Few Benefit From New Military Policy on Gays

When President Clinton announced his compromise policy on gays in the military 18 months ago, Air Force Capt. Richard F. Richenberg Jr. decided it was time to come out of the closet about his homosexuality.

Although the new policy still allowed the military to discharge service members for acknowledging they are gay, it provided an exception for those who made a convincing case they would abstain from homosexual acts.

“I was very hopeful, and the President’s move helped me to start dealing with my own sexuality,” Richenberg said. He submitted to detailed questioning and promised to remain celibate.

Today, Richenberg is awaiting a final review of a discharge order to expel him from the Air Force anyway. “What I’ve learned since then,” he said of Clinton’s initial bid to ease the restrictions on gays in the military, is “that commanders still are actively pursuing cases even if they don’t have good cause.”

Richenberg’s anguished assessment reflects the turmoil that continues to surround Clinton’s policy, under which the military has agreed to stop asking recruits whether they are homosexuals but continues to discharge service members who are found out.

Although the White House continues to portray the regulations as an improvement on an approach that often was unfair, the new policy appears to be producing few real changes or benefits for any of those involved--particularly for homosexuals.

“I don’t get the feeling that the new policy has made a great deal of difference,” said Lawrence J. Korb, the former Pentagon personnel official who issued the ban in 1982 but more recently has come to the defense of gay men and lesbians fighting discharge.

“I think the military feels they have beaten Clinton back on this issue, and they’re not going to change,” he said.

Indeed, homosexuals and gay-rights organizations contend that life for gay men and lesbians in the military may be worse under the new policy than it was even before Clinton raised the issue--because in many ways the situation is more confused and parties on all sides have frayed tempers.

Kathleen Gilberd, an analyst for the Military Law Task Force, which counsels gay men and lesbians facing discharge, says the controversy over the Clinton plan has so charged the atmosphere in the military that homosexuals often are aggressively singled out.

“The intensity has been turned up,” she said.

Same Discharge Rate

There are these developments:

* The services are continuing to throw out gay men and lesbians at about the same rate as they did before the new policy evolved. Last year, 597 servicemen and women were expelled for homosexuality, or 0.04% of the military population--the prevailing rate for several years.

Despite the new rules, only four service members have successfully rebutted the “presumption” that they are likely to engage in homosexual acts, and thereby saved their careers.

* There are noticeable differences in the ways that the various armed services and individual commanders are applying the rules.

In a case involving a Marine corporal, for example, one unit commander found the evidence against him vague and allowed him to stay. Later, that commander’s successor in the job found the evidence conclusive and revived the case. The corporal wound up leaving the service.

* Investigations are being initiated against service members on circumstantial evidence, even though the new policy was intended to offer more protection to those not making an issue of their sexuality.

Marine Cpl. Kevin Blaesing, for example, was discharged for having asked a Navy psychologist for help in resolving uncertainties over whether he was gay. Another man was dismissed after a barracks mate found a letter in his desk that was interpreted as a hint that he might be gay.

Courts Divided

Amid the contradictions and ambiguities, both critics and advocates of allowing gay men and lesbians in the military are convinced more than ever that it will take action by the courts to settle the issue once and for all--by ruling whether the ban is constitutional in the first place and under what circumstances it applies.

Appeals courts have split sharply on the question, and legal experts say it may well be years before the Supreme Court finally agrees to enter the fray to resolve it.

Expectedly, the assessment of the new policy’s impact on gays and the military is not shared by the parties involved. Fred Pang, an assistant secretary of defense, contends that gay men and lesbians are not being prosecuted beyond the letter or the spirit of the new approach.

“Did we detect errors on the part of some (commanders) in the early stages? Yes,” Pang conceded in an interview. “But we responded. We’ve reviewed each individual assertion when they (gay-rights groups) have brought them. With the exception maybe of one case, there’s been no foundation.”

