The Pentagon said Thursday that decisions about discharging homosexual service members would now be made by the secretaries of the Army, Navy and Air Force, a move aimed at ensuring uniformity amid uncertainty about the 17-year-old law prohibiting gays from serving openly in the military.
The new rules, which take authority for removing enlisted personnel found to be gay away from uniformed officers, came a day after an appeals court in San Francisco lifted a judge’s order that had barred the Pentagon from enforcing the “don’t ask, don’t tell” policy.
Even with the policy now back in force at least temporarily, a senior Pentagon official said that the flurry of legal decisions — more of which are possible next week — had made it necessary to ensure there was no confusion about the law as the appeals process proceeds.
“We are clearly in a legally uncertain environment,” said a senior Pentagon official, who briefed reporters on the new rules on the condition he not be named. “We wanted the separation in the hands of fewer people.”
Discharge decisions are now made by general or flag officers, hundreds of whom potentially have authority to kick out a service member under the “don’t ask” policy. The new rules do not change the procedures for removing officers, who are already subject to removal only by the service secretaries.
The appeals court decision “highlights the legal uncertainty period in which we now find ourselves with respects to ‘don’t ask, don’t tell’ and the need to further ensure uniformity and care in the enforcement of the law,” Clifford Stanley, undersecretary of defense for personnel, said in a memo announcing the change.
Defense Secretary Robert M. Gates, in a separate memo, said that “no military member shall be separated” under the law “without the personal approval” of the service secretary “in coordination” with Defense Department General Counsel Jeh Johnson and Stanley. Each of these officials is a political appointee.
Even though President Obama has announced his support for allowing gays to serve openly in the military, he has said he favors congressional action to overturn the law, instead of relying on the courts to overturn it.
A senior Pentagon official who briefed reporters said the new rules were considered necessary because of the possibility of confusion about the status of the law within the ranks. The rules are not aimed at slowing down discharges while the appeals process runs its course.
“That is not intended to be a substantive change in the decision-making,” said the official, an attorney. “You should not interpret that as: We are going to separate more or less people. We are going to elevate these decisions to ensure uniformity and care in the enforcement of the law.”
But Aubrey Sarvis, an Army veteran and executive director of Servicemembers Legal Defense Network, said that giving service secretaries authority over discharges could dramatically reduce the number of individuals kicked out.
He said the secretaries would be more likely than officers to apply the proper legal standard, which requires the Pentagon to find that allowing gay service members would harm military readiness, unit cohesion and good order.
The new procedures came less than a week after a previous Pentagon memo that declared, as a result of the initial ruling overturning the law, that homosexuals were free to enlist openly in the armed services. That lasted eight days, during which time some former service members who had been discharged under the law attempted to reenlist.
The senior official said he could not say how their applications to rejoin the service would be treated now that the law was back in force. “I think that situation will play itself out in the coming days,” he said, adding, “It wasn’t a large number of people who did that.”
The legal battle over the “don’t ask” policy will remain on hold until at least next week, as the three-judge panel in San Francisco considers whether to keep the law in effect indefinitely.
In September, U.S. District Judge Virginia Phillips in Riverside declared the law unconstitutional because it discriminated against gays and lesbians who wanted to serve in the military. She also found the policy hurt military readiness because it deprived the armed forces of thousands of highly qualified officers. On Oct. 12, she ordered the government to suspend enforcement of the law.
The three-judge panel agreed with the administration Wednesday that the law should stay in effect but issued only a temporary order. It is possible the judges are divided among themselves on how to proceed. They could decide to keep the policy in effect indefinitely while the appeals proceed, or instead uphold Judge Phillips’ order suspending the policy.
The Pentagon is planning to issue a report by December outlining how it intends to implement the repeal of the law, including changes in benefits, housing and other matters arising from allowing gays to serve openly.
Gates and others favor repeal by Congress in part because of the far-reaching nature of the change and expected opposition from some parts of the military. But it is not clear whether Congress will act on Obama’s call for a repeal either in a lame-duck session or next year when the Republicans could control the House and possibly the Senate.