. This is a beginning.”

Thursday’s decision marks the third such case that Navy boards of inquiry have decided in recent days--all under Clinton’s new policy on gays in the military and all recommending honorable discharges.

On Wednesday, similar panels in Norfolk, Va., and Bangor, Wash., issued identical recommendations affecting Lt. (j.g.) R. Dirk Selland and Mark A. Phillips, a machinist’s mate 2nd class, both of whom had declared that they were homosexuals.

Thorne’s case was the most widely known, however, because the 27-year-old bombardier had disclosed his homosexuality on ABC-TV’s “Nightline.” The broadcast took place in May, 1992--four months after Clinton announced his new policy but 10 months before it took effect.

Under Clinton’s new policy, the military no longer asks members of the armed forces to disclose their sexual orientation and ostensibly would allow them to continue serving if they kept their status to themselves and did not engage in homosexual activity.

But the rules also provide that merely disclosing that he or she is gay creates a “presumption” that a person has a “propensity” to engage in homosexual actions--and therefore amounts to sufficient evidence for discharge from the military.

Experts said that the only way a service member can overcome that is to present evidence that he or she is celibate. As a result, gay-rights groups have argued that in practical terms the new policy differs little from the outright ban on homosexuals that existed before.

Thorne’s situation and that of Selland, whose hearing was in Norfolk, have been regarded as ideal test cases because both officers had earned unusually high marks in their fitness reports and undoubtedly would have been kept on had they been heterosexuals.

But Navy Capt. Douglas W. Cook, the inquiry board’s president, pointed out that Thorne and his attorneys had “failed--in fact made no effort--to rebut” the presumption cited in the new policy rules. Indeed, Thorne admitted that he is living with another gay man now.

Thorne had contended that, under the new regulations, he only could be discharged for homosexual conduct and he said his admission that he is gay does not in itself prove that he has engaged in such behavior. As a result, he declared, “there is nothing to rebut.”

Legal experts said that Thorne’s lawyers hope to use the Navy ruling on the “presumptive rebuttal” clause to challenge the constitutionality of Clinton’s new policy.

By contrast, Selland had notified his superiors in Norfolk that he was involved in a monogamous homosexual relationship with another gay man. The board in that case ruled that his admission that he was engaging in homosexual action constituted grounds for dismissal.

Clinton pledged during the 1992 presidential campaign to eliminate the ban that was in effect then on homosexuals serving in the armed forces but he ran into stiff opposition from Congress and the military and had to settle for a compromise that provided little real change.

There was no immediate indication how quickly Dalton might complete his review of Thursday’s decision by the three-member board of inquiry. A Pentagon spokesman said that the Defense Department would have no comment until the Navy secretary acts.

Thorne said at his press conference that he still respects the Navy and wants to be a part of it but he criticized Clinton’s new policy as ineffective. “I had hoped that the President’s new policy would have meant what it said,” he told reporters.

But he said that he plans to leave the Navy in October no matter what his status because he no longer is permitted to fly and believes that he has no real future in the sea service. “I’m an American, I’m a naval officer and I’m a gay man,” he said in a summary speech on Wednesday.