Military officers contend that gay men and lesbians are getting everything they are entitled to. They say the number of “witch hunts”--or investigations based on speculative information--has diminished substantially. And they contend that commanders are more restricted in their prosecutions.

“The idea, after all, was mainly to end the witch hunts, not to give the green light to homosexuality,” one officer pointed out.

Even so, Pang says if he himself were gay and in the military, he most likely would not have noticed much difference under the new order. “I would probably feel more comfortable,” he said, “but not significantly so.”

That wasn’t supposed to have been the case when Clinton outlined the policy in July, 1993.

Under the new rules, sexual “orientation” alone no longer would be a barrier to service. Gay men and lesbians would be discharged only for “homosexual conduct.” Commanders were no longer supposed to ask troops about their sexual orientations. And they were not to investigate a person’s sexual status unless they had credible information that he or she had engaged in homosexual conduct.

Under the old system, homosexuals were discharged either for acknowledging that they were gay or for having sex with a person of the same gender.

The new policy fell well short of Clinton’s 1992 campaign pledge to end the ban on gays in the military. And it was hedged significantly before it was announced to quell the fierce uproar that erupted among conservatives and the military over the proposed ban. For example, the prohibited “homosexual conduct” was broadly defined to include not only a sex act, but any statement or action showing “a propensity” to commit homosexual acts.

Indirect Questions

Still, the change was portrayed as a step toward a more tolerant climate for gay men and lesbians who wanted to serve their country in uniform and were willing to accept celibacy to do it. Those service members specifically accused of being gay could seek to rebut the “presumption” that they would be likely to engage in homosexual sex.

But, as Richenberg found, in practice that is difficult to do.

Intentions aside, the new system relies heavily on individual judgments--judgments, gays and their advocates say, that too frequently go against them.

Michelle Benecke, co-director of the Servicemembers Legal Defense Network, a Washington organization that has provided advice to some 400 gay men and lesbians in the military, said that although officials no longer ask directly whether a service member is gay, some are probing indirectly with questions such as “Do you have an alternative lifestyle?” and “If you were gay, how would you respond?”

Both military officials and lawyers involved in appeals cases said that among the services, traditional patterns are holding firm.

The Marine Corps still is culturally by far the most hostile service for homosexuals--and the most aggressive in pushing gay men and lesbians out. The Navy runs second--partly because of tradition and partly because of close living conditions aboard ships, naval officers say.

The Army and Air Force are considered more tolerant, although even their decisions vary widely from one commander to the next.

C. Dixon Osburn, Benecke’s co-director at the Servicemembers Legal Defense Network, points to nearly identical cases in the Air Force in which two service members were charged with being homosexuals based on comments found in letters. In one instance, the man’s unit commander dismissed the “evidence” as not credible. In the other, the letter was declared “proof” and the service member was thrown out. Other such examples abound.

“I think there is confusion about what credible information is,” Osburn said. “Most commanders do not realize that they do not have the latitude (to prosecute even when the evidence is not credible). “They do what they’ve been trained to do in the past.”

Laura Stratton, who left the Navy in September after spending four years without being discovered, agrees. “If you have a very open-minded commander who doesn’t care as long as you do your job, that’s great,” she said. “But if you have a homophobic one, then forget it.”

Circumventing Rules

Some gay men and lesbians, believing that the “don’t tell” part of the new policy would provide them enough protection, are finding it may not. A young former Air Force enlisted man, who asked that his name not be used, says he was “found out” inadvertently when Customs Service officers, routinely checking the bags of a friend who was returning to the United States, found a videotape of the two of them. He was investigated and expelled.

Stephen B. Pershing, lawyer for the Virginia American Civil Liberties Union, tells of a client who telephoned a chief petty officer one night for help with an exam that he was facing, starting out apologetically: “Chief, I have something I need to talk to you about.”

When the irate chief responded: “Oh, you’re not going to tell me you’re a faggot, are you?” the alarmed sailor--a youngster who said later he was too afraid to lie--sputtered out: “Yes, I’m gay,” leading to a discharge hearing.

