‘Don’t Ask’ changes too late for discharged officer

Mike Almy, a former Air Force officer, is among the plaintiffs seeking reinstatement in the military through the new 'Don't Ask' legislation (Blade photo by Michael Key).

New regulations unveiled last week to ease the burden of LGBT service members serving under “Don’t Ask, Don’t Tell” were well received by advocacy groups — but a former Air Force officer discharged under the law called news of the changes “bittersweet” because they came too late to help him.

Mike Almy, a gay former Air Force communications officer who recently testified before the Senate on being discharged under “Don’t Ask, Don’t Tell,” said the new changes would have helped him stay in the service when he faced expulsion from the U.S. military.

“On a personal level, it’s kind of bittersweet from the standpoint that these regulations, this new guidance would have helped me a few years ago when I was going through my discharge proceedings,” Almy said. “In all likelihood, I would still be on active duty under the new guidance that Gates issued.”

Almy was discharged from the Air Force after another service member discovered personal e-mails revealing information about his sexual orientation and reported them to commanders. Almy said he was expelled from the Air Force even though he never made a statement to the military divulging he’s gay.

Even though Almy said he’s disappointed the new regulations weren’t in place to help him at the time of his proceedings, he noted that on a larger scale, the changes represent “a positive step” forward that provides more momentum for a full repeal of “Don’t Ask, Don’t Tell.”

“It’s still not a substitute, but it’s a definitely a move in the right direction, and it’s going to help thousands of service members who are in the military today,” he said.

The new changes, unveiled last week by Defense Secretary Robert Gates, will limit third-party outings by requiring such information to be given under oath, and raise the rank of the officers handling inquiries and discharges.

Almy said the new regulations will have a “direct bearing” on many LGBT service members he knows on active duty.

“The ones that I know that are still on active duty that are still serving — they’re very encouraged by the first initial step as well as the climate overall and the momentum that’s going on in the House and the Senate, and certainly the Pentagon, to fully repeal ‘Don’t Ask, Don’t Tell,’” he said.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said his organization is still examining the implications of the changes and what they mean for LGBT service members.

“It’s premature to say until we complete our legal analysis,” he said. “I think it will be helpful for some service members. It will reduce the number of investigations and, therefore, it will, in all likelihood, reduce the number of discharges.”

Sarvis said he wasn’t yet in a position to quantify how discharges would be reduced under the new regulations, but he noted that fewer people would face “Don’t Ask, Don’t Tell” discharges.

Among the issues SLDN is examining, Sarvis said, is what will happen in pending cases where a service member was outed by a third party under the old regulations, and subsequently announced their sexual orientation of their own accord.

“I would imagine in many cases that service members who are in the pipeline for discharge under the old regulations and the old [Department of Defense] directives, in essence, would have the opportunity to start over again,” he said. “In many cases, we know it’ll go back to their commanders.”

As SLDN examines the changes, Sarvis said his organization plans to publish this week new guidance for LGBT service members serving under “Don’t Ask, Don’t Tell.” He said SLDN has received numerous inquiries from active duty and reserve service members regarding the new regulations.

Among those serving who are pleased with the changes is a gay U.S. Army soldier currently in Iraq, who spoke to DC Agenda on condition of anonymity to avoid being discharged under “Don’t Ask, Don’t Tell.”

The soldier, who has been seeing a psychotherapist in part because of the stress of serving under “Don’t Ask, Don’t Tell,” said the new change allowing LGBT service members to disclose their sexual orientation to mental health experts would be particularly beneficial for him.

During his therapy sessions, the soldier said he had been dodging questions about his sexual orientation, or even unrelated matters that he thought may have outed him under the law. But with the new regulations in place, the soldier said he plans to come out to his psychotherapist in an upcoming session.

“In my particular instance, it’s the fact that I can talk about more than just any problems that I’m having at work or any problems that I’m having at home,” he said. “I can talk about issues that I’m having with my ex-boyfriend — and just identity issues. It just takes off a lot of stress because you can discuss more without having to censor yourself.”

The soldier said he also thinks Gates’ decision to raise the rank of those starting and conducting inquiries under “Don’t Ask, Don’t Tell” was “a remarkably ingenious way” to limit discharges.

“It makes it virtually un-enforceable, except for cases where disclosure would be unprofessional anyway,” the soldier said. “Generals [and] admirals have far more important things to do than worry about whether Private John Smith, or Lt. Jane Doe, are homosexual.”

Another case on which the new regulations could have an impact is the pending discharge of Lt. Col. Victor Fehrenbach, an Air Force pilot who’s facing discharge under the law.

In 2008, Fehrenbach was accused of raping another man and was only able to clear his name after saying he had consensual sex with his accuser. But his admission of having homosexual sex meant outing himself under “Don’t Ask, Don’t Tell.”

Sarvis said he doesn’t think Fehrenbach is moving toward discharge as a result of the new announcement.

“But I think in all likelihood, his file should go back to the [the commanding officer] and the [commanding officer] will make a determination on whether or not to reinitiate the ‘Don’t Ask, Don’t Tell’ investigation,” Sarvis said. “Without going into a great deal of detail, we think that there may be more than one avenue that will be beneficial for Lt. Col. Fehrenbach under the changes announced by Secretary Gates last week.”

Sarvis said SLDN has advised Fehrenbach not to engage in further media interviews while his case is pending.

What affect the new regulations will have on efforts to repeal “Don’t Ask, Don’t Tell” legislatively remains to be seen. Sarvis said the new regulations could “work both ways” in the effort to repeal, leading some members of Congress to say the situation has been addressed and others to say discharges must be reduced to zero.

“One side will say, ‘What’s the rush? Why should Congress have to deal with this? Secretary Gates and Adm. Mullen just announced some significant changes?” Sarvis said. “And the flip side of that is, ‘OK, they’ve made some changes, but you still have the statute on the books. You’re not getting down to zero discharges because of sexual orientation until you repeal the statute.”

Sarvis said that full repeal is necessary to eliminate completely the discharges of LGBT service members.

“The most important thing is ‘Don’t Ask, Don’t Tell’ has not gone away,” he said. “Service members are still at risk and LGBT service members cannot serve openly under ‘Don’t Ask, Don’t Tell.’”