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COMDTINST M1000.6A (18 Jun 07)
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12.B. SEPARATING ACTIVE DUTY ENLISTED MEMBERS
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12.B.2.d. Reasons for Discharge
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13. Homosexual conduct as defined in Chapter 12.E.
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12.E. Homosexual Conduct
12.E.1. Introduction
The policies contained within this chapter are based upon 10 U.S.C. 654 and
encompass the concepts commonly referred to as Don't Ask, Don't Tell. The phrase
Don't Pursue, Don't Harass, has been subsequently added to better describe its
intent. A brief description of these concepts follows:
1. Don't Ask. Commanders, commanding officers and officers-in-charge or
appointed inquiry officials shall not ask, and members shall not be required to
reveal, their sexual orientation. Additionally, all members of the Coast Guard are
expected to adhere to this requirement.
2. Don't Tell. Members shall not be required to reveal their sexual orientation.
However, if a member states that he or she is a homosexual or bisexual, or makes
some other statement that indicates a propensity or intent to engage in
homosexual acts, he or she may be subject to discharge.
3. Don't Pursue. Inquiries regarding sexual orientation may not be initiated unless
credible information is discovered. Even then, only certain individuals are
authorized to initiate inquiries and must stay within expressed guidelines. (See ...
Article 12.E.7. regarding Command inquiries.)
4. Don't Harass. The Coast Guard does not tolerate harassment or mistreatment of
anyone, whether they are service members, civilian employees, Auxiliarists or
members of the public, for alleged or perceived sexual orientation, or any other
reason. Harassment can take different forms, ranging from innocent comments
and jokes causing a hostile climate, to direct verbal or physical abuse. Further
guidance regarding harassment can be found in the ... Coast Guard Equal
Opportunity Program Manual, COMDTINST M5350.4 (series).
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12.E.1.b. Definitions
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3. Homosexual Act.
a. Any bodily contact, actively undertaken or passively permitted, between
members of the same sex for the purpose of satisfying sexual desires, and
b. Any bodily contact that a reasonable person would understand to demonstrate a
propensity or intent to engage in an act described in subparagraph (a) above.
4. Homosexual Conduct. A homosexual act, a statement by the member that
demonstrates a propensity or intent to engage in homosexual acts, or a homosexual
marriage or attempted marriage.
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8. Statement a Member Is a Homosexual or Bisexual or Words to That Effect.
Language or behavior that a reasonable person would believe intends to convey
that a person engages in, attempts to engage in, or has a propensity or intent to
engage in homosexual acts. This may include statements such as, I am a
homosexual, I am gay, I am a lesbian, and the like.
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12.E.3. Separation Policy
The suitability of persons to serve in the Coast Guard will be judged on the basis of their
conduct and ability to meet required standards of duty performance and discipline. A
members sexual orientation is considered a personal, private matter and is not a bar to
continued service unless manifested by homosexual conduct as described in this article.
There are three bases for separation:
1. Homosexual Acts. A Service member shall be separated if he or she has engaged in,
attempted to engage in, or solicited another to engage in a homosexual act or acts,
unless there are approved further findings of all these:
a. Such acts depart from the member's usual, customary behavior;
b. Such acts under all circumstances are unlikely to recur;
c. Such acts were not accomplished by using force, coercion, or intimidation;
d. Under the particular circumstances of the case, the member's continued presence
in the Coast Guard is consistent with the Coast Guards interests in proper
discipline, good order, and morale; and
e. The member does not have a propensity or intent to engage in homosexual acts.
2. Statements. A service member shall be separated if he or she states he or she is a
homosexual or bisexual, or words to that effect, unless there is a further approved
finding the member has demonstrated that he or she is not a person who engages in,
attempts to engage in, has a propensity to engage in, or intends to engage in homosexual
acts.
a. A members statement that demonstrates a propensity or intent to engage in
homosexual acts is grounds for separation not because it reflects the member's
sexual orientation, but because it indicates a likelihood the member engages in
or will engage in homosexual acts.
b. A members statement he or she is a homosexual or bisexual, or words to that effect,
creates a rebuttable presumption the member engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in homosexual acts.