In some cases, commanders seem to have sought to circumvent the new regulations by prosecuting members on other charges. Jonathan M. Bowie, a San Diego attorney with Skadden, Arps, Slate, Meagher & Flom, points to a Navy chaplain who was discharged recently for “fraternizing” with enlisted Marines. Bowie said the real reason was that Marine Corps authorities suspected that he was gay. The chaplain, who is married, denied all charges and contended he had invited the youths over for counseling, Bowie said.

Gay-rights advocates and lawyers who have handled cases involving homosexuals assert that the formal expulsion proceedings do not reflect the actual number of people being pushed out of the service for suspected homosexuality.

Many are being culled in a more subtle way: Their commanders later disapprove their applications to re-enlist. Blaesing said he ran into this when he sought to sign up for a second four-year hitch after a case filed against him was thrown out. He is bitter. “The biggest injustice is that if you play by the rules, they’ll come after you in some other way,” he said.

Those who expected a bigger change within the military after the new policy was implemented say they are amazed by what is considered sufficient evidence by the military for launching an investigation.

In Okinawa, Marine Cpl. Craig Haack was subjected to a surprise search and interrogation by investigators after another Marine said offhandedly: “All I know is that this guy is a fag.” He fought the case but eventually chose to leave the service.

Preventing Abuses

In Snohomish, Wash., former air traffic controller Jim A. Turner was bounced out of the Navy for homosexuality on the basis of assertions by three subordinates--two of whom later were judged not credible--that he was gay. He flatly denies that he is gay.

“Once you are accused of homosexuality, it seems to me that you are guilty until you are proven innocent,” Turner said. “There’s no common sense to this. All of the allegations were uncorroborated.”

In response, the services assert that they are taking steps to prevent abuses of the new policy. All four branches have issued detailed guidelines on how to apply the new regulations fairly.

And some commanders are making clear that they are not interested in aggressively driving gay men and lesbians out of the closet. One infantry commander spikes his pre-weekend lectures to troops with the jocular warning: “For those of you in the ‘don’t ask, don’t tell’ crowd, make sure you play safely.”

But the services concede that the job of disseminating the new policy has been handled less diligently than, say, the new sexual-harassment guidelines issued in the wake of the Navy’s Tailhook scandal.

No formal training sessions have been held for individual commanders and their staffs. And there is no separate monitoring system for reviewing cases once they have been opened.

Change in the Military

Some insist that the military has nonetheless been changed by the hotly disputed issue--at least in its willingness to acknowledge there are gay men and lesbians in the ranks at all.

“I think people have mellowed a little bit on this issue,” said Army Spec. Adrian Hunter, a communications technician at Ft. Eustis, Va., one of several military personnel interviewed on the issue of gay men and lesbians in the military. “Most people don’t like it, but they’re more willing to live with it now.”

And one side effect of the new policy is that it has drawn some of the nation’s highest-profile law firms to the issue, representing clients in the numerous lawsuits it is spawning.

“The big thing is that this has shoved the issue toward the Supreme Court,” said Eugene Fidell, a Washington lawyer with broad experience in the field. “For better or worse, the courts are going to be the ones who decide.”

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Discharges Declining

The number of service members being discharged for homosexuality has been declining in recent years, but with the size of the armed forces shrinking, the proportion for the overall military remains about the same, Pentagon figures show. Critics complain that the totals do not include cases in which commanders deal with cases by forcing gay men and lesbians out of the service on unrelated charges or by denying them the opportunity to re-enlist. Moreover, since the new policy was not put into effect until Feb. 28, virtually all the figures reflect the situation under the previous policy.

% of total Fiscal armed Year A.F. Army Navy Marines Total forces 1991 151 206 545 47 949 0.04% 1992 111 138 401 58 708 0.04 1993 152 156 334 40 682 0.04 1994 180 136 245 36 597 0.04

Source: U.S. Department of Defense