MCO P1900.16F (MARCORSEPMAN) (JUN 06 2007)
6207. HOMOSEXUAL CONDUCT
1. Policy

a. Homosexual conduct is grounds for separation from the Marine Corps under the bases described in 6207.2. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member 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 the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in paragraph 6207.2.
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2. Bases for Separation. A Marine shall be separated under this paragraph if one or more of the following approved findings is made by the separation authority with or without administrative board proceedings:

a. The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further approved findings that:

(1) Such acts are a departure from the member's usual and customary behavior;

(2) Such acts under all the circumstances are unlikely to recur;

(3) Such acts were not accomplished by the use of force, coercion, or intimidation;

(4) Under the particular circumstances of the case, the member's continued presence in the Marine Corps is consistent with the interest of the Marine Corps in proper discipline, good order, and morale; and

(5) The member does not have a propensity or intent to engage in homosexual acts.

b. The member has made a statement that he/she is a homosexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he/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 statement by a service member that he/she is a homosexual, or words to that effect, creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The service member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts. In determining whether a member has successfully rebutted the presumption that he/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:

(1) Whether the member has engaged in homosexual acts;

(2) The member's credibility;

(3) Testimony from others about the member's past conduct, character, and credibility;

(4) The nature and circumstances of the member's statement;

(5) Any other evidence relevant to whether the member is likely to engage in homosexual acts. (This list is not exhaustive; any other relevant evidence may also be considered.)

c. The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).

3. Inquiry

a. Responsibility

(1) The member's commander is authorized to initiate fact finding inquiries concerning homosexual conduct. A commander may initiate a fact finding inquiry only when he/she has received credible information that there is a basis for discharge. Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs.

(2) A fact finding inquiry may be conducted by the commander personally or by a person he or she appoints. It may consist of an examination of the information reported or a more extensive investigation as necessary.

(3) The inquiry should gather all credible information that directly relates to the grounds for possible separation. Inquiries shall be limited to the factual circumstances directly relevant to the specific allegations.

(4) If a commander has credible evidence of possible criminal conduct, he or she shall follow the procedures outlined in the current version of the Manual for Courts Martial and JAGINST 5800.7 series, JAGMAN.

(5) These inquiry provisions do not apply to activities of the Naval Criminal Investigative Service and other Department of Defense criminal investigative organizations that are governed by DoDINST 5505.8 series.

b. Bases for Conducting Inquiries. A commander will initiate an inquiry only if he or she has credible information that there is a basis for discharge. Credible information exists when the information, considering its source and the surrounding circumstances, supports a reasonable belief that there is a basis for discharge. It requires a determination based on articulable facts, not just a belief or suspicion.

c. A basis for discharge exists if:

(1) The member has engaged in a homosexual act;

(2) The member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts; or

(3) The member has married or attempted to marry a person of the same sex.

d. Credible information does not exist, for example, when:

(1) The individual is suspected of engaging in homosexual conduct, but there is no credible information, as described, to support that suspicion;

(2) The only information is the opinions of others that a member is a homosexual;

(3) The inquiry would be based only on rumor, suspicion, or capricious claims concerning a member's sexual orientation; or

(4) The only information known is an associational activity such as 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.

e. Credible information exists, for example, when:

(1) A reliable person states that he or she observed or heard a service member engaging in homosexual acts, or saying that he/she is a homosexual or is married to a member of the same sex;

(2) A reliable person states that he/she heard, observed, or discovered a member make a spoken or written statement that a reasonable person would believe was intended to convey the fact that he/she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or

(3) A reliable person states that he/she observed behavior that amounts to a non-verbal statement by a member that he/she is a homosexual or bisexual (i.e., behavior that a reasonable person would believe was intended to convey the statement that the member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts).

f. Procedures

(1) Informal fact finding inquiries and administrative separation procedures are the preferred method of addressing homosexual conduct. This does not prevent disciplinary action or trial by court-martial when appropriate.

(2) Commanders shall exercise sound discretion regarding when credible information exists. They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken.