(1) The member shall be advised of this presumption and given the opportunity to
rebut it by presenting evidence demonstrating he or she does not engage in,
attempt to engage in, have a propensity to engage in, or intend to engage in
homosexual acts.
(2) In determining whether a member has successfully rebutted the presumption that
he or she engages in, attempts to engage in, or has a propensity or intent to
engage in homosexual acts, some or all of the following may be considered; this
list is not exhaustive; any other relevant evidence may also be considered:
(a) Whether the member has engaged in homosexual acts;
(b) His or her credibility;
(c) Testimony from others about the member's past conduct, character, and
credibility;
(d) The nature and circumstances of the member's statement; and
(e) Any other evidence on whether the member is likely to engage in
homosexual acts.
3. Marriage. A service member shall be separated if he or she has married or
attempted to marry a person known to be of the same biological sex (evidenced by
the external anatomy of the persons involved).
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12.E.4. Characterization of Service
Characterization of service will be determined in accordance with Articles 12.A.2.
(for officers) and 12.B.2. (for enlisted members) subject to this guidance:
1. For both officers and enlisted members, a discharge shall be characterized as “Honorable”
or “General (Under Honorable Conditions)” if the sole basis for separation is homosexual
conduct unless aggravating circumstances are included in the findings.
2. For both officers and enlisted members, separation may be characterized as Under
Other Than Honorable Conditions only if there is also a finding that during the
current term of service the member attempted, solicited, or committed a homosexual
act under any of these aggravating circumstances:
a. By using force, coercion, or intimidation;
b. With a person under 16 years of age;
c. With a subordinate in circumstances that violate customary military superior-subordinate
relationships;
d. Openly in public view;
e. For compensation;
f. Aboard a military vessel or aircraft; or
g. In another location subject to military control under aggravating circumstances
noted in the finding that adversely affect discipline, good order, or morale
comparable to the impact of such activity aboard a vessel or aircraft.
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12.E.7. Command Inquiries
1. Commanding officers may initiate fact-finding inquiries into alleged homosexual
conduct only after receiving credible information a basis for discharge exists.
a. Credible information is that which, considering its source and the surrounding
circumstances, supports a reasonable belief there is a basis for discharge. It
requires a determination based on facts which can be articulated, not just a belief
or suspicion.
b. A commanding officer personally or a person he or she appoints may conduct a
fact-finding inquiry.
2. Credible information about homosexual conduct does not exist if the only
information known concerns an associational activity; e.g., going to a gay bar,
possessing or reading homosexual publications, associating with known
homosexuals, or marching in a gay rights rally in civilian clothes. Such activity, in
and of itself, does not provide evidence of homosexual conduct. Credible
information does exist, however, if a reliable person states he or she:
a. observed a service member engaging in homosexual acts or heard a service
member state that he or she is a homosexual or bisexual or is married to a person of
the same sex;
b. heard, observed, or discovered a service member made an oral or written statement a
reasonable person would believe intends to convey the fact the service member
engages in, attempts to engage in, or has a propensity or intent to engage in
homosexual acts; or
c. has observed behavior that amounts to a non-verbal statement by a service member
he or she is a homosexual or bisexual; i.e., behavior a reasonable person would
believe is intended to convey the statement the Service member engages in, attempts
to engage in, or has a propensity or intent to engage in homosexual acts.
3. Service members will not be asked about or required to reveal whether they are
heterosexual, homosexual, or bisexual. However, on receiving credible information of
homosexual conduct, commanders or appointed inquiry officials may ask members if
they engaged in such conduct. These officers first should advise the Service member
of the policy on homosexual conduct and of his or her rights under Article 31, UCMJ,
if applicable. Should the Service member choose not to discuss the matter further, the
commander should consider other available information.
4. Commanders should gather all credible information that directly relates to the
grounds for possible separation and limit inquiries to the factual circumstances
directly related to the specific allegations. Informal fact-finding inquiries and
administrative separation procedures are the preferred method of addressing
homosexual conduct. However, Service members may be subject to disciplinary
action or trial by courts-martial in appropriate circumstances.
5. This provision allows a commander to question a Service member about any
information he or she provided in the course of the fact-finding inquiry or any
related proceeding. It does not give the member any basis to challenge the validity
of any proceeding or the use of any evidence, including his or her statement, in any
proceeding. |
