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Proponents of the "don't ask, don't tell" policy thought it would reduce the number of discharges due to homosexuality and enable gay men, lesbians, and bisexuals to serve in the military.71 As Secretary of Defense Les Aspin stated "Under the old policy, a homosexual servicemember had to lie and actively hide his or her orientation. In other words, they had to work hard to keep off the radar screen. Under the new policy, they will have to work to get onto the radar screen. That is progress."72 Unfortunately, Aspin's predictions were incorrect. Following adoption of the policy, the number of administrative separations, i.e. discharges, has soared. Under the "don't ask, don't tell" policy, plenty of servicemembers get on "the radar screen." According to the Servicemembers Legal Defense Network, as of the end of 2001, 7,793 servicemembers had been discharged since the inception of "don't ask, don't tell" because of their actual or perceived homosexuality.73 In 2001, the Department of Defense discharged 1,256 men and women for acknowledging their homosexual orientation, or engaging in homosexual acts.74 The number of discharges in 2001 was nearly double the homosexual separation figure of 730 in 1992, prior to the adoption of the "don't ask, don't tell" policy. 75 "Don't ask, don't tell" costs the military millions of dollars each year to recruit and replace experienced servicemembers dismissed because of their sexual orientations. Human Rights Watch estimates conservatively that the policy has cost the military at least $218 million simply to replace discharged servicemembers.76 The preponderance of discharges under the policy have been "statement" cases, i.e., cases in which a servicemember acknowledges orally or in writing that he or she is gay, lesbian, or bisexual.77 Many statements were intentionally made to secure a discharge because the servicemember was no longer willing to endure anti-gay abuse or a life of secrecy. Other statements were made inadvertently or in the context of conversations thought to be confidential. Underlying all is the dilemma faced by gay, lesbian, and bisexual servicemembers who try to live up to core military values-including the value of integrity-but who are forced to lie about their lives due to the "don't ask, don't tell" policy. When asked about this dilemma, a military lawyer told Human Rights Watch, "It's a voluntary force, they know the rules."78 The following cases in which servicemembers deliberately acknowledged their homosexuality exemplify the dilemmas faced by gay men and lesbians in the military: · Staff sergeant Leonard Wayne Peacock joined the army in 1995, went to paratrooper jump school at Fort Benning, Georgia, became a certified paratrooper with over seventy jumps, and was then stationed at Fort Bragg until he was discharged under the policy in 2001.79 Rumors about his sexual orientation circulated among peers, he was taunted, and he was often asked if he was gay and why he never was seen with women. Anti-gay comments were common on the base. In April 2000, Peacock returned to his truck at a base parking lot and found a handwritten note on the windshield that said "fag." He thought that reporting it would raise suspicions about him, so he did not pursue a complaint. A year later, he was in the platoon sergeants' office and one of them said "we were classifying people-and we classified you as being gay." After that, he found notes on his humvee vehicle that said "proud to be bald and gay" and "rainbow warrior." The comments about his sexual orientation and the general anti-gay climate at the base led him to write a letter to his commander acknowledging he was gay and seeking a discharge in November 2001, which was granted. Peacock told Human Rights Watch he had wanted to stay in the military and make it his career, but he could not reconcile the core army value of integrity and the "don't ask, don't tell" policy. · Prior to a February 2000 "don't ask, don't tell" training course that Lt. Paul Sprague was conducting at Fort Totten, New York, a captain told Sprague that he would not attend since he [the captain] was not "a homo." When Sprague, who was the 354th Transportation Battalion Headquarters Detachment commanding officer, explained that the class was for everyone, the captain asked Sprague if he was a "homo." Another time, after Sprague completed the "don't ask, don't tell" training course, including training on the prohibition against anti-gay harassment, a sergeant major stood up and told the class a graphic anti-gay joke. As he left the training, a soldier approached Sprague and told him how much he hated homosexuals and that he and his friends used to seek out men perceived to be gay in New York City and beat them up. Sprague, who was awarded three Army achievement medals during ten years of active and reserve service, left the army reserves soon after these incidents. In his memorandum to his commander he stated, "... the