(3) Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether the member is a heterosexual, a homosexual, or a bisexual. However, upon receipt of credible information of homosexual conduct (as described above), commanders or appointed inquiry officials may ask members if they engaged in such conduct. The member should first be advised of the Marine Corps policy on homosexual conduct and, if applicable, the provisions of Article 31, UCMJ. Should the member choose not to discuss the matter further, the commander should consider other available information. Nothing in this provision precludes questioning a member about any information provided by the member in the course of the fact finding inquiry or any related proceeding; nor does it provide the member with any basis for challenging the validity of any proceeding or the use of any evidence, including a statement by the member, in any proceeding.

(4) At any point during the inquiry, the commander or appointed inquiry official must be able to explain clearly and specifically which grounds for separation he/she is attempting to verify and how the information being collected relates to those specific separation grounds.

(5) A statement by a service member that he/she is a homosexual or bisexual creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The service member shall be given the opportunity to present evidence demonstrating that he/she does not engage in, attempt to engage in, or have a propensity or intent to engage in homosexual acts. The service member bears the burden of proving, by a preponderance of the evidence, that he/she is not a person who engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.

g. Legal Effect. The procedures set forth in paragraph 6207.3 create no substantive or procedural rights.

4. Disposition

a. Based on the inquiry described in paragraph 6207.3, the commander must determine whether there is probable cause (a reasonable belief) to believe a basis for administrative separation exists. If the commanding officer determines probable cause exists, the commanding officer shall initiate separation processing.

b. If the commanding officer determines probable cause does not exist, the commanding officer shall terminate the inquiry and any administrative action already initiated.

c. Certain homosexual conduct may constitute both a basis for administrative separation processing and a violation of the UCMJ. The UCMJ requires all allegations of misconduct to be thoroughly investigated. Upon review of the results of the investigation, the cognizant commanding officer has discretion to determine what, if any, disciplinary action is appropriate. The provisions for administrative discharge for homosexual conduct do not preclude disciplinary action under the UCMJ when such action is deemed appropriate by the cognizant commanding officer. In this regard, there is no right on the part of any individual to demand trial by court-martial in lieu of administrative separation processing.

5. Characterization. Characterization of service or description of separation shall be in accordance with the guidance in table 6-1 of this chapter. When the sole basis for separation is homosexual conduct, a characterization under other than honorable conditions may be issued only if such a characterization is warranted under table 6-1 and there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act in the following circumstances:

a. By using force, coercion, or intimidation;

b. With a person under age 16;

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 having an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.

6. Administrative Separation Board Procedures. The administrative discharge board procedures outlined in paragraph 6304 shall be used subject to the following guidance:

a. The administrative separation board shall be informed of the Congressional findings as enumerated in paragraph 6207.1b.

b. In addition to the requirements of paragraph 6319, the administrative separation board shall be guided by the following:

(1) If the board finds one or more of the circumstances authorizing separation as described herein is supported by the evidence, the board shall recommend separation unless the board finds that retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.

(2) If the board does not find that there is sufficient evidence that one or more of the circumstances authorizing separation as described herein has occurred, the board shall recommend retention unless the case involves another basis for separation of which the member has been duly notified.

(3) The member shall bear the burden of proving throughout the proceeding, by a preponderance of the evidence, that retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.

(4) Findings regarding whether or not retention is warranted under the limited circumstances described are required if the member clearly and specifically raises such limited circumstances.

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8. Limitations. Nothing in these procedures:

a. Limits the authority of the Secretary of the Navy to take appropriate action to ensure that there has been compliance with the provisions of this policy;

b. Requires that a member be processed for separation when a determination is made that:

(1) The member engaged in acts, made statements, or married or attempted to marry a person known to be of the same biological sex for the purpose of avoiding or terminating military service; and

(2) Separation of the member would not be in the best interest of the Marine Corps;

c. Precludes retention of a member for a limited period of time in the interests of national security as authorized by the Secretary of the Navy;

d. Authorizes a member to seek Secretarial review unless authorized in procedures promulgated by the Secretary of the Navy;

e. Precludes separation in appropriate circumstances for another reason as described in this chapter; or

f. Precludes trial by court-martial in appropriate cases.