October 21, 2010 | by Chris Johnson
Gates raises bar for ‘Don’t Ask’ discharges

Defense Secretary Robert Gates issued guidance to Pentagon leaders on Thursday raising the rank of officials who can expel service members under “Don’t Ask, Don’t Tell,”  prompting questions about whether the new procedure would bring discharges to a halt.

In a memo dated Oct. 21, Gates said he’s issuing the changes “in light of the legal uncertainty”‘ surrounding “Don’t Ask, Don’t Tell” in the wake of recent court actions striking down and then reinstating the law.

According to memo, discharges can only happen under “Don’t Ask, Don’t Tell” by the personal approval of the military service secretary of the department concern “in coordination” with other Pentagon officials.

“[I]n order to further ensure uniformity and care in the enforcement of the Don’t Ask, Don’t Tell law and policy during this period, effective immediately and until further notice, no military member shall be separated pursuant to 10 USC 654 without the personal approval of the Secretary of the miliary department concerned, in coordination with the Undersecretary of Defense for Personnel and Readiness and the general counsel for the Department of Defense,” Gates writes.

A second memo issued the same day also outlining the changes was sent out by Under Secretary of Defense for Personnel and Readiness Clifford Stanley.

Stanley also advised gay, lesbian and bisexual service members currently in the military to think twice about making their sexual orientation public.

“We note again for Servicemembers, that altering their personal conduct during this period, in reaction to last week’s injunction, may have adverse consequences for themselves or other depending upon the state of the law,” Stanley writes.

On Thursday, members of the media during a news conference questioned a senior Pentagon attorney, who spoke on the condition of anonymity, about whether the change in the process effectively halts discharges under “Don’t Ask, Don’t Tell.”

“I would not try to overinterpret what’s on the paper,” the attorney said. “It’s an effort to further ensure uniformity and care in enforcement of the law during the legally uncertain period.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the new change to appears to be giving all service members the same protections from “Don’t Ask, Don’t Tell” that were previous given to officers.

“All proposed ['Don't Ask, Don't Tell'] discharges, regardless of grade and rank, will be reviewed at the highest civilian levels,” he said. ”This can be a major constructive development for gay and lesbian service members.”

Sarvis said the change could “dramatically reduce” discharges, but noted the law remains on the books and service members shouldn’t come out.

“The fact that ['Don't Ask, Don't Tell'] remains law further underscores the urgent need for the full Senate to vote for repeal when it returns to lame-duck session next month,” he said.

Richard Socarides, a gay New York attorney who served as a adviser for President Clinton, said he thinks the changes amounted to a “de facto moratorium” on “Don’t Ask, Don’t Tell.” Still, Socarides questioned why the Obama administration hadn’t taken this action sooner.

“This is what they should have done 20 months ago,” he said.

During the briefing, the Pentagon attorney said the reference in the memo to service secretaries working “in coordination” with the other defense officials to expel someone under “Don’t Ask, Don’t Tell” doesn’t “necessarily” constitute veto power over the discharge by the other officials.

“When the guidance is coordinate with A, B and C, that means you consult with them … and in the legal world, that means providing legal advice,” the attorney said. “Does it constitute the ability to veto? No, not necessarily. It informs the decision.”

The new changes also raises questions about what would happen to openly gay Americans who seek to enlist in the U.S. armed forces and announce their sexual orientation to recruiters. Under previous rules, they would have not been able to enter service.

But the Pentagon attorney expressed uncertainty about how the changes would affect recruiting and said he expects additional guidance later.

“We are complying with the law and there is nothing specific in this guidance about the recruitment situation, but I would expect that it will come together at perhaps the service level or within the recruitment community,” the attorney said. “They’ll develop guidance in reaction to this guidance.”

The Pentagon attorney said he “couldn’t comment” on whether communication took place between Gates and the White House before the new memo was issued.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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