Army applauds and rewards my efforts as a soldier and denounces my sexual orientation as a human being ... the Army's policy to silence gays and lesbians will not work, nor do I believe it will stop the harassment of gays and lesbians who serve our country with pride."80 · A gay sailor, Brandon DuBroc, entered the Navy in 1997, thinking the "don't ask, don't tell" policy would protect him.81 He excelled, attained a leadership position in boot camp, and graduated first in a class of six hundred. In training, he heard anti-gay comments and offensive language; while wanting to help others who were being harassed, he did not go to his superior for fear that he would be investigated. Once stationed in Norfolk, Virginia, he made friends with gay and lesbian servicemembers there whose orientation was suspected. Other sailors questioned him about his sexual orientation and told him there were rumors that he was gay. As a specialist in radio communications, he was assigned to the USS Saipan and heard anti-gay comments during weeklong tours at sea. When he heard one sailor say to another, "If we find another fag on the ship, we're going to throw them overboard," he began to fear violence but did not think he could confide in anyone without being investigated. As a six-month tour loomed, he submitted a letter to his command stating that he was a homosexual, and he was discharged in June 1999. He told Human Rights Watch he made the statement because of fear and his knowledge of a 1992 case in which a gay seaman was beaten to death, in what is widely believed to be a killing motivated by anti-gay hatred.82 · On board the USS Eisenhower in September 1997, Barry Waldrup and three other sailors were repeatedly harassed. Waldrup was asked numerous times if he was gay and, because he feared for his safety, slept in the common room so that he would never be alone. Someone wrote, "You're a dead faggot" on his bunk. Another sailor found a note tacked to his bunk that said "Leave or Die Fag," while another found "Leave Fag" written in ketchup on his bunk. The fourth sailor's car was vandalized. Days later unknown assailants beat him unconscious while calling him a "faggot." Fearing additional attacks and harassment, the four sailors told the commander of the USS Eisenhower that they were gay and were subsequently discharged.83 · On September 26, 1997, two men called Marine Lance Corporal Kevin Smith a "faggot," and beat him outside a gay bar in San Angelo, Texas.84 Smith told the police officers who responded to the attack that he did not want to press charges against the civilian assailants because he was in the Marines. One of the officers reportedly told him, "If you can't say you were here, why did you come here?" Smith became angry and told the officer to just do his job. Smith believes the officer decided to report the incident to the Military Police, because his platoon sergeant questioned Smith the next day about how he had sustained a black eye and a bruised knee. The sergeant expressed little concern about Smith's physical state following the attack but questioned Smith about whether he had been to the gay bar before. The sergeant told him that there would be a criminal investigation by the Naval Investigative Service, the naval criminal investigative agency, and that they were very thorough.85 Smith wanted to stay in the military but feared the investigation, so he submitted a letter stating he was gay in October 1997 and was honorably discharged two months later. In a preliminary statement Smith said, "the price of serving my country is too high if the military puts more of a premium on investigating my private life than in assisting me with bringing those who assaulted me to justice."86_ · While based at Camp Pendleton, California in 1999, a Marine lance corporal heard frequent threats by marines against gays and lesbians including such comments as: "If I see a faggot, I'm gonna kill him;" "I'll beat those goddamned homos until they're dead;" "Let's go to a gay bar this weekend and fuck some queers up."87 Fearing for his own safety, the corporal sought a discharge under the "don't ask, don't tell," policy. In his letter to his commander acknowledging his homosexuality he stated, "... the only way I can protect myself from this very real threat of verbal and physical harassment or a possible investigation into my sexual orientation is by making this disclosure to you."88 · In 1999, a petty officer on the USS Barry wrote a letter to a civilian friend confiding that he was bisexual. The letter disappeared before he was able to mail it. A short time later, he was kicked in the face while sleeping onboard. Threatening statements and acts from shipmates followed, with one stating that he had heard "the guy who was kicked ... is a fag. I'd like to find the guy who kicked him because he deserves a medal." While in the bathroom, other sailors told the petty officer, "We don't need faggots on ship" and that something should be done to "get rid of them." Fearing for his safety, the petty officer sought and was granted a discharge under the policy.89 · In 1999, two female airmen at the Defense Language Institute (DLI) in Monterey, California acknowledged they were lesbians and sought discharges because of anti-gay harassment.90 Fellow airmen had repeatedly asked them whether they were involved with each other; the airmen called them "lipstick lesbians." A male airman asked one why she would want a woman when she could "have this," pointing to himself. Another airman called them "pussy suckers." According to the women, anti-gay comments and threats were common at DLI, with one of them stating that another student had said, "If I ever found out someone is a faggot, I would kill him because faggots do not belong in the military." One of the women wrote in her statement acknowledging that she was gay that she sought a discharge because she was in "constant fear of being investigated by the command or harmed by servicemembers because of the constant comments and rumors about my sexual orientation." She also wrote, "I cannot serve my country in good conscience knowing that my classmates don't want me here and could possibly physically harm me if they suspected or learned that I am in fact gay." Some homosexuals have made verbal or written statements in private or with expectations of confidentiality, only to find those statements became the basis for separation from the military. Even statements to psychiatrists and chaplains have been used against servicemembers. The Navy's General Medical Officer Manual, updated in May 1996, instructed Navy doctors: "Homosexuals should not be referred to psychiatry. This is not a medical matter, but a legal matter. The referral should be made to the command legal officer or judge advocate general."91 · In 1994, a Navy psychiatrist reported Marine Corp. Kevin Blaesing's homosexuality to Blaesing's commanding officer. Although Blaesing succeeded in overturning his discharge after the psychiatrist acknowledged that Blaesing had never revealed his sexual orientation, his new commanding officer, Lieutenant Colonel Martinson, disapproved his application to re-enlist.92 · In 1996, after West Point Cadet Nicole Galvan's commander questioned her about her sexual orientation in the presence of other cadets, she filed a complaint about the commander's inappropriate questioning. The commander subsequently confiscated Galvan's diary. Thinking that she faced a battle with her commander she could not win, and fearing an investigation of her private life, Galvan resigned from West Point.93 · During 2000, Derjuan Tharrington, a seaman on the USS Dubuque, told the ship's chaplain that he was gay while he was describing persistent anti-gay harassment he had suffered on the ship. After Tharrington met with the chaplain, his lieutenant asked him what they had discussed, and Tharrington refused to answer. The lieutenant said he would have to find out on his own. Tharrington believes the lieutenant asked the chaplain about their discussion and that the chaplain disclosed Tharrington's admission that he was gay. An inquiry was initiated under the "don't ask, don't tell" policy and Tharrington was discharged.94 · In 1997, the Navy began separation proceedings against Senior Chief Timothy R. McVeigh (no connection to the Timothy J. McVeigh who was sentenced to death for the 1995 Oklahoma City bombing) based on information obtained from the internet service provider America Online. McVeigh, a highly decorated sailor with seventeen years in the Navy, came under investigation after sending an e-mail message about a toy drive for his shipmates' children. The recipient of the message, a civilian member of an organization supporting Navy wives, looked up the sender's user profiles-a personal description which many America Online subscribers choose to make available-and discovered that his marital status was listed as "gay." She passed this information along to the Navy's legal department, which called America Online and confirmed that the user profile belonged to McVeigh. In federal court, McVeigh successfully fought the Navy's efforts to discharge him.95 Among other violations, the judge ruled that the Navy had misapplied "don't ask, don't tell" in McVeigh's case by initiating an investigation and seeking his discharge without sufficient cause.96 The Navy eventually reached a settlement with McVeigh and he was granted early retirement, full benefits, and legal costs.97 · The case of Steve May is highly unusual, because of the context in which his "statement" of homosexuality was made, the publicity his case garnered, and his ability to defeat the army's discharge effort. A Republican state legislator in Arizona, May had served in the Army as a lieutenant and then became a reservist. In a heated debate in the Arizona state legislature about health care benefits for same-sex partners in February 1999, during which other representatives made anti-gay comments and said that homosexuals were immoral, May could not contain himself. He stated that "this legislature takes my gay tax dollars, and my gay tax dollars spend the same as your straight tax dollars. If you're not going to treat me fairly, don't take my money."98 As a result of his statement, the Army moved to discharge him. May's fellow officers defended him and flatly denied that May's "coming out" affected unit cohesion or morale. His Army reserve commander read about May's sexual orientation in a news article and wrote in a sworn statement that May's performance had been "nothing less than outstanding" and that "the vast majority of personnel in the unit have knowledge of the article, however such knowledge has in no way affected morale in his platoon or the other platoons. In fact, the HQ section is functioning better than it has for my past tenure as commander."99 Another officer from May's reserve unit wrote, "I do not believe that this knowledge has in any way been detrimental to the morale of my troops or the morale of the troops directly under Lt. May's command. I firmly believe that whether Lt. May's sexual orientation is as suspected by the investigating parties, the fact is and should be considered irrelevant...."100 In March 2000, after an investigation under the "don't ask, don't tell" policy, the Army asked May to resign, and his case was sent to a discharge board for resolution.101 In September 2000, an Army panel ruled that May should be granted an honorable discharge. May immediately stated he would appeal the ruling and seek retention under the policy's exceptions that would allow him to serve for the "good of the service."102 May told reporters that "this [policy] is an old dinosaur that is an embarrassment to the nation."103 In January 2001, the Army announced that it would cease its efforts to discharge May and would allow him to complete his term as a reservist. May said, "I have always served my country with honor, integrity, and loyalty, and it hurt me deeply that the Army would try to fire me-not for anything I did in the Army, but for who I am and for doing my legislator's job."104 71 Discharges for "homosexual conduct" declined consistently from the early 1980s until the early 1990s. In 1993 and 1994, discharges remained steady (682 and 617, respectively) at about .04% of the active forces. In 1995 there were 757 discharges. Under Secretary of Defense for Personnel and Readiness, Review of the Effectiveness, April 1998, Table I. 72 Statement of Secretary of Defense Les Aspin, U.S. Senate Committee of Armed Services, Policy Concerning Homosexuals in the Armed Forces: Hearings before the Committee of Armed Services, U.S. Senate, July 20, 1993, S. Hrg. 103-845, p. 703. 73 In general, servicemembers who are discharged under the "don't ask, don't tell" policy receive "honorable" discharges. 74 Servicemembers Legal Defense Network, Conduct Unbecoming: The Eighth Annual Report on "Don't Ask, Don't Tell," March 14, 2002, p. 1. This number excludes U.S. Coast Guard discharge figures, since the Coast Guard is not part of the Department of Defense, and the figure was revised in March when it was discovered that Fort Bragg, NC officials had failed to report twenty discharges under the policy. 75 Office of the Under Secretary of Defense (Personnel and Readiness), Review of the Effectiveness, April 1998, Table I. 76 In 1992, the General Accounting Office estimated that the average replacement costs were $28,000 for each enlisted member and $120,000 for each officer. General Accounting Office, Defense Force Management Statistics Related to DOD's Policy on Homosexuality, 1992, (GAO/NSIAD 92-98S.) There were 7,800 discharges under the policy as of March 2002. 77 "First, we found the large majority of discharges for homosexual conduct are based on the statements of service members who identify themselves as homosexual, as opposed to cases that involved homosexual acts." Office of the Under Secretary of Defense (Personnel and Readiness), Review of the Effectiveness, April 1998, p. 3. 78 Human Rights Watch interview with Robert Reed, General Counsel's office, Department of Defense, Washington D.C., August 10, 2001. All the military branches stress integrity as a core military value. A gay former airman told a reporter, "I wanted to live up to the standards that the military instilled in me. You have to have honesty and integrity." Jim Oliphant, "Under Friendly Fire: Don't Ask, Don't Tell: How the Policy is Enforced in the Field," Legal Times, January 3, 2000. 79 Human Rights Watch telephone interview with Staff Sergeant Leonard Wayne Peacock, February 19, 2002. Peacock recalled being asked if he was a homosexual and whether he ever wanted to sleep with someone of the same sex during the recruitment process in Montgomery, Alabama. 80 Human Rights Watch telephone interview, February 9, 2000; Servicemembers Legal Defense Network, Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," March 15, 2001, Exhibit 67-69. 81 Human Rights Watch telephone interview with Brandon DuBroc, August 25, 1999. 82 Twenty-two-year-old seaman Allen R. Schindler was based on the Belleau Wood, an amphibious assault ship based in Japan. His mother, Dorothy Hajdys, told reporters that her son referred to the ship in letters home as the "Helleau Wood." According to several friends of his, Schindler had complained repeatedly of anti-gay harassment to his chain of command in March and April 1992, citing incidents such as the gluing-shut of his locker and frequent comments from shipmates like "There's a faggot on this ship and he should die." On October 27, 1992, Schindler was brutally beaten to death in a public restroom three blocks from the Navy base at Sasebo, Japan. His body was identifiable only by tattoos on his forearms. Airman Terry Helvey, one of Schindler's shipmates, pleaded guilty and was sentenced to life imprisonment. Although Helvey maintained that he did not kill Schindler because he was gay, Navy Investigator Kevin Privette testified at the trial that Helvey had said, after his arrest, that he hated homosexuals and "I'd do it again." In the wake of Schindler's murder, the Navy denied that it had received any complaints of harassment and refused to speak publicly about the case or to release the Japanese police report on the murder. A few months later, in January 1993, the Navy Times ran an article in which an unnamed Marine at the El Toro Marine Corps Air Station was asked what he would do if he learned a homosexual lived in his barracks. His response: "I'd have to kill him, I guess." H.G. Reza, "Homosexual sailor beaten to death, Navy confirms crime," Los Angeles Times, January 9, 1993; Cheryl Lavin and Merrill Goozner, "A gay sailor's death personalizes debate," Chicago Tribune, January 31, 1993. 83 Servicemembers Legal Defense Network, Conduct Unbecoming: The Fourth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," February 19, 1998, pp. 46-49. 84 Human Rights Watch telephone interview with Kevin Smith, February 16, 2000. 85 Servicemembers Legal Defense Network, Conduct Unbecoming: The Fifth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," March 15, 1999, p. 8 and Exhibit 5. 86 Press statement by Kevin Smith, February 19, 1998, on file with Human Rights Watch. 87 Servicemembers Legal Defense Network, Conduct Unbecoming: The Sixth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," March 9, 2000, p. 61, and copy of Marine's letter to commander. 88 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 61. 89 Ibid., p. 60. 90 Ibid., p. 37, Exhibit 37. 91 U.S. Department of Defense, Department of the Navy, NAVMED P-5134, General Medical Officer Manual, May 1996, quoted in Servicemembers Legal Defense Network (SLDN), Conduct Unbecoming, March 15, 1999, p. 35-37. As a result of SLDN complaints about the manual, it was later revised and specific reference to homosexuals was deleted from the online version. And, as noted below in footnote 92, the Lackland psychologists also thought it their duty to turn in gay servicemembers. 92 Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 1999, p. 10; Art Pine, "Few benefit from new military policy on gays," Los Angeles Times, February 6, 1995. At Lackland Air Force Base, where the discharge rate under "don't ask, don't tell" was unusually high, psychologists believed they should report anyone who told them he or she was a homosexual or bisexual. Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 23. In another case, a psychotherapist at Keesler Air Force Base said she was required to report an Air Force captain who had disclosed her bisexuality; the inquiry led to the captain's discharge. 93 Servicemembers Legal Defense Network, Conduct Unbecoming: The Third Annual Report on "Don't Ask, Don't Tell, Don't Pursue," February 1997, p. 4. 94 Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, p. 25. 95 McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998). 96 Laura Myers, "Navy settles `don't ask, don't tell' lawsuit," Associated Press, June 12, 1998. Professor Charles Moskos, the author of "don't ask, don't tell," submitted a declaration in the case urging the Navy to drop its efforts to discharge McVeigh and instead to undertake an inquiry into the Navy's conduct in investigating McVeigh. See, http://www.geocities.com/Pentagon/9241/MOSKOS.HTML. 97 Ibid. 98 James Sterngold, "An unlikely `don't tell' candidate: Lawmaker may face discharge," New York Times, August 26, 1999. 99 Signed statement of May's direct commander, August 8, 1999, Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 3. Name not made public. 100 Ibid., Exhibit 4. Name not made public. 101 Electronic mail message to Human Rights Watch from Steve May, April 6, 2000, on file with Human Rights Watch. 102 "Gay army reservist in Ariz. faces honorable discharge," Washington Post, September 18, 2000. 103 Ibid. 104 "Army drops effort to boot gay legislator from the reserves," Agence France Presse, January 16, 2001.
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